Plea Bargaining Under Nigerian Law

Introduction

The usual outcome of ‘guilty’ or ‘not guilty’ and or ‘sentencing’ in a criminal trial which was largely determined by the legal principles of ‘proof beyond reasonable doubt’ and ‘presumption of innocence’ has been resolved by the now common aspect of a negotiated agreement by parties to the criminal proceedings. In real times, parties’ concession underlies the basis for a successful plea bargain to bridge the gap in circumstances where the prosecution is unable to procure compelling and conclusive evidence against the accused or co-accused necessary for the Court’s finding of ‘guilty’ and gives an opportunity to an accused persons to elect not to proceed with the trial.

A Plea bargain in ordinary parlance is a negotiated term of settlement in criminal trials between the prosecution and the accused, wherein the accused pleads guilty to a lesser offence or reduced charge in exchange for a reduction in sentence or dismissal of the charges,[1] which is finally accepted by the Court. Simpliciter, plea bargaining means a ‘conviction without trial.’ There are different types of plea bargain. Most specifically, are the Charge bargain in which a prosecutor agrees to drop some of the counts or reduce the charge to a less serious offence in exchange for a plea of either guilty or no contest from the Defendant. The second type of bargain is a plea bargain in which a prosecutor agrees to recommend a lighter sentence in exchange for a plea of either guilty or no contest from the Defendant.[2] There is also a type of plea bargain called the count bargain, in which a Defendant who is faced with multiple charges will be allowed to plead guilty to fewer counts of the charge. This is however not a common form of plea bargain as it only applies to Defendants who are faced with multiple charges.[3]

Plea Bargain – Historical Background

The origin of Plea Bargain could be traced to the American legal system in the eighteenth century. It began by convention but after it was accepted by the Courts, it became entrenched in the Federal and state criminal procedure rules.

The concept of ‘plea bargain’ achieved its global recognition in 1970 in the landmark case of Brady v. United States,[4] by the Supreme Court of the United States of America where Brady who pleaded guilty to a kidnaping charge in violation of 18 U.S.C. § 1201(a) and whose sentence was 50 years imprisonment, was later reduced to 30.

This was adopted due to the adversarial nature of the United States’ judicial system which places the judges as an umpire, in which they are completely dependent upon the parties to develop the factual record and cannot independently discover information to assess the strength of the case against the Defendant. There are several cases where the US Courts have given full effect to plea bargain and as at today, 95% of criminal cases in the United States of America have been resolved by plea bargains.[5]

Plea bargain as a concept was not known in Nigerian Criminal Justice jurisprudence until 2004. It became known and applied with the establishment of the Economic and Financial Crimes Commission (EFCC) Act following increased level of corruption, as the concept was provided for under Section 14(2) of the EFCC Act. This concept of Plea Bargain was also boldly institutionalised by Lagos State House of Assembly in the Administration of Criminal Justice Law 2011, Laws of Lagos State.[6]

Plea Bargaining under the EFCC Act

Section 14(2) EFCC Act empowers the commission (subject to the prosecutorial powers of the Attorney-General under Section 174 of the Constitution to institute, continue or discontinue criminal proceedings against any persons in any court of law), to compound any offence punishable under the EFCC Act by accepting such sum of money as it thinks fit not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence. This discretionary power given to the EFCC coupled with the authority to compound offences exemplify the proposed concept of plea bargaining under the Nigerian law. This provision has been given full interpretation and application by the Courts in several high-profile cases.[7]

However, the Economic and Financial Crimes Commission (EFCC), has been criticised for this provision and it has been termed as “smuggling” the plea bargain concept, which has been described as dubious into our legal system to prosecute public officers involved in money laundering and looting of the public treasury.[8] It has also been described as corruption to bring plea bargain into the law of Nigeria.[9]

At a cursory look at the provision, one may argue rightly that there is no express or implied mention of plea bargain under Section 14(2) of the EFCC Act and as such, what the section envisages is “compounding of offences’ which is an act in which a person agrees not to report the occurrence of a crime or not to prosecute an accused in exchange for money or other consideration. This is not the same as plea bargain. The Section does not show the nature and type of the Plea Bargain neither does it show the stage of the proceedings the bargain may be initiated. There is also no laid down procedure or safeguards for Plea Bargain and such agreement as envisaged under the EFCC Act does not necessarily culminate in a judgment neither does it lead to conviction nor sentencing. It is to be noted that compounding of a felony is an offence in itself.[10] It may also be argued that the purport of the EFCC Act may be the concept of withdrawal of Compliant under Section 355 of the ACJA which provides that where a complainant at any time before a final order is made in a case, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the complaint and shall thereupon acquit the Defendant. It may also be argued to mean reconciliation as provided under Section 23 of the High Court Law of Lagos State, 2019 which provides that in criminal cases, the High Court may encourage and facilitate the settlement in an amicable way of proceedings for Common Assault or for any other offence not amounting to a felony and not aggravated in degree, on terms of payment of compensation or other terms approved by court. Continue reading “Plea Bargaining Under Nigerian Law”

May 9, 2023

PUC Records Another Victory for Access Bank PLC

PUC Records Victory for Access Bank PLC in respect of Claims for Retirement Benefits, Compensation, and Sundry Reliefs to the Tune of ₦459,592,456.07

Paul Usoro and Co (“PUC”) successfully represented Access Bank Plc – the erstwhile employer of Mr Benson Oraelosi – Former General Manager of the defunct Diamond Bank Plc (Now Access Bank Plc) in Suit No. NICN/LA/109/2020: Mr Benson Oraelosi v. Access Bank Plc at the National Industrial Court of Nigeria (“NICN”), Lagos Judicial Division in a well-considered Judgment delivered by Honourable Justice (Prof) Oji on 22 February 2023. The Suit, was at the instance of Mr. Benson Oraelosi, as Claimant against the Defendant seeking Retirement entitlements, compensation and sundry reliefs in the cumulative sum of N459,592,456.07 (Four Hundred and Fifty-nine Million, Five Hundred and Ninety-two Thousand, Four Hundred and Fifty-six Naira and Seven Kobo).

The Suit emanated from the Claimant’s voluntary resignation/termination of his contract with the Defendant upon the merger of the defunct Diamond Bank Plc with Access Bank Plc. The Claimant, after his “resignation”, claimed his terminal entitlements pursuant to the Defendant’s 2006 Policy Manual which he vehemently alleged to be the applicable Manual at the time of his exit from the Defendant in 2019. The claims against the Defendant include; (i) a declaration that the Defendant’s action of calculating the Claimant’s retirement benefits under the Retirement Policy Scheme that came into effect in 2017 is void and of no effect having regard to the provision of the Defendant’s extant Human Capital Management Policies and Procedures Handbook of 2006, (ii) a declaration that the Claimant is entitled to have his retirement benefits and entitlements calculated under the Retirement Policy Scheme of the Defendant’s Human Capital Handbook of 13 March 2006, (iii) a declaration that the Claimant is entitled to enjoy all the benefits and entitlements which accrued to him as an employee of the Defendant pursuant to the Defendant’s Human Capital Handbook of 13 March 2006, (iv) an Order directing the Defendant to pay the Claimant the sum of N328,331,881.24 (Three Hundred and Twenty-eight Million, Three Hundred and Thirty-one Thousand, Eight Hundred and Eighty-one Naira and Twenty-four Kobo) representing the Claimant’s three months compensation for each completed year of service as stipulated in the 2006 Manual and other sundry reliefs cumulatively totalling the sum of N459,592,456.07 (Four Hundred and Fifty-nine Million, Five Hundred and Ninety-two Thousand, Four Hundred and Fifty-six Naira and Seven Kobo) as monetary claims.

The crux of the Claimant’s claim was that his exit from the Defendant was a voluntary retirement pursuant to the 2006 Manual having spent an unbroken period of 25 years and was above 45 years at the time of his exit from the Defendant’s employ. On the contrary, the Defendant’s position was that the 2006 Manual was reviewed in 2014, and subsequently in 2017, being the extant Manual at the point of the Claimant’s exit from the Bank in 2019. The Claimant made a heavy weather of the fact that he was not personally advised of the review of the said 2017 policy, but he admitted the receipt of the sum of N57,000,000(Fifty-seven Million Naira) which was paid to him as retirement/ gratuity upon the review of the said policy.

The Court upon a holistic consideration and evaluation of the parties’ case, agreed with the Defendant that the applicable Human Capital Policy at the time of the exit of the Claimant from the Defendant was the 2017 Manual. Consequently, the Honourable Court refused all the monetary claims of the Claimant against the Defendant.

Apart from the illuminating questions of law and facts that were in issue PUC has re-affirmed its mastery to competently defend the interests of her Clients in labour and related matters and indeed, all spectra of the legal system.

For more enquiries, contact:

PUC’s Financial Services, Arbitration, Corporate law and Tax (FACT) Practice Section

Mr. Munirudeen Liadi – Partner and Team Lead: munirudeen.liadi@paulusoro.com
Inyenebong Etefia – Associate: inyeneobong.etefia@paulusoro.com

April 6, 2023April 6, 2023

Liability of Social Media Companies for Injuries and Losses Suffered as a Result of Posts Hosted on their Platforms

AN EXAMINATION OF THE LIVECASE OF GONZALEZ v GOOGLE AT THE UNITED STATES’ SUPREME COURT.

Outline

Overview/Definition of Concepts
Review of Nigerian laws on the liability of Social Media Companies
Foreign Jurisdiction laws on liability of Social Media companies
Writer’s opinion on the appropriateness or otherwise of Social Media liability
Examination of the Ongoing case of Gonzalez v Google in the U.S.

Overview

The issue of the liability or otherwise of Social Media companies for injuries including but not limited to death and other losses suffered by users and non-users alike resulting from posts hosted on their platforms, is gradually becoming a burning issue. In the past, it was not envisaged that a time would come when the Social Media platforms would be employed by non-state and faceless actors in unleashing their terror on unsuspecting victims. This issue is more remote in developing countries like Nigeria where it is not so relatable. Social Media companies have grown exponentially and have spread their tentacles everywhere that these non-state actors, especially terrorist organizations, are increasingly employing their platforms in advancing and enhancing their nefarious activities.

Social media platforms have spread to the most remote parts of the globe and so too have their positive and adverse effects. It is the norm to seek to protect social media companies from liability for injuries and losses occasioned by the use of their platforms. Extant laws in most advanced democracies favour their protection from such liabilities in order to encourage their growth. Overtime however, these platforms are increasingly becoming stadiums for many non-state players and organizations in the perpetration of their heinous crimes.

Definition of Concepts

Social Media: Social media are websites and computer programmes that allow people to communicate and share information on the internet using a computer or a cell phone.[1]
Social Media Companies: These are companies that set up, own and run social media platforms and/or apps. These companies are the entities that are recognised by law and clothed with legal personalities. They have legal personalities and are responsible for maintaining the various social media platforms. For the purpose of this discourse, these companies include:
- Meta Inc. that own Facebook, Instagram and acquired WhatsApp in 2014.
- Alphabet Inc. the parent company of Google, which owns YouTube.
- Twitter Inc. which owns and operates Twitter app.
- Microsoft Inc. which owns LinkedIn.
- Snap Inc. formerly Snapchat Inc. owns and operates Snapchat app.
- Bytedance, a Chinese company owns and operates TikTok app.
- Tencent Inc. another Chinese company owns WeChat and QQ apps Etc.
Liability: Liability in the simplest form means the state of being legally responsible for something. Going further, Civil liability refers to the right of an injured party to hold someone responsible for his injuries or damages, which resulted from the other party’s wrongful actions. In order to hold a person or entity civilly liable, the wronged party must have suffered some type of quantifiable loss or damage. This may be in the form of personal injury, property damage, loss of income, loss of contract, and a host of other losses. In a civil liability lawsuit, the injured party’s losses must have occurred due to the defendant’s violation of a law, breach of contract, or other wrongful acts, referred to as a “tort.” Examples of civil liability cases include injuries and property damages sustained in automobile accidents, and defamationof character claims. To be successful in a civil liability lawsuit, the Plaintiff must prove to the Court, or to a Jury, that it is more likely than not that the defendant’s actions caused his injuries or loss. This level of proof required is referred to as a “preponderance of evidence.”
Foreign Jurisdiction: Foreign Jurisdiction in lay man’s terms means any jurisdiction outside the borders of Nigeria. For the purposes of this discourse, foreign jurisdiction are the laws of other countries particularly the laws of the United States on liability or otherwise of Social Media companies for injuries occasioned by posts hosted on their Apps.

Continue reading “Liability of Social Media Companies for Injuries and Losses Suffered as a Result of Posts Hosted on their Platforms”

March 23, 2023March 23, 2023

A Review of the Business Facilitation Act, 2023 in Relation to CAMA, 2020

President Muhammadu Buhari, on 13 February 2023, signed the Business Facilitation (Miscellaneous Provisions) Bill 2022, otherwise known as the Omnibus Bill into law. The Business Facilitation Act 2023 amends relevant legislation to promote the ease of doing business in Nigeria and institutionalize all the reforms to ease implementation.

One of the major amendments is as regards the provisions of the Companies and Allied Matters Act (“CAMA”) 2020. This short paper highlights some of the key amendments made to CAMA 2020 under Part 1, paragraphs 1-21 of the Business Facilitation Act (“BFA”).

They include:

Alteration of Share Capital –Section 127(1) of CAMA is now amended by paragraph 3 to provide that a company can also increase its issued share capital by a resolution of the Board of Directors. However, it is subject to conditions that may be imposed by the Articles or the company in general meetings. Previously, this could only be done by the company in general meetings.
Pre-emptive Rights– Section 142(1) of CAMA is now amended by paragraph 4 to provide that the right of an existing shareholder to be allotted newly issued shares now applies to a private company alone. Previously, it applied to all types of companies. A pre-emptive right or a right of first refusal is a right of existing shareholders in a corporation to purchase newly issued shares before it is offered to others. The right is meant to protect current shareholders from dilution in value or control. To mandate a public company to have the right of first refusal contradicts the essential principles of publicly traded company which is the issuance of shares to the public. Additionally, the time limit for the existing shareholders to accept the offer is 21 days. Previously, the applicable period was a reasonable time under Section 142(2)(c) of CAMA, 2020.
Authority to Allot Shares – Paragraph 5 of the BFA has amended Section 149 by substituting subsection (3) for subsection (1) and deleting the previous subsection (3). The implication of the amendment is that the members in general meeting of a private or public company reserve the power to allot shares. However, such power is exercisable by the board of directors where express authority has been vested on them by the company in general meeting or by the company’s articles. Previously, the power of the company to delegate allotment of shares to the directors was only applicable to a private company.
Return of Allotment– Section 154(1) of CAMA is now amended by Part 1, paragraph 6 of BFA to provide that the time limit for a company limited by shares to make a return of allotment to CAC is now 15 days. Previously, the timeframe was one month.
Share Certification– Section 171(7) by the amendment in paragraph 7 now provides for share certificates in physical or electronic form.

Continue reading “A Review of the Business Facilitation Act, 2023 in Relation to CAMA, 2020”

March 20, 2023March 20, 2023

PUC International Women’s Day 2023 Celebration

On the 8th of March 2023, our PUC Women celebrated International Women’s Day.

The internal celebration in recognition of this year’s IWD theme: “Embrace Equity” was held to foster bonds, support and promote an inclusive environment where the PUC woman can effectively grow and achieve a peak in her career while maintaining work-life balance.

PUC women had the opportunity to have as the guest speaker for the event, the Founder, Women in Technology in Nigeria, Mrs. Martha Alade, a Technopreneur and IT consultant, who enlightened the women about the use of technology, AI and IT tools and it’s advantages in work, life and even family with focus on the topic, “DigitALL: Innovation and technology for gender equality.”

The event also included games, bonding sessions, presentation of gifts and announcement of the winner of the first PUC IWD competition which centred on creating an innovative design with the IWD pose and a quote on this year’s theme.

Other images

At PUC, we continue to create a safe and enabling space for women as we strive to empower them for more.

See photos from the event below:

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January 28, 2023January 28, 2023

Overview of Data Protection in Nigeria

INTRODUCTION

With the European Union’s General Data Protection Regulation (GDPR) coming into force in 2018, the prioritization of data protection by States has increased significantly. Protection of personal data has assumed an international human rights status. Paragraph 12 of the Universal Declaration of Human Rights (1948) and the International Convention on Civil and Political Rights (1966) provides that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.” In Nigeria, the path to developing a data protection law has been protracted, with multiple yet unsuccessful attempts to adopt a law. The National Data Protection Regulation adopted by the National Information Technology Development Agency (NITDA) in 2019 as a subsidiary regulation has proved inadequate and only further emphasized the need for a comprehensive personal data protection framework.

This overview centers on the data protection regime in Nigeria, and the role of Nigerian lawyers in the Data Protection Sector.

DATA PROTECTION LAW – LEGAL FRAMEWORKS

Simply put, Data Protection is the process of securing digital information while keeping data usable for business purposes without trading customer or end-user privacy. The intent of data protection laws is to place human beings at the center of technological advancement. In the recent world, everyone has their personal details online and if mishandled, can be exploited to harm users unscrupulously for financial gain. It has therefore, become imperative to regulate how vast amount of personally identifiable data can be managed.

Although Nigeria does not have a specific statute regulating Data Privacy and protection, the National Information Technology Development Agency (NITDA) commendably came up with the Nigeria Data Protection Regulations (NDPR) in 2019 which specifically addresses Data Privacy and Protection in Nigeria.

Nigeria Data Protection Regulations (NDPR)

On 25 January 2019, the NITDA issued the NDPR pursuant to its powers under Sections 6 (a) and (c) and 32 of the NITDA Act, 2007. The Regulations have introduced a new data protection framework with pioneer compliance requirements for organizations that deal with the data of individuals. The objectives of the Regulations include safeguarding the rights of natural persons to data privacy, preventing manipulation of personal data, and fostering the safe conduct of transactions involving exchange of personal data and the integrity of commerce and industry in the data and digital economy. Based on the NDPR, data processing includes the collection, recording, storage, retrieval, use, disclosure, transmission, erasure, and destruction of personal data. The NDPR also specifically confers certain rights on persons that provide their personal data that is, Data Subjects. These include the right to information about their personal data, right to access their personal data, right of rectification of their information, right to withdraw consent, right to object, and right to data portability. The NDPR requires Data Controllers to develop adequate security systems to protect data within their custody. In line with this requirement, Data Controllers are required to maintain and publish a data protection policy that is in conformity with the NDPR and continually train and build the capacity of staff members on data protection and privacy procedures. The NDPR also mandates Data Controllers to appoint Data Protection Officers for the purpose of ensuring compliance with the Regulations; they are to obtain lawful consent of Data Subjects before processing their personal data. Data Controllers are required to display a simple and conspicuous privacy policy on any medium through which they collect or process personal data. Such privacy policy is to contain a description of the kind of personal data to be collected, and the purpose for the collection of the data amongst other information (a sample has been attached to the NPDR 2019); In the event that a Data Controller engages the services of a third party to process personal data of Data Subjects, the NDPR requires that such engagement must be governed by a written contract between the third party and the Data Controller.

The Regulations reserves the requirement for submitting data audit reports to certain categories of Data Controllers. Accordingly, only Data Controllers that process personal data of more than 1000 Data Subjects within a period of six months are mandated to file a soft copy of the summary of their audit to the NITDA. Similarly, Data Controllers that process personal data of more than 2000 Data Subjects within a period of 12 months are mandated to file a summary of their audit to NITDA, not later than 15 March in the following year. NITDA also requires that a verification statement by a licensed Data Protection Compliance Organization (DPCO) should accompany all filings made. A DPCO is any entity licensed by NITDA to train, audit and render consulting services and other services and products for the purpose of compliance with the Data Protection Laws applicable in Nigeria; Based on the NDPR, a data controller is required to only transfer data to a foreign country or international organization subject to the supervision of NITDA and the Attorney General of the Federation (AGF). NITDA would co-ordinate relations with the AGF with respect to international transfer of personal data. However, data controllers are obligated to notify NITDA of any such transfers.

NITDA is the agency responsible for administering the NDPR. The NDPR empowers NITDA to register and license DPCOs to monitor, audit, conduct training and render data protection compliance consulting services on its behalf. However, the DPCOs will be subject to Regulations and Directives of NITDA issued from time to time.

However, paragraph 2.1 of the regulation provides for Statutory and legal exceptions to the application of data privacy and protection as applicable to the NDPR. Therefore, the NDPR does not apply to the use of personal data in furtherance of national security, public health, safety and order by agencies of the Federal, State or Local government or those they expressly appoint to carry out such duties on their behalf; the investigation of criminal and tax offences; iii. the collection and processing of anonymized data; and personal or household activities with no connection to a professional or commercial activity. In furtherance of the NPDR, 2019, a guideline for the Guideline for the Implementation of the Nigeria Data Protection Regulation (NDPR), 2019, within Public Institutions in Nigeria was issued in 2020.

Asides the NDPR, there are other laws which touch on Data Privacy and Protection in Nigeria, which are briefly highlighted below:

Constitution of the Federal Republic of Nigeria: Section 37 of Nigeria’s 1999 constitution forms the foundation of data privacy rights and protection in Nigeria. It guarantees and protects the right of Nigerians to privacy and 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.
The NCC Consumer Code of Practice Regulation 2007: 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.
The NCC Registration of Telephone Subscribers Regulation 2011: 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. It also provides that this information shall not be released to a third party nor transferred outside Nigeria without the prior written consent of the subscriber and commission, respectively.
The Freedom of Information Act 2011: 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)
The Cybercrimes (Prohibition, Prevention, etc.) Act 2015: 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.
The National Identity Management Commission (NIMC) Act 2007: 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.
The National Health Act (NHA)2014: 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.

Other acts are The Federal Competition and Consumer Protection Act 2019 and The Consumer Protection Framework 2016:

TAKING THE PRIVACY SPACE – THE ROLE OF LAWYERS

It is worthy of note that the issues surrounding legal protection have indeed created an opportunity to further specialize. There are opportunities in different specific sectors of the economy that intersects with privacy and which professionals will be able to provide tailored services, like healthcare, start-up, financial institution, insurance, big data companies, tech companies that engage in cloud computing, cyber insurance and cyber security amongst others.

Such areas of specialization include:

Privacy Policy advisor and analyst/Compliance officer – Good policies remain the driver of a regulatory framework. Involvement in Policy drafting for companies and contribution to policy recommendations when a draft regulation is issued for public consultation. Lawyers can effectively function as data protection officers, chief privacy officers or any other designation, assisting clients with compliance and transparency. Overseeing a company’s data protection strategy and its implementation to ensure compliance with extant data protection regulation.
Privacy Attorney/Consulting – Data Protection laws provide a right to lodge complaint which allows data subjects to initiate lawsuit before a supervisory authority or Courts in instances of infringement of their rights. Sanctions are imposed on organizations which are also challenged before National Courts. There is an opportunity for collaboration between privacy lawyers and litigation lawyers to navigate the slippery-slope. Outside the remit of litigation, transactions lawyers can provide advisory services on privacy and data protection and the appropriate implementation and compliance with privacy laws as a risk-based strategy.
Legislative Tracking – Lawyers can provide latest legal opinions and update organizations with latest decisions and laws that can impact their business. This entails providing real-time update and guidance to existing and new client companies, on the development in privacy laws globally and how it could possibly impact their businesses in order to guide them to wider compliance.

Recommendations for Growth

Lawyers can read up articles, books and laws governing data protection, sign up for courses, attend conferences and events centered on data protection laws in order to gain knowledge and possible clientele, write articles on data protection to create a large impression to the public on the firm’s expertise on data protection and contribution to policies and conversations.

Contact:

Mercy Agbo

Associate – Intellectual Property, Communications and Technology Sector.

mercy.agbo@paulusoro.com

January 17, 2023

PUC Secures Another Win for Dangote Industries Ltd. & Dangote Cement Plc.

PUC SECURES ANOTHER WIN FOR DANGOTE INDUSTRIES LIMITED & DANGOTE CEMENT PLC (“Dangote Group”) AT THE COURT OF APPEAL, BENIN DIVISION IN A TWIN DECISION DELIVERED ON 09 DECEMBER 2022 in the APPEAL NO. APPEAL NOS: CA/B/12/2022: BUA INTERNATIONAL LIMITED & ANOR v HONOURABLE MINISTER OF MINES AND STEEL DEVELOPMENT & ORS AND CA/B/13/2022: BUA INTERNATIONAL LIMITED & ANOR v DANGOTE INDUSTRIES LIMITED & ORS

Paul Usoro and Co (“PUC”) has consistently maintained its spot as the go-to firm for legal representations which it has shown in the issues that arose in the highly contested legal battle between BUA International Limited & Anor. and Dangote Industries Limited.

The legal tussle which started in 2016 following the Suit filed by the BUA Group to challenge the Dangote Group’s right over the Mining Lease No. 2541ML located at the border town between Okpella in Edo State and Okene in Kogi State and led the BUA Group to also seek to enforce their rights over the Mining Lease Nos. 18912 and 18913 which they claim were granted to them. The Dangote Group counter sued the BUA Group to challenge the latter’s acts of trespass, wrongful and illegal exploitation of the claim over the mining area covered by 2541ML which was historically granted on February 01, 2008 by the Mining Cadastre Office (“MCO”)and the Honourable Minister of Mines and Steel Development pursuant to the provisions of the Nigerian Minerals and Mining Act, 2007 (‘Mining Act) to Ado Ibrahim & Company Limited (“AICO”) and subsequently transferred to the Dangote Group in 2014. On 10 January 2022, the Federal High Court, Benin Judicial Division gave its Ruling on both Suits in favour of Dangote Industries Limited. Dissatisfied with the Ruling, BUA International Limited, Appealed to the Court of Appeal on both Rulings.

CA/B/12/2022: BUA INTERNATIONAL LIMITED & ANOR v HONOURABLE MINISTER OF MINES AND STEEL DEVELOPMENT & ORS

The Appeal was filed by the Appellants (“BUA Group”) challenging the Ruling of the Federal High Court, Benin Division Coram: Shuaibu J. delivered on 10 January 2022 in Suit No: FHC/B/CS/7/2016, striking out the Appellants’ Suit for being incompetent and for lack of jurisdiction after hearing the Preliminary Objections filed by the Respondents. In delivering its Judgment, the Court adopted the two issues raised by the Appellants in their Brief thus:

“Was the learned Trial Judge right when it held that the Appellants lacked locus standi to commence and maintain the Suit on the ground that the Appellants’ mining leases No 18912 and 18913 had expired?
Was the learned Trial Judge right when it struck out Suit No: FHC/B/CS/7/2016 on the ground that it was incompetent and statute barred without the consideration of the Statement of Claim of the Appellants at the Federal High Court?”

On issue one, the Court after extensively and painstakingly considering all submissions made by the Counsel and based on the 5^th Amended Statement of Claim, held that the Learned Trial Judge of the Federal High Court, Benin Division was right when it held that the Appellants lacked the locus standi to commence and maintain Suit No: FHC/B/CS/7/2016 on the ground that their mining leases number 18912 and 18913 had expired. It therefore resolved issue one in favour of the Respondents.

On issue two, the Court after considering Section 141 of the Nigerian Mineral and Mining Act 2007 and the Guidelines, held that the failure of the Appellants to fulfil the condition precedent to instituting and maintaining the action makes the action incompetent and therefore robs the Trial Court of the jurisdiction to adjudicate over this matter. Accordingly, the Trial Court was right to have declined jurisdiction to entertain the Suit. Consequently, the Court found that Appeal No: CA/B/12/2022, lacks merit and dismissed same and accordingly affirmed the Decision of the Trial Court.

CA/B/13/2022: BUA INTERNATIONAL LIMITED & ANOR v DANGOTE INDUSTRIES LIMITED & ORS

The Appeal was filed by the Appellants (“BUA Group”) challenging the Ruling of the Federal High Court, Benin Division Coram: Shuaibu J. delivered on 10 January 2022 in Suit No: FHC/B/CS/74/2016 dismissing the two Preliminary Objections filed by the Appellants. Dissatisfied with that Ruling, the Appellants commenced the instant Appeal. In delivering its Judgment, the Court adopted the three issues raised by the Appellants in their Brief thus:

Whether the trial Court rightly held that the Federal High Court has jurisdiction to entertain the 1^st and 2^nd Respondents’ claims on trespass to land.
Was the Trial Court right when it held that the 1st and 2^nd Respondents’ mining lease no 2541ML was validly issued by the Mining Cadastre Office?
Whether the trial Court was right when it held that the 1^st and 2^nd Respondents’ Suit does not constitutes an abuse of Court process in view of the pendency of Suit No: FHC/LKJ/CS/39/2013?”

On issue one, the Court held that from the Statement of Claim contained in the Record of Appeal, the principal claim is anchored on mining lease 2541ML and the principle of law is settled that the Federal High Court has jurisdiction over mining rights in mines and minerals, geological surveys and natural gas. Reliefs A-H are anchored on mining rights while reliefs no i & j are on trespass and that they are merely consequential reliefs whose success are dependent on the success of the principal claims on mining right. Accordingly, it held that reliefs A-H which are on mining rights are the principal reliefs upon which the success of reliefs i & j are dependent accordingly the trial Court has the jurisdiction to hear and determine the Suit.

On issue two, the Court after considering Sections 5 (5) and 65 (1) of the Mineral and Mining Act 2007 came to the conclusion that the Minister of Mines and the Director General of the Mining Cadastre Office both have the power to grant and transfer mining leases. Accordingly, mining lease No 2541ML granted to AICO Ado Ibrahim Co. Limited and transferred to the 1^st and 2^nd Respondents (“Dangote Group”) was validly granted and transferred. Consequently, issue two was resolved in favour of the Respondents.

On issue three, after extensively considering the submission of counsel, in its resolution, the Court looked at the ingredients that must be present for there to be an abuse of Court process and as such for Suit No: FHC/B/CS/74/2016 to be an abuse of court process, the subject matter, the issues and the parties must be the same with Suit No: FHC/LKJ/CS/39/2013 and found that the subject matter are not the same. The Court held that the argument that Suit No: FHC/B/CS/74/2016 is an abuse of Court process as it was filed during the pendency of Suit No: FHC/B/CS/7/2016 will not fly as it does not arise from the Appellants’ grounds of Appeal. Issue three was resolved in favour of the Respondents.

Consequently, all issues were resolved in favour of the Dangote Group, the Appeal was dismissed and the Ruling of the Trial Court affirmed.

PUC has continued to contribute to the evolvement of Nigeria’s Legal Jurisprudence on the principles of Mining and related matters.

The PUC Team was led by the Senior Partner, Mr. Paul Usoro, SAN and highly assisted by Mr. Chinedu Anyaso, Partner and Head of the Energy Law, Constitutional and Transport Law Practice Sections, with associates, Esther Samuel and Chijioke Obute.

December 5, 2022

Impact of Technology on Maritime Activities and its Implications

INTRODUCTION

With the impact of the Covid-19 Pandemic on major activities around the world, particularly in Trade, there is no doubt that in the 21st century, the advancement of technology has indeed been a major disruptor of activities in most industries of the economy and the Maritime Sector is not excluded. Recently, the Maritime industry has witnessed the deployment of Maritime Autonomous Surface Ships (“MASS”), the exponential growth of the usage of the E-Bill of Lading and the effective use of technology in the advancement of Maritime Security as evidenced by the Deep Blue Project and the likes. With the global trend towards digitization, embracing the technological innovations for the improvement of trade efficiency is a no brainer.

This need to change the old ways of doing things is not one without implications. These recent technological innovations shall be considered in the succeeding paragraphs of this article.

A. AUTONOMOUS SHIPPING

Autonomous Shipping is the use of self-piloting vessels to perform shipping operations. They are in most cases fully operated with the use of technology or unmanned vessels and their usage is largely associated with safety and security challenges; this however, does not eliminate the human element as this is an important factor for consideration. The benefits of Autonomous Shipping include cost savings as there are little or no crew onboard and reduction in loss of lives at sea or harm to humans. These benefits have prompted the governments of some countries to look into the concept of ship automation with nations such as Finland, Japan, USA and Singapore, conducting research and trials. Even in Norway, there is an established body called the Norwegian Forum for Autonomous Ships (NFAs) made up of persons and organizations interested in the subject of Autonomous Ships and one of their many objectives is to contribute to the development of and use of autonomous ships in Europe.

As beneficial as the concept of Autonomous Shipping may be, so many questions arise from this innovation viz: How is liability allocated in a situation where two autonomous ships collide? Where the ship breaks down at sea, what method is deployed to ensure it is fixed? How will Autonomous Shipping affect the future of workforce? These questions are yet to have answers owing to the lack of regulations governing the use of Autonomous Ships.

To ensure that there is a balance of the benefits derived from this new and advancing concept against safety and security concerns, the impact on the environment and on international trade, the potential costs to the maritime/shipping industry, and finally their impact on personnel (both on board and ashore); the International Maritime Organization (“IMO”) has initiated a work plan for the development of instruments for Maritime Autonomous Surface Ships (“MASS”). The IMO envisages/predicts that the MASS Code will come into force on 01 January 2028.
Although it is predicted that autonomous ships will be used for short voyages, as the global maritime industry momentum focuses on digitization and technological innovations, there is a dire need to develop legal frameworks for proper regulation and also to ensure there is adequate training for the maritime workforce, particularly sea farers as there is obviously a need to upskill in order to meet up with the attendant disruptive nature of Autonomous Shipping.

B. E-BILL OF LADING

A Bill of Lading is a document acknowledging the receipt of goods by a carrier or by the shipper’s agent and the contract for the transportation of those goods . It serves as a receipt of shipment, evidence of carriage contract, negotiable instrument and document of title.

Leveraging on technology, there has been a recent evolution and increased usage of Electronic Bills of Lading (“E-Bill of Lading”) and a general digitization of trade documents. Some of the advantages of the E-Bill of Lading over the Traditional Paper Bill of Lading are tabulated below:

A table that compares the E-Bill of Lading with the Paper Bill of Lading. — Esther Samuel Umoekam

It is trite that only parties to a Bill of Lading are bound by the terms of the Bills and ipso facto can sue and be sued in respect of same . This, by parity of reasoning or extension means that for a person to sue in respect of a Bill of Lading, it must be a recognizable Bill of Lading. Owing to the fact that the functionality and legal implications of most trade documents depend on their ability to be possessed for purposes of lien, one question that begs for answer is, can an Electronic Bill of Lading, being an intangible property be capable of possession? Although there are decisions of Superior Court which answer this question in the negative, the Writer aligns with the decision of the District Judge whose decision formed the basis of the Appeal in Your Response Limited v. Datateam Business Media Limited where a very important issue was raised and it was “whether it is possible to exercise a common law possessory lien over an electronic database”. The District Court while acknowledging the need to keep abreast with technological development and advancement, rejected the argument that it is not possible to exercise a lien over intangible property. The Court held thus:

“It seems to me in the present case that a lien can apply to the electronic data which was in the possession of the Claimant. It would not be appropriate for the law to ignore the development in the real world of record keeping moving from hard copy records into electronic media. The decision which I have to reach today is of limited purview and no doubt this topic may arise again in other cases in other contexts. But for the purpose of the particular decision which I have to reach in this case. I do not accept the submissions by Counsel for the Defendant that a lien cannot exist over the electronic data which was in the Claimant’s possession in just the same way as it could exist over the hard copy records in the Claimant’s possession.”
Sadly, the decision of the District Court was not supported by the Court of Appeal but it is the Writer’s firm position that with the innovations in technology, the problem of control and possession has been resolved. The UNCITRAL Model Law on Electronic Transferable Records (“MLETR”) adopted by the General Assembly on 07 December 2017, clearly recognizes the use of electronic trade documents for improved efficiency in commercial activities. As at date, only 7 States have adopted the MLETR as part of their domestic Legislations and these States include; Bahrain, Belize, Kiribati, Papua New Guinea, Paraguay, Singapore and Abu Dhabi Global Market located in the United Arab Emirates .

Based on the UNCITRAL MLETR, in a bid to reform the law in the United Kingdom to allow for trade documents in electronic form, the Law Commission submitted a Report to Parliament on Electronic Trade Documents, and in its Report, it recommended certain criteria which must be met for a document to qualify as an electronic trade document. These criteria are as follows:

• The document must be capable of Possession;
• Fully divestible upon transfer;
• Capable of exclusive control;
• Requirement as to the integrity to establish authenticity;
• The document must contain the same information as would be required to be contained in the paper equivalent;
• The electronic trade document system must be reliable; and
• Identification of persons who exercise control of a document in electronic form.

With modern trends and evolving technology and as can be seen from the increasing number of Countries adopting the use of Electronic Trade Documents, it is safe to argue that the E-Bill of Lading can be treated in the same way as the traditional paper Bill of Lading.

In Nigeria, the closest legislation that recognizes the use of Electronic Documents is the Evidence Act, 2011. By virtue of Section 84(1) of the Evidence Act, electronic documents can be admissible in evidence upon satisfaction of the conditions contained in subsection (2) of the same section. Although it may seem as if the distinction between a mere computer-generated document and a legally binding E-Bill of Lading may be advanced to argue that the Evidence Act is being stretched beyond its limits, one can safely conclude, based on the provisions of the Evidence Act, that an E-Bill of Lading can be admitted in evidence under Nigerian Law.

Technology Platforms for E-Bills of Lading

In recent times, software platforms have been developed to meet the rising demands for electronic bills of lading and one of such platforms is Wave BL. The Wave BL Platform (an E-Bill of Lading and Trade Document Software) which has been used by major shipping companies to create and execute electronic bills of lading, leverages on blockchain technology for its effectiveness. Wave BL has a decentralized solution that makes it possible to verify title and possession, allows for transfer of e-bills of lading from one person to another with zero exposure to third parties. The Wave BL platform also has byelaws which are required to be accepted by users who sign up to use the platform. These byelaws are created to mirror the English Carriage of Goods by Sea Act of 1992 which in effect retains the required terms as stipulated under the relevant law.

The only challenge that may arise from these varying software platforms, is the problem of uniformity.

Finally, when it comes to trade or commercial transactions, particularly shipping, financial institutions play a major role in terms of issuance of letters of credit or using the e-bill of lading as a negotiable instrument. There is therefore a need to onboard the banks and acquaint them with the new development in this regard.

C. MARITIME SECURITY

Maritime Security is concerned with the prevention of intentional damage through sabotage, subversion, or terrorism and prompt mitigation of incidences within the maritime domain . It involves the continuous surveillance and reconnaissance of a nation’s maritime domain with a view to prompt interdictions when infringements occur to the nation’s regulations. For this purpose, surveillance technologies have been deployed to facilitate timely and accurate decisions to neutralize threats. The Deep Blue Project was established by Nigerian Maritime Administration and Safety Agency (NIMASA) inter alia, for the prevention of illegal activities in the Nigerian Exclusive Economic Zone and enhancement of the safety of lives at sea. Also, the NAF ATR 42 Patrol Aircrafts, Falcon Eye Project, Maritime Operational Intelligence System (MOIS) are some of the other technological systems deployed for the purpose of maritime security.

This has helped in promoting and securing the international maritime domain as well as protect maritime resources from all criminal acts.

Conclusion

Safety, ease of doing business, cost savings, speed and support for a greener economy are some of the many benefits that the effectual use of technology in the Maritime industry can promote. It is recommended that countries of the world key into this development and either adopt and domesticate the relevant international laws and or enact legislations to cover any lapse that may arise therefrom so as to enable the smooth running of the Maritime Sector in their jurisdictions.

With the world gravitating towards the use of technology, it is left for individuals and institutions to embrace modern technology and rethink their business processes in a bid to adapt and compete with global the market.

The Maritime Industry is taking laudable steps in ensuring that it has a competitive advantage by embracing the use of technology and it is imperative that the Maritime Workforce upskill to meet up with the challenges that this disruption may pose.

For further information, please contact:

Esther Samuel Umoekam
Energy, Constitutional and Transport Law Section
Paul Usoro & Co.
+234 (0) 8028242292
esther.samuel@paulusoro.com

October 28, 2022October 31, 2022

PUC Records Another Win at the Federal High Court for Dr. Bartholomew Bassey Ebong (Former Managing Director of Union Bank) after 13 Years of Legal Persecution in Respect of Alleged Criminal Charges.

Header with abbreviated title of the post.

PUC’s Victory for Dr. Bartholomew Bassey Ebong at the Federal High Court

Paul Usoro and Co (“PUC”) through its Financial and Corporate Services Team successfully represented Mr. Ebong who was discharged of all the offences relating to Banking and Securities in Charge No. FHC/L/CS/296C/2009: FRN v Dr. Bartholomew Bassey Ebong & 5 Ors, at the Federal High Court (“FHC”), Lagos Judicial Division in a well-considered Ruling delivered on 17 October 2022, on a No Case Submission (“NCS”) filed on his behalf.

The arrest and trial of Dr. Bartholomew Bassey Ebong-the erstwhile Managing Director of Union Bank of Nigeria Plc (“the Bank”) and the 1^st Defendant in the above numbered Charge, which enjoyed widest publicity in both print and electronic media, started sometime in 2009. The 1^st Defendant at the limelight of his career at the Bank and 5 Ors were, pursuant to a Joint Committee Report involving Central Bank of Nigeria (“CBN”) and the Nigeria Deposit Insurance Corporation (“NDIC”), investigated by the Economic and Financial Crimes Commission (“EFCC”), and arraigned for an alleged offence bordering on grant and approval of credit facilities to the tune of N30,477,210,000.00 (Thirty Billion, Four Hundred and Seventy Seven Million, Two hundred and Ten thousand Naira) to the Bank’s subsidiary -Union Trustee Limited (“UTL”); N3,315,000,000.00 (Three Billion, Three Hundred and Fifteen Million Naira) to Falcon Securities Ltd in excess of the paid-up capital of the Bank; N3,400,000,000.00 (Three Billion, Four Hundred Million Naira) to Union Capital Markets Ltd; N2,600,000,000.00 (Two Billion, Six Hundred Million Naira) to Damnaz Cement Company Ltd through Union Capital Markets inter alia which were in contraventions of the regulations, circulars or procedure of the Bank and were deemed to have committed offences contrary to Section 15(1)(c), 19(4) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, Cap F2 Laws of the Federation of Nigeria 2004 and punishable under Section 16(1)(a) of the same Act, Sections 105(1)(a) , 106(1), 110(b) of the Investment and Securities Act 2007. The 1^st Defendant was equally arraigned for having allegedly caused to be created or created a misleading appearance of active trading in the securities of Union Bank, whose shares were traded on the floor of Nigerian Stock Exchange with intent to mislead the public and mop-up the shares of the Bank at the Stock Exchange as well as conspiracy to commit the said offences which were in contraventions to the above referred Laws.

The Defendants were initially arraigned by the Prosecution on a 27-Count Charge that was filed on 31 August 2009, but which was amended by way of a 20-Count Amended Charge that was dated and filed on 10 May 2010. The Amended Charge was further amended by way of a 15-Count Amended Charge dated 07 December 2015 but filed on 08 December 2015 (“Amended Charge”). The Defendants consistently pleaded “Not Guilty” to all the Counts in the various Charges, including the Amended Charge following which the Prosecution called 3 (three) witnesses in proof of its case – PW1 to PW3 and closed its case on 05 April 2022, with 47 (forty-seven) Exhibits tendered and admitted by the Court.

At the close of the Prosecution’s case (after calling three witnesses, PW1-PW3), and noting, inter alia, that the Prosecution has not established a prima facie case against the 1^st Defendant; PUC on behalf of the 1^st Defendant filed the NCS praying the Honourable Court to discharge and acquit the 1st Defendant on all the Counts in the Amended Charge hereof pursuant to Sections 302 and 303 of Administration of Criminal Justice Act 2015 (“ACJA”) and hold that the Prosecution has not at all established a prima facie case in any of the Counts sufficient or at all to justify calling the 1^st Defendant to enter his Defence. For completeness, similar NCS were filed by other Defendants.

In its Written Submissions, PUC raised a sole question for the Court’s determination, to wit:

“Upon a reasoned review of the evidence presented by the Prosecution in this Amended Charge, is this a Charge that justifies the invocation of the Court’s powers pursuant to Sections 302 and 303 of the Administration of Criminal Justice Act, 2015 to ‘record a finding of not guilty in respect of the Defendant without calling on him . . . to enter his . . . Defence and . . . accordingly’ discharge the Defendant in consideration of the fact ‘that the evidence against the Defendant . . . is not sufficient to justify the continuation of the Trial’?”

In support of its Written Submissions, PUC relied on statutory and judicial authorities in exposing the principle of NCS vide Sections 302 and 303 of ACJA and the decision of the Supreme Court in Saraki v Federal Republic of Nigeria (2018) 16 NWLR (pt.1646) 405 at 437-438 paragraphs G-E.

The Honourable Court in examining the offences alleged to have been committed by the 1^st Defendant, his Written Submissions in support of his NCS, Sections 302 and 303 of AJCA vis-à-vis the evidence of Prosecution’s Witnesses (PW1-PW3) noted the meaning and implications of a No Case Submission and further stated that the 1^st Defendant in his Written Submissions has argued that; throughout the case of the Prosecution, no legally admissible evidence was tendered before the Court against the 1^st Defendant linking the 1^st Defendant with the commission of the offence(s) which will indeed compel the 1^st Defendant to enter his Defence and, that the evidence adduced by the Prosecution has been so discredited during cross-examination that no reasonable Court or Tribunal can act on it, or that such evidence is so manifestly unreliable that no reasonable Tribunal or Court can safely convict on it.

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Have you read our content on:

Nigerian Ships for Nigerian Waters: The Protectionist Policy of the Cabotage Act vis-à-vis the Liberalism of the African Continental Free Trade Agreement (AfCFTA)

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Thereafter, the Court upon wholistic and clinical consideration of the Prosecution’s evidence, the essential elements of the offences as provided under the respective laws – stated that PW1 to PW3 were so discredited during cross-examination that no reasonable Tribunal/Court would convict the 1^st Defendant; the Prosecution failed to tender critical documents linking the 1^st Defendant to the commission of the offence; PW1 to PW3 could not identify and speak on some of the transactions and during cross-examination they all stated that other Witnesses would come to testify and speak on the transaction.

The said Witnesses were however never called to speak on same. It was also noted by the Court that PW1 to PW3 could not distinguish if the afore-referenced sums were granted as Private Placement or Credit Facilities. Therefore, the Honourable Court finally held that the Prosecution has not proven all the elements of the offences to warrant the 1^st Defendant to enter his Defence. Consequently, the Honourable Court upheld the No Case Submissions of the Defendants and accordingly discharged the 1^st Defendant, Mr. Ebong and Ors from the Charge, after a very traumatizing criminal trial of over a decade.

The significance of PUC’s victory, apart from the illuminating questions of law and facts that were in issue, is the fact that PUC reaffirmed again, its remarkable ability to competently defend the interests of its Clients in all legal spheres – banking, civil, commercial, transactional, arbitral and as shown in the recent decision – White Collar Crimes as well.