Can Tambuwal Declare His Own Seat Vacant?

If, by some tragic stroke of misfortune, President Goodluck Jonathan, Vice-President Namadi Sambo and Senate President David Mark all died today, Aminu Tambuwal, Speaker of the Federal House of Representatives, would be sworn in as President of Nigeria. Yet, in response to his defection to the APC, Tambuwal’s security detail has been withdrawn.

 

The Inspector General of the Nigerian Police, in the attempt to justify his withdrawal of the security detail of the Speaker of the Federal House of Representatives, cited the following section of the constitution:

 

 

Section 68(1): A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if – (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.

 

As far as the IG is concerned, it would seem that Aminu Tambuwal is not merely just no longer the Speaker – he isn’t even a legislator anymore. While former principal officers of the State still have state-provided security attached to them (and therefore cessation of office should not automatically mean withdrawal of security), the focus of this piece is the little constitutional crisis we have on our hands.

 

According to section 68(2), edited slightly for relevance, “the Speaker of the House of Representatives shall give effect to the provisions of subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of that member.”

 

Thus, Tambuwal is required to declare Tambuwal’s seat vacant, in the absence of evidence that there is a division in the PDP.

 

Since the events at the PDP’s convention last year led to several prominent members leaving the party for the APC, it has been the contention of the PDP that the legislative seats of those who crossed over to the APC be declared vacant, going by the provisions of Section 68(1)(g). According to them, as there is no division in the PDP, all legislative defectors must lose their seats. Should they?

 

The courts have not been very helpful with the interpretation of this section. In all the recent defection cases, even where splinter groups have held parallel congresses and elected their own officials, the courts have ruled that no division existed. They have however refused to describe what situation or circumstances they would see as constituting a division. And that remains the central issue.

 

However, even if there was a division in the PDP 12 months ago, there is also the question whether or not such division still exists. The dust has pretty much settled and everyone has gotten on with life in the new party. Or does the fact that the court’s final decision on the legislative defections so far mean that the “division” (if it is eventually ruled to exist) is a continuing one? We wait to see what the court will say.

 

To complicate matters for the PDP, who have asked Tambuwal to resign his office, the constitution is quite clear on how the Speaker may leave the office. Section 50(2) says –

 

The Speaker the House of Representatives shall vacate his office –

  1. if he ceases to be a member of the House of Representatives otherwise than by reason of a dissolution of the Senate or the House of Representatives; or

  2. when the House of which he was a member first sits after any dissolution of that House; or

  3. if he is removed from office by a resolution of the House of Representatives, by the votes of not less than two-thirds majority of the members of that House.

 

In other words, pending the final decision of the courts, Tambuwal has to declare Tambuwal’s seat vacant or the House has to impeach him, otherwise he remains in office. PDP does not have the required numbers to carry out the impeachment. Stalemate, for now.

 

Tambuwal ought to resign. It is the moral, honourable and statesmanlike thing to do. But he is not under any legal compulsion to do so. If he is as shrewd as is reputed however, he must have prepared for the very dirty fight ahead.

BARbaric Grading System

Olanrewaju Adesola Onadeko Esq, DG Nigerian Law School

Olanrewaju Adesola Onadeko Esq, DG Nigerian Law School

First of all, there wasn’t a 71% fail rate at the last Bar Finals. The Council of Legal Education has provided a comprehensive breakdown of the results here. The truth is closer to a 50/50 split. Given that this rumoured fail rate was what led to the outcry and a call from several corners for the grading system at the Nigerian Law School to be reviewed, perhaps that should simply be the end of the matter.

 

However, as a corollary to the argument that high failure rates warrant a review of the system (or perhaps in conflation of the issues), there have also been arguments against the grading system that is supposedly used for the Nigerian Bar exams. I am tempted to call the system an urban legend because you won’t find it written anywhere. However, several tutors at the various law school campuses over the years have explained that a student’s final grade is usually the lowest score in any of the 6 exams written to qualify. In simpler terms, if the student is graded a 1st Class in 5 papers but scores a Pass in the 6th, the School will award him a Pass degree certificate. Allegedly. But we will assume that is the case for the purpose of this discussion.

 

Many have argued that this system is unfair, including my learned friend Orji Uka, here. I disagree, for the reasons that follow.

 

The sum of most of the disagreement seems to be that the system is unfair because it is unfair. How can it be fair to grade a student on the basis of his worst paper? Others have gone on to say that an average grading system is more reflective of the student’s ability, and that no other jurisdiction appears to grade law school students the Nigeria does. Mr. Uka’s article also echoes the sentiment that the exams put way too much pressure on students, with many not replicating the good grades they got at university (I dispute that, by the way).

 

Well, boo frickin’ hoo!

 

My take is that it’s a professional exam, for a profession in which people’s lives and futures are in your hands, where competence is the difference between a conviction for murder and one for unlawful homicide. I’d rather view the grading system as a quality assurance method for employers, separating the cream of the cream from the rest. If the system truly exists, then everyone who’s ever gotten a first class certificate at the Law School deserves immense respect. I also had a boss, Senior Advocate, who used to admonish “you’re only as good as your last mistake”. The real world is unforgiving and mistakes can be costly.

 

Secondly, again assuming the system exists, I don’t understand how a system that has been defined by a body of professionals and applied uniformly to the vast majority of the professional body can be unfair. Who is it unfair to? All law students past and present, those who passed and otherwise? At any rate, everyone learns about the grading system very early into the session, most even before the session resumes. You knew what you were signing up for.

 

Thirdly, the Council of Legal Education publishes a compendium of past questions and model answers. This is the most legal “expo” in the world!!! I bet very few of the foreign jurisdictions we’re comparing ourselves to do this. Furthermore, a large majority of the questions are repeated year on year. If you start with the compendium early enough, attend your classes and take notes, it should take sickness or personal tragedy to throw you completely off your game.

 

Fourthly, I do not think that the system disrupts university results to any degree of significance. I am fairly confident that most that leave the Law School with a first class were awarded either a first or a 2:1 at university. There are also some 2:2 university graduates that earn a 2:1 at Law School. However, very few 2:2s if any go on to earn firsts at Law School. I would say, from the evidence from my set and those immediately preceding and following, that people generally maintain their university standards at the Law School.

 

Fifth, the truth is that many get to the Law School and either lose their way, or think that university methods will work for them one last time. At university, there is the fallback of continuous assessment to rely on – and your exam would only count for 60% of your final grade. So, many could afford to leave studying until the month before exams. Anyone who tries this at the Law School is destined to fail. The work is more voluminous at the latter and the exams are stacked 6 days in a row. You simply cannot afford to leave serious studying till late, trysts at Amudolak Hotel notwithstanding. *Bwari Campus people know what I’m talking about.*

 

Finally, as long as we’re having a conversation, we might also want to talk about the standard of [legal] education in Nigeria. The reason why lawyers used to be called “The Law” with reverence , was because lawyers were renowned for speaking and writing proper English all the time, being widely read and knowledgeable, possessing impeccable manners and noble carriage, they were discreet and generally being better than allayou… (apologies to DavidO).

 

This is clearly no longer the case. When I was at the Law School, the civil procedure lecturer told how they had also included grammar in the marking scheme for the previous year, but had to ditch it because of it’s impact on pass rates. I would later find out that she was not exaggerating. Letters come in from the law offices of the more boisterous senior lawyers, and you simply wonder. I see many of my colleagues on social media trading barbs and descending into roforofo with other people online. These are all not good enough.

 

To conclude, I do not think a year of an unusually high failure rate should warrant revamping the whole system. I think the students should look inwards and urge anyone who is convinced they could not have failed to recall their scripts. If you go back to the statistics released by the Council of Legal Education, I think the fact that the bulk of the failures came from those taking either one paper or the entire exam again, supports my point of view.

 

Copyright Protection: The Exceptions

One of the benefits of recent events bordering on blogging and plagiarism is that everyone got a crash course on intellectual property and copyright. Most know now that you need the author’s permission to use literary, musical and artistic works, as well as films, sound recordings and broadcasts. This is a good thing. Intellectual property law however is more shades of grey than columns of black and white. The slight concern (for me) is that this is mostly being bandied as an absolute rule and that any unauthorised use whatsoever is immediately plagiarism or copyright infringement. This is not the case – absolute monopolies of use are not created. The reason for this is rooted in the [jurisprudential] basis for copyright protection.

 

Copyright, does not exist solely for the benefit of the content creator and most countries generally declare a justification for their system of copyright protection. For example, in the world’s first ever copyright legislation, the English Statute of Anne, it was stated that the purpose was to “encourage learning”. Similarly, the American Constitution states that the purpose of copyright is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

 

Copyright protection exists more therefore in the interests of the public good than the interests of the private individual. The competing need to balance economic benefits to rights holders and the public interest of users of the protected works is the reason that there are circumstances in which the works may be used without authorization.

 

One of the easier exceptions to exclusivity is that copyright protection does not last forever. See here for a breakdown of copyright duration.

 

 

Secondly, some laws provided a list of activities that will not be caught by usual copyright restrictions. One if Fair Dealing, which is discussed below, but several others listed in the Nigerian Act include the following:

  • reproducing the work by way of parody, pastiche or caricature (e.g. BuniTV’s Drunk in Love);
  • reproducing and distributing copies of an artistic work permanently situated in a place where it can be viewed by the public;
  • inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is for educational use and includes an acknowledgement of the title and authorship of the work;
  • incidentally including an artistic work in a film or broadcast

 

 

The final exception or limitation for this piece is Fair Use. Under the Nigerian Copyright Act, the concept is referred to as “Fair Dealing” and is described as follows:

 

“The right conferred in Section 6… does not include the right to control (a) the doing of any of the acts mentioned in the said Section 6 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast.”

 

In other words, as long as I refer to the title of your work and acknowledge your authorship, I can use snippets of it in a subsequent work doing any of the highlighted activities in the preceding paragraph.

 

In America, there’s a slightly more robust test for determining Fair Use. See the excerpt below from the Copyright Clearance Centre’s website:

 

“Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered “fair use.”

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
  2. The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.
  3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of — or so important to — the original overall work as to be beyond the scope of fair use.
  4. The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

 

What does this mean for blogging? It means you need permission to use photos still under copyright. It means you can use excerpts (a few paragraphs – depending on the total length of the essay) from other people’s work in your own without asking their permission first, as long as you acknowledge the original work by title and author. As for tweets, because it is a requirement of eligibility for copyright that “sufficient effort has been expended on making the work to give it an original character”, very few would be eligible for protection and the great majority can be used without the handle owner’s permission. It’s always nicer to ask, though.

 

National Honours (Laid Bare)

Today’s national newspapers, especially ThisDay, were quite bulky. When my copy was brought to me, I thought, judging from its thickness, that it was probably another political titan’s birthday or their daughter’s wedding celebration, and the minions were falling over themselves giving praise. I was wrong however. The several extra pages (which were indeed congratulatory messages) were to convey felicitations to various recipients of this year’s Presidential National Honours; men and women who are being honoured for “distinguished public service.”

I know that’s what they’re being honoured for, because that’s what the National Honours Act (see here) prescribes for inscription on the obverse side of the honours medal.

It’s probably going to be useless information, but here’s some more information the National Honours Act provides:

  • There are 2 Orders of Dignity – Order of the Federal Republic and Order of the Niger.
  • Each order comprises four ranks, namely – Grand Commander, Commander, Officer and Member

It seems the Order of the Federal Republic is the more distinguished one, because the Act places a lower limit on the maximum number of persons that can be appointed to its ranks in a calendar year. The maximum number of people that can be conferred with the different categories of honours each year are as follows:

  • GCFR – 2; GCON -10
  • CFR -20; CON -30
  • OFR – 50; OON – 100
  • MFR and MON have a maximum of 100 recipients each.

To be eligible for an award, the recipient must be a citizen of Nigeria. However, non-citizens can be honorary holders (not sure I get the distinction, or why it’s necessary then, but that’s what it says). The Act appears to be silent on whether or not honours can be conferred posthumously, but, to borrow the words of Brutus, Dr. Doyin Okupe is an honourable man. So it is possible that an amendment has since been passed and the copy of the Act that I consulted is dated.

A person is appointed to a rank when (s)he receives the insignia for the rank and an instrument (i.e. a document, letter, etc) signed by the President, sealed with the public seal of the Federation, conferring the rank. The President is however allowed to direct conferment on a person in any manner he feels is expedient.

When a person is promoted, (s)he is no longer entitled to hold [or use the insignia of] the lower rank. The government may request that insignia of the previous rank be returned upon promotion.

The President also has the power to deprive of rank anyone who has behaved in a manner not consistent with the dignity of the rank. I was unable to find any record of this power having ever been used.

And that’s it. Congratulations to this year’s recipients, deserving or otherwise.

Music and Lyrics

music

Music has always been a time-stamp for me. Most songs that bubble to the surface of my consciousness remind me of very specific places and times. Panam Percy Paul’s Bring Down Your Glory reminds me of the most devout time of my life, in secondary school. When I hear Diana Ross’s Touch Me In the Morning, or Do You Know Where You’re Going To, I see my mum a much younger lady in my mind’s eye. I hear Dynasty’s Holiday or Midnight Star’s No Parking on The Dance Floor, and I see my dad, who’s pushing 70 now, busting moves. Maroon 5’s Songs About Jane was the soundtrack to my NYSC. Missing You, the Puff Daddy tribute to the Notorious BIG puts me firmly in Kuti Hall, UI, when you would hear at least five different rooms blasting different portions of the song at any one time. Michael Buble’s Home reminds me of my bittersweet time as a perpetually broke masters’ degree student in Southampton. And so on.

Perhaps the way I consume music has also contributed to the time-stamping factor. I want to hear the layering of the instruments and vocals and hear how the producer changed the beat at the hook or the bridge. Most of all, however, I want to hear each and every single lyric and try to figure out what was going through the composer’s mind when he wrote the song. Since we got Google, rather than merely looking for the words, I also search for the background to the songs, and you’d be surprised how much history you might come across in that endeavour.

For instance, if you research the song Layla, made popular by Eric Clapton, you will find that it was inspired by his love for Pattie Boyd, who at the time he met her was married to George Harrison of the Beatles. Boyd would later divorce Harrison and subsequently marry Clapton, although the latter union did not last either. Boyd is also said to have inspired another of Clapton’s critically acclaimed hits, Wonderful Tonight. More surprising though, was the fact that she did not really return Clapton’s love, reportedly leading him into the spiral of acute drug and alcohol addiction. With some other songs, like Don’t Look Back In Anger by Oasis, you find that the composer was so spaced out of his mind during writing, he had no idea what the song was about.

And, contrary to what the preface might suggest, older local music also held its allure. Kris Okotie (now Reverend), Felix Liberty, Harry Mosco, Majek Fashek, Sunny Okosuns, all wrote enduring songs. Music was an art, that required dedication, nurture, time and talent.

Advances in technology have democratised everything however. And, armed with nothing more than the same laptop on which I’m publishing this piece to an international audience, anyone can make and publish music much more easily today. It is not certain whether this dilution in production requirementsalso led to the dilution in song writing but Nigerian music is in a song-writing crisis. Of course, it wasn’t always so.

After Nelson Mandela was freed and conscious music died in Nigeria, we all just trudged along for a while. Blackky, Alex O and Alex Zitto flew the flag for a while, Emphasis’s Which One You Dey? and Junior & Pretty’s Monica probably set the tone for indigenous rap around that time. Eedris AbdulKareem of The Remedies then took “rap” to the twilight zone but redemption, for me, came in the persons of Styl Plus. Personally, I don’t believe the story of today’s music in Nigeria can be told without mentioning the absolute game-changers that Styl Plus were. We once again had real lyrics, unprecedented vocal harmony and cutting edge music production. Their Olufunmi remix featuring Da Capo was without doubt the reset button for Nigerian hip-hop and rap.

I’d like to say the rest is history, with all the international superstars we now have but the lyrics lover in me says no. If we had charts in Nigeria today, I don’t think very many songs would be top 10 for more than 2 weeks. The very generic sound of most songs, poor production, similarity in lyrics and gimmickry all make for a very short-term hits market. And, at the end of the day, it seems most artists want to make a hit rather than good music. Now, I’m not naïve enough to think that music should not pay its creators but hit music here is frequently not very good music, and I think this is why most songs have a 2-week top 10 shelf-life or perhaps even less.

The music mostly doesn’t even sound great unless one is intoxicated either by the ambience of a crowd or the infusion of alcohol and I would argue that it isn’t distinctive enough to stamp anyone’s time or memories. Too many artistes are either asking the girl to “whine am down low” or “follow me go” or just stringing words together in unnatural sequences.

I have argued before that this sort of music isn’t the type that will pay artistes into their old age. Music doesn’t always have to make sense but it should sound original and artistes cannot be releasing albums where 7 of 12 tracks sound alike, or 4 tracks out of 11 sound lie you’re recycling your old hits.

Or perhaps the reality is that age brings with it a growing disconnect from the music of the day. I remember my dad not getting the point of expletive-laden rap, with its monotonous basslines, but you try throwing on a few Biggie and Tupac joints at a wedding reception or stag do today and see what happens.

Let’s encourage artists to pay more attention and devote more effort to writing, and let’s support those who make the effort by buying their music. If the legend that is 2face Idibia could finally give in and include a Go-Down-Low line in Go, the opening track to his latest album, I would suggest it’s because we did not reward him enough for Only Me, Rainbow and all the other lyric-laden smash hits on his previous one. There’s no greater incentive than putting our money where our mouths are.

How Much Does a Bad Education Cost?

How Much?

How Much?

When I was in university, not so very long ago, LASU was in a tussle with UNIBEN and Ambrose Alli Univeristy, Ekpoma to be declared the paramount hotbed of secret cultism in Nigerian universities. It was always only a butchering or slaying and a riot away from closure. The school has been closed again in recent times, but the protests that led to the closure happened because the Lagos State government had attempted to increase annual fees from about N25,000 (about $150) to about N350,000 (about $2100). On the 7th of August 2014, the Governor of Lagos State, announced that there would no longer be an increase of any sort (previous suggestions of 60%, then 30% increases had also been rebuffed) and that the N25,000 fees would stand.

The Governor’s reversal was seen as a victory for people power, with various references again being made to the supposed lessons from the Ekiti elections and the consequences of elitist governance. The thrust of the arguments in support of modestly priced tertiary education is that the less privileged in society should not be priced out of education. Those in favour of increased fees argue that quality education is pricey and that a $600 dollar education (i.e. over a 4-year course) is not going to build a country of industrialists and reformers. And there would be some merit on both sides but I would side more with those who favour a realistic cost being attached to education. I would also agree that government should subsidise education but not up to tertiary.

Many people cite the Norwegian example in the argument for free education into post-graduate studies, even. After all, we are both endowed with vast mineral wealth. This is a false equivalence however, as Norway has only 5 million people against its proven crude deposits of 5,366,000,000 BBL, compared to Nigeria’s 170 million people against its proven deposits of 37,200,000,000 BBL (data here). Per capita, Norway is 5 times richer in oil than we are. And they don’t even spend the wealth the way we do, but that’s a story for another time. Let’s stick with education.

Everyday, when talking about Nigerian university graduates, recruiters churn out the words “half-baked”, “unemployable”, “incoherent”, etc, and there’s a reason for this. Many Nigerian graduates (they’re in the minority, let’s be honest) do not fall into these categories but I’m convinced it’s more to do with the schools they went to before university. People with decent primary and secondary education are more likely to be the outliers that will thrive in spite of the university they go to. It may sound elitist but (if you were not one yourself), you probably remember that classmate at uni (or three, or five or twenty), who struggled not only with grammar, but also with grasping every material concept your lecturers tried to teach. People who would throw a tantrum if they could not record the lecturer verbatim. People who had not learnt how to learn.

What evidence do I have in support of this theory? Well, if you speak to any of these “good” Nigerian graduates who, after being educated up to their first degrees in Nigeria, go abroad for graduate studies, the overwhelming majority of them will tell you that it was hard to adjust initially. You think you know how to research an issue properly, until you find out that what qualifies as research in the best of our universities here is nothing but rank plagiarism abroad. Very few of us that are trained in Nigeria understand that it is a very broad and far-reaching concept.

Plagiarism aside, how many university lecturers here tolerate dissenting views, even where those views are backed by verifiable facts/data? Chances are, if you do not regurgitate what your lecturer dictated to you or printed in the handout he forced you to buy, you won’t excel in his course. Rubbish, you say? Law school students doing the Bar Part I course (for foreign-trained lawyers) always complain about the learning methods at the law school. “Learning”, even in law school, is sitting through hours of note dictation. As we all know and have seen, note-dictation means you only need to find a diligent classmate with good handwriting, to photocopy his notes when it’s time to cram, 3 weeks before exams.

I went to a secondary school where we had a woodwork shop, with saws and drills and chisels and mallets and did all the experiments in the chemistry, biology and physics textbooks. ALL. It was a complete shock to my system during GCE (which I took after SSCE), that there were “Theory of Practical” exams for the sciences and that this was what the great majority of Nigerian secondary school students prepared for.

Jumping from N25,000 to N350,000 was something of a quantum leap, to be honest, but the penultimate proposal of 30% hikes in the fees was more than reasonable, in my opinion. If you are a parent and have young children that you are educating in private nursery and primary school, you are no doubt paying many multiples of N25,000 per term. I would argue that the effects on the child(ren) are evident – their vocabulary is expanding much faster than yours or your parents’ did, they’re dealing with much more advanced concepts than you were at their age and, in fact, the system of teaching is vastly changed from when you were a child yourself.

We need to move away from this “XYZ Governor enjoyed free education but wants to deprive today’s youth” argument, for many reasons. The first is that it is a lie. If you go back to our primary and secondary school literature books, the narratives showed villages putting money together to send children to school. Many people were the beneficiaries of some sort of grant or scholarship and had to drop out if things got tough back home.

The second is that the annual N90 my mother paid to attend UI in the 70s was worth much more than the same N90 I was charged in the 90s. That sort of system is not sustainable. After all, that was when meals (via meal tickets/vouchers) cost 20kobo or something. The cheapest meal in my first year was around N50.

It is this free system that ensures that the best of our brains are lured away by more competitive salaries and opportunities to contribute to the body of knowledge. It is this free system that ensures that there has been no major scientific or engineering breakthrough (of the kind that can withstand the robust and rigorous scrutiny of international peers) in any of our universities. It is this free system that makes the Ghanaian educational system more attractive to Nigerian parents who can’t afford the US-Europe route. This same free everything is why we don’t have technicians and artisans with proper skills. We import tailors, bricklayers and masons from other countries in West Africa (where they pay for this skills training) if we want proper cuts or straight walls.

A 1300% rise in fees will always be hard to defend and was probably not wise, especially, as many have pointed out, in an election year. We have to ask ourselves however, why there are so many graduates who cannot find work years after NYSC. Why are there so many graduates who are forced to switch careers (often downwards) only a few years after graduation? Why do recruiters always lament a skills gap? Most importantly, with Vision 20 20:20 in mind, what are the world’s top economies doing differently from us? Have a look at the chart below, in connection with the World’s Top 100 universities, for 2013:

World's Top 100 Universities by Country Located

World’s Top 100 Universities by Country Located

Is it a coincidence that these are firmly amongst the world’s most developed countries? How many of them offer free or heavily subsidised tertiary education? Do we reasonably think that our way -the Nigerian way – is better?

We’ve reverted to the status quo ante on the fees and this probably means not much is going to change in the system. For what it’s worth, I believe that the entire benefit of free or subsidized education should be directed at basic education, to bring up our base literacy levels and learning aptitudes. Thereafter, fees for degrees need to be realistically priced, to upgrade facilities and attract the intellectual and administrative talent needed to transform our tertiary learning centres. If we look around us, the real cost of bad education is all too evident.

So, some guy went and trademarked “Nollywood”…

 

News reached us in Nigeria a few days ago that someone (a man named Nicholas Opara) had applied for and received approval from the USPTO to register the word “Nollywood” as a trademark in the United States. At first it didn’t seem to me like something anyone should worry about but the Nollywood people at the NBA’s Section on Business Law Conference were clearly disturbed. There is a sense that anyone using the expression “Nollywood” in the context of our entertainment industry will owe Mr Opara money. This is incorrect, for the reasons given below.

 

You can see the USPTO report on the NOLLYWOOD trademark here. This tells us that the registration was in classes 35 and 38. (You can find our quick refresher on trademarks and classifications here.)

 

What does this mean? Well, trademarks are registered in connection to goods and services. So you can’t just walk up to the trademarks office and ask to register “TEXTHELAW” in abstract. You would have to tell them what goods or services will be branded with the trademark. In the refresher course link above, you will find that there is a standardised international classification of goods and services, available in most countries. In Mr Opara’s case, he registered NOLLYWOOD in connection with “Advertising; business management; business administration; office functions” (class 35) and “Telecommunications” (class 38).

 

What is the effect of the Class 35 & Class 38 registrations? It means that you can’t set up businesses that provide the services listed under these classes (i.e. advertising, business management, business administration, telecommunications) and use the word Nollywood in the business name or trademark of your company. Mr. Opara can set up Nollywood Telecoms or Nollywood Business Managers and it would be fine. It does NOT mean that anyone operating in our Nollywood needs his permission to use the word or that the industry as a whole is held to ransom by Mr. Opara.

 

Could he have registered the trademark in Class 41? The services listed under class 41 are “Education; providing of training; entertainment; sporting and cultural activities”. This is the class that would have given Nigerian practitioners real concern, as it would have meant that trading in the US as movie industry practitioners under the name Nollywood, would have infringed Mr. Opara’s registration. However, given the popularity and famousness of the term “Nollywood” worldwide and the industry it represents, it is unlikely that the USPTO would have agreed to a registration in this class. And if they did, it would be fairly easy to instruct a US attorney to challenge such a registration as the chances of getting it revoked are very high.

 

Should an actor or the Guild of Actors/Directors register Nollywood as a trademark in Nigeria? No. First of all, a trademark cannot be descriptive of the goods or services it brands. So, for example, you cannot register “PURE WATER” as a trademark to brand drinking water. In the same vein, “Nollywood”, which has come to mean the movie service industry segment of the Nigerian entertainment sector cannot be registered as a trademark for entertainment services, in my opinion. Secondly, the whole point of a trademark is to distinguish your goods and services from those of others. So even if the Nigerian Trademarks Registry somehow approved the trademark application, it would be a trademark of very little value, since the entire industry already refers to itself as Nollywood.

 

Did Nicholas Opara miscalculate or does he have something up his sleeve? My mentors in the legal profession taught us not to comment on speculation so they would probably be disappointed by this paragraph. However, the cynic in me thinks he probably tried class 41 initially and was refused, so he settled for the next best classes. Nonetheless, 35 and 38 registrations will not affect 41 services, especially if it’s clear that you didn’t invent the word. On the other hand, it is quite plausible that he wants to deploy Nigeria-centric services in the US and I guess this isn’t a bad thing. It wouldn’t be out of place, for example, to have Hollywood Drycleaners or Hollywood Barbers in Nigeria. If his plan is something more along those lines, then all the very best to him.

 

 

Sanusi’s Case: Where does Jurisdiction lie?

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Suspended CBN Governor, Mallam Sanusi Lamido Sanusi

This morning, I had the pleasure of viewing a debate between 2 highly esteemed learned friends on social media. The subject being discussed was the recent ruling by a Federal High Court that it had no jurisdiction to entertain the case filed by suspended Central Bank Governor, Lamido Sanusi, challenging his suspension by the President. The court decided that the National Industrial Court was the proper forum, as the matter appeared more employer/employee than anything else, and ordered the case to be transferred accordingly.

Now, jurisdiction is perhaps the most fundamental issue in litigation. It goes to the heart and validity of any case. Anything done by a court in respect of a matter in connection to which it has no jurisdiction is a nullity. My first learned friend argued, as she had stated since the suit was initially filed, that only the NIC had jurisdiction. My second learned friend argued that certain provisions of the constitution nonetheless vested the FHC with jurisdiction. My first learned friend disagreed. So, what does the constitution say?

First of all, let us examine the section of the constitution advanced by my first learned friend in support of her argument; Section 254 C, which states –

254 C- (I)      Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(a)      relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

Is Sanusi’s suit in connection with employment? On the face of it, yes. Additionally, I emphasised certain keywords in the referenced section, whose importance you will see in the section of the constitution advanced by my second learned friend; Section 251, which states –

251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

Is Sanusi seeking a declaration affecting the validity of an action or decision by the President/Federal Government? Yes, he is. So you see the conundrum here. Both 251 and 254 are literally notwithstanding each other and yet appear to have “exclusive” jurisdiction over the subject matter of this lawsuit.

I don’t envy judges. Additionally, I am confused and unable to pitch my tent with either of my learned friends. What do you think?

 

 

Aereo and the Disruption of Public Broadcasting

Aereo Logo

Startup and tech buffs love disruption, and for good reason too. Technology has intervened, over the course of human development, to change existing business models and sometimes make them obsolete. Usually, after some initial resistance, the market follows the disruption and old businesses either [try to] adapt, like Blockbuster or close shop and move on, like Kodak Film.

 

The US Supreme Court is about to rule on the legality of the attempt of a company named Aereo to disrupt conventional free-to-air television broadcasts. Aereo offers its users a service through which they can watch live TV online for a monthly subscription of $8-$12. The TV broadcasters, whose content Aereo offers, are upset because Aereo has not obtained licenses to rebroadcast their content and they are convinced that this is clear piracy. Their sentiment is underscored by the existing lucrative situation, where cable and satellite companies pay huge sums to TV broadcasters to retransmit/rebroadcast popular shows. This is where the impact of the disruption will be felt, should the Supreme Court rule Aereo’s business to be legal.

 

Aereo's Antennas. Photo Credit: Washington Post

Aereo’s Antennas. Photo Credit: Washington Post

The case turns on whether or not Aereo’s transmissions to subscribers are “public performances” or “private performances” of the TV broadcasts. If we revisit our Copyright 101 notes, we will remember that broadcasts are eligible for copyright protection and one of the implications of this is that the copyright holder has the exclusive right to control how they are transmitted/communicated to the public. What is the difference between public and private performances? Well, there isn’t a rigid distinction, but generally, private performances fall within the realm of family, home viewing, of a non-commercial nature. Anything outside that would probably be a public performance.

 

There is also a judicial precedent (i.e. a previous decision of the Court of Appeals) which will come into focus during the presentation of arguments at the Supreme Court; the Cablevision case. “Cablevision involved a cable company that held licenses to transmit live copyrighted programs, but also sought to offer subscribers an unlicensed service known as a “Remote Storage Digital Video Recorder” (RS-DVR).” [Quote is from the US Solicitor-General’s amicus brief (opposing Aereo) to the Supreme Court, in the Aereo matter. Full brief can be found here.]

Aereo AntennaAereo2

The RS-DVR allowed subscribers to record programs for later viewing, with the recordings stored in central servers housed and maintained by Cablevision. The courts ruled that the RS-DVR transmissions were private, rather than public performances, for various reasons, including that the transmission from the RS-DVR could only be received by one subscriber.

 

That factor, the capability of reception by a sole subscriber, is central to Aereo’s business model and legal arguments. The US Solicitor-General in fact suggested in his brief that Aereo engineered its business model around the Cablevision decision. So how does Aereo work?

 

Aereo has a central hub of “thousands of dime-sized antennas that are rented to individual users.” [See more in article from Time here.] The antennas capture live free-to-air TV signals, with each antenna serving no more than one subscriber at a time, depending on what program the subscriber chooses to watch. Aereo believes that a ruling that its business is piracy would have serious implications for cloud computing and would throw the Cablevision precedent out of the window. The District and appeal courts have agreed with Aereo so far. However, one of the judges at the Court of Appeals dissented.

 

According to the judge, Judge Denny Chin, in his dissenting opinion, [full judgement available here) Aereo’s technology platform is “a sham”. He says the system has been “over-engineered in an attempt to avoid the reach of the Copyright Act and take advantage of a perceived loophole in the law.” To my mind, he provides a great example of how the system is a sham. In spite of Aereo’s seemingly innocuous position that it provides users with a technology platform to make and access unique private recordings, Aereo’s antennas broadcast the Superbowl live (and simultaneously) to 50,000 users. It would indeed be curious for this not to be held to be public broadcasting.

 

The Judge goes further to distinguish Aereo’s case from Cablevision, with the key point that Cablevision involved a company that already paid license fees, while Aereo pays none. The subscribers in Cablevision already had the ability to view the recorded transmissions; Aereo’s do not. Aereo is functionally a cable company, doing what cable companies typically do, except for its attempt to avoid getting licenses to rebroadcast programming.

 

However, many legal scholars support Aereo, according to the previously referenced TIME piece. One such scholar is quoted as saying “Aereo simply provides an antennas for viewers to privately transmit free over-the-air broadcast television signals. It does nothing more than make it easier for viewers to access already free broadcast service.” But, I would counter, this (i.e. that the broadcasts are free-to-air) is irrelevant to the underlying intellectual property rights and what non-copyright holders have the power to do.

 

I am not an American qualified lawyer but I believe that Aereo’s business should be held illegal. It is clear that their thousands of dime-sized antennas, rather than a single large receiver, is a less-efficient way to structure the business. And, while taking advantages of loopholes in laws is legal and loopholes are in fact the bread and butter of many wealthy lawyers around the world, I agree with Judge Chin that there are enough differences between Aereo and Cablevision to hold that Cablevision does not apply here.

 

We watch and observe.

 

The Judgment Banning Tolling on the Lekki-Ikoyi Bridge

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On the 27th of March 2014, the Federal High Court, sitting in Lagos, held that “there was no existing law in Lagos State, permitting the collection of toll on the newly constructed Lekki-Ikoyi Suspension Bridge in Lagos.” Now, lawyers are usually wary about commenting on a judgment that they have not read in its entirety, but various newspapers quoted the judge’s ratio (i.e. the thinking behind the court’s ruling) extensively. This commentary will be based on the quoted excerpts and the provisions of the Lagos State Public Private Partnership Law of 2011.

 

The PPPL establishes an Office of Public Private Partnerships and gives it powers and responsibilities. It sets the framework for entering into Concession Agreements and states that they must be ratified by the House of Assembly before implementation. Good, so far? Okay then. Let us return to the court’s judgement briefly.

 

Justice Saidu is reported to have held as follows:

“The third respondent [i.e. the Attorney-General of Lagos State] tried to justify the collection of such toll in paragraph 26 of their counter affidavit, by stating that when the bridge is erected, its proceeds will be applied to the consolidated revenue fund of the LASG.

“The question now is, has the LASG made the appropriate law to enable her collect such toll on the bridge? The third respondent only cited sections 27, 28, and 29 of the Lagos State Public Private Partnership Law 2011 as making provision for the collection of revenue. There is nothing before me to show that the subject matter in this case was as a result of any Public Private Partnership law, to enable the law of 2011 be extended.”

 

–       (See more at: http://www.vanguardngr.com/2014/03/lekki-ikoyi-link-bridge-law-backs-tolling-says-court/#sthash.iy4mkUCe.dpuf)

 

The thrust of His Lordship’s judgement therefore appears to be that toll cannot be collected on the bridge pursuant to a provision in the PPPL because the bridge was constructed with funds from the public purse and is therefore not a PPP project.

 

Is this a correct position to hold? Does the title of a law limit the scope of the law? Let us examine the referenced sections of the PPPL and then discuss the rudiments of statutory interpretation.

 

Section 27: Notwithstanding the provisions of any Law [of Lagos State], the [Governing] Board [of the Office of PPP] may designate any public infrastructure or public asset, any road, bridge or highway within the State as public infrastructure[i] or public assets[ii] with respect to which user fee or toll shall be payable for the purpose of this Law subject to the approval of the House of Assembly.

 

Section 28: Notwithstanding the provisions of any Law, the Board may in the relevant concession or other agreement, authorise any person, in return for undertaking such obligations as may be specified in a concession or project agreement with respect to the design, construction, maintenance, operation, improvement or financing of public infrastructure or public assets, to enjoy specific rights as may be stated in the concession or project agreement including the right to levy, collect and retain service charges, user fees or tolls in respect of the use of the public infrastructure or public assets.

 

Section 29 is long and boring but can be summarised as providing for regulating tolls and conditions under which the public will access the infrastructure. You can view the full PPPL here.

 

In simpler English, section 27 says that regardless of what any other Lagos law says, the PPP Board has the power to designate public infrastructure or assets for tolling, subject to the approval of the state’s House of Assembly. Section 28 says that a person/company can be authorised to levy and collect tolls in return for fulfilling its (i.e. the authorised person’s) obligations under a concession agreement or other agreement, regardless of what any other law of Lagos State says.

 

Bearing the foregoing in mind, was the judge correct to hold that public infrastructure and assets may only be designated for tolling under PPPs? I would respectfully disagree with the honourable judge for the reasons that follow.

 

1. Long Title: Laws generally have a long title at the beginning, as well as a short title at the end. Both are aids for interpreting laws. The short title of the law we’re considering is The Lagos State Public Private Partnership Law. This might lead readers to think the law only legislates on PPPs but I think the long title suggests otherwise – A Law To Provide For Public Private Partnerships, Establish the Office of Public Private Partnerships, Enhance Infrastructure and Service Development in Lagos State and for Connected Purposes. The purpose of the law is four-fold, one of which is enhancing infrastructure and service development in Lagos State. It is not solely concerned with PPPs. My learning friends at the Law School would probably support me if I went further to say that the phrase “and for connected purposes” is added to the long title of every law specifically to avoid being put in a straight-jacket as the Federal High Court did here.

 

2. Sections 27 & 28: Even if the law were held to only apply to PPPs, sections 27 & 28 begin with the words ‘notwithstanding the provisions of any Law’. This expression recognises that laws overlap each other in practice, even if this is not the intention of the House of Assembly; laws do not exist in isolation to each other. This means that unless expressly excluded (as done here), other laws can impact on the PPPL. The inference is also thus that unless sections 27 and 28 limited their application to PPPs, courts should not impute this restriction unless not to do so would lead to an absurdity.

 

3. Section 27, again: Section 27 gives the power to designate public infrastructure and public assets for tolling. ‘Public Infrastructure’ and ‘Public Assets’ as defined by the PPL (and reproduced below) have not been defined as assets/infrastructure that were built/developed under PPPs. Now, it might scare us to know that the government can wake up and decide to toll any public facility or amenity but ratification by the House of Assembly has been inserted as a check on the executive (we know they’re more often than not the rubber-stamp of the executive but the principle can’t be faulted).

 

MATTERS ARISING

The Lagos State Government has filed an appeal against the judgement, though it continues to collect tolls in the interim. Did they apply for a stay of execution and if yes, was it granted? [UPDATE: I’ve just been informed that the hearing for the application for a stay of execution is fixed for April 25. With Senior Advocates of Nigeria as Governor and Attorney-General, it is somewhat surprising that toll collection continues.] The lawyer who brought the action against the government claims to have been the target of assassins. We pray for his continued safety and well-being.

 

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ENDNOTES

[i]Public Infrastructure is defined by the PPPL to include ‘public facilities and amenities including roads, bridges, highways, rail lines, water transportation facility, public water works, housing, electric power stations, hospitals, recreational parks, motor parks, waste disposal facility, amusement centres and any other infrastructure or amenities for public use.’

[ii]Public Asset is defined by the PPPL to include ‘the right of use of any property or economic opportunity of a public nature arising from the use of public property.’