When a WhatsApp Broadcast from your Parents FINALLY comes to life

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First of all, a gloat with my learned friends. If they ever sneer at you, asking “What do lawyers really do? Why do you want to collect all that money? Isn’t it just to write ‘heretobefore’?”, wave this judgement in their faces. Good lawyers help clients avoid losing money by asking the right questions ahead of transactions.

Here’s the summary of the case. Fijabi Adebo Holdings Limited bought several cases of ‘soft drinks’ from the Nigerian Bottling Company PLC, makers of Coca-Cola, Fanta, Sprite and those feel-good adverts we see on TV from time to time. The company tried to export the drinks to the UK (yay, diaspora market) but the authorities there found the drinks not in compliance with EU regulation and destroyed them. Bad Market, as is sometimes said. Of course, this was a huge shock to the system of the company, not to mention the financial loss as well, all N15m or so of it. The company sought to recoup this loss by suing NBC and NAFDAC, the Nigerian food and drug regulator.

The company sought general damages of N150 million against NBC, for negligence/breach of duty of care, special damages of N15.1 million, being costs incurred as a result of said breach and N3 million as the cost of bringing the law suit. From the orders sought, as listed in the judgement, the relief sought to be enforced against NAFDAC was “ an order directing [NAFDAC] to carry out routine tests on all the soft drinks and allied products of the [NBC] to guarantee the safety of consumable products [produced by NBC].”

The case turns on the reason for the claimant’s goods being destroyed on arrival in the UK. According to the letter from the Stockport Metropolitan Authority, “[T]he ‘Fanta orange failed due to an excess in sunset yellow colour and both samples failed for excessive levels of benzoic acid.” The samples being referred to here were for Fanta orange and Fanta lemon. It was therefore the claimant’s contention that the soft drinks purchased were unfit for human consumption and that NBC had breached its duty of care.

NBC’s response was that its soft drinks were manufactured well within the regulatory limits set by NAFDAC for production in Nigeria. The benzoic acid was within permitted limits and there was no national limit for sunset yellow. Evidence was led to prove (certificates and testimony from NAFDAC) that the NBC was compliant with NAFDAC and Codex (World Health Organisation Food Standards) and the court agreed. To be clear, the court dismissed the entire claim against NBC.

The claimant tried to suggest that the NBC ought to have known the soft drinks were being exported, since they were loaded into containers in NBC’s premises but that argument went nowhere. The NBC discharged its full legal and moral obligations to the claimant.

Now to the part of the judgement that has gained the most notoriety in its slight misrepresentation. The judge, relying on the following exchange during the cross-examination of the subpoenaed NAFDAC official, decided to order a warning to be printed on NBC labels –

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According to the judge, from this testimony, “it is manifest that [NAFDAC] has been grossly irresponsible in its regulatory duties to the consumers of Fanta and sprite manufactured by [NBC]. In my respectful view, [NAFDAC] has failed the citizens of this great nation by its certification as satisfactory for human consumption, products which in the United Kingdom failed sample test for human consumption and which become poisonous in the presence of Ascorbic Acid, ordinarily known as Vitamin C…” The Court therefore ordered NAFDAC to mandate NBC to include a warning on its Fanta and Sprite bottles that the “…soft drinks cannot be taken with Vitamin C as same becomes poisonous if taken with Vitamin C.”  With respect to the Court, perhaps the basis of the finding should also have been the result of testing and certification, as it was with the other findings of chemical composition. The exchange, as recorded, does not really seem to have much coherence about it. However, the judge had the benefit of observing the witnesses first hand and I didn’t, so I shouldn’t dwell too much on that.

Is there an issue with combining benzoic acid and vitamin C? That’s probably one for the food scientists to tell us. NBC itself says there isn’t, in its statement on the issue here. The FDA in the US doesn’t seem to think there’s that much to worry about either. The ‘harmful’ substance formed when benzoic acid combines with ascorbic acid (vitamin c) is benzene, but it appears to only be harmful in large amounts. I’m a layman where that’s concerned and would be very happy to take guidance from a pharmacist or nutritionist on this point.

What we do know for sure from the judgement is –

  • The claimant failed to find out what the regulatory requirements of the UK/EU were and got burnt (even regular travellers know to check that the ogbono or stock fish in their luggage is permitted across their journey);
  • NBC has shown that its products are safe consumption by both NAFDAC and WHO standards;
  • The Court made no negative finding against NBC.

Are there other health reasons to give up soft drinks? Yes! All that sugar and fizziness never helped anyone except to put on weight and feel bloated. So, give up soft drinks if you want to. You just can’t say it was because of this law suit.

Drunken Love (the Consent remix)

 

“Not in a position to give consent” really means not in a position to withdraw it, no pun intended. At least that’s how I read the report of the proceedings in which Ched Evans was denied leave to appeal his conviction. I think this principle skews the balance of justice irretrievably in favour of the accuser, in accusations of non-violent rape, and I’m not certain it’s a good thing.

First of all, however, let’s get some ad hominems out of the way. I am male, the gender more likely to be accused of committing rape. I am the first of four sons and I grew up with no sisters. So perhaps my position will be perceived as biased. However, I am also married (to a woman – one must clarify these days) and we have 3 daughters, for whose future I am always terribly concerned. So, maybe a little reverse ad hominem there too. In other words, I think my opinion will be balanced. At least a little.

My interest in this matter is mostly an academic one – a logical and jursiprudential look, as far as is possible in a non-academic piece such as this, at the events that led up to the conviction of Ched Evans. The facts of the case (here’s the link again) are that Evans and a “mate” of his had sexual intercourse with a very drunk girl, who claims she woke up the next morning hungover, without any memory of what had transpired the previous night. She’d arrived at the hotel where the incident took place in the company of Evans’s friend (McDonald) who, as we say in Lagos, “controlled his guy”. Evans arrived to meet the accuser “enthusiastically engaging in consensual sex” with McDonald and claims she asked him to perform oral sex on her. After that, he proceeded to have penetrative intercourse with her. Long story short, after she woke up the next day she reported to the police and both men were charged. When she was examined and samples taken from her body, there was only evidence of intercourse; no bruises or injuries indicative of violence.

The thrust of the prosecution’s case was that the accuser was too drunk to have given her consent and therefore could not have given it. In a very technical (and almost convoluted) explanation, her memory loss was discounted, both at the trial and at the application for leave to appeal the judgement. Discounting her memory loss is significant for me because, what if she did consent but had forgotten? Rather, according to the judge when sentencing Evans, “…. [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that.” I shall return to this shortly.

The jury, based on evidence of the accuser’s state as gathered from CCTV and witness testimony, acquitted McDonald but convicted Evans. I find this a little curious. If she was too drunk to have consented, as was the prosecution’s case, did going to the hotel with Evans indicate subliminal consent or did she somehow get drunker just before Evans came along? Note that (1) there was no evidence that she ingested more alcohol at the hotel; and (2) when she was tested at the police station, the following morning, there was no trace of alcohol left in her blood. On what basis did the jury deem that she consented to the sexual activity with McDonald but not to the one with Evans?

Then we return to the judge’s summation of the law, that the complainant was in no position to form a capacity to consent. Now, the thinking here is obviously to prevent vulnerable people from being taken advantage of; so that, for instance, men would not get away with intentionally intoxicating targets and putting them in that state of inebriation or incoherence to have their evil way with them. Fair enough. But it does not seem to me that the facts of this case fall under such precautionary jurisprudence. The implications for this on drunken, spontaneous (AND, hopefully, VERY SAFE) trysts, aside, it seems that what is being implied is that it is illegal to have coitus with a partner who is not in a position to communicate a withdrawal of consent.

I put the emphasis on withdrawal because, as these things go, except the sexual act is a transactional one lubricated by financial oils, consent is very rarely ever positively/verbally sought or communicated. Yes, sometimes, the guy asks if he can kiss the lady (I’ve been informed that this is not the preference of most ladies), but many other times, the man generally swoops in tentatively and sees consent or refusal in the lady’s response to his gesture.

Same for more advanced physical contact. You try first base, then second, then third, then go for the home run. It is extremely rare that consent is positively or categorically sought at each of these metaphorical stations. What usually happens is, when it seems like things are moving onward from any base, the uncomfortable lady communicates hesitation (during which moment, many a-weak man will say and promise anything to progress) or an outright NO, at which point, all well-mannered men retreat, albeit regretfully and konjilically. This is why I struggle a little with the reasoning behind “not in a position to form consent” in this case.

This piece does not seek to detract from the seriousness of non-consensual sexual activity. The only reason I’m even able to debate the case is because the crime alleged was not of the stalking or violent variety. I’m also not holding brief for Mr. Evans, and only the three people in the room know what actually occurred. Well, two, if one remembers that the third person had no recollection.

However, if she was so drunk that sex with Evans could not be deemed consensual, how is it that she was deemed sober enough to have consented to sex with McDonald? She was sober enough to agree to go to the hotel with a total stranger but too drunk to have consented to sex with a third party, even though the evidence of the 2 men involved as to what transpired in the room was not contradicted?

Rape is absolutely and completely deplorable and I understand that being a footballer is not a human right, but the facts here do not support Evans being treated like depraved, deviant sexual predator. This is as borderline as they come.

Furthermore, as this Slate piece (long read) suggests, while every accuser deserves to and should have her case investigated thoroughly, the fact of the accusation alone should not lead to a presumption of guilt and the unfair treatment of the accused.

UPDATE: On the 21st of April 2016, Ched Evans had his conviction quashed by the Court of Appeal and a retrial was ordered.

FURTHER UPDATE: On the 17th of October 2016, Ched Evans was found not guilty after the retrial.

 

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?

 

 

Balancing Label – Artist Contracts

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Why aren’t our labels and their artists getting along? Virtually all major labels have had a public spat with an artist, leading many times to the artist attempting to leave without being released from his contract. Expectedly, these matters have got tied up in court, with the artist prevented from working until after the suit has ended. What’s making artists so upset?

In the parallel universe where things work and there is a just reward for artistic creativity, getting a record deal is usually cause for celebration. The artist knows he/she will be paid a lump sum advance by the label, usually in instalments, which the label will try to recoup over the life of the contract, through record sales, touring, etc. In our dimension of the universe, a record deal seldom means more than the artist finding someone willing to pay for styling, studio time and video shoots in exchange for 60-70% of the artist’s net takings. Advances are rare for artists who aren’t yet established; who haven’t, as we say, “blown”, so many new/up-and-coming acts depend entirely on the label for their day-today maintenance.

This arrangement is usually fine until the artist’s first hit. The artist gets a glimpse of his/her potential earning power and, like Adam and Eve after partaking of the forbidden fruit, their eyes open.  A restlessness develops that, if not managed properly, will lead to the sort of confrontations and frustrations that the Nigerian industry has seen of late.

This is not to say that the labels are without blame, however. Most of the contracts in circulation, in addition to there being no advance, have no minimum commitment (financial or otherwise) for the labels. This effectively means there is no legal means of exit for the artist in the event that the label does nothing to promote the artist or unduly delays the release of recorded material.  An artist will be locked in until his/her minimum album requirement, a factor largely under the label’s control, has been discharged. This lack of minimum label commitments is understandable, given that it is the labels that draft the contracts (and will therefore insert the most favourable terms possible) and many artistes are too desperate to even think about getting a professional review before signing the contracts.

Some contracts have a term of X years, with the option to renew for Y additional 1-year periods. For example, a 4-year contract, after which the label is entitled to exercise the option to renew the contract for 2 additional terms of one year. This is potentially a 6-year deal. How does a label keep a Nigerian artist happy for 6 years? Chances are that you’re renewing because the artiste has “blown” by year 3 or 4. The artist’s expectations are likely to have changed with his stature.

But the labels aren’t in it for charity either. At the end of the day, they invest in the artist to reap a profit, like any other businessman. With the dependency on reformed(?) pirates for physical “sales”, digital suffering from the abundance of free music and quality videos costing what they do today, a long contract is probably the best way to hedge against un-recouped investment. And if the vast income spent in years 1 and 2 of a 4-year contract is rewarded with dismal revenues, what’s the incentive to keep spending for years 3 and 4? And why let the artist go after year 4 if your net profit is still a negative sum?

Can a middle ground be found?

The increasing frequency of falling-outs between artists and their labels suggests that a middle ground has  to be found. It may be due to my inherent professional bias, but I think the solution lies in the contracts, drafting them and understanding them. Professionals who draft contracts need to present their principals with pre-emptive solutions to cover the commercial realities they are likely to face, given the industry’s landscape over the past few years. As with any investment, parties need to set parameters for recognising when the investment/partnership/relationship has failed and prescribe how to walk away. In addition to acknowledging that the thrust of a recording/360 contract is not a lifetime of servitude, labels may wish to consider inserting a sliding buyout scale (e.g. un-recouped advances to date + expenses to date + N5m(year 1) or N10m(year 2) or N15m (year 3)) for an artist who wants to walk away even if  the label has met its obligations.

Contracts set out each Party’s expectations of the other, but signing one presumes that each party knows what is reasonable to expect of the other (so it can negotiate) and that each party understands what has been written down (so that it can review). Clearly, the unexposed artist is at the receiving end of this spectrum. Artists who can’t afford lawyers and who can’t get the label to pay for independent advice need to know the right questions to ask. Here are a few suggestions –

  • If the contract is for 5 albums, how frequently do you (the label) have to put one out?
  • If you don’t release an album within agreed time-frames, what is my remedy? How long can you withhold my music or deny me recording support before I can give you notice and walk away?
  • How much of the money you spend on me is a loan (and therefore recoupable) and how much is an expense (your investment)?
  • If it’s all recoupable (i.e. a loan, meaning I, the artist, effectively paid for it) how long after recoupment does ownership of the masters revert to me?

A Summary of the Nigerian Law of Copyright

 

This piece summarises the Nigerian Law of Copyright, with a particular focus on literary and musical works.

 

According to the Copyright Act of Nigeria, the following shall be eligible for copyright-

(a) literary works; (which includes, irrespective of literary quality, novels, stories and poetical works; plays, stage directions, film scenarios and broadcasting scripts; choreographic works, computer programmes; text-books, treatises, histories, biographies, essays and articles; letters, reports and memoranda; lectures addresses and sermons; and other similar works)

(b) musical works; (which means means any composition, irrespective of musical quality and includes works composed for musical accompaniment.)

(c) artistic works;

(d) cinematograph works;

(e) sound recording; (which means the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced, but does not include a soundtrack associated with a cinematographic film.)

(f) broadcasts.

A literary, musical, or artistic work shall not be eligible for copyright unless-

(a) sufficient effort has been expended on making the work to give it an original character;

(b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device (e.g. on paper, stone, on a computer hard-drive, on a blog-hosting server).

 

Copyright in a work shall be exclusive right to control the doing in Nigeria of any of the following acts (for literary or musical works):

(i) reproduce the work any material form;

(ii) publish the work;

(iii) perform the work in public;

(iv) produce, reproduce, perform or publish any translation of the work;

(v) make any cinematograph film or a record in respect of the work;

(vi) distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement;

(vii) broadcast or communicate the work to the public by a loud speaker or any other similar device;

(viii) make an adaptation of the work;

(ix) do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-paragraphs (I) to (vii) of this paragraph;

 

Copyright in a sound recording shall be exclusive right to control in Nigeria-

(a) the direct or indirect reproduction, broadcasting or communication to the public of the whole or a substantial part of the recording either in its original form or in any form recognisably derived from the original;

(b) the distribution to the public for commercial purposes of copies of the work by way of rental, lease, hire, loan or similar arrangement.

 

WHO OWNS THE COPYRIGHT?

  1. Usually, the author or composer of the work;
  2. If Person X commissions Person Y to author the work (Y not being X’s employee or apprentice), or if Y makes it in the course of his employment, copyright belongs to Y, unless the contract between X and Y states otherwise.
  3. If the work is made in the course of employment in an organisation that issues newspapers, magazines or other periodicals, copyright belongs to the company, unless contract says otherwise.

 

WHO IS THE AUTHOR OF A MUSICAL WORK?

Musical Work usually comprises the Musical Composition and Sound Recording.

Musical Composition consists of the music as written, as well as any accompanying words (lyrics). The sound recording, on the other hand, results from the fixation of a series of musical, spoken, or other sounds into a tangible medium that can be played back.

The author of the composition is the writer and/or the lyricist. Author of the sound recording is the composer(s) or the sound engineer, or both. However, it’s possible for the contract between the composer and the sound engineer to state who owns the copyright.

WHAT IS COPYRIGHT INFRINGMENT?

Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright-

(a) does, or cause any other person to do an act, the doing of which is controlled by copyright;

(b) imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed under paragraph (a) of this subsection;

(c) exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;

(d) distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a)of this subsection;

(e) makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;

(f) permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringed of the copyright in the work, unless the person permitting the place to be used is not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;

(g) performs or cause to be performed for the purposes of trade or business or as supporting facility to a trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

 

JUDICIAL RELIEF/REMEDIES FOR INFRINGEMENT

  1. Damages – money, punitvely
  2. Injunction – an order of the court
  3. Account – hand over all the income from unlicensed sales/reproduction
  4. Others (as court deems fit).

 

DURATION OF COPYRIGHT

Type of Work Author Date of Expiration of Copyright
Literary, musical or artistic works other than photographs Known Human Author 70 years after the end of the year in which the author dies.
Known Joint Authors 70 years after the end of the year in which the author dies; ‘death of the author’ taken to refer to the author who last dies.
Anonymous or Pseudonymous Author 70 years after the end of the year in which the work was first published.
Government or Body Corporate 70 years after the end of the year in which the work was first published.
Cinematographic Films & Photographs 50 years after the end of the year in which the work was first published.
Sound recordings 50 years after the end of the year in which the recording was first published.
Broadcasts 50 years after the end of the year in which the broadcast first took place.

The Google Lawsuit and Online Defamation in Nigeria

Image representing Google as depicted in Crunc...

Image via CrunchBase

It recently made the news, in Nigeria, that Google has been sued, along with a blogger, for an allegedly libellous post on a blog. If the suit progresses to judgement (it could either be eventually abandoned or settled out of court), it would present a wonderful opportunity for the judiciary to consider if or how the traditional principles of defamation apply to electronic publications. Interesting, as electronic (computer-generated) evidence became admissible in court only in 2011.

WHAT IS DEFAMATION?

Libel (written), together with Slander (it’s oral cousin) together make up the tort referred to as ‘defamation’. People sue for libel or slander when they believe that a statement that has been publicly made about them has injured their reputation. Suits for defamation are the counterfoil to the constitutional guarantee of free speech. Thus, while you can say whatever you like about anyone, that person is entitled to seek compensation against you if you damage his good name and reputation, or lower him in the estimation of right-thinking members of society.

WHAT ARE THE GENERAL PRINCIPLES OF DEFAMATION?

Several cases have been decided on this topic. The following is a collage of how the courts have answered this:

In any action for defamation, it is necessary for the plaintiff to prove the following:

  • Publication of the statement to at least one other person than the plaintiff;
  • That the statement referred to, or by implication referred to the plaintiff; and
  • That the statement was defamatory (injurious to reputation and good name).

“Publication” is the making known of the defamatory matter to some person other than the person of whom it was written (e.g. blogging).

A statement must be false and without lawful justification to be defamatory. Justification means that all the words published and any imputations thereto are true.

In addition to truth/justification, “fair comment” is also a defence to defamation. To successfully invoke “fair comment”, the defendant must prove:

  • The published statement must be based on facts truly stated;
  • It must the honest expression of the writer’s real opinion; and
  • It must not contain insinuations of corrupt or dishonourable motives on the person whose conduct or work is criticised, except the facts warrant such imputations.

Damages for libel are by way of monetary compensation. The court considers the following factors in awarding damages:

  • The conduct of the defendant;
  • The plaintiff’s position and standing in society;
  • The nature of the libel;
  • The mode and extent of the publication; and
  • The absence or refusal of a retraction or apology.

 

E-LIBEL

This would be our first strictly e-libel case, if it went to court, so we have no precedents in Nigerian law. When this happens, it is the practice to look to leading commonwealth jurisdictions such as Britain, Australia and America for guidance.

The UK actually has a Defamation Act, which was passed in 1996 (an even more recent one was just passed by the House of Lords and awaits passage at the House of Commons), which states in its very first section:

“1(1) In defamation proceedings a person has a defence if he shows that –

(a)    he was not the author, editor or publisher of the statement complained of;

(b)   he took reasonable care in relation to its publication; and

(c)    he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

“1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved  – (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.”

It would seem from Section 1(3)(e), just quoted, that this would mean that “hosts” such as Google would have no liability for defamatory material published by users of its services. Indeed, this appears to be the position in the USA. However, in this English decision, the courts decided that the host was jointly liable, though ultimately, not simply for hosting, but for refusing to take the post down after the Plaintiff notified them of the offensive material. The position of liability after being asked to take down offensive posts was recently reinforced in Tamiz vs Google. See this blog post for a more extensive explanation.

 

ARE NIGERIAN COURTS LIKELY TO HOLD GOOGLE LIABLE?

The position of the law (abroad, at least) appears to be that a web host will be liable if it refuses to block access to or take down libellous material after it has been notified and required to do so. If this principle were to be followed, then a plaintiff would need to show that he notified Google (or whoever the host is) and that Google allowed the material to continue to be viewed in spite of the notification.

Trademarks 101

WHAT IS A TRADEMARK?

A trademark is a logo or a combination of words (or even words plus logo) that distinguishes the goods and services of one person from those of another. Trademarks, over time, also assure consumers of the origin and quality in the goods being purchased and can therefore be very valuable to a business or a proprietor. A registered trademark confers on its owner the right to exclusive use.

 

IS THERE A SYSTEM FOR REGISTERING TRADEMARKS?

Trademarks are registered in respect of distinct classes of goods and services, according to what is known as the Nice Classification. The class in which a trademark is registered depends on the goods or service in connection with which the proprietor intends to use it. As a result, trademarks can be registered in respect of more than one class of goods and/or services. For instance, a business that produces clothes, perfumes and printed material would need to register its trademark in three separate classes.

 

IS EVERY TRADEMARK REGISTRABLE?

No. Marks that are offensive or contrary to public policy are likely to be rejected. In addition, marks that are descriptive or generic are also not registrable. An example of a descriptive or generic trademark is “PURE WATER” in respect of bottled water. Because the trademark describes the product, it cannot be said to be distinctive and distinctiveness is the underlying principle here. Permitting “PURE WATER” to be registered as a trademark in this class would also be unfair to other manufacturers of bottled water, as they would not be able to use the words on their labelling.

 

WHAT IS THE PROCESS OF REGISTRATION?

The trademark to be registered is submitted to the Trademarks Registry (‘the registry’), with application forms and an application fee. The registry acknowledges the application with a ‘Notice of Acknowledgement’ and assigns the application a (temporary) application number. The registry then conducts a search on its register to ensure that the application is not confusingly similar to an existing trademark. If it is determined that the application is too similar or there happen to be other grounds for rejecting the application, a ‘Notice of Refusal’ is issued, stating the registry’s reasons. Otherwise, a ‘Notice of Acceptance’ is issued. If the application is refused and the applicant  is dissatisfied with the grounds of refusal, he can write a letter to the Registrar of Trademarks, requesting a review of the registry’s decision.

 

Once the application is accepted, the next stage is publication in the trademarks journal. The purpose of the journal is to give existing owners of registered trademarks the opportunity to oppose any application they feel is confusingly similar to their mark. They must do this within 2 months from the date the journal is published. If the application is opposed, opposition proceedings in the form of a mini trial are held to determine whether or not the application should be registered. If the application is not opposed within the stipulated time-frame, the owner can apply (with forms and application fee) for the certificate of registration to be issued.

 

HOW LONG DOES REGISTRATION LAST?

Registration is valid, in the first instance, for 7 years. Upon renewal, it is thereafter valid for periods of 14 years in perpetuity (i.e. for as long as the owner wishes).

 

 

WHAT CAN A TRADEMARK OWNER DO IF HE SUSPECTS HIS MARK IS BEING INFRINGED?

Trademark infringement is a very serious matter. The whole point of intellectual property protection is to ensure that owners enjoy the fruit of their mental exertions. Trademark infringement is effectively making use of (or stealing, actually) the goodwill the public attaches to a trademark in the delivery of the infringer’s goods or services. Examples of infringement abound; Sunny Electronics, for instance, or MackBerry phones.

 

If an owner suspects another’s infringement, it’s probably best to get in touch with a lawyer as soon as possible. The lawyer will assist the owner with investigating the infringement, gathering evidence of the infringing goods on the market and establishing their source. Then, depending on the nature, gravity or the scale of the infringement, the lawyer will decide if the best strategy would be a mere cease and desist letter or whether instituting legal action, obtaining court orders or conducting a seizure raid with the help of the police is the best line of action.

 

If a court action is successful, one of the orders the court can make is that the infringer hand over all the profits from the infringing goods to the rightful owner of the trademark, in addition to requiring him to destroy any remaining stocks.

 

IS EVERY TRADEMARK WORTH REGISTERING?

Technically, this isn’t a yes or no question – it depends on one’s long-term strategy for the company or business. If your product is going to be a “one-off” or isn’t in your primary line of work, then you would have to weigh registration costs against (realistic) projected earnings. If, on the other hand, the product or service to be trademarked is the thrust of the business, or you’re running a multifaceted business but want to ensure that consumers realise that the various products are from the same origin, then it is well worth registering one’s trademarks.

 

Perhaps what should also be borne in mind is that if an owner’s trademark isn’t registered, the owner can only sue the “infringer” for ‘passing off’ and not for infringement, and the remedies for infringement exceed those for passing off.

FLYING SOLO

When I quit my old job to go into solo practice, I looked for every single piece of advice I could find, to be sure I wasn’t being foolish. There was a lot of material on the internet about “flying solo” but it was all from the UK and the USA, which is fine until you remember that many of your colleagues studied law thinking life would be like Matlock after graduation. We all realise, a little too late, that Nigerian legal practice is nothing like Matlock.

I was 6 years post-call at the time and while most colleagues, family and friends thought it was “brave” and “a good decision”, the Partners at my old job advised against it and urged me to reconsider my decision for different reasons. One thought it was premature, another suggested I would be unhappy with the type of work I would “regress” into and yet another predicted that a liquidity crunch was coming and even they were apprehensive of what the year ahead had in store for them. At the time, vanity convinced me they just didn’t want me to leave their employment but, three years later, I see that there was some objectivity in their remarks. The almighty liquidity crunch did come (seemingly to stay) and there has been significantly less M&A/Financing/transactional work than I’d anticipated/had grown accustomed to. Was my departure premature? Not really, but I see what my old boss meant.

My Constitutional Law lecturer, the late Professor JD Ojo, would frequently observe in his classes (and also in his capacity as dean of the faculty) that “the practice of law is for the rich”. We were in our late teens and early twenties at the time and reactions to the statement were varied. Prof Ojo studied for his masters and doctorate degrees at the University of London but wasn’t himself a “wealthy” man by most standards, at least not before the Abdul-Salam/Obasanjo transformation of the wages of academics. Thus, people wondered whether or not he saw the irony in his remark. Others were angry at what they perceived a condemnation to a life in penury, given their humble backgrounds. When it was made mandatory for law students to dress in monochrome with proper footwear and we all protested (at different things, including the cost of new wardrobes), Prof Ojo reminded us “without any apologies” that law is for the rich. I have come to agree with him, in a sense. I will return to this point later.

Given that I haven’t been flying solo for that long yet, is there any advice that I can give to someone considering leaving the nest? Let me try. I won’t get into marketing, networking or business development as I’m assuming every new business owner has some strategy or the other for this at the inception of their business.

1.       When is a good time to quit the old job and fly solo?

People leave big law firms for different reasons. Some are terminated and physically pushed out of the nest. Some grow tired of the monotony. Some find themselves on the cusp of an opportunity and need to be masters of their own time to effectively pursue it. Others are fed up with verbal abuse from their bosses.

It’s important to leave for the right reasons and at the right time. I think the best time to leave is when you can afford to leave: young enough to start a business and, in the event that it fails, still be young enough to be employable; if you have a family, they need to be able to remain comfortable while you find your feet; or you leave when you’re already earning so much money on the side that you’re no longer dependent on your salary (kind of like Lagos and Rivers States re federal allocations).

2.       Perseverance

Unless you’re from a wealthy family, with a wealth of ready connections to people in positions that can dispense quality work, it’s likely your stabilisation period will be fairly tough. This is probably where I agree with my old dean. It is much easier to practice law properly with a safety net(work) of family pedigree and all the perquisites that come with it. Otherwise, you need to keep plugging away at it. Persevere Until Success Happens (*kind of stolen jingo*).

3.       “Dirty Work”

There is a great deal of sleight-of-hand and smoke and mirrors out there. You keep seeing this chap who was called two years after you, yet he’s driving Range Rovers and Jaguars. If he’s not a trust-fund baby, chances are he’s a property wheeler-dealer (big ticket transactions rarely trickle down that low). Now, the purist in me hates showing people round empty houses – that’s an estate agent’s work. But there’s an opportunity cost to being a purist. And, positioning yourself to contend with bigger law firms costs money. Sometimes, therefore, you do what you have to do. Again of course, who you are, who you know and who you’ve come to know are also all very important here.

4.       Be an Authority – Be the “Go-To”

If you’re keen to practice law properly, it’s probably best to be well-renowned in your field of practice before you go solo. Yes, your Partners and the name of their firm attract the work while you’re with them but to survive after you leave them, enough of the big-paying clients had better realise that you’re the brains of the operation. That way, they may come looking for you when you leave the nest.

5.       Keep Improving Yourself/the Business

At some point, if the business doesn’t fail, work will come and you need to have the capacity to deliver at “big law” level if you want to retain the client. Capacity, both in the context of intellectual manpower and of technological hardware. You must personally be ready for that time, as must your business.

6.       Consider Staying in the Nest

The image that hardened my resolve to give self-employment a go was a 10yr+ Senior Associate almost on his knees (figuratively, at least) begging for a bonus from the Partners. And then there was the time a senior lawyer was let go without warning. But for every senior associate that carries on in an antithetical way to your ideal, for every seemingly decent lawyer let go, there are another 3 or 4 who rise through the ranks and eventually make Partner. At the end of the day, there’s no rule that says everyone must own their own law firm. Worth considering.

NB. If any other lawyer flying solo wants to add to this list, please send to rfawole@gmail.com. Contributions will receive proper attribution.

WHAT IS THIS RULE OF LAW?

Jurisprudence, in spite of the trepidation in which law students typically hold it, like my undergrad philosophy electives, was a truly fascinating course for me. I marvelled at how regular human beings like us devoted their time to critical thinking to develop ideas that would develop their countries and, unknown to them at the time, shape global appreciation of ideas of law and the state. The notion of the rule of law came about as a result of the exertions of these early thinkers.

 

When the late Umar Musa Yar’Adua assumed office in 2007, he committed his administration to observing and enshrining the rule of law. The phrase became a mantra during his tenure and especially gained popularity when, unlike his predecessors in office, he immediately ordered security agencies to enforce decisions of election tribunals that delivered adverse rulings against his party. While this was widely celebrated, it led to ‘the rule of law’ becoming synonymous with the government ‘permitting’ adverse tribunal rulings to stand.

 

The rule of law has since become a one-eyed, one-armed and one-legged invalid. Business has carried on as usual, the occasional motorist reportedly continued to be shot by the police for refusing to part with ‘special tolls’ at check-points until they were recently dismantled, high-profile criminal trials go a less-than-usual way, many agencies exceed the scope of their jurisdiction but as long as election tribunal judgements are respected, rule of law watchers continue to give the country a pass mark.

 

So, what did the original framers of the expression mean? More than a meaning, the rule of law is a concept of many parts – no one is above the law; no one can be punished by the state except for a breach of the law and in accordance with the law; agreements must be kept; no branch of government is above the law; no public official may act unilaterally or arbitrarily outside the law. It means the law, with all its constituent procedures, is (or at the very least, should be) supreme.

 

The law is clearly yet to be supreme in Nigeria. It should be impossible for parties, including the government, to unilaterally cancel contracts but this is still complained about fairly regularly. Supremacy of the law should mean that accused persons do not spend three years in detention awaiting trial. It should mean, as well, that powerful politicians and government appointees, no matter how highly placed, obey all administrative and judicial orders; seeking orders from the courts to restrain law enforcement agencies from carrying out their statutory and constitutional functions should be thoroughly decried. It should also mean that the law is predictable and any changes to it are not done haphazardly – unlike here in Nigeria where “laws” or regulations change on the whim of the administrative officer in charge, without notice to the public or actual publication and gazetting the new regulations (see a previous post on that here).

 

The rule of law being supreme also means, however, with relevance to recent events that the law is allowed to take its due course. Currently, the public is baying for the blood of everyone indicted in the report of the Ad Hoc Committee (of the House of Representatives) on the administration of fuel subsidy in Nigeria. Everyone is frustrated at the Attorney-General’s suggestion that prosecutions cannot commence straightaway. The truth, however, is that the proper procedure is for the House to forward its conclusions to the police and other relevant law-enforcement agencies for further investigation. As things stand, if charges are brought based on the House report alone, every single person “fingered” WILL be acquitted. The investigative bodies must be given time to compile evidence on which convictions can be obtained safely (ie that appellate courts will be hard pressed to find grounds for reversal). The court of public opinion and the courts of law are two entirely different propositions and while many “criminals” have been convicted largely on hearsay in the former, securing convictions in the latter is a more technical, more skilled, endeavour.

 

Thus, while it is entirely proper for the public to expect prosecutions it is important that we do not, in our frenzied frustrations with the status quo do more damage than good. The true test of how supreme a belief or concept is held is adherence to it even when doing so is not to one’s immediate advantage. If it is the consensus that upholding the rule of law is integral to our country’s prosperity, we cannot make exceptions for when it should be applied.