LEGAL EXECUTION OF SEARCH WARRANTS AND ILLEGALLY OBTAINED MATERIAL EVIDENCE ADMISSIBILITY

A search warrant constitutes the examination of a person’s body, apartment, premises, office areas, vehicles, aircraft and other such places by a police officer or other categories of law enforcement agencies for the purpose of finding evidence of crime with which to prosecute a suspect or an accused person in a court of competent jurisdiction. This search warrant is given in order to discharge the burden imposed on the prosecution of proving its case beyond reasonable doubt and this provision is captured under section 28 of the police act, section 44(3), 78, 79 and 127 of Criminal Procedure Code (CPC) and Section 150 (1) of the Customs and Excise Management Act.

THE GENERAL RULE IS THAT ANY EVIDENCE PROCURED WITHOUT A SEARCH WARRANT IS ILLEGALLY OBTAINED HOWEVER THERE EXISTS SOME EXCEPTIONS.

1.         Section 28 of the Police Act, Section 1 of the Criminal Procedure Act and Section 44 of the Criminal Procedure Code grant the authority to a Police officer to search the body of a suspect whwnever an arrest is madeespecially If the subject matter of the offence can be immediately found on him.

A search must be done not with an intent to injure or inflict bodily harm. The authority to issue a search warrant is vested in the Magistrate, Justice of peace. Of judge as contained under section 107.

WRONGFUL PROCUREMENT OF A SEARCH WARRANT

mgarba versus Maigoro(1992), Balogun Versus Amubikahu (1989), Ojo versus Lasisi (2003) and UAC Plc versus Sobodu(2006), the courts maintained that the complainant who set in motion investigation, arrest and prosecution of the accused person will be liable for civil liability arising from unlawful arrest, detention and prosecution. Therefore,  it is important that the complainant must be sure of the complaint brought to the police or law enforcement agent otherwise may end up paying huge compensation to the accused person if the prosecution fails to prove its case beyond reasonable doubt leading to  discharge and acquittal of the accused person.

Materials illegally or wrongly obtained in the cause of executing a search warrant are admissible in evidence during trial irrespective of how such evidence is obtained. The implication of this evidence rule is that even if material evidence was obtained by force or fraudulently or even by violating the rights of the accused person shall be admitted in evidence provided it is relevant to the prosecution. In Kuruma versus R, R versus Lecthan (1861), Musa Sadau & Another versus The State, the courts held that illegally obtained piece of evidence is admissible so long it has direct relevance to the case. Section 15 of the Evidence Act 2011 provides for circumstances which the court should consider before admitting piece of evidence obtained illegally or wrongfully. These include; the probative value of the evidence; the importance of the evidence in the proceedings; the nature of the relevant offence, cause of action of the defense and the nature of the subject-matter of the proceeding, the gravity of the impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention; and the difficulty, if any, of obtaining the evidence without propriety or contravention of law.

The above section has brought remarkable innovations into the admissibility of illegally and wrongly obtained material evidence in criminal litigation in Nigeria. It has put final paid to the era of impunity in pre-trail investigation process by stating conditions for which illegally obtained material evidence can be admissible.  In the English case of Elias versus Passmore (1934), it was held that a police officer who obtains evidence illegally may be liable in a civil action. The decision in State versus Sadau is no longer good law in Nigeria. The constitution also provided some rights of the accused person in police custody which has also curtailed the reckless obtaining of evidence in pre-trail process. These rights include; right to remain silent or avoid answering of questions from a police officer until he has consulted a legal practitioner of his own choice under section 35 (3) of the 1999 constitution (As Amended); The right to be informed in writing in the language he understands explaining the grounds of arrest or the nature of offence under Section 35 (2), right to be tried within a reason time under Section 35 (4) (5), right to fair hearing under Section 36 (1), et al.

The accused person also have the right to pubic apology upon a wrongful procurement of warrant of arrest leading to actual arrest and false imprisonment in violation of Section 35 of the 1999 constitution (As Amended). The Court decisions in Agbakoba versus SSS, Giwa versus the State, et al. Search warrants not properly obtained are generally illegal and police officers should ensure that only the authorities empowered to issue warrants are approached. It is trite that where a law enforcement agent in the course of carrying out his duties decides to execute a warrant in a manner inconsistent with laid down procedure or otherwise obtain evidence illegally, he or she will render himself or herself liable in a civil action as was decided in the English case of Elias versus Passmore.

Conclusion

The admissibility of illegally gotten evidence is founded on the notorious provision that relevancy determines admissibility. The law is clear as to the conditions to be considered before accepting illegally gotten evidence and these provisions will be useful in determining the probative value to be attached to such documents.

PATENT LICENSING: FRAND DECLARATION

 INTRODUCTION

Patent is a monopoly right conferred by the Patent Office on an inventor to exploit his invention for a limited period of time.

Patents are predominantly used to protect an invention from being abused by competitors.

WHAT IS ‘PATENT LICENSING’?

A patent licence is an agreement that transfers less than ownership rights in a patent or, which grants certain rights to the licensee. A patent licence can be exclusive or non-exclusive, for a specific field of use or for a specific geographical area. It is common for companies engaged in complex technical fields to enter into dozens of licence agreements associated with the production of a single product. There are four types of patent licenses- compulsory licence, cross-licensing, defensive patent licence and reasonable and nondiscriminatory (FRAND).

WHAT IS FRAND?

FRAND stands for Fair, Reasonable and Non- Discriminatory. It is also known as Reasonable and Non-discriminatory terms (RAND). It is a licensing obligation that is frequently required by standardsetting organizations for members that participate in the standard-setting process. The term FRAND has not been defined. The individual terms are defined as under:

Fair primarily relates to the underlying licensing terms. The term ‘Fair’ means terms which are not anti-competitive and that would not be considered unlawful if imposed by a dominant firm in their relative market.

Reasonable refers mainly to the licensing rates. According to some people, a reasonable licensing rate is a rate charged on licenses which would not result in an unreasonable aggregate rate if all licenses were charged a similar rate.

Non-discriminatory relates to both the terms and the rates included in licensing agreements. As the name suggests this commitment requires that the licensor treats each individual licensee in a similar fashion. This allegiance is included in order to maintain fairness in the competitive market with respect to existing competitors and to ensure potential new entrants are free to enter the market on the same basis.

FRAND requires that holders of essential patent do not discriminate, and do not restrict competition downstream. Licensors must avoid discriminating:

1.      Against and between other technology providers (e.g., by requesting unremunerated grant-backs, discriminating against IP-rich licensees and diminishing innovation incentives and technology competition);

2.      Against and between rival firms in downstream markets (e.g., by refusing to provide reciprocal licenses to rival manufacturers of standardized components or products);

3.      Against and between licensees in downstream markets (e.g., by offering royalty rebates and incentives, particularly when such discrimination is linked to exclusive or preferential supplies - resulting in “primary line” antitrust injury).

FRAND (fair, reasonable and non-discriminatory) licenses allow companies to develop open standards for systems such as 3G mobile networks by sharing information and technology. Standards bodies typically require that companies participating in the development of a standard agree to licence any relevant patents they hold on FRAND terms if their technology is essential to the standard.

STANDARD ORGANIZATIONS

Standard Setting Organizations set common standards for a particular industry in order to ensure compatibility and interoperability of devices manufactured by different companies.

They have rules that govern ownership of patent rights that apply to the standards the organization has adopted. One of the most common rule is that a patent that applies to the standard must be adopted on “ reasonable and non-discriminatory terms” (RAND) or on “fair, reasonable, and nondiscriminatory terms” (FRAND).  The two terms are interchangeable.

The term FRAND is mostly preferred in European countries and the term RAND is preferred in the United States of America. The rules framed by this organization are intended to prevent its members from engaging in licensing abuse based on the monopolistic advantage generated as a result of having their intellectual property rights included in the industry standards. The members of this organization are required to offer FRAND licence to anyone, not necessarily members of the organization.

WHAT IS FRAND DECLARATION?

A FRAND declaration is one of the ways in which the interests are balanced between the patentees of a standards-essential patent and users of technical standards. Standardisation organisations request members which are the patentees of standards-essential patents to ensure that any entity using the technical standard can license the standards-essential patents on fair, reasonable and non-discriminatory (FRAND) terms.

WHAT IS THE LEGAL NATURE OF A FRAND DECLARATION?

Depending on the viewpoint, a FRAND declaration is merely a one sided manifestation of intent with the standardisation organisation; thus, there is debate over the legal relationship between the standards-essential patentee and users of the patent (ie, how to restrict the enforcement of standards-essential patent rights). One school of thought is that a FRAND declaration constitutes acceptance of a third-party beneficiary contract between the standards essential patentee and the standardisation organisation, so that when a user of a technical standard indicates its intention to request the right to use the standards-essential patent under FRAND terms, a licence agreement is automatically concluded between the user and the patentee. In the United States, a 2012 judgment held that a FRAND declaration constituted a third-party beneficiary contract (Microsoft Corp v Motorola Inc, 864 F Supp 2d 1023 (WD Washington 2012)). Another opinion is that a FRAND declaration is only a manifestation of the intention of the standards-essential patentee, and no contract between the user and the patentee is concluded unless some other form of agreement is executed between them. Under this opinion, a restriction on the enforcement of the standards-essential patent would be based on the general principles of the Civil Code of Japan, such as the prohibition of the abuse of rights.

RECENT JUDGMENTS ON FRAND PATENT LICENSES

In June 2012, the Federal Trade Commission (FTC) asked the US International Trade Commission (ITC) to carefully reconsider banning products like the Xbox 360 that allegedly infringe upon patents that are required to be fairly licensed as part of standards agreements. FTC has issued a statement to the ITC in both the Apple vs. Motorola and Motorola vs.Microsoft cases  now pending, saying that it’s concerned a company might make a promise to license a standard-related patent under fair, reasonable, and non-discriminatory (FRAND) terms, and then fight to ban products using those patents as a way to negotiate higher, unfair rates. That’s exactly what Apple and Microsoft claim Motorola is trying to do, but so far they haven’t been successful — Moto won ITC rulings saying the Xbox 360 infringed several FRAND patents on H.264 video encoding and that the iPhone and iPad infringe a FRAND patent on wireless communications.

It has become a serious international issue as companies like Motorola and Samsung rely heavily on their standards-related patents in various lawsuits.

The most talked about lawsuit was the APPLE v. SAMSUNG (2011).

The biggest lawsuit had two smartphones giants, on one side world’s most valuable company Apple Inc. which changed mobile users experience with its iPhone and iPad and on the other the world’s largest mobile phone manufacturer Samsung Electronics.

On April 15, 2011, Apple sued its component supplier Samsung in the United States District Court for the Northern District of California, alleging that several of Samsung’s Android phones and tablets, including the Nexus S, Epic 4G, Galaxy S 4G, and the Samsung Galaxy Tab, infringed on Apple’s intellectual property: its patents, trademarks, user interface and style. Apple’s complaint included specific federal claims for patent infringement, false designation of origin, unfair competition, and trademark infringement, as well as state-level claims for unfair competition, common law trademark infringement, and unjust enrichment. Further, Apple also stated that Samsung had breached its FRAND commitments made on December 14, 1998 and specific FRAND commitments for the two asserted declared essential patents on May 16, 2006 and August 07, 2007, respectively. Also Samsung seeks to enjoin Apple from selling products that support the UMTS standard and by refusing to offer Apple a license to declared-essential patents on FRAND terms.

Samsung challenged the validity of Apple’s patent. But, it failed to prove the same. The nine member jury sided with Apple, deciding that not a single Apple patent was invalid. The jury has ruled that Samsung willfully infringed a number of Apple patents in creating a number of devices. Justice Lucy H. Koh ordered Samsung Electronics Co. Ltd. to pay Apple $1.05 billion in damages.

After winning a battle on the home pitch, Apple is targeting other major Android players like HTC and Google (Motorola). Foss Patent’s recent publication reveals that Apple has made an offer to license certain FRAND, or standard essential, patents in the region, which Motorola is forced to accept in order to avoid breaking antitrust laws. In fact, Google is already investigated by the EU for FRAND patent abuse in the region, which means that it can’t keep refusing a patent license to Apple in hopes of using those FRAND patents as leverage to squeeze out a better settlement with the iPhone maker in the future.

In 2011, the European Commission issued a framework for analyzing FRAND issues. The guidelines issued by the EC explain that FRAND licensing prevents patent-holders from “making the implementation of a standard difficult” by refusing to license, requesting “excessive” fees, or imposing “discriminatory” royalties. Where there are disputes (which are not atypical in determining the reasonableness of royalties), analysis of whether fees are “unfair or unreasonable” is to be based on whether the fees “bear a reasonable relationship” to the patent’s economic value.

TOKYO DISTRICT COURT DECISION RE: SAMSUNG V. APPLE

In this case, Samsung made a FRAND declaration regarding its standards-essential patent for the UMTS standard with the European Telecommunications Standards Institute (ETSI), one of the standardisation organisations that formed the 3G Partnership Project. Specifically, according to the ETSI IP rights policy, Samsung declared that it held patents that were or would be standards essential patents for the UMTS standard, and that it was ready to license irrevocably such standards-essential patent to other parties under FRAND terms. Therefore, in this case it was disputed whether Samsung’s enforcement of standards-essential patent rights should be restricted.

The Tokyo District Court stated that part of the products fell under the scope of Samsung’s patent and adjudicated the disputed point as follows:

In this case, according to the Act on General Rules for the Application of Laws in Japan, the court had to determine whether Samsung had the right to claim damages against Apple under Japanese law, including the Civil Code.

According to the FRAND declaration, Samsung owed an obligation to negotiate in good faith with each entity (whether or not the entity was an ETSI member) that requested a licence for Samsung’s standards-essential patent under FRAND terms. Thus, when Apple sent the letter to Samsung requesting a licence agreement for the three patents on March 4 2012, Samsung and Apple were at the preliminary stage of concluding a licence agreement and were obliged to negotiate In good faith.

In the process of negotiating the licence agreement for Samsung’s standards essential patents, on July 25 2011 Samsung proposed a global non-exclusive licence of its standards-essential patents in accordance with FRAND terms. However, Samsung did not inform Apple of the basis for calculating the licence terms in the proposal. Despite Apple’s repeated requests, Samsung did not provide the necessary information, including the licensing terms that it had agreed with other companies that held licences for the standards-essential patents in question, by which Apple could assess whether the offered terms conformed to FRAND terms. Furthermore, Samsung did not suggest alternative terms and conditions to Apple’s proposal, in which Apple’s basic position and calculation standard for the licence fee were set forth. These facts constituted Samsung’s violation of its obligation to negotiate in good faith with Apple.

Moreover, Samsung maintained its petition for a provisional injunctive order against Apple in order to prohibit the production, import and assignment of the products, and Samsung’s disclosure of its standards essential patent was taken two years after ETSI had adopted Samsung’s patent for the UMTS standard.

Considering the facts mentioned above and the other circumstances of the negotiations between Samsung and Apple, the enforcement of rights to claim for damages by Samsung constituted an abuse of rights, which is prohibited under the Civil Code.

In conclusion, the Tokyo District Court upheld Apple’s claim and rejected Samsung’s right to claim damages from Apple for infringement of Samsung’s standards essential patents. Samsung’s petition for a provisional injunctive order was dismissed for the same reason on the same day as this judgment was issued.

CONCLUSION

Technical standardisation is an important IP strategy. A company that develops new technologies should consider carefully whether to pursue standardisation. In this regard, there are always questions to be answered, such as “What are FRAND terms?” and “What if the owner of a standards-essential patent cannot reach agreement with companies that ask to be granted a licence to the patent?”

Accordingly, there is a possibility that disputes regarding the interpretation of FRAND terms will arise between a standards-essential patentee and users of the technical standard.

The lack of transparency in the patent licensing procedure and the application of FRAND has made it essential for the courts to come out with a harmonized interpretation of FRAND. FRAND obligation places both contractual and anti-trust related limits on the ability of the patent holder to exercise its patent in licensing negotiations, but the actual scope of those constraints is still unclear.

Yinka Olaiya

law firms in nigeria

This is good news for the new wigs that were just called to the Bar and lawyers that are seeking employment into a reputable lawyer firm in Lagos, Portharcourt, Enugu and Abuja, here is the comprehensive list of law firms and their email addresses.

'Alliance Law firm'<vuo@alliancelf.com>;

'Amaechi and Amaechi'<nkirunwogu@hotmail.com>;

 'Austen-Peters'<timi@austen-peters.com>;

'AYODELE OLUGBENGA & CO'<olugbengaruphus@yahoo.com>;

 'E. Edodo Thorpe & Associates'<oluthorpe@yahoo.co.uk>;

'E. Osoka and Co'<lizosoka@yahoo.com>;

'Jackson, Etti and Edu'<folaolusanya@jacksonettiandedu.com>; 'Punuka'<n.dimgba@punuka.com>;

'SPA Ajibade & Co'<bajibade@spaajibade.com>;

 'Udo Udoma & Belo-Osagie'<yinka.edu@uubo.org>;

 'UUBO'<ngozi.agboti@uubo.org>;

 'UUBO'<ebere.uzum@uubo.org>;

'Chief Anthony I. Idigbe (SAN)'<info@punuka.com>;

 'Dr. Myma Belo-Osagie'<myma.belo-osagie@uubo.org>;

 'Mrs. Lillian Ifeoma Esiri'<enquiries@lilianesiriandco.com>;

 'Senator Oladipo Odujinrin'<o.odujinrin@odujinrinadefulu.com>;

 'A.O. ORU & CO'<andreworu@yahoo.com>;

'ABDULLAHI IBRAHIM & CO'<info@abdullahiibrahimco.com>;

 'ABFR & CO.'<abfrco@infoweb.com.ng>;

 'ABRAHAM & CO.'<mail@abraham-law.com>;

'ABUGU & CO. SOLICITORS'<thefirm@abugusolicitors.com>;

'ABUGU & CO. SOLICITORS'<abugusolicitors@yahoo.com>;

'ADEJUMO EKISOLA & CO'<info@AEandELegal.com>;

'ADEKUNLE OMOTOLA & CO.'<adekunleomotola_co@yahoo.com>;

'ADROIT LEX & CO'<adroit_lex@yahoo.com>;

 'AELEX'<lagos@aelex.com>;

'AGABI, SHINABA, OGON & CO.'<agashog@hyperia.com>;

'AINA BLANKSON & CO'<info@ainablankson.com>;

'AJUMOGOBIA & OKEKE'<ao@ajumogobiaokeke.com>;

'AKINLAWON & AJOMO'<akinlawonajomo@yahoo.com>;

'AKINWUNMI & BUSARI'<akinwunmibusari@hyperia.com>;

'AKINWUNMI & BUSARI 2'<aandb@hyperia.com>;

'ALIYU UMARU & PARTNERS'<aliyusan@yahoo.co.uk>;

'ALUKO & OYEBODE'<olubunmi.fayokun@aluko-oyebode.com>;

'AMAECHI & AMAECHI'<amaechi_amaechilawfirm@yahoo.com>;

 'ANGA & EMUWA'<angaemuwa@aol.com>;

'ANYIAM OSIGWE & CO'<info@anyiam-osigwe.com>;

'ASSOCIATED ATTORNEYS'<info@associated-attorneys.com>;

'AUSTEN PETERS & CO'<mail@austen-peters.com>;

'AYO KASUMU & CO'<info@ayo-kasumu.com>;

'AYODELE OLUGBENGA & CO'<lexafando@yahoo.com>;

'BABALAKIN & CO.'<wakoni@babalakinandco.com>;

 'BABJIDE KOKU & CO'<info@bkclegal.com>;

 'BABS A. ADEJUWON & CO.'<babs@babsadejuwon.com>;

'BANDELE AIKU'<aiku@skannet.com>; 'BANWO & IGHODALO'<banwigho@linkserve.com.ng>; 'BAYO OJO & CO'<info@bayoojoandco.com>; 'BAYO OSIPITAN & CO'<bayoosipitanandco@yahoo.com>; 'BEN ONUORA & CO'<benonuora@benchambers.com>; 'BEN ONUORA & CO 2'<ben-onuora@yahoo.com>; 'BOLA AJIBOLA & CO'<bolaajibola@yahoo.co.uk>; 'C. V. C. IHEKWEAZU & Co'<chikwemchamber@yahoo.com>; 'CHIBUZO N. ZIGGY AZIKE & CO.'<ziggyschambers@yahoo.com>; 'CHIEF SOLO AKUMA \(SAN\) & ASSOCIATES'<soloakumah@yahoo.com>; 'CHRIS OGUNBANJO & CO'<abi.ogunbanjo@chrisogunbanjo.com>; 'CHUMA ANOSIKE & CO'<info@chumanco.com>; 'CONSOLEX'<consolex@alpha.linkserve.com>; 'DE LAW CHAMBERS 1'<kraji@delawchambers.com>; 'DE LAW CHAMBERS 2'<kamaraji123@yahoo.com>; 'DIKKO & MOHMOUD'<abmahmoud@compuserve.com>; 'DOROTHY UFOT & CO'<dufot@infoweb.com.ng>; 'F. O. FAGBOHUNGBE & CO'<fof@fof-law.com>; 'FIDELIS ODITAH & CO'<info@oditah.com>; 'FIDELIS ODITAH & CO 2'<fidelisoditah@oditah.com>; 'FOUNDATION CHAMBERS'<info@foundationchambers.com>; 'G. ELIAS & CO'<gelias@gelias.com>; 'G. O. EZE & CO'<deogratiachambers@yahoo.com>; 'GAB-ANNA CHAMBERS'<macdonaldomelemen@yahoo.com>; 'GEORGE ETOMI & PARTNERS'<info@geplaw.com>; 'GIWA OSAGIE & Co'<giwa-osagie@hyperia.com>; 'HERMON \(BARRIESTERS & SOLICITORS\)'<ben@hermonlaw.com>; 'HERMON \(BARRIESTERS & SOLICITORS\) 1'<hermon@hermonlaw.com>; 'J. U. K. IGWE'S CHAMBERS'<jukigwe@yahoo.com>; 'J.K. GADZAMA \(SAN\) & PARTNERS'<gadzama@gazama.com>; 'JACKSON ETTI & EDU '<jacksonettiedu@jacksonettiandedu.com>; 'JAIYE AGORO, SALAMI & CO.'<tokunbo@jaiyeagoro.com>; 'KAYODE & Co'<enquiries@kayodelawchambers.com>; 'KAYODE & Co'<kaylaw@yahoo.com>; 'KEHINDE A. O. SIMPSON & Co'<kola_awodein@yahoo.com>; 'KEHINDE A. O. SIMPSON & Co'<ka@kolaawodeinandco.com>; 'KOYA & KUTI SOLICITORS'<koyakuti@alpha.linkserve.com>; 'LAYONU, OYELEKE & OKWUDIAFOR'<mail@layonu-oyeleke.com>; 'LEGAL PARTNERSHIP CONSULT'<info@legalpartnershipgroup.net>; 'LEGAL RESOURCES ALLIANCE'<tunayeni@nova.net.ng>; 'LEGAL X-RAYS'<omomsomeuloghobui@resourcesandtrust.com>; 'LIBRA LAW OFFICE'<info@libralawoffice.com>; <"'MARINE PARTNERS'">; 'MARINE PARTNERS'<info@marinepartnersng.com>; 'MBANUGU UDENZE & CO'<mbanugoudenze@yahoo.com>; 'NDOMA-EGBA EBIRI & Co.'<ndomaegbaebiri@yahoo.com>; 'NNENNA EJEKAM ASSOCIATES'<nnennaejekam@yahoo.com>; 'O. EDODO, THORPE & ASSOCIATES'<oritsematosan2002@yahoo.com>; 'O. EDODO, THORPE & ASSOCIATES'<oluthorpe@yahoo.com>; <"'O.S. EPHRAIM OLUWANUGA & CO'">; 'ODUJINRIN & ADEFULU & CO.'<odade@infoweb.abs.net>; 'OLAJIDE OYEWOLE & CO'<mail@oyewoleandco.com>; 'OLANIWUN AJAYI LP'<lawyers@olaniwunajayi.net>; 'OLISA AGBAKOBA & ASSOCIATES'<olisa@agbakoba-associates.com>; 'OLOLADE & CO.'<ololadecolaw@yahoo.com>; 'OLUDOTUN LAMPEJO & Co'<lampejo@hotmail.com>; 'OLUROTIMI WILLIAMS & Co.'<olurotimi.williams@yahoo.co.uk>; 'OLUSOLA IBIDAPO OBE & CO.'<olusolaibidapoobe@hotmail.com>; 'PAC SOLICITORS'<pacsolicitors@vgccl.net>; 'PHILLIP NDUBUISI UMEH & Co'<phimeh@yahoo.com>; 'PUNUKA ATTORNEYS & SOLICITORS'<a.idigbe@punuka.com>; 'S.P.A AJIBADE & Co'<spaaco@spaajibade.com>; 'S.P.A AJIBADE & Co'<spaaco@yahoo.co.uk>; 'SOLOLA & AKPANA'<awjumbo@sololaakpana.com>; 'SOLOLA & AKPANA'<iakpana@sololaakpana.com>; 'SOLOLA & AKPANA'<info@sololaakpana.com>; 'SUPO ATI-JOHN & Co.'<supoatijohn@yahoo.co.uk>; 'T. C. MBANEFO & Co.'<tcmbanefo@infoweb.abs.com>; 'T. J. ONOMIGBO OKPOKO'<onomigbo1@yahoo.co.uk>; 'T. J. ONOMIGBO OKPOKO'<lag@okpokolawpractice.com>; 'TAIWO ADEOLUWA & ASSOCIATES'<tadeoluwa@yahoo.com>; 'TAIWO O. EGERTON-SHYNGLE & CO.'<tegertonshyngle@yahoo.com>; 'TAYO TIWO & CO.'<tayotiwochambers@yahoo.co.uk>; 'TEMPLARS'<info@templars-law.com>; 'THE CITY LAW ASSOCIATES'<citylaw@hyperia.com>; 'THE LAW CREST'<info@thelawcrest.com>; 'UDO UDOMA & BELO-OSAGIE'<uubo@uubo.org>; 'WALI-UWAIS & Co'<info@wali-uwais.com>; 'YUSUF O. ALI & CO'<fika@skannet.com>; 'ZEAL FIRST FRUITS CHAMBERS'<zeal_firstfrruitschambers@yahoo.com>; 'ZIK CHUKA OBI & CO'<zikobi@hyperia.com>; 'ZIK CHUKA OBI & Co.'<zedceeobi@googlemail.com>; <aayeni@aelex.com>; <oladele@alliancelf.com>; <aodeleye@spaajibade.com>; <eihebie@spaajibade.com>

NJC Meets Thursday To Appoint New Chief Justice of Nigeria

The current CJN, Justice Aloma Mukhtar, who is the first female and the 13th indigenous CJN, will retire on Nov 20 upon attaining the mandatory retirement age of 70.

Barring any last minute change, Mukhtar is likely to be succeeded by Justice Mahmud Mohammed, who is currently the next most senior Justice of the Supreme Court.

In fulfillment of constitutional provisions on the appointment of the CJN, the Federal Judicial Service Commission, FJSC had met on October 23 and submitted a list of the next three most senior Justices of the Supreme Court to the NJC.

The NJC is expected to meet on Thursday to recommend one of those on the list to President Goodluck Jonathan.

Top on the FJSC’s recommended list is Justice Mohammed, who is currently the Deputy Chairman of the NJC. The CJN is the Chairman of both the NJC and the FJSC.

Others on the list are said to be two other Justices of the Supreme Court in order of seniority, Justices Walter Onnoghen and Tanko Muhammad.

Usually, the most senior among those recommended by the FJSC, and who is next to the outgoing CJN is appointed the new Chief Justice by the President.

The President’s choice often requires approval by the Senate in line with section 231(1) of the Constitution.

A source at the FJSC, who is familiar with the processes of appointing the nation’s CJN, confirmed the development to Channels Television correspondent on Sunday.

“By sending additional two names to accompany the next most senior Justice of the Supreme Court is just to fulfil all righteousness. It is almost certain that the NJC at its meeting on Thursday will recommend Justice Mohammed to the President and the President will then appoint him as the next CJN,” the source said.

Paragraph 21(a) and (a) (i) of the Third Schedule of the Constitution of the Federal Republic of Nigeria, which guides the appointment of the CJN, Justices/judges and heads of various federal courts, says,

“The National Judicial Council shall have power to:

“Recommend to the President from among the list of persons submitted to it by – the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal and the Chief Judge and judges of the Federal High Court.”

LPPC Restores Aribisala’s SAN Rank

Legal Practitioners Privileges Committee (LPPC) has lifted the suspension placed on Chief A.A. Aribisala as a Senior Advocate of Nigeria (SAN).

On February 26, 2013 LPPCHE suspended Aribisala  from further use of the rank of SAN based on two petitions received by the LPPC on allegations of flagrant breach of professional ethics and professional misconduct.

A statement by Olorundahunsi who is also the Secretary of LPPC said the LLPC at its meeting on Monday,  decided to lift  Aribisala’s suspension, after consideration of all material facts including  notices of withdrawal/discontinuance and subsequent letter of withdrawal of petition and terms of settlement.

“Pursuant to the committee’s decision, Aribisala has been restored to the rank of SAN with effect from October 27.

The committee also said that any future act by Aribisala that ran foul of the LPPC rule would attract a stiffer sanction.

President Goodluck Jonathan has approved the appointment of Justice Chima Centus Nweze as a Justice of the Supreme Court after his confirmation by  the Senate.

The appointment is in  accordance with the provisions of Section 231 (2) of the 1999 constitution.

A statement issued by the Chief Registrar of the Supreme Court, Sunday Olorundahunsi, said the  Chief Justice of Nigeria, Justice Mariam Aloma Mukhtar, would today  swear in Justice Nweze.

Until his present appointment, Justice Nweze, who hails from Enugu State, was a justice of the Court of Appeal, Calabar Division.

He would replace Justice Christopher Chukwuma-Enneh who retired as a justice of the Supreme Court last April after attaining mandatory retirement age of 70 years.

‘Regulatory Efficiency, Legal Protections Key to Supporting Entrepreneurs’

A new World Bank Group report has revealed that in the past year, governments around the world continued to implement broad range of reforms aimed at improving the regulatory environment for local entrepreneurs.

Economies that both improve the efficiency of regulatory procedures and strengthen the legal institutions that support enterprise, trade, and exchange are better able to facilitate growth and development, the report unveiled in Washington D.C yesterday stated.

Titled: “Doing Business 2015: Going BeyondEfficiency,” the report also revealed that local entrepreneurs in 123 economies saw improvements in their regulatory environment in the past year.

From June 2013 to June 2014, the report, which covered 189 economies worldwide, documented 230 business reforms—with 145 aimed at reducing the complexity and cost of complying with business regulations, and 85 aimed at strengthening legal institutions.

According to the report, sub-Saharan Africa accounted for the largest number of reforms.

“An economy’s success or failure depends on many variables; among these, often overlooked, are the nuts and bolts that facilitate enterprise and business,” Senior Vice President and Chief Economist of the World Bank, Kaushik Basu said.

Basu added: “By this I mean the regulations that determine how easy it is to start a business, the speed and efficiency with which contracts are enforced, the paperwork needed for trade, and so on. Making improvements in these regulations is virtually costless, but it can play a transformative role in promoting growth and development.”

Since its inception, the “Doing Business” has captured more than 2,400 regulatory reforms making it easier to do business. These efforts have led to tangible results for small businesses all over the world.

For example, 10 years ago, importing key inputs from overseas took 48 days for a Colombian entrepreneur; now, it takes only 13 days—the same as for an entrepreneur in Portugal.

Similarly, starting a business took 57 days for a budding entrepreneur in Senegal 10 years ago; now that process requires just six days—just one more day than in Norway.

And in India, a little over a decade ago, an entrepreneur seeking a loan to grow his business would have had little luck, because financialinstitutions lacked access to information systems to assess creditworthiness.

“Today, thanks to the creation and expansion of a national credit bureau offering credit scores and coverage on par with those in some high-income economies, a small business in India with a good financial history is more likely to get credit and hire more workers,” the report added.

Hearing in Fani-Kayode’s no-case submission stalled

Hearing in the no-case submission made by a former Minister of Aviation, Femi Fani-Kayode, was stalled on Tuesday due the absence of Justice Rita Ofili-Ajumogobia of the Federal High Court, Lagos.

The case was adjourned till November 11 but it was not clear why the judge did not sit.

Fani-Kayode, who was in court, left at about 9.30am after he was told the hearing would not hold.

The court registrars only informed parties that the suit had been slated for a further date.

The former minister was tried on an amended 40-count charge of laundering about N100, 219,500 by paying them into his personal account through an associate.

The Economic and Financial Crimes Commission (EFCC) said on or about November 22, 2006, Fani-Kayode made a financial transaction exceeding N500,000, which was not done through a financial institution.

It said he accepted cash payment of N10 million, which was carried in cash to First Inland Bank, Plc, Apapa Branch (now First City Monument Bank Plc) through his close associate, Mark Saviour Ndifreke, said to be at large.

The money, EFCC alleged, was put into Fani-Kayode’s investment account for 90 days, an offence contrary to Section 15(1) (d) and punishable under Section 15(2)(b) of the Money Laundering (Prohibition) Act, 2004.

Other counts stated that he carried out some of the transactions exceeding N500,000 while also serving as Minister of Culture and Tourism. Ndifreke was also said to have helped him pay the money into his personal account.

He allegedly committed the offences between August 2006 and May 2007.

Fraudsters get 21 years jail for N30m scam

A Federal High Court sitting in Kano state on Tuesday, convicted and sentenced two men, Mohammed Mansur and Mohammed Auwal, to 21 years imprisonment after they pleaded guilty to three counts of conspiracy and obtaining money by false pretences preferred against them by the Economic and Financial Crimes Commission.

The commission said in a statement on Tuesday by its spokesman, Mr. Wilson Uwujaren, that the convicts were arraigned on July 9, 2013 for conspiracy and an attempt to defraud one Alhaji Auwal Ayagi under the guise of procuring plots of land from him for Visafone Communications Limited.

According to the charge, they had claimed to be agents of Visafone Communications Limited, located at Zoo Road, Kano outlet, and had been assigned by their company to help purchase plots of land from the complainant.

The deal was to be worth N30m, for which the duo demanded that 10 per cent be paid into their bank accounts as commission. Upon arraignment they pleaded not guilty but, in the course of trial, after the prosecution had called one witness, the two men dramatically changed their plea and owned up to their crime.

Consequently, the prosecuting counsel, Idris Haruna, urged the court to convict them accordingly.

“Justice Fatu Riman of the Federal High Court Kano consequently convicted the accused persons and sentenced them to 21 years imprisonment each without the option of fine. The sentence of the first convict who has been in prison custody since arraignment for failure to meet his bail terms is to start from the date of arraignment,” the statement read.

Court jails provost five years for fraud

A Zamfara State High Court in Gusau has sentenced the Acting Provost of the College of Education (Technical), Gusau, Zamfara State, Dr. Bello Ahmed, to five years in jail for collecting illegal allowance from the institution.

The Independent Corrupt Practices and Other Related Offences Commission had arraigned Ahmed for collecting double Duty Tour Allowance from the college for an official trip to attend a board meeting of the Joint Admissions and Matriculation Board, while also collecting an equal amount as DTA from JAMB, including sitting allowances, all totalling N385,000.00.

This was contained in a statement signed by the ICPC Resident Consultant, Mr. Folu Olamiti, on Tuesday.

The ICPC warned public servants to desist from collecting double DTA from their agencies and also receiving or demanding same in cash or facilities.

The ICPC said the warning was necessary after it secured the conviction of Ahmed at the High Court of Justice, Gusau.

The ICPC warned public servants to desist from conferring unfair advantage on themselves when attending meetings or during monitoring duties.

The anti-graft commission said such an abuse was punishable under Section 19 of the ICPC Act, 2000. The section states that, “Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or associate of the public officer or any public officer shall be guilty of an offence and shall, on conviction, be liable to imprisonment of five years without option of fine.”

The ICPC, Olamiti stated, gave the warning because it learnt that many public servants   collected double DTA from their agencies and also received or demand same in cash or facilities from the agencies being visited.

The statement partly read, “Public servants should learn from the conviction of Dr. Shallah Ahmed. He was accused of having collected DTA from the college for an official trip to attend a board meeting of the JAMB while also collecting an equal amount as DTA from JAMB, including sitting allowances; all totalling N385,000.00.”

The Rule of Law is Universal

Shinzo Abe, the Prime Minister of Japan opened this year's IBA Annual Conference by emphasising that the international community must work together to support the rule of law. He said that the term ‘rule of law’ has its origin in Western civilisation but that the idea is universal and by no means limited to the West, as its concept is also embedded in the spiritual traditions of many Asian countries. The reason he noted, dates back to ancient times well over a thousand years ago when similar concepts to the ‘rule of law’ were already in existence. The ‘rule of law’ is universal he said and at its root is always the warm and caring heart so the rule is therefore imbued with a deep love of humanity. He further added that the law represents the morals and norms of society, created through consensus among people who work together and are bound by their shared love of humanity and that in all human societies there is always the law and power is always the servant of the law. Interestingly, that statement might be considered the reverse case in certain jurisdictions today.

Prior to the 20th century, violence had yet to be universally condemned in the international community, with wars and oppressive colonial rule accepted as part of the norm. It was only in the mid-20th century that war came to be condemned and a new international community was created based on the charter of the United Nations. It was therefore unsurprisingly in the same century that nearly all former colonies around the world achieved their independence.

Japan Abe said is engaged in broad diplomatic efforts that seek to realise the rule of law in the international community by supporting the development of legal systems in other countries, mainly on the Asian continent. These efforts have not been limited to government ministries and agencies such as the Ministry of Justice, Foreign Affairs and the Japanese International Cooperation Agency but have truly been an 'all Japan effort’. Furthermore Japan isparticularlyparticipating in international efforts to aid women striving to gain further skills and also in the protection and promotion of women’s rights.

On April 1 2014, the Convention on the Civil Aspects of International Child Abduction (The Hague Convention) entered into force in Japan and the country is actively involved in initiatives to resolve the issues of child removal, in accordance with international rules. The Prime Minister further emphasised his country's commitment to democracy, basic human rights and the rule of law which he said they are purposely engaged in, with strenuous efforts being made to develop attorneys capable of playing a role on the front line of the international legal community, even as he stressed that he would like Japan to continue to work to establish and further strengthen the rule of law in the international community.

Shinzo Abe in conclusion said that the abiding lesson we can draw from the experiences of the 20th century is surely the importance of the rule of law which represents the rule for democracy, basic human rights and peaceful conflict resolution. He further added that together with the members of the IBA and respective governments, should let the powers that be exercise their leadershipwisely as they seek to establish the universal ‘rule of law’ on this earth.

The IBA is Committed to Upholding the Rule of Law Worldwide 

Their Imperial Majesties Emperor Akhito and Empress Michiko of Japan completed the high–profile line up that opened the IBA Annual Conference last Sunday 19th October. This was the very first IBA Annual Conference attended by the host country’s Head of State and Prime Minister and as such signified the elevated level of  importance and respect placed on the legal profession in Japan. As the local newspaper reporters covering the opening ceremony confirmed, their Majesties are not seen out that frequently these days. The IBA President Mr. Michael Reynolds delivered part of his speech in excellent Japanese in welcoming his special guests and the 6,300 delegates from around the world.  He stated that this conference was the largest ever in the Asia Pacific region and further added that the IBA had especially focused this year on emerging markets, with the  MINT countries (Mexico, Indonesia, Nigeria and Turkey) being  especially recognised as increasingly important economies on the world's stage and that the IBA had particularly encouraged lawyers from these countries to be in Tokyo to benefit from the business  opportunities on offer and the international contacts they willassuredly make. He additionally highlighted the IBA’s efforts in Myanmar and Cuba. In Myanmar the IBA is helping lawyers establish an independent bar association and Mr. Reynolds went on to quote Aung San Suu Kyi, a Burmese opposition politician of world renown and chairperson of the National League for Democracy, who at an event in Naypyidaw, Burma's capital, said that 'a country cannot have economic development without the establishment of the rule of law, and that cannot happen without a nationwide independent bar association.' The IBA president then talked about his meeting with Aung San Suu Kyi where she told him how the IBA could help the cause of the rule of law and the legal profession which has suffered so grievously under 40 years of military dictatorship during which time much of the legal infrastructure of the country has been defaced. As an unfortunate result, she felt, young students had little or no wish to become lawyers. Expectedly, since then the IBA has been especially supportive, providing material assistance, training lawyers and judges and now most importantly, it is providing step by step assistance in setting up an independent national bar association in Burma.

The IBA's support has also been extended to Cuba now that limited economic reforms are taking place in the country and as a direct result of Mr. Reynolds' visit to Havana, Cuba's capital, early in the year the IBA has reached out to lawyers’ organisations in Cuba to help them reconnect with and re-integrate into the international legal community.

IBA President Reynolds also confirmed the launching of two presidential task forces, the first being on Human Trafficking, addressing the appalling problem and degrading menace of this form of modern slavery and investigating how the law can be changed to ensure that the traffickers are held suitably accountable and their victims similarly empowered through better access to justice. The other task force, on Climate Change, Justice and Human Rights, brings together leading experts and practitioners in the fields of environmental law and human rights. A comprehensive report has now been produced and was presented at a showcase session, with presentations by Al Gore, former US Vice President and Mary Robinson former President of Ireland and a UN Special Envoy for climate change who inspired the launch of the task force two years ago.

The IBA, as was often stated, is resolutely committed to upholding the rule of law worldwide by working with many of the most gifted, internationally minded lawyers to improve legal systems across the globe and work with legislative bodies to elevate standards of practice. Since 2008 the IBA has committed $8 million from its reserves to this very cause. Mr. Reynolds reiterated, quite aptly, that without an independent Bar Association there can be no rule of law. This we know too well, coming from a jurisdiction such as ours.
In closing, Mr. Reynolds shared something Nelson Mandela had said about that difficult journey that lay aheadwhich he felt could be a guiding light to us all: "I have walked that long road to freedom. I have tried not to falter; I have made missteps along the way but I have discovered the secret that after climbing a great hill, one only finds that there are many more hills to climb. I have taken a moment here to rest, to steal a view of the glorious vista that surrounds me, to look back on the distance I have come. But I can rest only for a moment, for with freedom comes responsibilities, and I dare not linger, for my long walk is not yet ended.”