Nigeria's historical need: Constitutional Amendment or Replacement?

After being willed into existence from Lord Lugard and Miss Shaw's colonial laboratory of artificial insemination, Nigeria has battled issues that concern her existence, one of which concerns constitutional matters. This piece thus seeks to explain what Nigeria needs as pertains her constitution- a total overhaul birthing a new constitution, or a facial rebranding of the former. Gabriel L. Negretto in his work on Latin America, (In Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America) confirms that replacement and amendment are two substantively different means of constitutional transformation. Without compariaon, no doubt, Nigeria, fusion in and out of different republics has involved either of these means of constitutional transformation. How the dynamics of time affects our stance and choice for the future hence comes to play.

image source: pexels

Like Equity to common law, Constitutional Amendment is a phrase to mean "a modification of the constitution of a nation or state.". Similarly, Constitutional replacement means a total look different from the existing body of rules. S9, 1999 CFRN deals with the process by which the constitution can be amended depending on the part of the constitution that is to be altered. There is a procedure for four-fifth majority of each member of the House of Assembly, stringent for alteration. The other procedure covers a two-third majority, and at least 24 State Houses of Assembly in Nigeria. Then, the President gives an assent.

 

Read: The Legal Side to Understanding Company Liquidation

 

The saying that there is no perfect Government structure or constitution is that such does not operate itself but by human beings that should have the sense of what is good or bad and judgement between right and wrong. Constitutional amendment is not a piecemeal exercise undertaken in each term of Government. Where you cannot bring about a brand new constitution, you carry out a holistic amendment. Analysts have blamed the People's Democratic Party (PDP) that controlled the Federal Government since May 1999 on the emergence of a new constitution, the means and machinery to have carried these, as they are today, were abundant in the country.

In constitutional amendment, it will be proper to touch areas like religion, properly define it and what it accommodates. Also, Government Structure should also shift emphasis from too much administration to direct means of production, clearly defining areas of responsibility of the tiers; minimised duplicity of function but what the Federal Government can delegate to Local Governments in the exclusive, concurrent and residual lists. The constitution should also adopt a Rotational Presidency system cut through regions, ethnics and religions to bridge discontent in the hearts off citizens

A restructure of the Police is highly essential. The current centralised system with one Inspector General at the national should change and positive policies be effected. State Government area Police should not be contemplated. The Governor and hierarchy of the State will covert the Police as their private army against their opponents. The potential abuse is too much to ignore. 

Generally, the immunity clause in the Constitution that covers the President and Governors should be edited. Also a four year term is enough for honest, serious and competent leaders to achieve results. A re-election should be based on a standard of performance. Again, the number of Traditional Rulers in Nigeria is about thrice that of the members of the National Assembly. Traditional Rulers should not be accorded constitutional recognition as it brings them to conflict with the secular society leading to their replacement with elected Mayors. Some Traditional Rulers do not have or maintain the tradition of succession by  hereditary. Some are only appointed- kings are born. In the northern Nigeria, the Emirs double as Traditional Rulers and heads of religious bodies. We do not want to maintain feudalism in dilution and abreast of democracy. Traditional Rulers are better recognised within their localities.

We should at this stage be able to bring about a new constitution or carry out a holistic amendment. Truth remains still that if a constitution is properly amended, there may be little or no need for a new one. However, If either of them comes forth, it should only be reviewed at specific intervals, say per 10 years. The National Assembly needs to reduce its annual vacation from six to three weeks, consolidate and streamline its operation in order to minimise cost. 

Constitutions are likely replaced when constitutional crises are frequent and political actors lack capacity to implement changes by amendments or judicial interpretation, or when a constitutional regime has a power-concentrating design. Arguably, the frequency of amendments depends on the length, detail of the constitution and the interaction between the rigidity of the amendment procedure and the fragmentised party systems. By normative implications of this analysis, constitutional amendments in Nigeria is long overdue. This is because Nigeria has pulled through all of these.

Conclusively, whether it is the case of constitution amendment or replacement in Nigeria, the fact still remains that the evil in the system would not permit true functionality of the process. For example, the commendable strides of the Bukola-Saraki led senate once mentioned certain clauses for amendment, ranging from Devolution of powers, the land use Act, affirmation action for women and state creation boundary adjustment amongst others. These were frustrated by the ethnic, political and religious interests of the law makers as well as a lack of understanding of the implications of some of these clauses if they are left untouched. There is the failure of the Senate, but then a new constitution would be appreciated.

Black Panther Versus Ghana: The Wakanda Infringement on Intellectual Property through Traditional Knowledge

WIPO defines traditional knowledge as " tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.“ The term, "tradition-based" in this case refers to creations, innovations, and cultural expression which have been transmitted from generation to generation. Traditional Knowlede is the part of cultural identity of indigenous communities. It provides the ways by which human society can survive in current hostile environment. Intertwined within practical solution, they transmit history, beliefs, aesthetics, ethics and traditions of particular people

Traditional Knowledge embraces traditional cultural expressions within its ambit, and includes distinctive signs and symbols associated with traditional knowledge such as information on the use of biological and other medical treatment, literature, dance, folk lore, songs, Tales, Designs, Handicraft, Ceremonies and many other artistic expressions. However Traditional Cultural Expressions may be considered as the forms in which traditional culture is expressed which form part of the identity and heritage of a traditional or indigenous community which are passed down from generation to generation.

TK comprises of knowledge which has been developed in the past but which continues to be developed. TK is not static, it evolves and generates new information as a result of improvement to changing circumstances

 The context of TK varies differently, TK maybe codified i.e formalised for example Textile designs. A great part of TK is non-codified such as folk, indigenous medicine which is based on trial and error and to successive generations through oral tradition. TK maybe possessed by individuals by some members of a group e.g healing practices and rituals and it maybe possessed by all members of a group e.g the knowledge on herbal home remedies which is held by millions of elders

Why Should Traditional Knowledge be Protected?

⦁    The loss of the life style of their traditional knowledge 
⦁    Lack of respect for traditional knowledge and the holders of traditional knowledge
⦁    The misappropriation of traditional knowledge.
⦁    Equity consideration
⦁    Conservation of the environment, biodiversity and sustainable agricultural practices
⦁     To raise the profile of the knowledge and the people entrusted in it both within and outside the communities
⦁    Prevention of appropriation by unauthorized parties or avoiding "bio-piracy" 

Benefits of Protecting Traditional Knowledge

Traditional Knowledge helps to. As a result, traditional knowledge:

• recognises the knowledge, innovations, and practice of indigenous and local community around the world.
• reflects community interest as some community depends on their traditional knowledge for survival.
• encourages preservation of knowledge and practice orally passed from one generation to another in a locality.
  

How did Black Panther Infringe on the Kente as a kind of Traditional Knowledge
⦁    Is the fabric a traditional knowledge?
⦁    How was the fabric used and what was it used for?
⦁    How has its usage contributed to infringement?
⦁    Addressing divergent perspectives towards TK infringement.

Using a traditional knowledge, belonging to a distinct ethnic group or a particular country is normally not an infringement; Unless it contains 3 essential elements that  if at least, one isn’t followed,  vitiates (nullifies) the extent to which it was being used. They are:

• Consent/ Permission
• Credit
• Compensation 

Section 63 of The Copyright Act empowers the Ghana  National Folklore Board, (a body under Ministry of Culture and Tourism)  “to preserve and monitor the use of expressions of folklore in the Republic. Also, anyone who intends to use folklore for any purpose, other than as permitted. Under section 19 of this Act (which covers permission for the use of kente by individuals and for public interests purposes such as training, education, news reporting etc.), is required to apply to the Board for permission in the prescribed form and the person shall pay a fee that the Board may determine”.

Being the fact that the Fabric is a Traditional Cultural Expression (TCE) under folklore; These Conclusions could be drawn as:

• Tchalla, the main character wore it.
• It was for adaptation in public domain and for commercial purposes
• No permission sought for the use from the Ghanaian National Folklore Board
• No credit given to the Ghana people especially Ashante and ewe tribe in particular
• Neither was Ghana compensated after the bid to gain consent and credit had been exhausted.
  

Is the Fabric a Traditional Knowledge?

Traditional knowledge present respect, power and responsibility. The dress has to be earned, gifted to a leader in whom the community has placed their trust. When it becomes a cheap commodity anyone can buy if not; all of its cultural expressions. The Scope of TK is so wide that it covers folklores, Innovations ,Agricultural patterns, etc. 

Section 76 of the Ghana Copyright Act provides on "folklore" meaning 

“The literary, artistic and scientific expressions belonging  to the cultural heritage of Ghana which are created, preserved and  developed by ethnic communities of Ghana or by an unidentified Ghanaian author, and includes kente, and adinkra designs, where  the author of the designs are not known, and any similar work  designated under this Act to be works of folklore;"

Thus, by implication, Kente Design is a  Folklore .

The Use of the Kente Fabric in Black Panther

The movie used popular Ghanaian designs like kente which T’Challa, the Black Panther wears in one of the scenes. Kente is made by a kind of strip-weaving, which features distinctive designs and colours. It is usually associated with wealth and celebration. The Kente clothe is produced by two ethnic groups in Ghana - the Asante and the Ewe. Kente is also protected as “folklore” under Ghana’s Copyright Act 2005 with the rights vested in the President on behalf of the people of Ghana." - (IPKitten)

As for its usage, it was used on a commercial large scale purpose and adaptation in public domain; with the purpose of making profit .This was seen in its successful record sales in box office

Read: The Legal Side to Understanding Company Liquidation

Is a traditional knowledge usable for commercial purposes and public communication and adaptation?
⦁    Was the traditional knowledge used for reasons in section 19?
⦁    Was there due permission of use applied for and granted  by the Ghana National Folklore Board?
⦁    The Ghana National Folklore Board, which is under the Ministry of Tourism, Arts and Culture is empowered by section 63 to preserve and monitor the use of expressions of folklore in the Republic.
⦁    Section 19 of this Act covers permission for the use of kente by individuals and for public interests purposes such as training, education, news reporting etc.
⦁    Section 4 provides for kente and other expressions of folklore from reproduction, communication to the public, adaptation and other transformation.
What of Section 19 (f) of the Ghanaian Copyright Act ?
(f)  the reproduction of works of art or architecture in an audio-visual  work for cinema or television or in a broadcast by television and the communication to the public of any of those works of art or architecture if those works are:
        (i)  permanently located in a place where they can be viewed by the public, or
       (ii)     included in an audio-visual work for cinema or television only by way of background or as incidental to essential matters represented,

Conclusion

It is obvious from all these that the use of the kente design and fabric is an infringement on the indigenous and traditional knowledge of the people of Ghana. Generally, traditional knowledge should be protected since it's the heritage of a particular community. It shouldn't be seen as falling in the public domain. This is also unacceptable because knowledge is not rendered traditional due to antiquity but due to the fact that it has been developed, sustained and passed on within a traditional community, and is passed between generations.

Prior informed Consent must be obtained and there must be proper recognition of the rights of the original traditional knowledge holders. Also, government in each jurisdiction should put measures in place to prevent the unauthorized acquisition of rights by third parties over traditional knowledge. This can be done through a sui generis system of protection.

⦁     Recognition of value and promotion of respect for traditional knowledge systems.
⦁     Misappropriation of traditional knowledge and other unfair and inequitable uses.
⦁     Protection of tradition based creativity and innovation- to ensure preservation of traditional practices and cultures
⦁    Support of traditional knowledge systems and empowerment of traditional knowledge holders.- government, NGOs should support both financially and morally to ensure development. TK can help solve unsolved problems and help in advancement of the society
⦁     Promotion of equitable benefit sharing from use of traditional knowledge.

The Concept of Judges Rule in Nigeria

In the early 19th Century, there were cases where the police “obtained” statements from suspects by force while the judicial authority was strong for admitting an accused’s statements in evidence even though they were obtained by constables, who had him in custody, by means of considerable insistence and even force during interrogation. With this, judges of the Kings Bench Division (UK) at the request of the Home Secretary formulated the “Judge Rules” in 1912, to guide the police and other officials involved in investigating crimes. The rules became effective in 1914 in Nigeria. In 1964, England revised the rules which now differ significantly from the 1912 rules that still operate in Nigeria.

The rules are merely administrative and do not have the force of law, but the courts acts on them. In Evbuowman v Police (1961), the court quashed conviction on the ground that the police officer acted contrary to the judges’ rules. It is permissible for a police officer to question a person in custody with regard to the offence or offences for which he or she is held. But it is important that the judge rules are followed. In this context “custody” means: “in custody of the police”, R v Buchan (1964), R v Strappen (1952).

In Nigeria there are nine main rules.

Rule 1: What Questions may be asked  

“When a Police Officer seeks to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not  from whom he thinks useful information can be obtained”.
The suspect’s answers to any questions put and any statement that he may volunteer should be in writing. This should be so that:

• The suspect may be able to clear himself of suspicion. 
• If it is later decided to charge him, his statement will be available to check this story in the witness box. 
• It may disclose matters, which open new causes of investigation.   
  

Rule 2: When to caution

“Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any question or any further questions, as the case may be.” 

Rule 3: Persons in Custody

“Persons in custody should not be questioned without the usual caution being first administered.”  

Rule 4: Voluntary Statement  
“If the prisoner wishes to volunteer any statement, the usual caution should be administered.”  

Rule 5

• Formal Caution: ‘The caution to be administered to a prisoner, when he is formally charged, should be in the following words: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence”.
  

Care should be taken to avoid any suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person from making a statement, which might assist to clear him of the charge.

• Short Caution: The words in Rule 5 are only applicable when the formal charge is made and can have no application when a violent or resisting prisoner is being taken to a police station. In that case before the formal charge is made, the short caution should apply, that is to say:
  

“You are not obliged to say anything, but anything you say may be given in evidence.” In both instances, every suggestion that the statement is to be given in evidence against its maker must be avoided.       

Rule 6: Statements Prior to Caution  
“A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such a case he should be cautioned as soon as possible.”

Rule 7: Questions which may be asked of a prisoner  

A prisoner or a suspect making a voluntary statement must not be cross-examined. No questions should be put to him about it except to remove ambiguity in what he has actually said. If, however he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week which do not agree, or has not made it clear to what he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.”

Rule 8: Persons Jointly Charged  

“When two or more person are charged with the same offence and statements are taken separately from them, the police should not read the statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered.”

The West African Court of Appeal in R v. Ajose and others (2 W.A.C.A. 118) added the following provision to Rule 8:

“Provided that when the person charged (other than the person who made the statement) is an illiterate, the statement may be read over and interpreted to him apart by some person other than a policeman. Anything said to such reader by the person charged when the statement is read shall not be admissible in evidence against him, but if, after the statement has been so read he shall be desirous of making a statement to the Police in reply, such statement shall be taken only after the usual caution has been administered. 

Rule 9: Statements  

“Any statement made in accordance with these rules should whenever possible be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.”

The judges rules do not apply to interrogation of members of the Armed and the Police Forces by their superior. In R. v Bass (1955), a Criminal Court of Appeal expressed the opinion that if at the time the police questioned the accused, he was in custody and no caution had been administered to him, the jury should have been directed to consider whether, despite a breach of the judge’s rules, the accused had made his statements voluntarily. The conviction was quashed because the jury had not been so directed. Where there is no jury as in the case of Nigeria, the judge must caution himself as to whether, despite the non-observance of the judges rules, the statement can be said to be voluntary. It should be on record that he has so cautioned himself. 

Application of the Judges Rule 

In R v Payne (1963), following a car crash, P. was taken to the police station. He was asked and he agreed to be medically examined by the police doctor. Police informed P that it would be no part of the doctor’s duty to examine him in order to give an opinion as to his unfitness to drive. Quashing his conviction for drunken driving, the appellate court held that if P had realised that the doctor would give evidence on that matter, P might have refused to be medically examined, and that the judge had exercised his discretion wrongly. The mere fact that a confession is made in answer to a question put by a police officer is not sufficient to render the confession inadmissible. However, where the accused refused to answer a question on the ground that his or her answer tend to incriminate him or her and he or she is improperly compelled to answer it, such a confession would not be voluntary. The judge’s rules do not necessarily render a voluntary confession involuntary because it was obtained in violation of the judge’s Rules, but the trial judge has a discretion to exclude it. 

Read: The Right of Widows in the Nigerian Society

The accused in R.v. Ogwuogo (1936) also made a statement to the police. He was cautioned in a native dialect. He was convicted for murder. The accused did not understand the caution. Held the court must be satisfied that the statement is free and voluntary. If it is not satisfied, the onus is on the prosecution. In dealing with illiterate suspects therefore, one must ensure that they understand what the caution is all about. There must be positive evidence that it was administered and understood.  

An accused cannot be forced to present himself or herself for a photograph. He requires to be cautioned - Ugama v. R (1959) 4 FSC, 218.

The judges rules offer safeguards to ensure that confessions are freely given and voluntary, and that the accused is properly cautioned. It ensures the absence of any suggestion that a confession has been induced by threats or promises from someone in authority. In practice, the officer accepting a confession is obliged to take the accused and the statement before a superior police officer (i.e. an Assistant Superintendent or above) as early as possible. The Superior Police Officer is required to satisfy him or herself that the statement is free and voluntary. If he is satisfied, he must ask the accused if he made the statement and whether it is true. If the accused admits, the superior police officer endorses and signs the confession to that effect. Now, the mere fact that superior police officer has not endorsed a confession does not render it inadmissible. However, such endorsement has the value of assuring the court that it has been properly taken.  

Read: The Legal Side to Understanding Company Liquidation

Judges rules are an extension of the rules on confession. They were built to advance voluntary confessions. They are not statutory provisions, judicial decisions, Practice directives or Court Rules. They are administrative rules to guide the police and other agencies that investigate criminal matters. They do not have the force of law but their observance assures the admissibility of a confession which otherwise would have been impeached. The judges rules in England have been revised since 1964, but those operating in Nigeria were those formulated in 1912-1914 and it is incumbent on police officers and every other person charged with the duty of investigating offences or charging offenders to comply with them as far as practicable.

The Sources of Law in Nigeria

The body of Nigerian law is traced to many sources. They include

• English Law
• Nigerian Legislation
• Case Law
• Customary Law
• International Law
  

 

1. English Law

This originated from England, following the Norman Conquet of the 11th Century (1066BC) where King Willim I ruled. English law has an anglo-saxon origin and at the time, King Williams performed judicia; functopns before allocating these functions to able men placed over the Norman Royal Courts. These coursr include:

• The court of Common Pleas
• Exchequer
• Kings/Queen’s Bench
  

There was an introduction of writs. This writ system involved the use of formal documents stating your pleadings before the courts. They included the writs of Habeas Corpus, Subpoena, mandamus and a host of others (Read our article on the English Law system of writs in Nigeria)
The Lord Chancellor was appointed as an appeal for cases addressed improperly at the Royal Courts. He stood in place of the king. The Lord Chancellor however presided over no court until when principles of fairness and upholding justice came in causing conflicts between the judgements of the common court judges and those of the Lord Chancellor

The judicature Act of 1873 was also birthed and became practiceable in 1875.
The Lord Chancellor (Equity) modified the Common Courts (Common law). What then is the importance to Nigeria’s civilization? What is the relevance of English law to Nigeria?

• Because of Nigeria’s historical antecedent (colonial rule). By virtue of this, the English colonial masters as part of their administrative mechanism brought these statutes to their colonies (1861 annexation and enacted laws. These laws contained English laws because:
• There was an influx of the whites who traded and disputes rose up, leading to the existence of the law
• the customary law as unwritten - the European did not understand it. Itwas also hererogenic and had no specific seat.

There are two kinds of English Statutes. They are

1. Imperial Statutes: This was forced on us. These statutes were made by Acts of Parliament. This Act of Parliament was a Foreign jurisdiction Act which was in efffect through the Orders in COuncil made by the British Crown. It was classified into
• Just Gentum -Law of Nations
• Jus Naturale - Law of Nature
2. Received English Statutes: These are "reception statutes" which were adopted on their own accord into Nigerian laws.

The Statutes of General Application before 1914 (in Lagos, Southern and Northern Protectorates)

• 1914-1960
• 1960-1963 -- Northern, Southern, Western
• 1963 -- Mid-Eastern, Northern, Southern, Westerm
• 1976 (February 6) -- Nineteen States

The strength of the Reception clasuse shows its existence in Nigeria till date.

The Statutes of General Application

The SOGA

• Section 45 Interpretation Act (Lagos)
• Section 14-15 High Court Law (Eastern Nigeria)
• Section 28 High COurt Law (Northern Nigeria)
• Section 3 Law of England (Application) Law

In the Western Region, the English statutes is absent, although the principles of common law and equity remain.

Read: The Legal Side to Understanding Company Liquidation

Nigerian Legislation

This consists of local statutes made either by the Federal or State Legislature. It should  be borne in mind, the three levels of government in Nigeria (Federal State and Local Gevernment)

• Federal Legislature
• State Legislature
• Local Government Council

 

• Laws/Edicts
• Ordinances, Acts of the National Assembly, Decrees of the military government, Laws of State Legislature, Bye-laws
  

By 1960 Ordinances, Edicts (state legislature), Decrees (military regime)

Acts of National Assembly

Subsidiary Legislation

Bye-laws are subsidiary legislation. They are made by virtue of certain powers (delegation). These bye-laws deal with motor parks, markets, hawking and related activities.

Nigerian legislation is without diminishing strength as the English law. This is because the bulk of Nigerian laws come from Nigerian legislation.

Case Laws

These are judgements of the courts. Section 6 of the Constitution of the Federal Republic of Nigeria 1999 provides for the superiority of the courts. Case law is based on judicial precedent, a doctrine of the common law which is also predicated on the hierachy of courts. According to this hierachy, the courts are arranged as

1. Supreme Court of Nigeria
2. Court of Appeal
3. Federal High Court
4. National Industrial Court of Nigeria
5. State High Courts
6. District/Magistrate Courts
7. Customary Courts
   

Election tribunals are not law courts. They are constituted for election purposes.

3 Majors from the hierachy of Courts (Case law)

From the hierachy of courts, there are hkjdjkf ijfkcxn idso

1. The Principle of bindingness: Also known as the doctrine of stare decisis (stay by decision), this is a principle  of the common law stating that judges in a case before them would abide by a previous case by higher judges in same circumstances. This principle is rational because:
• It saves the judge the trouble of bringing up new ideas in new judgments.
• It brings certainty in the law (predictability)
• Litigants are not left with the whims and caprices of judges.
2. The Principle of  Persuasive Authority: This states that a previous decision that is not on binding authority can merely be of persuasive authority. An example is the decision of the Federl High Court being considered by a State High Court.
3. The Principle of Distinguishing: This states that "even though a previous decision may be very authiritative, perhaps, coming from a higher court in the judicial hierachy, nevertheless, there may be justifiable reasons on legal grounds why a later judge presiding on similar case may oblige or refuse such decision.
   

Case law based in judicial precedent and it borders around

• Hierachy of Courts
• Stare Decisis
• Distinguishing Cases
  

Customary Law

This involves the traditions and customs of the local people "recognised" as law. Not all traditions of the locality is reckoned with as law. Customary Law has the following features and characteristics:

• It is a picture of the people's belief because it is a living law and it must be in existence before it can be recognised.
• It is dynamic (i.e it changes)
• It is unwritten

Speed C.J in Lewis v. Bankole 

• Validity
• Repugnancy Test
• Test of Public Policy
• It must not be inconsistent with any written law
  

Establishing Customary Law

Proof before the Court

Judicial Notice

The Legal Side to Understanding Company Liquidation

The term liquidation in finance and economics is the process of bringing a business to an end and distributing its assets to claimants.

• A bankrupt business is no longer in existence once the liquidation process is complete.

• Liquidation can also refer to the process of selling off inventory, usually at steep discounts.

• It is an event that usually occurs when a company is insolvent, meaning it cannot pay its obligations when they are due. As company operations end, the remaining assets are used to pay creditors and shareholders, based on the priority of their claims. General partners are subject to liquidation.

Introduction:

Company liquidation is a pivotal aspect of company law that involves the orderly winding up of a company's affairs, assets, and liabilities. It marks the culmination of a business's life cycle and is a process governed by strict legal procedures. While the reasons for liquidating a company can vary, including insolvency or the fulfillment of a predetermined purpose, the legal implications and processes remain constant. This article explores the key aspects of company liquidation from a legal perspective.

Voluntary vs. Involuntary Liquidation:

Company liquidation can be either voluntary or involuntary. Voluntary liquidation occurs when shareholders decide to wind up the company through a resolution. In contrast, involuntary liquidation, often known as compulsory liquidation, is initiated by external parties, such as creditors or regulatory authorities, when the company is unable to meet its financial obligations. Understanding the circumstances surrounding liquidation is crucial, as they dictate the specific legal procedures that will be followed.

Appointment of Liquidators:

In the liquidation process, a liquidator is appointed to oversee the winding-up affairs. The liquidator can be an individual or a professional firm with expertise in insolvency matters. Their primary duty is to gather and distribute the company's assets among creditors, following a strict order of priority. The liquidator's role is pivotal in ensuring a fair and equitable distribution of assets, as well as in investigating any potential misconduct or fraud leading to the company's demise.

Creditor Rights and Priorities:

Creditors play a central role in the liquidation process, as they seek to recover their outstanding debts. Company law establishes a hierarchy of creditor claims, ensuring that certain classes of creditors are paid before others. Secured creditors, holding collateral, typically have the highest priority, followed by preferential creditors, such as employees, and finally, unsecured creditors. Understanding these priorities is essential for both creditors and the liquidator to navigate the distribution process effectively.

Conclusion

Company liquidation, from a legal standpoint, is a complex and highly regulated process that requires adherence to specific procedures. Whether initiated voluntarily or involuntarily, the appointment of a qualified liquidator is crucial for ensuring a fair and transparent distribution of assets among creditors. Creditors, in turn, must be aware of their rights and priorities in the liquidation hierarchy. As the legal landscape surrounding company liquidation evolves, staying informed about current regulations and seeking professional legal advice is imperative for all parties involved in this intricate process.

A Review of Sale of Family Land in Nigeria

Family land is a term in the customary land tenure system that conceptualizes the collective ownership of land in a particular family and its members. It does not vest title or ownership in one person but in the family as a whole. And this concept affects and influences the way such land is used and managed. This customary nature of the concept of family Land has brought about a number of rules and conditions governing it's management, partition, sale or alienation.

Alienation is the act of conveying or transferring to another, the title in  property, or to part voluntarily with ownership of such title and in this instant case, land.

In the customary land tenure system, the basic principles regarding sale of family land is that the land cannot be sold except by the family head, who must also get consent from principal members of the family before such alienation is finalised. This is to the end that neither the family head, nor the principal members of the family, can sell the family land single-handedly, without consent and approval for either party. However, it is also important to note that alienation or sale of family land without the consent of the family head is void ab initio while the sale of family land by the family head without the consent of the principal members of the family, is voidable. This means that the family head holds some sort of edge and this has, over time, constituted technicalities and complexities surrounding the sale of family land.

Read: The Concept of Legal Personality in Nigerian Law

This has constantly caused diverse views and opinions from both the Nigerian bar and the bench in the examination of this concept of family land. The Nigerian courts have had to, at various points, come up with new legal validity perspectives to the sale of family land or they have had to strictly and efficiently sustain the laid down principles.

Related to sale of family land in the customary land tenure system, members of the family can be partitioned portions of the family land for their own personal use but he reserves no right whatsoever, to sell the land without consent from the family head and the principal members. In the words of Craig JSC in Also v Ajani, "a member of a family is not permitted to introduce a stranger into the family by the back door, nor is he permitted to fetter the reversionary interest due to family by a complex commercialization of the simple possession granted to him." That is, a member can only possess the land, he lays no exclusive claim to it.

In bringing a dispute to the court regarding sale of family land, it must be established that the family head is truly so as approved and recognised by the entire family. In James Olowoyo vs Ojo, the case was dismissed on the grounds that the plaintiff failed to establish his headship of the family whose sale he was challenging.

Read: The Legal Side to Understanding Company Liquidation

The Land Use Act of 1978 has introduced a new system of land alienation that has excluded the customary land tenure system, vesting all land power in the Federation. However, this custom cannot be said to be truly eradicated. It still obtains in Nigerian customary law, sale or alienation of family land must be done subject to certain conditions, violations of which, could render such sale void ab initio or voidable.

WEEKLY LEGAL NUGGETS

A training bond is a contract between an employer and an employee whereby the former undertakes to pay a stipulated cost for the training of the latter with the understanding that the latter will either remain in employment for a specified minimum period or refund the cost of the training upon resignation.

Employers often require employees to issue undertakings to remain in their service for a specified period of time after acquiring new skills or certificates as a precaution against losses that could result from employees terminating their contracts after receiving the training. From the employer's perspective, this ensures that the employer will recoup the investment made in such an employee in exchange for the employer paying for the employee's acquired skill set or training.

Usually, training bonds contain a clause that offers the employee an option to repay the bond value (the sum expended in training the employee) where such an employee desires to leave the service of the employer, prior to the time specified in the bond or undertaking. 

A training bond is a contract and the court will consider the general principles of contract i.e., is it fair and reasonable? Is there evidence of duress? Is there evidence of fraudulent misrepresentation? Is it common industry practice?  Will the enforcement of the contract violate public policy? etc. Most big companies in Nigeria have their employees sign a Training Bond, especially the Banks.

There is no hard and fast rule to this, as what applies to each case will depend on the terms of the bond and the circumstance of each case, and training bonds may be enforceable if the terms are fair and reasonable.

Laws to Deal with Fake News and Sensitive Data Circulation Online

The world is battling a deluge of misinformation and this has been up for a long time now. The advent of internet, social media platforms and real time messengers has given a free run to criminals, miscreants, nation states and other motivated actors. In fact, society, today is experiencing a sort of ‘information disorder’ where it has become extremely difficult to differentiate truth from falsity. A few years ago, ‘fake news’ was a rarely used term. Today, it has become one of the greatest threats to the existing system of democracy and a hot topic for the debaters. Though there is no one definition for fake news, what makes it a concern is that it allows subjective interpretations of the concept, thus making it difficult to study or allow any policy interventions. Fake news comprises of stories, news, and hoaxes created to misinform deliberately or deceive readers or to push a political agenda. In contemporary times, various media propagate fake news. A newspaper in print media, television in broadcast and internet in digital form propagate fake news. However, due to the changing role of social media in the past few years, it has become a forerunner in the distribution of fake news. Even though India does not have a specific law to deal with menace of fake news but we still have existing legal provisions under Indian Penal Code,1860 Information technology Act,2000 and the Disaster Management Act,2005 to tackle misinformation and initiate an intense awareness campaign on false news and privacy violations.

Fake News and The COVID-19 Story

In 2020, while the world wrestled  the pandemic caused by a new virus, authorities around the world battled false news about the virus on digital platforms. Covid19 spread to almost 190 countries, and with more and more people forced to stay home during quarantine/ lockdown, internet usage is bound to be higher than usual as people have resorted to online platforms for working remotely, seeking knowledge, reaching out to loved ones and also at the time of crises people are eager to share personal details and any misinformation at this crucial time can have devastating effect. Beginning February, when awareness about the disease rose in India, social media platforms have seen numerous posts on Covid-19 — ranging from information on the outbreak to false news about its origin and spread to offering untested treatment for the disease, and also prescribing strange diets.

After the lockdown being enforced across the country, these misleading posts not only amplify the menace of fake news, creating panic and frustration, but also result in privacy violations as medical records of tested individuals are being circulated online. In a few cases, false medical reports have also been generated for random individuals and then people are suspecting them of having the diseases and socially boycotting them.

Such overflow of content makes it difficult for the people to sift real news from the fakes. In spite of the warnings and concerns, many vicious minds continue to create and spread fake posts. A larger section forwards them across groups, often out of ignorance or the excitement of becoming a ‘news breaker’.

ROLE OF SOCIAL MEDIA

Social media operators play a more responsible role. Social Media acts as a facilitator of democracy by providing the public with equal access to information and equal opportunities to participate. The public sphere is the nexus between public life and civil society. It is that space of the society where access is guaranteed to all the citizens to engage and discuss the matters of general interest to form a public opinion. Evolution of social media and its increasing role as a platform for its users to express their opinions has guaranteed freedom in an unrestricted way.

Under the IT Act and the rules notified in April 2011 for social media intermediaries, their liability didn’t arise if they were not responsible for the inception, transmission and reception of content via their networks. With the experience over a decade with this status quo, it is very clear that they need to be made to take more proactive steps and not wait for the law enforcement or judicial references to remove fake content off their platforms or block those senders. Even the revision of the decade-old amended IT Act would have covered the intermediaries’ role closely considering the technology enablement since the last revision.

In turn, law enforcement agencies need to take action against fake-content generators and transmitters and for that, their capacity has to be widely expanded both in terms of numbers and quality. Some State police forces made arrests recently, but there is a wider need also to look at the existing laws to directly address fake news.

A big section of the digital society would have vouched for an industry-wide self-censorship and weeding regime. In mid-February, such an attempt was announced by a few of the major intermediaries operating in India, such as Facebook and Google, about forming an Information Trust Alliance (ITA) to weed out fake content. This is the time to shape it further and give it more substance and teeth. The fake news flow around Covid-19 gives them more reasons to be seen to be more responsible. They need to expand their network of fact-checkers, which these intermediaries employ individually, till they come with an optimal arrangement.

RULES AND LEGAL PROVISIONS IN INDIA

Rumours are a lethal weapon that affects the morale of the people. The Law enforcement agencies have power under law to take legal action against anyone who spreads rumours about the virus and causes a state of panic among the general population. Even though, at present, India does not have a specific law to deal with crime of fake news but we still have existing legal provisions under Indian Penal Code, 1860 Information technology Act,2000 and the Disaster Management Act,2005 which can be invoked in case of misinformation. Some existing legal provisions are

Section 505(1) of Indian Penal Code, 1860:The punishment for making, publishing or circulating any statement, rumour or report which may cause fear or alarm to the public, or to any section of the public.
Punishment: It may lead to Imprisonment which may extend to 3 years or fine or both.

The Indian constitution: Article 21 of the constitution protects an individual’s right to life and personal liberty. The supreme court of India, a nine judge bench decision in august 2017, held that citizens enjoy a fundamental right to privacy that is intrinsic to life and liberty. It must be noted that rights guaranteed by the constitution may normally only be used against the state or state owned enterprises.

Section 66D of Information Technology Act,2000: Whoever, by means for any communication device or computer resource cheats by personating.
Punishment: It may lead to imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

Section 69 (1) of the Information Technology Act, 2000: Relate to how the Controller can extend decryption of information facilities to any agency for intercepting any information transmitted through any computer resource. The person-in-charge of the computer resource shall, when called upon by any agency directed under Section 69 (1), extend all facilities and technical assistance to decrypt the information.

Punishment: Any person who fails to assist the agency referred to in Section 69 (2) shall be punished with imprisonment for a term which may extend to seven years.

Section 54 of the Disaster Management Act, 2005: Whoever makes a false alarm or circulates it or warning as to disaster or its severity or magnitude of disaster, leading to panic.
Punishment: It leads to Imprisonment which may extend to one year or with fine.

Some recent actions taken by the authorities around the world:
Maharashtra: The Maharashtra police has registered as many as 51 cases across the state against various individuals spreading fake news, rumours and false or fraudulent claims concerning the pandemic. In one specific case a newspaper advertisement dated March 13, claiming that the mattresses could cure Covid-19 resulted in an FIR being registered against the owner of mattress company.

Uttar Pradesh, Lucknow: A fake Godman Ahmad Siddiqui calling himself as "Corona Wale Baba" claimed that those who could not wear a mask could use the talisman to keep corona away. He has been arrested for fraud and forgery.
Odisha: A man has been arrested for posting false information on Facebook regarding a Kerala-returned person who had tested positive for coronavirus and was under treatment in Rayagada.

PRIVACY IS IMPORTANT

As for privacy violations by sensitive data circulation online, the Personal Data Protection Bill 2019 (PDPB) is likely to be taken up in the monsoon session of Parliament if the select committee can complete its task. However, it may be mentioned that in August 2018 the Ministry of Health and Family Welfare (MoHFW) had released a draft ‘charter of patient rights’ which had factored in the privacy of medical records of patients.

This was just after MoHFW had drafted the ‘Digital Information Security in Healthcare Act’ (DISHA) and offered it for public comments in March 2018. DISHA was intended to specifically look at the data privacy and confidentiality of digital health data. However, DISHA was subsumed under the PDPB, which is intended to be an encompassing legislation around privacy covering every ministry and situation. It is pertinent to mention here that medical records would be a ‘sensitive personal data’ under PDPB as it is today as defined under the Rules notified under the IT Act in April 2011, and such data cannot be circulated without the explicit permission of the provider.

CONCLUSION

India has laws and rules to deal with fake news and sensitive personal data circulation online. Efforts are being made to enhance their scope and make them more effective. People before creating, posting, sharing and forwarding any message, one needs to be aware about the implications of the same. The Law enforcement agencies are monitoring such posts on social media platforms and can land you in a legal battle or jail.

The IT Act and the rules around the Act have an expansive scope to factor in many situations of violations. In the current situation, there is the additional advantage of the provisions of Section 54 of the Disaster Management Act 2005 (DMA) — which deals with false warnings around a disaster leading to panic.

The circular of the MHA also mentions the applicability of Sections 505 and 188 of the Indian Penal Code. Using these provisions, several people have been arrested across States in the recent times of corona. However, these actions still can’t match the pace at which people post and forward fake posts and violate privacy. The need of the hour is a cocktail of stricter law enforcement as well as an awareness drive through constant messaging and foster and inculcate cyber manners.

MY OPINION

In my opinion Individuals are expected to exercise a higher degree of caution in relation to forwarding of fake information and circulating sensitive data. A small indiscretion of forwarding an unverified message can lead to loss of life or cause a serious disturbance of public order. With governmental and public resources pushed to limits, it is incumbent upon the general public to perform diligence in their interactions with reference to the Pandemic. There are some simple steps that can be undertaken by one and all which will lead to a thwarting of mischievous designs and attempts to cause disruption.

In my opinion awareness can be taken as a solution to this problem. One of the most significant factors leading to a broader consumption of fake news among users is their limited ability to differentiate facts from opinions. Lack of aptitude of the audience to verify the news shared on social media before consuming is leading them to consume potentially false information. To enable them to do so would require a concrete measure in terms of enhancing their media literacy. In India, awareness campaigns have been released by service providers to alert users about the consequences of fake news and why it is important to be self-aware before forwarding any message.  In December 2018, WhatsApp rolled out three ad films as a part of their strategy to fight back circulation of fake news ahead of general elections these campaigns asked the users to check the integrity of the information they receive on forward messages, before sharing it to others.

Purpose of any news is to make people aware of what is happening around and allow people to have a common ground to converse to constitute a dynamic public sphere. Social media, with its popularity, and instantaneity, is a potent tool for communication development if used. Otherwise, it could also become a double-edged sword. Fake News has become a menace which could only be curbed when collective efforts are made from individual to policy level.

Nolle Prosequi (Nolle Pros)

 NOLLE PROSEQUI

A Nolle Prosequi (or Nolle Pros) is a form of dismissal of a criminal charge. An entry of nolle prosequi may be made at any time after charges are brought and before a verdict is returned or a plea entered.

 ¶ The entry of a Nolle Prosequi is an admission that the charges cannot be proved or that evidence has demonstrated either innocence of the accused or a fatal flaw in the prosecution's claim. It is not an acquittal, which prevents further proceedings against the defendant for the conduct in question.

¶ If a charge against an accused has been resolved by a nolle prosequi, then the charge is considered dismissed unless or until a prosecutor brings a direct indictment.

 FROM THE OFFICE OF THE DIRECTOR OF LITIGATION AND RESEARCH