Hire Purchase: Rights and Obligations of Owner and Hirer (NG) – Fortune Dikio

Hire Purchase

Hire purchase is one of the many types of consumers credit transaction recognized in Nigeria Law. A Hire purchase agreement is an agreement by an owner of goods (i.e. the creditor) to hire the goods out to a hirer and to give the hirer an option to purchase the goods, conditional on his completing the necessary payment for the goods and complying with the terms of agreement.

In Samuel Arab v Joe Allen & Co.Ltd, Okugbe, Justice of the Court of Appeal, elucidated Hire Purchase as;

Essentially, a Hire Purchase system is a system whereby the owner of the goods, let them on hire for periodic payment, by the hirer, upon Agreement that, when a certain number of payment has been completed, the absolute property in the goods, will pass to the hirer but so however, that the hirer may return the goods at any time without any obligation to pay further balance of rent accounting after return conditions have been fulfilled, the property remains in the owner possession”.

By the Hire Purchase Act, sec. 20(1), the hire Purchase states:

“The Bailment of goods in pursuance of an agreement under which the bailee may buy the goods or under which the property in the goods will pass to the bailee”.

Who then is a bailee?

The Black’sLaw dictionary 9th edition defines a bailee as ;

“a person who receives personal property from another and has possession of the goods, but not title of the property“.

The law governing the hire purchase agreements in Nigeria is the Hire Purchase Act, 1965, as well as the Common Law Rule. The general elements of a contract such as offer, acceptance, Consideration, Capacity to contract and intention to create Legal Relations are also applicable here.

Two parties are involved in a hire purchase agreement, they are;

1. Owner; hire vendor (seller)

2. The Hirer; hire purchaser( buyer)

Although, in some circumstances, there may be an additional party, known as Financier, either a bank or a company , which the seller uses to enforce agreement and payment.

The hire Purchase agreement includes Bailment and sale. The Hirer (hire purchaser) is a bailee until he pays the full price of the goods. The hire Purchase agreement comes to an end when the buyer pays his final installment to owner of the goods (sale), and in return receives property in the goods, not mere possession.

Obligations and Rights of the Parties in a Hire Purchase Agreement

Both parties in a hire purchase agreement have distinct rights and obligations.

Obligations of the Owner

Below are obligations of the owner in a hire purchase agreement.

1. Obligation to Deliver Goods

The owner is obliged to deliver goods to the hirer and such goods must be in good condition. This is a fundamental term in the Hire Purchase agreement and breach of which, the hirer may repudiate the contract or sue for an action of specific performances, or damages.

2. Obligation to Transfer good Title

The owner must possess a good title, as he cannot transfer what he does not have (Nemo dat quod non habet). Therefore, there’s is an implied condition that the owner must possess good title and transfer such to the hirer.

3. An Obligation That Goods must be Delivered according to Description

The owner is obliged to deliver the goods to the hirer, not just delivering the goods, but he must ensure the goods meet the description of the hirer, a breach of which the hirer may reject such goods.

4. Obligation to deliver Goods of quality and Goods that are fit for purpose

In situations where hirer notifies owner of the goods he needs, such goods delivered by the owner must be fit for such particular purpose. Also, the goods must be free from defect which the owner could foresee or notice.

Any defect which is not within this scope, the owner may not be liable. As in the case of Anoka v SCOA Warri, where hirer returned a vehicle due to defect in it’s engine. The court held that the implied term for fitness of purpose would not be applicable here due to the fact that the defect was something the owner could not easily discern.

5. Obligation that hirer must enjoy quiet possession

There’s an implied warranty, that the hirer must enjoy quiet possession of the goods and such goods must be free from encumbrances or charges which may hinder quiet possession of such goods.

6. Obligation to furnish Information

The owner is duty-bound to furnish necessary information regarding the hire Purchase agreement, the technique of using the goods, durability and any necessary or relevant information.

Obligations of the Hirer

Below are obligations of the hirer in a hire purchase arrangement.

1. Obligation to Accept Delivery

The hirer is obliged to accept or take delivery of the goods, refusal or negligence, he(hirer) would be liable for damages.

2. Punctual Payment of Installments

The hirer is obliged to pay installments punctually, as stated in the hire Purchase contract. This is a fundamental duty, as failure to do so amounts to non performance of the contract and goes to the root of the contract. Failure to pay installments punctually and complete such, property in goods would not pass to him( hirer), and he must return the goods back to the owner.

As in the case of Animashawun v CFAO, where the hirer defaulted in payment and the owner repossessed the goods. A similar case is that of Afere v Anad & anor, where the court held the owner was entitled to repossess the goods for failure on the part of the hirer to complete the payment, regardless of how little the fee was(£5).

3. Obligation of Care

The hirer must take custody of the goods, and handle such with care and diligence.

4. Obligation to redeliver the goods

In situation where the hire Purchase agreement fails, the hirer is obliged to redeliver the goods to the owner.

Rights of the Hirer

The hirer is entitled to enjoy the following rights:

1. Delivery of goods by the owner

2. Right to action for damages

He is entitled to bring an action for damages, where owner fails to deliver goods fit for purpose as stated in the Hire Purchase agreement.

3. Right to rejection and repudiation

Where owner fails to deliver goods of merchantable quality, quantity as stated, the hirer may reject the goods or repudiate the contract.

4. Action for a declaration of specific performance

Where installments has been made, and owner refuses to deliver goods, hirer has a right to bring an action for specific performance.

5. Right to enjoy quiet possession, Free from any encumbrances or charges

Rights of the Owner

Below are rights of the owner in a hire purchase agreement.

1. Right to sue for payment of installments, where such has not been paid by hirer.

2. Right of Action for Damages

Where goods has deteriorated in the possession of hirer, the owner may sue for damages. Or where hirer fails to accept goods, any defect, the owner is entitled to damages.

3. Right to action for specific performance

Where hire Purchase agreement fails, he may sue for redelivery of the goods in order to repossess such as in the case of Afere v Anad, stated above.

4. Right to Repudiation

Where hirer fails to perform his obligations.

Conclusion

The Sale of Goods transaction, Agency relationship and Hire Purchase Agreement are legal relationships, in which parties are under obligations to perform to the other party and rights resulting therein. Therefore, it is germane for parties to understand these rights and obligations, as that would help them perform better and make better decisions in their various agreements.


About the author:

Fortune Nkemakola Dikio

Fortune Dikio is an avid writer. A level 300 student of Rivers State University, who’s receptive to knowledge.

Agency: Duties and Rights of Agent and Principal (NG) – Fortune Dikio

Agency Relationship

Sometimes an entity instructs another to conduct its business transactions. This is common and is known as an ‘Agency Relationship‘.

Agency is a business relationship where a principal gives legal authority to an agent to act on the Principal’s behalf when dealing with a third party.

The Black’s Law Dictionary, defines an agency relationship as; ‘a relationship between parties by agreement or otherwise, where one ( the agent) may act on behalf of the other (the principal) and bind the principal by words and actions.

The agency relationship requires two parties. The first is the ‘PRINCIPAL‘, which is the party who gives legal authority to another to act on his or her behalf in a business transaction. The second party is an ‘ AGENT‘, which is the party who is legally authorized to act on behalf of the principal in the Principal’s business transaction.

In Aberdeen Railway corporation co v blaikie bros, the director of a company is deemed to be the agent of the company (the principal). For one to become an agent to a principal, there must be an offer, and a willing or voluntary acceptance. As stated in Pole v Leask, where Lord Cranworth averred, that “no one can become the agent of another except by the will of that another”.

An Agency relationship, is known as “Fiduciary Relationship“, because the agent owes a ‘Fiduciary Duty‘, to the principal. This means the agent is obliged to act in the best interest of the principal. As in West Const Ltd v Batalche, where it was held, that a relevant condition for agency therefore is that the agent must be seen to be acting on behalf of the principal, not for himself. The principal also owes certain obligations to the agent too. The act of the agent for a particular purpose is the act of the principal, under the legal principle of qui per alium facit per seipsam facere videtur‘ , which states that he who does a thing through another does it himself.

Obligations of an Agent to the Principal

This is subdivided into two;

1. Obligations arising from the agreement;

2. Obligations arising from the fiduciary relationship.

Obligations Arising From Agreements

Obligations arising from this group are deciphered from any express or implied agreement between the parties, they include;

1. Duty to perform

The duties of an agent depends primarily on the contract of agency, if there is one. subject to such express terms the agent owes a number of implied duties or obligations to his principal. The primary duty of the agents is to perform the contract in line with the terms or instructions of the principal as failure to do so amount to a breach of contract and the agent is held liable.

As in the case of Turpin v Bilton; where an insurance broker( agent) agreed for consideration to obtain a contract of insurance on the plaintiff’s ship ( the principal). But, he failed to do so, the ship was lost and the broker was held liable to the plaintiff (principal).

Also, in Fraser vs B. N furman Production Ltd, where insurance brokers agreed for consideration to effect an employer’s liability but failed to do so, the principal was held liable for damages in action brought against him by a third party. The court of appeal held that the brokers (agents) must indemnify the employer in that sum for breach of contract. Not withstanding, an agent is not obliged to perform the terms of his agency if these are illegal or against public policy.

As in the case of Cohen v Kittel, where it was held that an agent cannot be sued for not performing an illegal act. Also in Nigerian Craft Bags Ltd v Express Clearing and Shipping, it was held that a professional agent for example a legal practitioner, would not be expected to contravene his rules of professional conduct, notwithstanding the instruction of Principal. In Thomas Cheschire and Co v vaugham Bros & Co, where the subject matter for shipments of nitrates during the war was held to be illegal and against public policy.

2. Duty of Care and Skill

An agent must exhibit a reasonable skill, Care and Diligence in carrying out his duties. In Coggs v Bernard, a gratuitous agent was held to be in breach of the contract for not exercising due care. As in Omotayo v A.Y Ojikutu, the court held that:

a principal who appoints an agent knowing his skill and experience is not entitled to expect or require from that agent a lighter measure of skill or knowledge than one of his position and experience could reasonably be expected to possess.

An agent does not guarantee the successful outcome of the transaction undertaken by him on behalf of his principal, provided he acts honestly. But it can be demanded of him that he should show the measure of skill and diligence which could be expected of one in his position and experience. In keppel v Wheeler, a property agent did not understand the legal effect of the phrase, ‘ subject to contact’, and therefore failed to communicate a better offer to the principal, he was held liable to pay damages, as it was reasonably expected of him to understand such.

3. Non-delegation of Assignments

The agency relationship requires the agent to carry out his duties personally. That is a personal performance and not delegating such duties to another. The principle of ‘delegatus non potest delegare’, the rule that a person to whom power, trust, or authority is given to act on behalf, or for the benefit of another cannot delegate this obligation, unless expressly authorized to do so is applicable here, although in cases where it may be necessary to delegate, the consent of the principal must be sought. In John Mc Cann & co v Pow, a property agent was not entitled to commission, as the property was sold by a sub-agent, without the Principal’s consent.

Obligations Arising Out of Fiduciary Relationship

Agency relationships are fiduciary relationships. This means the relationship involves a high level of trust and confidence between the principal and the agent because the principal has trusted the agent to supervise or protect the principal’s properties, the agent owes a fiduciary duty to the principal and therefore the agent is obliged to act in the best interest of the principal. The Obligations owed are;

4. Duty of Obedience and Loyalty

Agents must act in allegiance solely to the principal. That is with the Principal’s best interest in mind and must act cautiously and prudently carrying out the principal’s instructions and not his own. As in Betram, Armstrong & co v Godfrey, a stock broker agent failed to act in the interest of the principal by following Principal’s instructions, he failed to sell the stock at a specified level which the principal directed him to. The agent was liable to pay damages to his principal for the loss of profits suffered.

5. Duty to Act in Good Faith

Duty of good faith entails:

  • Ensuring that personal conflict of the agent does not prejudice the contract or interest of the principal.
  • He must not make any secret profits or do anything that will be detrimental to the interest of the principal from his position as an agent.
  • Agents must be accountable to the principal as the principal is entitled to an account as in the case of Akibola v Neburagho, where the court held that the Principal ( a proprietoress) was entitled to an account, for management of the school she left in the hands of the agent ( a lieutenant).
  • He must not misuse or divulge any information.

In liley vs doubleday, the defendant and agent of the principal failed to act in good faith by putting the principal’s interest first and not conflicting his interests. Here, he was instructed to store goods at a warehouse where the principal had already insured. The defendant (the agent), however stored a part of the goods elsewhere and the goods caught fire. The principal unfortunately lost the benefits of the insurance because of change of place of storage. The court held liable for a breach of contract.

Rights of the Agent in Agency

1. Right of lien

The agent has and can exercise the right of lien over the principal’s goods in his possession pending the settlements of his claims with his principal. This right is only exercisable where he is entitled to receive commission or remuneration for Duty or obligation performed.

2. Right to Remuneration

A gratituous agent is not entitled to remuneration where none is provided expressly or impliedly from the agreement contract. If the work requires full performance, where performance is in part, the agent has no remuneration.

As in Mc Cullum v Hicks, it was held that the plaintiff’s claim must fail because he failed to find a purchaser to go through with a complete transaction. For an agent to be remunerated the money must have come as a result of the agents act, because it is from the profit he is to be paid.

In Bryant v Flight, the agent agreed to work for the principal and left the amount that he was to receive to the principal. The agent worked for only six months, it was held that it must be implied into the agreement that the agent has to get something for his work, he was to recover on a quantum merit.

2. Right to Action for Damages

Unless the parties agree otherwise, the agent may sue the principal to enforce his right to reimbursement of indemnity for losses, expenses or damages sustained in discharging the terms of his agency.

Generally, a principal must idemnify an agent for liability incurred in the performance of his duties, this generally arises where the instructions of the principal subjects the agents to liability to a third party, but if an agent acts outside the scope of his authority the principal may be relieved from the duty to indemnify.

3. Right to stoppage in Transitu

Where the agents stands towards his principal in the position of an unpaid seller, he may exercise the right of stoppage in transitu against the goods of his principal. He stands in such a position where having both goods for his principal, he pays the seller with his own money or otherwise incurs a personal liability to the seller for the price.

Other Remedies

Includes an Interpleader Summons to enforce or initiate a suit between the principal and the third-party. He may ask the court to decide who has the rights to the goods and enforce the judgement of the court. An interpleader summons refers to a way for a holder of property to initiate a suit between two or more claimants to the property.

Obligations of the principal

A principal can be a person, a cooperation, partnership, non-profit organisation, or even a government agency. In any case, once the principal engages an agent, the principal has necessary Obligations to perform to that agent. If a principal fails to fulfill his duties, it can result in a lawsuit based on breach of contract or tort liability. However a principal owes the agent the following Obligations;

1. Obligation to Remunerate

It is the duty of the principal to remunerate the agent for the services rendered he is required to pay the agents they are great commission or remuneration as agreed by them in the absence of an Express agreement as to the amount of commission or remuneration to be paid the court will normally hold that the agents shall be entitled to reasonable commission or remuneration.

As in Bryant v Flight where the agency agreed to work for the principal and left the amount that he was to receive to the principal. The agent worked for only six months, it was held that it must be implied into the agreement that the agent was to get something for his work, he was to recover on a quantum meruit claim.

2. Obligation to reimburse and Indemnify

The principal also owes an agent the duty to indemnify or reimburse him for every expense of a contractual or tortuous liability incurred in the course of performing his lawful duties or obligations. That is, duties and obligations within his express or implied duty, not outside the scope of his authority, as a principal will not be liable for such as in West Const Ltd v Batalche.

In Adamson v Jarvis, the principal instructed an auctioneer to sell goods which he did not have title to, an action against the agent for conversion succeeded. The court held that the agent’s action against the principal for indemnity was proper.

Rights of the Principal

1. Right to Dismissal

The principal has the right to dismiss the agent in cases of gross misconduct, such as not rendering a proper account, acting outside the scope of his authority, not remitting secret commission , etc. as in Boston Deep Sea Fishing & Lie Co v Ansell, where agent was dismissed without commission for financial dishonesty.

2. Right to Recession and Damages

The principal may rescind any contract made on his behalf by the agent either without authority or in breach of his duties. The agent may be accountable to him for all damages resulting from the breach and maybe required to dislodge any secret commission, profit or advantage obtained. In Osman v Ralph Moss Ltd, the principal sued the agent, an insurance broker for damages for failing to keep him informed. It is pertinent to note that the agent owes the principal a duty to right information at when relevant.

3. Right to Demand for Account

He may take an action to compel the agent to render an account of all his dealings in respect to his agency or for any money had and received on his behalf, as it is a duty of the agent to act in good faith, putting principal’s interest first, as in the case of Akibola v Neburagho.

4. Right to Action for conversion

He may sue the agent for conversion where the agent has received property on his behalf and has misappropriated or misused it. As in the case of Boston Deep Sea & Lie Co v Ansell, where the agent was dismissed for dishonesty as he collected secret commission from third parties against his Principals knowledge.

5. Right to private prosecution

He may take out private summons against the agent where the agent’s conduct, act or commission is criminal.


About the Author:

Fortune Nkemakola Dikio

Fortune Dikio is an avid writer. A level 300 student of Rivers State University, who’s receptive to knowledge.

An Introduction to Copyright Protection in Nigeria – Inioluwa Olaposi

Copyright in Nigeria

In the world of Intellectual Properties, copyrights are at the forefront of popular cognition, laying in rank with other widely known IPs like trademarks, patent, and trade secrets.

In simple parlance, an Intellectual Property (shortly called IP) is an intangible property; creation of the mind.

Intellectual Property rights are therefore legal provisions that seek to protect the sanctity of these properties by forestalling and restraining unauthorized exercises. Such unauthorized engagements, if and when they occur, are known as infringements. One of these intellectual proprietary rights is called Copyright.

As earlier adduced, copyright is a vast Intellectual Property right and can thus overlap with other rights in certain spheres. For instance, a logo may be protectable by Copyright and Trademark law, or a computer programme with Copyright or Patent.

In Nigeria, copyright is statutorily regulated by the provisions of the Nigerian Copyright Act of 1988 (hereinafter referred to as CA or ‘the act’).1 For the administration of copyright in the country, the act provides for the establishment of the Nigerian Copyright Commission (hereinafter referred to as NCC or ‘the commission’).2

According to the CA, a work is eligible for copyright protection if it is a literal, musical, or an artistic work, cinematography film, sound recording or broadcast. Literal, musical, and artistic works must be in a fixed medium of expression and possess originality. A work shall not be eligible if it was made as a model or pattern to be multiplied by an industrial process.3 Copyright protection also extends to other related rights like performer’s right and expressions of folklore.

Ownership of Copyright

The copyright of a work is vested in the author. And in the case of joint authorship, where the contribution of one author is inseparable from that of another, both or all authors involved shall be co-owners of the copyright.4

In case of a work by an employee made as commissioned in the course of their employment, like a writer for a newspaper, the copyright shall belong to the proprietor, unless otherwise provided by an agreement. If not so commissioned, or commissioned by someone who is not the author’s employer, the copyright shall belong to the author.5

Acquisition of Copyright

With consideration of its status of eligibility, copyright shall be conferred on a work whose author is a citizen of or domiciled in Nigeria, or a body corporate incorporated under the laws of Nigeria.

Alternatively, the author may be a citizen or be domiciled in a country, or a body corporate incorporated in such country, that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party. Additionally, the work as a literal, musical or artistic creation must be first published in any of these countries.6

Registration of Copyright

Registration of copyright is not required by the CA. In other words, eligible works are automatically copyrighted without any form of official registration. However, the NCC has a database for owners of copyrights to register them with the commission.7 This would suffice as a good tool for proving ownership.

Duration of Copyright Protection

The duration of the subsistence of copyright protection in a work depends on the type of the work. For literary, musical and artistic works, copyright subsist from when the work is made still seventy (70) years after the end of the year in which the author dies. In case of works with joint authorship, the death of the author refers to the death of the author who dies last.

As for cinematography films, photographs, and sound recordings, copyright shall subsist from when the work was made still fifty (50) years after the end of the year in which it was first published. And lastly, copyright shall subsist in a broadcast still after fifty (50) years after the end of the year in which the broadcast first took place.8

Transmission of Copyright

The owner of a copyright may assign his rights or license some acts to be done to the work. In assignment, copyright is transmissible by testamentary disposition or operation of law, as a movable property.9

Any assignment of copyright or exclusive license to do an act must be in writing for it to be valid. A non-exclusive license may, however, be oral or inferred from the conduct of the parties.

Copyrights of a work to be made in the future, or future rights which would emanate from an existing work, are transmissible by operation of law as movable property.10

Ancillary rights

Ancillary rights relating to Copyright in the Nigerian situation are Moral rights, Performer’s right and the Protection afforded to expressions of folklore. Moral rights protect the author from derogatory actions, including mutilation of his work, that may be disparaging to his reputation or honour. Performer’s right protect works from being publicly performed, and expressions of folklore are also protected from being reproduced outside their traditional structures.11

Collecting Bodies

A collecting body represents a substantial number of owners of copyrights in a category of work. It is formed to manage the rights of its members, issue licenses and collect royalties. A notable example of a collecting body is the defunct Copyright Society of Nigeria (COSON).12

COSON was licensed to manage the copyright of artists in musical works and sound recordings. It has now been replaced with the Music Copyright Society of Nigeria (“MCSN”). When a collecting body is effective in the management of the rights licensed to it, the commission shall not approve another society in respect to those rights.13

Infringement of Copyright

Among other causes, an infringement of copyright occurs when there is an unauthorized exercise of a copyrighted work. Whether by way of reproduction, distribution, mutilation, or public performance, any unauthorized dealing with a copyrighted material, against such copyright, amounts to infringements.14 A person who commits such infringement may be called an infringer.

A secondary infringer is one who aids or abets or actively participates in an infringement.

Action on Infringement of Copyright

An action on infringement may be brought by the owner of the copyright, an assignee or an exclusive licensee to the Federal High Court exercising jurisdiction where the infringement occurred. Such reliefs by way of injunction or damages shall be available to the plaintiff.15

Also, an action relating to infringement of copyright may be civil or criminal. A civil action may arise between two parties. On the other hand, the NCC may institute a criminal action against the infringer. Notably, a civil and criminal action may run simultaneously on the same fact of infringement, and the criminal action may subsist even if the parties had settled the civil claim.16

Defense to Infringement

A claim of infringement may be defended on the ground of lack of knowledge. This is when the defendant had no reasonable reason to believe that the infringing work is an infringing copy of the original work.17

Also, acts of fair dealing for the purposes of research, private use, criticism or review may not amount to infringement of copyright. Moreover, ‘incidental occurrence’ is a valid defense also.

Judicial reliefs in actions of Infringement

The court, in a case of copyright infringement, might grant injunctions or damages. As ex parte, a court may order an interim injunction to prevent an act of infringement until the case is determined. A permanent injunction may be granted at the end of the case in favour of a party.

Also, the court may give an Anton Piller order to restrain a party from destroying evidences of infringement. In Oladipo Yemitan v. The Daily Times (Nig.) Limited,18 the plaintiff claimed his work was reproduced verbatim by the unauthorized defendant. The court awarded damages of #10,000 and #15,000 as exemplary damages against the defendant.

References

1Cap. C28 LFN 2004.

2Section 34, Copyright Act 1988

3Section 1, Copyright Act 1988

4Section 2 (1), (4), 51 – “work of joint authorship”

5Section 10, Copyright Act 1988

6Section 2, 5, Copyright Act 1988

7https://www.eregistration.copyright.gov.ng/ – confirmed on 19th May, 2022

8First Schedule (Terms of Copyright) Copyright Act 1988

9Section 11 (1), Copyright Act 1988

10Section 11 (7), Copyright Act 1988

11The International Comparative Legal Guide to: Copyright 2017 (3rd edition) Nigeria. S. P. A. Ajibade & Co.

John C. Onyido, Yetunde Okojie.

12Nigeria: Federal High Court rules that COSON’s operating licence has lapsed  – Music in Africa(https://www.musicinafrica.net/magazine/nigeria-federal-high-court-rules-cosons-operating-licence-has-lapsed, retrieved on 19/5/2022)

13Section 39 (3), Copyright Act 1988

14See section 15, Copyright Act 1988

15Section 16 (1), Copyright Act 1988

16See Nigerian Copyright Commission vs. MTN Nigeria Communications Limited. Suit No. FHC/ABJ/CR/379/15

17Section 20, Copyright Act 1988

18[1977-1989] 2 IPLR 141

Fintech and Data Privacy Invasion: Legal Implications – Tariere Itoko

Fintech and Data Privacy Invasion: Legal Implications (– Sokoloan as a Case Study)

The borrower is servant to the lender

Abstract

Today, a lot of people tend to borrow money to make ends meet and for unexpected expenses and this is most times as a result of non-payment of salaries, unemployment, high living standards, etc.

Although, traditional banking makes acquiring a loan hard with its paper work, checking the credit-worthiness of potential borrowers, requirement of a guarantor and collateral, the Fintech space has taken a new dive from this traditional method for obtaining a loan to make the process less stressful and more attractive by the removal of collateral for borrowers and the convenience of obtaining loans with just a few clicks on your mobile phone amongst others.

Unfortunately, this new development may have seemed rosy in its early stage, but has now become people’s worst mistake owing to its grave disadvantages such as infringement of data privacy.

This paper seeks to succinctly give a brief overview of Fintech, data privacy and its importance and take a look at the credit tech which involves loan sharks who have used their power over borrowers to bring nothing but shame upon them with their own data, specific reference to the Soko Loan app.

Key words: FINTECH, LOAN APPS, SOKO LOAN, DATA PRIVACY.

Introduction

Technology is growing and cutting across various sectors in the country such as education, the legal profession and most especially the financial space. Technology is playing a pivotal role in the finance space, helping with financial intelligence, financial inclusion, savings, investments etc.

This development is what is popularly known as “Fintech”, it is the combination of advanced technology and finance to better the lives of the citizenry by making financial transactions more convenient than the traditional way.

Financial technology (Fintech) is used to describe new technology that seeks to improve and automate the delivery and use of financial services. At its core, fintech is utilized to help companies, business owners and consumers better manage their financial operations, processes, and lives by utilizing specialized software and algorithms that are used on computers and, increasingly, smart phones. Fintech, the word, is a combination of “financial and technology”.((https://www.investopedia.com/terms/f/fintech.asp accessed on 26th of March, 2022))

There are various Fintech sectors such as Credit tech for loans, Insure tech, payment tech for remittance and also wealth tech for automated savings and investment, but for the sake of this article our focus will be on credit tech.

Credit tech is a technology company that provides loan facilities in a faster and more customized way to suit the current low income amidst Nigerians. Some of these companies include; renmoney, pagefinancials, branch, soko loan, fair money and a host of others.

Data Privacy

Data Privacy is the protection of personal data from those who should not have access to it and the ability of individuals to determine who can access their personal information. It generally means the ability of a person to determine for themselves when, how and to what extent personal information about them is shared with or communicated to others.((https://www.cloudflare.com/en-gb/learning/privacy/what-is-data-privacy/ accessed on the 26th of March, 2022.))

This personal data includes name, address, email address, bank details. With the rise of internet activities, the importance of data privacy has increased as most websites and apps, especially fintech apps which require very private information like BVN, phone number, email address etc.

The government envisaging the importance of data privacy in the internet space made provision for this right as seen in Section 37 of the 1999 Constitution of the Federal Republic of Nigeria which states, “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”

Asides the aforementioned provision of the Constitution there is no specific statute or law on data privacy, however, the NITDA((National Information Technology Development Agency)) which is a federal agency established by the NITDA Act responsible for the development, regulation and advice on information technology in the country brought to life the NDPR [Nigeria Data Protection Regulations] 2019 to promote data privacy and curb data privacy breach in the country by sanctioning defaulters.

Soko Loan – Case Study

Soko Lending Limited [Soko loan app] is an online credit tech company that provides short-term loans in Nigeria to help cover unexpected expenses and urgent cash needs without collateral.((www.sokoloan.com))

It offers a seamless process by just downloading the application on one’s device and activating a direct debit in the company’s favor and gains access to the borrower’s contacts.

The fact that this loan company and most, if not all fintech lending companies do not ask for collateral before approving a loan application is what attracts Nigerians to it and takes them away from traditional bank loans. These loan apps take higher, ridiculous interest than our banks for an even shorter period, imagine asking for a 50% interest in 7 days, they clearly already set them up not to pay back.

There’s nothing for these online lenders to hold on to offset debt in cases of non-payment by defaulters since there is no collateral thus they resort to the unhealthy and illegal means of using customers private information against them by sending defamatory messages to everyone on their contact lists.

For better visualiation, this is a message sent by them to one of their borrowers contacts “This is to inform the general public that Mr. Ade with 080xxxisachronic debtor and a fraudster. He is on the run after duping a lending money company. You are advised to stay clear from him”.

Following several launched complaints at the agency, in November 2021 the NITDA fined Soko loan to the tune of Ten million naira [N10,000,000] for breach of data privacy due to their unhealthy and illegal means of debt recovery.

The agency found them in violation of various sections in the NDPR of which includes Section 2.5 of the NDPR which makes it compulsory for every business to have and display a valid privacy policy if such business collects data to the targeted data subjects in an easy to understand manner.

Privacy Policy

Privacy Policy is a document that explains the type of personal information that your business collects through your website, mobile app or other means, it also informs your customers and users of their data privacy rights and the steps you take to protect their personal information, amongst other things.

Also, they were found In breach of Section 2.2 of same rule which makes provision for lawful processing of data i.e. when processing of data is deemed lawful for example the data subject consented, the processing is required for compliance with a legal obligation to which the controller is subject inter alia.((www.nitda.gov.ng))

It is my humble opinion that any of the so called loan sharks cannot find shelter under the umbrella of initial notice that they would send messages to third parties as Section 24.4 states no consent shall be sought, given or accepted in any circumstance that may engender direct or indirect propagation of atrocities, hate, violation, criminal acts and anti-social conducts, meaning they ought not to even seek such consent in the first instance and if the data subject offered they are mandated to refuse such offer as defamation is both a civil and criminal act.

It is unfortunate that even after the fine imposed, in January of 2022 another victim of this unethical strategy although in another form took to social media to display an obituary poster made of him by SOKO LOAN due to non-payment of loan obtained.((https://www.lindaikejisblog.com/2022/1/customer-in-shock-after-a-loan-app-declared-him-dead-and-published- his-obituary-after-he-defaulted-on-payment-2.html accessed on March 31st, 2022.)) This company sends these messages to everyone on the contact list not caring the implications of their actions.

A lot of persons have cried out that they lost a friend, sister, husband due to these messages, it may mean nothing to them but is definitely harmful to the debtor. Being a debtor is not something anyone is proud about talk more of an alleged criminal which they paint some of them to be. It causes a lot of mental issues due to shock and what not.

Fortunately, the battle did not end there, on the 11th of March 2022, the Federal Competition and Consumer protection commission [FCCPC] and other regulators including the CBN, NITDA etc. took off to shut down locations of some of these notorious illegal lending companies in Lagos state.

It was discovered that they were not even registered with the Corporate Affairs commission neither did they obtain the requisite licenses to carry out the business of lending in Nigeria.

The reason for the raiding was due to the issue of breach of data privacy as a means to recover due loans and also the high interest rates. The loan companies shut down by the federal agencies included a familiar face Soko loan, alongside kash kash, easy credit etc. The FCCPC mentioned that efforts are being made to freeze the accounts used by the managers of the online money lenders, also it was just the beginning in due time they would fish out all other illegal money lenders.((https://www.google.com/amp/s/www.vanguardngr.com/2022/03/fccpc-raids-online-loan-sharks-in-lagos/amp/accessed on April))

Recommendation / Conclusion

The best way to tackle the issue of non-payment is a preliminary move of making a loan grant subject to collateral considering the fact that Nigerians have bad credit score. If that is not welcomed, then they take the prescribed means of debt recovery by the relevant extant law, in other words hire a lawyer versed in debt recovery to do the work, as simple as that.


Written by Tariere Itoko

Tariere Itoko is an enthusiastic 300 level law student at Edo State University, Uzairue with great  interest in Fintech law, Intellectual property law and Banking and Finance.

Industrial Designs (Ownership, Registration etc.) – Inioluwa Olaposi

Industrial Designs in Nigeria

Want to know about industrial design rights in Nigeria? Sit tight!

A lot goes into the production of goods and services. A lot in steps and processes. One major step in the production of an industrial product is the making of a design.

In simple parlance, a design is a sketch, drawing, etc., of what the product will look like before it is made. In other words, a design projects the frame, and display dimensions of a product.

In industries, from automobile to fashion, designs are of crucial importance. They usually carry heavy economic and reputative value. Fortunately, these are some of the key areas offered protection by intellectual properties like copyright, trademarks and patent.

Technically, according to the World Intellectual Property Organization (WIPO), an industrial design constitutes the ornamental aspect of an article. It may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.

In Nigeria, industrial designs are protected by the Patents and Designs Act 1970 (Cap P2 LFN 2004). Specifically, sections 12-22 of the Act contain provisions special to the protection of designs.

What can be an Industrial Design

Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result. – Section 12.

For a design to be registrable, it must be new. That it to say, it must not have been made available to the public before application for registration. However, a design is not public if it was only officially exhibited six month before its application for registration.

Additionally, a design that was communicated confidentially, or to someone who has an interest in it, will not be deemed as published.

In the case of Blank v. Footman, Pretty & Co. (1988) 5 R.P.C. 653, pages 460, 461, Blank, the proprietor of a design, showed it to Hummel before registering it. Hummel was a commission agent who had the sole right of selling Blank’s goods in England. It was held that Hummel, therefore, had an interest in the Design and thus the communication made to him must be regarded as confidential. And being confidential, it does not amount to publication.

The decision above was given judicial credence in the Supreme Court case of F.O. Ajibowo & Co. Ltd. v. Western Textiles Anor (1917-1976) 1, I.P.L.R. In this case, the disclosure of the design was made to the Plaintiffs/Respondents who had an interest in the manufacture of the design for the Defendants/Appellants. The Court, citing Blank’s case, held that there was no publication made.

Also, a design that is contrary to public order or morality cannot be registered.

In Ethylene Products & Lubricants Ltd. V. Delta Manufacturing Co. Ltd. (2003-2007) 5, I.P.L.R page 318, Abdullahi Mustapha, J. held thus, “Section 13 (1) & of (2) Patents and Designs Act reads: … it would be seen from the above provisions that an Industrial Design can only be registered if it is new and it is not contrary to public order and morality.”

Ownership of Design Rights

The right to registration of an industrial design is vested in the Statutory Creator, whether he is the true creator or not. A statutory creator is the first person to file an application for the registration, or claim foreign priority on the design.

When a statutory creator is not the true creator, the latter shall be entitled to be named as the true creator in the registration. This is a right that cannot be modified by contract. Moreover, if a supposed statutory creator files an application without the consent of the true creator, the rights in such registration shall be deemed to be transferred to the true creator.

Additionally, when an industrial design is created by an employee within the course of his employment, the rights in such creation shall be vested in the employer. This is also the case if the design was made in the course of a commissioned work.

However, an employee who makes a design not in the course of his employment but using the means of his employment, shall be entitled to fair remuneration. Or else, he can bring an action for enforcement.

Registration of Industrial Designs in Nigeria

Every application for registration of an industrial design shall be made to the Registrar. The registrar is in charge of the Trademarks, Patent and Design Registry. The registry is under the Commercial Law Department of the Ministry for Industry, Trade and Investment.

By powers conferred by the Act, the registrar shall examine every application to make sure it is in compliance with sections 13 (1) (b) and 15 of the Act. That is to say, the registrar shall check for whether the design is not contrary to public order or morality. And whether the necessary information like applicant’s full name and address, a specimen of the design, etc., are provided, as well as prescribed fee paid.

If the application does not comply with necessary requirements, the registrar shall reject the application. Any person grieved by the decision of the registrar may appeal to the Court.

Foreign Priority in Design Registration

Nigeria is a party to conventions and treaties relating to intellectual properties. For example, Nigeria is a signatory to the Patent Cooperation Treaty (PCT), in line with the Paris Convention for the Protection of Industrial Property (1883).

According to Section 27 of the Patents and Designs Act, the Minister may declare a country or countries as a convention country (ies) by an order in the Federal Gazette. When this is done, an application filed by a person in Nigeria who has earlier made the same application in a convention country shall be entitled to foreign priority.

In other words, the application filed in Nigeria shall be deemed to be filed as at the time the application was made in the other country. However, for such an application to enjoy foreign priority, it must be made within six months of making the foreign application.

Consequentially, the application with foreign antecedent shall be granted, over a new local application with no prior filing.

Deposit System in Design Registration

The registrar is mandated by the Patent and Design Act to verify if the application for Design rights has compiled with the requirements of the Act, not to check if the design is registrable. See section 16 (2) of the Act.

In other words, Nigeria operates a Deposit System of registration, as opposed to the Examination System obtainable in industrialised countries.

This means that even though an application for design rights is granted by the registrar, it is granted as applied for. It does not mean the design in question is new. Determining whether or not a design is new is left to the decision of a court of competent jurisdiction.

That is to say, the Court shall determine whether the application complies with the requirement of newness under Section 13 (1) (a) of the Act. If the Court decides that the design does not pass the test of newness, the granted rights shall be declared null and void.

Therefore, in Nigeria, the burden of proof is upon whoever is contesting a design to prove that such an a design is not new.

Lifespan of Design Rights in Nigeria

Industrial design rights in Nigeria are effective for five years from the date the application was made. With payment of the prescribed fee, it can be renewed for two consecutive periods of five years each. The prescribed fee shall be paid within six months into the renewal period.

Infringement on Industrial Design Rights

Registering an industrial design confers rights on the creator. It precludes any other person from reproducing, importing, selling or utilising the design in manufacturing or for commercial purposes.

Thus, any person that deals with a design in an unauthorised manner is infringing on the rights of the creator. Such a person is an infringer, and can be subject to liabilities by the order of a court.

The Court of competent jurisdiction in matters relating to infringement of Industrial design rights is the Federal High Court. The decision of the Court can be appealed to the Court of Appeal, and then to the Supreme Court.

The Court may grant remedies against the defendant in injunctions and damages.

Patent in Nigeria (Requirements, Ownership etc.) – Inioluwa Olaposi

Patent in Nigeria

A patent is an intellectual property that grants exclusive rights with regard to an invention.

All over the world, it is common knowledge that security is at the heart of human desires. A major benefit of intellectual property rights is the guarantee of economic security for human creativity. I would say, ‘Creativity is the soul of innovation, and innovation is the soul of entrepreneurship.’

Patent, like other IPs, protects the patented product or process from possible unauthorised reproduction, use, sale etc. Thus, granting exclusive rights to deal with the invention for a fixed period of time to the patentee.

In Nigeria, the statute regulating Patents is cited as the Patent and Design Act (hereinafter referred to as PDA). This Act contains provisions regarding the administration of patents, as well as designs. From clarifications on patentable inventions, to examination of applications and licenses of rights, the Act provides for the registration and proprietorship of patents.

Patent is granted by application to the Patent and Design Registry; examined by the Registrar under the authority of the Minister for Industry, Trade and Investment.

Patentability of Inventions in Nigeria

Patents can be obtained for both products and processes. The key determinant of eligibility for patent is newness of invention and industrial applicability.

According to Section 1 (1) of the PDA, an invention is patentable if it is a new invention or an improvement upon an already patented invention. In both cases, the invention must be a result of an inventive activity and must be industrially applicable.

An invention which has been made public or a product of common knowledge in a field is not new and therefore not patentable. Similarly, an invention that cannot be manufactured or used in any kind of industry, including Agriculture, is not patentable.

Moreover, a patent cannot be validly obtained in respect of plant or animal varieties, or essentially biological processes for the production of plants and animals (other than microbiological processes and their products). Inventions that are contrary to morality or public order are also not patentable.

Patent and Foreign Priority

Nigeria is a party to conventions and treaties relating to intellectual properties. For example, Nigeria is a signatory to the Patent Cooperation Treaty (PCT), in line with the Paris Convention for the Protection of Industrial Property (1883).

According to Section 27 of the PDA, the Minister may declare a country or countries as a convention country (ies) by an order in the Federal Gazette. When this is done, an application filed by a person in Nigeria who has earlier made the same application in a convention country shall be entitled to foreign priority.

In other words, the application filed in Nigeria shall be deemed to be filed as at the time the application was made in the other country. However, for such an application to enjoy foreign priority, it must be made within twelve months of making the foreign application.

Consequentially, the application with foreign antecedent shall be granted, over a new local application with no prior filing.

Patent ownership in Nigeria

In patenting an invention, the true inventor differs from the statutory inventor. The former is the one who invented the product or process. While the latter is the person to first filed for patent.

The right to a patent in respect of an invention is vested in the Statutory Inventor, whether or not he is the true inventor. However, the true inventor is entitled to be named in the patent. Moreover, if a statutory inventor obtains his position without the consent of the true one, the rights in such an application shall be transferred to the true inventor.

In case of an invention made by an employee in the course of his employment, the patent right shall be vested in the employer. This is the same for an invention made in the course of executing a contract for the performance of specified work.

In the case of an invention made by contributions from more than one person, they are all inventors. However, a person who has merely assisted in doing the inventive work without contributing any inventive activity is not an inventor.

Registration of Patent in Nigeria

Like trademarks, registering an invention for patent in Nigeria is pretty straightforward. For ease of process, engaging your legal practitioner or agent is well advised. Section 3 (1) of the PDA specifies the information to be provided in a Patent application.

Notably, Section 3 (3) provides that an application can only be made for one invention. Although may include claims for many products or processes in connection with such invention.

The registrar is saddled with the responsibility of examining every patent application. He may also reject an application that has failed to comply with prescribed procedure.

Deposit System of Patenting

The registrar is mandated by the PDA to verify if the application for patent has compiled with the requirement of the Act, not to check for its patentability. See section 4 (2) of the PDA.

In other words, Nigeria operates a Deposit System of Patenting, as opposed to the Examination system obtainable in some other countries.

This means that even though an application for patent is granted by the registrar, it is granted as applied for. It does not mean the invention in question is patentable. Deciding whether or not an invention is patentable is left to the decision of a court of competent jurisdiction.

That is to say the Court shall determine whether the invention complies with the provisions for patentability under Section 1 and 3 (2) of the PDA. If the Court decides that the invention does not pass the test of patentability, the granted patent shall be declared null and void.

Therefore, in Nigeria, the burden of proof is upon whoever is contesting a patent to prove that such an invention is not patentable.

Lifespan of Patent in Nigeria

Section 7 of the PDA provides that a patent shall expire 20 years after its application was filed. A patent can also lapse if its annual fees are not paid for six months after the due time.

Infringement on Patent

Patent protects an invention from acts that violate the rights of the inventor, whether in importation, sale or use. Any unauthorized act done with the invention for industrial and commercial purposes shall constitute an infringement of the patent.

In Beijing Cotec Tech. Corporation & Anor v. Greenlife Pharm. Ltd & 5 Ors (2003-2007) 5, I.P.L.R page 100, the Court held thus, “It is submitted on behalf of the Plaintiffs that by virtue of a Patent No. 13566 as contained in the Certificate of Registration Exhibit DIHYDRO 1B, the plaintiffs have shown a legal right worthy to be protected from invasion or infringement by others.

“It is settled that what the Plaintiffs need to show is not only the legal right but that the legal right is threatened. Refer to Akibu v. Oduntan (1991) NWLR (Part 171) 1 at 10.”

The Court that has exclusive jurisdiction to hear and determine matters of infringement of patents is the Federal High Court. The Court may grant remedies against the defendant in injunctions, damages, or an order for account of profits.


Credit:

  • AN OVERVIEW OF THE LAW OF PATENTS IN NIGERIA (published by Nigerian Law Guru)
  • Patent Law and Requirements for Patent Registration in Nigeria (by Resolution Law Firm. Published by HG.org)
  • PATENT REGISTRATION IN NIGERIA| HOW TO REGISTER A PATENT (published by Resolution Law Firm)

Trademarks in Nigeria (Protection, Registration etc.) – Inioluwa Olaposi

Trademarks in Nigeria

Want to learn about trademarks in Nigeria? Hang on!

Ever heard of Intellectual property (IP)? Trademarks are a principal part of intellectual properties. Like other IPs, trademarks are intangible properties; creations of the mind.

A trademark is a word, sign, symbol, logo, device, slogan etc. capable of distinguishing the goods or services of an enterprise from the other. They protect against confusion in the identification of products.

Trademarks are protected by Intellectual Property Rights. These rights, generally speaking, are framed to preserve the sanctity of creativity. Therefore, trademark rights help to legally ensure that your word or device is not reproduced by an infringer.

In Nigeria, trademark is chiefly regulated by the Trade Marks Act. This statute specifies the operation of trademarks in Nigeria, from registration to rectification, to transmission etc. Other laws that regulate trademarks in the Nigerian milieu include the Merchandise Marks Act (Cap M10 LFN 2004), as well as the Nigerian Trade Mark Regulations 1967.

In the case of Fedoro Limited & Anor v. Ibeto Industries Limited (2003-2007) 5, I.P.L.R page 158, 159, Musdapher, J.S.C. held thus, “The essence of a Trade Mark if that it indicates a connection in the course of trade between the goods and some person having the right to use the same. A Mark, in this connection includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination thereof;

“A Trade Mark on the other hand, is a Mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate, a connection in the course of trade between the goods and some persons having the right either as a proprietor or a registered user to use the Mark.”

What can constitute a Trademark?

The Trade Marks Act has specific provisions relating to what can constitute a trade mark.

Thus, not every phrase, word, logo or slogan can simply become a trademark. The central attribute of every trademark is distinctiveness.

In other words, in order for a sign to constitute a trademark, it must be prima facie distinctive. Remember that the main focus of trademark rights is to eliminate confusion as to what is what; or who owns what.

Trademarks, in Nigeria, are registered at the Nigerian Trade Marks Registry. The trademark registrar acts on the authority of the Minister of Industry, Trade and Investment. In fact, the Trademarks, Patent and Design Registry is under the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment.

Apart from being distinctive, a word to be registered as a trademark must have no direct reference to the character or quality of the goods. It must not be a geographical name or a surname. It cannot also be contrary to law, morality, or be scandalous.

Largely, a word that is commonly used in relation to a trade cannot be registered for a product in that trade. For example, the word ‘Milky’ may not be trademarkable for a milk product. However, ‘Milky Dem’ may be trademarked for a sanitary pad.

Trademark Rights in Nigeria

Trademark rights may arise in Nigeria based on either use or registration.

Through frequent and popular use of an unregistered trademark, a user can acquire goodwill in that mark. In such a case, such a user can enjoy the right of passing off, as may be held by a court of competent jurisdiction. For a claim of passing off to succeed, the user must show that he has acquired goodwill in the mark and that the ‘infringement’ has led to injury.

However, the user of an unregistered trademark cannot bring a successful action in case of infringement, or claim damages for his loss.

A registered trademark enjoys full rights under the law. It can be protected by the Court, assigned, or willed.

In Patkum Industries Ltd. v. Niger Shoes Manufacturing Ltd (1988) 5 NWLR (part 93) 139 at 141 and Dyk Trade Ltd. v. Omnia (Nig.) (2000) 12 NWLR (Part 680) 1 at 9, it was held that Trade Mark when registered, entitled the proprietor to sue or institute an action for an infringement.

Trademarks Classification in Nigeria

Trademarks are grouped in classes. In classifying trademarks, Nigeria adopts the Nice Classification Scheme. In line with this classification, trademarkable goods and services are divided into 45 classes. The same trademark cannot be registered in the same class.

In the earlier cited Fedoro case, the Court also held that, “An action for infringement will therefore lie where a competitor uses registered Trade Mark in connection with proprietor’s goods for the purpose of competing them with his own goods in the same class. See Bismag Ltd v. Amblins (Chemists) Ltd. (1940) Ch 667.”

Trademark Registration in Nigeria

As earlier stated, trademark registration in Nigeria are done at the Nigerian Trade Marks Registry.

In registering a trademark in Nigeria, the involvement of a lawyer or an accredited agent is well advised. There are possible issues in the registration that requires specific know-how.

Processes involved in registering a trademark in Nigeria include:

  1. Searching for the availability of the trademark.
  2. Applying for the trademark.
  3. A notice of Acknowledgment from the Registry.
  4. A notice of Acceptance from the Registry.
  5. Publication of the Trade Marks Journal.
  6. (Possible objection(s) to the Certification of a Trademark.)
  7. Issuance of Certificate of Registration.

An application may be denied by the registry if the word or sign conflicts with an existing one.

Registering a trademark in Nigeria may take around 18-25 months, given there are no objections to or actions arising from objections to the registration. And depending on the professional fee charged by your agent, registration may cost about 100,000 – 200,000 naira.

It is also possible to register a trademark for more than one class. In fact, it is advisable to register your trademark in a class, and in related classes.

In registering a trademark, use or intention to use is also important. However, a trademark may be assigned to a company about to be formed. Its registration can also be accompanied with an application for the registration of a person as a registered user of the trademark.

Lifespan of Registered Trademarks

According to section 23 (1) & (2) of the Trade Marks Act, a registered trademark in Nigeria is valid for seven years. After the expiration of this period of seven (7) years, the registration may be renewed for periods of fourteen (14) years.

Infringement of Trademarks

An unauthorised commercial use of a registered trademark constitutes a trademark infringement. Upon infringement, the owner of the trademark may bring an action against the infringer at the Federal High Court. This is the Court that has competent jurisdiction to hear and determine this issue. The decision of the Federal High Court can further be appealed to the Court of Appeal, and then to the Supreme Court.

On the test for determining whether there was an infringement, the Court in I.T. (Nig.) Ltd. v. B.A.T. (Nig.) Ltd (2009) 6 NWLR (Pt. 1138) 477 held that, “In determining whether a trademark has infringed another, it is the offensive or offending trademark that is considered such that whether the person who sees the offending trademark in the absence of the one breached, and in view of his general recollection, the nature of the offending trademark is likely to deceive him into thinking that the trademark before him is the authentic one.”

Remedies available for trademark Infringement in Nigeria

In a case of trademark infringement, remedies that may be granted by a court in Nigeria are mainly Injunctions and Damages.

As ex parte, the Court may order a preliminary or an interim injunction to restrain acts of infringement pending the decision of the Court. Final injunctions are granted after the trial to perpetually restrain a party from using the trademark.

Damages from infringement actions can also be punitive, special or general.

In the case of CPL Industries Limited v. Morrison Industries Plc (2003-2007) 5, I.P.L.R page 350, Abdullahi Mustapha J. held thus, “Mere proof of infringement entitles the Plaintiff to damages. See Spalding v. Gamage (1915) 31 R.P.C 273. In Draper v. Trist (1939) 56 R.P.C. the Court of Appeal in England held that when passing-off is proved, the Court will infer to some damages to the plaintiff and may award more than nominal damages without proof of special damages.”

Aside from injunctive reliefs and damages, the plaintiff may also be granted an Anton Pillar order in the course of trial, and an order for Account of profits. The defendant may also be asked to pay Costs of the action and solicitors’ fees.

Protecting intellectual properties is very important. No registering a trademark may cause avoidable loss of profit to a business.

See also: Patent in Nigeria


Credit:

– Trade Marks Act Cap T13 LFN 2004

Nigeria: Trademarks Comparative Guide by John C. Onyido (S.P.A. Ajibade & Co.)

1Cap T13 LFN 2004

2Cap M10 LFN 2004

Top Law Firms in Nigeria (info, career, intern, contact)

A Law firm is a business enterprise formed by one or more lawyers to render legal services to clients. The legal services rendered by a law firm signify the area of specialization of its incumbent lawyers.

In Nigeria, many law firms specialize in litigation, while others focus on corporate or commercial transactions. There are others, even, who may combine the aforementioned two.

Notably, there are numerous good law firms in Nigeria, contributing their quota to free flow of judicial and contractual dealings. What is business without the law? And what is the law without a lawyer?

Below are a few of the Law firms contributing massively in their areas of practice. This post supplies you with details got from their websites. For more information, feel free to contact them.

1. Aluko and Oyebode

Website: https://www.aluko-oyebode.com/

About

At Aluko & Oyebode, multi-national companies, local entrepreneurs and pro bono clients can expect the same level of world class legal services delivered with the highest ethical standards. As the largest full-service commercial law firm in Nigeria, we strive for excellence in everything we do. Clients come to us for our deep knowledge of Nigerian law as well as our breadth of international expertise – and an understanding of our clients’ industries that can only be borne of direct experience.

Founded in 1993, Aluko & Oyebode has over 80 attorneys in the major commercial centres of Nigeria – Lagos, Abuja and Port Harcourt.

Areas of Practice

Our practice areas encompass the full range of corporate and commercial legal services, including Banking; Capital Markets; Competition & Anti-Trust; Corporate Services; Governance, Risk and Compliance; Employment, Immigration and Incentives; Energy and Natural Resources; Financial Institutions Advisory; Infrastructure Finance and PPP; Intellectual Property; International Trade; Litigation, Dispute Resolution & Risk Management; etc.

Career

Open to LATERAL LAWYER CANDIDATES, LAW STUDENTS/INTERNSHIP PROGRAMMES, and PROFESSIONAL SERVICES STAFF.

We invite you to click on the link below to explore current open positions. Please submit your resume to: careers@aluko-oyebode.com. Your inquiry will be handled with the utmost confidentiality and professionalism. We look forward to hearing from you.

Current Opening: See: https://www.aluko-oyebode.com/careers/

Contact:

LAGOS

T +234 1 462 8360-71
F +44 207 681 3402

1, Murtala Muhammed Drive
(formerly Bank Road)
Ikoyi, Lagos, Nigeria

Postal Address:
P.O. Box 2293
Marina
Lagos, Nigeria

PORT HARCOURT

T +234 703 192 2607
F +44 207 681 3402

3rd Floor, Plot 173,
Sani Abacha Road
GRA Phase III, Port Harcourt
Rivers State, Nigeria

Postal Address:
P.O. Box 3932,
Trans Amadi Post Office
Trans Amadi
Port Harcourt, Nigeria

ABUJA

T +234 9 292 1083
F +44 207 681 3402

Afri Investment House
2nd Floor, Right Wing No. 50,
Aguiyi Ironsi Street
Maitama, Abuja

2. Banwo & Ighodalo

Website: https://www.banwo-ighodalo.com/

About:

Banwo & Ighodalo is structured as a partnership and is a fairly large-sized Nigerian firm, presently comprising, over Seventy (70) Solicitors. We undertake work for public and private companies, governments, Nigerian and foreign investors, financial institutions, foreign law firms and international consultancy firms. Our lawyers are often called upon to serve as resource persons at local and international seminars/workshops and as public and private sector office holders and advisers.

Practice areas:

We are consistently ranked as a leading Nigerian law firm in the areas of Capital Markets, Securities, Mergers & Acquisitions; Corporate Finance & Restructuring, Project Finance and Foreign Investment & Divestments and one of the top five law firms in Shipping, Aviation & International Trade, Energy & Natural Resources and Intellectual Property. We also have a tested and dependable track record in Commercial Litigation.

Career:

We have career opportunities for lawyers and skilled non-lawyers who embody passion, excellence, relationships, out-of-the-box thinking and enterprise. These are the values we hold dear at Banwo & Ighodalo.

Interested in joining us, but not sure where to start? You can also check out our people and practices to learn more. Click here to submit your details.

Internship:

B&I’s Internship Program is a four-week program, offering positions to exceptional students. The program entails immersion in our typical daily work; including trainings, presentations, and social events. Interns will be challenged to stretch themselves intellectually, gaining hands-on experience that will foster personal, professional and career development.

Contact:

48, Awolowo Road, South West Ikoyi, Lagos, Nigeria.
+23412520795; +234 8139841360; +234 8139841361;
+234 8139841362; +234 8139841363

Afri Investment House,
50 Aguiyi Ironsi Street, Maitama, Abuja
09-2912127

banwigho@banwo-ighodalo.com

3. Udo Udoma & Bello Osagie

Website: https://www.uubo.org/

About:

UUBO was founded by Senator Udoma Udo Udoma, as Udo Udoma & Co., in 1983. It has since evolved from its initial focus on oil and gas matters into a fifteen-partner, multi-specialisation full service firm geared to facilitate corporate and commercial business in Nigeria and Africa across its 19 practice areas.

The firm’s corporate practice is supported by a dedicated litigation and alternative dispute resolution team, and also by a company secretarial department, Alsec Nominees Limited, which provides a full range of company secretarial services.

Practice areas:

Our goal is to remain a preferred firm for facilitating corporate and commercial transactions and resolving disputes of every description in the rapidly changing world of Nigerian and African business and finance across our specialisations and practice areas.

Aviation, Intellectual Property, Banking and Finance, (Mergers, Acquisitions and Restructuring), Business Establishment and Cooperate Immigration, Mining, Capital Markets, Mining, Oil and Gas, Real Estate, Tax, Fintech, Dispute Resolution etc.

Careers

If you are interested in applying for an Associate or Senior Associate position with the firm, please submit a typed cover letter, resume or transcript to: recruitment@uubo.org

If your application meets our current hiring needs, we will contact you to schedule a preliminary interview. We would prefer that as a minimum qualification, applicants should have attained at least a Second Class degree both at University and at Law School, as we feel that this will enable them to assume fully the intellectual challenges of working with the firm.

Contact:

LAGOS OFFICE
St Nicholas House, (10th, 12th & 13th Floors),
Catholic Mission Street, Lagos,
Nigeria.

T: +234 1 2774920, 2774921, 2774922, 2719811, 2719812, 2719813
E: uubo@uubo.org
F: +234 1 4622311
W: www.uubo.org

PORT HARCOURT OFFICE
16, Khana Street, D-Line,
Port Harcourt, Rivers State,
Nigeria.

T: +234 (0) 9093710785
E: uubo@uubo.org
F: +234 1 4622311
W: www.uubo.org

Abia House, 2nd Floor,
Plot 979, 1st Avenue,
Off Ahmadu Bello Way,
Cadastral Zone A0,
Central Business District,
Federal Capital Territory Abuja,
Nigeria.

T: +234 9 2909151
E: uubo@uubo.org
F: +234 1 4622311
W: www.uubo.org

4. Olaniwun Ajayi LP

Website: https://www.olaniwunajayi.net/

About:

Olaniwun Ajayi has in nearly 60 years distinguished itself as the leading Nigerian commercial law firm. Here, we provide bespoke, client-focused services, and are driven by the need for excellence in all we do.

With a team of over 100 lawyers, including multiple Silks, and a broad range of service offerings across virtually all the sectors of the economy, we are able to assist our clients to navigate the complexities that may arise in their businesses and help achieve desired outcomes.

Practice area:

Over six decades, Olaniwun Ajayi has established a sterling reputation for a wide range of corporate, commercial and contentious work.

Our clients tap from the experience and expertise of our lawyers on complex transactions, high-stakes mergers and acquisitions, capital markets activities, intellectual property rights, regulatory compliance, tax issues, and virtually every other type of legal matter that can impact the modern business or institution.

Careers:

A career at Olaniwun Ajayi carries a few promises. You will not be bored. You will face problems you haven’t seen before. You’ll meet interesting and friendly people, and you’ll always work in teams. You’ll need to show an exceptional willingness to pitch in to get the job done.

If would like to join our Legal or Business Services team, please send your CV to us at recruitment@olaniwunajayi.net.

Contact:

Lagos: The Adunola, Plot L2, 401 Close,
Banana Island, Ikoyi, Lagos, Nigeria.

Abuja: 4th Floor Leadway House Plot 1061, Cadastral Avenue, Central Business District,
Abuja, Nigeria.

Portharcourt: Flat 5, BICS Suites, 25 Herbert Macaulay Street, Old GRA, Port Harcourt,
Nigeria.

LAWYERS@OLANIWUNAJAYI.NET
+234-1-270-2551, 0700-OLANIWUN
OLANIWUNLAWYERS@OLANIWUNAJAYI.NET

5. AELEX

Website: https://www.aelex.com/

About:

ǼLEX is a leading Commercial & Dispute Resolution law firm. We are one of the largest full-service law firms in West Africa with offices in Lagos, Port Harcourt and Abuja in Nigeria and Accra, Ghana.

Practice areas:

We provide legal services involving commercial practice areas that cover a broad spectrum of matters relating to Project Finance, Litigation & Arbitration, Oil & Gas, Agriculture, Capital Market & Securities Law, Power, Tax Law, International Trade Law, Securities Law, Energy & Infrastructure, Banking & Finance Law, Aviation & Maritime Law, Intellectual Property Law, Technology Law, Telecommunications Law, Media & Entertainment and Financial Technology.

Careers:

We are looking for lawyers with strong academic achievements, confident legal skills and excellent communication skills.

To apply for a position, please click here.

Secondary School and Undergraduate Internship

Considering a career in Law? Our internship programme provides just the right exposure to legal matters, legal research and client advisory that relates to our various practice areas.

To apply, click here.

Contact:

LAGOS

4th Floor, Marble House, 1 Kingsway Road, Falomo Ikoyi, Lagos, Nigeria.
Telephone: (+234-1) 4617321-3, 2793367-8, 7406533 (+234 703 413 6930),
Facsimile: (+234-1) 4617092
E-mail: lagos@aelex.com

ABUJA

4th Floor, Adamawa Plaza, Off Shehu Shagari Way, Central Business District, FCT Abuja.
Telephone: (+234) 705 029 1874; 806 931 3453
E-mail: abuja@aelex.com

PORT HARCOURT

2nd Floor, Right Wing UPDC Building, 26 Aba Road, Port Harcourt, Rivers State, Nigeria.
Telephone: (+234) 9033150806, 8113332825,
Facsimile: (+234-84) 464516
E-mail: portharcourt@aelex.com

ACCRA

Suite C, Casa Maria, 28 Angola Road, Kuku Hill
P.M.B CT 72, Cantonments, Accra, Ghana
Telephone: (+233-0302) 224846, 224824, 0508 976288, 0508 675958
Email: accra@aelex.com

6. Templars

Website: https://www.templars-law.com/

About:

Templars is a full service law firm with the know-­how to handle the legal needs of clients in Nigeria’s peculiar business environment.

With offices in the cosmopolitan cities of Lagos and Abuja, Templars is strategically placed to offer top quality legal services to our clients in the major economic hubs of the country.

Practice areas:

At Templars, we pride ourselves on our sector strengths which cover diverse areas of the law including Corporate and Commercial, Energy and Natural Resources, Telecommunications, Foreign Investment, Shipping and Maritime, Aviation, Taxation, Commercial Litigation, Alternative Dispute Resolution and Project Finance.

Careers:

We welcome applications from hardworking and self-motivated lawyers who want to be part of a leading law firm.  To apply, please send your CV and a covering letter to careers@templars-law.com.

Contact:

LAGOS OFFICE

Templars
The Octagon
13A, A. J. Marinho Drive
P.O. Box 72252

Victoria Island
Lagos, Nigeria +234 1 270 3982
+234 1 279 9396

Fax: +234 1 2712 810

ABUJA OFFICE

Templars6, Usuma CloseOff Gana Street
Maitama
Abuja FCT, Nigeria

+ 234 9 291 1760

 +234 1 271 2810

info@templars-law.com, communications@templars-law.com

7. SPA Ajibade & Co

Website: https://spaajibade.com/

About:

S.P.A. Ajibade & Co. is a leading Corporate and Commercial Law firm based in Nigeria. Established in 1967, it has been at the forefront of developments in commercial practice in Nigeria and has continuously rendered sound technical advice and tailored customer solutions to its local and international partners. To our clients, S.P.A. Ajibade & Co. is a reliable partner and trusted counsel in various transactions and dispute resolution processes. We see our duty to our client as that of not just providing excellent technical advice, but also providing solutions that address and enhance a client’s purpose and business objective.

Practice areas:

Dispute Resolution, Intellectual Property & Technology, Corporate Finance & Capital Markets, Corporate Governance & Company Secretarial Services, Real Estate & Succession, Taxation, Privacy & Data Protection, Energy & Natural Resources, Telecommunication.

Careers:

At S. P. A. Ajibade & Co., we are always interested in talented and motivated professionals who bring fresh ideas and creative solutions.

If you are interested in joining our dynamic team, please submit your application with your resume to hr@spaajibade.com.

NYSC

We take candidates under the National Youth Service Youth Corps (NYSC) as Trainees.

If you are interested in joining our dynamic team, please submit your application with your resume to hr@spaajibade.com.

Internship

Our internship programme is open to secondary school students, undergraduates and graduates who are interested in a career in the legal industry. Interns are introduced to practical aspects of law and law office management.

The internship periods run between one week and eight weeks. Our fixed period for longer-term internships must be undertaken between July – September of each year, whilst short term internships are on a rolling basis throughout the year.

Qualification:

High school students must have completed their first year in senior secondary school (or its equivalent), whilst undergraduates must be in good academic standing. An undergraduate must indicate his/her cumulative grade point average (CGPA) as at the end of his/her last semester.

Interested students or graduates should please submit applications with resumes not exceeding two pages to hr@spaajibade.com.

Contact:

Lagos Office

Suite 201, SPAACO House,
27A Macarthy Street, Onikan.
P. O. Box 80373, Lafiaji, Lagos.

+234 1 4605091; +234 1 2703009
Fax: +234 1 4605092

lagosoffice@spaajibade.com

Ibadan Office

Top Floor Suite, SPAACO House
138, Liberty Stadium Road
P. O. Box 151 Ibadan.

+234 2 7511717; +234 2 8721711

ibadanoffice@spaajibade.com

Abuja Office

Suite A312, Garki Mall
Plot 1580, Damaturu Crescent
Off Kabo Street, Garki II, FCT, Abuja.

 +234 909 481 9809

abujaoffice@spaajibade.com


There you have it! Some of the top law firms in Nigeria. There are more, many more.

Ultimate Guide to CAC Registration in Nigeria – Faith Adesiyan

CAC REGISTRATION IN NIGERIA

Want to know about CAC registrations in Nigeria? Company incorporation, Business name, TIN, Incorporated Trustee etc.? Stick with me!

We have recommended a verified lawyer for you.

The Corporate Affairs Commission (CAC) is an independent body. It is saddled with the responsibility of regulating the formation and management of companies, businesses, churches, mosques and non-governmental organizations.

Starting or developing business in a foreign land may be discouraging since you are not familiar with the way things are done there. But when it comes to Nigeria, the process is fairly straightforward. Entrepreneurs or investors find it very easy to set up their businesses or company in Nigeria as it requires little or no stress at all.

Follow this article to the end as it will help in enlightening you about CAC registration in Nigeria.

Company Registration

Here are the steps to registering a company in Nigeria.

1. Company Name

The first step to company registration is getting the name of your company registered with the corporate affairs commission. This commission will therefore help you to check if the name is available. But cases in which the name has already been in existence, confusing or includes words that are mostly used by government organizations, the name can be rejected.

However, submission of two names for your business can be advised just in case one has already been taken, the other will be available. This will save you from unnecessary stress and story that touches the heart.

2. Prepare the Memorandum Of Association (MOA)

Here, the involvement of a legal practitioner will be of great help. He/she is the best qualified person that can help in preparing your MOA (Memorandum Of Association) and other documents that has to do with the objectives of the company you intend to register.

He is expected to know the names of those who has shares in the company, Carry out thorough investigation on each shareholders or directors and be sure no one has any criminal record, must be of sound mind and must be above eighteen years of age. Each of them will then be properly inspected by the corporate affairs commission through the means of identification provided.

3. The Pre-registration Form

There’s a form you are required to fill by the CAC. In this form you will mention all important details about your company and submit it again to the commission together with all necessary documents.

This particular process can possibly be made easy by the lawyer in charge.

4. Filling fee and stamp duty payment

Before an applicant can get his/her Memorandum and Articles of Association with some of the incorporation forms stamped, he must make payment through a designated bank into the Federal Inland Revenue Services.

Then after the payment, the stamped forms and documents will be submitted to the corporate affairs commission.

The returning of the Certificate of Incorporation to the applicant may likely take up to six weeks from the date of submission.

5. Prepare the scanned copy of your documents

At this level, the signed scan copy of your pre- registration forms and documents mentioned in third step will be prepared and further uploaded online for processing. It can take the format below:

  • Form CAC1.1
  • MAA ( Memorandum and Articles of Association)
  • Identification forms of subscriber(s)/Director(s) and shareholder(s) recognized by CAC
  • Evidence of payments made to the corporate affairs commission.

6. Submission of the Original documents

The submission of the original documents is the final step to take in registering your company i.e you are to submit all the originals of the documents scanned in step v.

  • Requirements for company registration
  • Your lawyer’s statement of compliance
  • Necessary documents to register a company in Nigeria
  • Memorandum and Articles of Association
  • Evidence/receipt of your stamp duties payment
  • portfolios, particulars and list of the initial subscribers of your company
  • notice of your business registered address
  • The number of the members of your company may range between 2 to 50
  • The age of your company members must not be below 18 years of age
    Note, your company can’t be registered if any of your members are disqualified by CAMA or of unsound mind.

Business Name Registration

Business name registration entails the submission of your business name to the state so as to get it on their list of business names.

Reasons why you should get your business name registered with CAC

i. Registering your business name save you from losing your personal assets i.e your incorporated business is deemed by law to be a complete separate legal entity and by implication, you cannot not be held responsible for the debts owed by your business unless you had personally guaranteed the debt/loan. In other words, your personal assets can’t be seized to repay your company’s debt.

ii. The rapid growth and expansion of your business is dependent on the resources available. You can easily attract or raise money for your business from investors or government when your business name is registered. This shows the investors that you already have a formal structure in place as no one will be willing to invest in an unregistered business.

iii. The incorporation of your business gives it reputation and respect. It can also suggest that you business has reached a certain level of recognition and prominence. It also portrays your business as one with effective, efficient and responsible management and this automatically gives your clients or customers some sense of trust or certainty.

iv. Incorporation of your business gives it an unlimited life span i.e even the death of the owner or change in ownership of the business does no affect the continual existence of the business. The only circumstance under which the existence of a company can be affected is if it is formally shut down by the order of the law court. This claim proves a company to be a complete legal entity. In a nut shell, incorporation of business allows it to live longer than you and many generations.

v. Once you register your business with the Corporate Affairs Commission, you’re save from having any problem in the future regarding your business name because it’s the responsibility of the CAC to see to it that your business name is protected and cannot be used by any organization or company across the country. In other words, the incorporating your business make it distinct from other companies in Nigeria.

Here are the steps to register a business name with CAC:

  • Make a choice of your business name and check for it availability/ accessibility
  • Your pre- registration form must be filled properly
  • Your filling fee must be paid
  • All necessary documents must be ready for upload
  • Originals of your documents will be submitted to the CAC.

It’s worthy of note that having a business name is one of the most important thing in setting up a business. Even if you are not sure of the legal form you want to use, as long as you have a name in mind, register it. You can always change your mind when you have the full picture of the business, but the registration will protect your name from any unauthorized use.

TIN registration

Taxpayer Identification Number (TIN) is a unique number set aside or earmarked to identify an individual or company as an appropriate registered taxpayer in Nigeria.

The Nigeria law states that apart from incorporation with the Corporate Affairs Commission, every company is to register for tax purposes.

The following are steps to be taken in order to get your TIN registration done online:

Stage 1: visit the joint tax board portal.

Stage 2: input your date of birth

Stage 3: input your preferred search means either BVN, NIN or registered number.

Stage 4: input the digit of the search means you chose in the previous stage. For instance. If you chose NIN in stage 3: enter your NIN digit.

Stage 5: Verify that you are not a robot by clicking the reCAPTCHA box.

Stage 6: Click the search button to get your TIN

Church/Mosque/NGO

To start with, you need to make a choice of the name of the particular church, Mosque or NGO and be sure that the name you’ve chosen is accessible and has not been used by anyone.

Also bear in mind that you will be ask for the type of business. Since churches, mosques and non-governmental organizations fall under this category, you are expected to use incorporated trustees.

Secondly, you will set up a board of trustees that will stand in as shareholders/directors. This board of trustees are usually saddled with the responsibility of managing the administration of the church or mosque. They also monitors the church, mosques or NGO’s adherence to law and regulation.

More so, immediately the Corporate Affairs Commission (CAC) approve the chosen name, then the next line of action is to publish the approved name of the church or mosque in at least three(3) newspaper in the country. It is necessary that at least one out of the three newspaper must be somewhere close to the church or mosque area.
Lastly, one major question you will be asked is ‘what are the aims and objectives of the church, mosque or the NGO you are setting up’ so you must have the answers ready.

The members of the board of trustees are also expected to fill their forms correctly and be sure that all their personal information required are carefully included. Moreover, the application form is to be submitted with the following attachment:

– Two passport photographs of the board of trustees

– applicant letter

– Originals of the published newspaper

– 2 copies of the NGO’S Constitution

– memo of the meeting where the trustees were appointed and so on…

Conclusion

CAC Registration is an important legal requirement of setting up either businesses, churches, mosques or NGO. The truth is that, investors will only be interested in a well registered company. Therefore, for an entrepreneur to qualify for certain benefits either from investor or government, it has to be registered as a company.


Written by – Faith ADESIYAN

Faith Adesiyan is a phenomenal writer with over 3 years writing experience. She has written quite a number of poems, articles, and short write-ups. Her areas of specialized expertise include; spoken word, articles, and academic writing.
WhatsApp contact – 08163859839

Faith Adesiyan

Criminal Liability of Corporate Entities (Companies) in Nigeria – Inioluwa Olaposi

Criminal Liability of Corporate Entities in Nigeria and Other Jurisdictions

Previously at Common law, it was believed that corporate entities cannot be liable for criminal offences, because they lack any mental calculations for the satisfaction of mens rea, neither can they be subjected to imprisonment of corporal punishment. Corporate entities were only criminally liable for acts of nonfeasance. Later, it was extended to misfeasance acts.

However, presently under common law, corporate entities are liable for acts involving criminal liabilities with limitation to acts like assault, manslaughter, murder, and rape. According to Stephen Griffin in Griffith v. Strudebraker, (1924), “a corporate entity may not be convicted of murder or manslaughter as the sentence for that offence, namely, a mandatory penalty of death or life imprisonment respectively, is incapable of being imposed against an artificial entity.”

Also, Stable J. in Moore v. Brestlet ltd (1944) states as follows, “….perjury and offence which cannot be vicariously committed or bigamy…..offences of which murder is an example, where the only punishment the court can impose is corporal, the basis of which the exception rests being that the court will not stultify itself by embarking on a trial in which if a verdict of guilty is returned, no effective order by way of sentence can be made.”

Furthermore, in the words of Smith and Hogan (2002), “Since a corporation is a creature of law, it can only do such acts as it is legally empowered to do, so that any crime is necessarily ultra vires and the corporation having neither body nor mind, cannot perform the acts or form the intent which are prerequisite of criminal liability.”

The Nigerian legal system, as fashioned in line with the English system, adopts the common law position to the effect that corporations can be criminally liable but not for all offences.

It is noteworthy that it is difficult to say if the Criminal or Penal Code of Nigeria contains any explicit provision in relation to the process of enforcing criminal liability on corporate entities.

In Attorney-General (Eastern Nigeria) v. Amalgamated Press the court, per Ainley, CJ., stated that a company cannot be charged with an offence for which imprisonment is the only available punishment. However, there are only few punishments which are strictly fixed by law. Therefore, the court has applied the payment of a fine as an alternative in many cases. (Thus, in R v. Service Press Ltd, the court imposed a fine for the punishment of contempt of court, in place of imprisonment.)

See also: Corporate Liability in civil matters (Nigeria)

Statutory Liability

While the common law doctrines of vicarious liability and identification theory are applicable in Nigeria, the state of criminal liability of corporate entities is better approached from the standpoint of statutory liabilities.

There are many statutes in Nigeria, both of federal and state legislations, that impose liability on corporate entities. Such statutory-created offences are often strict liability offences – i.e. they allow the acquisition of criminal liability without the need to prove any fault on the part of the committer.

Such statutes include the Food and Drug Act; Standard Organization of Nigerian Act; Dangerous Drug Act, The Consumer Protection Council Act, The Environmental Sanitation Edict of Edo State, Oil in Navigable Waters Act, etc.

In such a way as analyzed by the facts under discussion, a company can be found guilty of a criminal offence in Nigeria. Therefore, in R v Zik Press (1947) a corporate entity was found guilty of an offence of contravening Section 51(1)(c) of the Nigerian Criminal Code Act. Similarly, in Mandilas & Karaberis v. COP (1958), a corporation was convicted of the offence of stealing by conversion under sections 390 and 383 of the Nigerian Criminal Code Act.

Other Jurisdictions

Nigeria is not alone in this imbroglio. Other jurisdictions are also providing ways of dealing with this challenge.

In the United Kingdom, companies are made liable for the offence of manslaughter associated with gross negligence through the promulgation of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007. Also, this act seeks to provide for the prosecution of companies when there are fatal consequences resulting from gross failure in the organization, particularly in relation to the management of health and safety.

The principle of criminal liability under the federal laws of the United States of America is based on the doctrine of respondeat superior or vicarious liability and aggregation doctrine. In United States v. Hilton Hotels Corporation, the court relied on the respondeat superior doctrine in arriving at its decision. This principle is such that the action of an employee – within the scope of his employment – is taken directly as that of the corporation. Therefore, the company is liable if the employee commits a crime.

Conclusion

Corporate crimes exist, and they are committed like ‘private’ crimes. The determination of liability of corporate entities is dependent on the available laws of any jurisdiction.

In the Nigerian scenario, it is difficult to affirm that the major statutes of criminal enquiries – i.e. the Criminal and Penal codes, contain any solution to the challenge of determining the culpability of companies in criminal matters. In the light of this, we must resort to particular statutory liabilities for such a determination.

However, it is recommended, in view of the prominent disasters including petroleum oil pipe and gas explosions, sea disasters, and collapsed buildings, that the Nigerian state should introduce an offence of corporate manslaughter, to ensure more preservation of lives and properties going forward.