Protection of New Plant Varieties in Nigeria

In order to fully understand the protection of plant varieties, it is expedient to explore the nature of new plant varieties and the concept of plant breeders’ rights. Generally, new plant varieties refer to novel group of plants, selected from within a species, with a common set of characteristics. It describes plants that have been developed through selective breeding, genetic modification, or other biotechnological methods. These new plant varieties can have different traits than the parent plants, such as increased yield, pest resistance, or disease resistance.

Assertively, Food and Agriculture Organization of the United Nations (FAO) defines new plant variety as that which is distinct, uniform, and stable, and that has been created or developed from genetic material of one or more parent varieties by any means of genetic modification (such as crossing, selection, or mutation), and has been granted plant variety protection or certification under national or regional legislation.

New plant varieties are protected by Plant Breeders rights. Plant Breeders’ Rights are a form of intellectual property that seeks to ensure the promotion of increased staple crop productivity for smallholder farmers involved in innovative plant production.

In addition, intellectual property (IP) according to the World Intellectual Property Organization (WIPO) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. In other words, new plant variety is indirectly a form of intellectual property. Indirectly in the sense that, it is protected under the Plant Breeders’ Right (PBR) which is a form of intellectual property. The protection of intellectual property are manifested in line with the established laws and customs of a state with indefatigable respect to international laws and customs such as the World Intellectual Property laws (WIPO).

Plant Breeders’ Rights (PBRs) are used to protect new varieties of plants that are novel, distinguishable, uniform, and stable. A PBR is legally enforceable and gives the owner, exclusive rights to commercially use it, sell it, direct the production, sale, and distribution of it, and receive royalties from the sale of plants. Therefore, the next question that arises in this article will be answered subsequently in the following.

Are New Plant Varieties Protected in Nigeria?

The importance of plant varieties to food security and protection cannot be overemphasized. They ensure that produced foods are safe, healthy and good for consumption. The first legislation regulating the development of new plant varieties and protecting plant breeders right in Nigeria is the Plant Varieties Protection Act (PVP) 2021.

This legislation regulates new plant varieties, inter alia. It grants exclusive intellectual property rights to plant breeders over new plant varieties (Plant Breeders Rights). It was enacted for the promotion of the marketing of new varieties in such a way that allows breeders to earn back the considerable costs involved in the long process of variety development.

However, there are certain requirements to be satisfied before new plant varieties are protected in Nigeria under the PVP 2021 in line with the UPOV requirements. The requirements for protection are the usual UPOV that is, the International Union for the Protection of New Plant Varieties, requirements which stipulates that it must be – new, distinct, uniform and stable. It must be new in the sense that the harvested material of the variety has not been disposed of with the breeder’s consent in Nigeria earlier than one year before the date of filing, or four years elsewhere (six years in the case of a tree or vine).

Similarly, it must be distinctive and distinguishable from other varieties in existence prior. Uniformity in its relevant characteristics and additionally, it must maintain stability in its relevant characteristics to remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle. Conclusively, UPOV provides a system that enables plant breeders to protect their innovations and obtain a return on their investment in developing varieties that meet the needs of farmers and consumers. It is pertinent to observe that the right granted by the PVP 2023 lasts for 20 years from the date of grant, except in the case of trees and vines where it is 25 years from date of grant.

Conclusion

The protection of new plant varieties in Nigeria is an important aspect of intellectual property law, and the enactment of the PVPA provides a system of registration and certification for new plant varieties and protection of plant Breeders’ rights. Categorically, new plant varieties are distinct from other forms of intellectual property, like the copyright, trademark and patents. Additionally, it is important to understand the different types of intellectual property and how they work together to protect the rights of creators and innovators.

References

• “Nigeria’s plant variety protection: in line with international IP norms | Managing Intellectual Property”
• https://www.managingip.com/article/2a5d034hr8td8p0rej669/nigerias-plant-variety-protection-in-line-with-international-ip-norms
• “The Plants Varieties Protection Act 2021 — Opinion — The Guardian Nigeria News – Nigeria and World News” https://guardian.ng/opinion/the-plants-varieties-protection-act-2021/amp
• “Intellectual property rights in plant varieties” https://www.fao.org/3/y5714e/y5714e03.htm
• “Nigeria’s plant variety protection: in line with international IP norms | Managing Intellectual Property”
• https://www.managingip.com/article/2a5d034hr8td8p0rej669/nigerias-plant-variety-protection-in-line-with-international-ip-norms
• “What is Intellectual Property?” https://www.wipo.int/about-ip/en/
• “Nigeria: Plant Variety Protection Act, 2021 – Flora IP” https://www.floraip.com/2022/02/04/nigeria-plant-variety-protection-act-2021/

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Defamation of Character and Social Media

Defamation is the act of harming an individual’s character, reputation, or fame through false and malicious statements.

Online Defamation

The internet and social media, while powerful tools for social engagement, have also become a fertile ground for potential defamation. The core elements of online defamation, such as false statements that harm someone’s reputation, are essentially the same as traditional defamation. The major difference lies in the method of publication.

Online defamation occurs when someone’s reputation is tarnished through the dissemination of false information on internet platforms. While this concept is relatively new in the legal landscape of Nigeria, with only a few cases addressing it, other common law jurisdictions have produced numerous legal precedents that serve as persuasive guidance for Nigerian courts.

In Section 373 of the Criminal Code, defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by any injury to his reputation. Such matter may be expressed in spoken words or in any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony.

These actions can occur both physically and online, and they don’t have to be repeated; a single intentional false statement to a third party can still be considered defamation. In essence, the plaintiff must prove that the material in question is defamatory, relates to them, and was communicated to a third party.

Once a case of defamation (libel) has been established the victim is entitled to general damages as compensation for the loss of his reputation and emotional distress.

Additionally, Section 375 of the criminal code states that “any person who publishes any defamatory matter is guilty of a misdemeanour and is liable to imprisonment for one year.”

In addition, “any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.”

See also: Defamation: Definition, Types, Vulgar Abuse

Types of Defamation

There are two types of defamatory acts recognized under the Nigerian law;

1. Libel which is basically written defamation and
2. Slander, verbal defamation. 

Elements of a Successful Defamation Action

For a claim in defamation to succeed, the plaintiff must successfully prove three crucial elements:

 • That the words are false.

 • That the words referred to the plaintiff.

 • That the words were published to at least one person (third party) other than the plaintiff.

These elements were given recognition in the case of Wala v. FGN (2020).

In certain cases involving slander, where it is not actionable per se, the plaintiff will also have to prove special damages to his person. This means that he has to prove special losses and harm that the defamatory publication must have caused him.

Defenses to Defamation

If a legal action is taken against a publisher of a potentially defamatory post or article, there are certain defenses that may be available to the person being sued:

1. Justification

According to the Black’s Law Dictionary, “Justification’ is defined as an “explanation with supporting data. A maintaining or showing a sufficient reason in court why the defendant did what he is called upon to answer, particularly in an action of libel…”

Essentially, this implies that if a publisher can establish the truth of their statement, they may not be held liable for defamation. See the case of Anyah V. A.N.N. LTD. (1992) NWLR (PT. 247)319 (1992) 7 SCNJ 47

2. Fair Comment

Black’s Law Dictionary defined Fair Comment as “a term used in the law of libel applying to statements made by a writer in an honest belief of their truth, relating to official acts, even though the statements are not true in fact”.

To rely on this defense, a publisher must ensure that their comments are based on accurately presented facts, and the statements must not contain unfound allegations of corrupt or dishonourable intentions unless supported by facts, and must genuinely express the publisher’s opinion. See the case of Okolie v. Marinho (2006) 15 NWLR (PT. 1002) PG.338 PARAS. A-B

3. Privilege

Privilege is defined in Black’s law dictionary as “an exemption from liability for the speaking or publishing of defamatory words concerning another, based on the fact that the statement was made in performance of a political, judicial social or personal duty.”

Privilege can either be absolute or conditional.

Absolute Privilege

In such cases, protection is afforded to the speaker or publisher without regard to their intentions or the accuracy of the statement. This protection applies to situations involving judges, witnesses in court proceedings, and statements made during legislative debates.

Conditional Privilege

It is settled law that that an occasion of qualified privilege arises when the person making a publication has a legitimate interest or obligation, whether it is a legal, social, or moral duty, to convey that information to someone who also holds a corresponding interest or duty to receive it. This presence of such an interest or duty negates the presumption that the publisher’s motives were driven by other factors, which is typically assumed in defamation cases, and it grants the occasion a privileged status unless there’s clear evidence of actual or intentional malice. See the case of Uko v. Mbaba 2001 4 NWLR (PT 704) 460 CA

See also: Nigerian cases on Defamation

Conclusion

When posting or commenting online, it is crucial to exercise extreme caution and avoid making careless statements that could be construed as defamation. In this digital age where there is an abundance of online content, it is often challenging to distinguish between what is offensive, morally acceptable, a joke, or a genuine attack.

While an everyday blogger or online enthusiast may perceive their post or comment as harmless humor or a light-hearted jab, the legal perspective often differs, placing a certain level of responsibility on the author and considering how it might impact the subject when read by others. This is a significant challenge in 21st-century internet use and carries far-reaching consequences.

Therefore, it is advisable to thoroughly review potentially sensitive content before posting or reposting to ensure that no one’s reputation is being harmed.

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Hearsay Evidence

The rules of hearsay evidence prevents a witness to testify that he heard another person say that an accused committed an offence, if the aim is to establish the truth that such person committed the offence.

INTRODUCTION

In many instances, the court has been meticulous in admitting testimonies of a person, other than that who had witnessed a particular fact in issue. The general principle of law is that such testimonies are inadmissible evidence. This is thus referred to as hearsay evidence and has been classified amongst exclusionary rules of evidence.

Both at common law and in Nigeria, hearsay evidence arises where a witness in his own testimony makes a statement, oral or written made by another person who experienced, heard and saw an incident happen in order to establish the truth asserted.

Simply put, the rules of hearsay evidence prevents a witness to testify that he heard another person say that an accused committed an offence, if the aim is to establish the truth that such person committed the offence. But, he can give evidence of what someone told him as a proof that someone was his informant and not when the purpose of the evidence is to establish the truth of what is contained in the statement asserted.

For instance, Mr. Frank robbed a UNN student returning home from night class on gunpoint and Chioma saw Franklin while he was doing the act. However, the next day Chioma traveled abroad but told Mr. Chima about what she witnessed. Then the question becomes: if Mr. Franklin is arrested and brought before the court, can Mr. Chima give evidence to prove the fact that he saw Franklin robbing the student or can he testify as to the truth of who the armed robber was?

The legal implication as expounded in Section 37 of the Evidence Act 2011, is that Mr. Chima can only give evidence to prove the fact that Chioma informed him, but he is prevented from testifying as to the truth of the information.

Most legal scholars have argued that the basis for the exclusion of hearsay evidence is the weakness and untrustworthiness of such to be relied upon by the court, same not being a testimony of a person who witnessed the event, and absent before the court to prove the veracity of such.

Nevertheless, there are exceptional circumstances in which the law permits the admissibility of hearsay evidence, to avoid wreaking hardship on a particular party. This paper is an appraisal of the general principle and the exceptions to the admissibility of hearsay evidence.

The Concept Of Hearsay Evidence

Pursuant to Section 37 of the Evidence Act, the phrase hearsay evidence is defined as a statement:

(a) oral or written made otherwise than by a witness in a proceeding; or

(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.

Similarly, Section 39 of the Nigerian Evidence Act defines hearsay evidence as statements, whether written or oral of facts in issue or relevant facts made by a person: (a) who is dead; (b) who cannot be found; (c) who has become incapable of giving evidence, or (d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under Sections 40 to 50.

Accordingly, as posited by Cross & Tapper, hearsay evidence is a statement other than one made by a person while giving oral evidence in the proceedings and is inadmissible as evidence of any fact stated.

The learned authors further stated that the rationale is contingent upon the increased dangers of impaired perception, bad memory, ambiguity, and insincerity coupled with the decreased effectiveness of conventional safeguards, that hearsay is regarded as so particularly vulnerable as to require a special exclusionary rule.

Admissibility of Hearsay Evidence

The rule governing the admissibility of hearsay evidence was given judicial confirmation by the Privy Council, in the case of Subramanian v. Public Prosecutor[1], where it was held thus:

Evidence of a statement made to a witness by a person who is not himself called a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

The above court verdict was further approved in Mawaz Khan v. The Queen[2], where Lord Hodson held thus:

Before considering the facts of this case it is convenient to state what is meant by ‘hearsay’ rule for the contravention of rule makes evidence inadmissible. The accepted textbooks in the Law of Evidence are at one in saying that such statements are inadmissible to prove the truth of the matter stated. Wigmore on Evidence, puts the matter clearly in this way: The prohibition of the hearsay rule, then does not apply to all words or utterances merely as such.

If the fundamental principle is clearly realized, its application is a comparatively simple matter. The hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence of the truth of the matter asserted.

The effect of such evidence is to discountenance it as was held in Orji v. Ugochukwu[3], such that where it has been utilized by the court, it should be regarded as inadmissible evidence and expunged.

Exceptions to the Rule against Hearsay Evidence

In recognition of the main objective for the attainment of justice, the evidential statute provides for instances where hearsay evidence can be admissible, as enshrined in Section 39 of the Evidence Act. This exceptions are as follows:

1. Dying Declaration

Section 40 of the Evidence Act provides for the admissibility of statements made by deceased persons, relating to the cause of their death. This provision applies to all court proceeding. However, in Okoro v. The State[4], it was held that before a statement can be admitted as dying declaration, it must meet the conditions that:

the declarant must have died before the statement, written or verbal is made; the statement must relate to the deceased’s cause of death; the cause of the death must be in issue in the trial in which the statements is to be proved; and the declarant, at the time of making the statement, must have believed himself to be in danger of death.

In R v. Woodcock[5], it was held that the general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.

2. Statement made in the ordinary course of business

Section 41 of the same Act provides for the admissibility of a statement, whether written or oral, made by a person in the ordinary course of his business. Thus, in R v. Lawani[6], an entry made by a police officer in an Accident Report Books before his death, was held admissible before the court, having been made in the course of his duty.

3. Statement made against the interest of the maker with special knowledge

Section 42 of the Act allows the admissibility of a statement made by a person against his own proprietary or pecuniary interest, such that the said person has special means of knowing the matter and has no interest to misrepresent it.

4. Statements made by a person regarding an opinion as to the existence of any public right or custom or matter of public or general interest

Section 43 provides for the admissibility of statements made by a person regarding an opinion as to the existence of any public right or custom or matter of public or general interest, in that if it existed, he would have been likely to be aware, notwithstanding whether any controversy arises after such statement is made.

5. Statements in respect of the existence of a relationship

As provided under section 44, hearsay is admissible in respect to the existence of a relationship, where a person who had made the statement had special means of knowledge of such relationship, such as marriage or adoption between persons.

6. Declarations made by a deceased testator

Section 45 of the Act provides for the admissibility of declarations made by a deceased testator, regarding his testamentary intentions and as to the contents of his will.

This pertains to circumstances where: the will of the testator has been lost and the contents are in question; the question is whether an existing will is genuine or not; and where the question is to determine whether out of various documents, any and which constitutes his will.

In the case of Sudgen v. Lord St. Leonards[7], the will of Lord St. Leonard, a famous Judge was missing at his death and the question before the court was the content of the will. His daughter who knew most of the contents was able to quote most of it from her memory.

Corroboratively, some other witnesses testified as to statements made by the deceased before and after the execution of the will concerning its contents. The court of Appeal held that the statements made by the deceased before or after he had executed the will were admissible as exceptions to the hearsay rule.

Conclusion

Apparently, hearsay evidence is generally inadmissible, due to its susceptible nature, which also makes it vulnerable to fabrication of facts.

It has been reasoned that a person reiterating such statements may have misperceived the actual wordings of the original maker or usurping the role of an interpreter as to the implication of what was said.

However, both legislative enactments and judicial precedents have recognized the admissibility of hearsay rule in some exceptional circumstances.

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[1] [1956] 1 WLR 965.

[2] [1967] 1 AC 454.

[3] [2009] 14 NWLR, part 1161, p. 228 at p. 233.

[4] [1967] NMLR 189.

[5] [1789] 1 Leach 500.

[6] [1959] L.L.R 97.

[7] [1876] IPD.

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Breach of Contract and Remedies

A breach of contract occurs when one party fails to fulfill their obligations, either partially or entirely, or communicates an intention to fail in performing their obligations, or otherwise seems incapable of fulfilling their obligations.

In the realm of day-to-day business transactions, the increasing complexity of these dealings has elevated the drafting of contracts from a mere preference to an absolute necessity. This shift is primarily due to the frequent emergence of disputes regarding the precise terms of contractual business relationships.

In such cases, it is crucial to emphasize that the contract document holds paramount significance. When these disputes reach a legal forum, such as a Court of Law, the terms explicitly outlined within the contract become the focal point for resolution.

When parties enter into a contract, there is an expectation that the contract will eventually come to an end, typically when the agreed-upon performance has been completed. When a contract is discharged, it means that the rights and obligations of the parties have reached their conclusion, and the contractual relationship has been terminated.

A breach of contract occurs when one party fails to fulfill their obligations, either partially or entirely, or communicates an intention to fail in performing their obligations, or otherwise seems incapable of fulfilling their obligations. In other words, a breach can happen in three situations:

a. When a party explicitly states that they do not intend to fulfill their obligations.

b. When a party fails to fulfill their obligations without communicating their intention to break the contract.

c. When a party appears to be incapable of fulfilling their obligations.

In legal principles, it is a widely recognized concept that when a wrong occurs, there should be a corresponding remedy. This principle holds true for breaches of contracts, where legal remedies are typically available for the injured party. Among the array of remedies, the most prevalent one is the award of damages, although in certain cases, a court may also issue specific performance orders or injunctions.

See also: Contract in Law

Damages: Breach of Contract Remedy

Damages are a standard legal remedy for breaches of contract. The foundation for this common law remedy was initially established in the case of Robinson v. Harman[1], but its modern interpretation took shape in Hadley v. Baxendale[2].

When one party breaches a contract, the damages awarded to the other party should, by principle, be those that naturally flow from the breach or those that both parties would have reasonably contemplated as likely consequences when they entered into the contract.

The overarching goal of awarding damages is to restore the innocent party to the position they would have been in had the breach never occurred. However, it is important to note that the party responsible for the breach is only liable for damages that were reasonably foreseeable at the time of contract formation.

The rule of damages’ remoteness, as articulated by Anderson B in Hadley v. Baxendale, categorized financial losses into two groups: normal and abnormal losses.

Normal losses are automatically recoverable, while abnormal losses can be recovered only if the party in breach was informed of the specific circumstances that could lead to such losses at the time the contract was made.

This rule was further clarified in the case of Victoria Laundry (Windsor) Ltd. v Newman Industries Ltd[3]. In this case, the plaintiffs, who were launderers and dryers, needed a larger boiler to expand their business.

The defendant agreed to sell and supply the boiler, with the plaintiffs expressing their urgency to have it as soon as possible. However, the defendant delivered the boiler five months late. As a result, the plaintiffs successfully sued for the loss of profits, as these losses were foreseeable given the surrounding circumstances.

Types of Damages

1. Specific and General

In the context of damages arising from a breach of contract, there is a common distinction between general and specific damages. Specific damages typically involve quantifiable, well-defined losses with a clear monetary value.

For instance, if A agrees to sell a car to B for use as a cab, and the car turns out to be in terrible condition, B may seek compensation for both the loss of earnings and the cost to repair the car as specific damages.

On the other hand, when the court needs to determine or estimate the damages, the resulting amount is referred to as general damages.

2. Nominal Damages

In cases where one party breaches a contract but no actual losses are proven, or the innocent party fails to establish such losses, the court has the discretion to award nominal damages.

An example is the Nigeria Advertising and Publicity Ltd v. Nigerian Airways case, where nominal damages of 100 pounds were granted even though the plaintiff couldn’t demonstrate any specific losses resulting from the breach.

Nominal damages serve to acknowledge the violation of the injured party’s legal rights in cases where no actual losses are evident.

3. Exemplary Damages

Exemplary damages, which are intended to punish the defendant rather than solely compensate the plaintiff, are relatively uncommon in breach of contract cases. However, when they are awarded, it typically occurs in situations involving a breach of promise to marry.

An example can be seen in the case of  Uso v. Iketubosin[4], where the defendant and the plaintiff were engaged for a period of ten years. Suddenly, the defendant terminated the engagement without justifiable cause.

The woman was already thirty years old and had spent her most significant years with the defendant, affecting her marriage prospects. In this case, the court granted exemplary damages to the plaintiff as a form of punishment.

4. Liquidated Damages

Liquidated damages are pre-determined, specific monetary amounts outlined within the contract itself to be paid in the event of a breach. These amounts typically represent a reasonable estimate of the actual damages that could arise from such a breach.

Specific Performance: Breach of Contract Remedy

Specific performance, an equitable remedy granted at the court’s discretion, compels a party to fulfill their contractual obligations when damages are deemed inadequate.

The court’s decision to grant specific performance considers factors like the timeliness of the request, the party’s willingness to meet their contractual obligations, potential hardships faced by the party against whom the order is sought, the balance of benefits and costs, impact on third-party rights, and the presence of adequate consideration in the contract.

However, in cases like Taylor v H.B. Russel, specific performance may be refused when it would be impossible for the party to carry out the order due to the transfer of property titles or when it is likely to result in additional legal actions, and where hardships may arise for third parties, unless those third parties were aware of the contract for which specific performance is sought.

Injunction: Breach of Contract Remedy

An injunction is an equitable remedy that operates on a discretionary basis. It can take two forms: prohibitive, which instructs a party not to engage in a particular action, or mandatory, which compels a party to reverse something they have already done.

When considering the granting of an injunction, courts apply the balance of convenience test. If the harm that would be suffered outweighs the benefits of granting the injunction, it may be refused.

An important principle is that an injunction should not compel the defendant, directly or indirectly, to perform an act that could have been ordered through specific performance. For instance, in an employment contract, an employee cannot be restrained from breaching their obligation to work because this would essentially enforce specific performance of an employment contract. In contrast, contracts frequently enforced by injunctions are those involving restraint of trade.

An illustrative case where an injunction was granted is Warner Bros Pictures Inc v Nelson.[5] In this case, a film actress had signed an agreement with her employers (plaintiffs) not to work for any other organizations. She was prevented from breaching this agreement through the issuance of an injunction.

Conclusion

In conclusion, breach of contract remedies offer a multifaceted approach to addressing contractual disputes. Damages, specific performance, and injunctions play distinct roles in providing legal and equitable solutions.

These remedies ensure that parties are held accountable for their obligations and maintain the integrity of contractual relationships in the ever-evolving business landscape.

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[1] (1848) 1 EX.850

[2] (1854) 9 Ex 341

[3] [1949] 2 KB 528

[4] [1957] W.R.N.L.R. 187

[5] [1937] 1 KB 209

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Legal Perspectives to the Gaza Hospital Attack

The tragic attack on Ahli Arab Hospital, Gaza, on the 17th of October, 2023, allegedly by the Israeli airstrikes, which injured civilians causing extensive damage to the hospital facility highlights the intensity of the conflict between Palestine and Israel.

Ahli Arab Hospital, which began operation since 1882, was founded by the Church of England’s Mission Society. The attack left many Palestinians homeless and without essential health care, highlighting the need for peaceful resolutions to the conflict between states.

This article will examine the impact of the attack, explore the legality of the attack under international laws as well as proffer possible solutions to the unceasing conflict.

Nature of the Conflict Between Israel and Palestine

Prior to the attack, it was recorded that the Al-Ahli Arab Hospital serves the purpose of providing shelter to the displaced civilians while also providing succor to aggrieved families affected by the feud.^[1]

Primarily, the underlying dispute between Israelis and Palestinians can be traceable to the disagreement over the occupation of the territory of the city of Jerusalem by the two states.

It revolves around the legal status of East Jerusalem and especially the Old City of Jerusalem, while broader agreement exists regarding future Israeli presence in West Jerusalem in accordance with Israel’s internationally recognized borders.

The Applicability of International Laws to the Attack on Ahli Arab Hospital, Gaza

Under the international laws, the relationship that exists between countries and international organizations are governed by certain rules of conduct, customary legislations and conventions.

International laws or law of nations are derived from various sources including treaties, international customs, general principles of law recognized by civilized nations, judicial decisions and teachings of the most highly qualified publicists of the various nations.^[2]

As a matter of fact, the principle of pacta sunt servenda ensures that all international agreements are kept. Without such a rule, no international agreement would be binding or enforceable on parties subject to its sway. Therefore, all international laws signed and ratified by each country is binding and enforceable.

Significantly, international humanitarian law is a branch of international law. IHL is the law that regulates the conduct of war, jus in bello.” It is otherwise referred to as the law of war or the law of armed conflicts. It is a branch of international law that seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities (civilians) and by restricting and regulating the methods of warfare available to combatants.^[3]

Moreover, IHL applies to situations in armed conflicts. Armed conflicts are categorized into two; the international armed conflict and the non-international armed conflicts. The Israeli-Palestine conflict is a non-international conflict. Non-international conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State.^[4]

Furthermore, Article 3 common to each of the 1949 Geneva Conventions govern persons taking no active part in hostilities in the case of an armed conflict not of an international character and seeks to guarantee minimum levels of protection for them.

The Article 3 of the Geneva Convention seeks to ensure humane treatment of civilians and noncombatants in war times. One significant effect that it has had is the recognition that parties to a conflict are not limited to States, but can also extend to non-State actors in this context. This is regardless of their legal personality, status or legitimacy under international law.

Under the Rome Statute of the International Criminal Court (ICC), the murder of wounded and sick people, as well as other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health, may amount to crimes against humanity or war crimes. See Article 7(1)(a) (k) of the Rome Statute.

As accorded under international law, Parties to an armed conflict must take measures to protect medical units from attacks, such as ensuring that they are not situated in the vicinity of military objectives. See GC I, Article 19; GC II, Article 22; GCIV, Article 18; API, Article 12; AP II, Art. 11; Rule 28 of Customary International Humanitarian Law.

Broadly speaking, attacking a health care unit that presents as a safe haven for internally displaced civilians is deemed as a cowardly approach on the part of the forces. Note, however, that the Israeli Forces and the Hama “militants” are claiming to have no involvement in the Ahli hospital attack.

Nonetheless, deliberately attacking a health care unit is widely considered a violation of international humanitarian law. The Geneva Conventions and the Rome Statute of the International Criminal Court both prohibit attacks on medical facilities, and such attacks are considered war crimes.

War crimes is defined in what Fernando Traversi of the International Center for Transitional Justice (ICTJ) describes as the premeditated, planned and deliberate killing of civilians — that’s a clear war crime. Indiscriminate violations of international humanitarian laws set pace for the prosecution of leaders and combatants or soldiers suspected to be involved in war crimes.

As mentioned in the foregoing laws, intentionally directing attacks against “hospitals and places where the sick and the wounded are collected, provided they are not military objectives” and against “medical units” using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in international armed conflicts.

Moreso, Rule 28, Volume 2 Chapter 7 Section D provides that health care units exclusively assigned to medical purposes must be respected and protected in all circumstances. It is the position of the law that parties to an armed conflict must do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects (especially health care units) and are not subject to special protection, i.e. medical personnel, health care units, wounded persons, but are military objectives.

Conclusion

United Nations bodies and leading legal organizations including Amnesty International and Human Rights Watch have described Israel domination of Palestine as one of totalitarian force. That is, exerting supreme control over the economic, political, social and physical lives of the Palestinians.

This form of control is repugnant to natural justice, equity and good conscience. It is a contravention of rights of the Palestinians to life, dignity, health, liberty, property and other rights as provided for under the Universal Declaration of Human Rights (UDHR), International Conventions on Civil and Political Rights (ICCPR), International Human Rights Laws (IHRL), International Humanitarian Laws (IHL), International Covenant on Economic, Social and Cultural Rights (ICESCR) and body of other international laws.

That said, International humanitarian law and international human rights law still share “a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity” see Abella v. Argentina, 1997, para. 183.

In order to achieve a peaceful resolution to the conflict between Israel and Palestine in line with international laws, both countries must renounce their occupation and consider diplomatic approaches to resolving disputes. This could include pursuing dialogue, negotiation, mediation rather than military action which causes more harm than good.

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REFERENCES

• https://ihl-databases.icrc.org/en/customary-ihl/v1/rule156#:~:text=Basis%20for%20the%20war%20crimes%20listed%20above,-Common%20Article%203&text=making%20the%20civilian%20population%20or,hostilities%2C%20the%20object%20of%20attack%3B&text=pillage%3B&text=committing%20sexual%20violence%2C%20in%20particular,enforced%20sterilization%20and%20enforced%20pregnancy.
• https://ihl-databases.icrc.org/en/customary-ihl/v1/rule156
• https://www.amnesty.org/en/latest/news/2023/10/damning-evidence-of-war-crimes-as-israeli-attacks-wipe-out-entire-families-in-gaza/
• “What is Israel’s narrative on the Gaza hospital explosion? | Israel-Palestine conflict News | Al Jazeera” https://www.aljazeera.com/amp/news/2023/10/18/what-is-israels-narrative-on-the-gaza-hospital-explosion
• “Gaza hospital: What video, pictures and other evidence tell us about Al-Ahli hospital blast – BBC News” https://www.bbc.com/news/world-middle-east-67144061.amp
•  “Non-International Armed Conflict (NIAC) | UNDRR” https://www.undrr.org/understanding-disaster-risk/terminology/hips/so0002

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^[1] “WHO statement on attack on Al Ahli Arab Hospital and reported large-scale casualties” https://www.who.int/news/item/17-10-2023-who-statement-on-attack-on-al-ahli-arab-hospital-and-reported-large-scale-casualties

^[2] See article 38(1) of the Statute of the International Court of Justice, ICJ

^[3] “International humanitarian law – Wikipedia” https://en.m.wikipedia.org/wiki/International_humanitarian_law

^[4] https://economictimes.indiatimes.com/news/defence/where-does-international-law-fit-into-the-israeli-palestinian-conflict/articleshow/104438542.cms

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Image Credit: The New York Times

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Doing Business in Nigeria: Company Tax Obligations, Exemptions and Incentives

INTRODUCTION

Nigeria is an investment paradise when viewed from the perspective of a massive consumer population of over 200 million people with a very low level of manufacturing.

In addition to this huge market, the Nigeria government has regularly implemented a number of incentives to promote investment in Nigeria as a way to strengthen the economy and advance the much-needed development of the country. This article will look at the tax obligations of businesses in Nigeria as well as any applicable exemptions.

Tax Regime for Companies in Nigeria

The taxes payable by companies in Nigeria are:

1. Company Income Tax

Under Company Income Tax Act (CITA) Cap. C 21 LFN 2004, a company resident in Nigeria is mandated to pay Company Income tax on their worldwide income, while non-residents are subject to tax on their income generated from business operations in Nigeria. This tax is assessed at different levels thus:

a. A company with a turnover between N25 Million and N100 Million- 20% of assessable profit.

b. A company with above N100 Million turnover- 30% of assessable profit.

2. Capital Gains Tax

Under the Capital Gains Tax Act, this is tax chargeable on the gains accruing to the company on the disposal of chargeable assets in a year of assessment. It is noteworthy that according to the Finance Act 2023, chargeable assets include Digital.

3. Value Added Tax, under VAT ACT

This is a consumption tax paid when goods are purchased and services rendered. It is paid by the consumer of the goods, and may also be deducted by the company and paid to the government. It is assessed at 7.5%

4. Tertiary Education Tax

This tax is imposed on every Nigerian resident company at the tax rate of 3% of all assessable profit for each year of assessment. It is payable within two months of an assessment notice from FIRS. Some companies pay the education tax with their company income tax.

5. Petroleum Profit Tax (PPT)

This tax is governed by the Petroleum Profit Tax Act. It is levied on the profit of each accounting period of companies engaged in upstream petroleum operations in lieu of company income tax. All companies engaged in petroleum operations are chargeable under the Petroleum Profit Tax Act.

The petroleum profit taxes rate are as follows:

• 50% for petroleum operations under the production sharing contracts (PSC).

• 65.75% for non-production sharing contract operations, paid in the first five years during which the company has not fully paid off all the pre- production capitalized expenditure.

• 85% for non-production sharing contract operations after the first five years.

• 30% for upstream gas profits.

6. Hydrocarbon Tax (HCT)

Following the enactment of the Petroleum Industry Act 2021, the holders of a Petroleum Prospecting Licence and Petroleum Mining Lease will be subject to both CIT at 30%, and Hydrocarbon Tax (HCT). HCT rates are as follows:

• 30% for converted/renewed onshore and shallow offshore Petroleum Mining Leases.
• 15% for onshore and shallow onshore Prospecting Petroleum Licence and Marginal Fields.
• Deep offshore is exempt from HCT.

7. Stamp Duties

Stamp duties are payable under the Stamp Duties Act LFN 2004. This tax is imposed on documents and certain transactions. The stamp duty rate is dependent on the type of document and the value of the transaction.

8. Custom and Excise Duty

The Customs and Excise Management Act LFN 2004 imposes a customs duty on specified imported goods and also restricts the movement of certain goods in and out of Nigeria. Any company involved in importation operations is liable to pay a tax charge ranging from 5% to 30%, depending on the goods to be imported.

9. National Information Technology Development Levy (NITDL)

Companies that are liable to pay NITDL include GSM Service Providers, Telecommunication   Companies,   Internet Providers,                   Banks,           and          other companies with a turnover of N100 million and above. NITDL is governed by National Information Technology Development Agency Act, CAP N156 LFN 2004 (as amended). It is 1% of profit before tax.

Tax Exemptions and Incentives

There are some tax reliefs, incentives, holidays and exemptions made available in Nigeria to encourage foreign direct investment and to boost investment in and foster the rapid growth of some key sectors of the economy. The above has been achieved by the use of various legislations, and agreements and includes but not limited to, the following.

a. An amount allowed by law as a reduction of income or profit that would otherwise be taxed.

b. An amount of taxpayers’ income that is not subject to tax.

c. Immunity from the obligation of paying taxes in whole or in part.

Specific exemptions and incentives include:

1. Pioneer Status Incentive (PSI)

This is a profit-based tax incentive governed by the Industrial Development (Income Tax Relief) Act, Cap 17 LFN, 2004. It is a tax holiday that grants qualifying industries and products relief from payment of corporate income tax for an initial period of three years, extendable for one or two additional years.

This is to enable them to make a considerable profit for re-investment into the business. Companies qualified for pioneer status also enjoy the benefits of exemption from a 10% withholding tax on dividends paid out of business profits. The pioneer status is administered by the Nigerian Investment Promotion Commission (NIPC).

2. Exemptions from Capital Gains Tax

Gains arising from takeovers, absorption or merger in Section 32 of Capital Gains Tax Act (CGTA) Cap C1 LFN 2004 are exempted from tax, same are proceeds reinvested provided in Section 33 of CGTA among others as an exception to the rule that all chargeable assets are subject to Capital Gain Tax.

3. Exemptions from Value Added Tax

Under Sections 2 and 3 First Schedule of Value Added Tax Act, Cap. VI LFN 2004 the goods and services listed therein are exempted from VAT. Some include All medical and pharmaceutical products, basic food items, books and educational materials, baby products, all exported and exported services etc.

4.    Exemptions from Company Income Tax under the Companies Income Tax Act (CITA):

A. Section 23(1) CITA: exempts the profits of the following companies from tax:

i) A statutory or registered friendly society, in so far as such profits does not derive from a trade or business carried on by such society;

ii) A cooperative society registered under any enactment or law relating to cooperative societies.

iii) A company engaged in ecclesiastical, charitable or educational activities of a public character;

iv) A company formed for the purpose of promoting sporting activities;

v) A trade union registered under the Trade Unions Act.

vi) A body corporate established by or under any Local Government Law or Edict in force in any State in Nigeria;

vii) A body corporate with a purchasing authority established by an enactment and empowered to acquire any commodity for export from Nigeria from the purchase and sale (whether for the purposes of export or otherwise) of that commodity.

viii) A Company or any corporation established by the law of a State for the purpose of fostering the economic development of that State.

ix) A company other than a Nigerian company which, but for this paragraph, would be chargeable to tax by reason solely of their being brought into or received in Nigeria;

x) A dividend, interest, rent, or royalty derived by a company from a country outside Nigeria and brought into Nigeria through Government approved channels.

xi) The interest on deposit accounts of a foreign non-resident company.

xii) Dividends received from small companies in the manufacturing sector in the first five years of their operation.

xiii) Dividends received from investments in wholly export-oriented businesses.

xiv) Any Nigerian company in respect of goods exported from Nigeria.

xv) A company whose supplies are exclusively inputs to the manufacturing of products for export; and

xvi) A company established within an export processing zone or free trade zone.

B. Section 11(2) of the Company Income Tax Act provides an exemption from tax interest on any loan granted by a bank to a company engaged in agricultural trade or business; or the fabrication of any local plant and machinery; or providing working capital for any cottage industry. Some profits are exempted from CIT provided they are not derived from trade or business activities carried out by the company e.g. Cooperative society.

C. Companies with gross turnover of NGN 25 million or less are exempted from paying Company Income Tax under the Company Income Tax Act (CITA).

Conclusion

In conclusion, Nigeria offers a compelling investment environment with its vast consumer base and government incentives aimed at promoting economic growth and development. Companies operating in Nigeria are subject to various taxes, however, to encourage foreign direct investment and foster growth in key sectors, the government provides tax exemptions and incentives.

As Nigeria continues to evolve as an investment destination, businesses can capitalize on these tax benefits and exemptions to optimize their operations and contribute to the country’s economic progress. Nevertheless, companies must stay compliant with tax regulations.

It is therefore advisable for companies to consult with the relevant authorities or tax professionals to ensure they take full advantage of available incentives while fulfilling their tax obligations responsibly. By leveraging the favourable tax regime and incentives, companies can play a vital role in the nation’s growth story while reaping the benefits of doing business in Nigeria.

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Unraveling Nigeria’s Customary Land Tenure Systems: a Comprehensive Overview

INTRODUCTION

Land is among the most important assets for people around the world. Its relevance to the ownership, use, possession and transfer of real property cannot be overemphasized. In the intellectual wordings of Olawoye, he defined land as “the surface of the earth, the subsoil and the airspace above it, as well as all things that are permanently attached to the soil.

It includes streams and ponds. On the other hand, things placed on land, whether made of the product of the soil or not, do not constitute land.” Flowing from the above definition is the conceptual basis of the ingenious definition established by Nwabueze.

According to the Black’s law dictionary, 9th Edition, “land includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings and fences.”

Similarly, Taiwo stresses assertively that land is to, “include the surface of the earth together with all the subjacent and superjacent things of physical nature such as buildings, tree and minerals.” Land is pivotal to man’s survival. Man depends on land for food, shelter, clothing and other human needs. It is a source of economic wealth to all.

The importance of land to the overall well-being of man cannot be understated. Therefore, the purpose of this article is to explore the nature and characteristics of land ownership, use, transfer and possession under the various customary systems in Nigeria.

What is Land Tenure System?

In order to regulate the ownership, use and development of land and land resources, nations the world over have instituted land ownership systems aimed at consistent balancing of the interests of the government, the land owning class and the landless class.

As a result, land tenure is the relationship that individuals and groups hold with respect to land and land-based resources, such as trees, minerals, pastures, and water. When land tenure is secure, land can be a cornerstone for economic growth and an incentive for investment, but when land rights are insecure, this can lead to conflicts, instability and the exclusion of vulnerable groups, such as women, indigenous people and the poor.[1]

Moving on, the land tenure system is the process of granting ownership of land to individuals, legal bodies, corporate bodies, and natural bodies based on their use of these lands. This statutory instrument is used to ensure that human habitats are safe, mutative and sustainable.[2] These systems, in other words, deeply rooted in tradition and customs play a crucial role in the socio-economic fabric of Nigerian communities.

An Overview of the Customary Land Tenure System in Nigeria

Customary land tenure systems in Nigeria are complex and diverse, reflecting the country’s rich cultural and historical heritage. They refer to the traditional systems of land ownership and use that are based on the customs and practices of a particular community or society.

They are often based on traditional, largely unwritten, and locally relevant rules about how to use and allocate land and resources.[3] These systems are, to a great extent, rooted in the traditions and practices of various ethnic groups across the country.

Relatively, Nigeria’s customary land tenure systems can in distinct variations be broadly categorized into communal, family, and individual ownership. Communal ownership is the most prevalent form of land tenure, which is traceable to the diverse ethnic groups that permeate the country including the Hausa/Fulani, Yoruba, Igbo and Benin groups respectively.

In the communal ownership system, land is owned collectively by a group of people, usually based on kinship or affiliation to a specific ethnic group. Decisions regarding land allocation, use, and management are made collectively by the community, often through traditional rulers or village heads.

In the locus classicus case of AMODU TIJANI v SECRETARY OF SOUTHERN NIGERIA, the court held that land belongs to the community, village or the family and never to the individual.

Within the communal ownership system, several forms of land rights exist. These include usufruct rights, which grant individuals or families the right to use and manage land but do not confer ownership rights (see the Hausa/Fulani feudal control of ownership of land).

In some cases, individuals may have exclusive rights to use specific parcels of land within the community for agricultural purposes with the payment of tributes (see the Yoruba control of ownership of land). However, these rights are often subject to the community’s control and can be revoked or transferred based on communal decisions.

In addition, family land ownership is another significant aspect of Nigeria’s customary land tenure systems. Under this system, land is owned by a family or extended family unit. Family land is typically passed down through generations, and each member of the family has some form of rights or responsibilities over the land.

In some cases, the head of the family acts as the custodian of the land and makes decisions regarding its use and management. The voidability of the sale of land property by the family head has been well-settled like dust in a sea of granite in the case of AGANRAN V OLUSHI where the court held that the sale of family property by the head of the family without the consent of principal members of the family was voidable and not void.

However, the principle of nemo dat quod non habet which means, no one ought to give what he does not have, proclaims the non-individuality of family land in that whereby a member of the family engages in the sale of the family land without the consent of the principal members nor the family head, such sale will be deemed void ab initio see the cases of OWOO V OWÓÒ, LEWIS V BANKOLE, LOPEZ V LOPEZ. Moreso, family land rights are often governed by customary rules and inheritance practices, which vary across different ethnic groups.

Individual land ownership is the least common form of customary land tenure in Nigeria but is more prevalent in urban areas and regions influenced by common law systems. Individual land owners have full rights of ownership and control over their land, including the ability to transfer or sell it. However, even in cases of individual ownership, customary laws and practices may still influence land administration and usage.

The Customary Land Tenure Systems in Nigeria and the Land Use Act of 1978

Despite the prevalence of customary land tenure systems, Nigeria has a formal land administration system that incorporates elements of the common law frameworks. This formal system, based on statutory laws, aims to provide a legal framework for land registration, documentation, and dispute resolution.

The applicable statutory law responsible for the control and management of land in Nigeria is the Land Use Act, 1978 (hereinafter referred to as LUA 1978). The promulgation of the Land Use Act (LUA) on 29th March, 1978 has consequently, to an extent, abolished the customary mode of transfer and ownership of land in Nigeria.

Proportionately, the LUA 1978, considered a foundational piece of legislation, vests ownership of lands in the state governors, Section 1 of LUA 1978 which states, ”subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act,” of the who hold them in trust for the people.

However, customary land tenure systems and practices often coexist and interact with the formal legal system, leading to conflicts and challenges in land administration and management.

Conclusion

The complexity and diversity of Nigeria’s customary land tenure systems require careful considerations in policy development and land-use planning. Recognizing and respecting customary land rights, involving local communities in decision-making processes, and promoting effective dispute resolution mechanisms are essential for ensuring sustainable and inclusive land governance in Nigeria.

By unraveling the intricacies of the customary land tenure systems, stakeholders can work towards innovative and contextual solutions that balance customary practices with the need for equitable land administration and management.

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REFERENCES

• “LAND LAW 1.3 CUSTOMARY LAND TENURE SYSTEM IN NIGERIA – Isochukwu Ltd” https://isochukwu.com/2018/01/11/land-law-1-3-customary-land-tenure-system-in-nigeria/
• Class Notes, University of Ilorin, Introduction to Private and Property Law, 2023

• “How poor land tenure, titling weaken real estate growth” https://punchng.com/how-poor-land-tenure-titling-weaken-real-estate-growth/?amp

• “Land Tenure System in Nigeria: All You Need To Know | Mixta Africa” https://mixtafrica.com/land-tenure-system/
• “Effects of Land Use Act on land tenure system | The Hope Newspaper” https://www.thehopenewspaper.com/effects-of-land-use-act-on-land-tenure-system/

• Blacks Law Dictionary, 9^th Edition

• The Land Use Act, 1978

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[1] _{“What is Land Tenure? | LandLinks” https://www.land-links.org/what-is-land-tenure/}

[2] _{“Land Tenure System in Nigeria: All You Need To Know | Mixta Africa” https://mixtafrica.com/land-tenure-system/}

[3] “How poor land tenure, titling weaken real estate growth” https://punchng.com/how-poor-land-tenure-titling-weaken-real-estate-growth/?amp

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Euthanasia in Nigeria: a Legal Perspective on the Right to Die

The right to life is universally recognized and protected by various legal instruments, including municipal laws, national constitutions, court decisions, and international human rights agreements.

For example, the Universal Declaration of Human Rights (1948) enshrines the right to life, liberty, and security of persons in Article III. Similarly, the African Charter of Human and People’s Rights (1981) stipulates that human beings are inviolable, ensuring respect for their lives in Article IV.

Other international agreements, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the American Convention on Human Rights (1969), also reinforce the sanctity of human life.

Euthanasia remains a contentious and divisive subject that sparks debates among legal professionals, medical practitioners, moral philosophers, and theologians. Central to these discussions are questions surrounding the extent to which the sanctity of life can be morally justified. Can there be circumstances in which it becomes permissible to violate the sanctity of life, especially when an individual’s continued existence becomes intolerable?

In some cases, a compassionate medical practitioner may decide, often with the patient’s consent, to intentionally end the life of a patient suffering from a profoundly painful and incurable terminal illness. However, it is important to note that the ethical stance on euthanasia varies. For instance, at the 30th General Assembly of the World Medical Association in Madrid in 1987, euthanasia was declared unethical. Yet, in 1993, the Netherlands made headlines by legalizing assisted suicide for terminally ill patients at their request.

From a legal perspective, the issue of euthanasia has also engaged the judiciary. Judges have approached the euthanasia debate from a human and legal standpoint. For example, in the case of R.v.Taylor (1980), Judge Heilbron argued that her public duty was “Not to add to the hell of the accuser’s knowledge of what he had done.”

In any euthanasia scenario, the patient’s perspective plays a pivotal role, as the controversy surrounding this issue emerges from the patient’s viewpoint. The debate revolves around the determination of whether an individual’s decision to end their own life takes precedence over the fundamental right to life. This ethical and legal quandary continues to be a subject of profound reflection and discussion.

Types of Euthanasia

Euthanasia can be categorized into the following types:

1. Voluntary Euthanasia

In this situation, a patient explicitly requests the termination of their life due to unbearable pain or a terminal illness. It’s crucial that the request comes directly from the patient and not from their relatives or caregivers.

2. Involuntary Euthanasia

Involuntary euthanasia involves a decision regarding a person’s death made by family members, friends, or the attending physician. This typically occurs when a patient is suffering from severe brain damage or a critical brain hemorrhage with no hope of recovery, and someone else makes an informed decision on their behalf.

3. Active Euthanasia

Active euthanasia entails intentionally causing a patient’s death in direct response to their explicit request. For instance, in 1998, Dr. Jack Kevorkian, a Michigan physician, administered a lethal substance to a patient suffering from ALS (Lou Gehrig’s Disease) who sought a painless exit. Dr. Kevorkian was subsequently convicted of second-degree murder and imprisoned.

4. Passive Euthanasia

Passive euthanasia, as described by Gifford (1993), involves allowing a patient to die by removing artificial life support systems, like respirators and feeding tubes, or discontinuing medical treatments necessary to sustain life. An example of this is the case of Terri Schiavo mentioned earlier.

5. Physician-Assisted Suicide

This occurs when a physician provides a patient with information and/or a prescription for sleeping pills or carbon monoxide gas, leaving the decision of self-administration in the hands of the patient. It’s often referred to as voluntary passive euthanasia.

Nigerian Law on Euthanasia

In Nigeria, the penal laws are codified and enforced through two distinct codes: the Penal Code, which is applicable in Northern Nigeria, and the Criminal Code, which is applicable in Southern Nigeria. These legal frameworks do not recognize consent as a valid defense in cases involving actions that result in someone’s death.

While the term “euthanasia” is not explicitly used in Nigerian penal laws, there is a provision that implies its prohibition. When one person causes the death of another, it is classified as a criminal offense falling under the category of homicide. The severity of the offense, whether it constitutes murder or manslaughter, depends on the individual’s intent when causing the death.

These laws do not make distinctions based on whether a physician is involved or if the request for the act originates from the patient or the state of the patient’s health. In essence, euthanasia is treated as murder under Nigerian penal laws.

Nigeria’s legal stance on assisted dying and suicide is unambiguous. Section 326(3) of the Criminal Code Act clearly states that “any person who aids another in killing himself is guilty of felony, and is liable to imprisonment for life.” This means that even if a person consents to their own death, it does not absolve the legal responsibility of anyone who assists in causing that death.

For example, in the case of State v. Okezie, a native doctor prepared charms for a person who then invited the doctor to test these charms by shooting him. The doctor complied and killed the individual, resulting in a murder conviction. The act of aiding someone to commit suicide is considered a criminal offense in Nigeria, punishable by life imprisonment.

This legal perspective in Nigeria differs from that of some Western states like Oregon, where assisted suicide is not a crime but is treated as a medical treatment option. In such jurisdictions, as long as the practitioner adheres to the procedural safeguards outlined in the law, they and anyone else involved (e.g., family members of the patient) are exempt from criminal liability and are protected under the law.

However, in Nigeria, there are no such provisions that differentiate aiding in suicide, and the general interpretation of the Penal Code suggests that any form of killing, except for specific exemptions not including euthanasia, carries the death penalty under Nigerian law.

Thus, section 220 of Penal Code provides that: Whosoever causes death –

(a) By doing an act with the intention of causing death or such bodily injury as is likely to cause death; or

(b) By doing an act with the knowledge that he is likely by such act to cause death; or

(c) By doing a rash or negligent act, commits the offence of culpable homicide.

As per the prevailing legal framework in Nigeria, certain factors do not alter the legal consequences of aiding in someone’s death, regardless of their circumstances. This means that it does not matter if the deceased person is a terminally ill patient enduring pain or suffering from an incurable disease, or if their life expectancy is six months or less, or even if the patient or their family members consent to their euthanasia. Under Nigerian law, assisting in someone’s suicide, irrespective of their age, health status, or other considerations, is a criminal offense.

Section 326 of the Criminal Code makes it clear that “any person who advises another to end his own life and thereby encourages him to do so is guilty of a felony, and is subject to a life imprisonment sentence.” In Nigeria, even individuals who attempt to take their own lives commit an offense, and they can be prosecuted by state authorities. Section 327 of the Criminal Code specifies that “any person who attempts to kill himself is guilty of a misdemeanor and is liable to imprisonment for one year.”

Consent and Criminal Liability

A crucial question arises when it comes to whether the consent of a patient to end their life absolves the physician from criminal liability. Under Nigerian law, the consent of an individual to their own death does not alleviate the criminal responsibility of anyone involved in causing that death. Section 299 of the Criminal Code explicitly states that “consent by a person to the causing of his own death does not affect the criminal responsibility of any person by whom such death is caused.”

The case of State v. Okezie serves as an illustrative example of the legal principles at play. In this case, the accused, a native doctor, created certain charms for the deceased. The deceased, of his own volition, invited the accused to test these charms by shooting him in the chest, resulting in his death. Despite the fact that the accused acted with the consent of the deceased, he was still convicted of murder.

Furthermore, section 222(5) of the Penal Code establishes that “culpable homicide is not subject to the death penalty when the person whose death is caused, and who is above the age of eighteen years, consents to their own death or willingly takes the risk of death.”

When we consider this provision in conjunction with section 224 of the Penal Code, it becomes evident that causing the death of an adult of sound mind, regardless of whether they are terminally ill, in pain, or facing any other circumstances, with their explicit consent, results in a punishment of life imprisonment or a lesser term, a fine, or a combination of these penalties.

Therefore, in the context of the Nigerian legal framework, euthanasia is unequivocally considered a criminal offense, and consent from the individual involved does not exempt those responsible from legal liability.

Nigerian law maintains a strict stance on the sanctity of life, rendering euthanasia illegal under all circumstances. This legal perspective is unyielding and remains a subject of ongoing debate and discussion within the country.

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Realist School of Law

All schools of law are founded on the substructure of ‘no ideal or widely accepted definition of law.’ This automatically implies that efforts by theorists to give specific definition of law has not survived ‘critique’s test’ because all theories has criticisms that accompany it. Realist school of law is no exception.

Some of its proponents includes Karl Llewellyn, Oliver Wendell Holmes, Jerome Frank, John Chipman, all of who theorize that law is not what was written in books, but there are inarticulate major premise that determines the decision of judges, other than statutes and other written law.

The school introduces the subjectivity of law, denouncing its objectivity. The heart of this philosophy of law is that law goes beyond what is written in book. Put in another way, law is not objective, that is it transcends what is obtainable in statutes book. Of course, it is obvious that several parts of law deals with detailed words of texts as in legislation, case books, etc.

It is also true and important that in practice, legal reasoning depends on other extrinsic factors which are determined by the judge. This justifies the subjectivity of law, according to realist theory, since what is credible or seems right to the judge may not be right to another.

While a layman suppose law is wholly determined by what is written in the book, which however, is true to an extent, judges are influenced by extraneous factors that are indeed inarticulate.

Evidently, the school emphasizes on ‘law in action rather than law in books.’ Going forward, it would mean behind any formal and explicit formulation of judicial reasoning, there’s an implicit attitude of the judge. Mcloed terms this implicit attitude ‘inarticulate major premise.’

Holmes, justifying the idea of the theory has been quoted to have said ‘the prophecy of what the court will do in fact, and nothing more pretentious is what I mean by law.’ It has also been justified by his favorite quote ‘the life of law is not in logic, but in experience.’ Logic in this sense refers to application of reasoning through which statutes, case books are developed.

The experience of the judge is a subjective one. In the words of Alf Ross, a member of Scandinavian realists ‘‘To invoke justice is the same thing as banging on the table: an emotional expression which turns one’s demand into an absolute postulate’’. Justice, which is the end of law is reduced to an ‘emotional expression.’

The inarticulate major premise that influences decisions making may include ; way of life, upbringing, education, likes and dislikes of the judge, his economic status, social environment, political views, social policy on one hand; the dress, appearance, skin color, race, age, vocabulary of the litigant, the role of witness and the counsel is important to influence the judge

Successfully, the school of thought shifted the to how judges arrives at what’s called law, unfortunately it doesn’t meet up with the standard, as criticisms abound on it, as other schools of law.

Merit of the Realist Theory

The theory puts forward the intelligence that law is what the judge decides upon external influence. Consequently, judges can know the impacts their decision can have on society, and be more interested in making decisions that will push the society forward.

Criticism – Realist Theory of Law

In the case of Nigeria, hierarchy of courts is paramount, which means the lower courts are bound by the decisions of the higher court and cannot be modified except by the higher court that formulate such decision.

If the judges of supreme court, which is the highest on the hierarchical rank, are wrongly influenced, thereby make wrong laws, the inferior courts have no power within their jurisdiction to change the law. They must apply it in its erroneous form.

The argument is not wholly correct because it places the law-making power in the hand of the judiciary, thereby usurping the role of the legislative arm. Whereas, the primary role of a judge is to interpret law.

The mere fact that decisions of judges can be influenced by extraneous factors. Judges are to be neutral so that judicial decisions are not founded on intimidation from outside sources.

This school of law, one way or the other, agrees to the words of Okunniga, who affirms no one has, will and will never be able to give a monopoly of definition to explain law.

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Image Credit: NPR

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