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Trademarks protection in Nigeria is a complex and multifaceted issue that requires careful attention and concerted efforts.
INTRODUCTION
The intricate nexus between intellectual property rights and the modern global economy cannot be overstated. In the realm of commerce, trademarks serve as invaluable assets, distinguishing products or services and embodying a business’s reputation, goodwill, and brand identity.1
Their significance as intangible commodities is firmly rooted in the ability to safeguard consumer interests, stimulate competition, and foster innovation.
However, in an era marked by increasing globalization and technological advancement, the effectiveness of trademark protection mechanisms demands heightened scrutiny.2
The purpose of this essay is to critically evaluate the state of trademark protection in Nigeria, a nation with a vibrant economy and a burgeoning consumer market. In examining the Nigerian trademark landscape, the essay shall delve into the legislative framework, explore the challenges faced by stakeholders, and evaluate the efficacy of current measures. By doing so, this essay aims to shed light on the extent to which trademarks are safeguarded within the Nigerian context and provide insights into potential areas for improvement.
Overview Of Trademarks Protection
Trademark protection plays a vital role in modern business and commerce, serving as a crucial mechanism for businesses to establish brand identity, differentiate their product and cultivate consumer trust.3
This section shall delve into the intricate legal framework governing trademark protection in Nigeria, focusing on the laws, regulations, and international agreements that shape and safeguard trademark rights. By analyzing the Trademarks Act of 1965 and its interplay with relevant legislation, regulations, and international obligations, this section aims to provide a comprehensive understanding of the legal framework for trademark protection in Nigeria.
At the core of trademark protection in Nigeria lies the Trademarks Act of 1965.4 This legislation serves as the primary legal instrument governing trademark registration, rights, and enforcement.5
The Act establishes the Nigerian Trademarks Registry, entrusted with the responsibility of administering and overseeing trademark-related matters. It outlines the criteria for trademark eligibility, the process of registration, and the duration of trademark protection.
Additionally, the Act addresses trademark infringement, remedies, and enforcement procedures, establishing a robust legal framework for safeguarding trademark rights. Relevant provisions of the Act include Section 3, 5, 6, and 7 which provides for infringement of trademarks in Nigeria and the remedies available. Section 9 which establishes the requirements and procedure for trademark registration in Nigeria, Section 22 and 23 which provides for the duration, renewal, and restoration of trademarks,6 and so on.
Other important legal instruments include The Merchandise Marks Act,7 The Trademark Regulation 1967, The Trademark Malpractices (Miscellaneous Offences) Act,8 The Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions),9 the Paris Convention for the Protection of Industrial Property, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), and so on.
Judicial Mechanisms For Trademarks Disputes
Trademark disputes in Nigeria are adjudicated by the Federal High Court, which has exclusive jurisdiction over matters relating to trademarks.10
Section 23 of the Trademarks Act confers jurisdiction on the Federal High Court to hear and determine trademark-related matters, including infringement actions, cancellation proceedings, and appeals from decisions of the Registrar.
Civil Remedies and Damages (Section 26)
Section 26 of the Trademarks Act provides for civil remedies in trademark infringement cases. The court may grant injunctive relief, damages, accounts of profits, and the delivery up or destruction of infringing goods or materials. The Act allows for the award of both actual damages and additional damages, providing a comprehensive framework for compensating trademark owners.
Criminal Offenses and Penalties (Sections 20, 22, and 25)
Sections 20, 22, and 25 of the Trademarks Act establish criminal offences and penalties for trademark infringement. These provisions allow for the prosecution of offenders engaged in counterfeiting, piracy, or unauthorized use of registered trademarks. Penalties upon conviction include fines and imprisonment, serving as deterrents to trademark infringement.
Challenges In Trademarks Protection In Nigeria
Trademark protection serves as a critical component of intellectual property rights, allowing businesses to establish brand identity, protect their market share, and foster consumer trust. However, trademark protection in Nigeria faces various challenges that hinder its effectiveness.11
Some of these highlighted challenges include counterfeiting, infringement, inadequate legislation, and poor enforcement mechanisms. In the next section, initiatives which the government has taken to combat these challenges shall be addressed and pragmatic solutions which represent a way forward shall be proffered.
Efforts And Initiatives To Improve Trademarks Protection
The Nigerian government and relevant agencies have recognized the urgent need to strengthen trademark protection and combat the challenges posed by counterfeiting infringement, and inadequate legislation.12 These concerted efforts aim to enhance the legal framework, implement initiatives, drive legal reforms, and foster collaborations with international organizations and stakeholders. Some of these methods include:
1. The establishment of dedicated agencies and bodies responsible for intellectual property rights enforcement such as the Nigerian Trademarks Registry, which has made strides in streamlining trademark registration processes, improving efficiency, and facilitating access to information for trademark owners as well as the Nigerian Copyright Commission (NCC).
2. Launching of several initiatives to strengthen trademark protection in Nigeria. One of such agency is the Anti-Counterfeiting Collaboration (ACC) Nigeria. This agency serves as a platform for collaboration between government agencies, rights holders, and relevant stakeholders. This initiative focuses on intelligence sharing, capacity building, and joint operations to combat counterfeiting and trademark infringements.
3. Implementation of public awareness campaigns and educational programs to educate consumers, businesses, and law enforcement agencies about the importance of trademark protection.
Conclusion
In conclusion, trademarks protection in Nigeria is a complex and multifaceted issue that requires careful attention and concerted efforts. While trademarks play a crucial role in business and commerce, fostering brand identity, consumer trust, and economic growth, challenges such as counterfeiting, infringement, and inadequate legislation persist.
However, the Nigerian government and relevant agencies have recognized the importance of addressing these challenges and have taken steps to improve trademark protection. Efforts have been made to establish dedicated bodies responsible for intellectual property rights enforcement, streamline registration procedures, and strengthen enforcement mechanisms. Initiatives such as the Anti-Counterfeiting Collaboration (ACC) Nigeria have facilitated intelligence sharing, capacity building, and joint operations to combat counterfeiting. Furthermore, legal reforms and policy changes are being pursued to address legislative gaps and enhance the legal framework.
To improve trademark protection further, it is recommended to strengthen the legal framework by addressing ambiguities, streamlining administrative processes, and enhancing cooperation among enforcement agencies.
Ibijoke Patricia “The Challenges of Trademark Protection in Nigeria” (2018) http://repository.pgcollegeui.com:8080/xmlui/bitstream/handle/123456789/848/byron.pdf?sequen ce=1&isAllowed=y accessed 28 May 2023. [↩]
Examining the Legal Considerations of Biometric Data Collection and Usage
In a variety of fields, from law enforcement to consumer technology, biometric data—such as fingerprints, facial recognition, and iris scans—has become more and more common. Although using biometrics has many benefits, there are also substantial legal issues to take into account. This article examines the legal environment around the gathering and use of biometric data, highlighting major issues, rules, and the potential effects on security and privacy.
This article is specific to India
Understanding Biometric Data
Any type of information concerning a person’s bodily traits is referred to as biometric data. Physical characteristics like fingerprints, face shape, and physiological traits like retinal patterns are the next most accurate kind of biometric data. Electrocardiograms, hand geometry, and voiceprints are examples of biometric data that are less accurate (ECG).
The usefulness of various biometric data formats varies depending on the application because biometric data must be distinctive, durable, and collectable in order to be helpful. To unlock our mobile phones swiftly and simply, for instance, many of us now employ biometric data in the form of digital fingerprint and facial recognition technologies. With a tangible DNA sample, it would appear that such applications are impossible.
Biometric information is important because it may be used to identify people in a unique way based on their physical or behavioural traits. Biometric information offers a highly accurate and practical way to confirm a person’s identity, in contrast to passwords or identification cards, which can be lost, stolen, or forgotten.
Examples Of Common Biometric Identifiers
Here are some examples of common biometric identifiers:
1. Fingerprint: One of the most used biometric identification methods is fingerprint recognition. For identification or verification purposes, the distinctive ridges and patterns on a person’s fingertips can be photographed and compared.
2. Facial Recognition: In order to identify people, facial recognition technology examines aspects of the face, such as the shape of the face, eyes, nose, and mouth. It is utilised in many different applications, such as surveillance systems, airport security, and smartphone unlocking.
3. Iris Scan: The process of iris recognition entails photographing and analysing the distinctive patterns in the coloured region of the eye (iris). Iris patterns are a trustworthy biometric identification because they are complicated and stable, which is why access control and identity verification systems use them.
4. Voice Recognition: The features of a person’s voice, such as pitch, tone, and speech patterns, are analysed using voice recognition technology. It can be applied to voice-controlled devices, speaker identification, and voice authentication.
5. Hand Geometry: A person’s hand’s size and shape, including the depth of the palm, the length and width of the fingers, are measured and analysed using hand geometry recognition. Physical access control systems frequently employ it.
Legal Framework For Biometric Data Protection
INTERNATIONAL PERSPECTIVES
The protection and control of biometric data are covered by a number of international conventions and accords. Here is a summary of some significant international frameworks and projects:
1. Universal Declaration of Human Rights (UDHR): The UDHR, outlines universally applicable fundamental human rights principles that were endorsed by the UN General Assembly in 1948. Although it does not include biometric data specifically, it offers a framework for safeguarding personal information and privacy.
2. International Covenant on Civil and Political Rights (ICCPR): The ICCPR, Recognizing the right to privacy, the 1966 Universal Declaration of Human Rights prohibits arbitrary interference with a person’s family, home, or correspondence.
3. European Convention on Human Rights (ECHR): The ECHR, The right to respect for one’s private and family life is one of the fundamental freedoms and rights that the Council of Europe has designed to preserve in Europe. Cases involving the use of biometric information have been heard by the European Court of Human Rights.
4. General Data Protection Regulation (GDPR): The GDPR, One of the most extensive data privacy policies was put into effect by the European Union (EU) in 2018. It establishes principles and rights for individuals, including the right to consent, access, and erasure of their data. It applies to the processing of personal data, including biometric data.
5. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108):Convention 108, The first international law on data protection was adopted by the Council of Europe in 1981. It lays out requirements and guiding principles for the handling of personal data, including biometric data.
Indian Perspective
To handle the handling and protection of personal data, including biometric data, India has adopted a number of rules and legislation. Here is a summary of the main rules and legislation of India:
1. The Information Technology Act, 2000 (IT Act): The main piece of legislation in India covering electronic transactions and data protection is the IT Act. It defines protocols for the gathering, storing, and protection of personal data and provides legal recognition for electronic records.
2. The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016: Biometric data collection, storage, and use for the Aadhaar identity system are all governed by the Aadhaar Act. It creates a special identity number (Aadhaar) connected to a person’s biometric and demographic information.
3. The Personal Data Protection Bill, 2019 (PDP Bill): The Indian Parliament is now debating the PDP Bill, a comprehensive data protection law. When passed, it will outline the rules for processing personal data, including biometric data, as well as the rights of individuals to their own data protection.
4. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011: These regulations, which were released in accordance with the IT Act, outline the data protection requirements for organisations managing sensitive personal data or information. In accordance with the regulations, which set security requirements, consent conditions, and breach reporting obligations for biometric data, it is deemed sensitive personal information.
5. The Right to Information Act, 2005 (RTI Act): Citizens have access to information that is held by public authorities thanks to the RTI Act. It can be used to find out more about how personal data, including biometric data, is collected, used, and protected by governmental organisations.
Biometrics In Law Enforcement In India
Legal issues and conflicts surrounding privacy, data protection, and potential misuse of biometric data have accompanied the use of biometric data in law enforcement in India. Here’s a breakdown of some of the major legal issues and disputes relating to India’s usage of biometric data for law enforcement.:
1. Right to Privacy: The usage of biometric data raises questions regarding potential violations of someone’s constitutionally protected right to privacy. In its historic decision in Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court of India declared privacy to be a fundamental right. Strong protections should be used in conjunction with the collection and storage of biometric data for law enforcement purposes in order to protect people’s right to privacy.
2. Data Protection: Under Indian data protection legislation, biometric information is regarded as sensitive personal information. Entities collecting and handling biometric data are required under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, to adopt reasonable security procedures and get consent from people. In order to prevent unwanted access and potential misuse, it is crucial to ensure the secure storage, processing, and exchange of biometric data.
3. Transparency and Accountability: Transparency and accountability are required in the gathering and application of biometric data by law enforcement organisations. For the ethical and legal use of biometric data, there should be clear rules and laws in place. Concerns and grievances over the handling of biometric data should be addressed through the establishment of public supervision and recourse procedures.
4. Data Security and Breach Notification: Strong data security measures are essential due to the sensitivity of biometric data. To prevent illegal access to or disclosure of biometric information, law enforcement organisations should put into place robust encryption, access controls, and data breach reporting mechanisms. In the event of a data breach, the impacted parties should be informed right away, and necessary corrective measures should be done.
5. Legal Framework and Oversight: It is crucial to have clear, comprehensive legislation that addresses the gathering, storing, and application of biometric data in law enforcement. To ensure compliance and stop the misuse of biometric data, a strong legislative framework should include safeguards, accountability procedures, and oversight.
Legal Implications Of Biometric Data
Significant legal ramifications stem from the use of biometric data, particularly in the areas of individual rights, privacy, and data protection. The following are some major legal ramifications of biometric data:
1. Privacy: Due to its individuality and intimate nature, biometric data creates privacy issues. Biometric data collection, storage, and use must abide by privacy laws and regulations since people have a legitimate expectation of privacy with relation to it. An individual’s privacy rights may be violated by any unlawful access, disclosure, or use of biometric data.
2. Data Protection: According to data protection rules, biometric data must receive extra protection because it is deemed sensitive personal information. Organizations that gather and use biometric data must adhere to all applicable data protection laws, which include getting informed consent, putting security measures in place, and guaranteeing the lawful and ethical processing of data.
3. Informed Consent: When collecting biometric information, obtaining informed consent is essential. People need to be properly informed about the intent, extent, and potential risks involved in the collection and use of their biometric data. The individual’s consent should be freely given, specific, and founded on open and honest disclosure of information.
4. Security: Biometric data is extremely sensitive and needs to be protected with strong security measures from unauthorised access, alteration, or data breaches. To guarantee the confidentiality, integrity, and availability of data, organisations collecting and storing biometric data must put in place the proper technical and organisational security measures.
5. Legal Compliance and Accountability: Organizations and law enforcement agencies must abide by all applicable laws, rules, and regulations when collecting and processing biometric data. To ensure legal compliance and reduce risks, they should set up accountability mechanisms like data protection officers, privacy impact analyses, and breach reporting policies.
6. Legal Remedies and Redress: Those whose biometric data has been improperly managed or used may be entitled to legal recourse and the right to seek compensation. These may include the right to request the access, rectification, erasure, or limitation of their biometric data. They may also include the right to file a complaint with data protection authorities or seek redress in court.
Analysis Of Recent Incidents
The legal issues regarding the collecting and use of biometric data have recently come to light due to events that occurred in India. These occurrences have stirred discussions and brought up worries about abuse, data protection, and privacy. Following are some important events and their legal ramifications:
1. Aadhaar Data Breaches: The biometric identification system for India known as Aadhaar has seen numerous data breaches recently. These hacks have shown holes in the biometric data’s security, raising concerns about unauthorised access and possible exploitation of sensitive personal data. These occurrences demonstrate the importance of strong data security protocols, safe storage solutions, and rigorous adherence to data protection rules.
2. Legal Challenges to Aadhaar: In Indian courts, Aadhaar’s legitimacy and legality have been contested. In a historic ruling issued in 2018, the Supreme Court of India maintained the constitutionality of Aadhaar while also placing constraints on its mandatory application and highlighting the value of protecting personal privacy. These legal issues highlight how important it is to strike a balance between using biometric data for legal purposes and preserving individual rights.
3. Surveillance Concerns: Concerns regarding the possibility of mass surveillance and privacy violation have been raised by the growing usage of biometric surveillance technologies, such as facial recognition systems. Recent events have made it evident that in order to stop the improper use of biometric data for surveillance, there is a need for explicit legislation, oversight procedures, and accountability frameworks.
4. Lack of Data Protection Framework: India has been working to adopt thorough data protection regulations. Due to the delay in passing the Personal Data Protection Bill, there is now a regulatory hole that raises questions about the rules and requirements for managing biometric data legally. It is difficult to adequately handle the legal issues related to the collection and use of biometric data in the absence of a strong data protection framework.
5. Public Concerns and Activism: Concern and agitation over privacy and data protection have been raised by incidents involving the gathering and use of biometric data. Civil society groups, privacy advocates, and individuals have expressed their concerns and called for more robust legal protections, openness, and responsibility from both public and private institutions participating in the processing of biometric data.
Conclusion
Legal issues are vital in assuring the protection of people’s privacy and security as the collecting and use of biometric data spreads across numerous industries. This article has offered a summary of the legal environment around biometric data, emphasising important laws, privacy issues, and new developments. For politicians, corporations, and individuals to successfully negotiate the difficult problems provided by the gathering and use of biometric data, it is imperative that they are aware of these legal implications.
About Author
Rakshit Sharma is a student of Amity Law School, Noida, Uttar Pradesh, India. He loves cycling. He published his first article on LawGlobal Hub in September, 2022, and became a volunteer in January, 2023.
The Law Of Evidence In Civil Claims In Nigeria – A Primer From The Cases Pt 1
INTRODUCTION
The Law of evidence plays a vital role in the world of litigation. Many times, civil claims no matter how believable fail to arrive at the Eldorado of a favourable judgment due to the exclusionary rules of evidence. It is in this regard that it is sometimes said that a good case can in fact be poorly conducted and lost in Court.
This primer (which will be written in parts) relies heavily on the judicial interpretation of various provisions of the law as they affect the admissibility and probative value of various pieces of evidence that could be tendered in a Nigerian Court. Also, varying issues and changing positions in the law of evidence will be dealt with as well. Apart from case law, reliance is expectedly placed on the Evidence Act 2011 for the discussion embarked on hereunder.
This author recognizes that the law of evidence is as expansive as any other area of law and cases are not to be applied across board. Hence, this primer will attempt to reflect the general state of the law as much as possible while also noting arising exceptions as much as possible. It is hoped that this series will serve as a quick reference guide for further research.
The Evidence Act Is Not A Conqueror In All Courts
A good first point to begin would be the point that the Evidence Act does not apply with magisterial force in all courts or all judicial proceedings across Nigeria[i]. Section 256(1)(c) of the Evidence Act 2011 states this point very clearly as follows;
(1) This Act shall apply to all judicial proceeding in or before any Court established in the Federal Republic of Nigeria but it shall not apply to –
(a) A proceeding before an arbitrator
(b) A field general Court martial; or
(c) Judicial proceeding in any civil cause or matter in or before any Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary Court UNLESS any authority empowered to do so under the Constitution, by order published in the Gazette confers upon any or all Sharia Courts of Appeal, Customary Courts of Appeal, Area Courts or Customary Courts in the Federal Capital Territory, Abuja or a State, as the case may be, power to enforce any of (or) all the provisions of this Act.
2. In judicial proceeding in any Criminal cause or matter, in or before an Area Court, the Court shall be guided by the provisions of this Act and in accordance with the provisions of the Criminal Procedure Code Law.
3. Notwithstanding anything in this Section, an Area Court shall, in judicial proceeding in any criminal cause or matter be bound by the provisions of Sections 134 to 140.
From the provision reproduced above, the Act does not apply to arbitral proceedings as well as a field general court martial. Also, the civil proceedings in Customary and Area Courts are not to be conducted with strict conformity to the Evidence Act unless a gazette specifically requires that the Court be bound by the Act.
In Odofin v Oni (2001) LPELR 2226, the Supreme Court held that it is sufficient that the proceedings are conducted fairly and in accordance with the applicable rules of the Court. It is also sufficient that the Court’s decision is based on common sense and good reason – OGUANUHU & ORS v. CHIEGBOKA (2013) LPELR-19980(SC). In addition, the strict rules of pleadings do not apply to proceedings conducted at the Customary Court – NWOKEDI & ANOR v. NWOSU (2018) LPELR-44721(CA).
It should also be noted that the Apex Court has held that even the regular Courts like the High Court, the Court of Appeal and even the apex Court itself, to which the Evidence Act ordinarily applies, cannot apply the Evidence Act when hearing civil appeals from Customary/Area Courts. That was made clear by the Supreme Court in the cases of Ogunnaike v. Ojayemi (1987) 1 NWLR (PT. 53) 760; (1988) 1 NSCC 332 @ 336 lines 30 – 45; (1987) 3 S.C. 213; (1987) LPELR- 2345(SC) P. 29 paras F-G[iii]
The general position just stated excludes criminal proceedings as the Courts are to be guided by the Act and Sections 134 to 140 of the Act are to mandatory apply to criminal proceedings before the Court.
Not All Relevant Facts Maybe Admitted/admissible In Evidence
A common mantra or cliche at the bar is that ‘relevance is the basis for admissibility’. The position of the law might be better espoused by rather saying that generally, relevance is the basis for admissibility, however, it is not the only determinant of admissibility[iv]. This point has been restated in a number of cases. Prominent amongst them is the case of Musa Abubakar v. E.I Chuks (2007) 2 SCNJ.
In the case of Alhaji Usman Sharu baban-lungu and Anor v. Alhaji Ahmed Abubakar Zarewa and ors (2013) LPELR- 20726 CA. pp.38-39 Paras F-C, the Court of Appeal substantiated the position above in the following words;
“the often cited authority for the proposition that once a document is relevant to a matter, it is admissible is Torti v Ukpabi 1984) 1 SCNLR 214 where the Supreme Court stated that the test of admissibility of a document is relevance.
However, it is a misunderstanding of the law of evidence to assert the application of this statement of the Supreme Court in all situations. It is elementary that a document sought to be tendered in evidence by a party in the course of trial in the high court must satisfy two requirements; (i) the rules of pleadings i.e. that it must be pleaded; and (ii) the rules of evidence i.e. that it must possess the quality required by the Evidence Act to make it admissible in law”…the fact that a document is relevant is not always enough ground for its admissibility; there are other criteria to be considered.
The point was ably captured by Oguntade JCA (as he then was) in the case of Fawehinmi v Inspector General (2000) 7 NWLR (Pt 655) 481 at 524 to 525 G-B.”
The obvious consequence of the position above is that a document might be relevant but yet rejected in evidence as being inadmissible. This is because the document despite being relevant might be presented in its inadmissible form. Therefore, that a document is relevant does not mean it will be or must be admitted in evidence.
More precisely, relevant facts may not be admitted in evidence based on some grounds –
by Section 1(a) of the evidence Act relevant facts may be excluded (or ruled as inadmissible) if they are considered by the judge to be too remote to be material in all circumstances of the case.
Relevant facts may also be excluded where a provision of the law disentitles a person from giving evidence of such relevant facts -Section 1(b) of the Evidence Act 2011. Examples of such persons would be persons covered by Section 308 of the 1999 Constitution.
If the Evidence Act or another Act excludes such otherwise relevant fact or declares it to be inadmissible, it so shall be or it so it is.
Where the document or evidence is improperly or illegally obtained and the Judge has exercised his discretion not to admit the evidence even though it is indeed relevant – Section 14 and 15 of the Evidence Act.
Where the interest of justice demands
Where it would be contrary to public policy to admit such evidence
Where it is hearsay evidence. If a fact that is ordinarily relevant amounts to hearsay, the Court will rule same as being inadmissible due to the relevant provisions of the Evidence Act
Under section 243 of the Evidence Act[v] Evidence may be excluded on grounds of public interest.
The Dividing Line Between Admissibility And Weight/ Probative Value
A document could be admitted on the grounds noted above but the Court may not attach any weight to it. The Court might also attach little weight to it. See also Justus Nwabuoku & ors v. Francis Onward & ors [2006] LPELR-2082(SC); [2006] 5 SC (Pt. III) 103. Stated slightly differently, the principle is that the fact that evidence, oral or documentary, is admissible does not mean that it has weight or probative; it may not have any probative value or any weight at all, though it is admissible. See Stephen Haruna v. The AG of Federation [2012] LPELR-7821(SC) and a host of other authorities[vi].
More importantly, whereas admissibility is based on the law, the weight to be attached to a piece of evidence depends on a number of factors such as relevance, credibility, probability and conclusiveness. See NAB Limited vs. Shuaibu (1991) 4 NWLR (186) 450, Omega Bank Nigeria Limited vs. O.B.C. Limited (2005) 1 SC (Pt. 1) 49[vii].
In addition, the issue of the weight/probative value of a piece of evidence only arises after it has been admitted in evidence. More precisely, it comes in for consideration at the stage of writing the judgment or ruling. That is when the document is evaluated alongside facts of the case[viii].
Proper Time To Object To The Admissibility Of A Document
The position of law is that that the time for objecting to the admissibility of documents is when a party seeks to tender them in evidence and not generally on appeal (or by way of an appeal) – IBORI V. AGBI & ORS (2004) 6 NWLR (pt. 868) 78 at 136; FATUNBI v. OLANLOYE (2004) 12 NWLR (pt. 887) 229; ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC). FIRST BANK v. MUKSAN INTL LTD & ANOR (2017) LPELR-43143(CA), OGUNBODEDE v. FRN (2018) LPELR-44883(CA), GEFESCO ENTERPRISES (NIG) LTD v. UYASCO TECH CO. LTD (2019) LPELR-49020(CA)[ix]
The position of the law above notwithstanding, there are situations where Counsel opts to raise (or ends up raising) his objection to the (now) already admitted document at the point of final address or even for the first time on appeal.
The question in such a situation is – is it too late in the trial for Counsel to do so? Has he waived his right to raise such an objection?
When An Objection To The Admissibility Of A Document Can Be Raised At The Point Of Final Address Or For The First Time On Appeal
The current stream of authorities that proffer answers to the poser above, tend to offer both an affirmative and negative answer depending on the circumstances of each case. For the purpose of the purpose of determining whether Counsel can object at the point of final addresses, the Courts have delineated the nature of admitted evidence (to which Counsel may be objecting to) into two categories;
Documents/Evidence that are in no way and under no circumstances admissible in law
Documents/Evidence that are admissible only after the fulfilment of some conditions or laying of some foundation.
For Category No 1 above, raising the objection at the point of final address or on appeal is allowed; such an objection stands on very fertile ground or basis. Put differently, Counsel has hope. Or better put; maybe his client’s case has hope.
But for category 2 above, raising the objection at the point of final address or on appeal is too late in the day. Please see the exposition[x] on the law on this point in the cases of HARUNA & ORS v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2010) LPELR-4231(CA), OKPU v. TRUST BOND MORTGAGE BANK PLC (2021) LPELR-54554(CA), MTN v. MUNDRA VENTURES (NIG) LTD (2016) LPELR-40343(CA).
Conclusion
An attempt has been made to begin a distillation of some rules of evidence and their applicable exceptions from various case law on the point. This attempt will be continued in subsequent series.
N. F. Nkobowo ESQ is a senior Associate with Compos Mentis Legal Practitioners where he is part of the dispute resolution unit of the firm. He can be reached via [email protected] and 08128926652.
On Friday 9 June 2023 the president of Nigeria, Bola Tinubu suspended the governor of the Central Bank of Nigeria (CBN), Mr Godwin Emefiele pending conclusion of investigation into his alleged wrongdoing and mismanagement of the economy.
Critics flew into the air immediately reminding President Tinubu of having criticized then President Jonathan for removing the then CBN governor, Mr Sanusi Lamido in 2014 without Senate approval.
At the time Tinubu had said that the act of the president was unconstitutional, and impunity.
Submission
Section 11 of the Central Bank of Nigeria Act 2007 (hereinafter, the CBN Act) provides for the removal of the governor of the CBN from office which must be by Senate approval.
This follows that the president cannot unilaterally remove the CBN governor from office except by Senate concurrence.
Has President Tinubu Removed The CBN Governor From Office?
The Cambridge Online Dictionary defines removal from office as: “ to force someone to leave an important job or a position of power, usually because they have behaved badly, or in a way that you (the appointer) do not approve of.” (words in brackets, added).
From the above definition, removing the CBN governor from office would equal to sacking him or terminating his appointment. However, from the press release issued from the State House, Abuja, dated 9 June 2023, the president did not remove Mr Godwin Emefiele from office.
In the other words, Mr Emefiele has not been sacked as the CBN Governor but only suspended from performing the functions of his office pending investigation into his official activities.
The same Cambridge Dictionary defines “suspension” as: “an act to temporarily stop an employee from working often because they have done something wrong.”
Certainly, the action of the president on Emefiele is not removal but suspension,” which from the compound reading and proper construction of the provisions of the constitution and other laws in Pari materia, the president is clothed with the vires to suspend the CBN governor and some other classes of appointive public officer without recourse to the Senate or any authority whatsoever, howsoever. This now takes us to the law enabling the president in that behalf.
Power Of The President To Suspend Appointive Public Officers
Section 11 (1) (b) of the Interpretation Act cap i23 LFN 2004 (hereinafter, the Act) provides that the person who is clothed with the power to appoint a public officer to any office shall also have the power to remove or suspend the person from such public office.
Howbeit this statutory provision as related to removal from office of certain sensitive public offices includ6the CBN is subject to Senate oversight. But the power as related to suspension is not regulated by any law.
This then transports us in the vehicle of jurisprudential expedition to section 10 (2) of the Interpretation Act which stipulates that when a person is conferred with power to do a duty, and the means by which to do that duty is to be performed has not been prescribed by law, the person so conferred with power shall perform that duty in the manner he deems fit for the duty to be performed.
Section 10 of the Act provides inter alia, thus:
10 (1)Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.
(2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.
It is therefore my humble submission that since the Interpretation Act has conferred the on the president power to suspend the CBN governor from office, but the process of exercising that duty is not prescribed, the president can perform that function by Executive fiat at own absolute discretion.
Suffice it to say that had the framers of the constitution envisaged that power to suspend certain appointive public officers should not rest absolutely on the president, they would expressly provide for same but would not remain silent.
In my considered view, the expressio unius est exclusio alterius principle of constitutional and statutory construction will be applied in the circumstances, to the effect that the exclusion of suspension in section 11 of the CBN Act concludes that the lawmakers did not intend to include suspension of a CBN governor under Senate approval.
This is more so as there is no law, to the best of my knowledge, making the principle of generellia specialibus non derogant to apply in the circumstances since there is no special law providing that suspension of the CBN governor shall require legislative approval.
As afore-chronicled, by the combined reading of sections 8 of the CBN Act and sections 10 and 11 of the Interpretation Act, the president is inured with the powers to suspend the CBN governor on reasonable grounds of serious misconduct pending investigation into such wrongdoing.
If found culpable then the president will then proceed to produce convincing evidence to the Senate to approve his removal from office. This reasoning was affirmed by a 2014 case between Sanusi Lamido v. The President and Ors (2014) before the National Industrial Court, which unfortunately, does not fall within the circumscription of stare decisis and Judicial precedent, and can therefore not be cited as case law authority.
In that case, the Court held that the president had power to exercise disciplinary measures on the CBN governor including power to suspend him, but lacks the power to remove or sack him without Senate approval.
The Deference Between Tinubu And Jonathan’s Dealing With The Cbn Governor
In 2014 then President Jonathan had reasons to believe that the CBN governor, Mallam Sanusi Lamido Sanusi was working against his Government which led to the outright sack of the CBN governor and an order for his arrest and investigation.
However, President Tinubu only suspends the CBN governor then ordered his arrest for investigation. There is a whole world of difference between the two ways in which the two presidents handled the matter.
Conclusion
The president of Nigeria has no power to sack the CBN governor without approval of the Senate who also approved his appointment.
However, it seems to appear that the president is clothed with the legal paraphernalia to suspend the CBN governor from office pending investigation.
This is more so, as the CBN Act makes the CBN Governor answerable to the president and under his exclusive directive.
Image credit: Legit.ng
About Author
Manfred Ekpe is a lawyer, author, activist and public affairs commentator.
Headings: Digital Rights, Problems facing Digital Rights, Improvement of Digital Rights
Introduction
As the wildfire of technological advancement surges through the 21st century world, more people depart conventional way of life towards undertaking most of their ordinary daily activities online.
According to DataReportal[1], as at January 2022, there were roughly 109.2 million internet users in Nigeria which is about 51 percent of the total population. Consequently, as greater proportion of this population take on digitisation in business and social environments, as well as for dissemination of information, the issue of data privacy and protection of individual rights arises.
Ergo, to afford users conducive digital space, the government have promulgated some regulatory measures such as the Cybercrime Act 2015[2], however, the violation of rights and freedom has remained a recurring phenomenon likewise the invasion of online privacy in many instances by private actors, bodies corporate and even government agencies without legal justification, due to ambiguity and loopholes in extant laws[3].
Thus, this pervasive trampling of individual digital rights in Nigeria demands for improved protection and remedies. For the purpose of this paper, the author would examine the scope of digital rights, the extent of its violations and necessary pragmatic measures to ensure more inclusive protection.
Digital Rights
Digital rights are synonymous to those fundamental human rights enjoyed offline, but now adapted to a new age of technology. Bolstering this position, the United Nations Human Rights Council, unanimously agreed that the human rights people enjoy offline also applies online[4].
To wit, these rights are not novel, but an extension of those fundamental human rights to digital spaces to aid protection online. Digital rights constitute unrestricted internet access to all, freedom of expression, communication and association online, access to information, right to privacy and data protection, right to be forgotten, protection of minors online and the governance and regulations of digital spaces[5]. It protects users from online abuses.
It has been reported that, as people surf and carry-on businesses online, their movements, preferences and information are often tracked and divulged to some online corporations who use them for marketing purposes, without the consents of data subjects[6]. For instance, a person who makes a search on a particular vendor on the internet will find many suggestions of similar vendors by such app. This also resonates the susceptibility of individuals’ data online, and further risks of third-party invasion which usually results to recurring cyber theft[7].
At the heart of digitalisation in Nigeria is the social media, as it’s usage increases, however, hate speeches, discrimination, defamation and the intimidation of users as well as shutdown of the internet by authorities has been recurrent. These issues, amongst others, emphasizes the need for digital protection.
In understanding the scope of Digital Rights, it is pertinent to understand that it overgoes activities that accrue online, to encompass some non-internet related activities, such as biometric data collection and telecommunication services[8].
Problems facing Digital Rights
Although the Nigerian constitution made provisions for individual privacy and freedom of expression in sections 37 and 39 respectively[9], the absence of express provisions of digital rights has left the floodgate of unlawful violations ajar.
As aforementioned, some Nigerian legislations, pointedly, the Cybercrime Act, have undemocratic elements that work hardship on citizens. Since its enactment, there has been an upsurge in the shutdown of internet and arrest of journalists and bloggers, owing to elusive provisions which give government agencies unruly powers. For instance, sections 23 and 24[10] provide for the divulgence of personal information of individuals by service providers to government agencies, giving them the power to act on discretion without court checks.
This precipitated the shutdown of Twitter in 2020 when the federal government, acting in solitary, purported that Twitter would evoke crisis across the country[11].
In 2019, a journalist, Obimma D. Norman of Online Realm News, was arrested in Abia state by the police on frivolous claims of harassment[12]. In another instance, the government ordered the shutdown of telecoms services in some Northern States like Zamfara in 2021[13], which is an ineffective way of fighting banditry as opposed to their claims. All these infringes on digital rights vital to human existence.
Another digital endemic is the susceptibility of individual data to the risks of cyber threats and invasion. In the face of this, the Central Bank Consumers Protection Framework, prohibits financial institutions from divulging personal customers’ information and ensuring appropriate measures to safeguard data, only retrievable upon individual’s consent[14].
Similarly, the National Information Technology Development Agency (NITDA) in 2019, issued the Nigerian Data Protection Regulations(NDPR), to regulate the management and prohibit unconsented use of individuals’ information by data controllers.
Notwithstanding, there are instances where telecommunication providers often divulge to financial loaners the contact lists of runaway debtors, with which they call clueless third parties to inquire the whereabouts of such debtors.
In a Nigerian case, Godfrey Eneye v MTN Nigeria[15], the court held that unauthorized disclosure of the claimant’s mobile phone number by MTN and the subsequent unsolicited text messages he received from unknown third parties were violations of his constitutional right to privacy.
The Regulation also provided for individuals’ consent before collection and usage of data, withdrawal of such consent or erasure, but it was mute on the easement of the process[16]. For instance, some close subscribers of Spotify complained last year of the automatic renewals of their subscription, and their inability to withdraw consent later because of complexities.
In Regulation 3.1, the NDPR provided for free correction of personal data by data subjects, however, the exceptions provided is deemed to wreak havoc on individuals. Such is the National Identity Management Commission (NIMC) direction for charges of N15,000 for first time changes in date of births by citizens, which has met adverse criticisms[17].
The Way Forward: Improvement of Digital Rights
Suffice to say, there is need for robust legislation and advocacy, if equal digital rights protection will be attained in Nigeria. The lawmakers in 2016 took bold steps when they passed into law the Digital Rights and Freedom Bill but was refused assent by the President due to some vague reasons[18].
Foremost to achieving better digital rights protection regime, robust campaigns are required to urge the government to review and pass the digital rights bill into law which has been delayed over the years.
The bill sought to oversee online privacy and confidentiality, surveillance, recognition of digital assets, data security, requirements of privacy notice, anonymity and censorship of freedom of expression, prohibition of hate speech, access to the internet, protection of disabled and marginalised people and protection of students’ privacy amongst others[19]. Thus, below are elaborations of the foregoing and additional recommendations.
A novel provision in the bill is the recognition of digital assets which provides for the succession of digital assets like websites.
Foremost to digital rights, is the right to internet access which is analogous to the fundamental right to life. The UN Declaration of Global Human Digital Rights[20], provided in part II for all-inclusive equal rights to access digital environment and be free from mass surveillance and interceptions by the state. Thus, government agencies must be required to obtain appropriate court orders before intercepting or requiring individual information from data controllers or go after them, and to also control unlawful shutdown of the internet.
Government acting through its agencies and the judiciary, ought to collaborate with online social media corporations to regulate abuses of human rights and hate speeches. However, this should not be an invitation to pry into individual’s privacy, for example the invasion and deletion of individual private messages should be prohibited. Divulging of sensitive individuals’ information online, especially for minors, an example is the divulgence of some Chrisland school children’s sex tape on Twitter.
It is commendable that some data controllers now provide privacy notice before collection of personal information. However, government ought to put measures in place to ensure that others follow suit. Data controllers should also be made to comply with adequate data security measures. In a case against the National Identity Management Commission[21], the court held that it is not sufficient to have protective laws, but there must be adequate implementation of the policies.
The law is clear on the confidentiality of personal information, and anything otherwise must be with consent, save for exceptions which must require court order. Emphases should also be placed in making consent, withdrawal and corrections of personal information easy for individuals.
As the world moves digital, justice systems ought to follow suit as conventional courts pose challenges of excessive cost, time, and distance barrier. Nigerian judiciary should adopt Online Dispute Resolution (ODR)[22] mechanisms, to provide citizens better access to report violation cases and attain justice. This would make civil actions and compensations easier for individuals to pursue.
Summarily, digital rights protection in Nigeria is pivotal to address issues of cyber abuses and infringements on fundamental rights. To this end, the government should see to the annihilation of repugnant extant laws and replaced with express enactments. Such express provision for digital rights would ensure a better protected clime.
[3] The act was elusive on adequate digital rights protection. Also, National Communication Commission Act; some state laws like Internet Security and Enforcement Law, Akwa Ibom.
[15] Godfrey Nya Eneye v MTN Nigeria Communications ltd (2013) CA/A/689 (Unreported).
[16] Chinedu Ezomike, Data Protection & Privacy in Nigeria: What You May Not know, @2019 Andersen Tax LLC and Andersen Tax LP.
[17] Incorporated Trustees of Digital Rights Lawyers Initiative & Ors v The National Identity Management Commission (2020) AB/83/29.
[18] Oloyede R., Oluwagbeminiyi O., & Onah D. O. (April 2022). “Digital Rights Analysis (Comparative analysis of digital rights and freedom Bill and other legislations in Nigeria). https://www.researchgate.net/publication/350942541. Accessed on 28 February 2023.
[21] Incorporated Trustees of Paradigm Initiative for Information Technology (PIIT) & Sarah Solomon Eseh(Applicants) v National Identity Management Commission & A.G Federation(2019).
Victor Odii is a law student at the University of Nigeria, Enugu Campus. With the advancement of technology and digitisation, he has demonstrated enthusiasm in the area of digital rights protection as well as campaigns for robust incorporation of technology in the dispensation of court justice which promises more efficiency.
Privilege is a rule of evidence that allows a witness to refuse to disclose information or provide evidence about a particular fact or to bar such evidence from being disclosed or used in a judicial or other proceeding.
Similarly, on the ground of public policy, relevant evidence may be excluded when it concerns matters of state interest.
In Ahamba V State (1992) 5 NWLR (Pt. 242) 450, the court held that;
“Generally, a witness who is competent and compellable to testify may, in certain cases, refuse to answer particular questions on relevant matters on the ground of public policy or privilege.”
Thus, under privilege, a witness has a right or duty to refuse to disclose a relevant fact by answering a question or to produce a relevant document. In other words, where a witness is competent and compellable to give evidence and is entitled to claim privilege, either for himself or the person he is representing and does so, he may be entitled to refuse to give evidence or produce document on matters relevant to the issue before the court.
The rule of Privilege is founded upon the grounds of public policy. In Fawehinmi v. Akilu (1994) 6 NWLR (Pt. 351) 387, the court held that, “The immunity from suit of court processes and proceedings is founded upon grounds of public policy. It is not a question of absence of malice in the party sued but a rule of public policy which requires that a Judge, in dealing with a matter before him; a party in preferring or resisting a legal proceedings and a witness in giving evidence, oral or written in a court of justice, should be able to do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.”
Classes of Privilege
Broadly speaking, privilege could be classified into two, namely: State Privilege and Private Privilege.
State Privilege: relates to affairs of the state, judicial and other official information, as well as information leading to the detection of crime.
Private Privilege: protects from disclosure matters which affect a person in his private capacity. This may relate to privilege against self-incrimination, or privilege in professional relationships.
Holder of Privilege
The holder of a privilege may be the witness himself, his spouse (as in self-incrimination), or the person for whom the witness testifies. Where the privilege is that of the witness himself, he cannot be compelled to disclose the matter by way of oral evidence or tendering document. And where the privilege is that of another, the witness will not be allowed to give the evidence or tender document unless the person whose privilege it is waives the privilege.
Privilege of Secondary Evidence
It is important to state that privilege relating to a document also extends to secondary evidence of the document. However, where the other party has obtained the privilege document, the rule does not prevent him from tendering it or giving secondary evidence of it except when the document relates to affairs of the state.
In Rumpling V. DPP [1964] AC 814, A husband charged with murder wrote a letter to his wife confessing the crime to her. Such a letter is a privileged matter between them being communication between spouses. However, the letter was intercepted and it got into the hands of the prosecution. It was held that it could be received in evidence as part of the prosecution’s case.
However, in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 2 ALLER 716, the court held that a party entitled to a privilege in a civil case can secure an injunction against any person in possession of the document, to prevent it from being tendered before the court.
But this relief or any other cannot avail a defendant facing a criminal trial because public interest should always be held to be above private interest. In Butler v Board of Trade [1970] 3 ALLER 593, Goff, J., held that the prosecution in a criminal trial could produce in evidence a letter which has come into their hands almost fortuitously.
Claim of Privilege
The Claim of Privilege is made by the witness himself. But there is nothing preventing counsel from making the claim on his behalf. In some cases, the judge may but is not bound to tell the witness that he needs not answer the question put to him.
Privilege can be raised at any point during the oral hearing of the matter. And ones raised, a judge has the duty to determine whether or not it avails the witness. And in so determining, the judge is at liberty to call further oral or documentary evidence.
“No Justice, Judge, Grand Kadi or President of a Customary Court of Appeal and, except upon the special order of the High Court of the State, or of the Federal Capital Territory, Abuja or the Federal High Court, no magistrate, or other persons before whom a proceeding is being held shall be compelled to answer any questions as to his own conduct in court in any of the capacities specified in this section, or as to anything which came to his knowledge in court in such capacity but he may be examined as to other matters which occurred in his presence whilst he was so acting.”
In Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 593, the court held that “Judicial immunity arises from two angles:- (a)immunity under the common law; and (b)immunity as provided by statutes: … “Judicial immunity, though pot provided for in the Constitution, is an important common law safeguard of the independence of the judiciary as the third arm of government. As an important safeguard, the courts have zealously and jealously guided and guarded its application in the judicial process essentially in favour of the judge qua adjudicator.”
However, judicial officers can give evidence of collateral evidence while they are sitting. For instance, an attempt to free or rescue a prisoner in court by members of his gang.
“No magistrate, police officer or any other public officer authorised to investigate or prosecute offences under any written law shall be compelled to disclose the source of any information as to the commission of an offence which he is so authorised to investigate or prosecute and no public officer employed in or about the business of any branch of the public revenue, shall be compelled to disclose the source of any information as to the commission of any offence against the public revenue.”
By virtue of this provision, the name of the informant or of the person to whom the information was given or the nature of the information or any other question as the channel of its communication or what was done under it are protected from disclosure in evidence.
In Christian Nwarata V. Chidi Egboka [2006] ALLFWLR Pt. 338 p. 768, the police got information that the appellant was being detained by the respondent. Officers therefore came in and executed a search warrant in the house of the respondent during which exercise they found the appellant chained in one of the rooms in a very terrible position with swollen face. The police removed the chains, took his photograph and thereafter took him to the hospital for treatment. On trial, Muntaka-Coomassie JCA (as he then was) dismissed the respondent’s claim that since the PW1, the police officer, had failed to disclose while giving evidence who his informant was, the appellent had failed to discharge the burden of proof placed on him by the Evidence Act.
Evidence as to State Affairs
Section 190(1) Evidence Act 2011
“(1) Subject to any directions of the President in any particular case, or of the Governor of a State where the records are in the custody of a State, no one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived from such record except with the permission of the officer at the head of the Ministry, Department or Agency concerned who shall give or withhold such permission as he thinks fit:
Provided that the Ministry, Department or Agency concerned shall, on the order of the court, produce to the judge the official record in question or, as the case may be, permit evidence derived from it to be given to the judge alone in chambers and if the judge after careful consideration shall decide that the record or the oral evidence, as the case may be, should be received as evidence in the proceedings, he shall order this to be done in private as provided in section 36(4) of the Constitution.”
Note that “records relating to the affairs of state” mean the records of matters the publication of which may affect the public interest and/or public security or international communications.
In Conway v Rimmer [1968] AC 910, the appellant sued the respondent for malicious prosecution. The court had to determine whether the production of certain documents would be injurious to public interest. Lord Reid noted that this privilege is weighed between the need to do justice against the need to protect public interest. The court held that Crown privilege can be claimed for certain documents, and that the Court has power to examine documents privately.
“No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure:
Provided that the public officer concerned shall on the order of the court, disclose to the judge alone in chambers the substance of the communication in question and if the judge is satisfied that the communication should be received in evidence this shall be done in private in accordance with section 36 (4) of the Constitution.”
The term “public officer” is not defined in the Evidence Act, however it had been defined in the Interpretation Act as meaning a member of the public service of the federation or of the public service of a state within the meaning of the constitution.
In Moronu v. Benson & Ors (1966) N.M.L.R. 66, the petitioners in an election applied for an order that the electoral officer sued as the third respondent should produce for inspection all documents relating to the conduct of the election. The electoral officer filed a counteravidavit asking that the document listed as Item 13, 14 & 15 on appendix A be regarded as privilege on the ground of public interest. Counsel relied on S. 167 of the Old Evidence Act (now S. 191 Evidence Act, 2011) as affording the protection. The court held that by virtue of the said section public interest precluded the production for inspection of the report of an electoral officer in charge of each polling station.
Private Privilege
Professional Communication Between Clients and Legal Practitioner
Section 192 (1) Evidence Act 2011
“(1) No legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure –
(a) any such communication made in furtherance of any illegal purpose;
(b) Any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.”
In R. V. Eguabor, (1962) 1 ALL NLR 541, the accused was tried for murder. During the trial, a statement allegedly made by him was tendered in evidence and read in court. The counsel to the accused who did not object to the statement being admitted said that his original instructions were that the accused went to tap palm wine on the day in question and the statement was thereafter admitted.
On appeal, it was held that the counsel’s statement as to the original instructions he had received was one which he ought not to have made and that the conduct of the counsel had occasioned a miscarriage of justice.
In Crompton Amusement Machines Ltd v Customs and Excise Commissioners [1972]2 ALL ER 353 at 376, the court held that the fact that the legal practitioner is in full time employment of the client and is on a monthly salary is immaterial.
This Privilege is of the client and not of the legal practitioner. It can only be waived by the client’s express consent.
In the recent case of Mekwunye v. Carnation Registrars Ltd. (2021) 15 NWLR (Pt. 1798) 1, the court held that, “It is the duty of counsel, having been trained professionally to preserve his client’s confidence and resultantly must not disclose any confidential communication made to him by his client, without the client’s knowledge and consent. The counsel/client relationship is sacrosanct and privileged. In the instant case, the trial court erred and breached the provisions of section 192(1) of the evidence act 2011 and rule 19 of the Rules of Professional Conduct for Legal Practitioners 2007.”
It is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client.
Section 192 (3) Evidence Act 2011
The obligation stated in this section continues after the employment has ceased.
Application to interpreters and clerks of legal practitioners
It is important to note that the provisions of S. 192 Evidence Act apply to interpreters and clerks of legal practitioners. | Section 193 Evidence Act 2011
The provisions of section 192 of this Act shall apply to interpreters and the clerks of legal practitioners.
In Akintoye V. Omole (unreported) delivered on 6th June 1978, the defendant came to brief a legal practitioner in respect of a suit without knowing that the legal practitioner was already acting for the plaintiff. On getting to the chambers of the legal practitioner, the defendant met the clerk to whom he made some disclosure before the clerk took him to the legal practitioner who refused the brief. It was held that the communication to the managing clerk was privilege.
In Dawaki Gen. Ent. Ltd. v. Amafco Ent. Ltd. [1999] 3 NWLR (Pt. 594) 224, “By virtue of sections 170-173 (now 190-193) of the Evidence Act, no disclosure of any communication made to the legal practitioner in the course of and for the purposes of his employment as a legal practitioner by or on behalf of his client is allowed. This kind of communication is the one regarded as privileged communications i.e. statements made by certain persons e.g. attorney-client, husband, wife, within a protected relationship. In the instant case, the evidence given by the legal practitioner was on matters known to both parties and cannot be said to enjoy any privilege.”
Section 194 Evidence Act 2011
If any party to a suit or proceeding gives evidence in such suit or proceeding, whether at his own instance or otherwise, he shall not be deemed to have by this reason consented to such disclosure as is mentioned in section 192 of this Act and, if any party to a suit or proceedings calls any such legal practitioner as a witness, he shall be deemed to have consented to such disclosure only if he questions such legal practitioner on matters which, but for such question, he would not be at liberty to disclose.
Doctor & Patients
There is no provision in the Evidence Act 2011 that communications between a doctor and his patient is privilege. Consequently, such communication does not enjoy privilege under the law. However, the ethics of the medical profession prescribes that a doctor should refrain from disclosing to a third-party information which he has received professionally or indirectly in his professional relationship with the patient.
However, the rules of ethics of any profession must give way to the rules of law. Therefore, where there is a legal obligation on the doctor to make a disclosure, he must make it, whether such an obligation arises from statutory provisions or order of a court.
In Hunter V. Mann (1974) QB 767, Justice Boreham held that, “The doctor is under a duty not to disclose (voluntarily), without the consent of his patient, information which he, the doctor, has gained in his professional capacity.”
Priest & Penitent
There is no provision in the Evidence Act protecting communication between the Priest and penitents. And such is not privilege in law. They are fairly common between a Roman Catholic priest and members of his religious sect, and they usually take the form of confessions of offences ranging from minor to rather serious ones. The predominant view is that even though in strict law, the privilege does not exist, a priest should not be required to give evidence as to confession made to him.
In R v. Griffin (1853) 6 Cox CC 219, a Church of England workhouse chaplain was called to prove conversations with a prisoner charged with child-murder whom, he stated, he had visited in a spiritual capacity. The judge, Baron of the Exchequer Sir Edward Hall Alderson, strongly intimated to counsel that he thought such conversations ought not to be given in evidence, saying that there was an analogy between the necessity for privilege in the case of an attorney to enable legal evidence to be given and that in the case of the clergyman to enable spiritual assistance to be given. He added, “I do not lay this down as an absolute rule: but I think such evidence ought not to be given”.
The trial judge should be able to exercise his discretion on whether or not to permit the disclosure of such communication whenever such situation arises.
In 1823, in the case of the R v. Redford, which was tried before William Draper Best, 1st Baron Wynford, Chief Justice of the Common Pleas on circuit, when a Church of England clergyman was about to give in evidence a confession of guilt made to him by the prisoner, the judge checked him and indignantly expressed his opinion that it was improper for a clergyman to reveal a confession.
No witness who is not a party to a suit shall be compelled to produce his title – deeds to any property or any document by virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to incriminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.
Production of Document which Another Person Could Refuse to Produce | Section 185 Evidence Act 2011
No one shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last mentioned person consents to their production.
The court has no power to order the production of privilege document in absence of an agreement between the party or a waiver of privilege.
Privilege against Self-incrimination
Section 183 Evidence Act 2011
No one is bound to answer any question if the answer to it would, in the opinion of the court, have a tendency to expose the witness or the wife or husband of the witness to any criminal charge, or to any penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for:
Provided that –
(a) a person charged with an offence, and being a witness in pursuance of section 180 of this Act may be asked and is bound to answer any question in cross – examination notwithstanding that it would tend to incriminate him as to the offence charged;
(b) no one is excused from answering any question only because the answer may establish, or tend to establish that he owes a debt or is otherwise liable to any civil suit either at the instance of the Federal, State, or Local Government or any other person;
(c) Nothing contained in this section shall excuse a witness at any inquiry by the direction of the Attorney – General of the Federation or of a State, under Part 49 of the Criminal Procedure Act from answering any question required to be answered under section 458 of that Act.
It is the duty of the court in all cases to decide whether the question could have the tendency to expose the witness or his/her spouse to a criminal charge.
In Blunt v Park Lane Hotel Ltd [1942] 2 ALL ER 187, the court considered the rule against self-incrimination. The witness refused to answer questions tending to expose adultery. Lord Justice Goddard said: ‘The rule is that no one is bound to answer any questions if the answer thereto would, in the opinion of the judge, have a tendency to expose the defendant to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be incurred.’
In Gallaher Ltd. v. B.A.T. (Nig.) Ltd. (2015) 13 NWLR (Pt. 1476) 325, the court determined an issue relating to the disclosure of a material fact. The court held that, “by virtue of section 183 of the Evidence Act, 2011, a witness cannot at any time be made to incriminate himself by compelling him to make a disclosure, answer questions or give information that has the tendency to expose him, his wife or husband to any criminal charge or to any penalty or forfeiture except as provided for by the Evidence Act or any other law of the land.”
(Exceptions – subsections)
Document Marked Without Prejudice
Section 196 Evidence Act 2011
A statement in any document marked “without prejudice” made in the course of negotiation for a settlement of a dispute out of court, shall not be given in evidence in any civil proceedings in proof of the matters stated in it.
Where there is a dispute between two parties it is usual for them to enter into negotiation with the view of settling the dispute. During attempt to negotiate the settlement, parties should speak freely. Therefore, these negotiations are understood by the parties to be conducted without prejudice to their right to bring action to court subsequently if negotiations break down.
During these negotiations parties admit facts orally or in a letter. If such letter is headed without prejudice and written with bona fide intention to arrive at a settlement, the letter cannot be put in evidence in a subsequent action without the consent of both parties to the negotiations.
Similarly, evidence of oral admission made during such negotiations is privileged. If the negotiations were understood by both parties to have been conducted without prejudice to their rights to bring action later.
In Chief Gani Fawehinmi V. Nigerian Bar Association & Ors (1989) 2 NWLR Pt. 105 p. 558. It came to question whether the admissions made by the plaintiff and three senior advocates for the 1st respondent in the discussion by the parties in an out-of-court mediation in pursuant of settlement were admissible with respect to Section 25 of the Old Evidence Act. The trial court held the said admissions were admissible. The Court of Appeal held that Section 25 (now Section 26) of the Old Evidence Act is irrelevant to the point at issue. However, the Supreme Court, Agbaje JSC (as he then was) held that a correct application of the section is that the admissions were inadmissible.
It is important to state that document will be inferred to be without prejudice if it shown to be in furtherance of settlement, even though the words “without prejudice” were not used.
In George C. Ashibuogwu V Attorney General Bendel State And Anor (1972) LLJR-SC, Keso JSC (as he then was) held that, “It is recognized that in some circumstances, it is not essential that the words “Without prejudice” should have been used: it may be implied that negotiations were conducted on this understanding.”
Similarly, it is also important to state that merely heading a document “without prejudice” does not carry along with it privilege unless the document relate to the settlement of an issue which has arisen or likely to arise between the parties.
In Paul Nwadike & Ors V Cletus Cletus Ibekwe & Ors. (1987) LLJR-SC the Supreme Court determined admissibility of a document tendered as Exh. D in the trial court, a letter written without prejudice by the Respondents to third parties i.e. to a body not a party to the case now before us on appeal. The Court held that the appellants being third parties to Exhibit D cannot claim any protection under it by reason of the fact that it was written without prejudice.
Communication During Marriage
Section 187 Evidence Act 2011
No husband or wife shall be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married nor shall he or she be permitted to disclose any such communication, unless the person who made it, or that person’s representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for an offence specified in section 182(1) of this Act.
182 (1)
(1) When a person is charged –
(a) with an offence under sections 217, 218, 219, 221, 222, 223, 224, 225, 226, 231, 300, 301, 340, 341, 357 to 362, 369, 370, or 371 of the Criminal Code;
(b) subject to section 36 of the Criminal Code with an offence against the property of his wife or her husband; or
(c) with inflicting violence on his wife or her husband, the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of the person charged.
Privilege in Favour of Journalists
No provision in the Evidence Act that guarantees this.
However, privilege can be claimed by 39 (1), (3)(a) of the Constitution, Freedom of Information Act 2011 which has generally granted to all Nigerians (journalists inclusive) to
In El-Rufai v House of Representative [2003] FWLR Pt. 173 p. 162, The plaintiff was summoned by the House in respect of a publication which was termed defamatory of which he made with respect to the House’s investigation on NITEL privatization. The Court of Appeal held that the House had no legislative competence to summon the plaintiff to appear before the Ethics and Privileges Committee for the purpose of answering question in respect to his alleged defamatory conduct.
In the United Kingdom, unlike in Nigeria, Privilege in favour of journalists is a statutory right as S. 10 of the English Contempt Act 1981 has created a privilege in favour of journalists not to disclose their sources of information.
Credit
Lecture Note – ZACCHEAUUS Olalere Alayinde (Senior Lecturer, Department of International Law, Obafemi Awolowo University, Ile-Ife, Nigeria.)
References
Contributors to Wikimedia projects, ‘Priest–penitent privilege in England – Wikipedia’ (Wikipedia, the free encyclopedia, 9 July 2006) <https://en.wikipedia.org/wiki/Priest–penitent_privilege_in_England> accessed 3 June 2023.
In legal reasoning, a premise refers to “a statement or proposition that serves as a basis for an argument or conclusion, it is a proposition that is assumed or accepted as true in order to support a conclusion that is being made”.
In legal reasoning, premises can take many forms, including legal rules, facts, evidence, and policy considerations. For example, in a legal argument about whether a defendant is guilty of a crime, the premises might include the ELEMENTS of the crime, the TESTIMONY of witnesses, and PHYSICAL EVIDENCE presented at trial.
These premises, when combined with legal reasoning and analysis, are used to support a conclusion about the guilt or innocence of the defendant.
Premises are essential to legal reasoning because they provide the foundation upon which legal arguments are built. They are the building blocks of logical arguments, and they serve as the foundation upon which conclusions or inferences are drawn.
In legal reasoning, premises are the legal principles, rules, or facts that are used to support a legal argument or analysis.
Examples: 1, A premise in a legal argument might be a legal principle that states that a person is presumed innocent until proven guilty.
This premise would then be used to support the argument that a defendant in a criminal case should not be convicted unless the prosecution can prove their guilt beyond a reasonable doubt.
2, Also, a premise in a legal argument might be a legal principle that states that all contracts must be written in order to be enforceable.
This premise would then be used to support the argument that a contract between two parties is not valid and enforceable hence it isn’t in a written format.
In conclusion, it is important for lawyers and judges to carefully evaluate and scrutinize the premises in legal arguments to ensure that they are reliable and relevant to the legal issue at hand. This is done through legal research, analysis of case law, and consideration of relevant statutes and regulations.
By carefully examining the premises and ensuring their accuracy and relevance, lawyers and judges can arrive at sound legal conclusions and decisions.
About Author
Promise Chukwuma Law Student || Public Speaker || Writer Student at Rivers State University Nigeria
Patent Trolls: Understanding and Dealing with the Threats to Intellectual Property Rights
In today’s fast-paced and competitive world, innovation and creativity are key drivers of economic growth and prosperity. But for many inventors, entrepreneurs, and businesses, that creativity is being threatened by a new type of predator: Patent trolls.
These companies, often with no products or services of their own, buy up patents solely for the purpose of suing other companies for infringement, often with little regard for the validity of the claims. In this article, we’ll explore the insidious world of patent trolls, their impact on innovation and the economy, and strategies for dealing with their threats.
Patent Trolls: The Dark Side of Intellectual Property
The term “patent troll” is used to describe a person or company that acquires patents with the sole purpose of using them to generate revenue through litigation, rather than developing or commercializing the patented technology.
A patent troll typically acquires a large number of patents, often in a specific technology area, and then aggressively seeks to enforce those patents against other companies, regardless of whether or not the alleged infringer is actually using the patented technology. They often demand exorbitant licensing fees or threaten legal action in order to pressure the accused infringer to settle out of court.
The Patent Troll Problem: How They Harm Innovation and Creativity
Patent trolls can harm innovation and creativity in several ways. Firstly, they can divert resources away from innovation by forcing companies to spend time and money fighting frivolous patent lawsuits, rather than investing in research and development.
Secondly, they can discourage investment in new startups and emerging technologies by creating a climate of uncertainty, making investors hesitant to support them.
Thirdly, patent trolls can deter small businesses and entrepreneurs, who often lack the financial resources to fight a legal battle, from bringing new products or ideas to market, limiting their potential impact on the economy and society as a whole.
Fourthly, even the threat of a patent troll lawsuit can create a climate of fear and litigation, causing companies to avoid pursuing certain ideas or technologies.
Lastly, patent trolls can hold up innovation by acquiring patents for inventions they have no intention of developing or commercializing, but rather use them to extract rents from other innovators, leading to inefficiencies and slowing down the pace of innovation.
Overall, patent trolls can create a negative cycle that harms innovation and creativity and can limit the potential for new technologies and ideas to be developed and brought to market.
The Patent Predator: Uncovering the Tactics of Patent Trolls
Patent trolls use various tactics to extract money from other companies, including:
Sending demand letters: Patent trolls often send letters to companies accusing them of infringing on their patents and demanding licensing fees or settlements.
Filing frivolous lawsuits: Patent trolls often file lawsuits against multiple companies, hoping to extract settlements from those who can’t afford the time or legal fees to fight back. These lawsuits may be based on vague or overly broad patents.
Targeting small businesses: Patent trolls often target small businesses, which may not have the resources to fight back, in hopes of extracting a quick settlement.
Seeking out settlements: Patent trolls often seek out settlements rather than pursuing trials, as this can be a quicker and more profitable way to extract money from companies.
Threatening litigation: Even the threat of a patent troll lawsuit can be enough to intimidate companies into paying licensing fees or settlements, as the legal fees and time involved in fighting back can be substantial.
These tactics can create a climate of fear and uncertainty, causing companies to divert resources away from innovation and invest in legal defence instead. They can also discourage investment in emerging technologies and deter small businesses and entrepreneurs from bringing new products or ideas to market.
The business model of a patent troll involves acquiring patents and then using them to extract licensing fees or settlements from other companies through litigation.
Patent trolls typically do not create or commercialize new products or technologies themselves. Instead, they acquire patents either through direct purchase or from bankrupt companies, and then use those patents as leverage to extract money from other companies.
Patent trolls often acquire patents that are overly broad or vague, allowing them to claim infringement on a wide range of products or technologies. They may also acquire patents that are not being actively used by their original owners, which reduces the risk of a countersuit.
Once they have acquired patents, patent trolls may send demand letters or file lawsuits against multiple companies, hoping to extract settlements from those who cannot afford to fight back. They may also seek out larger companies with deep pockets, hoping to extract larger settlements.
To finance their litigation, patent trolls often partner with third-party litigation funders, who provide funding in exchange for a portion of any settlement or licensing fees obtained. Patent trolls may also work on a contingency fee basis, paying their attorneys a percentage of any settlement or licensing fees obtained.
The Troll’s Toll: How Patent Trolls Hurt Small Businesses and Startups
Patent trolls can be particularly harmful to small businesses and startups, as these companies often have limited resources and face unique challenges in the marketplace.
One of the ways in which patent trolls hurt small businesses and startups is by diverting resources away from research and development and into legal defense. Small businesses and startups may not have the financial resources to fight a lengthy legal battle, and the diversion of resources can delay or halt innovation efforts.
Additionally, patent trolls may demand high licensing fees or settlements, which can be a significant financial burden for small businesses and startups. These costs can be especially harmful for companies that are just starting out or that are operating on tight budgets.
Patent trolls can also create market uncertainty by making it difficult for small businesses and startups to determine which technologies are actually protected by patents and which are not. This can limit their ability to develop new products and services and can create an unfair advantage for larger, established companies that have the resources to navigate the patent landscape.
Overall, it is important for small businesses and startups to understand the tactics used by patent trolls and to take steps to protect themselves from these types of threats.
Don’t Feed the Trolls: Strategies for Dealing with Patent Trolls
There are several strategies that businesses and individuals can use to deal with patent trolls:
Defensive Patenting: Companies can protect themselves from patent trolls by building a portfolio of their own patents. This can discourage trolls from suing or threatening legal action, as it may put their own patents at risk of being invalidated or counter sued.
Patent Insurance: Some insurance companies offer policies that cover the cost of defending against patent infringement lawsuits, providing businesses with a financial safety net in case they are targeted by a patent troll.
Litigation Reform: Changes to patent litigation rules, such as the introduction of fee-shifting provisions, can make it more difficult and expensive for patent trolls to bring frivolous lawsuits.
Public Education: Raising awareness about the tactics used by patent trolls can help individuals and businesses identify and avoid them. It can also put pressure on policymakers to take action to address the issue.
Collaborate with other businesses: Companies can pool their resources and collaborate to jointly defend against patent trolls. This can include sharing legal costs and expertise.
Patent Quality: The US Patent and Trademark Office has made efforts to improve the quality of patents issued, which can reduce the likelihood of patent trolls being able to assert low-quality patents.
By using these strategies, businesses and individuals can protect themselves from the harmful effects of patent trolls and help promote a more innovative and creative economy.
Fighting Back Against Patent Trolls: Legal and Practical Solutions
There are both legal and practical solutions for dealing with patent trolls.
Legal solutions include:
Challenging patents: Businesses can challenge the validity of a patent asserted by a troll by filing a lawsuit in the respective court.
Anti-troll legislation: Some states and countries have passed laws to discourage patent trolling, such as requiring more detailed allegations of infringement in a lawsuit, or imposing penalties for frivolous claims.
Patent reform: Some have called for reform of the patent system itself to reduce the number of low-quality patents that can be used by trolls, such as increasing the requirements for patentability or limiting the remedies available for infringement.
Practical solutions include:
Litigation avoidance: Businesses can take steps to avoid litigation by conducting thorough patent searches and negotiating licenses with patent holders before being sued.
Defensive patenting: Businesses can also build up their own patent portfolios to use defensively against trolls or to cross-license with other companies to avoid infringement claims.
Public advocacy: Some have advocated for public education and awareness campaigns to increase knowledge about the negative effects of patent trolling and to advocate for reform.
The Patent Troll Paradox: Protecting IP While Fostering Innovation
The Patent Troll Paradox refers to the dilemma of protecting intellectual property while also fostering innovation. On one hand, strong IP protection encourages inventors and entrepreneurs to invest in new technologies and ideas, knowing that they can benefit financially from their innovations. On the other hand, some companies use patents primarily as a tool for litigation and licensing fees, rather than to actually innovate or bring products to market.
Patent trolls, in particular, represent a challenge to this paradox. While they do not typically invent or produce anything themselves, they acquire patents with the sole purpose of suing others for infringement. This behaviour can stifle innovation by creating a chilling effect on research and development, particularly for small businesses and startups that cannot afford the high costs of litigation or licensing fees.
Addressing the Patent Troll Paradox requires striking a balance between protecting IP and preventing abuses of the patent system. This can be achieved through a combination of legal and policy solutions, such as improving patent quality to reduce the number of low-quality patents that trolls can use, enacting anti-troll legislation, and promoting alternative dispute resolution mechanisms.
Ultimately, the goal should be to promote a patent system that incentivizes innovation and protects the rights of inventors, while also preventing abuses and ensuring that patents are used for their intended purpose of promoting progress in science and technology.
Trolling for Dollars: The Business of Patent Litigation
The business of patent litigation refers to the practice of buying and asserting patents for the purpose of suing companies for alleged infringement. Patent litigation is a costly and time-consuming process, and many companies may choose to settle rather than engage in a lengthy legal battle. This has created a lucrative industry for companies that acquire patents with the intent of enforcing them, commonly known as patent assertion entities or patent trolls.
Patent litigation can be used as a weapon to extract licensing fees or damages from companies that are allegedly infringing on a patent. In some cases, patent trolls may acquire patents that are overly broad or of questionable quality, and then assert them against a large number of companies in the hopes of receiving a settlement. This type of behaviour can stifle innovation by creating a chilling effect on research and development, particularly for small businesses and startups that cannot afford the high costs of litigation or licensing fees.
However, not all patent litigation is frivolous or harmful. In some cases, legitimate patent holders may need to enforce their patents in order to protect their intellectual property rights and prevent others from unfairly profiting from their inventions. Moreover, patent litigation can also serve as a mechanism for resolving disputes and clarifying the scope of patents, which can promote innovation by providing more certainty and clarity for inventors and entrepreneurs.
Ultimately, the business of patent litigation is complex and multifaceted, and requires careful consideration of the competing interests involved. While it is important to protect intellectual property rights and prevent infringement, it is also essential to prevent abuses of the patent system and ensure that patents are used for their intended purpose of promoting progress in science and technology.
Preserving Innovation: Why Safeguarding Your Intellectual Property Rights is Crucial
Safeguarding your intellectual property rights is crucial for several reasons. Firstly, it provides legal protection for your creations and inventions, preventing others from using or profiting from them without your permission. This is especially important for businesses, as it allows them to maintain a competitive advantage in the marketplace and protects their unique products and services.
Secondly, protecting your intellectual property rights can also lead to increased investment in research and development, as investors are more likely to fund projects that are backed by solid IP protection. Finally, safeguarding your IP rights helps to foster a culture of innovation and creativity, encouraging individuals and businesses to continue producing new and unique ideas.
In conclusion, patent trolls have become a serious problem for businesses and individuals who hold intellectual property rights. Their tactics of exploiting weak patents and using litigation as a tool to extract money from others have caused significant harm to innovation and creativity.
However, there are strategies for dealing with patent trolls, both legal and practical, that can help protect your IP and minimize their impact. It is important to recognize the threat posed by patent trolls and take action to defend your intellectual property rights. By doing so, we can create a more supportive environment for innovation and ensure that the benefits of creativity are realized by those who truly deserve them.
References
Bessen, J. E. (2014). The Direct Costs from NPE Disputes. Journal of Legal Studies 43, 281-318.
Chien, C. (2011). Patent Trolls and Patent Remedies. Santa Clara Law Review.
Hsu, C. C. (2017). Patent Trolls and Litigation Finance. Michigan Telecommunications and Technology Law Review.
James Bessen, J. F. (2016). Patent Trolls: Evidence from Targeted Firms. Texas Law Review.
Law360. (n.d.). The Patent Troll: A Complete Guide. Retrieved from Law360: https://www.law360.com/articles/546261/the-patent-troll-a-complete-guide
Love, B. (2015). Patent Trolls: A Real Threat to Innovation. IEEE Spectrum.
Mogee, M. E. (2017). The rise of patent trolls and implications for innovation policy. Review of Industrial Organization, 50(1), 49-74.
U.S. Government Accountability Office. (2013, AUGUST 22). Intellectual Property: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality. Retrieved from GAO.GOV: https://www.gao.gov/products/gao-13-465
Watal, J. (2012). The Role of Intellectual Property Rights in Encouraging Foreign Direct Investment and Technology Transfer. International Journal of Intellectual Property Management.
Williams, H. L. (2013). Intellectual Property Rights and Innovation: Evidence from the Human Genome. Journal of Political Economy.
Yeh, B. T. (2013). An Overview of the “Patent Trolls” Debate. Congressional Research Service.
About Author
Rakshit Sharma is a student of Amity Law School, Noida, Uttar Pradesh, India. He loves cycling. He published his first article on LawGlobal Hub in September, 2022, and became a volunteer in January, 2023.
Does A Governor Of A State Possess Statutory Power To Declare Public Holiday In His State?
The declaration of 2nd of May 2023, by the incumbent governor of Rivers State, His Excellency, Gov Nyesom Ezenwo Wike via a statewide broadcast has created a media based tug of war as to the power of a governor to declare a public holiday.
While some (myself inclusive) received this news with gratitude and showered encomiums on his excellency, others aren’t having it, as there have been lots of holidays already and people just resumed their various endeavours after the just concluded international worker’s day holiday, hence their displeasure with the impromptu declaration of a public holiday due to the bust of the “President Elect” (Bola Ahmed Tinibu) for the commission of a project. A reason which most of them tag “bizarre”.
This has left pending questions on the minds of citizens and non citizens alike begging for answers. Thus this article is aimed at giving answers to this pending prayer.
Before delving into the aforementioned question, it is pertinent to highlight the meaning of the phrase Holiday.
What is a Holiday?
The Merriam Webster dictionary defines the word Holiday as a day in which one is exempt from work, specifically a day marked by a general suspension of work in commemoration of an event.
Furthermore in the case of KAIGAMA v. NEC (1993) 3 NWLR (Pt.284) 681 & Ors, “holiday” is defined as a ‘day which is a Sunday or a public holiday”.
Section 2(3) of the Public Holidays Act Cap P.40, Laws of the Federation of Nigeria, recognizes only the days listed in the schedule to the Act as ”Public Holidays’. “Per, GALADIMA, J.S.C (P. 41, paras. A-B). Quote from the Supreme Court’s judgement in the case ONYEKWULUJE & ANOR v. BENUE STATE GOVT & ORS (2015) LPELR-24780(SC).
Deduced from the foregoing, Public Holiday in Nigeria and in any part of Nigeria is under the Public Holiday Act, thus it is an issue in the exclusive legislative list, so state legislatures cannot make laws on public holidays. It is only the federal legislature (National Assembly) that can make laws on public holidays in Nigeria or in any state or part in Nigeria.
Therefore it is a General rule, that matters within the exclusive legislative list of the constitution of Nigeria, are federal matters. As such, they are above the powers of any state government in Nigeria.
Public Holidays Act 1979
The Public Holidays Act 1979, is a federal legislation that provides for all public holidays in Nigeria and in any part of Nigeria.
The said legislation empowers the President of Nigeria to declare any special day as a public holiday across Nigeria or in any part of Nigeria. Section 2(1)(2) Public Holidays Act also empowers a state Governor to declare any special day as a public holiday in his state or any part of his state.
Drawing credence from the above proposition as to whether a governor of the state possess the legal power to declare a public holiday in his state, it is my submission therefore that although by Section 2(2) of the Public Holidays Act, the Governor of any state is vested with the power to appoint a special day for the observation of a Holiday so far as it does not conflict with that of the President of Nigeria, any state law on public holidays (whether for founders’ day or state creation day) is illegal, unconstitutional and contrary to the constitution of Nigeria and consequently invalid.
Conclusion
In view of the above, it is glaring that the Public Holidays Act pulls the rope of the tug of war to the end position that the governor of a state possesses the power to declare a public holiday in his state.
However, this does not by any stretch of imagination empower any state House of Assembly to enact laws on public holidays. Therefore long story short, His Excellency Gov Nyesom Ezenwo Wike has the Legal powers to Declare a Public Holiday in the State.
Image Credit: The Nation Newspaper
About Author
Udoh, Florence Ignatius is a 300 Level Student of Law at the Rivers State University. Her aim is to enhance her writing capacity on trending legal issues of law.
Theories of ownership and comparison with possession
Possession and ownership are rights accruing on property, but ownership in essence is a greater right than possession. Possession is only an objective realisation of ownership.
This article is particular to INDIA.
Introduction
Ownership is a legal concept that refers to the legal right of an individual or entity to possess, use, control, and dispose of certain property or assets. It is a foundational concept in legal theory, as well as a key aspect of property law, contract law, and tort law.
Ownership is a complex legal concept that dates back to ancient Roman law. Initially, the distinction between ownership and possession was not recognized in legal systems. It was only with the advancement of civilization that the two were considered as separate concepts.
In Roman law, ownership and possession were respectively termed as ‘dominium’ and ‘possessio’, with ‘dominium’ denoting absolute right to a thing, while ‘possessio’ only implied physical control over it. The English law also initially gave importance to possession over ownership, but gradually developed the concept of ownership as an absolute right through the law of possession.
The term ‘ownership’ was first distinguished from possession in English law in 1583. The idea of ownership as a comprehensive right was useful for determining the ‘better right’ by proving prior possession.
The concept of ownership is often distinguished from possession, which refers to physical control over property. While possession is an important aspect of ownership, legal ownership is a broader concept that includes the right to use, control, and dispose of property. The concept of ownership is said to evolve after the concept of possession with the development of economic and social structure of the society. Ownership is not just having a physical control over the property but is a blend of several other rights in it such as:
The right to enjoy the property.
The right to exclude other people from using that property.
The right to dispose of the property.
The right to manage the property, etc.
The right to the income generated out of the property.1
Ownership is also subject to various legal limitations and restrictions. For example, the state may have the power to seize or expropriate property for public use or to regulate the use of property for the public good. Additionally, certain types of property, such as intellectual property, may be subject to different legal rules and regulations.
The concept of ownership is closely linked to the broader legal system, as it is used to define and regulate the relationships between individuals, communities, and the state. It is also a complex and evolving concept, with legal scholars and practitioners continually examining and redefining the scope and limitations of ownership in response to changing social, economic, and technological circumstances.
1 A.M Honore , Ownership;The Nature of Property and Value of Justice, Page 370-375, JSTOR.
Development of the idea of ownership
The idea of ownership was developed with the growth of civilization. Ages ago when people were wandering from place to place, they didn’t settle anywhere. They didn’t have an idea of ownership.
The idea of ownership began when people had planted trees and started to build homes for themselves. Metamorphosis from pastoral to agricultural economy helped in the development of the idea of ownership. People started to believe in “mine and thine”.
Therefore the whole credit of the development of ownership goes to the development of the civilization. During the nomadic era, people did not reside at any given place; therefore there was no sense of ownership in them.
However, with the evolution of agriculture in the society, the idea of ownership began to bud. People began to cultivate, grow their crops on lands and therefore the feeling of that property being their own started to arise. At that time, people did not differentiate between the concepts of possession and ownership. It was believed that the one who has a physical control over the land is the one who owns that land.
However, with the advent of modern civilization, this distinction between possession and ownership became clear. This distinction is believed to have been first understood by the Roman law.2
Meaning and definition
The term “ownership” literally means to have or hold a thing. The Black’s Law Dictionary defines ownership as “the bundle of rights allowing one to use, enjoy and manage the property, including the right to convey it to others”. In the legal sense, the term “ownership” means right over a thing to the exclusion of all others persons, implying non- interference by others in the exercise of his right and the same must be distinguished from a mere holding a thing in one’s possession.3
Following are some of the definitions of ownership:-
According to Hibbert ownership includes within it four kinds of rights-
Right to use of a thing;
Right to exclude others from using the things;
Disposing of the things; and
Right to destroy it.
Austin defines ownership as “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”. His definition thus implies three attributes viz.:-
Indefinite user
Unrestricted disposition
2 Galles GM “civilizationandprivate property” (FEE, January 12, 2018), www.fee.org, accessed April 24, 2023.
According to Holland, “ownership is a plenary control over an object”, that is to say “the right to a thing which is complete in itself and exclusive of all others.”
Pollock says “ownership is the entirety of the powers of the use and disposal allowed by law”. This definition highlights the importance of the owner’s freedom to use and dispose of their property as they see fit. It also implies that the owner has a certain level of autonomy over their property and that the law should generally respect this autonomy. Pollock’s definition is often cited as a clear and straightforward explanation of the concept of ownership.
Karl Marx, a German philosopher and jurist, defined ownership in terms of ‘class struggle’, arguing that “ownership was a means of oppressing the working class and maintaining the power of the capitalist class over the means of production”.4
Characteristics of ownership
1. Right to possess: Possession means physical control over a thing or an object. To constitute ownership the owner must be entitled to the possession of the property.
2. Right to use and enjoy: The owner of the property has a right to use and enjoy the property he owns subject to certain restrictions / regulations by law/state. These are liberties. The right to manage it for example: the right to decide how it shall be used and the right to income from it. These are in fact liberties; the owner has liberties to use the thing. I. he is under no duty not to use it in contract with other who is under duty not to use it or interfere with it.
3. Right to Consume, destroy (liberties) or alienate: It means right to dispose off or gift or Mortgage or lease etc. The right of owner over property is absolute, which includes the right of alienation. The right to consume and to destroy is straightforward liberties.
4. Perpetual right / Indeterminate Duration: The owner of the property has perpetual right or the right for unlimited period over the property. Those who are not owners may be entitled to possess or use the thing but the period for which they are so entitled is a limited duration.
But in case of Ownership, it is of an indeterminate duration. Thus the interest of Bailee or lessee comes to an end when the period of bailment or lease is over. But the owner’s interest is perpetual and does not terminate even in owner’s death, because in that case the property will go to his legal hairs.
5. Actual right: The right of owner over the property is heritable. It passes to the legal hairs after his death.
Ownership has a residuary character: It is possible that an owner has parted or given away so many rights in respect of the things he owned. Still he continues to be the owner of the things in view of the residuary character of ownership. For example if and owner gives the lease of his property to A and easement to B, his Ownership of the land is now consists of Residual right. For example rights which remain when the lesser rights have been taken away.
According to Austin, ownership is a right over a determinate thing, indefinite in point of the user, unrestricted in point of disposition, and unlimited in point of duration.
Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.
The term ‘ownership’ is used with reference to ‘things’ which may be corporeal things, i.e., physical objects are incorporeal things such as goodwill, patents, copyright etc. Incorporeal things embrace all claims.5
Indefinite User
Unrestricted Disposition
Unlimited Duration
Indefinite Use
It means that the owner of a thing is free to use or even misuse the thing in the manner he likes. The use of the word ‘‘indefinite” has some restrictions. The owner can be restricted by agreements or by operation of law, such as:-
The owner of a thing cannot be allowed to use the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
The ownership may be subject to encumbrance in favour of others in which case the power of the user of the owner is curtailed by the rights of the encumbrance.
The state officials have a right to enter the owner’s premises in pursuance of a warrant issued by a court or for any lawful purpose.
Unrestricted Disposition
The right of disposition implies the right of alteration, destruction or alienation of property. According to Austin an owner of a tiling has unrestricted right to dispose it off in a way he likes. Thus, he regards the right of alienation as a necessary incident of ownership. Again, the use of the word ‘‘indefinite” has some restrictions. The owner can be restricted by agreements or by operation of law, such as:-
The owner of a thing cannot be allowed to dispose off thing in a manner which is injurious to others. This is expressed by the maxim, “so use your property as not to injure your neighbour’s.
The ownership may be subject to encumbrance in favour of others in which case the power of the disposition of the owner is curtailed by the rights of the encumbrance.
Legal restrictions may hamper the unrestricted disposition of the property.
An owner of the property is not allowed to dispose of the same with a view to defect or delay his creditors.
There are certain disabilities imposed on infants and lunatics with regard to the disposal of property.
Mitakshara school of Hindu law does not allow alienation of ancestral immovable property without the consent of the coparceners except for legal necessity. In Germany, a division of small farms beyond a particular limit is not permissible.
Unlimited Duration
According to Austin the time of ownership is unlimited in point of duration. The right shall exist so long as the owner and the thing exists. It is a perpetual interest which shall devolve upon the heirs of the owner after his death, but the right shall not be extinguished.
The abolition of Zamindari system India, the abolition of privy purses, nationalization of Bank, etc. are some examples of the fact that the ownership can be cut short by the state for a public purpose and its duration is not unlimited.
Criticism to Austin’s Definition
It is pointed out that ownership is not a right but a bundle of rights. It is the aggregate of the sum-total of the rights of user and enjoyment. Even if some of the rights are removed and given to another person, the person in whom vests the residue is still the owner. The owner of a piece of land may mortgage or leases the same to another person. Although he has transferred a right, he is still the owner.
Ownership is not merely a right but also a relationship between the right owned and the person owning it.
The idea of the right of the indefinite user is also attached with some restrictions as discussed above. Many limitations can be put upon that user.
The idea of unlimited duration is also attached with some restrictions as discussed above.
Again, to say that an owner has an unrestricted right of disposition is not correct. His right of disposition of the property can be curtailed by the State. For instance, Article 31 (2) of the Constitution of India6 contained a provision that the State can take away the property of any person for public purpose.
Therefore, ownership can be cut short by the state for a public purpose and thus Austinian definition of ownership has been criticised by many writers. They argue that it is fallacious to think that ownership is a single right, in fact it is a bundle of rights including right of user and enjoyment.
6Amended by the Constitution Forty-fourth (Amendment) Act, 1978
Analysis of Salmond’s view
According to Salmond, ownership denotes a relation between a person and the right vested in him. That which a man owns in all cases a right. It consists of complex of rights, all of which are rights in rem, being good against the entire world, and not merely against some persons.
Thus according to Salmond, ownership vests in the complex of rights which he exercises to the exclusive of all others and ownership is a relationship between a person and any right that is vested in him.
In Salmond’s view, ownership exhibits the following incidents;—
I. An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it.
II. He has normally the right to use and enjoy the thing owned.
III. The owner has a right to consume, destroy or alienate the thing.
IV. Ownership has the characteristic of being indeterminate in duration.
V. Owner has a residuary character. For instance, if a land-owner gives a lease of his property to A, an easement to B and a right of profit to C then his ownership shall consist of the residual rights.7
Criticism;-
Duguit has criticised Salmond’s definition of ownership and asserted that what a person really owns is a ‘thing’ and not a right. It is, however, submitted that Salmond comprehends ownership in a wider sense to include both corporeal and incorporeal rights. Thus a man may own a copyright or a right of way. In this sense, he owns a right and not merely the material objects.
Cook has characterized Salmond’s definition of ownership as an ‘unnecessary confusion’.
Glanville Williams has observed that the definition of ownership as given by Salmond suggests that from the point of time, the concept of ownership of right must be prior to that ownership of material objects, but historically it appears just the reverse of it.8
7Salmond : jurisprudencence (7th Ed) p. 277
8V D Mahajan, jurisprudence and legal theory(6th edn)
Holland’s view
Holland defines ownership as ‘a plenary control over an object’. According to Holland, an owner has three rights on the object owned. They are;
Possession, it denotes control over material object and can be lost by lease or mortgage.
Enjoyment, it implies the right of owner, however, limited by the rights of state.
Disposition, it implies right of alteration, destruction or alienation of property.
He says that the right of possession is ‘inherent of ownership’. However, it may be separated as in case of a mortgage or letting out. According to him, the right of enjoyment means the “right of use and of acquiring the fruits, or in the increase of the thing – The right is limited only by the rights of the state or of other individuals.’’ The power of disposition means not only the power of alienation but it includes the power of alteration and destruction of the property.
Thus we can say that, he followed the concept of Austin and believed that ownership means to have a complete and unrestricted right over any property. He stated that, possession, enjoyment and disposition rights over any property are the main aspects of the right of ownership.
The Marxist theory of ownership9
This theory draws attention to the evil role ownership has played. It begins with individual working with its own tools and raw materials. Later, the profit accumulated through trading, manufactured products elevates owner to position to provide the tools and raw materials, and get other people to provide the labour.
The manufactured products, however, remain in his ownership, not in that of the labourer, and the owner continues to trade it as his own property. It is the concept of ownership that enables the exploitation of workers. Ownership of the means of production-tools and raw materials- became a source of power over persons for private profit.
This promoted inequality, because using the power of dismissal and threat of unemployment and consequent starvation, the employer was able to dictate unfair terms of service. The owners of the means of production became industrial commanders wielding enormous powers that strike at the fundamentals of society.
Karl Renner (from Austria), following the Marxist analysis. The main point of his thesis is that in capitalist society, the formal legal concepts do not correspond to the real economic content of the society. And he took ‘ownership’ as an example of it. He further explained that in medieval times, ownership consisted of relation between man and thing.
After industrial revolution ownership has become a relation between a man and capital. In modern times, the ownership of capital virtually means the power over men, etc. although in legal theory ownership is still taken as to be a relationship between a person and thing
Thus, he expressed the view that law should take account of the increasingly public character of ownership of property by investing it with the characteristics of public law. Two concepts of ownership a public and a private have to be recognised. Ownership of the means of production should be public, that is nationalised, and only ownership of consumer goods should be opened to private individuals. The distinction lies not in the nature of ownership, but in the things capable of being owned.10
Thus, we can say that Professor Renner, has traced the gradual evolution of ownership in its social perspective. He pointed out that in early stages of development of society the owners of industries had to themselves collect tools, raw materials and labour resources to run the industry and they earned huge profits by the sale of their products. When they amassed sufficient wealth, they could afford to hire labour and run the industry by providing tools and raw material to them.
The industrialist was still the sole owner of the goods so produced and had complete ownership of the profits earned by the industry. Thus the ownership of means of production becomes the source and symbol of power and social status which the industrialists enjoyed on the strength of the labour working under them.
This eventually led to the development of management – labour relationship in the field of industries. The power of the employers to sack and change the service conditions of workers arbitrarily exhibited their influence in the society as a dominant class.
However, in course of time, the labour movement raised voice against the exploitative tendencies of indutrialists and capitalists as a result of which public ownership gained primacy over private ownership. The policy of nationalization of industries adopted by progressive socialist countries is directed towards the fulfillment of this objective11.
11 Paranjape, N.V, Studies in jurisprudence and Legal Theory, Central Law agency, ed.2013 Pg. no. 426.
What is possession?
Possession signifies custody, or physical control. It is the most typical form in which claims are made. It is a factual control over something, and Salmond defines it as a fact that creates a relationship between a man and the thing he possesses.
In Roman law, possession indicates ownership, i.e. it is an evidence to show ownership, and long possession of a certain property converts into ownership. Therefore, possession is the first stage of ownership.
But it may not always be true. Possession only entails ongoing exercise and enjoyment, and the person possessing the property may not necessarily be the owner of that property. In order to hold something within one’s possession, it is necessary to have physical connection with that thing, and to disallow anyone else to have possession of that thing.
According to Savigny; possession consists of two elements: corpus possession and animus domini. Corpus possession means physical control over a property, and immediate physical power to prevent others from acquiring or possessing that property.
Animus domini means the intention to hold some property in possession. Without the intention to hold property in possession, there can be no possession in reality, i.e. without animus domini, there cannot be corpus possession. Because the intention to possess property exists, the person exercises physical control over that property.
Salmond: stated that possession is of two kinds: possession-in-fact and possession-in-law. Possession in fact indicates actual, physical possession of property, even though that person may not be the owner of that property, whereas possession-in-law indicates that possession of the property by someone is recognised and protected by law.
Comparison between ownership and possession
The difference between ownership and possession are:
1. Possession and ownership are rights accruing on property, but ownership in essence is a greater right than possession. Ownership exists even though a person may not be in direct physical contact with his property, but since he has a better title on that property than anyone else, the property best belongs to him, even if it is in the possession of someone else.
Possession is only an objective realisation of ownership12; a claim being exercised on the property. In this way, it can be said that possession comes from ownership, but ownership does not come from possession.
It is true that possession is an evidence to claim ownership, but in many cases, a person may hold property under a false or fraudulent title, which needs to be ascertained. For example, a house given on rent is in possession of the tenant, but the actual owner of the house is the landlord, and the landlord has a better title on the property than the tenant.
2. When a person is in possession of property, he has an exclusive right on that property and can exclude others from exercising the same or similar rights on that property. However, these rights can be exercised by a person if he is the owner of that property, and the property is not owned by the possessor, since ownership is absolute and unconditional, whereas possession is conditional.
3. Ownership not only provides possessory rights, such as the right to use the property, but also proprietary rights, such as the right to dispose of property or to transfer it to another person.
Possession, however, does not grant proprietary rights, but only possessory rights. As a result, the transfer of property when it is owned is more difficult than transfer of property when it is merely in possession.
4. Possession is the external evidence of ownership. The possessor of a thing is presumed to be the owner of it and may put all other claimants to prove their title. Long possession is a source of ownership.
When possession is held adversely to the true owner for a period prescribed by the law (generally 12 years), the true owner’s right is extinguished and a title is created in the adverse possessor as he acquires it by right of prescription due to lapse of the specified time.
5. Bringing out distinction between possession and ownership Salmond pointed out that a person is said to be the owner of a thing when his claim receives the recognition and protection from the law of the State, but possession may be exercised and realised even without such recognition or protection from the law. Thus ownership has the guarantee of law but possession has some measure of security and value from the facts, without any possibility of support from law.
6. According to Dr. Sethna, the relationship between ownership and possession is same as that of body with soul. Just as existence of body is necessary for the realisation of soul, likewise possession is necessary and useful for the expression of the ownership because it (possession) is external and formal.
Ownership
Possession
1) Ownership involves the absolute rights and legitimate claim to an object. It means to own the object by the owner.
1) Possession is more the physical control of an object. The possessor has a better claim to the title of the object than anyone, except the owner himself.
2) Ownership is the right of the owner against the world indefinite in point of the user, unrestricted in point of disposition or destroying and unlimited in point of duration over a thing
2) As per the definitions, it is the continuous exercise of a claim to exclusively possess and use the object/thing.
3) Ownership itself gives the owner the right to possession.
3) However, it does not indicate the right to ownership.
4) The transfer of ownership is a technical and long process and involves conveyance
4) Transfer of possession is fairly easier and less technical.
5) Ownership is essentially a bundle of rights, all rights in rem.
5) It is not a right, just a prima facie evidence of ownership
Conclusion
Right to ownership has been guaranteed under the Article 300(a) of the Constitution of India. This right of ownership is subjected to various legal provisions and statutes. Ownership as a legal concept denotes a legal relation between a person who is called the owner of the right, and a thing over which he can exercise certain rights. The right of ownership is the most complete and supreme right that can be exercised over anything.
As we spoke about the evolution of ownership and ownership in various texts, we can conclude that ownership took place as a reason for civilization. People started to believe that they needed something to be owned for various reasons such as social status, assets etc.
Ownership was first seen in the Roman law, later it was accepted by all others. Many jurists argued on the concept of ownership but somewhere down the line the definition or the concept still stays ambiguous.
It is important to remember that ownership is not merely a bundle of rights, liberties and powers. It is also carries with it corresponding burdens in the nature of duties, liabilities and disabilities which prescribe and regulates how an owner should utilize his property for the benefit of other individuals or society.
Property owned by a person is liable to execution for the debts incurred by him. The liability to pay property tax, wealth tax, etc, is also imposed in the social interest. When control legislation imposes a restriction on the way in which one may use his property.
The typical individualist approach to ownership is reflected in the definition of Austin, which we have analysed earlier. However, gradually the emphasis began to shift from the individual to society-from ownership as a fundamental right of property to the wants of people and one’s duty towards others. It came to be recognised that limitation are integral to the concept of property and not an exception to an otherwise unlimited right.
Bibliography
Books referred;-
1. Dr. V D MAHAJAN, Jurisprudence and legal theory, page no. 285, Eastern Book Company, Lucknow, 2022.
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3. B.N.Tripathi, Jurisprudence (legal theory), Pg. 339-340, Allahabad Law Agency,Faridabad.
4. Paranjape, N.V, Studies in jurisprudence and Legal Theory, Pg. no. 426, Central Law Agency, 2013.
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About the Authors
Jatan Singh and Aman Bhan Pachauri are 4th year student of Department of law, Aligarh Muslim University, Aligarh, Uttar Pradesh, India.
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