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  • Anti-Torture Act 2017: Issues and Implication for Police Officers

    Anti-Torture Act 2017: Issues and Implication for Police Officers

    The Anti-Torture Act 2017 was passed by the 8th National Assembly and signed into law by President Mohammadu Buhari on 29th December 2017.  Prior to the coming into effect of the Act, there was no law in Nigeria whose sole objective is the prohibition and punishment of torture and other forms of cruel, inhuman or degrading treatment.

     

    Although Section 34 of the Constitution provides that every individual is entitled to respect for the dignity of his person, and accordingly (a) No person shall be subject to torture or to inhuman or degrading treatment; the Constitution did not explicitly state that the freedom from torture, cruel and inhuman treatment is a non-derogable right.

     

    This perhaps explains the acceptance and continued use of torture, cruel, inhuman and degrading treatment by law enforcement officers. The Anti-torture Act 2017 fills the existing legislative gaps by explicitly making the right to freedom from torture, cruel, inhuman and degrading treatment a non-derogable right, criminalizing torture and protecting victims and witnesses of torture.

     

     

    Framework of the Anti-Torture Act 2017

    The Anti-Torture Act 2017 is a very concise legislation. It has a title, explanatory memorandum and 13 sections:

     

    Section 1 of the Act titled ‘Duty of Government’ imposes an obligation on government to ensure that all persons, including suspects, detainees and prisoners are respected at all times and that no person under investigation or held in custody is subjected to any form of physical/mental torture.

    It admonishes government to adhere to domestic and international standards on absolute condemnation and prohibition of torture.

     

     

    Section 2 titled ‘Acts of Torture’ defines what amounts to torture. It states that;

    ‘torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to –

    (a) obtain information or confession from him or a third person;

    (b) punish him for an act he or a third person has committed or suspected of having committed;

    or (c) intimidate or coerce him or third person for any reason based on discrimination of any kind’.

     

    It goes on to suggest Torture does not include pain or suffering in compliance with lawful sanctions. It then lists what constitutes torture, some examples in the Act include:

    1. Systematic beatings, head-banging, punching, kicking, striking with rifle butts and jumping on the stomach
    2. Food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten,
    3. Electric shocks
    4. Cigarette burning, burning by electric heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wounds
    5. The submersion of head in water or water polluted with excrement urine, vomit or blood
    6. Blindfolding
    7. Threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts,
    8. Confinement in solitary cells put up in public places
    9. Confinement in solitary cells against their will or without prejudice to their security
    10. Prolonged interrogation to deny normal length of sleep or rest
    11. Causing unscheduled transfer of a person from one place to another, creating the belief that he shall be summarily executed etc.

     

     

    Section 3 titled ‘No justification for torture’ is the stand out provision of the Act. It states that no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.

    It prohibits secret detention facilities, solitary confinement, incommunicado detentions where torture may be carried out. It makes it very clear that evidence obtained from torture is inadmissible in any court except for use against a person accused of torture.

     

     

    Section 4 titled ‘Right to complain’ allows a person alleging that torture has been committed, whether the person is the victim of the offence or not, a right to complain to the police, National Human Rights Commission or any other relevant institution or body having jurisdiction over the offence. It provides that the victim and complainant must be protected.

     

     

    Section 5 titled ‘Assistance to filing complains’ provides that a person who has suffered torture or any interested party on his behalf may seek legal assistance in the proper handling and filing of the complaint from the Human Rights Commission/NGOs/Private persons.

     

     

    Section 6 titled ‘Right to examination’ expands the Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.

     

     

    Section 7 titled ‘Liability’ provides that a person who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal; the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.

    It makes clear that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.

     

     

    Section 8 titled ‘Penalties’ provides that a person who commits torture shall be liable on conviction to imprisonment to a term of 25 years.

    If death occurs as a result of the torture, the person involved will be charged with murder. It goes on to say that this does not in any way take way the victim’s right to civil claim in court for damages or compensation for the torture.

     

     

    Sections 9, 10 and 11, titled ‘Regulatory Agency, Education Campaign, Rules and Regulations’ respectively empowers the Attorney General of the Federation and other law enforcement agencies to ensure effective implementation of the Act.

    This includes training and education of personnel involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

    It also empowers the Attorney General of the Federation with the approval of the President to makes rules and regulation for the effective implementation of the Act.

     

    Section 12 and 13 are ‘Repeal and Citation’ sections.

     

     

    Significant Features of the Anti-Torture Act 2017

    • The Anti- Torture Act 2017 provides a comprehensive definition of torture. It goes on to give elaborate instances of what constitutes torture.

     

    • The Act criminalizes torture. It prescribes offences and penalties for any person who commits torture or aids, abets, counsels or procures any person to commit torture.

     

    • It makes freedom from torture a non-derogable right. It states clearly no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It states further that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.

     

    • It expands Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.

     

    • The Act protects victims and witnesses of torture.

     

    •  The Act allows for personal civil action in damages and compensation for torture.  

     

     

    Effect of the Anti-Torture Act on Police Officers

    Before the enactment of the Anti-torture Act 2017, torture by the police was seen more as a civil wrong except when death occurs. The police and other law enforcement officers having custodial powers could get away with torture as the law against torture was not clear and punitive enough.

     

    The coming into effect of the Anti-torture Act 2017 has fundamentally changed this.  Torture is now officially a crime. A police officer can be prosecuted for torture; aiding, abetting or procuring any person to commit torture.

     

    A police officer and or any other law enforcement officer can no longer rely on emergency powers or ‘orders from above’ as justification for using torture to obtain information or extract a confessional statement.

     

    The criminal liability of police officers under the Anti-Torture Act 2017 is specific to the individual persons connected to the act of torture.  This liability could be direct or indirect.

     

    According to Section 7 of the Act:

      “a  person”  who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.  

     

    The Anti-Torture Act 2017 has also expanded Miranda rights to include the right to examination. A Police officer is now obligated to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.

     

     

    Conclusion

    The Anti-torture Act 2017 is an unsung legislation with far reaching implications for law enforcement in Nigeria.  The National Assembly by passing the Anti-torture Act 2017 has dealt a serious blow to the practice of torture.  The challenge however will be enforcement.

     

    We are hopeful that the Attorney General of the Federation and other relevant stakeholders will work together to put in place mechanisms to ensure compliance so that torture can be eliminated in Nigeria.

     

     

     

    Written By:

    Collins Okeke

    Collins Okeke is the Head of Public Sector Practice Group, an aspect of law that examines the role of laws, institutions and legal systems in both domestic and international jurisdictions…

    View Collins’ Profile >>

  • Whistleblowing: An Approach towards Good Corporate Governance in Nigeria 

    Whistleblowing: An Approach towards Good Corporate Governance in Nigeria 

    Whistleblowing is a very effective but still under utilised as a corporate governance tool in Nigeria. Whistleblowing serves many purposes, the most commonplace being that it allows the general public to report malpractice in workplaces, organisations and even government bodies. 

     

    Apart from not only exposing illegal and unethical practices , a properly implemented whistleblowing mechanism can give corporate employers an opportunity to expose irregularities that occur in the workplace and to rectify them before they cause deep and irreversible systemic and reputational damage. 

     

     

    Whistleblowing Regulations in Nigeria. 

    Although there is no specific legislation on whistleblowing in Nigeria, however, there are several whistleblowing guidelines which have been successfully implemented by various government parastatals and bodies across different sectors from civil service ; public departments, to private sector banking and capital markets, pensions industry etc. which will be discussed in turn below: 

     

    The Whistleblowing Guidelines for Pensions 2008 (‘the PENCOM Guidelines’) were issued, on 1 June 2008, by the National Pension Commission (‘PENCOM’), which is the body responsible for the regulation of the pension industry in Nigeria. 

     

    The PENCOM Guidelines outline the methods for reporting violations of the Pension Reform Act, 2014 (‘the Pension Reform Act’) and other laws applicable to pension fund custodians, pension fund administrators and closed pension fund administrators (collectively referred to as ‘the Pension Institutions’), as well as the penalties for such violations. 

     

    Directors, management, employees and any other person(s) dealing with the Pension Institutions are required to report any violation of the Pension Reform Act or any other applicable laws or regulations, to PENCOM. 

     

    The PENCOM Guidelines provide for the protection of whistleblowers and mandates of Pension Institutions to ensure that its members of staff are aware of their responsibilities with regard to whistleblowing and that they are conversant with reporting procedures. 

     

     

    The Code of Corporate Governance for Banks and Discount Houses in Nigeria and Guidelines for Whistleblowing in the Nigerian Banking Industry 2014 consists of:

     

    1. The Code of Corporate Governance for Banks and Discount Houses in Nigeria (‘the Corporate Governance Code’), which, under Section 5.3 requires banks and discount houses to have a whistleblowing policy, which must be made known to employees and other stakeholders.

    The policy must contain a whistleblowing mechanism which includes an assurance of confidentiality that encourages all stakeholders to report any unethical activity to the bank and/or the Central Bank of Nigeria (‘CBN’). 

    Failure to comply with this provision will attract a fine of NGN 5,000 (approx. €12) for each day during which the failure occurs. Persistent failure to comply with this provision may be a ground for the revocation of the bank/discount houses’ licence. 

     

    2. The Guidelines for Whistleblowing in the Nigerian Banking Industry (‘the CBN Guidelines’). The CBN Guidelines became mandatory and effective from 1 October 2014, providing a minimum standard to be observed by all financial institutions under the supervisory purview of the CBN in relation to whistleblowing. 

    The CBN Guidelines provide for the reporting of alleged unethical conduct of employees, management, directors and other stakeholders of a bank or any other financial institution. Banks and other financial institutions are required to have a whistleblowing policy which should be made known to employees, management, directors and other stakeholders such as contractors, shareholders, job applicants and the general public. 

     

     

    Rulebook of the Nigerian Stock Exchange 2015 (‘the NSE Rulebook’). 

    Rule 26.19 of the investors’ protection fund rules, under Chapter 10, provides that the board of trustees of the Nigerian Stock Exchange (‘NSE’) Investors’ Protection Fund (‘the Board’) shall establish and maintain a system to receive disclosures in respect of contraventions as required in the ISA and acts on them, where appropriate. 

     

    In 2014, the NSE launched X-Whistle, a whistleblowing portal for secure and effective submission of information relating to violations of rules and regulations in the Nigerian capital 

     

    market. The NSE whistleblowing portal allows any person (an employee, an investor, a compliance officer, an issuer, a stockbroker or any member of the public), on an anonymous basis, to raise genuine concerns about unethical or unlawful conduct by market participants with the objective of protecting market integrity. 

     

     

    Economic and Financial Crimes Commission Act, Laws of the Federation of Nigeria 2004 (‘the EFCC Act’). 

    Under its Section 38, which grants the Economic and Financial Crimes Commission (‘EFCC’) the power to ‘seek and receive information from any person, authority, corporation or company without let or hindrance in respect of offences it is empowered to enforce under the Act.’ Additionally, Section 39 of the EFCC Act states that the EFCC officers ‘cannot be compelled to disclose the source of information or identity of the informants except by the order of the court. 

     

     

    Nigerian Data Protection Regulation 2019 (‘the Data Protection Regulation’) 

    Section 3.1.5(i) of the regulation requires all organisations that deal with the collection or processing of personal data to conduct an audit of their privacy and data protection practices within the first half of every year stating the policies audit of their privacy and data protection practices, within the first half of the year, stating the policies and procedures of the organisation for monitoring and reporting violations of privacy and data protection policies. 

     

     

    Corrupt Practices and Other Related Offences Act 2000 (‘the Corrupt Practices Act’) 

    Section 26(1) of the Act provides that any public officer to whom any gratification is given, promised, or offered, in contravention of any provision of the Corrupt Practices Act, shall report such gift, promise or offer together with the name, if known, of the person who gave, promised or offered such gratification to him to the nearest officer of the Independent Corrupt Practices And Other Related Offences Commission (‘ICPC’) or police officer. 

     

    Section 26(2) of the Corrupt Practices Act further provides that any person from whom gratification has been solicited or obtained, or from whom an attempt has been made to obtain such gratification, in contravention of any provision of the Corrupt Practices Act, shall, at the earliest opportunity thereafter, report such soliciting or obtaining, or attempt to obtain the gratification together with the name if known or a true and full description attempt to obtain the gratification together with the name, if known, or a true and full description of the person who solicited, or obtained, or attempted to obtain the gratification from him, to the nearest officer of the ICPC or police officer. 

     

    Any person who fails without reasonable excuse to comply with Sections 26(1) and (2) of the Corrupt Practices Act shall be guilty of an offence and shall on conviction be liable to a fine not less than NGN 100,000 (approx. €245) or to imprisonment for a term not exceeding two years or to both fine and imprisonment. 

     

     

    Categories of Whistleblowers Afforded Protection 

    • NSE Rulebook: Employees and directors of listed companies, employees and directors of capital market operators, auditors and reporting accountants, staff of regulatory bodies, media professionals, members of shareholder’s associations and members of the public. 
    • PENCOM Guidelines: The compliance officer of the Pension Institution, the directors, management, employees and any other person that has dealings with the Pension Institution. 
    • CBN Guidelines: Employees, management, directors and other stakeholders of banks and other financial institutions such as contractors, shareholders, job applicants, and the general public. 
    • Federal Ministry of Finance Whistleblowing Programme: Any person who voluntarily discloses to the Federal Government of Nigeria a possible misconduct or violation that has occurred, is ongoing or is about to occur with specific concerns which are in the public interest. 
    • EFCC Act and Corrupt Practices Act: Any informant. 
    • ISA: The employee of a capital market operator or public company 

     

     

    Whistleblowing and Corporate Governance in Nigeria 

    At this juncture it is necessary to remind the reader of the main objectives of whistleblowing which are as follows:

    i. Boost the disclosure of financial related crimes.

    ii. Maintain the combat against financial crimes and corruption, and improve the extent of public trust in government.

    iii. Increase accountability and transparency in the administration of public finance, which could improve Nigeria’s open government ranking and ease of doing business indicators.

    iv. Lastly, to recover stolen public finances and assets.

     

     

    Following the launch of the Whistle-Blowing Policy by the Federal Government of Nigeria, recovery of looted fund increased with the personnel of Economic and Financial Crime Commission (EFCC), Independent Corrupt Practices (ICPC) and Other Related Offence Commission, Department of State Security, and other security agencies, on alert with available information. 

     

    Daily Trust on April 18, 2017 reported that, this laudable initiative has resulted in the discovery of $9.8 million cash in a Kaduna slum residence in Sabon-Tasha and over $30 million cash in an apartment in Ikoyi, Lagos State. At an exchange rate of N350 to $1, the cash recovered so far will be over N14,000,000,000 (fourteen trillion naira in cash), just to name a few. 

     

    News Agency of Nigeria reported on February 12, 2017 that, Minister of Information and Culture, Lai Mohammed indicated that the Federal Government’s Whistle blowing policy had yielded $151million and N8 billion in looted funds. 

     

    In a statement signed by Segun Adeyemi, the Special Assistant to the Minister, Alhaji Mohammed stated that the looted funds were recovered via the clues provided by three whistleblowers who gave actionable information to the office of the Minister of Justice and Attorney-General of the Federation. The largest amount recovered was a total of $136,676,600.51 allegedly under a fake account name. 

     

    Pursuant to the formal activation of the whistle blowing policy in Nigeria, a few cases of corruption have been reported in the banking sector. One notable instance is that of a Justice who opened a corporate account with Diamond Bank PLC with a fake address. A witness (a staff of the bank) told the Court that all other requirements for opening an account were satisfied except the address and the bank waived this because the Justice was ‘their customer’. 

     

    In spite of the CBN Guidelines on whistle blowing and the recent introduction of whistle blowing policy, the banking sector reportedly experiences cases of breach of security protocols particularly by famous or highly respected banking clients. 

     

    It is arguable how effective implementation of the whistle blowing policy has been thus far and whether it has increased accountability and transparency in the management of public funds. More needs to be done to promote the active use of whistleblowing in both the public and private sectors, in order to change the tide and promote higher degrees of transparency and accountability. 

     

    The onus is on us the citizens and inhabitants of the Federal Republic of Nigeria at large, all residents and citizens should be willing to expose corruption without fear of reprisal, and the law enforcement agencies should be sincere and vigorous in prosecuting those involved in alleged corruption. 

     

     

    How Whistleblowing can help Create Safer Workplaces 

    Whistle blowing in the workplace is the act of reporting a serious issue, crime or unethical act that has been seen or suspected inside an organisation. 

    Whistleblowers in a workplace usually report criminal activities like the mistreatment of an employee, sexual harassment, bullying, environmental damage or fraud, bribery and corruption. In an effort to sanitise the sports industry, it would certainly not go amiss to introduce whistleblowing to curb corrupt practices that have ravaged the state of African sports for instance. 

     

    Use of whistleblowing in the customs and immigration, various departments of the public sector e.g. procurement, the film and music industry etc will definitely help to manage the menace of bad practices, corruption and unethical practices. 

     

    Whistleblowing could also be described as a tool for minimising or mitigation of risks. It helps to reduce the kind of crises and resulting risks that are caused by employees, directors, board etc on behalf of stakeholders. 

     

    A well defined and holistic Whistleblowing system i.e. secure and confidential hotline, policies and procedures will preserve transparency and promote good governance in any organisation. Whistleblowing is an effective tool in the workplace as it ensures that the management team of an organisation creates an environment, a structure and a culture that reduces risk and enhances transparency. 

     

    Whistleblowers present a significant checkpoint in the Nigerian workforce. Without whistleblowers unscrupulous actors and operators in various industries would continue to mistreat workers, cheat consumers, endanger lives and put the health and safety of the general public in jeopardy. 

     

    We should celebrate and reward those brave present or former employees or even a member of the public who exposes financial scandals, mismanagement of public funds or serious violation of health and safety guidelines whilst putting their own lives on the line. 

     

    Conclusively, exposure of wrong doing in private or public organisations in the public interest to the authorities in charge is very important as it promotes the concept of good governance in the various sectors in the society. 

     

     

    Co-written By:

    Beverley Agbakoba-Onyejianya –  Associate Partner, OAL.

    Ebunoluwa Bayode-Ojo – Associate Intern, OAL

     

  • How to Register a Trademark in Nigeria

    How to Register a Trademark in Nigeria

    In Nigeria, where at least six out of ten persons own a business or a product, the importance of registering a trademark cannot be overstated. A trademark is simply a symbol, word, or words legally registered or established by use as representing a business or product.

     

    A trademark is the identity of a business or product, hence why it is important to register it. It protects the identity of the business or product from use by other businesses or persons.

     

    Trademarks in Nigeria are registrable under the Trademarks Act by the Trademarks, Patents and Designs Registry, Commercial Law Department of the Federal Ministry of Industry, Trade and Investment with an exclusive license to use for a period.

     

     

    How to Register a Trademark

    The next question to be asked would be how one can register a trademark in Nigeria. Below are the simple steps to be followed in registering a trademark in Nigeria:

     

     

    Who Does Trademark Registration in Nigeria?

    It is noteworthy that not all persons can commence the process of trademarks registration. For such person to assist in the registration, he must be an accredited agent/attorney with the Registry.

     

     

    1. Search

    Like the procedure for company registrations under the Corporate Affairs Commission, an applicant for a trademark must, through his attorney/agent, conduct an availability search for the proposed trademark. This is necessary to ensure that the proposed mark is still open for registration and has not already been registered by another person.

     

     

    2. Formal Application and Examination

    After a search is conducted and the proposed mark is cleared as available and open for registration, the attorney/agent may file the application through the procedure as provided on the registration portal. It is noteworthy that before an attorney can successfully complete the formal application, he must upload a power of attorney, which is simply a document signed by the applicant, authorising to the agent to act on his behalf with regards to the application.

     

    The attorney/agent must also indicate the class under which the mark is to be registered. There are currently 45 classes under which a trademark in Nigeria can be registered. The choice of class is generally determined by the proposed use/ service for which the mark would be used.

     

    Once all relevant documents are uploaded, all relevant information filled and payment is made, the Registrar issues an Acknowledgement Form confirming the receipt of the application by the Registry and a temporary number is allocated to the trademark, pending registration and allocation of a permanent registration number.

     

    After the application is submitted, the registrar carries out an examination to determine if the mark is registrable as allowed under the Trademarks Act, whether the mark is distinctive, deceptive, and scandalous or in any way disallowed. Where the Registrar is satisfied that the mark can be registered, an Acceptance form is issued.

     

     

    3. Publication and Opposition

    Following the issuance of an acceptance form, the accepted mark is published in the Trademarks Journal. This publication is done to notify the public of the mark and members of the public are allowed to oppose the registration. Note however that the opposition period is two months and after this period, persons are precluded from opposing to the registration.

     

     

    4. Certification

    Where there are no oppositions to the registration or all oppositions have been settled in favour of the applicant, a certificate of registration is issued. This certificate signifies proper registration and completion of all processes.

     

     

    Conclusion

    As previously stated, registration of a trademark is the only legal means of precluding another from using a mark which uniquely identifies a business or product in Nigeria and confers on the holder, exclusive use within Nigeria for an initial period of 7 years, subject to renewal.

     

    What the next step?

    If you would like to process your trademark registration in Nigeria, OAL as an accredited agent can assist you with the service. Please contact us to learn more.

     

     

    Written By:

    Ginika Ikechukwu

    Ginika is an Associate and a member of the firm’s Alternative Dispute Resolution, Maritime and Sports, Entertainment and Technology Practice groups. She is a smart, result-driven and efficient lawyer with professionalism that makes her a great asset to any team.

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  • Compulsory Treatment and care for Victims of Gunshot Act 2017: How Effective?

    Compulsory Treatment and care for Victims of Gunshot Act 2017: How Effective?

    Despite efforts by the Nigerian government to address the issues of people dying from gunshot wounds by signing into law the Compulsory Treatment and Care for Victims of Gunshot Act 2017, news reports show that the numbers are still on the rise. The most recent being that of one Ebenezer Ayeni, who was shot by armed robbers, in his Ibadan residence on June 11, 2021. He was rejected by two hospitals in Ibadan, because there was no police report. Sadly, Ebenezer died without Medicare, after two hours of fighting for his life.

     

    Given that gunshot injury is generally a medical emergency, every minute counts in the fight to preserve the life of the victim.  Therefore a gunshot victim requires urgent Medicare to avoid permanent damage or death of the victim.

     

    Unfortunately, hospitals demand for police report, before they would admit and treat gunshot victims. This delays and sometimes denies medical attention to the victim. It is important to note that the practice of hospitals demanding for police report has no legal backing.

     

    In fact, to stop the ugly trend and to uphold the sanctity of life, The Compulsory Treatment and Care for Victims of Gunshot Act, 2017, came into effect on the eve of 2018. The Act mandates all medical facilities to receive and accept victims of gunshot for immediate treatment without a police report.

     

    The Act makes provision for various rights and obligations as well as penalties. The rights are in two categories: The rights of a gunshot victim and rights of a volunteer or helper of gunshot victim. The obligations are also in two categories: obligations of hospitals and obligations of the police. The Act also stipulated penalties for violations under the Act. Let us consider these rights, obligations and penalties.

     

     

    1). Rights of a Victim of Gunshot

    a). Any hospital in Nigeria whether public or private shall receive and accept for immediate treatment anyone with a gunshot wound.

    b). A person with a gunshot wound should be given adequate treatment without initial monetary deposit.

    c). A person with a gunshot wound shall not be subjected to inhuman and degrading treatment or torture by any person or authority including the police or other security agencies.

     

     

    2). Right of a Volunteer or Helper of Victims of Gunshot:

    The Act accorded volunteers or helpers of gunshot victim the right to be treated with respect and not to be subjected to unnecessary and embarrassing interrogation, in their genuine attempt to save life.

     

     

    3).  Obligations of the Hospital

    Any hospital that receives a person with gunshot wounds must do the following:

    a). Report to the nearest police station with 2 hours of commencement of treatment.

    b). Notify the family members or relations within 24 hours of becoming aware of the victim’s identity.

    c). Keep adequate record of treatment given to the injured person

    d). Ensure the victim is fit and no longer in need of dire medicare before the Chief Medical Director certifies him fit to be invited by the police for investigation.

     

     

    4). Obligations of the Police

    The Act listed the responsibilities of the police as follows:

    a). To render every possible assistance to any person with gunshot wounds and ensure that the person is taken to the nearest hospital for immediate treatment.

    b). To commence investigation to ascertain the circumstances under which the person was shot.

    c). To furnish the hospital with background information of the victim.

     

     

    5). Penalties under the Act

    a). Any hospital who fails to make a report, commits an offence and is liable on conviction to a fine of N100,000 and every doctor directly concerned is equally liable on conviction to a term of six months or a fine of N100,000 or both.

    b). A person who commits an offence under this Act which leads to or causes substantial physical, mental, emotional and psychological damage to the victim, commits an offence and is liable to imprisonment for a term of not more than 15 years and not less than 5 years without an option of fine.

    c). Any person or authority including any police office, other security agents who stands by and fails to perform his duty under this Act which results in the unnecessary death of any person with gunshot wounds commits an offence and is liable on conviction to a fine of N500,000 or imprisonment for a term of five years or both.

     

     

    The language of the law is very clear and unambiguous. No initial monetary deposit is required to accept and commence immediate treatment of a victim of gunshot. Police report is also not required. However, the hospital has a duty to report to the police within two hours of receiving such a person.

     

    It is very clear, from the Act that its purpose is to preserve the life of gunshot victims by removing obstacles that prevent quick medical attention to them. The Act balances the desire of persons injured by gunshot to receive medical attentions as soon as possible with the need to protect hospitals, doctors and even ‘good Samaritans’ who attend to gunshot victims, from molestation and harassment by the police, without hindering the duty of the police to apprehend and prosecute criminals.

     

    The Nigerian Police Force and the Nigerian Medical Association has lent their support by releasing statements in the past, encouraging their personnel and members respectively to comply with provisions of the Act.

     

    In the Light of these developments, why do we still have cases of hospitals demanding for police reports before treatments of gunshot wounds in 2021? Are health workers still being arrested and harassed for accepting to treat victims of gunshots without police reports? Are personnel of hospitals and authorities not aware of the existence of this law? Are victims unaware hence not seeking redress or remedies where these rights are infringed?

     

    Since the coming into force of the Compulsory Treatment and Care for Victims of Gunshot Act, 2017, hospitals have no reason to reject gunshot victims on grounds of absence of police report. But apparently, it is not enough to have the law in place, it is necessary to do the following:

     

    a). Advocacy: create awareness through sensitization programs, webinars, seminars and workshops to educate law enforcement authorities, hospitals and the public on their rights and obligations under the Act. Federal and State governments through the Ministries of Health, Ministries of Justice and Nigerian Police force should take the initiative and drive the awareness programs.

    Legal practitioners and private organizations who advocate for people’s right should also lend their voice and ensure that this law is recognized and implemented to serve its purpose.

     

    b). Review of Administrative procedures: It calls for a total review of the authorities’ and hospitals’ standard operating procedures such that old processes will be replaced with the new.

     

    c). The Medical and Dental Practitioners Council of Nigeria should reiterate compliance with the provisions of the Act in their rules of conduct and the Medical and Dental Practitioners Disciplinary Committee should sanction violations.

     

    d). Training: The Act should be infused in the Police College and Medical School Curriculum.

     

    e). The police should redirect its effort, to prosecuting those (including security agents) that fail to perform their duty under the Act and death occurred as a result of the failure. This will ensure compliance by hospitals and security agents.

     

     

     

    Written By:

    Chinyere Nwali-Chukwu

    Chinyere is a Senior Associate and the Legal Administration Manager with over 8 years’ experience that span across different industries in Human Resources Management; in addition to her Litigation and Corporate Commercial experience…

    View Chinyere’s Profile >>

  • How to Set Up a Trust Fund in Nigeria

    How to Set Up a Trust Fund in Nigeria

    Setting up a trust fund is one of many options for transferring money, property, and other assets to family members or charity causes. It’s difficult to know whether or not to set up a trust fund and how to do so. To make the best decisions, you’ll need the advice of an estate planning lawyer.

     

    It’s an estate planning tool, similar to a will, that lays down how you want your affairs to be handled when you die away. A trust fund, on the other hand, gives you more flexibility, privacy, and specificity.

     

    It can save your beneficiaries time, money, and heaps of paperwork while minimizing estate taxes and avoiding probate. What you need to know about establishing a trust fund is outlined here.

     

    In this article, we are going to explore what a trust fund is, who the parties to a trust fund are, reasons why you need a trust fund, and finally how to set up a trust fund.

     

     

    What is a Trust Fund

    Trust fund has been described as the relationship which arises whenever a person called the trustee is compelled in equity and law to hold property received from the grantor’s legal or equitable title which could be real estate or personal property, for the benefit of some other persons or for some authorised object called the beneficiary.

     

    A trust fund is set up in such a way that the real benefit of the property accrues, not to the trustee, but to the beneficiaries or other objects of the trust fund.

     

    A trust fund can be further defined as an arrangement where a person gives another party the legal right to manage his/her funds for the benefit of another person.

     

    The object of a trust fund property can be real estate, a bond, mutual funds or even stock.

     

     

    Why Set Up a Trust Fund

    Individuals and Legal entities set up trust funds to control who receives their assets. A trust fund may be used for different purposes. For a trust fund inter vivos (i.e trust fund made during the lifetime of the grantor), it may be applied by a person who desires for his asset to be managed proficiently.

     

    A trust fund can also be created by a person or group of persons for the support, maintenance and education of their spouse, children, dependents and family members during the lifetime of the grantor(s) and in the event of their demise.

     

    In addition, it can be used to transfer property or make grants to a person(s) of interest. It can also be used as a means of financial support and life insurance for a grantor who is incapacitated or having some disabilities or as a security during old age.

     

     

    How Do I Set Up a Trust Fund

    To set up a trust fund the following steps are to be undertaken:

     

    1. Appointment of a trustee: A trustee can be a company, an individual or group of individuals or a firm.
    2. Identify the type of trust fund you are interested in: There are two major types of trust funds such as private trust fund, and public trust fund. Public trust funds (which are in some cases charitable trusts) are trust funds for certain selected purposes; which are created for the purpose or use of the community. The Attorney General undertakes responsibility for their enforcement. Private trusts funds, on the other hand, are trust funds created for the benefit of specific persons, such as family members, who are known as ‘beneficiaries’.  Private trust funds can be divided into express and implied Trust Funds. Trust Funds that are created by the act of the parties are referred to as express trust funds while those that evolve by operation of law are called implied trust funds.
    3. Transfer of the assets to the trustee. This is an important aspect and it can either be a revocable or an irrevocable trust funds.

     

     

    How to Setup an Express Private Trust Fund 

    There is no specific statute governing private trust funds in Nigeria. Therefore, reliance is placed on cases decided under English law.

    A private trust fund may be created during one’s lifetime (inter vivos) or by Will. An inter vivos or living trust fund is expressly created where an individual called the grantor, during his lifetime, makes a declaration of trust fund directing a person(s) called the trustee(s) to hold property or assets in accordance with the terms and conditions contained in the trust fund instrument for the benefit of the grantor’s beneficiaries.

     

    In which case, the beneficiaries become the equitable owners of the subject of the trust fund (i.e. the property or assets), while the legal interest is vested in the trustee.

     

    It has been established that to create a valid private trust, there must be;

    1. Certainty of intention – The grantor must manifest an intention to create a trust fund, either expressly or by conduct. An expression of hope or desire is not sufficient.
    2. Certainty of subject matter – The trust fund property must be clearly identified. The subject of the trust fund may take different forms, an interest in land, a car, money, a debt or even a promise. Whatever form the subject of the trust fund takes, it must be specified with reasonable certainty.
    3. Certainty of objects – This means that the intended beneficiaries of the trust fund must be known or ascertainable. If the beneficiaries cannot be identified, the trust fund will fail and the subject of the trust fund will revert to the settlor/donor or his estate, as the case may be, except it is a charitable trust.

     

    Where the trust fund is in respect of personal property such as money, shares, vehicle, etc. no formalities are required for its creation. But where the trust fund is in respect of a real property (i.e. land), it must be done in compliance with the statutes regulating transfer of title to land such as the land use act, registration of title law of the applicable state. For example, it must be in writing and executed as a deed by the parties thereto.

     

     

    Capacity/ Criteria for appointment of a trustee and Duties of a Trustee

    The legal capacity to create a trust fund is determined by the ability of an individual or group of individuals to hold interest in a land therefore such individuals have the capacity to create a trust fund. Whereas, where a person cannot hold interest in land, his capacity to create a trust fund will be affected.

     

    An adult who is of sound mind, a body corporate and institution having the requisite power to hold a property can be appointed as a trustee.

     

    The duties of the trustee are as follows:

    • Duty to collect and safeguard the trust fund property.
    • Duty to invest the trust fund money in his hand.
    • Duty to distribute the trust fund property and maintain equality between the beneficiaries, except where there is a contrary intention expressed by the grantor or testator (a deceased grantor) in the trust fund deed.
    • Duty to render account and provide information on the trust fund property as may be required by the beneficiaries.

     

     

    Conclusion:

    Setting up a trust fund is crucial for individuals, especially high net worth individuals that want to be in control of their assets during and after their lifetime. A trust fund gives you the assurance that resources at your disposal are being used for the purpose you desire.

    Lawyers are equipped with the skills to guide you through this process and it is advisable you seek legal assistance before setting up a trust fund.

     

     

     

    Written By:

    Kaetochukwu M. Udeh

    Kaeto is an Associate at Olisa Agbakoba Legal. She has 8 years of extensive and diverse experience in contract management, legal drafting, regulatory compliance, research, administration, customer service, presentation, Negotiation, ICT skills, project management, marketing, and general management skills.

    View Kaeto’s Profile >>

  • How to Seek Redress for Human Rights Violations in Nigeria

    How to Seek Redress for Human Rights Violations in Nigeria

    Why Do I Need to Know How to Seek Redress for Human Rights Violations in Nigeria?

    Nigeria has witnessed an increase in Human Rights violations such as unlawful and arbitrary killings, forced disappearances and torture by both Government and Non -State actors.

     

    There has also been a sharp increase in cases of arbitrary detentions in life threatening conditions particularly in government detention facilities; harsh and life threatening prison conditions including civilian detentions in military facilities, often based on flimsy or no evidence; infringement of citizens’ rights to freedom of expression, peaceful assembly, freedom of association, particularly for the teeming youth who are displeased with the high rate of corruption, improper governance and lack of employment opportunities.

     

    As a way of putting a stop to the endless incidences of human rights violations in Nigeria, rights defenders and activists launched a massive campaign tagged #EndSARS in 2017. The campaign was aimed at drawing attention to the human rights violations committed by the Special Anti -Robbery Squad (SARS), a unit of the Nigerian Police Force.

     

    SARS was reported to be responsible for widespread human rights violations including extra – judicial executions, torture, false imprisonment, rape, extortion and other ill treatments.

     

    The #EndSARS campaign ended in 2020 with the disbandment of SARS, but the human rights violations have not abated. Rather, cases of human rights violations in Nigeria have not only been on the rise, but have taken in new dimension in the form of a crackdown on citizens’ right to freedom of expression by the banning and restriction of the use of online social media applications such as Twitter, Facebook and other social media applications.

     

    To underscore the seriousness of its campaign to regulate the use of social media, the government of Nigeria through the office of the Attorney General of the Federation, threatened to arrest and prosecute all citizens that violates the Ban on Twitter by continual use of the application.

     

    From the above, it is obvious that Human Rights violations in Nigeria are not likely to abate anytime soon, hence the need to know how to seek redress is important to every Nigerian.

     

     

    Are There Provisions That Protect Human Rights in Nigeria?

    Nigeria is a signatory to several international Human Rights Treaties, including the Universal Declaration of Human Rights unanimously adopted and proclaimed by the United Nations, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and the African Charter on Human and Peoples Rights, among others. Under international law, Nigeria is obligated to uphold and enforce the rights protected under the International Human Rights Treaties that it has ratified.

     

    Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) also contains Human Rights provisions that the government of Nigeria is mandated to uphold and enforce.

     

    Some of the fundamental rights guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) include:

    1. Right to life
    2. Right to dignity of human person
    3. Right to personal liberty
    4. Right to fair hearing
    5. Right to private and family life
    6. Right to freedom of thought, conscience and religion
    7. Right to freedom from discrimination

     

     

    Where Should I Go for Redress If My Human Rights Are Violated?

    The following places are where redress on human rights violations can be sought:

    1. Federal High Court.
    2. Hight Court of the State.
    3. National Human Rights Commission.
    4. Public Complaints Commission.
    5. Judicial Commission of Inquiry. This was established by the government at the Federal level with branches across different States as the need be in order to address issues of Human Rights violations

     

     

    What are the Advantages of Seeking Redress in Court for Human Rights Violations?

    Unlike other institutions where complaints for human rights violations can be made, Courts in Nigeria is the preferred place to seek redress for Human Rights violations.

     

    There are several reasons why Courts are the preferred forum to seek redress for Human Rights violations. The first is that the Courts are the only permanent structure created by law with the powers to uphold and enforce Human Right violations.

     

    Secondly, the Courts are open and accessible to all irrespective of their colour, race, gender or ethnic background. Moreover, the Courts are located in every State in Nigeria so that it is very easy to locate a Court to register your complaint for human rights violations.

     

    Thirdly, the courts have a standard procedure for receiving and hearing complaint for human rights violations. This is provided for in the Fundamental Rights Enforcement Procedure Rules (2009) and is applicable to every complaint filed in court for the enforcement of Human Rights.

     

    Fourthly, the Courts have coercive powers to summon witnesses and respondents to appear before it to give evidence, present relevant document or respond to any human rights complaint filed before the Courts.

     

    The Courts are also empowered to release detainees that are held illegally and award damages against human rights violators including State and non -State actors. Moreover, violators of human rights who fail to obey orders issued by the Courts may be subjected to contempt proceedings that may result in conviction for contempt.

     

     

    Do I Need a Lawyer to File a Complaint in Court for Human Rights Violations?

    Ordinarily, it is not necessary to retain the services of a lawyer to file a complaint in Court for human rights violation because the access to the Courts is not only open to everyone, but the Fundamental Rights Enforcement Procedure Rules specifically provides that anyone who believes that his human rights have been or likely to be violated may approach a High Court for redress.

     

    However, for the following reasons provided below, it is advisable to contact a lawyer to assist you to seek redress in cases of Human Rights violations:

    1. Lawyers are in a good position to offer you professional advice regarding the remedies available to you in such cases. This is because lawyers have good understanding of human rights provisions enshrined in various international Human Rights Treaties, as well as those contained in the Constitution of the Federal Republic of Nigeria.
    2. Lawyers have a sound knowledge of the practice and procedure adopted by the Courts to address Human Rights complaints. Without a lawyer to guide you in the process of seeking redress, your complaints may not be heard or may be dismissed for failing to comply with the procedural requirements for filing such complaints.
    3. Lawyers are trained in the art of presenting evidence to prove cases.
    4. Lawyers provide adequate representation within the bounds of the law.

     

     

    What Are the Advantages of Seeking Redress in for Human Rights Violations in Other Human Rights Institutions?

     

    There are a few advantages for opting to seek redress for Human Rights violations in other forums such as the National Human Rights Commission and the Public Complaints Commission. The first is that these forums adopt less formal procedure to receive and hear complaints for Human Rights violations.

     

    Secondly, these forums are open and accessible to all citizens who wish to file complaints for Human Rights violations.

    Thirdly, unlike the Courts, these institutions are empowered to carry out investigations that border on Human Rights Violations.

     

     

    What Are the Disadvantages of Seeking Redress in for Human Rights Violations in Other Human Rights Institutions?

    There are several disadvantages that come with seeking redress for Human Rights violations in other Human Rights Institutions other than the Courts.

     

    The first is that unlike the Courts, these institutions lack coercive powers to summon witnesses and respondents to appear before them to give evidence, present relevant documents or respond to any Human Rights complaint filed before them. Moreover, unlike the Courts, these institutions lack the powers to discipline Human Rights violators or respondents who fail to obey their directives.

     

    Secondly, they also lack powers to release detainees that are held illegally in detention centres even if their investigations confirm that those detainees are held illegally.

     

    Thirdly, they lack powers to award damages or compensation against Human Rights violators or respondents even if their investigations conclude that the victims of Human Rights abuses deserve some kind of compensation.

     

     

    Conclusion:

    The know how to seek redress for Human Rights violations in Nigeria is critical to the wellbeing of every Nigerian because the rising incidences of Human Rights violations will only begin to decrease when victims begin to seek redress.

     

     

     

    Written By:

    Joseph Bowei Siyaidon

    Joseph is an Associate in the ADR and Maritime Practice Groups at OAL. He has garnered extensive experience from assisting clients in corporate/commercial, compliance, maritime and dispute resolution in different sectors across Nigeria, UAE and GCC Region.

    View Joseph Profile

  • Legal Consequence of Non-Compliance with Group Life Insurance Provison of the Pension Reform Act

    Legal Consequence of Non-Compliance with Group Life Insurance Provison of the Pension Reform Act

    The Pension Reform Act (“the PRA” or “the Act”) was first enacted in 2004 and reenacted in 2014. Among many other provisions, the PRA makes Group Life Insurance compulsory for all employees.

     

     

    Group Life Insurance is a scheme that may be likened to a death-in-service policy and is designed to pay a benefit called “the sum assured” to the next of kin or dependents of an employee who dies in active service. The rationale behind Group Life Insurance is to cushion the effect of the death of a deceased worker on his family and dependents.

     

     

    The Act applies to all employers in the public and private sector who have more than five employees. Specifically, Section 4(5) of the Pension Reform Act 2014 provides:

     

    “In addition to the rates specified in subsection (1) of this section, every employer shall maintain a Group Life Insurance Policy in favour of each employee for a minimum of three times the annual total emolument of the employee and the premium shall be paid not later than the date of the commencement of the cover”.

     

     

    In other words, every employer, to which the Act applies, must maintain Life Insurance Policy in favour of every employee for a minimum of three times the annual total emolument of the employee. Under this policy, the total annual emolument is defined as the basic salary, transport and housing allowances and shall not include bonuses, overtime, directors’ fees or other fluctuating emoluments.

     

     

    According to the guidelines for life insurance policy for employees jointly issued by the National Insurance Commission (“NAICOM”) and the National Pension Commission (“PenCom” or “the Commission”), the employer is required to fully bear all costs in relation to procurement of this policy, and this shall be in addition to the contributions to be made by the employer to each employee’s Retirement Savings Account.

     

     

    Regrettably, the provision for Group Life Insurance in the Pension Reform Act is often ignored, even deliberately avoided by employers in the public and private sector leaving dependents of deceased employees stranded without support. These many employers are often ignorant of the legal consequence of contravening Section 4(5) of the PRA 2014 which is civil and criminal.

     

     

    Section 4(6) of the PRA provides that:

     

    “Where the employer failed, refused or omitted to make the payment as and when due, the employer shall make arrangement to effect the payment of claims arising from the death of any of the staff in its employment during such period”.

     

     

    Section 99 (1) of the Act goes further to state that:

     

    “Any person who contravenes any of the provisions of this Act commits an offence and where no penalty is prescribed, shall be liable on conviction to a fine of not less than ₦250,000 or a term of not less than one year imprisonment or to both fine and imprisonment”.

     

     

    In Suit No. NICN/LA/697/2016, Collins U. Okeke and Another v. Delog Medical Services Limited and Another, the 1st Defendant tried to avoid liability for not complying with Section 4(5) of the Pension Reform Act 2014 by contending, on one hand, that their deceased employee was an unconfirmed contract staff and, on the other hand, that deceased had waived her right to Group Life Insurance.

     

    The National Industrial Court disagreed with the 1st Defendant and held as follows:

     

    “By the above provisions of Section 4(5) & (6) of the Pension Reform Act 2014, I hold that the 1st Defendant as the employer of the deceased has a mandatory duty to maintain Group Life Insurance  Policy in favour of the deceased who was its employee.

    The use of the words ‘every’ and ‘shall’ make it a mandatory duty for employers of labour to maintain a Group Life Insurance Policy for all their employees. All that needs to be established is an employment relationship. …. the provision admits of no exception or qualification.

    The duty to maintain a Group Life Insurance Policy in favour of the deceased employee for the minimum of three times her total emolument, is a statutory duty imposed on the 1st Defendant that cannot be waived by the deceased employee……

    By the provisions of Section 99 of the Pension Reform Act 2014, a person who contravenes any of the provisions of the Act commits an offence. 

    I find that the 1st Defendant has contravened the provisions of the Act, and under Section 99 of the Pension Reform Act committed an offence. However, the criminal jurisdiction of the court is not activated by this suit”.

     

     

    It is noteworthy that the Judge in the above suit would have convicted the 1st Defendant for contravening the PFA if the court’s criminal jurisdiction were invoked.

     

     

    By a circular titled, “Compliance with Guidelines for Life Insurance Policy for Employers and Submission of Insurance Certificates for 2020” and issued in January 2020, PenCom stated as follows:

     

    “In accordance with the provisions of Section 4(5) of the Pension Reform Act (PRA) 2014 and Section 5.5 of the Guidelines for Life Insurance Policy for Employees, employers of labour covered by the PRA 2014 are required to submit copies of the Insurance Certificates with the schedule of benefits to the National Pension Commission (PenCom)…

    The insurance certificates shall state that all employees are covered up to an amount not less than three times their respective Annual Total Emoluments (ATE)…

    Compliance with PRA 2014 is not complete without the Group Life Insurance Policy…

    Employers that have not yet submitted copies of insurance certificates for the current year to the commission are therefore advised to do so before 31 March, 2020 failing which the National Pension Commission would consider such employers in default of Section 4(5) of the Pension Reform Act (PRA) 2014”.

     

     

    In a similar notice to the public, PenCom reiterated that Group Life Insurance is a right and one of the conditions of service of all employees in the public service of the Federation, Federal Capital Territory and states that have implemented the Contributory Pension Scheme as well as private sector under Section 4(5) of the PRA 2014. The Commission further advised employees to report where an employer fails to procure the minimum required life insurance policy in their favour.

     

     

    Basically, Group Life Insurance Policy under the PRA is a statutory obligation anchored on public policy. Thus, it cannot be waived, ignored or avoided. See: N.N.P.C v. Dr. I. Nwodo & Others (2018) LPELR-45872 (CA). As such, an employee cannot be said to have waived his right to Group Life Insurance.

     

     

    The regime of the Group Life Insurance Policy under the PRA differs from the Group Life Insurance under a contract of employment. Prior to the PRA, for the beneficiaries of a deceased employee to be entitled to a Group Life Insurance benefit, the contract of employment between the deceased worker and the employer must provide for Group Life Insurance. Consequently, where the contract of employment provides for Group Life Insurance and the employer failed to pay the contribution into the employee’s Retirement Saving Account.

     

     

    The employer will be liable for breach of the contract of employment. However, under the PRA, Group Life Insurance is mandatory and is not dependent on whether it is provided in the contract of employment as the law does not permit a person to contract himself out of or waive the effects of a rule of public policy. See: Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Others (1981) 10 SC 1 at 54.

     

     

    The implication of failure to make Group Life Insurance contributions for employees is that the employer will be in breach of the provisions of the PRA. The legal consequences for non-compliance with the provisions of the PRA are both civil and criminal. The civil consequences include a claim against employer as seen in Collins U. Okeke and Another v. Delog Medical Services Limited and Another (supra).

     

     

     In addition, PenCom is empowers under Section 24(g) of the PRA to impose administrative or civil sanctions or fines on erring employers. On the other hand, employers may face criminal prosecution under Section 99(1) of the Act.

     

     

    Where Group Life Insurance contributions have been made for an employee, the insurance company is mandated to pay the sum assured, upon the death of an employee, to a beneficiary of the estate of the deceased. The beneficiary must be named in the policy and must submit a valid Will, Probate or Letters of Administration to the Pension Fund Administrator who shall with the approval of PenCom release the benefit to the personal representative of the deceased.

     

     

    Employers and Pension Fund Administrators are advised to properly keep and update the records of beneficiaries of employees. On the other hand, beneficiaries of deceased workers are advised to seek legal advice in the event that they are unable to receive the Group Life Insurance entitlements of their relatives or where the employers of their deceased relatives fail to make Group Life Insurance contributions for the employees.

     

     

     

    Written By:

    Collins Okeke and Ugochukwu Mathew-Gerald Eze

  • Highlights of CBN’s Circular on Requirements for Payment System Licenses

    Highlights of CBN’s Circular on Requirements for Payment System Licenses

    On the 24th of May 2021, the Central Bank of Nigeria (CBN) issued a circular stipulating the requirements for licensing of Payment Services Providers (PSP). The circular comprehensively highlights the basic licensing requirements for Payment Services Providers. The circular is a consolidation of an earlier one issued by CBN on the 9th of December, 2020 which provides for New License Categorization for the Nigerian Payment System. 

     

    Below is a highlight of the new CBN’s Circular made in tabular form for convenience. 

     

     

    1. SWITCHING AND PROCESSING LICENSE

    Switching companies facilitate the exchange of value between financial service providers, merchants, their customers and other stakeholders. These are financial institutions operating in the country and are otherwise called issuers of payment tokens (cards, vouchers, etc), which are used on the network of switches. Below is the licence requirement for Switching and Processing companies.

     

    CAPITAL REQUIREMENTS CONTACT LICENSING FEE LICENSE VALIDITY
    A sum of #2,000,000,000.00 (two trillion naira) would be required All applications must be directed to the Director of Payments System Management Department of Central Bank of Nigeria (CBN) with evidence.
    1. A non refundable fee of #100,000.00 (one hundred thousand naira) must be paid to the Central Bank of Nigeria (CBN) via the licensing fee payment account.
    2. A sum of #1,000,000,00 is required to be paid before the  final license must have been issued.
    1. Approval-in-principle for six months.
    2. Commercial license would be determined by the bank upon satisfaction.

     

     

    2. MOBILE MONEY OPERATOR LICENSE

    Mobile money is a technology that allows individuals to receive, store and spend money using a smartphone. It is sometimes referred to as a ‘mobile wallet’. Below is the licensing requirement for mobile money operators.

     

    CAPITAL REQUIREMENTS CONTACT LICENSING FEE LICENSE VALIDITY
    A sum of #2,000,000,000.00 (two trillion naira) would be required.  (Shareholders funds unimpaired by losses). All applications must be directed to the Director of Payments System Management Department of Central Bank of Nigeria (CBN) Abuja with evidence. 1. A non refundable fee of #100,000.00 (one hundred thousand naira) must be paid to the central bank of Nigeria (CBN) via licensing fee payment account.

    2. A sum of #1,000,000.00 is required to be paid before the final license must have been issued.

    		 1. Approval-in-principle for six months.

    2. Commercial license would be determined by the bank upon satisfaction.

     

     

     

    3. PAYMENT SOLUTION SERVICES (PSS)

    Payment solution services provide bridging infrastructure, end-to-end electronic payment solutions, systems and services to stakeholders within the financial services space. Some of the operators that provide payment solution services are usually integrated into the card schemes and core banking systems. Below is the license requirement for Payment Solution Services.

     

    CAPITAL REQUIREMENTS CONTACT LICENSING FEE LICENSE VALIDITY
    A sum of #250,000,000.00 (two hundred and fifty million naira) would be required. (Shareholders funds unimpaired by losses). All applications must be directed to the Director of payments system management department of central bank of Nigeria (CBN) Abuja with evidence. 1. A non refundable fee of #100,000.00 (one hundred thousand naira) must be payable to the central bank of Nigeria (CBN) via the licensing fee payment account.

    2. A sum of #1,000,000.00 is required to be paid before the  final license must have been issued

    		 1. Approval-in-principle for six months.

    2. Commercial license would be determined by the bank upon satisfaction.

     

     

    4. PAYMENT TERMINAL PROVIDER (PTSP) LICENSE

    A payment terminal, also known as a Point of Sale (POS) terminal, is a device which interfaces with payment cards to make electronic funds transfers. The terminal allows the merchant or their client to swipe, insert or hold a card near the device to capture the information. They are often connected to point of sale systems so that payment amounts and confirmation of payment can be transferred automatically to the merchants retail management system. Below is the license requirement for Payment Terminal Providers.

     

    CAPITAL REQUIREMENTS CONTACT LICENSING FEE LICENSE VALIDITY
    A sum of #100,000,000.00 (one hundred million naira) would be required. (Shareholders funds unimpaired by losses). All applications must be directed to the Director of payments system management department of central bank of Nigeria (CBN) Abuja with evidence. 1. A non refundable fee of #100,000.00 (one hundred thousand naira) must be payable to the central bank of Nigeria (CBN) via the licensing fee payment account.

    2. A sum of #1,000,000.00 is required to be paid before the final license must have been issued.

    		 1. Approval-in-principle for six months.

    2. Commercial license would be determined by the bank upon satisfaction.

     

     

    5. PAYMENT SOLUTION SERVICE PROVIDER (PSSP)

    Payment Solution Services bridge infrastructure, end-to-end electronic payment solutions, systems and services to stakeholders within the financial services space. Below is the license requirement. Below is the license requirement:

     

    CAPITAL REQUIREMENTS  CONTACT LICENSING FEE LICENCE VALIDITY
    A sum of #100,000,000.00(one hundred thousand naira) would be required.( shareholders funds unimpaired by losses). All applications must be directed to the Director of payments system management department of Central Bank of Nigeria (CBN) Abuja with evidence. 1. A non refundable fee of #100,000.00 (one hundred thousand naira) must be payable to the central bank of Nigeria (CBN) via the licensing fee payment account.

    2. A sum of #1,000,000.00 is required to be paid before the final license must have been issued.

    		 1. Approval-in-principle for six months.

    2. Commercial license would be determined by the bank upon satisfaction.

     

     

    6. SUPER AGENT LICENSE

    Super Agents are licensed by the CBN to recruit agents for the purpose of agency banking i.e. provision of financial services within communities on behalf of banks. Below is the license requirement:

     

    CAPITAL REQUIREMENTS  CONTACT LICENCING FEE LICENSE VALIDITY
    A sum of #50,000,000.00 (fifty million naira) would be required (shareholders funds unimpaired by losses). All applications must be directed to the Director of payments system management department of Central Bank of Nigeria (CBN) Abuja with evidence. 1. A non refundable fee of #100,000.00 (one hundred thousand naira) must be payable to the central bank of Nigeria (CBN) via the licensing fee payment account.

    2. A sum of #1,000,000.00 is required to be paid before the final license must have been issued.

    		 1. Approval-in-principle for six months.

    2. Commercial license would be determined by the bank upon satisfaction.

     

     

    The requirements, implemented, are capable of enhancing the corporate governance of fintech industry players. Nevertheless, the requirements for payment of escrow amount may pose a financial challenge to startups. 

     

    Download the Approved New Licence Categorisation Requirements Consolidated – 2021 HERE.

  • OAL launches Startup Growth Capsule

    OAL is pleased to announce its Startup Growth Capsule, an exciting legal and business accelerator initiative of its Sports, Entertainment and Technology (SET) practice group. The program which began in March 2021 followed a competitive selection process and has seen six startups accepted into the maiden cohort of the OAL  Startup Growth Capsule, 2021. 

     

    These early stage startups will participate in tailored business and legal engagement sessions with industry experts to improve their knowledge of the Nigerian business and regulatory landscape, one-on-one mentoring sessions with leading founders and professionals and get access to 24/7 quality legal support and technical documents amongst other perks. 

     

    OAL understands the significant role that startups play in creating value, solving problems and creating prosperity in Nigeria’s emerging economy and sees the need for innovative legal solutions to meet the needs of today’s startup which will evolve into tomorrow’s unicorns. According to Beverley Agbako-Onyejianya, Head, S.E.T Practice, “we have recently witnessed a flurry of excitement and activity in the startup space in Nigeria which is encouraging. However, the reality remains  that there is still a major knowledge gap of the legal and regulatory landscape as well as lack of understanding of how to set up and run sustainable business structures”. 

     

    The formal legal and business accelerator program will be held  over the course of 3 months beginning from May 3rd to July 23rd, 2021.

     

    Post the program, OAL will continue regulatory advisory, legal and business support to the startups over a period of 24 months.

     

    The selected startups in the growth capsule cut across fintech, healthtech, media/entertainment, renewable energy and mobility/logistics sectors. 

     

  • Understanding Commercial and Media Broadcasting Rights in Sports

    Understanding Commercial and Media Broadcasting Rights in Sports

    Broadcasting rights (also known as media rights) are legal rights which a broadcasting organisation owns and negotiates for the purpose of commercial exploitation.

     

    In sports, copyright and related rights, particularly those relating to broadcasting, underpin the relationship between sport, television and other media. Television and media organisations have been known to enter bidding wars with the winner enjoying the privilege of an exclusive or non-exclusive license to broadcast sporting content. The value of these rights run into the tens of millions in dollars. 

     

    For top rated sports media organisations, the sale of broadcasting and media licenses represents their biggest source of revenue, generating the funds needed to finance major sporting events, pay wages of elite athletes and players , refurbish stadiums, contribute to the development of sport at grassroots level and more. 

     

    The world of premier football is a classic example of how high the stakes can go for these exclusive licenses. Through a complex tendering process, broadcasters compete to acquire the rights to broadcast games, and the bigger the game the higher the value to become a broadcaster of European football league games or become the official rights-holder of the competition.

     

    The English Premier League (“EPL”)  which has always been ahead of other leagues in terms of earnings thanks to its lucrative TV rights in comparison with other leagues operates a centralised distribution model. The EPL has also been known to allocate its incoming revenues generated from TV rights, across all clubs with the aim of creating balance in the competition and avoiding huge financial disparities.

     

    When the Premier League was formed in 1992, a new playbook emerged proving to be a game changer for the sports media rights landscape and football itself. As previously mentioned, a new profit-driven approach was implemented and became the cornerstone of the organisation.

     

    1992 marked the starting point of the golden era of sports media rights as the influence of the Premier league grew in the international and domestic media market.  The launch of the Premier League on Sky Sports is what dramatically shifted the proverbial earnings goalpost for many clubs.  One of the major technological developments in the satellite media industry was the introduction of subscription-based broadcasting which used encryption of the satellite signal acting as a turnstile to allow viewers access to content. Technological improvements related to the coverage of the games stood out such as the increased number of cameras installed around the pitch to cover the action from a wide array of TV angles previously unseen.

     

    Football clubs own their rights however they give the Premier League a mandate to license these rights centrally to potential buyers, usually the highest bidder. The rights ownership and licensing system is governed by the Premier League’s constitution and any change must be approved by two-thirds of the clubs. Some of these rights can be utilised directly by the clubs. The club license agreement defines which rights may be used; however, clubs are not allowed to sell these rights to third parties.

     

     

    DSTV as a Sport Broadcaster

    DSTV is a Sub-Saharan direct broadcasting satellite service from South Africa, and the largest operator in Africa, founded in 1995 under the company Multichoice. It owns the rights to broadcast the premier league and a host of other sports in Nigeria and Africa as a whole.

     

    DSTV boasted 10.26m subscribers as at 2019 according to Statista.com and it is also the broadcast partner of the Nigerian Premier Football League (‘NPFL’) in Nigeria. This deal has ensured that the popular channel ‘SuperSport’ of DSTV will remain the official broadcaster of the NPFL until 2025.

    These rights also extend across the entire broadcast territory of Sub-Saharan Africa, including South Africa, in all languages and through all distribution platforms, including television, internet and mobile.

     

    Image Rights in Relation to Broadcasting Rights

    In the world of football and sports in general, image rights are the rights intrinsically belonging to a player  to  control, sell, license and in doing so monetise his or her likeness i.e. his or her image, name, nickname, voice, signature and all other characteristics unique to the player.

     

    At the beginning of a sportsperson’s career, the athlete or player’s image rights are owned by the athlete or player in so far as they cannot be exploited, licensed or assigned without his or her prior consent or until he or she secures the services of a talent manager. Savvy elite international players will license their image rights to three broad categories of licensee (i) their club (ii) their personal sponsors and (iii) national association. In parts of the west, particularly the United Kingdom, the player’s talent manager may advise that a separate business is registered to manage the player’s image rights contracts and receive income.

     

    Under the NIgerian Premier Football League (NPFL) Rules, a player’s image rights obligations are expressly incorporated in Form 7 of the Rules, specifically in Clause 4.3 through 4.7. Clause 4.3 of the contract is the assignment clause that recognises the club’s rights to exploit the player’s image rights. By clause 4.4, the player agrees not to undertake any promotional activities on the club’s behalf nor assign his image rights to any other person. The player is further obliged under article 4.5 of the contract to undertake promotional activities on behalf of the club. This clause is complemented by clause 4.6 where the player expressly assigns the copyright to his photographs to the club and grants to the club, permission to exploit his image for promotional purposes. However, it is pertinent to point out that the exploitation of a player’s image imposes a corresponding obligation on the club to ensure that such usage is not subjected to any greater usage than that of his teammates.

     

    The club is also obliged to ensure that the player’s photograph or image does not imply an endorsement by the player of the product or service being promoted. This was the thrust of the dispute between Mohammed Salah and the Egypt Football Federation where the player’s representatives alleged that their client’s image was subjected to greater use vis a vis that of his teammates and gave the impression that the player endorsed the use of Egypt Air.

     

    The recent case of Real Madrid with La Liga challenging the Spanish soccer body’s authority to commercialise the league’s broadcast rights is instructive for understanding the need for centralised control of broadcasting rights by a league. The Madrid court dismissed the reigning Spanish champions’ legal claim, ruling in favour of La Liga’s centralised rights management and its responsibility to increase the value of the competition domestically and abroad.

    Real Madrid requested that the court make it mandatory for La Liga to provide and prepare thorough financial accounts for the 2018/19 season, including details on the sale of the league’s broadcast rights. In addition, the club wanted the court to reverse certain agreements approved at La Liga’s general assembly in October 2019; while it also claimed it was due a payment of €23.9 million (US$28.9 million) representing its share of payments from the league.

     

    The court ruling dismissed all those claims. It held that La Liga has an unequivocal role in the commercial management of audiovisual rights and in the exercise of its obligation it is required to guarantee optimal management and investment.

     

    It is pertinent to note that clubs have traditionally remunerated their players solely for playing football, however with the lines blurred between entertainment and sports, this relationship has evolved and commercial drivers push football further into the entertainment and branding space. With this, clubs are continuously looking for a variety of ways to ‘monetise’ their players and grow their revenue and fan base.

     

    As such, clubs are entering increasingly into a variety of high value commercial branding partnerships ranging from clothing, aviation, lifestyle, food and beverages,etc due to the high demand for brand association with clubs and their high-profile players. It is a fact that some Premier League clubs have in excess of 60 commercial partners, all seeking the right to use images, which in this case includes DSTV (images includes the use of high-profile players in their advertising).

     

     

    To conclude, we look at what we know about the power of brand association and image rights In relation to the story recently reported in social media about Wilfred Ndidi, and the use of his image on huge billboards in Nigeria to announce the incoming new football season. 

    There were several questions about whether DSTV can do this but as we know DSTV is and remains the official broadcast partners of the Premier League in Nigeria and for this reason it presupposes that the organisation may have authorisation to use images of EPL stars in their branding and products. 

    One thing is clear , the question posed by the footballer and subsequent engagement on the Twitter  thread  shows that there is a gap in knowledge amongst fans and perhaps even the sportsmen and women and there is a need to bring ongoing awareness about the mechanics of broadcasting and media rights to the general public.