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  • Drilling Rig as a Vessel: Distinguishing the TRANSOCEAN Case Vis-a-Vis the SEADRILL Case

    Drilling Rig as a Vessel: Distinguishing the TRANSOCEAN Case Vis-a-Vis the SEADRILL Case

    The Court of Appeal in the recent Judgment of Transocean Support Services Nigeria Limited & 3 Ors v Nigerian Maritime Administration and Safety Agency & 1 Or: Appeal No:CA/L/ 503/2016, held that drilling rigs cannot be deemed to be vessels for the purpose of the Coastal and Inland Shipping (Cabotage) Act, 2003 and liable to the 2% surcharge as stipulated in the Cabotage Act. In arriving at its decision, the Court of Appeal gave consideration to the provisions of the Cabotage Act and held that either both or one of two conditions had to be met in order for a drilling rig to be classified as a vessel under the Cabotage Act.

    Drilling Rigs The first condition is that in order for a drilling rig to be deemed as a vessel eligible for registration under the Cabotage Act, it was crucial to show that the rig was designed, used or capable of being used solely or partly for marine navigation and used for the carriage on, through or underwater of persons or property without regard to method or lack of propulsion.

    The second condition is that a drilling rig could be classified as a vessel under the Cabotage Act if it is shown that the rig was listed among the machinery expressly identified as vessels in the Act. It is crucial to note that the Court of Appeal expressly stated that either both or one of these two conditions are necessary to make a drilling rig a vessel under the Cabotage Act.

    The Respondents in Transocean failed to show that the drilling rig in contention satisfied any of the two conditions identified by the Court of Appeal. As a result, the Court of Appeal held that a drilling rig could not be classified as a vessel under the Cabotage Act and further held that the listing of drilling rigs under the head of foreign vessels in the Guidelines on Implementation of Coastal and Inland Shipping (Cabotage) Act 2003, Revised 2007, was beyond the powers of the Minister of Transport.

    At first blush, the Court of Appeal’s decision would appear to have overturned the judgment delivered in the recent Federal High Court case of Seadrill Mobile Units Nigeria Limited v The Honourable Minister for Transportation & 2 Ors, however, this is not so. In Seadrill, it was held that the drilling rig in contention was a vessel under the Cabotage Act because it satisfied one of the conditions identified by the Court of Appeal in Transocean, which is that the rig must be capable of being used for marine navigation and for the carriage of property and persons.

    This is different from the position in Transocean where the Respondents failed to establish that a drilling rig satisfied any of the two conditions laid down by the Court of Appeal for the purpose of classifying the rig as a vessel under the Cabotage Act. This clearly reflects that the decision in Seadrill is distinguishable from the decision in Transocean.

    From the above, the effect of the Court of Appeal’s decision in Transocean is that a drilling rig could be considered as a vessel under the Act, if it satisfied the condition that it is capable of being used for marine navigation and for the carriage of property and persons without regard to method or lack of propulsion, irrespective that the drilling rig is not expressly listed as a vessel under the Cabotage Act.

    Given this position, there is the likelihood that there could be more cases seeking the determination of whether a particular drilling rig is a vessel under the Cabotage Act, which will be decided on a case by case basis. In light of this position, it would appear that the final word is yet to be heard regarding the controversial matter of whether a drilling rig is a vessel under the Cabotage Act.

  • Waking Up Dead Capital in Nigeria: – The Intersection between Law and Economic Development

    Waking Up Dead Capital in Nigeria: – The Intersection between Law and Economic Development

    Our firm Olisa Agbakoba Legal (OAL) and BusinessDay Newspapers co-presented the LEGAL POLICY DIALOGUE in 2014. The forum was a strategic partnership that highlighted the impact of the law on economic development and investment by the two sector leaders in law and business reporting.

    Waking Up Dead Capital in Nigeria: The Business Case

    At the center of our discussion was the assertion by Economists and Development Law experts that Law plays an important role in economic reforms and development outcomes. This was in recognition of the fact that certain legal and institutional frameworks are particularly conducive and enable economic growth.

    The need to focus on these institutional and legal frameworks stems from what Amartya Sen had described as the need to “adopt a broad and many-sided approach to development…” Some of these has been noted to include well defined and alienable private property rights; a formal system of contract law that facilitates impersonal credit process; a corporate law regime that facilitates the capital investment function; a bankruptcy regime that induces the exit of inefficient firms and rapid redeployment of their assets to higher valued uses; and a non-punitive, non-distortionary tax regime hold the key to effective economic reform.

    This is the conceptual basis of development law. This concept is far less appreciated in developing countries and has contributed to the low space in economic development actualization.

    Overview of the Theme:

    In his masterpiece book “The Mystery of Capital”, Hernando De Soto gives credence to the notion that law is crucial to economic development and asserts that development law can be a very powerful tool for development planning and economic reform.

    De Soto links economic failure in the third world and post-communist nations to legal failure in particular of property systems and the informal sector. According to Margaret Thatcher, “The Mystery of Capital” has the potential to create a new, enormously beneficial revolution, for it addresses the single greatest source of failure in the Third World and ex-communist countries — the lack of a rule of law that upholds private property and provides a framework for enterprise.” A summary of the interplay between law and Economic Development;

    Critical Areas We Reviewed:

    • Money Regime:

      Again 70% of money circulates outside the banking system. So it is important to use new legal tools to integrate formal and informal banking. It is difficult to envisage how economic policy will do this all by itself. A Legal framework is required to drive money into the formal system.

    • Property Systems:

      Dead Capital in NigeriaDe soto gives a very striking example of law as a key primer of development and used property law as illustration.  Property consists of two values, physical and conceptual. The physical value may be fixed in say, a house. The abstract or conceptual value is fixed in property law systems.

      In developed nations, property law allows owners of housing, to represent their value in the conceptual realm. This possibility allows easy access to credit that in turn generates capital for development. In Nigeria with a very weak legal regime, a conceptual representation of property to create value is missing. Yet the housing asset inventory of Nigerian property exceeds six trillion Dollars. If the value of property is indexed to the banking system by massive legal reform of the property system, we can create an instant credit market in excess of our gross national domestic product multiplied by a thousand times — money will be then available to finance development.

      Thailand Example of Property Law

      Thailand is an example of how land administration reforms can add enormous value to capital creation especially for the poor. In 1982 the Thai government began a 20- year project to title and register farmland throughout the kingdom. The aim of this was to Enhance farmers’ access to institutional credit and increase their productivity by giving them an incentive to make long-term investments. Just over 8.5 million titles were issued during the life of the project. Along with those issued outside the project, the number of registered titles increased from 4.5 million in 1984 to just over 18 million by September 2001. Studies conducted during the project showed that it met both its objectives: titled farmers secured larger loans on better terms than untitled farmers, and productivity on titled parcels rose appreciably.

      Our key constraints to development include poor security, extremely weak commercial judicial systems, a generally weak legal system, impunity, corruption and an unviable regulatory framework. These may be described as economic constraints. No economic policy will remove these constraints. But it is development law that can help remove constraints of no mortgage systems in Nigeria, by the repeal or amendment of the Land Use Act and erection of a new law on property.

      This should clearly identify owners of title deeds and allow easy transfers on property exchanges — the so-called notion of fungibility. De Soto’s book on development law was published to critical acclaim and is widely viewed as one of the most important contributions to development issues of all time. Milton Friedman, Nobel Laureate in Economics says that De Soto has demonstrated in practice that titling hitherto untitled assets are an extremely effective way to promote the economic development of society as a whole. A thriving market economy with an active role for the private sector is all that it takes for economies to develop. This is certainly the time to rethink our economic policy and include development law.

    • The Potential of the Untapped Informal Sector

      Dead Capital in NigeriaThis is about Small Businesses and Enterprises including industries. The size of the Informal Sector (IS) in Nigeria is estimated at over 80% of the overall business. The Informal Sector is largely ‘underground’ contributing nothing to development. The informal sector operates below the legal radar hidden from regulation, tax and fiscal control. This is due to the cumbersome and expensive registration process.

      The burden of government on the Informal Sector is crushing e.g Programme Information Licensing and Taxation. These are bottlenecks that drive small business underground. The impact of the “informal sector” on economic reform and development is potentially massive but first needs to be ‘captured’ and brought to the “formal sector”. Only Law can do this.

    • The Legal and Justice Sector:

      Dead Capital This involves Legal Systems and The Courts. The Legal System is a set of CODIFIED laws that govern the affairs of a state- for example, the Laws of the Federation of Nigeria (LFN) or Laws of a State. Rules of court are the software that facilitates speedy resolution of disputes. The quality of business regulation comprised in the Laws and the legal institutions that enforce it are major ‘determinant of development. Outdated laws and Rules of Court constitute a major constraint to development.

    • Private Sector Participation in Development:

      This relates to the Private-Public Sector Partnership and Privatization. The government cannot fund all development projects. Private sector funds are crucial. Law enables private-public sector initiatives covering issues like BOT (Build Own Transfer), LOT (Lease Operate Transfer), and Concessions etc. These have become development alternatives. Legislation in this field is urgent. Privatization is another viable developmental tool. We need legislation so that Government can divest from the private sector. Privatization is one of the 3 key strategies of the NEEDS document.

    • 2014 – 2019: How Far Have We Come?

      We have not come very far in terms of “waking up dead capital in Nigeria”. A recent report by PricewaterhouseCoopers Limited (PwC) reveals that the country is under-performing and needs to unlock as much as $900bn worth of dead capital to increase economic activities and stimulate growth.  The major challenge identified is the need for a transformational agenda to be put in place to implement Development Law policies.

  • Patients’ Bill of Rights: Ifeatu Medidem Presents Paper at Health-Care Summit in Lagos

    Patients’ Bill of Rights: Ifeatu Medidem Presents Paper at Health-Care Summit in Lagos

    Our Senior Associate/Practice Manager, Ifeatu Medidem presented a paper at the “HealthCare Summit” organized by the Society for Quality in Healthcare in Nigeria, in conjunction with the International Society for Quality in Healthcare, at the MUSON Centre, Onikan, Lagos. The event was themed ‘Patients’ Experience of Care’ and Ifeatu spoke on the “Patients Bill of Rights”. The Conference highlighted critical issues such as quality and patient safety confronting patients and healthcare practitioners today.

  • Landmark Judgement: An Oil Rig is a Vessel Under the Cabotage Act, 2003

    Landmark Judgement: An Oil Rig is a Vessel Under the Cabotage Act, 2003

    In a landmark judgment delivered on Friday, June 14, 2019, by Honourable Justice Babs Keuwumi of the Federal High Court Lagos, in Seadrill Mobile Units Nigeria Limited v The Honourable Minister for Transportation & 2 Ors Suit No:FHC/L/CS/607/2016, initiated vide an Originating Summons, it was held that drilling operations fall within the definition of ‘coastal trade’ under the Coastal and Inland Shipping (Cabotage) Act and that oil rigs fall within the definition of vessels under the Act.

    The Plaintiff, Seadrill Mobile Units Nigeria Limited, had initiated the suit in reaction to the detention of its oil rig, The West Capella, by the Nigerian Maritime Administration and Safety Agency (NIMASA), which had been detained upon the Plaintiff’s failure to register it as a vessel at the Ship Registry for cabotage operations. Pursuant to the suit, the Plaintiff in seeking the release of its vessel from detention raised two questions for determination to wit:

    1. Whether drilling operations fall within the definition of ‘coastal trade’ and ‘cabotage’ under section 2 of the Coastal and Inland Shipping (Cabotage) Act.
    1. Whether on a proper interpretation of the Cabotage Act – particularly sections 2, 5 and 22(5) – drilling rigs fall within the definition of a vessel under the Coastal and Inland Shipping (Cabotage) Act.

    It was the Plaintiff’s counsel’s argument that drilling operations were simply limited to oil production and this had no relation to the carriage of goods and passengers within Nigerian waters, which had been defined as coastal trade and cabotage under s 2 of the Act. The Plaintiff further argued that s 22 (5) of the Act expressly included certain vessels that were eligible for cabotage registration under the Act. It was argued that it was immaterial that the word ‘include’ was used in s 22 (5) and that the express mention of the specific vessels in the section meant the exclusion of an oil rig, which was not mentioned.

    In opposition, the 1st and 3rd Defendants’ counsel, Dr. Oluwole Akinyeye of Olisa Agbakoba Legal, argued that the Plaintiff’s drilling operations, which involved oil production encompassed the exploration and exploitation of minerals or non-living natural resources in Nigeria and that the nature and functions of The West Capella compulsorily required it to carry persons and goods in relation to its oil drilling operations, which fell within the definition of coastal trade or cabotage under s 2 of the Act. Dr Akinyeye further argued that the nature and functions of The West Capella satisfied the three elements required to be fulfilled under s 2 of the Act for the purpose of classifying an oil rig as a vessel.

     

    It was also argued that The West Capella was a type of oil rig known as a drillship and that this fact ought to be taken into joint consideration with the provisions of the Admiralty Jurisdiction Act, NIMASA act, and Merchant Shipping Act, which all contained provisions defining an oil rig as a ship.

    In deciding the first question for determination in the affirmative, the Honourable Court found that the Plaintiff’s drilling operations, which were conducted offshore fell within the ambit of the definition of coastal trade and cabotage in s 2 of the Cabotage Act. The Honourable Court further found that the pictorial evidence of The West Capella reflected that its drilling operations encompassed the carriage of goods and persons for the purpose of being classified as coastal trade or cabotage under s 2 of the Act. In also deciding the second question for determination in the affirmative, the Honourable Court considered the provisions of the Admiralty Jurisdiction Act and Interpretation Act and found that an oil rig was defined as a ship. The Honourable Court was of the position that the word – ‘include’ as utilised in s 22 (5) of the Cabotage Act was to broaden the scope of the Act’s application to encompass vessels not specifically mentioned in the Act. It was the Honourable Court’s position that the community reading of the Admiralty Jurisdiction Act, the Interpretation Act and Cabotage Act meant that drilling rigs fell under the definition of a vessel under the Act.

    The judgment is groundbreaking as it has now settled the age-long controversy regarding whether the oil rigs employed by oil and gas companies in the maritime industry can be regarded as vessels for the purpose of the Cabotage Act. The judgment is also far-reaching as NIMASA can now charge and demand statutory levies on the oil rigs for cabotage activities, which had hitherto been contested by the oil and gas companies. As a corollary, the government stands to derive significant revenue from these levies thereby improving Nigeria’s economic fortune.

  • Olaseni Aka-Bashorun Speaks at the Total StartUpper Legal Clinic

    Olaseni Aka-Bashorun Speaks at the Total StartUpper Legal Clinic

    Our associate Olaseni Aka-Bashorun was the guest speaker at the Legal Clinic organized by Passion Incubator for the winners of the Total Statrupper of the Year Challenge. The clinic was part of the personalized support and coaching initiative aimed at preparing the entrepreneurs for success in the business world. He delivered a presentation on “Understanding Legal Agreements and the Pitfalls to Avoid When Negotiating Contracts”.

    The Total StartUpper of the Year Challenge is a global entrepreneurship challenge organised by Total Group in 55 countries of the world. OAL is committed to providing legal services to tech startups/tech-enabled businesses solving real-life problems in Nigeria.

     

  • Alternative Dispute Resolution in Nigeria: New Frontiers in Law

    Alternative Dispute Resolution in Nigeria: New Frontiers in Law

    Alternative Dispute Resolution in Nigeria is not a new field. Without doubt, disputes are invariable and recurring decimal in human and commercial interactions. Thus, the need for effective dispute resolution mechanisms to be adequately put in place arises. Traditionally, Litigation and Alternative dispute resolution mechanisms have been identified as the major means of resolving disputes. 

    While Litigation, on one hand, involves recourse to a structured court system which allows for adversarial discourse and analysis of the dispute followed by a judgment which traditionally takes the form of a win-lose situation, Alternative dispute resolution includes a non-adversarial method of resolving disputes by intercession and assistance of a neutral and impartial third party.

    As is obvious, litigation is generally fraught with a plethora of irregularities, majorly time wastage. However, that is not the crux of this discourse.

    This paper aims to highlight the recent incursion of Alternative dispute resolution into dispute resolution laws and address the need for properly defined procedural frameworks.

    Commercial disputes occur on a daily and hourly basis. The Nigerian situation is however spectacular being a highly litigious society. In Lagos State alone, over 30,000 new civil cases are filed each year.

    With the introduction of the various ADR Mechanisms, this ugly trend has been reversed as parties can get a final determination of their disputes within days and still maintain a cordial relationship, a possibility which is alien to litigation.

    Alternative Dispute Resolution in Nigeria: An Overview

    The success of Alternative Dispute Resolution in Nigeria cannot be overestimated in the past few years. This success started in Lagos and has been replicated across the country.

    When the Lagos Multi-Door Courthouse (LMDC) opened in 2002, it was Africa’s first court-connected Alternative Dispute Resolution centre. Adapted from a concept first articulated by a Harvard law professor, but embracing indigenous dispute resolution practices, the LMDC was both innovative and rooted in Nigeria’s past. It offered an appealing alternative to litigation. Cases are consistently resolved more quickly, cheaply and amicably than those heard in Nigeria’s congested courts.Alternative Dispute Resolution in Nigeria

    By diversifying the dispute resolution options available to Nigerians, the LMDC has eroded a long-standing national bias towards litigation. Fourteen Nigerian states and the Federal Capital Territory (Abuja) in October 2003 established its own Multi-Door Court, have replicated the model showcasing the efficacy of dispute resolution mechanisms that resonate with local culture and practice.

    Similarly, at the highest level of the judiciary, the Honorable Chief Justice of the Federation, Honorable Justice Walter S. N. Onnoghen, (has then was ) pledged to establish a dedicated mediation centre at the Supreme Court in Abuja. This would ensure that even parties in litigation at its most advanced stage can resolve their disputes amicably while on-site.

    In the same vein, the National Industrial Court of Nigeria which is responsible for hearing employment disputes and grievances brought by trade unions has established ADR centres at its divisions in Abuja, Kano, Gombe, Enugu, Calabar and Ibadan.

    All these have gone on to reveal the impact of Alternative Dispute Resolution in Nigeria over the years.

    Procedural Framework for Alternative Dispute Resolution in Nigeria

    In recent times, an ever-increasing plethora of laws, Acts, Rules and Guidelines have begun to make viable provisions to aid and enhance the adoption of ADR and also stipulate clear-cut procedures to follow when ADR methods are adopted, especially in relation to disputes which arise out of commercial interactions. 

    It is thus essential to highlight and examine some of the various innovative provisions for ADR proceedings under the various Rules of Court:

    • National Industrial Court of Nigeria Civil Procedure Rules 2017:

    The National Industrial Court of Nigeria Civil Procedure Rules 2017 makes provisions for an “Alternative Dispute Resolution Centre”.

    Section 24 of the Rules provides thus:

    (1). The President of the Court or a Judge of the Court may refer for amicable settlement through Conciliation or Mediation any matter filed in any of the Registries of the Court to the Alternative Dispute Resolution Centre (hereinafter referred to as the Centre) established within the Court premises pursuant to Section 254C (3) of the 1999 Constitution (as amended by the Third Alteration Act, 2010) and Article 4(5) (a)–(e) of the Instrument of the Alternative Dispute Resolution Centre.

    (3). The Centre shall endeavor to take all necessary steps to conclude the Mediation or Conciliation process with respect to matters referred to it within twenty-one (21) working days of the date the process commences provided that an extension of ten (10) working days may be granted by the President of the Court or a Judge of the Court on request if the Mediation or Conciliation process(s) is/are not completed within twenty-one (21) working days.

    (5). (1) Upon receipt of the report of an amicable settlement of a matter from the Centre, the Court shall cause hearing notices to be issued and served on the parties and their counsel, if any, for the adoption of the settlement agreement as to the Judgment of the Court.

    (6). (1) Where parties to any mediation or conciliation process are unable to settle their dispute amicably, the Director of the Centre shall submit a report to that effect to the President of the Court or the Judge of the Court who made the referral without the record of the mediation or conciliation session(s).

    • Federal Capital Territory High Court Civil Procedure Rules

    One radical improvement made by the 2018 Abuja Rules is the substantial provision for the procedural framework of ADR. In contrast, under Order 17 of the 2004 Abuja Rules, there was only little provision for ADR and it was discretionary and subject to the consent of the parties. However, under the new 2018 Abuja Rules, the scope of ADR is wider. Not only is the court or judge now duty bound to encourage settlement of matters via ADR, but there are also elaborate provisions for the procedural framework.

    Where a matter is suitable for ADR, the Judge shall by enrolment order refer the case to the Abuja Multi-Door Court House (AMDC) for resolution within 21 days except otherwise ordered by the court. Where a party refuses to submit to ADR and loses the case in court, he shall pay a penalty as may be determined by the court. The court or judge shall, on the application of parties enrol the terms of settlement both in heading and content reached at the Abuja Multi-Door Court as consent judgment; such terms shall thereupon have the same force and effect as a judgment of the court.

    It should be noted that under the 2018 rules, an application to enforce an award on an arbitration agreement or order may be made ex-parte, but the court hearing the application may order it to be made on notice.

    •      High Court of Lagos State (Civil Procedure) Rules 2019;

    The High Court of Lagos State (Civil Procedure) Rules 2019 lays down a very comprehensive procedural structure of ADR in Lagos State. Order 28 provides for Alternative Dispute Resolution (ADR) proceedings and states thus:

    1. When pleadings are deemed closed; the case shall be referred to Lagos multi-door courthouse or other appropriate ADR institutions or practitioner
    2. Upon the directive of the judge in sub-rule (2) of this rule, the claimant shall, within fourteen (14) days file his statement of case and the defendant shall file his response within 14days of service of the statement of claim
    3. Any judgment given under rule (3) above may be set aside upon an application made within 7 days of the judgment or such other period as may be allowed by the ADR judge.

             Mode Of Alternative Dispute Resolution  Application

    • An application in any ADR proceedings under these rules shall be by originating motion on notice. 
    • The originating motion, as provided under this order shall-
    1. State in general terms the grounds of the application
    2. Where the motion is founded on evidence by affidavit, it shall be accompanied by a copy of the affidavit was intended to be used; and be supported by a written address.
    • A party applying for enforcement of an award shall supply the-
    1. Duly authenticated original award or certified copy of the award
    2. Original arbitration agreement or a duly certified copy of same.

    An application to set aside or remit any award may be brought at any time within three months after such award has been made and published to the parties; provided that a judge may by order before or after the expiration of three months extend the time allowed by the rule to set aside or remit an award.

    Other Regulations and Guidelines Which Make Provisions for ADR Proceedings

    Apart from the above-listed Rules of Court, other bodies have embraced ADR and have consistently promoted its use. One of such bodies is the “Chartered Institute of Bankers of Nigeria” which has promoted the use of ADR within financial disputes.

    Alternative Dispute Resolution in Nigeria

    Also, the Central Bank of Nigeria (CBN) in encouraging the use of ADR has established a sub-committee on Ethics and Professionalism for Mortgage Bankers. The committee will ensure the settlement of disputes between mortgage banks and their customers on one hand and mortgage banks on the other.

    The sub-committee which is a self-regulatory body is the Alternative Dispute Resolution (ADR) Platform/Financial Ombudsman for the mortgage banking sub-sector, has the Chartered Institute of Bankers of Nigeria (CIBN) as the Secretariat. The body, however, will not entertain cases that are more than six years old in line with the Statute of Limitation Act.

    Regulation for Direct Debit Scheme In Nigeria 2018 (Revised)

    As it relates to disputes arising from the direct debit scheme, The Act states that “Any dispute, controversy or claim arising out of or relating to this Regulation or the breach, termination or invalidity thereof shall be settled in accordance with the CBN’s dispute resolution mechanism and if unresolved, may be referred to an Arbitral panel, as provided under the Arbitration and Conciliation Act Cap. A18 LFN 2004”.

    Lagos State Mortgage Board Dispute Resolution

    Some Lagosians already appear to recognize the potential of ADR. Businesses have adopted ADR with zeal, offering additional means of resolving disputes. Lagos now hosts several specialist centres some of which have enacted bespoke Arbitration rules for adoption and use by disputants. While others use the rules annexed to the Nigerian Arbitration and Conciliation Act. Such centres are increasingly targeting regional and international clients, as the state judiciary does not refer cases to private providers.

    A key example of the above is the Lagos State Mortgage Board. A major component of the Lagos State Mortgage Board Scheme is the dispute resolution mechanism between the Lagos State Mortgage Board (LMB) and the HomeOwner.

    The Scheme has an effective dispute resolution mechanism by Arbitration through a single Arbitrator appointed by the President of the Lagos Court of Arbitration (LCA).

    The proceedings will be conducted under specially designed Lagos HOMS Housing Arbitration Rules that are expressly incorporated in all Lagos HOMS documentation.

    Recommendations  for the Future Practice of Alternative Dispute Resolution in Nigeria

    Not minding the various improvement of ADR generally, there still exist a number of hindrances to its full-scale adoption by commercial disputants in Nigeria. One of such hindrances is the lack of updated Legislation to regulate Arbitration and ADR practices.

    With the exception of the Lagos High Court Civil Procedure Rules and the Federal Capital Territory, Abuja High Court Civil Procedure Rules which came into force in 2019 and 2018 respectively, all other major Legislations on Arbitration and ADR are old. For instance, the Arbitration and Conciliation Act which is the most important legislation on Arbitration was enacted as far back as 1990 Thus, such a law can hardly reflect the current trends in the society.

    Another issue relates to the lack of adequate legislation to cover other forms of ADR. From the title of the Arbitration and Conciliation Act, it can be seen that the Act only makes relevant provisions for merely Arbitration and Conciliation amongst the plethora of ADR options which exists. There is, therefore, a need for the Parliament to create a Legislation that would encompass all relevant ADR forms.

    Also, there is a need for Legislators to look beyond commercial disputes for our Arbitration practice in Nigeria by considering a legal framework to accommodate other forms of disputes to our Arbitration system.

    Finally, it has been discovered that our practice of Alternative Dispute Resolution in Nigeria lacks a vibrant awareness mechanism, which means that laypersons lack a proper understanding of how the Arbitration system operates and how it is practised. Perhaps, it is due to the fact that the 1999 Constitution (As Amended) doesn’t specifically make provisions for the adoption of Arbitration as a dispute resolution mechanism.

    There is always room for further integration of Alternative Dispute Resolution in Nigeria into the formal justice system through recognition under the Nigerian Constitution or laws clarifying their relationship with the State enforcement apparatus. Such steps would increase disputants’ confidence in the process and reassure them that participation in Alternative Dispute Resolution is equivalent to having their “day in court”.

     

    Written By: Victor Akazue Nwakasi  (Partner, Corporate Commercial/ ADR) & Kikelomo Lamidi (Associate)

  • Nosa Garrick Speaks at UNIBEN NBA SBL Symposium

    Our Associate Nosa Garrick recently spoke at the Legal Symposium organised by the Section on Business Law Club, Faculty of Law, University of Benin. The event was themed: “Raising the bar: The future of Law Students in the Legal Profession.

    Nosa spoke on the topic “The what, the why and the how of Intellectual Property in Nigeria: A Lawyer’s goldmine”.
    When explaining “the what”, he explained the concept of Intellectual Property as well as the practical scope in Nigeria. With “the why”, he exposed the students to the arguments for and against the protection of Intellectual Property, drawing out the History behind the main theme for protection and with “the How”, Nosa gave insight into the applicability of Intellectual Property to different disciplines and areas.

  • Dr Oluwole Akinyeye Delivers Lecture at Nigerian Chamber of Shipping

    Our Senior Associate/ Head of Maritime unit, Dr Oluwole Akinyeye was a guest lecturer at the ABCs of Shipping training programme organised by the Nigerian Chamber of Shipping on the 11th of March 2019. Dr Wole’s lecture was titled:  Cabotage: A Review of the challenges and prospects. Also present at the event was our associate, Caroline Tokulah-Oshoma.

  • Beverley Agbakoba-Onyejianya honoured in Lagos

    Beverley Agbakoba-Onyejianya honoured in Lagos

    Our Senior Associate/ Head of Sports, Entertainment and Technology (SET) Practice, Beverley Agbakoba-Onyejianya was recently honoured and presented with an award by the Friends of the Creator Artistic Foundation for her contributions to sports and intellectual property law in Nigeria. She was among the list of top sports personalities and brands honoured in Lagos at the event held to celebrate this year’s World Intellectual Property Day in Lagos. The event was organised by the Friends of the Creator Artistic Foundation and the Nigerian Copyright Commission, National Film and Video Censors Board and the Lagos chapter of the Sports Writers Association of Nigeria.

  • Health Tech In Nigeria: A Legal Perspective

    Health Tech In Nigeria: A Legal Perspective

    Health tech in Nigeria, just like the general healthcare sector, is in a precarious state. It is evident that the government’s healthcare plan is not only under-resourced but largely overwhelmed and incapable of meeting the needs of millions of people, not just in the urban areas, but also in the most remote parts of the country.

    With more than 180 million people living in Nigeria, the opportunities abound for health tech entrepreneurs to invest, leave a significant footprint, make a social impact and a profit. This sounds like an entrepreneur’s utopia but the reality for emerging and established health tech entrepreneurs in Nigeria is that the health tech landscape has various obstacles such as lack of standardisation, regulatory gaps, underfunding as well as the problem of weak enforcement.  

    Current Regulatory Landscape of Health Tech in Nigeria

    health-tech in NigeriaThere is still no single legal framework for the regulation of health tech in Nigeria. Instead, there is a reliance on the guidance of the different traditional health care areas each having their own set of guidelines and regulations e.g. Medical and Dental Practitioners Act Cap M8, 2004, Pharmacists Council of Nigeria Act, National Health Act, 2014.

    These pieces of legislation currently cover the orthodox health care service providers and represent the extant regulatory framework. However, as it preceded the advent of digital healthcare solutions it has extremely limited regulatory coverage over health tech service providers.

    In some subsectors of health-tech in Nigeria, such as telepharmacy, entrepreneurs have lamented on the lack of a regulatory framework to address the nuances of the emerging industry. Having no clear cut guidelines on setting up cloud-based services, many health tech providers resort to reliance on the licenses for traditional health care e.g. a cloud-based pharmacy will rely on provisions for setting up a brick and mortar pharmacy.

    According to TechCabal’s health tech report, the sector has been in existence since 2004  which makes it a relatively young industry in Nigeria. A gradual and slow acquiescence to novel solutions can take time to reflect in the national framework. As the technologies continue to develop at top speed, it is now the time more than ever for pioneer health tech providers to play an active part hand in hand with the regulators towards framing the policy guidelines for the health tech industry.

    Health Tech in Nigeria: What Entrepreneurs Should Keep in Mind

    Health tech entrepreneurs are required to obtain the regular licenses applicable to operate in any of the brick and mortar health sectors. Since there are a number of regulatory requirements for setting up, it is important for health tech providers to seek legal advice, even at the idea stage, to understand the best structure to incorporate. Setting up a business will require registration with the Corporate Affairs Commission (CAC) primarily with the entrepreneur demonstrating expertise and proof of proficiency in the area of business they are incorporating.

    The following is a list of the licenses required by startups/entrepreneurs who intend to practice health tech in Nigeria:

    • Certificate of Incorporation with CAC;
    • Certificate of Proficiency for doctors, pharmacists, dentists and nurses;
    • Registration of Technology Transfer certificate of approval;
    • License to practice as a medical practitioner or health caregiver;
    • Nigerian business permit and License;
    • Practising license authorised by the Medical and Dental Council of Nigeria (MDCN);
    • Authorization by the Federal Ministry Of Health.

    Entrepreneurs will also need to keep in mind existing laws regulating the unauthorised disclosure of patient records or hacking and unsecured records. In May 2018 the Consumer Protection Council (CPC) in collaboration with the Federal Ministry of Health launched the inaugural ‘Patients Bill of Rights’ (PBoR) to bridge this gap. The bill of rights is aimed at ensuring easy access to quality health care service in the country.

    The PBoR is an aggregation of existing rights already contained in extant laws but reduced into a single set of rights to sensitize the members of the public. It gives patients receiving health care a set of 12 uncompromising rights which include: the right to information, right to fair treatment, right to privacy, right to receive urgent care, right to transparent billing among others.

    Here is a link to a more detailed regulatory checklist for health tech entrepreneurs.

    The Future of Health Tech in Nigeria (Regulation)

    health-tech in NigeriaAlthough there is a National Health ICT Strategic Framework document, which was created in 2015 and runs until 2020, it doesn’t adequately address the regulatory and policy gaps that exist in the health tech industry. The National Information Technology Development Agency (NITDA), the Ministry of Health and the Ministry of Communications have begun working with entrepreneurs to develop a policy document for health-tech in Nigeria. Entrepreneurs should pay attention to the National Health ICT Strategic Framework while they expect the regulatory and policy document to be launched and implemented.

    In as much as our laws, particularly as it relates to the extant laws that abound in the healthcare industry, were made without the contemplation of technological disruption, there is nothing stopping us to rejig these laws to accommodate novelty inspired by technology. We just have to adopt what is possible, contextualize it and explore its offerings.


    It is time to implement a robust regulatory and legal framework which encompasses the heath tech segment. An upheaval in the regulatory framework of the Nigerian Health sector is needed more than ever. Paying attention to frameworks that have been tried and tested in other jurisdictions, a model best suited for Nigeria which will encourage innovation without compromising the safety and quality standards is what we require to move forward.

     

    Written By: Beverley Agbakoba-Onyejianya (Head, Regulatory & Compliance) & Olaseni Aka-Bashorun (Associate)

    This article was written as part of the TechCabal health tech content series.