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ADMISSIBILITY OF ELECTRONIC EVIDENCE- THINGS TO LOOK OUT FOR

Today, everyday transactions are conducted on electronic platforms. The advent of technological development and the consequent evolution of paperless transactions have permeated every sphere of life, and the legal system is no exception: in the event of disputes involving transactions conducted through electronic means, parties are bound to rely on electronic evidence of such transactions. The recent amendment of the Evidence Act in 2011 was intended to provide for the use of such electronic evidence in court proceedings[1]. Before the amendment, the admissibility of electronic evidence in court proceedings had been controversial due to the absence of specific provisions in the previous act, even in light of Supreme Court decisions in Esso WA v Oyegbola[2] and similar cases in which it held that computer printouts were admissible[3]. The word ‘electronic’ simplicita means data (comprising the output of analogue devices or data in digital format) that is created, manipulated, stored or communicated by any device, computer or computer system or transmitted over a communication system that is relevant to the process of adjudication[4]. It includes but not limited to e-mails, text documents, spread sheets, images and graphics, database files, deleted files, and data back-ups. Electronic evidence may be located on floppy disks, zip disks, hard drives, tape drives, CD-ROMs or DVDs, as well as portable electronic devices such as PDAs, cellular phones microfilms, pen recorders, faxes etc. Furthermore, the Evidence Act[5] defines the word computer to mean any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process. In admitting an electronic document or device in evidence, the Supreme Court in Kubor v Dickson (1969) NMLR 194, held that “A party that seeks to tender in evidence computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under section 84(2) of the Evidence Act 2011.” The Supreme Court decision underscores two key points. First, it recognizes and endorses the use of electronic evidence in Nigeria. Second, it reiterates the conditions for the admissibility of electronic evidence. In determining the admissibility of electronic evidence in Kubor v Dickson (supra), the court looked beyond the general conditions for admissibility of evidence in civil and criminal trials, referring to Section 84 of the Evidence Act. Section 84(1) provides that in any proceedings, a statement contained in a document produced by a computer is admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Section 84(2) of the Evidence Act are satisfied. Stated more simply, the four conditions for admissibility of computer-generated evidence under Section 84(2) of the Evidence Act are as follows: That the statement sought to be tendered was produced by the computer during a period when it was in regular use; That during that period of regular use, information of the kind contained in the document or statement was supplied to the computer; That the computer was operating properly during that period of regular use; and That information contained in the statement was supplied to the computer in the ordinary course of its normal use. Further, Section 84(4) requires that the party which seeks to tender a computer-generated statement or document shall file a certificate: identifying the document or statement; describing the manner of its production; stating the specifications of the device used in the production of the document; and signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities. The definition of 'document' in Section 258(1) (d) includes "any device by means of which information is recorded, stored or retrievable including computer output". Section 258 also defines a computer to mean "any device for storing and processing information". This definition appears to be wide enough to cover all handheld phones, tablets, portable music devices, automatic teller machines (ATMs) and other electronic devices that store, process and retrieve information[6]. Under these provisions, the following forms of evidence should no longer present difficulty when tendered in court once the stipulated conditions are met: statements from telecommunications companies showing records of call logs and text messages; receipts of cash withdrawals and other transactions from ATMs; internet banking records; and records of online product purchases and bill payments (eg, utility bills and flight bookings). It should be fairly easy under the provisions to deal with admissibility of evidence in cases involving libel, plagiarism and piracy committed on the Internet. However, it remains to be seen whether the provisions are sufficient to deal with issues such as authorship of online defamatory material – and specifically the question of whether the printout of the alleged defamatory material or the computer-saved file copy constitutes the original evidence. Nonetheless, with these extensive provisions, controversies about the admissibility of computer-generated evidence will be largely reduced. The Supreme Court decision will doubtless increase the confidence of the international business community in the ability of the Nigerian legal system to deal with legal issues arising from commercial transactions conducted via electronic technology. However, more must still be done to develop the practice of the courts in respect of these provisions. There is a wealth of judicial decisions from foreign jurisdictions on various aspects of electronic evidence which will persuasively assist Nigerian courts, given the novelty of these provisions in Nigerian law. However, advances in computer technology have also created greater opportunities for fraud and forgery (e.g., email hacking, identity theft and photograph manipulation), so the courts must be cautious in admitting electronic evidence. Notwithstanding the laudable provisions of the law therefore, extreme circumspection and acute vigilance must still be the keywords for courts in this area of evidence. A laudable provision which will help courts greatly is to be found in Sections 34(1)(b)(i) and (ii), prescribing guidelines for the courts to follow in estimating the weight to be attached to computer-generated statements, even when they have been admitted. [1] Cap E14, LFN 2011.
[2] (1969) NMLR 194
[3] (1969) NMLR 194. See also Yesufu v ACB (1976) 4 SC 1 at 9-14; Anyaebosi v RT Brisco (1987) 3 NWLR (Pt 59) 84; Oguma Associates Co v IBWA (1988) 1 NSCC 395; Trade Bank v Chami (2003) 13 NWLR (Pt 836) 158; Oghoyone v Oghoyone (2010) 3 NWLR (Pt 1182) 564; FRN v Fani-Kayode (2010) 14 NWLR (Pt 1214) 481; Continental v R Shipping [2013] 4 NWLR (Pt 1343) 67; and Lufthansa v William Ballnyne (2012).
[4] Mason, S., (2007) Sources of digital evidence. In Mason, S. (Ed) Electronic Evidence: Disclosure, Discovery and Admissibility (1st ed.). Butterworth .
[5] See section 258 (1) of the Evidence Act 2011, Cap E 14.
[6] Kubor v Dickson: Admissibility of Electronic Evidence;
<https://www.lexology.com/library/detail.aspx?g=f16ede4c-f04a-40a7-96c3-e6a4899f3cf0> accessed on 20th April, 2018.

COLLECTIVE BARGAINING IN NIGERIA (PART A)

Collective bargaining in Nigeria evolved through government intervention unlike other countries where the concept evolved from the private industrial sector. The term ‘collective bargaining’ is made up of two words; ‘collective’ which means a group action through representation and ‘bargaining’ on the other hand means negotiating and it involves proposal and counter-offers. Thus, collective bargaining means group negotiations between the employer and the employee on issues relating to their work situation. Government, in its capacity as government, had long accepted the concept of collective bargaining as the best way of settling terms and conditions of employment. Collective bargaining and collective agreement have been the product of government interventionist actions since the 1960s, which was affirmed by the government in 1963. Beyond this, Nigeria has had a plethora of legislations and statutes bordering on collective bargaining. They include; Trade Dispute Act, 2004; Trade Dispute (Essential Services) Act, 2005; The Labour Act, 2004 and the Trade Unions Act. The term collective bargaining is applied to those arrangements under which wages and conditions of employment are settled by bargain. It is in form of an agreement made between employers or associations of employers and workers’ organizations. Collective bargaining is the process whereby the union and the employer negotiate a contract of employment that binds both sides. Unions are represented by negotiators of their own choosing. The company is typically represented by its management or its lawyers. Pay and fringe benefit are the most commonly negotiated issues. However, grievance procedures, hours, overtime, pension, healthcare, working conditions, and safety issues are also frequently negotiated. An employer is not required to bargain over issues such as; product prices or designs, plant location, or quality of products. These are strictly management matters even though they do affect the company's ability to pay wages. Collective Agreement is where parties to collective bargaining reach an agreement. Three copies of the collective agreement must be deposited with the Minister of Labour and Productivity within 14 days of reaching the agreement. However, failure to do so only attracts a fine of N100 upon conviction. The minister is empowered to make an order specifying that the provisions of the agreement or any part of it be binding on the employers and employees to whom they relate. Failure to comply with such binding order is an offence punishable, on conviction with a fine of N100 or imprisonment for six months. 1. It is a group action 2. It is a continuous process: Collective bargaining is a continuous process and does not end with one agreement. It provides a mechanism for continuing and organized relationship between management and trade union. It is a process that goes on for 365 days of the year. 3. It is a bipartite process: Collective bargaining is a two party process. Both the parties; employers and employees collectively take some actions. There is no intervention of any third party. It is mutual give and take rather than take-it-or-leave-it method of arriving at the settlement of a dispute. 4. It is an Art, not a Science. It is an advanced form of human relations. 5. It is a complementary and not a competitive process 6. It is an industrial democracy at Work: It is not a mere sitting around the table discussing grievances. Industrial democracy is where the labour union represents the workers in negotiation with the employer(s). Basically, it is the democratic joint formulation of “company policy” on all matters that directly affect the worker. Collective bargaining is self- government in operation. 7. Collective Bargaining is Dynamic: It is relatively a new concept, and is growing, expanding and changing. In the past, it used to be emotional, turbulent and sentimental, but now it is scientific, factual and systematic. 8. Modern Collective Bargaining is largely factual: bargaining today is based first of all upon facts. Both union and management have within their organisation or at their disposal experts on various phases of bargaining information. These may include accountants, economists, statisticians, lawyers and research personnel, who collect, interpret and analyze data and put them into the form most useful for bargaining purpose. 9. Itis flexible and mobile; it is not fixed or static: There is no hard and fast rule for reaching an agreement. There is ample scope for compromise. A spirit of give-and-take works unless final agreement acceptable to both the parties is reached. The issues discussed in collective negotiations and included in collective agreements are known as the subject-matter of collective bargaining. Management representatives seek to define and limit the scope of collective bargaining in concrete terms. They want to draw a line between management functions or management rights and matters properly amenable to joint decision making. Union representatives on the other hand, have been arguing that collective bargaining must remain a fluid, and dynamic process. They contend that it is not only unwise but also in fact impossible to limit the scope of collective bargaining. For analytical purposes, we can examine the nature of negotiable and non-negotiable issues under three distinct categories viz; (1) Mandatory or negotiable issues; (2) Voluntary or discussion issues; and (3) Managerial issues. Issues that have become mandatory for negotiation include: Wages and salaries, pension and gratuity; hour of Work, disciplinary procedure, sick leave, annual cash payment, out of station allowance, extra duty allowance, shift and night allowance and car/motto-cycle award. Others include, leave allowance, overtime rates, annual leave, transport allowance, transfer leave, maternity leave, housing allowance, transport facilities, redundancy (principle), long service award and acting allowance. These are both middle-range issues which are neither mandatory nor exclusive to management, but upon which both parties can discuss. More importantly, neither party can compel the other either to negotiate or implement whatever decisions are reached at the discussion. The numbers of issues in this category are generally few. They are; shift work, long service awards, housing scheme, year-end gifts, medical scheme, and death benefit, payment for union officials during union meetings, car loans and pension scheme. These are those issues on which management exercise full control in decision-making. While most procedural agreements recognize managerial exclusive right, the specific issues are usually not stated.

TOOLS OF MONETARY MANAGEMENT AND CONTROL OF BANKS

A Bank is an establishment authorized by a government to accept deposits, pays interest, clear checks, make loans, act as intermediary in financial transaction, and provide other financial services to its customers. If a nation’s economy were a human body, then its heart would be the central bank. And just as the heart works to pump life-giving blood throughout the body, the central bank pumps money into the economy to keep it healthy and growing. Sometimes economies need less money, and sometimes they need more. A central bank is an entity responsible for overseeing the monetary system and policy of a nation or group of nations, regulating its money supply and interest rates. Central banks have three main monetary policy tools: open market operations, the discount rate, and the reserve requirement. Most central banks also have a lot more tools at their disposal. Here are the three primary tools and how they work together to sustain healthy economic growth. Open Market Operations Open market operations are when central banks buy or sell securities. These are bought from or sold to the country's private banks. When the central bank buys securities, it adds cash to the banks' reserves. That gives them more money to lend. When the central bank sells the securities, it places them on the banks' balance sheets and reduces its cash holdings. The bank now has less to lend. A central bank buys securities when it wants expansionary monetary policy. It sells them when it executes contractible monetary policy. Reserve Requirement The reserve requirement refers to the money banks must keep on hand overnight. They can either keep the reserve in their vaults or at the central bank. A low reserve requirement allows banks to lend more of their deposits. It's expansionary because it creates credit. A high reserve requirement is contractionary. It gives banks less money to loan. It's especially hard for small banks since they don't have as much to lend in the first place. That's why most central banks don't impose a reserve requirement on small banks. Central banks rarely change the reserve requirement because it's expensive and disruptive for member banks to modify their procedures. Discount Rate The discount rate is the third tool. It's the rate that central banks charge its members to borrow at its discount window. Since the rate is high, banks only use this if they can't borrow funds from other banks. There is also a stigma attached. The financial community assumes that any bank that uses the discount window is in trouble. Only a desperate bank that's been rejected by others would use the discount window. Central banks are more likely to adjust the targeted lending rate. It achieves the same result as changing the reserve requirement with less disruption. The fed funds rate is perhaps the most well-known of these tools. Here's how it works. If a bank can't meet the reserve requirement, it borrows from another bank that has excess cash. The interest rate it pays is the fed funds rate. The amount it borrows is called the fed funds. The Federal Open Market Committee sets a target for the fed funds rate at its meetings.

THE VITIATING ELEMENTS OF CONTRACT

A contract can be defined as ‘a promise or set of promises which the law will enforce. The agreement/contract, creates rights and obligations that may be enforced principally through the instrumentality of the courts however there are situations where the parties have reached an agreement but the questions arises whether the existence or non-existence of some facts, or the occurrence or the non-occurrence of some event, destroy the basis upon which that agreement is discharged or in some other way vitiated. A ‘vitiating element of contract’ is the technical term for the things which make a contract void/voidable or unenforceable or nonexistent. Vitiating elements of contract such as mistake, duress, misrepresentation, undue influence and illegality, are determinants of the validity of a contract. They are the various factors which can affect the validity of a contract once it has been formed. The implication of which is that the validity of a contract is normally unquestioned when vitiating elements are absent. Let’s briefly look at some of the examples. MISTAKE Mistakes can be split into those mistakes which nullify the agreement (common mistake) and those which negate the agreement (mutual mistake) Common mistake: Common mistake occurs when both parties make the same mistake. If this happens the court is likely to hold that the contract void from its inception and thereby rescind the contract. However, the court must be satisfied that the mistake was sufficiently fundamental to the contract in order to render it void at common law. Therefore, if the mistake is only a minor one then the contract will still be enforceable as this would not have affected the contract per se. As such, in order for a party to establish that there has been a mistake they must be satisfied that the mistake was fundamental to them, entering into the contractual relations with the other party. Mutual mistake: Mutual mistake occurs when the parties misunderstood each other. In such circumstances the contract would be rendered void at common law. However, if the mistake does not relate to an important part of the contract the court may be willing to disregard the mistaken term and uphold the remainder of the contract. Accordingly, where this type of mistake occurs the parties must be able to show that they were both mistaken in relation to the particular fact or law, and that it was an integral part of the contract, which again induced them to enter into it. Unilateral mistake: as the name implies only one party is mistaken while the other party knows of or deemed to know of the mistake. The mistake must be related to the terms of the contract and the court will adopt a subjective approach when deciding whether or not to set aside the contract. It is for the innocent party to show the effect of the mistake upon his mind with a view to avoiding the obligations he has taken on under the contract. DURESS Clearly, a person cannot be said to have consented to a proposal if such consent was obtained by threats or undue persuasion. Duress at common law is confined to cases of actual violence or threat of violence to the person. Hence if a party is pushed into agreement by threat of physical assault on his person, or on his spouse or near relatives, the agreement becomes voidable. Duress renders a contract voidable as opposed to void and the party subject to the duress can rescind the contract unless there has been some affirmation of the contract after the duress has been lifted. Overall, there are certain factors that will render a contract void or voidable based upon the circumstances of the case. If a contract is void then it cannot be enforced by either of the parties, whereas if a contract is rendered voidable then although it is a valid contract, it can, in fact, be cancelled. Essentially, whilst a void contract cannot be performed, a voidable contract can be until either of the parties decides to cancel it. If there has been a misrepresentation or a mistake the contract may be rendered void and therefore be rescinded. If duress or undue influence has occurred, then the contract may be rendered voidable and thereby capable of being cancelled.

THE SCOPE AND CONCEPT OF HIRE PURCHASE

Hire purchase system is unknown to customary law. This is not surprising as the goods which normally attract this form of agreement were unknown to customary law, viz. Piano, radios, television sets, sewing machines, etc. The hire purchase devices immigrated into the Nigerian Legal system when the need for secured financing of these consumer goods arose. Agreeing to purchase goods in installments over a period of time is the foundation of hire purchase. The need for the installment buying of passenger cars and lorries and other commercial vehicles was realized when it was discovered that the full purchase price of any of these goods could be applied through the system of hire purchase, in obtaining possession and use of more than one of them for making profit. The interpretation Act, section12 has defined hire-purchase to mean the bailment of goods in pursuance of an agreement under which the bailee may buy the goods or under which the property in the goods will or may pass to the bailee. Also hire-purchase comprises agreement for the delivery of goods under which the recipient pays a small deposit to the owner of the goods while promising to pay certain sums as installments, usually each month, in consideration of being granted possession and use of the goods and an option to purchase them after a stipulated period having paid stipulated total sum. In an ordinary contract of hire the owner of the subject matter of the contract transfers possession to the hirer in return for periodical payment. According to common law, the hire-purchase transactions is a contract whereby the owner lets out goods on hire and agrees that on completion of the necessary payments , the hirer may either return the goods and terminate the contract or elect to but the goods. In other words, the hirer is given an option to purchase at the end of the duration of hire. They may decline to accept this option if he so chooses. Furthermore, in every hire-purchase agreement, the hirer cannot sell the goods under hire. This is because the hirer is not the owner of the goods and as such, he cannot pass a good title to the third parties. If he sells the goods, he may be liable to the owner for conversion. Thus the aim is that the hirer is not to buy but to use it; A hire purchase agreement on the other hand is a contract of hire coupled with an option to purchase. As a commercial transaction, a hire-purchase contract has its distinguishing features which mark it out from other commercial transactions. These features include the following: a. It is a contract between the owner of the goods and the hirer, which by law must be in writing. b. There is a bailment relationship between the owner of the goods and the hirer in which the owner is the bailor and the hirer is the bailee. c. The object of a hire-purchase is to ensure the property in the goods let on hire remains in the owner even though the owner parts with possession. From the inception of the transaction to the time the hirer exercises his option to purchase, the property in the goods remains in the owner. The hirer only gains property when and if he exercises his option to purchase the goods under the contract. Consequently, the hirer will be unable to pass good title to a third party, unless a bona fide purchaser for value without notice, during the continuance of the bailment. The hire purchase agreement confers on the hirer an option to purchase the goods or return same during the continuance of the contract. d. The hirer has the inalienable right to determine the agreement and return the goods to the owner. Any provision in the agreement which excludes or restricts this right is void and unenforceable. e. The hirer may elect to return the goods, or purchase them at the end of the transaction. This is known as the option to purchase which essentially distinguishes hire-purchase transactions from other forms of commercial transactions. In conclusion, irrespective of this and other advantage of the system, its development reminded slow and its expansion hampered for some time in Nigeria. There are two reasons for this. In the first place, the unscrupulous business practices of some hire purchaser traders made the system unattractive to customers. Secondly, traditional attitude to sale of goods transaction militated against the development of hire purchase as a method of selling goods. Once a Nigerian customer obtains possession of goods by paying, he automatically regards himself as the owner. Any agreement to the contrary will be favored. With the continuing education of the society, coupled with the protection afforded to customers of goods under Hire purchase agreement by the Hire purchase legislation, the advantages of the system have been grasped and the system fully received.

THE RIGHT AN AGENT

An agent is a person who acts in the name of and on behalf of another, having been given and assumed some degree of authority to do so. Most organized human activity—and virtually all commercial activity is carried on through agency. No corporation would be possible, even in theory, without such a concept. We might say “General Motors is building cars in China,” for example, but we can’t shake hands with General Motors. “The General,” as people say, exists and works through agents. Likewise, partnerships and other business organizations rely extensively on agents to conduct their business. Indeed, it is not an exaggeration to say that agency is the cornerstone of enterprise organization. In a partnership each partner is a general agent, while under corporation law the officers and all employees are agents of the corporation. Agency law established that the principal has several duties to the agent, most can be modified or eliminated by agreement between the parties. On the due performance of his duty the agent is entitled to his rights under the contract of agency provided he commits no breach of his/ her duty or contractual terms of the agreement denying him of her of such rights; Right to indemnify: unless expressly excluded by contract, an agent has a right to indemnity while acting for the principal, the agent may incur certain liabilities/costs or responsibilities or make payment on behalf of the principal. In such circumstances the agent will be entitled by Common Law principle to be indemnified against such liabilities or to recover any amounts so paid. Indemnity cannot be claimed for an illegal act unless the agent was unware of the illegality or was misled by the principal as to the nature of the transaction. Right to lien: A lien is a legal right that a creditor has to retain the goods of a debtor as security for the performance of an obligation. This is also available to an agent in respect of the principal’s goods in his possession until his claim are met. It is only a possessory lien which confers no right to sell. Right to remuneration; whether it is by commission, a fee, or, a share of profit or proceeds, it is the primary duty of the principal to pay remuneration for services rendered by the agent. But the right of the agent to remuneration depends upon agreement express or implied. Clearly, a gratuitous agent has no right to remuneration. Payment is also implied where there is no concluded contract on it. However, benefit is the key note to remuneration on quantum meruit so that where the principal derived no advantage from the agent’s services no sum will be payable.

THE RESPECTIVE RIGHTS OF THE HIRER AND THE OWNER

In a contract of hirer purchase, the different parties have obligations to each other. Most of these obligations are stated under statutory provisions, while some are embodied in the common law which is case law developed from the decisions of Judges. Obligations of the Owner (a) Duty to Make Delivery of the Goods or Chattel This duty is trite because it is the responsibility of the owner of the chattel or goods to deliver them to the hirer, failing which the hirer may repudiate the contract. This is so because a hire purchase agreement takes effect upon acceptance of delivery by the hirer. Delivery here is constituted by the voluntary transfer of the possession from person to another . This may be done ordinarily by the physical transfer of the goods to the hirer or agent or by the giving of the hirer the possession of the goods (example giving the key of the motor car, the subject matter of the hirer) or in a situation where the goods are in the possession of a third party, by the acknowledgement by the third party that he holds the goods on behalf of the hirer. b) Obligation implied in the contract: in addition to the above duty or obligation, there are some conditions implied in the contract. The first obvious condition is that the owner should possess a good title to the goods. If his title is successfully impeached, it will amount to a total of consideration as between the purported owner and the hirer, entering the later to clam back all he had paid as damages. In addition, there is an implied warranty of quite enjoyment; therefore, if the owner willfully interferes with the hirer’s possession, the hirer can sue. Another condition implied in a hire purchase contract at common law is fitness of the goods for the purpose for which they were hired. The goods must be of merchantable quality and they must t the purpose for which they were hired. However, if there is any defect in the property, it should be something that the owner can easily discern. c) Description of the Goods: The owner of the goods must ensure that the goods are delivered according to the buyer’s description. Also, the goods must fit their description. Obligations of the Hirer a) Duty to take delivery of the goods. The first obligations to be borne by the hirer is the duty delivery of the chattel and this duty is to be exercised within a reasonable time. Accordingly, if the hirer refuses or neglect to take delivery, any loss arising from such refusal or neglect and such expenses that may be reasonably made for the care and custody of the goods will be payable by the hirer. As a general rule, delivery takes place at the owners’ premises or place of business or such other agreed place. This is because without delivery the hire-purchase agreement does not commence. b) Duty to pay punctually. It is also the duty of the hirer to pay punctually the various sums provided for in the agreement in accordance with the provision of the agreement .The payment of the initial deposit and the rentals, that is to say the installment or periodic payment are compulsory or mandatory and must be complied with strictly. c) Duty that relates to custody and care of goods. The hirer also has a duty to use the goods for the purpose for which they are hired. For instance, a transport lorry cannot be used as if it is a tipper lorry. Thus, if the goods are used for a different purpose other than that which they were hired and sustains damages whether there hired and sustain damages whether there is negligence or not, the hirer will be liable. The hirer must provide for the safe custody of the goods, it is strict liability obligation and accordingly negligence cannot be pleaded. To safeguard this problem, most hire-purchase agreement do provide for place or places where the chattel/goods are to be kept and also the use to which the goods may be put, so that a breach of that stipulation will entitled the owner to an action for damages against the hirer on the know once there is a breach of terms. d) Duty to re-deliver the goods to the owner: the hirer is under obligation to re-deliver the goods, the subject matter of the hirer, to the owner at the end of the hiring, where there is no option to purchase the subject matter of the agreement. His duty in this regard is to ensure that the owner is not prevented from getting back the goods and not to take positive step for actual re-delivery of the goods to the owner.

THE REQUIREMENTS FOR PATENT-ABILITY

A Patent is an invention granted by government to the inventor, giving the inventor the right to stop others, for a limited period, from making, using or selling the invention without their permission. When patent protection is granted the invention becomes the property of the inventor, which like any other form of property or business asset can be bought, sold, rented or hired. Patents are territorial rights; a properly operated patent system serves as a tool for ensuring justice to an inventor of a new and useful product to reward his intellectual effort. it gives the inventor a reasonable opportunity to enjoy the exploitation of the invention, free of the hindrance of copiers and imitators. All patents are made up of inventions, which may consist of products or processes. However, not all inventions can be the subject-matter of valid patents. To be patent-able your invention must: Be new, never been made public in any ways, anywhere in the world, before the date on which the application for a patent is filed. Involve an inventive step - if when compared with what is already known, it would not be obvious to someone with good knowledge and experience of the subject. Be capable of industrial application - an invention must be capable of being made or used in some kind of industry. This means that the invention must new material or an industrial process or method of operation. Patents can validly be obtained in respect of improvements to existing inventions. The improvement must be a mere cosmetic adjustment or a minor alteration but must be such as to render the product or process better or more efficient than it was before. An invention is not patent if it is: A discovery A scientific theory or mathematical method An aesthetic creation, literary, dramatic or artistic work A scheme or method for performing a mental act, playing a game or doing business The presentation of information or a computer program In addition, it is not possible to get a patent for plant variety, a method of treatment of the human or animal body by surgery or therapy or a method of diagnosis. Also, patents cannot be obtained for inventions which are contrary to public order or morality, Hence, where the publication of the product will offend the moral senses of reasonably decent members of society; or where the use to which it will applied is immoral, illicit or indecent and therefore contrary to public interest, the invention will be held to be non-patent-able. In conclusion One must proceed with caution: the one-year rule applies to everyone, including the original inventor. For example, if you publish your invention in a magazine or begin selling it, you must file a patent application within one year from the date it was published or first sold. Otherwise, no one (not even the inventor) will be able to obtain a patent for the invention. On the other hand, if you disclose the invention and someone else tries to patent it within one year of your disclosure, your disclosure will stop that applicant from receiving a patent, since your disclosure acts as prior art.

THE NEED FOR BUILDING PERMITS IN NIGERIA

Building permits is an official approval to proceed with a construction project. It is also intended to ensure that the project plans comply with local standards for land use, zoning and construction. These standards are intended to ensure the safety of current and future owners and occupants. Building permits are documents which specify whether the land on which the project is to be sited is already marked by government for a would-be-project or an area reserved as pipeline route. In the event of omitting to obtain this permit, you are sure to lose the land no matter how much you paid for it. Before you commence building, you are legally required to obtain a development permit. Once this is obtained, it is considered as an approval for you to begin construction work on your site. In cases of individuals and organizations buying existing property and demolishing it to erect a new building, a permit is also required. In Nigeria, building is governed by lots of regulations such as; Federal Republic of Nigeria Scheme of service, Building Regulations 2005, Lagos State Urban and Regional Planning & Development Law 2010, Town Planner (Registration, ETC) CAP 17 LFN 2004, Town Planning (Constitution of NITP) March 2004, Architect (Registration, ETC) Act 2004, Engineer (Registration, ETC) Act 2010, and the National Building Code of Nigeria 2006. A building code is a collection of Laws, Regulations and Ordinances or other statutory requirement adopted by government or legislative authority, involved with the physical structure and welfare of building occupants. Building codes embraces all aspects of building construction including; fire and life safety issues, structural designs, security, mechanical, electrical and plumbing systems and energy conservation/accessibility. The following are the statutory agencies which set out minimum requirements for design construction and maintenance of buildings in Lagos. 1) LAGOS STATE PHYSICAL PLANNING PERMIT AUTHORITY (LASPPPA): It was established by Lagos State Urban and Regional Planning and Development Law 2010 as one of the Agencies/Parastatals under the Ministry of Physical Planning and Urban Development (MPP&UD). LASPPPPA Agency is in charge of processing and issuance of all planning permits in Lagos State. To obtain this permit, a building development plan portraying the intended uses and the proposed development on the site and the effect on adjacent developments and neighborhood must be prepared by a professional. 2) LAGOS STATE BUILDING AGENCY(LASBCA): Came into existence on August 12, 2012, and it was established to provide services in construction development and approval, issuance of building construction certificate, building registration and lots more. It must however be noted that LASBCA does not give permit. 3) LAGOS STATE URBAN RENEWAL AGENCY (LASURA): Was established through Edit No. 7 of 1991 LASRA is one of the parastatals under the Lagos State Ministry of Physical Planning and Urban Development. The Agency is saddled with the responsibility of implementing the state policy on urban renewal and upgrading of slums (Blighted communities) in the state. BENEFITS OF OBTAINING BUILDING PERMIT 1) It avoids unnecessary interruptions or halting of construction project by government officials. 2) Starting a construction project without obtaining a permit would attract a heavy fine or result in a building being demolished and the land taken over. 3) It allows government to create better and balanced environment for people to live, work, play, pray, recreate and move around with utmost ease. 4) It ensures developers work with registered personnel on site (Engineers, Architects, Surveyors, Builders, etc.) so as to avoid distressed, illegal and non-conforming buildings. 5) To ensure that builders comply with building rules. 6) To ensure that building project is safe to build, use & maintain and offer good value. 7) To ensure that structures get built in the right place. 8) It helps to balance the development between homes, factories, offices, schools, places of worship, health facilities, and transportation routes. 9) It also reduces the incidence of collapsed buildings due to not compliance with the building code. PROCEDURES FOR GETTING BUILDING PLAN APPROVAL IN LAGOS STATE As earlier stated, the Lagos State Physical Planning Permit Authority (LASPPPA) is in charge of Development Permit in Lagos State. Your land must have a certificate of occupancy (C of O) before your building can be assessed by the appropriate authorities. The following are the processes of successfully obtaining building approval; STEP ONE: GET ARCHITECTURAL DRAWINGS, BUILDING PLAN AND SURVEY PLAN: Contact a certified architect that is aware of Lagos State building plan approval peculiarities to prepare a design and plan for you. STEP TWO: GET A DEMAND NOTICE FROM THE DISTRICT OFFICE AND MAKE PAYMENT: Send your architectural drawings, buildings, building plan, title documents and survey plan to the district office for assessment and vetting after which it will be marked for approval. After getting an official government assessment and endorsement of your design, you will be required to pay a fee which is calculated based on your proposed design. Pay the fee, carefully read and follow the instructions on the payment advice. STEP THREE: CONFIRMATION OF RECEIPT AT THE ACCOUNT DEPARTMENT OF THE DISTRICT OFFICE: The accountant at the Physical Planning office will log on to LASG system to confirm your payment. STEP FOUR: INSPECTION BY THE DISTRICT OFFICE: A team from the District office will inspect your site to be sure that your land and other attributes of the building correspond to what you have in the documents you presented. The site inspector, charting officer, Architect and site Engineer will write their reports. A difference in land size or other attributes could lead to problems. STEP FIVE: SUBMISSION OF DOCUMENTS: The under listed are the requirements for obtaining a building approval; 1) Proof of land ownership such as duly executed Deeds, Purchase Receipt with stamp duty and other Statutory Documents. 2) Survey Plan 3) Five (5) sets of Architectural Drawings 4) Five (5) sets of Structural Drawings 5) Five (5) sets of Mechanical Drawings (commercial building) 6) Five (5) sets of Electrical Drawings (commercial building) 7) Tax Clearance 8) Planning Technical Report (where necessary) 9) Where necessary clearance letter from i) Land Use and allocation committee ii) New Town Development Authority (NTDA) iii) Ministry of Environment (Drainage Department) iv) Ministry of Transportation (Metro Alignment/Traffic Report) 10) Photocopy of payment of assessment fee. WHO GRANTS PLANNING PERMIT? The District officer of the District Town Planning Offices grants permits within their areas of jurisdiction with (in most cases) clearance from and concurrence of the General Manager, Hon. Commissioner for MPP&UD and His Excellency, the State Government where necessary. VALIDITY PERIOD FOR PERMIT A Planning Permit shall become invalid where development has not commenced within two years of the grant of such permit and shall be subject to revalidation upon payment of prescribed fees provided it is still consistent with the operative development plan as provided for in the Lagos state Urban and Regional Planning and Development Law (2010). You cannot build a house legally without a Building Permit. Before you build a house, ensure you follow the due process spelt out by the Lagos State Building Control Agency to avoid coming down on the wrong side of the law.

THE NATURE AND SCOPE OF COPYRIGHT LAW.

Copyright is an aspect of Law of Intellectual Property. Like law on patents, Trademarks, Designs, Plants and Animals variety etc. copyright seeks to rewards, encourage and promote creativity, innovation and entrepreneurship by granting certain person the rights to prevent others from copying their creations or ride unjustly on their goodwill. Copyright is perhaps the most pervasive of all intellectual Property Rights, permeating everyday life. From the newspapers, novels and books we read, the photos, pictures, music and data we share on our social media, from the musical ringtones on telephone, from the maps that direct us to our sporting activities to the film in the cinema, on television or on the internet, all are susceptible to copyright protection. Copy right means: “ the right to produce or reproduce the work or any substantial part thereof in any materials from whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in the public, or any substantial part thereof; and shall include the sole (a) to produce, reproduce, perform or publish any translation of work; (b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work; (c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise; (d) in the case of a literary, dramatic or musical work, to make record, perforated roll, cinematographic film, or other contrivance by means of which the work may be mechanically performed or delivered, and to authorized any such acts as aforesaid.” The primary objective of copyright law is to ensure that those who create knowledge are adequately rewarded especially economically. Adequate reward not only encourages a creator to be more productive but also motivates others to venture into creativity. In that way copyright law is able to achieve the advancement and culture and civilization. There are six categories of works which are eligible for copyright. These are Literary, musical or artistic works, cinematograph films, sound recording and broadcasts.Copyright laws often protect performers of certain literary and musical works and empower authors to restrain third parties from making false claim of authorship.Under copyright law, a work is considered original if the author created it from independent thinking void of duplication. This type of work is known as Original Work of Authorship (OWA). Anyone with an original work of authorship automatically has the copyright to that work, preventing anyone else from using or replicating it. The copyright can be registered voluntarily by the original owner if he or she would like to get an upper hand in the legal system if the need arises.The copyright in a literary, musical or artistic work other than photograph subsists for the period of the life-time of the author and seventy years after the end of the year in which the author dies. In conclusion, not all types of work can be copyrighted though. A copyright does not protect ideas, discoveries, concepts and theories. Brand names, logos, slogans, domain names and titles also cannot be protected under copyright law. For an original work to fall under creation, it has to be in tangible form. This means that any speech, discoveries, musical scores or ideas have to be written down in physical form in order to be protected by copyright.

THE LEGAL IMPLICATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY

Copyright infringement can be defined in numerous ways, some of which include piracy, theft and free booting. Infringement of copyright basically means copying, reproducing or using any content or work which has copyright in it by an unauthorized person, who is not the owner of such work without having requisite permits or licenses. One of the ways by which copyright may be infringed is by a person doing or causing another to do any of the acts which are within the exclusive right of control of the copyright owner without his license or authorization. For instance, in the case of literary or musical work, that a copyright owner has the exclusive right to control, inter alia, the following acts – to reproduce the work in any material form, publish the work, perform the work in public, make a cinematography film or a record of the work or make an adaptation of the work. Therefore to do or cause another to do any of these acts, without the license or authorization of the copyright owner amounts to an infringement. It is clear that a person infringes not only where he does any of these acts himself but also where he causes another to do act. There is infringement not only where there is reproduction of the whole of a work but also where a substantial part of the work is reproduced. However, apart from infringement by the doing, or causing another to do, any of the acts within the exclusive right of control of the copyright owner without his license or authorization there are other ways by which infringement may be committed , which are; (i) imports or causes to be imported into Nigeria would be an infringement any copy of a work which, if it had been made in Nigeria would be an infringed copy; (ii) exhibit in public any article in respect of which copyright is infringed, (iii) distributes by way of trade, offers for sale, hirer or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed; (iv) makes or has in his possession plates, master tapes, machines, equipment or contrivances used for the purpose of making infringing copies of the work; etc. An infringement is actionable at the suit, and only at the suit, of an owner, assignee or exclusive licensee of the copyright infringed in the Federal High Court exercising jurisdiction in the place where the infringement took place. In an action for infringement all such relief by way of damages, injunction, accounts or otherwise is available to the plaintiff in any corresponding proceeding in respect of infringement of other proprietary rights. It is submitted that for an infringement claim to be successful, it must pass a four tier test, the plaintiff must: a. establish the subsistence of a right allegedly infringed, b. show that he is the owner or exclusive licensee or assignee of the right allegedly infringed and c. show that the act done by the defendant is an act prohibited by the Act and d. show that the defendant needed his permission to do the act, but failed to obtain his permission or that he went beyond the permission granted.

DUTIES OF AN AGENT

Since most agency relationship are established by contract, the agent’s duties and obligation are largely defined by the terms of the contract but additional duties are established by agency law, unless the contract specifically excludes or modifies them. These duties arise from the trust and confidence that forms the foundation of an agency relationship and are termed fiduciary duties. The status of agency result in a number of duties and obligations between the principal and the agent. Such duties and obligation are normally spelt out in the agency agreement but they can also be implied into the agency agreement. Duties of an agent to his principal: (i) To obey or follow the principal’s instruction: provided they are lawful, the terms of the agent’s authority must be strictly pursued. He or she cannot deviate from positive instructions even if there was a reasonable belief that to do so might be beneficial to the principal. Whether the agent has obeyed the instructions will depend on interpretation of his or her authority. The agent is obligated to seek clarification when the principal’s instructions are ambiguous, unclear, or otherwise misleading. If because the agent’s instructions are ambiguous he or she does an unauthorized act, he or she will be protected provided it is shown that the agent acted reasonably and in good faith. (ii) Duty to Exercise Reasonable Diligence, Care and Skill: The standard of care that an agent must exercise in acting for his principal is that which is normally expected of a person is engaged in such work. As long as the agent has acted with normal care and skill having regards to the nature of the transaction and has acted in a reasonable manner as would be expected from an agent employed in such undertaking, the agent will not be liable for negligence, even if the agent’s effort were unsuccessful. If an agent professes a calling he or she must demonstrate the care required of a reasonable member of that calling. (iii) The Agent must act in person and not delegate his duties: The principal in appointing an agent expects the agent to act personally and not through others. Accordingly, unless when appointing the agents, the principal had permitted a delegation of duties, it is a well-established rule of agency that an agent cannot delegate his duties to others, the rule delegate non potest delegare applies. It is based on the theory that agent is appointed on the basis of his own personal qualities or exclusive personal trust and confidence reposed in him. An agent is liable for breach of this duty and the principal cannot be bound by the act of the sub-agent. However there are exceptions to this general rule such as: a. Where there is an express or implied authority to delegate such as by professional or trade usage. b. Where the delegates is engaged in purely ministerial acts such as the signing of a letter or the giving of a notice c. Or where such acts requires no personal skills or confidence. Lastly if the delegation is ratified or approved by the principal, then it will be obliviously valid. Delegation, where it is permitted, does not create privity of contract between the principal and the sub-agent. The latter is the agent of his employer (iv) Duty not to divulge confidential information: To act in the principal’s interest necessarily implies that the agent is also under a duty of confidentiality. Not only must the agent not tell others of the principal’s business and affairs but he most not make use of such information for his personal benefit or interest. This duty of confidentiality (also called a duty of secrecy) is a well- known rule between the banker and his customer. A bank is the agent for its customer’s account to others. (v) Duty to Account; A fundamental rule of law of agency is that the agent must maintain proper accounts relating to his or her work as an agent. This impose a primary duty to keep proper account of the property and monies received on behalf of the principal.

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