Home Blog Page 1005

Hong Kong Postpones Elections For One Year Over COVID-19

Law & Society Magazine
-
0
Hong Kong Postpones Elections For One Year Over COVID-19

Hong Kong’s democracy supporters were dealt a huge blow Friday as authorities postponed local elections for a year because of the coronavirus, capping a devastating month of political disqualifications, arrests for social media posts and activists fleeing overseas.

The city’s democracy camp has come under sustained attack since Beijing imposed a sweeping national security law last month — a move China’s leaders described as a “sword” hanging over the head of its critics.

The ensuing weeks have sent a chill through a city used to speaking its mind and supposedly guaranteed certain freedoms and autonomy in a “One Country, Two Systems” deal agreed ahead of its 1997 handover from Britain.

On Friday evening chief executive Carrie Lam, a pro-Beijing appointee, announced that September elections for the financial hub’s legislature would be delayed for a year using emergency anti-virus powers.

She denied the move was a political decision to hobble the city’s opposition.

“I am only paying attention to the current pandemic situation,” she said.

Beijing welcomed the move as “necessary, reasonable and legal”.

But the decision infuriated democracy supporters who had warned against any move to delay the polls, accusing authorities of using the COVID-19 pandemic to avoid a drubbing at the ballot box.

“This is a sleazy, contemptible political act to help thwart any victory on the part of the democrats in the original election,” opposition lawmaker Claudia Mo told AFP, warning that public anger could explode.

The postponement came a day after a dozen prominent democracy activists were barred from standing for election because their political views were deemed unacceptable.

“Beyond any doubt (this) is the most scandalous election fraud era in Hong Kong history,” Joshua Wong, one of the city’s most recognisable democracy figures, told reporters Friday before the elections were postponed.

Wong was one of those disqualified, along with other young firebrand activists and some older, more moderate democracy campaigners.

Banned political views
Hong Kong is not a democracy — its leader is chosen by pro-Beijing committees.

But half of its legislature’s 70 seats are directly elected, offering the city’s 7.5 million residents a rare chance to have their voices heard at the ballot box.

Planning to capitalise on last year’s huge and often violent anti-Beijing protests, democracy activists had been hoping to win their first-ever majority in September.

But officials have begun scrubbing ballot lists of candidates.

Examples given by authorities of unacceptable political views have included criticising the new security law, campaigning to win a legislation-blocking majority and refusing to recognise China’s sovereignty.

Earlier in the day a coalition of democracy parties warned any bid to delay the elections would herald “the complete collapse of our constitutional system”.

Around half of Hong Kong’s nearly 3,300 COVID-19 cases have been detected in the past month alone and authorities fear hospitals are on the verge of being overwhelmed.

According to the International Institute for Democracy and Electoral Assistance, at least 68 elections worldwide have been postponed because of the virus, while 49 went ahead.

New security law
Hong Kong is going through its most politically turbulent period since its return to Chinese rule, and last year seven straight months of pro-democracy protests swept the city.

The pandemic and mass arrests have helped throttle the movement, but anger towards Beijing still seethes.

In response, China imposed its security law on June 30, bypassing the legislature and keeping the contents of the law secret until it was enacted.

Beijing said the law would restore stability and not impact political freedoms.

It targets four types of crime — subversion, secession, terrorism and colluding with foreign forces — with up to life in prison.

But the broadly worded law instantly outlawed certain political views such as promoting independence or greater autonomy for Hong Kong.

One provision bans “inciting hatred” towards the government.

Critics, including many Western nations, say it has demolished the “One Country, Two Systems” model.

Since it came into force, some political parties have disbanded while at least three prominent Beijing critics have fled overseas.

Libraries and schools have pulled books deemed to be in breach of the new law.

At least 15 arrests have been made so far.

On Wednesday four students were arrested under the new law for “inciting secession” through posts on social media.

Others have been arrested for shouting pro-independence and other protest slogans, or possessing objects emblazoned with them.

A man who allegedly drove his motorbike into a group of police officers while flying an independence flag was the first to be charged under the law, with terrorism and secession offences.

WHO: Coronavirus Pandemic Is A ‘Once-In-A-Century’ Health Crisis

Law & Society Magazine
-
0
WHO: Coronavirus Pandemic Is A ‘Once-In-A-Century’ Health Crisis

*WHO director general Tedros Adhanom Ghebreyesus says effect of coronavirus will be felt for decades to come.

The global coronavirus outbreak is the sort of disaster whose effects will last far into the future, World Health Organization (WHO) Director General Tedros Adhanom Ghebreyesus said on Friday.

“The pandemic is a once-in-a-century health crisis, the effects of which will be felt for decades to come,” Tedros told a meeting of the WHO’s emergency committee, according to remarks released by the agency.

The pandemic has killed more than 670,000 people since emerging late last year in Wuhan, China, with more than 17 million cases diagnosed.

The United States, Brazil, Mexico and the United Kingdom have been particularly hard hit in recent weeks by the disease caused by the novel coronavirus, COVID-19, as their governments have struggled to come up with an effective response.

Economies have been been hit by lockdown restrictions introduced to restrict its spread, while many regions are fearful of a second wave.

Meanwhile, more than about 150 pharmaceutical companies are working on vaccines, although their first use cannot be expected until early 2021, the WHO said last week,

Although knowledge about the new virus has advanced, many questions remained unanswered and populations remain vulnerable, Tedros said on Friday.

“Early results from serology (antibody) studies are painting a consistent picture: most of the world’s people remain susceptible to this virus, even in areas that have experienced severe outbreaks,” he said.

“Many countries that believed they were past the worst are now grappling with new outbreaks. Some that were less affected in the earliest weeks are now seeing escalating numbers of cases and deaths.”

Nigeria Is The Third Most Terrorized Nation And The Poverty Capital Of The Globe — Gloria Mabeiam Ballason

Law & Society Magazine
-
0

The Managing Partner of the House of Justice, Gloria Mabeiam Ballason, has described Nigeria as “the third most terrorized nation and the poverty capital of the globe.”

She said this during the commissioning of House of Justice Radio/TV on Thursday 30th July, 2020 at Kaduna, Nigeria.

Ballason laments that the country is been stifled by “loss of values, the loss of character, the loss of humanity and now… as it clearly seems, the loss of hope. Worse still, the weary cynicism and complicity of a government that grants pardon to terrorists but look away from dying IDP victims of terrorists justify killings of citizens as reprisals but not stop the killers…”

According to her, the House of Justice Radio is therefore meant to serve as a media platform for citizens to rebuild the society

Read the full speech below:

TIME TO REBUILD.

Being a Speech Delivered by Gloria Mabeiam Ballason Esq at the Public Commissioning of the HOJRadio/TV on Thursday 30 July, 2020, Kaduna Nigeria.

A few days ago I called my brother and friend, Reuben Buhari, to see just how he was doing after a particularly excruciating Southern Kaduna episode of systematic killings that have all the trappings and aces of genocide. He and Alheri Magaji, a phenomenal lady with perhaps the most concentrated mix of human compassion are on a mission to replace terror with love. They do this by connecting just anyone who has to another who has not. I was checking on Reuben to be sure he and Alheri were ‘alive’ much from the sense of knowing first hand what perpetually being a witness to suffering does to the human psyche. ‘ I am fine.’ Reuben said; “I just do not know what else we can do to stop the killings that we have not already done.’’

Like Reuben, most of us have wondered what else can be done to a country with enormous potential but asphyxiating from an absence of governance, the loss of values, the loss of character, the loss of humanity and now… as it clearly seems, the loss of hope. Worse still, the weary cynicism  and complicity of a government that grants pardon to terrorists but look away from dying IDP victims of terrorists ,justifies killings of citizens as reprisals but not stop the killers, instigators or perpetrators is so chilling it could freeze the resolve to anticipate better as the pain and despair reel into focus.

The existential realities of citizenry caught between a killer virus, a rudderless leadership and a society that is losing its human form presents to us a memory challenge of what the past was, what the present is and what we can make of the future.The thought leads us to the brink of mental insurrection and an anxiety that accompanies our reality. But if we want to win, we must set our eyes on just one reality: that if human beings can destroy, then human beings can build.

It is in that single thought that House of Justice continues to  project supreme confidence in the ability for citizens to take ownership and to demand and insist for the change they want to see. As an organization, we are committed to taking justice to Law and to never look away from those who deem themselves so high that the Law sits beneath them. As optimistic as we have been, we, like other conscientious citizens are witnesses to the gangrene wasting away of values, of the basics of life and of human lives. Never in our wildest imagination would we have imagined that our beloved country Nigeria would move from being the happiest country on earth to becoming the third most terrorized nation and the poverty capital of the globe. Opening the assumptions and determining the entry point of intervention for the saving of our country is quite an intimidating task. Do we dare to hope?

THE AUDACITY OF HOPE.

At House of Justice, we believe in the universal truth that behind every question, there is an answer; behind every contention, there is a winning option. Impossible is nothing! So like the sower who does not hear the sound of the rains nor see the clouds gather, we have set out to work willing to water the seeds from any waters that we can find under the skies. We believe that though a tree be cut down that the stump which remains in its root can sprout a stem at the scent of water. It is for that reason that the House of Justice is glad to present to the public a media platform that allows all citizens children, adults, young, old, high, street smarts… irrespective of who you are, where you come from to meet at the intersection of humanity and to begin to re-build a society that is just and true. HOJRadio & Tv look forward to working with you for the impeachment of the culture of relativism and of impunity to one where each citizen owns a part of the whole. Because it has fallen on us to rebuild what has been broken we must stop the clock and make the past go away and get on the grind to build for better. On that note, I on behalf of my colleagues very warmly welcome you to a new day of giving light to life.

Police Officer Denies Raping Rivers Widow Because Of Facemask, Says She Came To See Him At The Hotel

Law & Society Magazine
-
0
Police Officer Denies Raping Rivers Widow Because Of Facemask, Says She Came To See Him At The Hotel

The police officer, Inspector Peter Ibah accused of arresting and raping a widow for not wearing facemask has finally reacted.

However, his reaction came with mild drama at the headquarter of the Rivers State Police Command in Port Harcourt on Thursday when both the victim and the alleged police rapist gave different accounts of what transpired between them.

Recall that a widow, Queen Olaka, had alleged on Wednesday that Inspector Peter Ibah raped her after he arrested her for not wearing a face mask.

This is just as the as the command said Ibah would remain in detention until the conclusion of the investigation into the allegation against him.

According to Punch, the accused and the accuser were at the command headquarters on Thursday.

The inspector denied raping the 23 year old widow, saying there was no resistance from her.

He said, “She even asked the girls in the hotel to give her charger to charge her phone but they said they don’t have. I was on stop-and-search duty when I saw her. She went to drop her children and came back. She was comfortable with me.

“While we were together, she had her bath and came to lay on the bed waiting for me. The girls in the hotel and the cleaners were there. There was no problem.”

He said he transferred N2,000 to her after the sex and gave her another N2,000 for her transport.

But Olaka insisted that Ibah dragged down her trouser and had his way despite her resistance, alleging that he also raped her the second time.

She said, “My husband has been in the mortuary for two year now. I have not buried my husband because of issues I have with my husband people. Maybe he took advantage of me when he heard my husband is in the mortuary.

“About past 12am, he raped me; I was helpless. I slept off. Later in the morning he did it again and asked me to give him my phone number. I was afraid because we were alone.”

The widow added that she gave the policeman her account number as evidence.

The state Police Public relations Officer, Nnamdi Omoni said, “The matter is still being investigated. The Commissioner of Police has said the matter should be transferred to the State Criminal Investigation and Intelligence Department, for further investigation.

He said, “For now let us exercise some restraint and be calm until the conclusion of the investigation. I can trust that the CP is going to bring about justice in this matter. Justice will not only be done, but be seen to be done. We will get to the root of the matter.”

Appointment Of Chief Judges: Any Conspiracy Against Women?

Law & Society Magazine
-
0
Appointment Of Chief Judges: Any Conspiracy Against Women?

By Abdulrasheed Ibrahim

I read a story of a senior lady judge, Hon. Justice Beatrice Lazarus Iliya of the Gombe State judiciary, who was reported to have sent a petition to the National Judicial Council (NJC) protesting against an attempt to stop her from becoming the next Chief Judge of that State. According to the Judge, she is the most senior judge in the State judiciary having being called to the bar in 1981. She had earlier acted as the Acting Chief Judge for three months. In her petition, she lamented what she called “lack of fair hearing, faulty procedure and the criteria used by the State’s Judicial Service Committee for the appointment of the new chief judge”. She said further that rather than being invited to an interview, other two judges (Justice Joseph Ahmed Awak called to the bar in 1983 and Justice Muazu Pindiga called in 1988) who are junior to her were invited. The judge asserted that she had sent a presentation dated April 21, 2020 and a verifying affidavit dated May 6, 2020 wherein she complained that the Attorney General of the State can not preside over a petition against her by “a grain merchant complaining to the governor that she moved into the office of the chief judge when she was in acting capacity.The prayer of the lady judge to the National Judicial Council (NJC) is very simple one as according to the judge:

“…I humbly pray that my earlier presentations and all the issues raised therein should be investigated and resolved before the interview of the shortlisted candidates”

In the news report, the judge was said to have copied her petition to Hon. Justice Rhodes-Vivour, JSC who is the Chairman of the NJC Interview Committee, the Secretary of the NJC as well as the President of the Nigerian Bar Association (NBA).The Attorney-General of Gombe State, Mr. Zubairu Mohammed was reported to have denied the claim by the lady judge that her name was not sent to the NJC but that from their assessment of Justice Iliya alongside Justice Pindiga, the Acting Chief Judge, the latter was found to have better administrative skills than the former.

This is a very serious and interesting matter that must not be taken lightly. I am of the view that since the issue is now before those that matters in the scheme of things particularly the National Judicial Council (NJC), the issue must be critically looked into on what is really happening in the Gombe State Judiciary. Its findings must be made public. We are awaiting answers to questions such as: Was there really any conspiracy to stop the lady judge from becoming the Chief Judge having being called to the bar about 39 years ago? What was the problem or grievance of the grain merchant with the Acting Chief Judge moving into the office of the Chief Judge in the acting capacity? What is the implication of an Acting Chief Judge moving into the office of the Chief Judge? What were the yardsticks used by the Gombe State’s Attorney General to measure the administrative skills between Justice Iliya and Justice Pindiga? In some states, must the position of Chief Judge be exclusively for men at the expense of women even when it comes to their turn to be? At least rational and convincing answers are needed to these questions to settle once and for all the complaints of women judges who have been lamenting their being marginalized when it comes to being appointed as Chief Judges or being elevated to the appellate court in their various states.We have had in the past many examples where women were deliberately schemed out of having what they deserved but with their patience and perseverance,they eventually found themselves in the position that was beyond their imaginations. Notwithstanding the seemingly conspiracy of men against women in our judicial system, such has worked largely in favour of women that were once victims of such conspiracy.

There is no better way to illustrate this point than allowing those women to speak for themselves. Hon. Justice Aloma Mariam Mukthar, the now retired first female Chief Justice of Nigeria, had this to say when she was bowing out of the Supreme Court which is the apex court in the country:

“…I rose to be number two in the hierarchy of the Kano State Judiciary, and was to remain number two for years to come until I was elevated to the Court of Appeal. In 1982 , the then Chief Judge , (an expatriate ) retired , and a Judge that came on board a few years after my appointment as a Judge was made the Chief Judge.When an exercise for appointment of to the Court of Appeal commenced the new Chief Judge asked if I was interested, I answered in the negative, because in spite of the situation on the ground I had no desire to be moving from State to State as the office demands.In 1985, the incumbent Chief Judge left for the Court of Appeal , again history repeated itself , for again I was superceded by the then number four or five in the hierarchy of the court ,after acting as the Chief Judge for sometime, becoming the first woman in the country to discharge the function albeit temporarily. I took it in my stride and continued to work as though I was meant to be number (2) forever! To me, Allah wished it that way, and if he had said ‘no’ nobody could have commanded it to be ‘yes’ .Indeed, it was as though I had full knowledge of what he had in store for me in future. People were always surprised at my attitude towards these developments…”

Despite all the scheming, it worked in favour of Justice Aloma and she later became the first woman to be elevated to both the Court of Appeal and the Supreme Court in Nigeria where she eventually retired as the first woman Chief Justice of Nigeria (CJN). She made history that is today known to the whole world. Another woman judge that went through similar experience was no other than now retired Hon. Justice Clara Bata Ogunbiyi (JSC), let us hear from the horse’s mouth when bowing out of the Supreme Court on retirement from the apex court at the mandatory age of 70:

“With my position as High Court Judge, I remained truly grateful to God and very contented. My pre-occupation at that level was to give my best in the performance of my official function and also ensure that my family life did not suffer. As a result I was indifferent initially in moving up to the ladder to the higher court.However ,through the counsel , assurance and encouragement of my dear husband , I was motivated that I have the intellectual capacity and tenacity to go higher and God helping me , I should not limit my horizon. This counsel now afforded me the encouragement and confidence to inform my Chief Judge of my interest to the Court of Appeal in the event there was an opening for Borno State quarter .His response was that, he would let me know when the time comes .This he never did despite the fact that at that time there was nobody at the Court of Appeal on the Borno quarter. However, he recommended two of my juniors.”

Before I continue with further interesting remarks from Justice Ogunbiyi’s experience, I want to express the view here on the danger in making emperiorship or tyranny of our leaders at all level including the legal profession which judiciary is part of. When you have a system that leaves the Chief Judge with the absolute power or discretion to decide which of the Judges under him go to the appellate court, having the best materials for that appellate position may be compromised and fair deal not achieved as most CJs will always prefer their godsons or goddaughters for that positions at the expense of the good material judges in the system. Favourism and nepotism will always come to play. It is interesting to note that the lady judge in Gombe State in trying to resist her being marginalized in the scheme of thing has equally copied the NBA’s President with her petition. The type of tyrannical power being played out in NBA may not justify its intervention on this issue, as the saying goes that he who comes to equity must come with clean hands. Has NBA moral right to intervene in this issue?

NBA by its discriminatory constitution confers on all its local branches chairmen the powers to behave like godfathers in the conventional politics. A branch chairman has the absolute power to give and not to give a letter of good standing to any aspirant aspiring to run for elections at the NBA national level. If the local chairman does not like the face of an aspirant, he can withhold the letter and that will be the end of the matter. In the Ikeja Branch of the NBA for example, Mr. Dele Oloke as Chairman and his predecessor Mr. Adesina Ogunlana are not best of friends with their attitudes of cat and mouse towards each other.When Ogunlana decided to run for the 2020 NBA Presidential election at the national level, Oloke refused him the letter of good standing and the rest is now history. Unfortunately, the fate of an aspirant in an election that should be left in the hands of the generality of lawyers who are the electorates is made a one man show under the NBA political system. I think from this narrative, we can all deduce the danger in making tyranny of those at the helm of affairs. Perhaps, the National Judicial Council (NJC) in the course of its operation had in the past seen the handwriting on the wall and decided to change tactics. Let us hear further from Justice Ogunbiyi:

“Co-incidentally at this time, recommendations for appointment to the Court of Appeal were no longer the exclusive preserve of the State Chief Judges. Recommendations could also come from Court of Appeal or Supreme Court Justices. Justices of the Court of Appeal Jos Division who sat on my judgments coming from Borno State High Court Bench, on their own volition took it upon themselves and gave in recommendations on my behalf .Similar other Justices that were outside Jos Division also unanimously recommended me for appointment. To me ,these Justices are my destiny helpers and I saw God’s divine purpose at work…I It is gratifying that at my valedictory session on leaving Borno State Bench to the Court of Appeal ,the Hon. Chief Judge remarked in his speech that although he did not recommend me for appointment ,he however applauded those who did so. He even further poured encomiums on my suitability, credibility and integrity as a judge, to the glory of God.”

Confirming the above assertion, Hon. Justice James Ogebe, a retired Jurist of the Supreme Court said in the book titled: HONEY FROM THE ROCK which is a biography of Hon. Justice Clara Bata Ogunbiyi that :

“..When she (Hon. Justice Ogunbiyi) was the most senior Judge and was due for elevation as the Chief Judge of the state, she was bypassed and a Judge far junior to her was appointed over her.She bore this with patience Some of us recommended her to the Court of Appeal and, by the grace of God she was elevated as a Justice of the Court of Appeal…”

I think a lot of lessons need to be learnt from all these. For those women who may not have the livers to resist such injustice, such denial may be a blessing in disguise for them as we have seen in the cases of Justice Aloma and Justice Ogunbiyi who despite such denial eventually made it to the apex court in Nigeria. When a coup was once hatched in Kwara State against Hon. Justice Raliat Habeeb-Elelu as Chief Judge, the woman fought her legal battle up to the Supreme Court to get herself reinstated back to that office where she eventually retired. I do not buy into any act of conspiracy trying to deny women whatever positions they are entitled to in as much as they have the competence, credibility and integrity to hold that positions in question.They need not be cheated out because of their gender. This case of Hon. Justice Beatrice Lazarus Iliya of Gombe State Judiciary must be seriously look into by the National Judicial Council (NJC) and justice done if she actually deserves to be the Chief Judge as she must not be discriminated against on the ground of her being is a woman. Having being called to the bar about 39 years ago and putting such number of years into the practice and adjudication of law is not a small joke.

Many states in Nigeria particularly Lagos State have produced many female Chief Judges that performed wonderfully well in that position .Unlike in many other states, Lagos State has been the most liberal when it comes to the appointment of judges irrespective of the states the appointees come from and they are allowed to assume the position of the Chief Judge whenever it comes to their turn to be. This kind of things is very rare in some states as the highest position a non-indigene judicial officer can reach in those states is the position of the Acting Chief Judge.Those states need to borrow a leave from Lagos State when it comes to giving honour to whomsoever it is due. Competence, Creditability, Integrity and uprightness should be allowed to take precedent over ethnicity, gender and religious considerations.

AGF ABDULRASAQ (SAN): EXIT OF THE FIRST LAWYER

When it comes to the claim of being the first, Alhaji Abdulganiyu Folorusho Abdulrasaq (AGF), the father of the incumbent Governor of Kwara State, Abdulrahman Abdulrasaq will surely be counted among the first. AGF as fondly being called before his death on 25th July 2020 at 93 was the first lawyer to be called to the bar from the whole Northern Region of Nigeria. He was called to the bar at the Inner Temple in London in 1955. He was once gazetted as a Judge in the old Northern Region but AGF declined the appointment to the judicial bench. Due to his closeness to the late Premier of the Northern Region and the Sardauna of Sokoto, Alhaji Ahmadu Bello during the First Republic, he was made the National Legal Adviser of the Northern People Congress (NPC). He was a Parliamentary member of the Northern Region of Nigeria House of Assembly. He was at a time Nigeria Ambassador to the Republic of Cote D’ Ivoire. When the Kwara State was created, he served as the Commissioner for Finance and later as the Commissioner for Health and Social Welfare.

As a Nationalist, AGF took part in all the Pre-Independence Constitutional Conferences in London and was a member of the Committee that drafted the 1979 Constitution.He served as the President of the Nigerian Stock Exchange between 2000-2003.He was the Chairman of the Body of Benchers in 1984 and was conferred with the rank of the Senior Advocate of Nigeria (SAN) in 1985.In appreciation of his service to the nation ,he was conferred with the National Honour of the OFR in 2000.He had earlier in 1984 received the Kwara State Merit Award.He was turbaned and given the traditional titles of Tafidan Zazzau of Zaria as well as Mutawallin of Ilorin in 1962. With the sad departure of this great elder Statesman from the world, we pray the Almighy Allah to bless his soul and give his family, the people of Kwara State and Nigeria the fortitude to bear the great loss.

NOTE: Anyone is at liberty to disagree with my above submissions as I will surely appreciate a balanced, fair and objective rebuttal.

Written by By Abdulrasheed Ibrahim, LL.M, Notary Public, 08055476823, 08164683735: [email protected])
30th July 2020

Constitutionality Of The Restriction Of Fundamental Right

Law & Society Magazine
-
0
Constitutionality Of The Restriction Of Fundamental Right

By Olasupo Jubril Adedimeji

ABSTRACT:

This article examines the importance of fundamental human rights in society. It then looks at the circumstances where these rights can be restricted without bypassing the due process of the law and the rights that can’t be restricted in such circumstances which right to life, right to personal liberty, and right to a fair hearing. Finally, It inquires as to the way and manner it should be restricted and people that should be charged to carry out the restriction, to stop the spread of corruption, harsh treatment, infringement of the right.

THE KEYWORDS:

Human rights | Restriction | Due process of the law | Infringement of right |

INTRODUCTION:

Fundamental human rights are highly sacrosanct. The rights are not bestowed on any public or private administration, they are bestowed on humans and this can be seen when Adam and Eve are given the right to move freely in the garden of Eden and also enjoy some other rights bestowed on them by Almighty God. Thus, the fundamental right is divine and natural right bestowed on humans.

Several learned silks had given lots of definitions on fundamental human rights which also enjoys constitutional backing as seen in Section 33-46[2]

The question is then can these rights be restricted, especially the right to movement? Even if there can be restriction of movement, how can it be invoked? Is the restriction of movement ordered by the government of Nigeria Constitutional?

This paper purports to examine these questions and to chart a new course in the quest for the enhancement of the implementation of fundamental human rights. we will first examine the definition of Constitutionality then other substantive and procedural issues will follow suit.

The concluding part of this paper will deal with how the restriction of movement can be fully and constitutionality implemented without the infringement of people’s constitutional rights.

CONSTITUTIONALITY

Constitutionality describes when something such as conduct, act, bill, law, or regulation is in conformity with the Constitution. It asks the question of whether or not a particular act, conduct, law, bill or regulation is Constitutional.[3] If the conduct, act, bill, law or regulation is not consistent with the Constitution, It will be declared unconstitutional by virtue of Section 1(1) [4] but if it’s consistent with the Constitution, It will be declared constitutional.

In the case of Marbury v Madison [5] , the Chief Justice of the United States of America (U.S.A) in the person of JOHN MARSHALL rightly stated that:

“Certainly all those who have framed written constitution contemplate them as forming the fundamental and paramount law of the nation and consequently the theory of every such government must be that an act repugnant to the Constitution is void.”

This means whenever an act or conduct done by a public or private administration is inconsistent with the Constitution of the land, the act or conduct will be declared unconstitutional.[6]

FUNDAMENTAL HUMAN RIGHTS

WHAT IS RIGHT?

A right can be explained in three perspectives, which are:

1)In the concrete legal sense

2)In the sense of duty; and

3)In the abstract sense.[7]

For the purpose of this paper, the Concrete legal sense will be looked into.

The concrete Legal sense:- In a concrete legal sense, a power, privilege, demand, or claim possessed by a particular person by virtue of law. [8]

Each legal right that an individual possesses relates to a corresponding legal duty imposed on another. For example, when a person owns a home and property, he has the right to possess and enjoy it free from the interference of others, who are under a corresponding duty not to interfere with the owner’s rights by trespassing on the property or breaking into the home. [9]

HUMAN RIGHTS:

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent, and indivisible.[10]

CATEGORIES OF RIGHT

1) Individual Right

2)Community or group Right

3) Peoples Right (According to African Charter on human rights)

FUNDAMENTAL HUMAN RIGHTS:

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in a Constitution or have been found under due process of law. [11] They are referred to as civil and political rights or first-generation rights and are generally justice in every democratic system. Furthermore, they are the rights that define and differentiate a democratic state from a dictatorship one.

Therefore, in order to protect and guarantee peaceful co-existence, the fundamental right of persons in Nigeria are enshrined in (Chapter IV) (Section 33-46).[12] The rights stipulated in Section 33-46 [13] are highly sacrosanct but not absolute. They are sacrosanct in the sense that they are respected and cannot be taken away without due process of the law.

However, they are not absolute and are therefore with certain restrictions and derogations. This is because where a person’s right stops another person begins and thereby the Constitution envisages that without restriction, there will be trampling of right. See the case of Amoshina v State [14]. See also the case of Adam and Eve when Almighty God restrict them from eating the forbidden fruit which is for their own interest.

Flowing from this, a restriction of any of the fundamental human rights should be for the public interest likewise any enactment must also be for the public defense, safety, order, morality, and health. Failure to put the interest of the public at heart will result in the measurement of power in a democratic society.

DEROGATION CLAUSE IN 1999 CONSTITUTION

Derogation from fundamental rights refers to a temporary suspension of certain rights recognized in the Constitution. It is the right of states to depart from some fundamental rights entrenched in the Constitution due to emergency or reasons reasonably justifiable in a democratic society.[15]

In Nigeria, Chapter IV(Section 33-46) [16] guarantees fundamental rights, but also impose some restrictions as seen in Section 45 11[17] which provides for the restriction and derogation from fundamental rights in Section 37,38,39,40 and most especially 41[18] in the interest of:

1) Public defense, safety, order, morality, and health.

2) Protecting the rights and freedom of other persons; and

3) Dealing with the situation that exists during the period of emergency.

During this period Section, 33,35 and 36[19] must not be derogated.

OVERVIEW OF THE RESTRICTION OF MOVEMENT

It’s undoubtedly true that the Constitution of the Federal Republic of Nigeria is supreme and it’s binding on all by virtue of Section 1(1) [20] which provides that:

This Constitution is supreme and it’s provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

It’s stipulated the way and manner an action should be carried out for the smooth running of the country. Thus, every public or private administration must act in accordance with the Constitution.

In Nigeria, the restriction of movement in case of any disaster or natural calamity affecting the community or a section of the community in the federation can be done in two approaches and can’t be done by executive order or directive given by an appropriate authority because it’s not binding as seen in the case of Faith Okafor v Lagos State government,[21] and as such can’t attract criminal sanction. However, an order or directive can become binding when it’s backed up by a law enacted by the national assembly or State house of Assembly for a state. The approaches an appropriate authority(which includes the president, governor or any person appointed by any law to revise or rewrite the laws of the federation or of a state) can use in restricting some fundamental rights are:

1) By invoking the State of Emergency

2) By invoking the quarantine act

STATE OF EMERGENCY:

A state of emergency is a situation in which a government is empowered to perform actions or impose policies that it would normally not be permitted to undertake.[22] A government can declare such a state during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic, or other biosecurity risks.[23]

It can only be implemented by triggering Section 305 [24].In implementing this section, the President is authorized to unilaterally or at the request of a state governor declared a state of emergency in certain instances, including when. . .

(c) there is the actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation; [or]

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation . . . .[25]

The declaration of a state of emergency must be published in the country’s Official Gazette, and the President is required to immediately notify the Speaker of the House Representatives and the President of the Senate.[26] Once in place, a state of emergency can be terminated

if the President revokes it;

if it is not subsequently endorsed by the federal legislature within two days of its declaration when the legislature is in session or within ten days otherwise;

after six months of its declaration, but the legislature may extend it for another six-month term; or

if the legislature, having initially endorsed or extended the declaration, at any time revokes it by a vote of a simple majority in both houses.

The consequences of declaring a state of emergency may take one of two forms.  First, the country’s legislature may adopt laws that curtail certain fundamental rights guaranteed under the Constitution like the COVID-19 RESTRICTION 2020. It may also allow the executive to take certain actions that restrict such constitutional rights.  For instance, the Constitution appears to permit the executive to temporarily suspend the constitutional protection against forced or compulsory labor “in the event of any emergency or calamity threatening the life or well-being of the community.[27] It is conceivable that this authority could be used to ensure that hospitals and health centers are properly staffed during an outbreak of a deadly infectious disease like COVID-19.

During this period, certain fundamental human rights can’t be restricted which are:

1) Right to life

2) Right to personal liberty; and

3) Right to a fair hearing

QUARANTINE ACT: [28]

The word quarantine comes from quarantine, meaning “forty days”, it’s a restriction of the movement of people and goods which is intended to prevent the spread of disease or pests. It is often used in connection to disease and illness, preventing the movement of those who may have been exposed to a communicable disease, but do not have a confirmed medical diagnosis. It is distinct from medical isolation, in which those confirmed to be infected with a communicable disease are isolated from the healthy population.[29]

Merriam-Webster gives various meanings to the noun form, including “a period of 40 days”, several relating to ships, “a state of enforced isolation”, and as “a restriction on the movement of people and goods which is intended to prevent the spread of disease or pests “. The word is also used as a verb. [30]

Quarantine is distinct from medical isolation, in which those confirmed to be infected with a communicable disease are isolated from the healthy population.[31]

Quarantine may be used interchangeably with cordon sanitaire, and although the terms are related, cordon sanitaire refers to the restriction of movement of people into or out of a defined geographic area, such as a community, in order to prevent an infection from spreading. [32]

The Quarantine Act (the Act) is the primary law governing the prevention and suppression of dangerous infectious diseases.  The Act states that it is intended to regulate “the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases. [33] This includes “cholera, plague, yellow fever, smallpox and typhus.”[34]  In addition, the Act authorizes the President to declare any infectious or contagious disease as a dangerous infectious disease, an authority apparently used at least once in the past to categorize sleeping sickness as a dangerous infectious disease. [35] Similarly, the Act authorizes the President to declare any place in or outside of Nigeria to be an infected local area. [36]

The Act further authorizes the President to issue regulations for the purpose of preventing or suppressing a dangerous infectious disease in an infected local area, any other area in Nigeria, or any area outside of Nigeria, stating as follows:

The President may make regulations for all or any of the following purposes –

(a) prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;

(b) prescribing the introduction of any dangerous infectious disease into Nigeria or any part thereof from any place without Nigeria, whether such place is an infected local area or not;

(c) preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria;

(d) preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria;

(e) prescribing the powers and duties of such officers as may be charged with carrying out such regulations;

(f) fixing the fees and charges to be paid for any matter or thing to be done under such regulations, and prescribing the persons by whom such fees and charges shall be paid, and the persons by whom the expenses of carrying out any such regulations shall be borne, and the persons from whom any such expenses incurred by the Government may be recovered;

(g) generally for carrying out the purposes and provisions of this Act. [37]

State governors are accorded the same powers as the President to categorize diseases as dangerous infectious diseases, declare a particular location an infected local area, or issue regulations for any of the above-stipulated purposes in the absence of presidential action on a particular matter. [38]

President Muhammad Buhari recently exercised his authority by invoking the quarantine act in which he first made an oral declaration which must be in writing to make it a written regulation before it will have a binding force of law. Meaning that the oral Declaration made by the president must be written and he had put that in place by enacting the COVID-19 RESTRICTION 2020 likewise for a state, see the Prevention of Disease Regulation made by Lagos State as a perfect example of state regulation. As regards the meaning of a regulation stated in the quarantine act, in AG Lagos State V. Eko Hotel Ltd & Anor, [39]

The term regulation is defined in Black’s Law Dictionary, 8th Edition, page 1311 inter alia as: “The act or process of controlling by the rule of restriction.” Per Onnoghen, JSC. (P. 39, Paras. D-E) –

RECOMMENDATION

In as much as the executive arm is vested with the power to implement the law, it’s saddening that during this COVID-19 pandemic, some officer of the Nigerian Police Force and other security agencies are using the COVID-19 RESTRICTION 2020 has an excellent method to infringe on citizens right, exploiting from them financially and so forth. I posit that officers that should be asked to implement this regulation should have considerable knowledge of the law and should be officers of unquestionable integrity, to enhance the citizen’s confidence in the government most especially the security agencies.

CONCLUSION

An attempt has been made in this paper to show the importance of human rights in the society. It has also been noted that though rights are sacrosanct, however, they can be derogated in conformity of the Constitution.

The point has further been made that some of the Constitutional ways some human rights can be restricted most especially during this COVID-19 pandemic includes: State of emergency and quarantine act.

This ways could become successful if the right minds are put into custody of implementing the law. It is only when people of unquestionably integrity are chosen to implement the law, that is when citizens rights would no longer be infringed upon, and there would be effective adherence to the regulations.

[1] Olasupo Jubril Adedimeji is a Year 2 student, Faculty of Law, Lagos State University, Ojo. Can be reached on 07012013950, Gmail: [email protected].

[2] Constitution of the Federal Republic of Nigeria 1999 (as amended).

[3] Wikipedia, ‘Constitutionality’, < https://en.m.wikipedia.org/wiki/Constitutionality> , accessed 22nd May 2020.

[4] Constitution of the Federal Republic of Nigeria 1999 (as amended)

[5] 5 U.S. 137 (1803)

[6] Ibid.

[7] Wikipedia, ‘Right’ , < https://en.m.wikipedia.org/wiki/Rights> , accessed 22nd May 2020.

[8] Farlex, ’Right’, < https://legal-dictionary.thefreedictionary.com/by+right> , accessed 22nd May,2020.

[9] Ibid.

[10] What are human rights, < https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx> , accessed 22nd May 2020.

[11] LII,‘Fundamental Right’, < https://www.law.cornell.edu/wex/fundamental_right> , accessed 22nd May,2020.

[12] Constitution of the Federal Republic of Nigeria 1999 (as amended).

[13] Ibid.

[14] SC.283 (2009)

[15] Professor Fabian Ajogwu, ‘Constitutional Provisions on Restriction and Derogation from Fundamental Rights(S.45 CFRN) and the Need for Balance’, https://kennapartners.com/wp-content/uploads/2019/08/Constitutional-Provisions-on-Restriction-and-Derogation-from-Fundamental-Rights-S.-45-CFRN-and-the-Need-for-Balance-1.pdf >, accessed 22nd May,2020.

[16] Constitution of the Federal Republic of Nigeria 1999 (as amended).

[17] Ibid.

[18] Ibid.

[19] Constitution of the Federal Republic of Nigeria 1999 (as amended)

[20] Ibid.

[21]  (2017) 4 NWLR (Pt. 1556) 404

[22] Wikipedia, ‘ State of Emergency’, < https://en.m.wikipedia.org/wiki/State_of_emergency> , accessed 22nd May 2020.

[23] Ibid.

[24] Constitution of the Federal Republic of Nigeria 1999 (as amended)

[25] Ibid section 305.

[26] Ibid.

[27] Ibid section 34.

[28] 2004

[29] Wikipedia, Quarantine’, https://en.m.wikipedia.org/wiki/Quarantine , accessed 22nd May 2020

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Quarantine Act of 1926, pmbl,14 Laws of the Federation of Nigeria, Cap. Q2 (rev. ed. 2004), available at http://www.placng.org/new/laws/Q2.pdf

[34] Ibid section 2.

[35] Ibid.Subsidiary Legislation, Declaration of Dangerous Infectious Disease, available at http://www.placng.org/ new/laws/Q2.pdf(scroll to “Subsidiary Legislation,” page 3).

[36] Quarantine Act of 1926 section 2.

[37] Ibid section 4.

[38] Ibid section 8.

[39]  (2006) NWLR (Pt. 1011) 378

Just Before Kick-Off: The Proposed NPIFL And Legal Ramifications Of A Parallel Professional Football League In Nigeria

Law & Society Magazine
-
0
Just Before Kick-Off: The Proposed NPIFL And Legal Ramifications Of A Parallel Professional Football League In Nigeria

By Steve Nwabueze

Avid football lovers have watched on for the last decade or more as a country once heralded for its football artistry continues to languish in abject neglect. From the challenges of decrepit structures, poor funding, hooliganism, and riotous regulatory structures, the league that once produced football greats like Rashidi Yekini, Muda Lawal, Segun Odegbami and even the late Stephen Keshi now struggles to compete favourably with its counterparts in Africa. Given its weak regulatory structure, a lot of people have questioned the commercial disposition of the League Management Company, LMC to run an enduring commercially-driven professional football league shorn of the lethargic, almost half-hearted political will to enforce its own rules. With a 20-team structure, the Nigerian Professional Football League can only boast of two private-owned clubs with the rest owned by the government. This development has, as expected, alienated the private owners who appear to be more commercially inclined to drive the economic expediency of running a football league. Unfortunately, they appear not to have the voting power to drive initiatives.

With these fundamental challenges, feelers from stakeholders in the domestic league indicate that no fewer than 10 Nigerian private-owned clubs have concluded plans to start a separate private league to be known as the “Nigeria Private Investors Football League” (NPIFL). The NPIFL, which will consist of only private-owned football clubs announced an award fee in the sum of =N=200, 000, 000.00 (Two Hundred Million Naira)  The proposed league organizing body on Monday, 1st day of June 2020 also set up a 5-man committee whose primary duty is to register the league and get approval ahead of the kick-off scheduled for later this year”[1]. This article analyses the pertinent legal issues arising from this initiative particularly issues on contract, competition, and intellectual property law. The first part of the article takes a look at the existing league structure in Nigeria, the relationship of the LMC with the member clubs, and the extent of the obligation owed to one another. The second part of the article examines the germane legal issues arising from establishing a parallel football league. The third part reviews the Australian Case of News Ltd v Australian Rugby League Ltd and the existing jurisprudence on the establishment of a parallel sports league. The final and concluding part dwells on the competition law issues arising from the initiative. The article would be concluded with recommendations for the different parties. The writer hastens to point out that this article is not interested in examining the rationale, propriety, success, and/or failure of this initiative.

The league structural model in Nigeria

The concept of a structural model refers to the legal form of the league, the level of Association involvement from a management perspective, and the nature of the financial relationships between the league and the As­sociation. From this perspective, two models with different variants emerge. The legal form of a league consists of its legal designation. With FIFA’s Football governing body pyramid structure in mind, each Member Association of FIFA has adapted its peculiar legal form. However, with respect to football leagues, these legal forms are often similar. Generally speaking, two categories may be distinguished: the Association Model and the separate entity model. In the Association model[2], leagues are more or less fused with the national Federation to which they belong. With regard to football leagues or Associations, Associations are characterized by membership, written rules and/or statutes, and the yearly organization of a General Assembly to which all entitled members may participate and vote. Any Association can also be affiliated with another Association. In such a case, the affiliated Association must follow the rules of the parent association.

“In the second category, the separate entity model refers to leagues for which the legal form is that of a company with an independent ownership structure”. [3]The decision making power is vested in the shareholders determined by means of a vote.  A ready example is the English Premier League which operates a separate entity model. The LMC as an independent corporate structure mirrors the English model by adopting this structure. Consequently, in the separate entity model, the Association, in this case, the Nigeria Football Federation is less involved in the running of the league. The league body nonetheless, must abide by the statutes and rules of the Football Federation as the recognized Member Association in the country. Most of the time, clubs are the main shareholders of the league. However, the Association can also be one of them, if not the only one. The Association can thus maintain a strong influence in decision-making.

Beyond the ownership structure, leagues and associations in the separate entity model retain some sort of close relationship with regard to some specific competencies usually managed by the Associations such as the appointment of referees, disciplinary processes, and the rules of the game. This relationship can also be rationalized because the league needs a voice in the Federation’s board room to further its interests. In this structure, the LMC is saddled with the provision of an administrative and organizational structure for the league. In terms of administrative structure, the LMC is the regulator of the league with the 20 clubs as nominative shareholders in a relationship akin to a joint venture. Within the broad classification, we have identified above, there are still sub-divisions which are not the immediate concern of the present article.

The relationship between the LMC and the 20 NPFL Clubs

To determine the liability of the league and the clubs to each other, it is important to examine the exact relationship between the league and 20 clubs As stated above, the relationship between the LMC and the 20 clubs is akin to a joint venture. This is discernible from the first limb of the preamble to the LMC Rules which obliges the LMC to regulate and administer the league and develop initiatives for the running of the league. As the regulator of the league, the LMC is charged with the task of maximizing income for the league and sharing the profits with the clubs. Indubitably, therefore, the relationship between the league and the clubs is a hybrid of a contract and a joint venture.

The Superleague Case and the question of competition law

The clamour for, and present initiative to establish a football league exclusively owned and run by private-owned football clubs has generated interesting debates on the propriety of such initiative. Some pundits are concerned that this initiative would not only distort the existing structure but potentially raise administrative and legal issues beyond the propriety of running a parallel domestic football league. One of the notable issues raised is the recognition from FIFA and CAF and implications for major continental championships like the CAF Champions League, CAF Confederations Cup, and FIFA Club World Cup for which Nigeria sends representatives on the basis of final league standings in the LMC-organized domestic league.  The argument is that with the LMC as the recognized league body, this private initiative would fail. This argument has been quickly batted away by the proponents of this initiative on the grounds that the club owners are not interested in continental championships. What then happens where the commercial allure and success of this initiative ultimately impacts on the existing structure and weakens the playing staff of the LMC organized league? The author imagines that this would intensify calls to check the initiative. Interestingly,  the clamour for a  breakaway by teams in a sports league is not new.  One of the most notable and reported cases in the history of Australian sport happens to be the case of News Limited v Australian Rugby League Limited (“the Superleague case”)[4], a decision by Justice Burchett in the Federal Court of Australia in the first instance which was later overturned on appeal. This decision is germane to this debate and central to the determination of the competition law issues arising from this initiative.

Background to Superleague[5]

The case is pertinent for it deals with one of the issues that make reconciling sports with competition law so difficult – namely that sports leagues and clubs require or claim they require cooperation and restrictions between them that are inherently anti-competitive[6]. The case is also illustrative (albeit indirectly) of the commercial considerations (especially regarding broadcasting rights) that lend so much importance to the role of competition law in sports. Essentially, the case revolved around News Ltd’s proposal to establish a ‘Superleague’ to replace the National Rugby League competition, which is run by the Australian Rugby League and the New South Wales Rugby League (‘the League’). The Superleague competition was to be shown on Pay TV in Australia and overseas[7]. The case arose from the rivalry between pay-TV operators: Rupert Murdoch’s News Ltd which is affiliated to the Foxtel consortium that would have the Pay TV rights to the proposed Superleague competition, and the owner of the rights to the League competition, Optus Vision (partly owned by Kerry Packer’s Publishing and Broadcasting Ltd)[8]. News Ltd had originally contended in negotiations with the League that it was interested in “only seeking a slice of the television cake”. While News Ltd had proposed to establish a Superleague to replace the national competition, the League had offered 20 clubs admission to the national competition for five seasons on the condition that they commit themselves to the League’s competition. The League sought Commitment Agreements and Loyalty Agreements to this effect. News Ltd nonetheless began signing players and staff playing in the league. Following the steps taken by News Ltd to float the “Superleague”, and the refusal by the league to sanction the move, News Ltd filed a lawsuit to challenge the decision on the grounds that the loyalty and commitment agreements signed by the 20 clubs contained exclusionary provisions and breached sections 45 & 46 of the Trade Practices Act of Australia. The league, on the other hand, cross-claimed against the ‘rebel clubs’ for breach of contract, breach of fiduciary obligations, infringement of intellectual property rights, and passing off. Against News Ltd, it cross-claimed for inducement of breach of contract.

The decision

The arguments by News Ltd were rejected by Justice Burchett, while the League’s cross-claims were upheld. His Honour did not accept News Ltd’s claim that the Commitment and Loyalty Agreements were given pursuant to an exclusionary provision. With regard to the cross-claims, Justice Burchett held that the League had been successful in proving a breach of contract against the clubs and that the League had rights with regard to club colours, logos, etc. Justice Burchett found all the elements of inducing breach of contract proven so that the League could succeed on this cross-claim against News Ltd. He also held that the Superleague Clubs had not been forced under duress to sign the Loyalty Agreements.  As expected, News Ltd was dissatisfied with the decision and appealed to the Full Court of Australia.

The Superleague Appeal

In a judgment spanning over 200 pages, Lockhart, Von Doussa, and Sackville JJ allowed the appeal and ordered that all orders made by the trial judge be set aside. On many issues, the Court differed from the trial Judge on the inferences drawn from the primary facts. The Court addressed claims by the League that the rebel clubs had breached contractual obligations. The Court rejected some of the claims but found that the clubs breached an implied obligation arising under the contract constituted by their admission to the 1995 competition. The obligation required them to do everything reasonably necessary to enable the 1995 competition to be carried on in a manner that allowed the League to receive the benefit of that competition. The Court held, however, that the remedies available to the League should be confined to an award for damages, and referred the matter back to the trial Judge for assessment. With regard to certain other claims, the Court referred back to the trial Judge for further including those based on misleading or deceptive conduct, passing off and infringement of intellectual property rights. On whether the Loyalty and Commitment Agreements contained exclusionary provisions and breached the provisions of Sections 45 and 46 of the Trade Practices Act, the court held that the Agreements were exclusionary and accordingly, void and unenforceable. Consequently, the order of the lower court preventing the participation of the ‘rebel clubs’ in the ‘Superleague’ and the establishment of the ‘Superleague’ itself were set aside. The league immediately indicated an interest in challenging the appeal decision by seeking leave of court to appeal to the High Court of Australia. Before any steps could be taken, however, the ‘Superleague’ operated for the 1996/1997 season. The parties surprisingly sheathed their swords and merged. This merger birthed the present-day National Rugby League in Australia.

Competition law considerations in Nigeria

Nigeria passed the Federal Competition and Consumer Protection Act in January 2019.  The Act aims at promoting a competitive market and protecting consumer rights in Nigeria. Before the enactment of the Act, there was no single piece of legislation regulating competition in Nigeria. Thus, provisions of laws regulating competition were found in various legislation such as the ISA; the Nigerian Communications Act 2003; the Electric Power Sector Reform Act 2005 amongst other laws. However, the new Act applies to all businesses in Nigeria and supersedes all laws on competition and consumer protection[9].

The Act prohibits unfair business practices or abuse of dominant market position by any company, as well as an agreement to restrain competition such as agreements for price-fixing, price rigging, collusive tendering, etc. Chapter VIII of the Act, specifically in “Section 59, prohibits the creation of Restrictive Agreements i.e. agreements whose purpose is to restrict, prevent or distort competition”[10]. Section 59(2) (b) & (c) are very instructive. They frown at the “division of any market to allocate goods, services or customers”[11] and “limiting or controlling the production of goods,  services, and markets”[12]. Besides, Section 70 of the Act prohibits the abuse of a dominant market position by any undertaking. According to the Act, “a dominant market position exists where an undertaking enjoys a position of economic strength which enables it to prevent competition”[13]. “For the purpose of assessing market power, regard shall be had to a number of factors which include”[14]

  1. the financial power of the undertaking;
  2. it’s or their access to supplies or markets; and
  • structural or legal barriers to entry into the market among others.

The Nigerian Professional league as a market within the FCCPA

As we have already seen, agreements containing restrictive provisions are per se contraventions of the FCCPA and are void and unenforceable. Consequently, an arrangement or understanding between the LMC and the 20 Premier League clubs which has the purpose of preventing, restricting, or limiting the supply or acquisition of goods or services by persons in competition with the LMC in this case, the proposed NPIFL shall be void ab initio. Questions however remain on the true nature of the relationship between the LMC and the clubs. The author hastens to add that from a preliminary perusal of the NPFL Rules and the Deed of Adherence executed between the clubs and the LMC there is nothing to suggest any inference of a restrictive agreement between the parties. Much would, however, depend on the provisions of the Memorandum and Articles of Association executed between the parties. The writer confirms that he is not privy to this document and would refrain from making any further comments thereon.

First,  the author makes bold to say that clubs in the NPFL are in competition with each other and by extension, the NPIFL, either in relation to the supply of the constituent league teams or in relation to the acquisition of the services of a competition organizer. The clubs are set up to compete as commercial entities even if arguments remain as to how exactly the clubs and the NPFL have fared in this, to supply their teams or to acquire the services of a competition organizer. This is more so given the fact that each year the clubs are required to apply to the League to enter the league competition for that year and in support of this application, each club is required to meet certain financial requirements the satisfaction of which required clubs to attract spectators, sponsorship and television viewers. These are discernible from the administrative and commercial framework of the league as well as the preamble to which the writer alluded earlier.

While the writer resists the temptation to conclude that there are any restrictive agreements between the league and the 20 clubs, any inference of the existence of such agreement whose purpose is to shackle the choices of the NPFL clubs and prevent a switch to the private initiative would be wrong.  Any agreements which are designed, in large measure, to prevent any of the clubs from choosing to participate in any rival competition, is not only void but unenforceable as it runs counter to the provisions of the FCCPA. The clubs are also likely to be in competition with each other for the “services” of LMC-organized league players at the time any such agreements were or will be executed.

The author anticipates that questions might be raised regarding the true commercial antecedents of the league i.e. whether the football league constituted a commercial activity within the meaning of the Act. It is safe to say that the League and the clubs are engaged in trade or commerce – they derive money from sponsorships, merchandising rights, television rights, game entry fees, they hire grounds and organize competitions. The football market also comprises the demand and supply components within the league, the organizers, the teams, and the players on the supply side and the fans, media, and sponsors on the demand component. Even though the commercial scope of the activities of the LMC and its clubs are not as elaborate as in the Superleague case, the activities sufficiently qualify to fall within the contemplation of the FCCPA, 2019.

On a possible argument on the breach of the common law duty of trust and confidence, the writer disagrees that this claim would be of any beneficial use to the LMC should it decide to challenge the proposed break-away of the private-owned clubs in its ranks. This is because the common law mutual duty of trust and confidence is normally applied in employment relationships between the clubs and playing staff and would avail an LMC/NPFL club seeking to challenge any breach of employment contract by members of its playing staff. As already stated, the relationship between the LMC and the clubs is a hybrid between a contract and a joint venture and therefore, an action on the pretext of the breach of the common law duty of trust and confidence would not avail the LMC. The LMC can, however, seek to enforce certain intellectual property rights in the merchandise, logos, and crests of the NPFL clubs since the NPFL rules expressly provide that the intellectual property rights in the logos and NPFL merchandise belong to the LMC. The teams in the NPFL interested in the private initiative should ensure that there is no outstanding contractual/partnership obligation on its part before joining the NPIFL. This would also include returning all the NPFL merchandise and logos belonging to the LMC to avoid needless trademark squabbles. The writer notes that the proposed NPIFL bears an uncanny resemblance to the NPFL. It would, therefore, most likely not be registered for trademark purposes. In the likely event, it is approved for trademark registration it would most likely face an action for the common law tort of passing off for infringing the existing trademark of the NPFL and by extension, the LMC. It is adviced that the organizers consider a unique name embodying their philosophy to avoid needless distractions.

Finally, the remaining 18 clubs in the league would be the object of Manager and player poaching by the private-owned clubs. To prevent an avoidable exodus of players in their ranks, the clubs need to scrutinize the existing employment contracts with the coaching and playing staff and ensure the necessary covenants are inserted. Restrictive covenants such as anti-poaching and anti-competition covenants would ensure their coaching and playing staff are not lost to their rivals in this private initiative. While an anti-competition covenant ensures a coaching staff does not go to its rivals, an anti-poaching covenant in the employment contract of the playing staff will ensure that their star players are not ensnared by attractive contract offers from their rivals.

As a postscript, the coming months in Nigeria would be interesting particularly if the private owners can pull off this major initiative. While posterity would judge what eventually becomes of this initiative, the greatest arbiter, the courts would be there to check needless infractions by any of the major characters in this development.

[1] See http://exclusivenews.com.ng/nigeria-private-investors-football-league-gets-n200m-sponsorship-deal/ (last accessed at 4:33 PM)

[2] In legal terms, an association is the grouping of persons or other entities (for example football clubs) with a common pur­pose

[3] In Germany, Ligaverband (German top tier league) is an association com­posed of the thirty-six clubs of the two top tier divisions (Bundesliga and 2. Bundesliga). Ligaverband owns a subsidiary called Deutsche Fussball Liga (DFL). The DFL is a GmbH (Gesellschaft mit beschränkter Haftung), a kind of limited liability company that can be found in Germany, Austria, Switzerland and Liechtenstein. The DFL is responsible for the ‘strategic actions of the German League’

[4] (1996) ATPR 41-466

[5] Veljanovski C, ‘Sports Leagues Do Not Have Market Power? Murdoch’s Super League Setback in an Australian Court’, [1996] 4 ECLR 268.

[6] It has been estimated that News Ltd had committed well over $100 million in its attempt to launch Superleague: see Pengilley W., ‘Rugby League on Trial’, Aust. & NZ Trade Pracs. Law Bulletin, 11(9) March 1996.

[7] In Australia, the case was argued in Parish v World Series Cricket (Unreported, Supreme Court of N.S.W., Kearney J., 17 Nov. 1978), where the governing body of Australian cricket, the Australian Cricket Board, brought proceedings against World Series Cricket. This case was argued on a different basis, namely breach of contract, as the Board claimed to have contracts pre-dating the agreement with World Series Cricket: Kelly, op cit, at p.278. The establishment of World Series Cricket also raised sports advertising issues.

[8] Veljanovski, ibid, at p.269.

[9]http://www.mondaq.com/Nigeria/x/791502/Securities/The+Federal+Competition+And+Consumer+Protection+Act+2019+Regulatory+Implications+For+Merger+Transactions+In+Nigeria

[10] The Section prohibits agreements by undertakings or a decision of Association of undertakings in any market whose actual or likely effect is to prevent, reduce or distort competition.

[11] See Section 59 (2) (b) of the FCCPA 2019

[12] See Section 59 (2) (c ) of the FCCPA 2019

[13] Section 70(2)

[14] Section 70 (3)

Credits: Post was first published on stephenlegal.ng by Stephen Azubike, legal practitioner, consultant and social entrepreneur.

AGF, Malami Considers Adoke’s Demand For Apology Entirely Misconceived

Law & Society Magazine
-
0

“The Attorney General of the Federation is aware of current reports in the Nigerian press relating to a letter he has received from Mr Mohammed Adoke, with regards to the ongoing dispute between the Federal Republic of Nigeria (FRN) and the vulture-fund-backed P&ID.

In the letter, Mr Adoke has demanded an apology and “appropriate monetary compensation” – which the Attorney General’s office considers is entirely misconceived.

Mr Adoke is, of course, the subject of criminal proceedings in relation to the OPL 245 debacle. Investigations continue into Mr Adoke’s involvement in the OPL 245 deal, and also in relation to the disastrous and fraudulent gas supply agreement made with the BVI shell company P&ID.

Mr Adoke seeks to wash his hands of any involvement in settlement negotiations with P&ID, falsely stating that all settlement negotiations with P&ID took place after he had left office as the-then Attorney General of the Federation. This is simply untrue, as settlement negotiations took place in 2012, 2014, and during Spring 2015 when Mr Adoke was the-then Attorney General of the Federation.

It is noteworthy that Mr Adoke is being represented by Paul Erokoro SAN. Mr Erokoro SAN has in fact recently provided a sworn witness statement concerning certain factual matters on behalf of P&ID in the proceedings in London (in which he made no mention of the matters which he has raised in his letter). Mr Erokoro is also the lawyer representing Mr James Nolan of P&ID in the criminal proceedings on foot against Mr Nolan in the FRN. It remains to be seen how Mr Erokore SAN could be seen as impartial and not conflicted, given his various roles closely connecting him with P&ID.

The FRN took all reasonable steps and followed due process to uncover and investigate the fraud at the heart of the contract, to ensure that these serious allegations of bribery and corruption were only made when incontrovertible evidence was uncovered.

The FRN is relying on ongoing investigations across multiple jurisdictions to build its case against P&ID. Investigations into the GSPA are ongoing, and we are firmly committed to overturning the injustice of the multibillion dollar award.

US$10 billion represents a massive share of Nigeria’s national budgets. It is our duty as a government to ensure that justice is secured for the Nigerian people – no matter how long it takes.”

Magu Dares Accusers Over Evidence Of ‘Re-Looted’ Funds

Law & Society Magazine
-
105

The embattled suspended acting chairman of the Economic and Finan­cial Crimes Commission (EFCC), Ibrahim Magu, has dared his accusers to produce evidence of facts that he fraudulently converted the nation’s recovered looted funds to his personal account.

In his response to a presidential probe panel investigating allegations of gross misconduct against him by Abubakar Malami, Attorney Gen­eral of the Federation and Minister the allegations against him as false and calculated to tarnish his image despite the “commendable” achieveof Justice, Magu described ments of the EFCC under his leadership. ­

In the response titled ‘Al­leged Case of Conspiracy, Enrichment, Abuse of Public Office and Other Infractions’, he said “not a dime of the recovered funds was fraudu­lently converted to my person­al account”, adding, “I chal­lenge my accusers to produce evidence of such fraudulent conversion.”

He unequivocally denied the allegation, saying that “same is untrue and mere­ly calculated to tarnish my name, the commission, and the giant strides this admin­istration has achieved in the fight against corruption and recovery of proceeds of un­lawful activities”.

According to him, “It is the international best practice in audit to have an entry and exit meeting.

“During the exiting meet­ing, parties are expected to thoroughly review and recon­cile documents/data to enable the auditee to present neces­sary explanations to clear any grey area.”

Magu argued that contrary to the established interna­tional best practice and the principle of fair hearing as enshrined in section 36 of the 1999 constitution, the report of the Presidential Commit­tee on Audit of Recovered Assets (PCARA) and the doc­uments analysed before mak­ing the purported findings contained in Paragraph 5 of the petition were never made available to the commission to respond and clarify.

“I was not invited by the committee to defend myself and the commission before the purported findings were made. Fair hearing demands that I should not be indicted without being heard.

“The existing structure in the EFCC on the recovery of assets and the management of same will not allow any form of mismanagement of recovered assets to be perpe­trated.

“In the commission un­der my watch, funds are re­covered vide bank drafts in favour of the commission and lodged in the recovery accounts domiciled with the Central Bank of Nigeria (CBN).

“Sir, even when cash is re­covered during execution of search warrant, such funds are meticulously counted, kept in safe custody of the Exhibit Keeper, and lodged in the recovery account,” he explained.

Magu commended Pres­ident Muhammadu Buhari for giving him the unique op­portunity to defend himself of all the allegations levelled against him and the commis­sion, saying it was a demon­stration of the president’s commitment to the funda­mental principle of justice, which is “fair hearing”.

He said: “I am, howev­er, aware that when a lie is told over and over again, it acquires the semblance of truth.

“Therefore, it is neces­sary that I engage in a de­tailed rebuttal of the false allegations against my per­son and the commission, otherwise it acquires the flavour of truth.

“On the contrary, in sev­eral cases under investiga­tion, recovery and manage­ment of assets, the Office of the Honourable Attorney General of the Federation (HAGF) has either inter­fered with the process or has been less cooperative and supportive.”

In respect of the achieve­ments the EFCC has recorded in the fight against corrup­tion under President Buhari, Magu noted that it was con­trary to the assertion that he was not acting in the overall best interest of the country and the policies of the admin­istration.

“I wish to state that my ser­vice and records of achieve­ments have been commend­able.

“A comprehensive list of the key achievements of the commission under my lead­ership is attached and marked Annexure 1,” he said.

Also, responding to the al­legation that he fraudulently converted the recovered loot­ed funds to his personal ac­count, Magu said: “I am not a signatory to these accounts and the funds therein.

“I have never approved withdrawal from any of the commission’s recovery ac­counts for my personal ben­efit.

“There is nowhere I have reported the naira equivalent of the foreign currency recov­eries.

“As a matter of standard practice and procedure, the commission under my leader­ship reports foreign currency recoveries and not the naira equivalent of same.

“The commission under my leadership has never con­verted foreign currency recov­eries to naira.

“The allegation in para­graph 561 of the petition is untrue because I did not ma­nipulate the data of the com­mission’s recoveries.

“While I cannot confirm the source of the figures quot­ed in paragraph 5(ii) where the commission was alleged to have under-reported the sum of N39, 357,608,119.43, I am aware that by a letter dated March 24, 2017, the president instructed me to forward the status of various recoveries the commission made from May 2015 till the date of the letter.

“On receipt of the afore­said letter, I promptly com­piled a comprehensive list of the recoveries and forwarded same through a letter dated April 7, 2017.

“The purported un­der-reported sum of N39, 357,608,119.43 was admitted by the petitioner to have been lodged in the recovery account domiciled with the Central Bank of Nigeria, which is not under my total dominion and control.

“This demonstrates the falsity of the accusation of diversion of forfeited assets wrongly levelled against me.

“The commission, in the exercise of its statutory du­ties, is empowered to make recoveries for the Federal Government, state govern­ments, private individuals and corporate bodies and, as such, not all funds in the recovery account belong to the Federal Government of Nigeria (FGN).”

He said he had never dis­obeyed any directives and regulations of the president, whether in relation to the management of the recov­ered and forfeited assets or any sundry issues.

According to Magu, “All steps taken by me in respect of recovered and forfeited as­sets were in accordance with powers conferred on me by the Act of the National As­sembly which established the commission.

“In the discharge of my of­ficial functions, I am bound to of various enabling laws enacted by the NASS, which confer certain special powers on the commission in respect of recovered and forfeited assets which are in conflict with the Regulations of the HAGF. comply with the provisions

“Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, conferred on the commission the responsibility of tracing and forfeiting abandoned properties and properties reasonably suspected to have been acquired with proceeds of unlawful activities.

“Through the special provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offence Act, 2006, the commission un­der my watch has forfeited numerous properties to the FGN.

“Rather than strengthen­ing the institutional capacity of the commission and the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offenc­es Act, 2006, the commission and its enabling statutes have been subjected to numerous attacks and blackmail major­ly aimed at whittling down the powers of the commis­sion.

“One of such attacks is the provisions of Section 162 (3) of the Proceeds of Crime Bill, 2019, which seeks to delete Sections 6(d),13(2)(c), 20, 21, 22, 24, 25(a), (c) & (d), 26(1)(b), 29, 33, and 34 of the Economic and Financial Crimes Com­mission (Establishment) Act, 2004, which empowered the commission to investigate, prosecute, and confiscate assets.”

Magu claimed that he was always transparent in the exercise of his official duties and that there was no official decision that he had taken as acting chairman of the commission which was not a product of transparent pro­cess and in compliance with statutory provisions.

He said: “The commission did not oppose the enactment of Proceeds of Crime Bill, 2019 but was opposed to some negative and far-reaching provisions of the Bill which will impede and reverse the anti-corruption agenda of the FGN.

“Sir, I deny each and ev­ery allegation contained in paragraph B (10) of the peti­tion as they are totally false, untrue, and merely targeted at destroying my hard-earned reputation as an incorrupt­ible officer.

“That contrary to the al­legations contained in para­graph B(10) of the petition, I know as a fact and verily be­lieve that since my assump­tion of office as the acting chairman of the commission, not a single recovered or for­feited property has been sold and the proceeds fraudulently converted.”

EFCC Probe: Magu’s Lawyer Faces Ethics Pressure

Law & Society Magazine
-
0
EFCC Probe: Magu’s Lawyer Faces Ethics Pressure

• I haven’t breached any ethics, says Shittu

AHEAD of the resumption of probe next week of the suspended Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu, his counsel, Mr. Wahab Shittu, is under ethics pressure, it was learnt on Thursday.

A group, under the aegis of the League of Abuja Young Lawyers (LAYL), has urged the Presidential Investigation Committee, led by Justice Ayo Isa Salami, to impose sanctions on Shittu for alleged conflict of interests.

It said Shittu cannot be a counsel to Magu and EFCC at the same time. But Shittu said he has not breached any code of ethics, explaining that his defence of Magu does not amount to conflict of interest because he is not an employee of the anti-graft agency.

The group’s President Nwoko Clems alleged that Shittu, as a prosecutor to EFCC, can no longer represent Magu before Salami panel.

He said: “The panel should immediately ex- communicate Shittu as result of conflict of interest in the ongoing probe.”

But in a statement on Thursday, Shittu said: “This issue arose in the proceedings of Hon. Justice Salami’s panel and was argued and resolved. I have always appeared as counsel to EFCC in several proceedings.

“I have five landmark judgements obtained in favour of Magu and EFCC in which I appeared as counsel to both in the referred proceedings.

“Secondly, I have represented Magu in several libel matters as his counsel of choice.

“Thirdly, as a private counsel, I’m not retained by EFCC but the external counsel to EFCC, based on cases assigned to me by the commission.”

Saying there was no agreement between him and the EFCC not to handle any brief for the embattled acting chairman, Shittu said: “There is no agreement between EFCC and I that I’m not entitled to handle cases against EFCC as a private counsel. I have, however, as a matter of honour, refrained from taking up cases against the EFCC. It is my personal decision.

“Significantly, Magu has not been removed as EFCC chair; he is only suspended. There is no breach of ethics in representing Magu, who is only suspended but not removed, especially in the context that he remained the acting chair of EFCC at the time I took the brief.

“Lastly, Magu is not on trial by the EFCC but by the Salami panel, which is embarking on a fact- finding. I am not a salaried employee of the EFCC but a private counsel.

“For these and several other reasons, I submit that there is no conflict of interests whatsoever. I rest my case.”

1...1,0041,0051,006...1,073Page 1,005 of 1,073

Law & Society Magazine is a general interest magazine with a bias for law and its effects on the society

Contact us: [email protected]

© 2024 Copyright - Law & Society Magazine