Class Action: Past Present and Future
The Centre for International Advanced and Professional Studies (CIAPS) is set to hold a one day International Career Development Workshop on Class Action in Lagos.
The International Career Development And Training Workshop themed “Class Action: Past Present and Future is aimed at experienced and new Legal Practitioners at various level as well as Judges and Magistrates who want to improve their performance and those who are new to the role but want to reach high levels.

The programme has been designed bearing in mind the need of and with a lot of inputs from Lawyers and Judges, Legal Secretaries and Commissioners, Legislators, Advisers, Human Rights Activists, Consumer Protection Experts and Consultants from various industries across Africa.
The programme is an initiative of CIAPS with input from the Cambridge Law Society, The American Law Society, The Nigerian Bar Association and The African Bar Association will take place on Friday 23rd March 2018 at CIAPS From 2pm prompt plus a wrap up Cocktail from 6pm
Confirming the event CIAPS Centre Director Prof Anthony Kila noted that Class Action is one of those important areas of law to which legal experts in developing countries dangerously do not pay attention.

Amongst those slated to lead the international workshop are Roderick Farningham (England) Robert J. Gaudet, Jr. (USA) and Olisa Agbakoba (Nigeria).

Commenting on the programme, Olisa Agbakoba added that the main purpose of this programme is to help create Class Action Experts that can successfully manage the inevitable challenges and opportunities inherent to Class Action in developing countries.

Kila noted that Legal Experts of the future will understand that the nature of their job is changing and affected by technology, they will be able to make the most of social media and technology in general, be versatile and capable of taking initiatives.

A CIAPS survey carried out recently amongst Chairmen and Directors, Diplomats, Ministers and Commissioners, Legislators, Advisers, Media Practitioners, Human Rights Activists, Consumer Protection Experts and top Consultants revealed that most of them understand that Class Action is fast gaining grounds in Nigeria and they all want legal experts who work closely with them to have a good understand of analysing and managing Class Action for and against them.

Key Areas to be covered in this workshop include:

• Class Action and Locus Standi
• Initiating Class Action
• Class Action and the Media, ICT
• New Media and Class Action
• Managing with Wavering Clients
• Overview of Class Action in Nigeria
• History and Development of Class Action in the UK
• History and Development of Class Action in the USA & Canada

Interested participants can register online by visiting www.ciaps.org Calling +23413428624 or +2349022442197 or sending an Email to via op@ciaps.org

At Zimbabwe’s independence in 1980, the name Mugabe invoked hope in every African. He invoked hope particularly in the people of South Africa who were at that time being crushed by the Apartheid machine. Nelson Mandela probably found hope in Mugabe from his lonely prison cell in Roben Island. Zimbabwe gave all Africans hope. Mugabe personified this hope. He was the leader of a potentially great country. Zimbabwe was a country where all found hope, whether you were black or white. Zimbabwe with a strong economy was the food basket of Southern Africa with the potential to feed the sub-region.

After 37 years in power, the story is now different. Zimbabwe is now a shadow of its old self. Great hope has turned into desperate despair. Mugabe has brought this potentially great country to its knees. The economy is in shambles and the country now on food aid. In the name of equitable land redistribution, he destroyed the agricultural base and potency of Zimbabwe. The oppression of the citizenry became common place. Torture and gross violations of human rights became the order of the day.

Mugabe at 93 was determined to die in office. The will of the very people he fought to liberate didn’t matter anymore. Elections became a charade and a mockery of the electoral process. He had several chances to leave office honorably after his party lost elections but wisdom seemed to have eluded him. In the natural cycle of life, we grow wiser with age – but this is not the case with Mugabe.

He was a man destined for greatness – a sure candidate for Africa’s Hall of Fame. Providence had stage managed greatness for him. But with his own hands and the “Grace” of his wife, he has thrown himself to the opposite side of the equation. He is now top on the list of those to end up in the dustbin of history.

The story of Robert Mugabe is tragic. The man himself a tragedy – once a hero, now a villain. What happened to Robert Mugabe?

Audu Echono

The Nigerian legal system can best be described as a combination of Nigerian legislation, English law, customary law (including Islamic law) and judicial precedents. Nigerian colonial experience left her with a plural-legal system. In this regard, all the African States formerly under British administration share a common experience with regard to their legal and judicial systems. Nigerian legislation therefore consists of statutes and subsidiary legislation. Statutes consist of Ordinances, Acts, Laws, Decrees and Edicts.

With respect to inheritance, the question of legitimacy and legitimization are principally connected with the status of the successor of the deceased. According to Kasumu and Salacuse (Nigerian Family law 1966), legitimacy is the status acquired by a person who is born in lawful wedlock and such a person is regarded as been legitimate from birth. Since lawful wedlock includes marriage under the Act, as well as customary law, which includes Islamic marriage, any child born during the subsistence of either of these aforementioned marriages is legitimate as was held in Lawal v. Younan [1961] 1 All NLR 254. Also, if the child is born within 280 days after his parents have obtained a decree absolute, the presumption of legitimacy will still apply to the child. Under Islamic law, a child is presumed to be legitimate once he is conceived during subsistence of the marriage. It is immaterial whether the child is born after the marriage has been dissolved. In Nigeria, the concept of legitimacy is very important because of the social stigma that is associated with illegitimacy. At common law as was seen in the case of Galloway v. Galloway (1965) A.C. 229-311, an illegitimate child had no right of inheritance whatsoever with regard to his parent. He is described as filius nullius. The illegitimate child was a stranger in law not only to his father but also to his mother and all other relatives. He thus, had no legal right to succeed to their property, to receive maintenance “or other benefits deriving from the status of parent and child.” Also, an illegitimate child has no right to participate in the intestacies of either of his parents. Likewise, neither of his parent had a right to inherit on the intestacy of the illegitimate child. He also had no right to take on the intestacy of a grandparent or brother or sister (whether legitimate or not) and vice versa.

The influence of received English law on customary law is very prominent in the area of personal laws (marriage and inheritance). Laws governing the marriage relationship in Nigeria tend to impact dramatically on women’s legal position and status in many respects including domicile, property rights and legal competence. Invariably, a woman’s right to property depends on the type of marriage she contracted. There are two types that are recognised under the law: statutory marriages and customary marriages, which include marriages under Islamic law. Therefore, any discourse on women’s inheritance rights in Nigeria must be done in the light of diversity of the legal system.

By reason of the pluralistic nature of the Nigerian legal system, different systems of law apply to determine who succeed and inherit property of deceased persons. In determining which systems of law is applicable to a particular deceased, it is necessary to determine whether he died testate or intestate, that is having written a Will in his life time or not. If he wrote a Will in his life time, then the terms of his testamentary instrument automatically displace any existing rules of inheritance, whether under any Customary law, Islamic law or marriage under English law. It is only when he died intestate that the questions; was he a Moslem, was he married under the statute or what was his customary law would arise.

Nigerian law on testate inheritance/succession includes: The Wills Amendment Act, 1937 and the Wills Amendment Act, 1852, regarded as statutes of general application, which were in force in England on January 1, 1900 and the Wills (Soldiers and Sailors) Act, 1918 which deals with the formal validity of Wills. In some states of the federation of Nigeria, the 1958 Wills Law, CAP 133, Laws of Western Nigeria applies. These states include Oyo, Ogun, Ondo, Osun, Ekiti, Edo and Delta. This law is essentially a re-enactment of the above mentioned laws on Wills. However, section 3(1) of the Wills Law, 1958 contains a provision not contained in the other Laws mentioned above to the effect that: “The real or personal estate which cannot be disposed by the applicable customary law, cannot be disposed by will”. Testate inheritance in some states in Eastern Nigeria is governed by the Succession Law Edict, 1987. The provisions of part 4 of the 1987 Edict are similar to those in the Wills Act, 1832 and Wills Law, 1958. It is important to note that these laws apply in respect of the spouses of a statutory marriage and their children. No disability is placed on widows with regard to inheritance under a testamentary disposition. They are not treated differently from other beneficiaries with regard to their general right of inheritance as their counterparts in England. The provisions of these laws, however, do not extend to widows who contracted customary law marriage which is a marriage governed by customary law which law is a reflection of the popular consciousness of the people who evolved it.

Legitimization is the process by which a child who has not been born legitimate acquires legitimate status. In Nigeria, legitimization can be achieved either by the subsequent statutory marriage of the parent of the illegitimate child or through the process of acknowledgement under customary law. Legitimacy by subsequent marriage was first made possible under the provisions of the Legitimacy Act 1929 which applied throughout the whole country at that time. Under the aforementioned statute, where the parents of an illegitimate child marry after the birth of the child, the child becomes legitimate from the date of the marriage. But if the marriage took place before the date the legislation that is, Ordinance came into effect, then the date of legitimization, will be the date the Act came into effect. The legal effect of legitimization is that the legitimated child acquires the same status with children born in lawful wedlock. He can effectively participate in the administration of the estate of his parents and also be entitled to inheritance. However, when an illegitimate person died after the commencement of the Act, and before the marriage of his parents, his spouse, children and remoter issue living at the date of the marriage of his parent will inherit property and take any interest as if the person had been legitimized before his death.

On the other hand, under customary law, a child though born out of wedlock can be legitimized by acts of acknowledgement by his putative father. The legal effect of acknowledgement was aptly described by Cole, J in Taylor v. Taylor (1960) L.L.R. 286, when he held that “the acknowledgement of paternity by the father ipso facto legitimizes the children and there could not for the purpose of succession be different degrees of legitimacy”.

Testate succession consists primarily of wills. In Nigeria, there is no uniformity of applicable laws relating to wills. Consequently, among the states that were created out of the former western region, the applicable law is the Wills Law. By virtue of the provisions of the Lagos State (Applicable Laws) Edict of 1972, Lagos State adopted the Western Nigerian Law. On the other hand, the rest of the country consisting of the states from the Northern and the Eastern part, still apply the English Wills Act 1837 and the Wills Amendment Act 1852.

A critical analysis of the provisions of the Wills Law shows that the legislation basically re-enacted the provisions of the Wills Act 1837 and the Wills Amendment Act 1852 together with the provisions of the Wills (Soldiers and Sailors) Act 1918, but with inclusion of some provisions that took into consideration the prevailing customary laws and principles that regulate succession under customary law in the affected states. Also, Section 15 of the Wills Law provides that every Will made by a man or woman shall be revoked by his/her subsequent marriage. However, the Wills Law exempts a marriage in accordance with customary law from having this effect.

On the other hand, intestate succession basically involves the applications of three systems of laws, like the position with legitimacy and legitimization. These are (a) the common law (b) the Administration of Estate Laws of the various States and (c) customary law. The crucial question is how does one determine the applicable laws to be applied in cases of intestates’ succession non-customary? According to Prof. Itse Sagay (SAN) “the factor, which determines which system is to apply in every case, is the type of marriage contracted by the intestate person. In the case of Muslims, the religion practised by the deceased is also relevant”. Commenting further, the learned Professor stated the principles of law as follows: Thus, if a person contracts a Christian (monogamous) marriage outside Nigeria, the common law of England governs the distribution of his estate. If he contracts a statutory (Act) marriage in Nigeria, then if he dies domiciled in Lagos or any of the states comprising the old Western Region, then the Administration of Estate Law will govern. If he contracts a statutory marriage, but dies domiciled in any of the states comprising the former Northern or Eastern Regions, which are yet to enact their own law on non-customary succession, then the common law will also govern the distribution of his estate. Finally if the intestate person was an indigenous Nigerian and he did not contract a Christian or Act marriage, or even if he did, and no issue or spouse of such a marriage survived him, his estate will be distributed in accordance with the relevant customary law. If the intestate was a Muslim, then Islamic law would govern.

It is imperative to bear in mind that the above stated position of the law is subject to many qualifications. For instance, in cases involving the distribution of immovable properties of intestate persons, the applicable law is the lex situs, in other words, the law of the place where the land is situated. Therefore, the above generalisation is only correct with respect to movables. Also, where a person who is subject to customary law or Islamic law dies intestate, it is his personal law that will apply to the distribution of his immovable property and not the lex situs.

Sokombaa Alolade

As have been witnessed, most abductors either demand for ransom before releasing their victims, or they abduct their victims who they perceive to be their enemy politically or religiously and in this instance they mostly kill or eliminate such an abducted person. Kidnapping for ransom is a common occurrence in various parts of the globe today and certain cities and countries like Mexico and Pakistan are often dubbed ‘‘kidnapping capital of the world’’.

In Nigeria, kidnapping has become a worrying trend in recent times as we have come to witness especially in the southern parts of the country. Kidnapping has become endemic in the Nigerian society. It is fast becoming a lucrative alternative to armed robbery. The gravity of kidnapping is so intense that it has virtually affected many persons in our society. The current dimension of kidnapping took alarming dimensions in the Niger Delta region when militants in February 2006 abducted some oil workers, presumably to draw global attention to the dire situation in the oil rich Niger Delta region of the country – the victims were mostly foreigners. Since that time to date, the social ills of kidnapping has spread like wild-fire in most parts of the country, especially in the entire southern region. The targets today are no longer foreigners alone; practically every perceived rich Nigerian or relatives of rich Nigerians can now be a target of kidnappers.

The question now is, why is the crime of kidnapping seemingly so prevalent in Nigeria, are there no laws to adequately cater for this crime in our society?

A statistic released by NYA International, a specialist crisis prevention and response consultancy, indicates that Nigeria accounted for 26 per cent of kidnap and ransom incidents globally in the first half of 2013. Kidnapping is big business in Nigeria at this time; hardly does any month go by without news or reports that someone has been kidnapped.

The Criminal Code Act, CAP C38, LFN 2004, also provides a penalty for kidnapping. The law provides in Section 364 that –
“Any person who –
1. Unlawfully imprisons any person, and takes him out of Nigeria without his consent; or
2. Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned,
Is guilty of a felony and is liable to imprisonment for ten years.“

However, many people have argued that the present anti-kidnapping laws in the country are not stringent enough to dissuade criminals from finding it a lucrative avenue for making fast money. Many have lent their voices for stricter penalties for kidnapping in Nigeria. This is why states like Edo, Delta and Oyo States have passed the Anti – Kidnapping laws and imposed the death penalty for convicted kidnappers.

Governor Abiola Ajimobi of Oyo state assented to the new Kidnapping (Prohibition) Bill 2016, which prescribes death sentence or life imprisonment for any person who engages in kidnapping. According to the law, any kidnapper whose victim or victims die while in captivity will be liable to capital punishment while a convicted offender whose victim is released or rescued unhurt upon the payment of a ransom, will be liable to life imprisonment and be compelled to pay back the ransom.

The law further prescribes various punishments for any person who threatens to kill, maim or cause bodily harm in order to compel another person, corporate body or organization to do or obtain from doing any act as a condition for the release of the victim. Similarly anyone who makes an attempt to kidnap, aids or abets kidnapping will be sentenced to not less than 15 years imprisonment.

One must commend the Oyo State House of Assembly for a thorough job. Virtually everybody who plays one role or the other in a kidnapping case, including the person who plans his kidnapping in other to extort money from another person is captured in this law.

As a way of endorsing the moves by some states in Nigeria in their efforts at trying to curb kidnapping in the country, the Nigerian Senate also endorsed a move to enact capital punishment for kidnappers. The Senate, agreed to begin a process for the enactment of a law that would prescribe capital punishment for kidnappers across the country. The Senate also asked state governments to enact laws that would prosecute kidnappers and other crime-related offences in their jurisdiction and recommended that the Inspector General of Police and Director-General of the Department of State Services, DSS, in particular as well as other security agencies be encouraged to do more.

These resolutions of the Senate were sequel to the consideration of a report of the Joint Committee on Police Affairs, National Security and Intelligence in respect of a motion on the unfortunate recurrence of kidnapping and hostage-taking in Nigeria, entitled, “A National Wake-Up Call.” The Senate also recommended that the funding of security agencies be taken as a priority project, bearing in mind that the practice of envelop budgeting for security agencies had proved ineffective, adding that efforts should be put in place to create employment opportunities for the nation’s teaming unemployed youths. It also agreed that security agencies should embark on training and retraining of their personnel for effective capacity building.

The Senate equally stated that synergy and information sharing between security agencies should be pursued vigorously. The recommendation for death penalty, as adopted by the Senate, was recommended by Senator Adamu Aliero (APC-Kebbi Central) as an additional recommendation after the six resolutions were already adopted by the lawmakers.

It is our hope that Nigerian institutions would sit up and pay more than lip services to its obligations to the Nigerian populace by not just enacting stringent laws against kidnapping but also following it up with the will to enforce those laws; making sure that no perpetrator goes unpunished irrespective of his tribe, religion or status in society. It is often said that Nigeria is not deficient in beautiful laws but what is lacking is the will to enforce these laws. The onus is on those in authority to enact and enforce anti-kidnapping legislations across the country.

Lanre Adedeji

The military of any nation is indeed its defence and strength as a major responsibility of this all important body is the protection and defence of a state and her people. While it is indeed a noble profession that requires a lot of sacrifice and sometimes discomfort, this piece examines the ugly trend of sexual assault and misconduct against females within the military by male colleagues in the military. This trend sadly, occurs in military forces all over the world although this work will be restricted to jurisdictions where reports of such abuse have been made and the attendant efforts if any, made to curb this evil.

Historically, the media highlights the issue of sexual assault in the military by focusing on high profile cases. These cases result in public outrage and the military in turn focuses its efforts on the issue of sexual assault. The issue of sexual assault in the military services drew international attention in the early 1990s and with each high profile case, more media attention was recorded. Media coverage of military sexual assault cases draws attention to the Armed Forces, which in turn, leads to a perception that the military is a male-dominated culture that fosters a climate where sexual assaults are prevalent. While the military wants to ensure public confidence and transparency by providing the public with information, high-profile sexual assault cases have led to public criticism regarding prosecution and punishment for sexual assault in the military services. In reporting these cases, one must consider the following questions: do the vast majority of military sexual assault cases receive proper investigation and adequate disposition through the military justice system? Are the cases featured in the media anomalies of an otherwise effective system, or are they examples of how the military justice system is less effective than its civilian counterparts?

On 8th November 1996, The Daily Record reported that drill sergeants, among others, at Aberdeen Proving Ground, a training installation in Maryland USA, engaged in consensual and non-consensual sex offenses against young enlisted women trainees. Eventually, the Army charged twelve commissioned and noncommissioned officers with sexual assault against female trainees.

The former US Secretary of Defence Chuck Hagel in May, 2013 in addressing sexual misconduct/assault within the military said:
Sexual assault . . . strikes at the core of the military. “This department may be nearing a stage where the frequency of this crime and the perception that there is tolerance of it could very well undermine our ability to effectively carry out the mission and to recruit and retain the good people we need. Pentagon estimates of how many troops are sexually assaulted show the numbers increased by 35% since 2010, from 19,300 service members believed to be victims that year to 26,000 in 2012, according to a Department of Defence (DoD) survey released.

Further drawing attention to this issue, sexual misconduct cases came to light in the US in 2003 that involved members of the highest levels of the Army, such as the Sergeant Major of the Army Gene McKinney and Major General David Hale, who were both tried by courts-martial. Sergeant Major of the Army McKinney, the Army’s top ranking enlisted soldier, was charged and tried by court-martial for sexual assaults and obstruction of justice. The most senior Army officer to be tried by court-martial in more than fifty years, Major General Hale, was convicted of sexual misconduct, fined, and administratively reduced to brigadier general.

In a substantial percentage of the sexual assault cases, the victim is intoxicated when he or she is sexually assaulted. Under military law, the focus is on the accused’s perceptions of the victim’s level of intoxication, which is likely to be based on the accused’s self-serving description of the victim’s conduct.

Sexual assault offenses occurring within the United States on military installations are within the criminal jurisdiction of at least two sovereigns, depending on where the assault occurs. The military services may not take jurisdiction over some cases where other authorities have concurrent jurisdiction. Offenses on a military installation in areas of exclusive federal legislative jurisdiction may be prosecuted by the U.S. Attorney’s Office in U.S. District Court or by military prosecutors in courts-martial; offenses occurring outside the military installation, or on areas of concurrent legislative jurisdiction within military installations, may be prosecuted in state courts or by military prosecutors in courts-martial.

On January 2, 2013, President Obama signed the 2013 NDAA into law. The 2013 NDAA, Section 572 requires the DoD to collect deposition records of sexual assault, unrestricted reports, including court-martial, non-judicial punishment, or other administrative action. The deposition file is required to contain all documentary information collected regarding the case (not just investigators’ reports), and a list of the records required is included in Section 572. Deposition records must be maintained for a period of at least twenty years, and some reports will be maintained for fifty years. Section 575 requires the DoD to include greater detail in annual reports on sexual assaults, including reasons for any dismissal of charges, character of discharge when an accused is administratively discharged or allowed to resign, any prior offense or admission to the service on a waiver for a sex offense, branch of service of accused, involvement of alcohol in the offense, and specific punishment given at non-judicial punishments.

Israel’s Military Justice Law (MJL), 4715-1955 as amended, established a system for the adjudication of Isreal Defence Force (IDF) active service soldiers, reservists, and military contractors accused of having committed military or criminal offenses while in service. The MJL provides for adjudication by military courts or alternatively through disciplinary proceedings depending on the gravity of the offense and the rank of the accused. Although the MJL has been amended numerous times, there have not been any significant statutory changes to the IDF adjudication system since the MJL’s entry into effect in 1955. Reform of the IDF’s adjudication in disciplinary proceedings, and especially in cases involving sexual offenses, has instead evolved through changes in military policies in response to new challenges posed with the passage of time and requirements imposed by Israel’s Supreme Court. Some important changes to the adjudication system include the removal of the determination of adjudication from the chain of command in some cases and new requirements for legal training or IDF-specific training in dealing with sexual harassment offenses.

Several changes have taken place in recent years that impacted the adjudication of sexual offenses within the IDF. These include the way in which the determination of whether to pursue an adjudication is made and the forum for such a determination. Unlike the adjudication of other violations of military law, the decision on whether to adjudicate sexual offenses in disciplinary proceedings can only be made by the Military Advocate General’s (MAG’s) attorneys and not by commanders. An additional development in adjudication of “lighter” sexual offenses in disciplinary proceedings is the requirement that presiding Adjudication Officers (AOs) be at least at the rank of Lieutenant Colonel and have either a legal education or special training in handling sexual harassment cases at the IDF School of Military Justice. Israel’s Military Advocate General (MAG) maintains a database of AOs who are qualified to adjudicate sexual harassment cases. The selection of the AO for such disciplinary proceedings from the database is made by the MAG and not by a commander.

According to the MJL, “where a soldier below the rank of Lieutenant General is charged with a military offense the penalty for which does not exceed three years’ imprisonment, and which was perpetrated either in Israel or outside of it, a disciplinary officer shall have power to try him disciplinarily.” Among offenses that are considered “a military offense” for the purpose of disciplinary adjudication are offenses under the Law for the Prevention of Sexual Harassment, 5758-1998. Unlike offenses such as rape or battery, which are adjudicated by military courts outside of the chain of command, other “lighter” offenses under the law, such as treating a person in an offensive way because of her or his gender or sexual orientation, are usually handled in special disciplinary proceedings.

GSO 33.0145 provides that victims of sexual offenses may seek assistance, treatment, and guidance by contacting their commanders (except where the commander is the alleged offender themselves, soldiers appointed by the commander to handle sexual harassment complaints, or the unit’s medical or mental health officers, as well as EEO (Equal Employment Opportunity) personnel. Victims may be reassigned to a different unit after having being heard and following consultation with their commander. Commanders who have been informed of allegations of sexual offenses must report such complaints to adjutant officers and in their absence to the EEO, to their own unit commanders, and to the MAG. A report alleging perpetration of sexual offenses will not be forwarded to a commander if the soldier requested confidentiality or when the commander is the subject of the complaint.

The Nigerian Armed Forces Act Cap A20, LFN 2004 which is very similar to the Armed Forces Act of the UK also deals with cases of sexual misconduct in the military. Sections 77 to 81 of the Nigerian Armed Forces Act provides for offences that fall under sexual misconduct. Highlights of some of these provisions are:
Section 77 provides that a person subject to service law under this Act who has unlawful carnal knowledge of a woman or girl without her consent or with her consent if obtained—
a) by force or by means of threat or intimidation of any kind; or
b) by fear of harm; or
c) by means of fake and fraudulent representation as to the nature of the act; or
d) in the case of a married woman, by impersonating her husband,
is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.
Section 78 further provides that a person subject to service law under this Act who has carnal knowledge of a girl, being under the age of sixteen years is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.

Section 79 also makes having carnal knowledge of a fellow officer’s spouse or the spouse of anyone subject to service law an offence which is punishable by imprisonment for a term of five years. The section however provides that for conviction in such a case, there must be corroborated evidence of the witness.

At the core of the existence of the military in any country, is discipline and respect for law and order. Officers and personnel of the military are expected to conduct themselves with decorum, restraint and the highest level of decency and discipline. Where these attributes are lacking in a military officer and he degenerates to sexually assaulting a female colleague or civilian, his recognition as an officer and a gentleman collapses. Rape or sexual assault is probably the highest form of offence that a man can commit against a woman (except killing her). So where an officer descends so low as to sexually assault or rape a woman, he should be summarily dealt with by the full force of the laws that are applicable. It is also important to add that military institutions all over the world, should desist from sweeping cases of sexual assault of women by military personnel under the rug. The American example as mentioned in this piece is laudable. Where the dignity of a female officer is violated and compromised, her capacity to effectively perform her duties and functions are greatly limited if not totally diminished and this could put the lives of her colleagues both male and female in jeopardy.

Sokombaa Alolade

Performance techniques play a significant and valuable role in the entertainment industry. Musical genres are often associated with particular combinations of performance techniques and individual performing artists are often recognized for unique performance techniques. Performance techniques may include methods for producing particular dance moves or choreography, methods for controlling an individual’s vocal chords and even methods for use of particular props or instruments or methods for creating illusions on stage. These techniques are intellectual property, similar or closely related to choreography, sound recordings, lyrics, musical compositions, performances and audiovisual works – all of which are traditionally protected by copyrights.

In answering the question on whether choreograpy/dance steps can be protected under Intellectual Property law, it is pertinent to look at works that are qualified and eligible for protection under intellectual property law. Eligible works are works of copyright which intellectual property law in any jurisdiction, will protect. However, there are specific works that are statutorily recognized and therefore enjoy protection. The law to be referred to in this piece will be the Nigerian Copyright Act, Cap. C28, Laws of the Federation 2004 (CPA, 2004) which derived its origin from the English Copyright Act 1814 and which is also similar to copyright and intellectual property laws of most other jurisdictions.

By virtue of section 1(1) of the CPA, 2004; the term ‘work’ is defined by giving a classification of the elements that are contained therein. The Act in further defining the term, gives the classifications below:
a) Literary works includes, irrespective of literary quality, any of the following work or works similar thereto:
I. Novels, stories and poetical works;
II. Plays, stage directions, film scenarios, and broadcasting scripts;
III. Choreographic works;
IV. Computer programmes;
V. Text books, treaties, histories, biographies, essays and articles;
VI. Encyclopedias, dictionaries, directories, and anthologies;
VII. Letters, reports and memoranda;
VIII. Lectures, addresses and sermons;
IX. Law reports, excluding decisions of courts and
X. Written tables or compilation.

The section also goes to give the other classifications of work as; musical work, artistic works, cinematograph film, sound recording and broadcast.

However, section 1(2) provides for an exception that states that a literary work (including choreography), musical or artistic work shall not be eligible for copyright unless:
1. Sufficient effort has been expended on making the work to give it an original character: for this provision to be met, the owner of a literary work (choreography) who seeks to have his work copyrighted, must be able to prove that sufficient effort has gone into the making of that work/dance step such that it carries on an original character. The Nigerian court in the case of Offrey v. Chief S.O Ola & Ors 12 NIPJD (HC. 1969) H/23/1968, held that copyright would exist in any given product if that product is the result of some substantial or real expenditure of mental or physical energies of the producer and the labour or skill was not a negligible or commonplace one. The court further stated that the amount of labour, skill, judgment and ingenuity required to successfully support a claim for copyright was a question of fact and degree in every individual case. The case was a landmark case as it clearly showed that sufficient effort will be deemed to have been expended on the work to give it an original character only if there is in the work evidence of some industry and knowledge. In the same vein, the English court in the case of Cramp & Sons v. Frank Smythson Ltd. (1944) AC 329, held that the precise amount of knowledge, labour, judgment or literary skill or taste which the owner of the work must bestow in order to acquire copyright, must in each case be very much a question of degree.
2. The work should be fixed in a definite medium of expression now known or later to be developed: in the English case of Norowzian v. Arks (1998) EWHC 315, the courts explained this principle to mean that the work being desired to be copyrighted must be one that has been definitely expressed in a language already known or a language which is later to be developed and from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.

From the foregoing therefore, the answer to our question above will be that for choreography or dance steps to be classified as a literary work that can carry copyright privileges, it must be one that meets the two requirements discussed above. This is an aspect of copyright that seems complicated as everyday around the world, new dance steps/choreographies are introduced by musicians and their dancers while recording music videos or even during life performances. In applying copyright laws, it would be safe to say for choreography or dance step to be eligible to be copyrighted, it must be one that in no way resembles choreography or dance steps of another artist or dancer. This would be very difficult though as most dancers even while ‘inventing’ a new style of dance, still incorporate in one way or another choreography or dance steps of other artists or even choreography of older and possibly dead artists.

Sokombaa Alolade

In doing this, the law provides the opportunity for litigants to adduce before the courts evidence of any previous conviction by a court with competent jurisdiction, as this would help guide the court from wasting its time and resources in delving into the case afresh again. Apart from the court saving its time and resources, the Constitution of Nigeria 1999 (as amended) also provides under section 36 (9) for adducing previous conviction on a case with same ingredient as that presently before the court. Section 221 of Nigeria’s Criminal Procedure Act (CPA) and 223 of Criminal Procedure Code also forbids the trial of an accused person twice for an offence having same elements. The cases of R v. Jinadu 12 W.A.C.A. 368 and R v. Noku 6 W.A.C.A. 203 are very instructive in this regards.

The Nigerian Evidence Act 2011 under sections 248 – 250 further provides scenarios pertaining to adducing evidence of previous convictions before our courts thus:
Proof of previous conviction- section 248 Evidence Act;
(1) Where it is necessary to prove a conviction of a criminal offence, the same may be proved-
a. By the production of a certificate of conviction containing the substance and effect of the conviction only, purporting to be signed by the registrar or other officer of the court in whose custody is the record such of the said conviction;
b. If the conviction was therefore before a customary court, by a similar certificate signed by the clerk of court or scribe of the court in whose custody is the record of the said conviction; or
c. By a certificate purporting to be signed by the Director of Prisons or officer in charge of the records of a prison in which the prisoner was confined giving the offence for which the prisoner was convicted, the date and sentence.
(2) If a person alleged to be the person referred to in the certificate denies that he is such person, the certificate shall not be put in evidence unless the court is satisfied by the evidence, that the individual in question and the person named in the certificate are the same.

In addition to the above provision which relates to convictions made in Nigeria; the Act also envisages convictions that may have occurred outside the shores of Nigeria. Section 249 of the Act for instance provides for proof of previous convictions outside Nigeria thus:
(1) A previous conviction in a place outside Nigeria may be proved by the production of a certificate purporting to be given under the hand of a police officer in the country where the conviction was had, containing a copy of the sentence or order and the finger prints of the person or photographs of the finger prints of the person so convicted together with evidence that the finger prints of the person so convicted are those of the defendant.
(2) A certificate given under subsection (1) of this section shall be prima facie evidence all facts set out in it, without proof that the officer purporting to sign it did in fact sign it and was empowered to do so.

Furthermore, with regards to a defendant proving his previous conviction before the court in criminal proceedings, section 250 of the Evidence Act provides additional mode of proof thus:
(1) A previous conviction may be proved against any person in any criminal proceeding by the production of such evidence of the conviction as mentioned in this section; and by showing that his finger prints and those of the person convicted are the finger prints of the same person.
(2) A certificate-
a. Purporting to be signed by or behalf of the central registrar;
b. Containing particulars relating to a conviction extracted from the criminal records kept by him or a photographic copy certified as such of particulars relating to a conviction as entered in the said records; and
c. Certifying that the copies of the finger print exhibited to the certificate are copies of finger prints appearing from the said record to have been taken from the person convicted on the occasion of the conviction, shall be evidence of conviction and evidence that the copies of the finger prints exhibited to the certificate are copies of the finger prints of the person convicted.
(3) A certificate-
a. Purporting to be signed by or on behalf of the superintendent of a prison in which any person has been detained in connection with any criminal proceeding or by a police officer who has had custody of any person charged with an offence in connection with any such proceeding; and
b. Certifying that the finger prints exhibited to it were taken from such person while he was so detained or was in such custody as mentioned in paragraph (a), shall be evidence in those proceeding that the finger prints exhibited to the certificate are the finger prints of that person.
(4) A certificate-
a. Purporting to be signed by or on behalf of the central registrar; and
b. Certifying that-
i. the finger prints copies of which are certified as mentioned in this section by or on behalf of the central registrar to be copies of the finger prints of a person previously convicted, and
ii. the finger prints certified by or on behalf of the superintendent of the prison or the police officer as mentioned in this section or otherwise shown to be the finger prints of the person against whom the previous conviction is sought to be proved are the finger prints of the same person, shall be evidence of the matter so certified.
(5) The method of proving a previous conviction authorized by this section shall be in addition to any other method authorized by law for proving such conviction.

Evidence of Previous Criminal Conviction in a Civil Trial
On the flip side, a crucial question that comes to mind is that; can the evidence of a previous conviction in a criminal trial be adduced in a civil trial where it is relevant. In this regard, the point here is that where the parties are the same and the facts are the same and the aggrieved or injured party decides that the conviction secured by the state is not satisfactory to him, can he proceed and sue the convicted individual for damages in a civil trial? In England, under the common law, in the case of Hollington v. F. Hewthorn & Co. Ltd. (1943) 2 ALL ER 35, it was held that a criminal conviction could not be admitted into evidence in a subsequent civil proceedings as proof of the facts of the conviction. This however is no longer the position in common law countries.

For instance in Canada, the treatment afforded to criminal convictions in civil cases has evolved since the Hollington case. Courts there have increasingly recognized that the final decision of a competent, expert, criminal court should be an important and in some cases a decisive factor in subsequent civil proceedings. However, this presumption is and should be rebuttable. The same is obtainable in the U.S. Also, the Nigerian case of Joseph Mangtup Din v. African Newspapers of Nigeria Ltd. (1986) SC 44 establishes the same principle that the evidence of previous conviction can be adduced in a subsequent civil case.

We agree with the view that where an injured or aggrieved party is not satisfied with the conviction of an accused person because the act or acts for which he was convicted caused him adverse effects or damages and he decides to sue, the court in deciding the subsequent civil matter should allow or entertain the proof of previous conviction in evidence to help it decide the civil trial.

The steps stated above are some of the ways provided by Nigerian law for adducing evidence of previous conviction before the courts by a defendant; and this has been painstakingly written in black and white by the Evidence Act to help ensure that an accused does not face double jeopardy with regards to an offence for which he or she has already been convicted for and served necessary sentence. The Nigerian law through this Evidence Act provision recognizes the need to protect litigants in this regard as is obtainable in other developed jurisdictions of the world.

Lanre Adedeji

One major Tort or civil wrong is nuisance. Nuisance is a very old tort which seeks to protect persons or the society from acts that they would consider inimical to their peace and safety. Nuisance has been defined as:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

The elaboration and refinement of nuisance law took place at the height of laissez-faire, roughly speaking the period between 1850 and 1900, when increased industrialization created new sources of pollution from factories, steamships and railroads that exceeded in scope and intensity over the stench whenever a farmer burnt weeds on his land. Those major and mobile pollution sources called for an immediate response because pollution shows no favorites. Air and water pollution are highly mobile and are carried by wind and tide, so that no one is immune to their adverse consequences.

The paradigmatic or typical tort was trespass, which involved the direct application of force against the person, chattels, or land of another individual. Nuisance, as defined above was the close analogy. The usual remedies against these forms of pollution was stringent as it related to both land and water. With respect to past harms, the defendant had to make good the losses caused. With respect to future harms, the first line of defense was the injunction that could be invoked for nuisances in process or for those which were imminent. Any relief prior to that time was generally disfavored on the ground that it could unduly stop productive activities that did not cause harm. The injunction, when issued, did not have to shut down the defendant’s activities entirely. Its primary objective was to stop the pollution with as little collateral dislocation to the defendant’s operations as possible.

In practice, English and American judges adopted a two-fold strategy. First, impose an injunction, subject if need be to appropriate conditions, to deal with the major threat. Then supplement the injunction with damages to “clean up” the losses that remained behind. The basic rule observes standard marginalist principles. The injunction is allowed up to the point until any dislocations on the other side become massive. Unlike the law of trespass generally, nuisance law has always tolerated low-level background interferences under a live-and-let-live principle, which recognizes the simple fact that moving to a pollution-free environment is too costly.

The most famous articulation of that live-and-let live principle is by the staunch libertarian, Baron George Bramwell, who defended the result as early as 1860 in explicit welfarist terms. He stated that low levels of pollution in high transaction costs situation should be tolerated on the ground that each party was better off with the right to inflict some low level pollution even at the cost of having to endure similar pollution himself. The theory on which this rested was that: “The public consists of all the individuals of it, and a thing is only for the public benefit when it is productive to the good of those individuals on the balance of loss and gain to all. So that if all the loss and all the gain were borne and received by one individual, he on the whole would be a gainer.”

The theory of strict liability in tort for harms to strangers holds a party responsible for the harm that it causes by way of trespass or nuisance, regardless of the level of precaution taken. But a common strand of negligence law injects some uncertainty into the situation. Then as now, there is much sentiment for the proposition that the defendant that takes some due level of care should not be held responsible for any harm that ensues and the argument is thus made that compliance with the statute constitutes good care, and thus excuses the defendant from harm. The implicit argument is that so long as the defendant has taken the optimal level of care, no further action is needed.

It is instructive to see how this system of private enforcement broke down with public nuisances, which typically involved either pollution of public waters or the blocking of public roads. In these cases, the facts of each individual case involve conduct that is a wrong under the nuisance law. But the transaction costs of getting a remedy are prohibitive relative to the costs of a private suit. So an ingenious compromise was developed as early as 1536, which illustrate the transaction from private law to environmental law. Some public body was tasked with two responsibilities. One was to remove or abate the nuisance in question. The second was to fine or otherwise punish the wrongdoer for the offense. The rules in question explicitly recognized the key role that transaction costs played in the overall analysis. Where these costs were small relative to individuated injury, then the private tort remedy survived. Those were typically cases of serious property damage or bodily injury. Where the transaction costs overwhelmed the cost of the suit, public enforcement was put into place, but only in those cases where the live-and-let-live rule was not satisfied—i.e. where the consensus was that the reciprocal harms caused exceeded the parallel benefits to all concerned.

In the typical case, the general damages were delay from blockage on a public road, where the appropriate response was public action that removed the obstacle and fined the defendant for the inconvenience caused to others. The link between compensation and deterrence which is a common feature of most private actions was broken. The role of public regulation was to enforce the common law rules on damages and injunctions where the private costs of enforcement were prohibitive. But the purpose here was to have the public law imitate and backstop the private rules of entitlement, but not to reverse them, as modern environmental statutes have done.

In Arkansas Game & Fish Commission v. United States, the United States Army Corps of Engineers authorized the upstream release of water that caused flooding of Arkansas lands that caused serious damage to the roots of downstream trees owned by the Arkansas Commission, which promptly sued for damages. The tort liability in this case for ordinary parties should be established under the rule that it is not permissible to damage the property of A in order to protect one’s own property, without compensating for the loss. But the Supreme Court rejected a clear application of that principle and remanded that case for further hearing. In the Supreme Court, the government had argued that “Whether the damage is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause.” In making that statement, the government insisted, in line with past case authority, that only an occupation of lands, not its destruction, is the source of tort liability—itself a distinction that is never applied to private defendants. The Supreme Court sidestepped that decision, and remanded the case for determination under a squishy and formless balancing test ‘the takings inquiry’ that among other things, found relevant to the takings inquiry “the degree to which the invasion is intended or is the foreseeable result of authorized government action” without ever explaining why it mattered.” The want of a clear rule can only weaken the connection between public and private law that is so essential in this area.

The most significant decision in this area, however, is probably Mildenberger v. United States. There the United States undertook an extensive project on the Okeechobee Waterway, which diluted the salt concentration, which killed off downstream oyster beds, leading to further damage of other forms of marine life, including crabs, sponges, fish, and birds. The Court rebuffed the claimant’s right of action for the damage that the government action caused to their riparian interests, when the runoff from Lake Okeechobee carried many nutrients from agricultural activity that damaged the ecosystem. The liability of any private party for that kind of conduct is beyond down, given the extensive defense of riparian rights against private nuisances, applicable in both riparian and prior appropriation principles. The common law covers cases in which pollution turns a fresh-water stream into a salt-water stream. But not when the government engages in that conduct, at which point the Federal Circuit, speaking through Judge Arthur J. Gajarsa held that riparian rights did not include the right to not have your water fouled from upstream pollution coming from above. Because plaintiffs could not show that the law recognized “their compensable interest in having the water adjacent to their properties free of pollution.” The reversal of expectations is now complete. Governments may pollute in ways that private parties may not.

At the core of nuisance is the disturbance or degradation of the environment. What then is the environment? According to B.K Sharma in his book “Technology of Truth”, the environment is defined as the life support system given to mankind by the creator. The three major elements or components of the environment are air, water and soil which in their original state were pure and undisturbed. Sadly and unfortunately though, the progress in science and technology has led to environmental degradation and an imbalance in the ecological system which if goes unchecked will in the long run be disastrous for mankind, animals and the environment as a whole. Due to human, industrial, agricultural, technological, etc. advancement, the environment has become contaminated, foul and harmful even to humans for which the environment was made.

To protect the environment from the adverse effects of pollution and environmental degradation, nations and jurisdictions around the world have enacted legislations to regulate environmental activities and therefore curb pollution and degradation. In Nigeria, the Federal Environmental Protection Agency (FEPA) was established in 1988 Cap 131 LFN 1990 by the Environmental Protection Act of 1988 and the Ministry of Environment was established in 1999. Other environmental legislations in force in Nigeria are:
1. The Harmful Waters (Special Criminal Provisions) Act
2. Oil Pipeline Act 1958
3. Mineral Oil (Safety) Regulations Act 1963
4. Petroleum Regulations Act 1967
5. Oil in Navigable Waters Act 1968
6. Exclusive Economic Zone Act 1988

Also, section 20 of the Constitution of the Federal Republic of Nigeria 1999, provides that the State is empowered to protect and improve the environment and safe guard the water, air and land, forest and wildlife of Nigeria.

In the same vein, most countries have laws and regulations that seek to regulate environmental activities in their individual jurisdictions. Some of these laws are:
A. The UK Clean Air Act of 1956
B. The US Electronic Waste Recycling Act, 2003

The European Union and United Nations have played a crucial role at the international level by patterning environmental related global policies. The Rio Declaration of 1992 affirms the will of the international community to implement and prioritize the protection of the environment. Also, the UN Conference on Environment and Development (UNCED) held in 1992 in Brazil, produced the document referred to as Agenda 21 which provides guidelines and regulations for environmental protection. The Bruntland Commissions Report of 1986 underlines the importance of environmental protection.

Under Part III of the UK Environmental Protection Act 1990 (which is similar to the provision of the Environmental Acts of most other jurisdictions), certain matters are declared to be ‘statutory nuisances’ and therefore disturb the environment. They include the following:
a. any premises in such a state as to be prejudicial to health or a nuisance
b. smoke emitted from premises so as to be prejudicial to health or a nuisance
c. fumes or gases emitted from premises so as to be prejudicial to health or a nuisance
d. any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance
e. any accumulation or deposit which is prejudicial to health or a nuisance
f. any animal kept in such a place or manner as to be prejudicial to health or a nuisance
g. noise emitted from premises so as to be prejudicial to health or a nuisance.

Relatively, few circumstances will be regarded as prejudicial to health or even the environment but nuisance encompasses and covers both public and private nuisances. Broadly, a public nuisance is any act which, without specific legal authority for it, results in an unreasonable reduction in amenity or environmental quality in a way common to several people at once. A private nuisance consists of damage arising from a substantial and unreasonable interference with another’s use of their land or some right over it but in both cases, the context requires there to be something of a public health degradation and risk in the consequences.

To constitute a statutory nuisance, the act(s) in question must present a health risk or a nuisance. Generally speaking, if something is unreasonable to an average person, a court might decide that it is a nuisance. Some common examples of statutory nuisance might include dust or smells coming from a local factory or industry, smoke caused by a neighbour who regularly burns rubbish, unreasonable noise from a barking dog or even continuous foul smells emanating from animal farms such as pigsty or poultries. Many other things could be dealt with as nuisances and aggrieved persons are adviced to seek redress from a law court or from the environmental department or ministry as the case may be.

It is often said that “we are only caretakers of the earth as the future generations are the true owners of the earth” it would be for the benefit of mankind as a whole to make environmental protection a priority. Governments around the world should therefore take up this responsibility and deal severely with persons who perpetrate evil against the earth.

Sokombaa Alolade

However, developing a brand image should not be left as a last priority, to be addressed only after a business is established and running or popular. To the contrary, a brand image should be developed in parallel to the business, and a branding strategy should constitute an integral part of any business plan. What is the use of making major investments into developing quality goods and services if the quality of the reputation in question cannot be captured and developed in the form of a brand image? It is through its brand image that an enterprise will attract and, more importantly, retain consumer loyalty for its goods and services and thus bring very real and concrete value to its business, whether it is large, small or medium-sized. In fact, developing a brand image is not an out-of-reach venture for small and medium-sized enterprises as is mostly the perception of many business owners/businesses. It does require time, effort and commitment and certainly some financial resources but not as much as might be expected and of course the gains far outweigh the initial financial obligations that are required in obtaining a brand name. Moreover, experience and knowledge of the market, a creative and flexible approach to problem solving, enthusiasm about one’s products or services, and the courage to take risks are just as important factors in developing a powerful brand image as these are common attributes of most successful small and medium-sized entrepreneurs.

The term ‘brand’ is sometimes used as a synonym for a trademark but in commercial circles the term ‘brand’ is frequently used in a much wider sense to refer to a combination of tangible and intangible elements, such as a trademark, design, logo and trade dress, and the concept, image and reputation which those elements transmit with respect to specified products and/or services. Many intellectual property experts consider the goods or services themselves as a component of the brand. This wider, more flexible, definition of “brand” is more useful as this means that any of the terms/elements mentioned above are all in one way or another, components of the term ‘brand’.

Strictly speaking, a brand is composed of the sum of its individual parts. The brand ultimately exists independently and its value is greater than the mere sum of those parts. In fact, the value of a brand is precisely the concrete and direct result of the synergy that is created among its component parts. The brand thus takes up a life of its own and leads us beyond the limited functions of such objects of intellectual property protection as a trademark or a design and the generic product or service differentiated and rendered more appealing by those objects of protection. The concept of a brand reminds us that creating and protecting a trademark or design is not an end in itself. These are only tools (albeit important ones) in the process of developing an effective brand image for one’s goods or services. It is the brand image as a whole, and not merely a trademark or design as a stand-alone element, that differentiates one’s goods and/or services from those of competitors, denotes a certain quality, and over the long term attracts and nourishes consumer loyalty.

To be successful, a brand must at least be clear, specific and credible in terms of its message, its differentiation power and the quality it symbolizes. It should also be attractive and appropriate in relation to the goods and services which the brand embodies. Among the various factors that determine a brand’s success, one of the most important one is the brand’s differentiation power. The brand must have a “point of difference” as far as the target group of consumers is concerned. Simply put, the consumers of a particular brand should be able to tell it apart from other brands because it is substantially different from others. This point of difference must be:
1. Recognizable (in terms of the good and/or services marketed);
2. Desirable (in terms of the quality and value of the goods and/or services offered);
3. Credible (in terms of reliability); and
4. Properly communicated (in terms of how the message is formulated and to whom it is targeted).

In today’s highly competitive global market place, with overwhelming selection of similar and frequently identical goods and services, if a brand cannot be differentiated and the goods and services it is meant to promote from those of the competition, then it is useless and thereby worthless. Inversely, the stronger the differentiation powers of a brand, the greater its effectiveness and therefore its value both for its owner and for consumers. Only a brand with a strong differentiation power can serve as a focal point around which to promote an enterprise’s products and services, develop their reputation and thereby attract and maintain consumer loyalty, the essential reasons for justifying the investment of time, money and effort required to develop a successful brand.

A successful branding policy should both anticipate and shape consumers needs and desires. Having adequate knowledge of the consumer or class of consumers is therefore a key to a brand’s success. A successful brand cannot be created, developed and maintained in a vacuum. Such a process must form part of an organic relationship or dialogue between the producer or service provider and the consumer. Good consumer research therefore constitutes a pre-condition of a successful branding strategy, but not the only one. Statistics, polls and graphs are certainly valuable indicators but so are the knowledge and understanding gained through personal contacts with customers and the experience accumulated in running the business. For this reason, a successful brand strategy is the result of a partnership of marketing experts together with management and ultimately employees at all levels and in all areas of the business.

Once the brand image is developed, the brand image must be communicated and certain expectations instilled in the mind of consumers. However, there is no use in developing expectations in the mind of consumers, if those expectations cannot be satisfied. To the contrary, if the consumer feels disappointed and let down, the brand image that is being projected may prove counterproductive and even destructive for the business. For this reason, it is essential that employees, at all levels of the organization (including high and mid-level management, staff of administrative departments and employees in direct contact with customers should all be involved in developing the brand image. Staff involvement is essential not only because it is important to tap into staff members’ experience and knowledge of the market, as already indicated, but also because staff must eventually implement the branding strategy. For this reason, employees must be genuinely convinced of the brand’s value, identify with the branding strategy, feel personally responsible for ensuring that the brand lives up to the expectations created and understand that the successful implementation of the branding strategy is in their personal interest as much as it is in the interest of the employer. Employee commitment to the brand is crucial. Without such commitment, even the best conceived branding strategy is doomed to failure.

Everything the enterprise and business communicates, produces and provides should reflect and reaffirm its brand image, consistently and repeatedly, both internally and externally. This is accomplished by encouraging and facilitating horizontal communications and cooperation within the company. Every sector of the company should understand the relevance of the brand to the corporate vision and to achieving and preserving marketing success, which in turn is in every sector’s and every employee’s interest.

Another crucial element in branding is the correlation or connection to intellectual property. In a broad sense, branding is or could be encapsulated in the trademark of a business or enterprise. This means that a trademark in all its intents and purposes is synonymous with branding. On the flip side however, branding within the context of the image of the enterprise or business might not fall under the purview of intellectual property. It then follows that generally speaking, there is a nexus between branding and intellectual property and where the brand of a business is violated or breached, an action in court might be sustained and successful.

Brand development and implementation is not static. It should be an on-going and continuous process. Just because a company has developed an effective brand image does not mean that the work is done. We live in an ever-changing world and it is elemental to ensure that the brand preserves its relevance and attractiveness for consumers. This requires constant re-evaluation of the market, the competition, and the shifting needs and desires of target consumer groups and then consequent readjustments and updating of the brand. Ultimately, there is no miracle formula to ensure a brand’s continuing success. However, a refusal or inability to continue to re-evaluate and adjust a brand to the changing realities of the market place is a sure formula for failure.

Sokombaa Alolade

According to the United Nations Human Rights Council Report of March 2016, the ability to assemble and act collectively is vital to democratic, economic, social and personal development, and to the expression of ideas and to promote an engaged citizenry. Assemblies can make a positive contribution to the development of democratic systems and alongside elections, play a fundamental role in public participation, holding governments accountable and expressing the will of the people as part of the democratic processes.
Christof Heyns, the U.N Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions opines that “Assemblies are not a novel phenomenon – people taking to the street have played an important role in shaping our world and the development of the human rights system…Assemblies present opportunities as well as challenges, depending on how they are managed by everyone involved’’.

Yet despite the increasingly prominent role that assemblies play in today’s world, there remains a lack of clear understanding of the applicable international human rights law and standards, especially in the area of restrictions on the enjoyment of this right. Such as when can a State require advance notification of an assembly for instance? Can authorities place limits on the time, place or manner that protests are conducted? What are the State’s duties in terms of facilitating peaceful assemblies?

Everyone has the right to freedom of peaceful assembly. This is a right closely linked to the right to freedom of expression. It provides a means for public expression and is one of the foundations of a democratic society. The right applies to protest marches and demonstrations, press conferences, public and private meetings, counter-demonstrations etc. The right only applies to peaceful gatherings and does not protect intentionally violent protests. There may be interference with the right to protest if the authorities prevent a demonstration from going ahead; halt a demonstration; take steps in advance of a demonstration in order to disrupt it; and store personal information on people because of their involvement in a demonstration. The right to peaceful assembly cannot be interfered with merely because there is disagreement with the views of the protesters or because it is likely to be inconvenient and cause a nuisance or there might be tension and heated exchange between opposing groups. There is a positive obligation on the State to take reasonable steps to facilitate the right to freedom of assembly, and to protect participants in peaceful demonstrations from disruption by others.

The rights to freedom of peaceful assembly and of association serve as a vehicle for the exercise of many other civil, cultural, economic, political and social rights. The rights are essential components of democracy as they empower men and women to ‘express their political opinions, engage in literary and artistic pursuits and other cultural, economic and social activities, engage in religious observances or other beliefs, form and join trade unions and cooperatives, and elect leaders to represent their interests and hold them accountable’. Such interdependence and interrelatedness with other rights make them a valuable indicator of a State’s respect for the enjoyment of many other human rights.

The right to freedom of peaceful assembly is guaranteed in Article 21 of the International Covenant on Civil and Political Rights (ICCPR) and the right to freedom of association in Article 22. They are also reflected in Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in other specific international and regional human rights treaties or instruments, including Article 5 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms 1999.

However, according to Article 4 of the International Covenant on Civil and Political Rights (ICCPR), the right of peaceful assembly and the right to freedom of association are not absolute rights; as there are certain restrictions that have come to be accepted internationally. The UN Special Rapporteur also emphasizes that only “certain” restrictions may be applied, which clearly means that freedom is to be considered the rule and its restriction the exception. He refers to General comment No. 27 (1999) of the Human Rights Committee on Freedom of Movement: “in adopting laws providing for restrictions…States should always be guided by the principle that the restrictions must not impair the essence of the right…the relation between right and restriction, between norm and exception, must not be reversed”. As a result, when States would like to restrict these rights, all the above conditions must be met. Any restrictions must therefore be motivated by one of the above limited interests, have a legal basis (be ‘prescribed by law’, which implies that the law must be accessible and its provisions must be formulated with sufficient precision) and be ‘necessary in a democratic society’.

Article 11 of the European Convention on Human Rights sheds light on what amounts to a qualified right and as such the right to protest and the freedom of association may be limited so long as the limitation:
a. is prescribed by law;
b. is necessary and proportionate; and
c. pursues a legitimate aim, namely:
1. the interests of national security or public safety;
2. the prevention of disorder or crime;
3. the protection of health or morals; or
4. the protection of the rights and freedoms of others.

The requirement to give notice of plans to stage an assembly in advance will not necessarily breach the right to protest as long as notification doesn’t become a hidden obstacle to exercising freedom of assembly. Article 11(2) of the European Convention on Human Rights also states that this right will not prevent lawful restrictions being placed on the exercise of these rights by members of the armed forces, the police or the administration of the State. However, this has been narrowly interpreted to require convincing and compelling reasons for any such restrictions to be valid.

It should however be generally noted that the State has both a positive and a negative obligation if the right to peaceful assembly is to be enjoyed by its citizenry. As opined by the UN Special Rapporteur, States have a positive obligation to actively protect peaceful assemblies. Such obligation includes the protection of participants of peaceful assemblies from individuals or groups of individuals, including agents’ provocateurs and counter-demonstrators, who aim at disrupting or dispersing such assemblies. Such individuals include those belonging to the State apparatus or working on its behalf.

Furthermore, States also have a negative obligation not to unduly interfere with the right to peaceful assembly. The UN Special Rapporteur considers as best practice “laws governing freedom of assembly [that] both avoid blanket time and location prohibitions, and provide for the possibility of other less intrusive restrictions…Prohibition should be a measure of last resort and the authorities may prohibit a peaceful assembly only when a less restrictive response would not achieve the legitimate aim(s) pursued by the authorities.”

According to the Organization for Security and Cooperation in Europe (OSCE/ODIHR) in it’s ‘‘Guidelines on Freedom of Peaceful Assembly (Second edition)’’, it states that It is good practice to require notification only when a substantial number of participants are expected or only for certain types of assembly. In some jurisdictions there is no notice requirement for small assemblies, or where no significant disruption of others is reasonably anticipated by the organizers (such as might require the redirection of traffic). Any notification process should not be onerous or bureaucratic, as this would undermine the freedom to assemble by discouraging those who might wish to hold an assembly. Furthermore, the period of notice should not be unnecessarily lengthy (normally no more than a few days prior to the event), but should still allow adequate time for the relevant state authorities to plan and prepare (for example, by deploying police officers, equipment, etc.).

OSCE/ODIHR further argues for ‘Notification, not authorization’, stating that any legal provisions concerning advance notification should require the organizers to submit a notice of the intent to hold an assembly, but not a request for permission. A permit requirement is more prone to abuse than a notification requirement, and may accord insufficient value to the fundamental freedom to assemble and the corresponding principle that everything not regulated by law should be presumed to be lawful. It is significant that, in a number of jurisdictions, permit procedures have been declared unconstitutional. Nonetheless, a permit requirement based on a legal presumption that a permit for the use of a public place will be issued (unless the regulatory authorities can provide evidence to justify a denial) can serve the same purpose as advance notification.

Countries in which a permit is required are encouraged to amend domestic legislation so as to require only notification. Any permit system must clearly prescribe in law the criteria for issuance of a permit. In addition, the criteria should be confined to considerations of time, place and manner, and should not provide a basis for content-based regulation. The authorities must not deny the right to assemble peacefully simply because they disagree with the merits of holding an event for the organizers’ stated purpose.

It is our hope that nations of the world like Nigeria that still practice or have in place the regime of obtaining permit before a peaceful assembly can be held would turn a new leaf and move forward in the advancement of the enjoyment of the human rights of its citizens to peaceful assembly and association. It our desire to see societies progress ensuring that human rights are respected and not derogated by the whims and caprices of the government of the day.

Lanre Adedeji