Famsville Solicitors

REGISTRATION OF INDUSTRIAL DESIGN IN NIGERIA

INTRODUCTION

A registered design gives protection to the shape of the product e.g. lines, colours or any three-dimensional form. The idea is to prevent others from reproducing the external design of the product for industrial use. The owner of a registered design can prevent others from reproducing, importing, illicitly profiting, selling or utilising for commercial purposes by reproducing the design.

Industrial design focuses on aesthetic value and do not protect the technical or functional features of the product, it only applies to the aesthetic nature of a finished product, and it is distinct from any technical or functional aspects. Industrial design protects the aesthetic value and relevant to the fashion, textile design, jewellery industry etc. A registered design is protected for a period of 5 years from the date of the application for registration. Protection may be renewed for two further consecutive periods of 5 years. The Trademarks, Patents and Designs Registry domiciled in the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment is saddled with the responsibility for registration of industrial design.

REQUIREMENTS FOR PROTECTION OF INDUSTRIAL DESIGN

    • The design must be “new.” A design meets the newness criteria if no identical design has been made available to the public before the date for application for registration.
    • The design must be “original.” Designs are considered as ‘original’, if they have been independently created by the designer and are not a copy or an imitation of existing designs. If the design simply makes minor changes to an earlier design, it will not be considered as a new design and as such, it will be ineligible for design protection.
    • The design must not be dictated exclusively by the technical function of the product. If this is the case, the design registration is not the appropriate form of intellectual property. A more relevant application would be a patent application.
    • The design must not include protected official symbols or emblems such as the national flag, the coat of arms etc.
    • The design must not be one which is considered to be contrary to public order or morality.

The right to the registration of a design is vested in the person who is the first to file an application for the registration of the design.

REGISTERING INDUSTRIAL DESIGN

In order to register a design in Nigeria, there are a number of steps an applicant must first take:

    • The applicant must consider whether or not the design is new.
    • The applicant must not publicise the design before seeking to register the design.
    • The applicant must provide a specimen of the design.
    • The applicant must also provide basic information including the name of the applicant, address, an indication of the kind of products associated with the design, and the title of the design.
    • The applicant will also be required to pay the application fee and other professional fees.
    • A Power of Attorney, if application is being made by an agent.
    • Certified copy of the priority document if claimed.

STEPS

    • Acknowledgement
    • Once the application is filed with all the supporting documents then the Registrar will cause to issue an Acknowledgement Notice confirming the receipt of the application.
    • Examination and Acceptance
    • Then an examination of the application to ensure the formal requirements are met and that the design does not contravene public order or morality.  If the application meets the requirements then an Acceptance Notice will issue. Otherwise, a refusal notice will be issued.
    • Approval of registration

Once the design application has been accepted, the design is the registered and a registration certificate will be issued and a duplicate of the design certificate will be included in the Register of Industrial Designs.

CONCLUSION

There is an urgent need to amend the Patent and Designs Act to be more relevant with modern trend. The current framework is not clear on how reverse engineering could affect the enjoyment of the intellectual property rights. Owners of rights are encouraged to commercialise their innovation by utilising available intellectual property management mechanism.

Authors

Woye Famojuro – woye.famojuro@famsvillesolicitors.com

Adeola Oyeola

PATENT REGISTRATION IN NIGERIA

INTRODUCTION

Patent is an exclusive right granted for an invention, a product or process providing or offering a new practical solution to a problem or dilemma. Patent application in Nigeria is regulated by the Patents and Design Act Cap P2 LFN 2004. Patent right grants the “statutory inventor” (first to file) a temporary, but exclusive right to the commercial exploitation of an invention. It gives the inventor the exclusive right to exclude others from producing, using, or selling the patented invention in that country without the patent owner’s consent or permitted by law, for the duration of 20 years subject to renewal.  

The article contains the criteria for patenting an invention, process, registration and the administration responsible for granting patent application in Nigeria.

WHAT IS ELIGIBLE FOR PATENT REGISTRATION?

A patent in invention consist of products or processes. Contrary to widely held view, not all inventions qualify for a valid patent. For an invention to be patentable, the invention must satisfy the criteria set out in Section 1 of the Patent and Design Act Cap P2 LFN 2004 The Act provides that before an invention could be eligible for patent, it must:

  • Must be new;
  • Must have an inventive step that is not obvious to someone with knowledge and experience in the subject;
  • Must be capable of being made or used in some kind of industry and not be, a scientific or mathematical discovery, theory or method, a literary, dramatic, musical or artistic work, a way of performing a mental act, playing a game or doing business, the presentation of information, or some computer programs, an animal or plant variety, a method of medical treatment or diagnosis;
  • It must not be against public policy or morality.

PATENT APPLICATION IN NIGERIA

Section 3, 4, and 5 of the Patents and Designs Act provides that patent application is to be made to the Registrar at the Trademarks, Patents and Designs Registry and shall contain certain information. This is to ensure the invention has not already been patented, by conducting a search. If the result of the search shows there is no previous registration, the application is made to the Registrar containing:

  • A petition or request for a patent signed by the applicant or his agent and containing the applicant’s full name and address;
  • a specification, including a claim or claims in duplicate; plans and drawings, if any, in duplicate;
  • where appropriate, a declaration signed by the true inventor requesting that he be mentioned as such in the patent and giving his name and address;
  • a signed power of attorney or authorization of agent if the application is made by an agent;
  • an address for service in Nigeria if the applicant’s address is outside Nigeria; and payment of the prescribed fee.

Afterwards, the patent application is examined by the Registrar. This is done to ascertain formal compliance with the requirement of the Act. Once the application satisfies the statutory requirements, the Registrar is likely to grant the patent without enquiries to its novelty, inventiveness and industrial applicability or whether the specification sufficiently discloses the invention. In Nigeria, patents are granted at the risk of the patentee and without guarantee as to their validity. Whether an invention is a product or process, the same registration procedure is adopted.

FOREIGN PRIORITY

If an applicant has a convention application, that is an application claiming priority on the basis of an earlier application to register the patent made in a foreign country, such can also be registered in Nigeria by virtue of the Patent and Designs Convention Order 1971. The Convention provides that if the Nigerian application is made within 12 months of the making of the earlier application in the foreign convention country, such application will be treated as having been made on the same date on which the foreign application was made.

Procedure

An applicant seeking foreign priority to his application will complete (Form 1B), and a written declaration showing:

  1. The date and the number of the earlier application:
  2. The country in which such application was made ;and
  3. The name of the person who made it.

Furthermore, not more than 3 months after filing the application, the applicant must furnish the Registrar with a copy of the earlier application, certified copy by the appropriate industrial property office of the foreign convention country.

CONCLUSION

Beyond patent registration, it is important for the patent owner to commercialise and create value for the invention through licensing, assignment and other intellectual property management mechanism.

 

Authors

Woye Famojuro – woye.famojuro@famsvillesolicitors.com

Adeola Oyeola

THE NIGERIAN CODE OF CORPORATE GOVERNANCE 2018 – A STEP TOWARDS DEEPENING ACCOUNTABILITY AND TRANSPARENCY IN CORPORATE ENTITIES

Introduction

Pursuant to Sections 11(c) and 51(c) of the Financial Reporting Council of Nigeria Act 2011, the Financial Reporting Council of Nigeria (FRC) is vested with the powers to ensure good corporate governance practices in the public and private sectors of the Nigerian economy by issuing the code of corporate governance and guidelines, and developing a mechanism for periodic assessment of the code and guidelines. The Financial Reporting Council in the exercise of these powers recently issued the Nigerian Code of Corporate Governance (The Code). The Code was unveiled by the Vice President of the Federal Republic of Nigeria and the Honourable Minister of Industry, Trade and Investment on the 15th of January 2019.

Background to the Code

The FRC in 2016 released draft codes of corporate governance pertaining to private companies, public companies and not-for- profit organizations. The codes were criticized as being in contradiction with existing corporate legislations largely the Companies and Allied Matters Act 2004 and the codes of corporate governance applicable to different sectors of the economy. Following the controversies that trailed the codes especially as it relates to religious institutions, they were suspended by the Ministry of Industry, Trade and Investment.

Objectives of the Code

The Nigerian Code of Corporate Governance 2018 is aimed at institutionalizing corporate governance practices thereby raising the standard of corporate governance in Nigerian companies. It is expected that adherence with the principles of the code will rebuild trust and confidence in the Nigerian economy thereby encouraging investments and trade in the country, and creating an enabling environment for sustainable business operations. The code is applicable to private and public companies.

Implementation Approach

The code adopts a principle-based approach, not the rules-based approach in identifying minimum corporate governance practices companies are expected to embrace. The code, for flexibility reasons gives room to companies to adopt the “Apply and Explain” approach in reporting on compliance. The “Apply and Explain” approach unlike the “Comply and justify non-compliance approach” assumes application of all principles and requires entities to explain how the principles are applied. “This requires companies to demonstrate how the specific activities they have undertaken best achieve the outcomes intended by the corporate governance principles specified in the Code. This will help to prevent a ‘box ticking’ exercise as companies deliberately consider how they have (or have not) achieved the intended outcomes.” In essence, the principles enunciated in the code can be applied to different companies or industries; the size, growth phase and company needs notwithstanding.

The FRC is saddled with the responsibility of implementing the code through the sectoral regulators and registered exchanges that are empowered to impose appropriate sanctions.

Key Highlights of the Code

The Code contains 28 principles divided into 7 parts; the seventh part being the definition section. The Code also recommends practices for effective implementation.

PART A- Board of Directors and Officers of the Board (Principle 1-16)

Key recommended practices

  • The Board should be of a sufficient size to effectively undertake and fulfill its business.
  • In order to effectively perform its oversight function and monitor management’s performance, the Board should meet at least once every quarter.
  • Non-Executive Director(s) (NEDs) should have unfettered access to the Executive Director(s) (EDs), Company Secretary and the Internal Auditor, while access to other senior management should be through the MD/CEO.
  • The Company Secretary should have both functional and administrative responsibilities. The functional responsibility is to the Board through the Chairman, while administratively, he reports to the MD/CEO.
  • At least once in a year, the Board’s audit committee should hold a discussion with the head of the internal audit function and the external auditors without the presence of management, to facilitate an exchange of views and concerns that may not be appropriate for open discussion.
  • The Board should ensure that an annual corporate governance evaluation, including the extent of application of this Code, is carried out. The evaluation should be facilitated by an independent external consultant at least once in three years.

PART B-  Assurance (Principle 17-21)

Key recommended practices

  • The Board should ensure that the internal audit function is sufficiently skilled and resourced to address the complexity and volume of risk faced by the organisation.
  • The internal audit function should be headed by a member of senior management who is a professional with relevant qualifications, competence, objectivity and experience; and is registered with a recognised professional body.
  • The Board should ensure the existence of a whistle-blowing mechanism that is reliable, accessible and guarantees the anonymity of the whistle-blower, and that all disclosures resulting from whistle-blowing are treated in a confidential manner. The identity of the whistle-blower should be kept confidential.
  • In order to preserve independence, there should be a rotation of the audit engagement partner every five years.
  • External audit firms may be retained for no longer than ten years continuously. External audit firms disengaged after ten years continuous service may not be considered for reappointment until seven years after their disengagement.
  • Where an external auditor’s aggregate or cumulative tenure has already exceeded ten years at the date of commencement of this Code, such auditor should cease to hold office as an auditor of the Company at the Annual General Meeting to be held immediately after this Code comes into effect.

PART C- Relationship with Share Holders (Principle 21-23)

Key recommended practices

  • The Board should ensure that all shareholders are treated fairly and equitably. No shareholder, however large his shareholding or whether institutional or otherwise, should be given preferential treatment or superior access to information or other materials.
  • The Board should develop a policy that ensures appropriate engagement with shareholders. The policy should be hosted on the website of the Company.
  • The venue of a General Meeting should be accessible to shareholders, to ensure that shareholders are not disenfranchised on account of the choice of venue.
  • The Board should ensure that decisions reached at General Meetings are properly and fully implemented as governance directives.

 PART D- Business Conduct with Ethics (Principle 24-25)

Key recommended practices

  • The Board should clearly model a top-down commitment to professional business and ethical standards by formulating and periodically reviewing the Code of Business Conduct and Ethics.
  • The Board should be responsible for monitoring adherence to the Code of Business Conduct and Ethics to ensure that breaches are effectively sanctioned.
  • The Board should ensure that insiders are precluded from engaging in unlawful or improper transfers of assets and profits out of companies for their personal benefits or for the benefit of those who control the companies.
  • If a Director is not certain whether he is in a conflict of interest situation, the Director concerned should discuss the matter with the Chairman of the Board, the Company Secretary or the chairman of the committee responsible for nomination and governance for advice and guidance.

PART E – Sustainability (Principle 26)

Key recommended practices

  • The Board should establish policies and practices regarding its social, ethical, safety, working conditions, health and environmental responsibilities as well as policies addressing corruption.
  • The policies should include the nature and extent of employment equity and diversity (gender and other issues); training initiatives, employee development and the associated financial investment; opportunities created for physically challenged persons or disadvantaged individuals.

PART F- Transparency (Principle 27&28)

Key recommended practices

  • The Board should establish an investors’ portal on the Company’s website, where the communication policy as well as the Company’s annual reports for a minimum of five immediately preceding years and other relevant information about the Company should be published and made accessible to the public in downloadable format.
  • The Board should ensure that the Company’s annual report includes a corporate governance report that provides clear information on the Company’s governance structures, policies and practices as well as environmental and social risks and opportunities.
  • The annual report should contain a statement by the Board on the Company’s level of application of this Code arising from the results of its corporate governance evaluation.
  • Where the Board has engaged independent experts in evaluating and reporting on the extent of application of this Code, they should name the consultant and include a summary of the report (provided by the consultant) in the Company’s annual report.

Criticisms of the Code

The code does not provide for sanctions for infractions. It gives the impression that the principles enunciated in it are merely persuasive and not binding.

The code is also silent on the place of the sectoral codes viz a viz the new code. Where provisions of the code and that of the sectoral codes conflict, there is no clarity on which will supersede. The 2016 code, on the other hand, clearly stated that it supersedes any corporate governance code in force before the date of its commencement and its provisions will prevail in case of conflict with any sectoral guideline.

It is also noteworthy that the Code does not state an effective date. Based on speculations, however, the code might take effect from January 1, 2020.

Conclusion

The importance of good corporate governance in an organization cannot be overemphasized. Good corporate governance does not only drive corporate accountability, it encourages foreign investments and boosts business prosperity. According to Arthur Levitt, the former Chairman of the United States Securities And Exchange Commission, “If a country does not have a reputation for strong corporate governance practices, capital will flow elsewhere. If investors are not confident with the level of disclosure, capital will flow elsewhere. If a country opts for lax accounting and reporting standards, capital will flow elsewhere. All enterprises in that country, regardless of how steadfast a particular company’s practices may be, will suffer the consequences.”

The FRC should be commended for issuing a code that recommends good corporate governance practices that can be adopted by all Nigerian companies. However, introduction of codes and guidelines is not alien to Nigeria, what poses difficulty is the proper implementation monitoring of new directives. To prevent a similar case as the Enron’s scale scandal, the FRC through the help of sector regulators should not rest on its oars in ensuring that the code in its entirety is fully adopted by companies, non-compliance of which should attract weighty sanctions.

 

Authors

Damilola Osinuga: damilola.osinuga@famsvillesolicitors.com

Omolola Ahmed: omolola.ahmed@famsvillesolicitors.com

Burden of Proof In The Prosecution of Unexplained Wealth In Nigeria – Examining The Similarity between Daudu V Frn and Zamira Hajieva’s Case

Introduction

One of the biggest challenges to the recovery of ‘ill-gotten gains’ in many countries including Nigeria has been establishing the nexus between suspicious assets, and a specific offence. The requirement to establish this link is a pre-requisite to the lawful confiscation of assets in many common-law jurisdictions (which includes Nigeria). The prosecutions usually await a finding of guilt on a particular criminal offence, and then seek a forfeiture order with respect to property derived from or used in the commission of that criminal offence[1].

Recently, the Supreme Court of Nigeria in the case of Dauda v Federal Republic of Nigeria (2018) 10 NWLR (Pt.1626) 169 had the opportunity to decide on the issue of burden of proof with respect to unexplained wealth. This article seeks to examine the issues in the decision, particularly in relation to burden of proof and the effect of the decision on the Nigerian criminal law jurisprudence.

The facts

The Economic and Financial Crimes Commission (EFCC) preferred a 208 counts charge against the accused/appellant before the Federal High Court, Lokoja. The appellant was however convicted on 75 counts. The appellant appealed against this decision to the Court of Appeal, Abuja which was dismissed and further appealed to the Supreme Court.

The appellant in the case appealed among other grounds on the basis that the trial judge contended that the onus is on the appellant’s to establish the lawfulness or legality of each lodgment made into the accounts. The appellant submitted that the trial judge by postulating such position reversed the time-honored rule that “the burden of proof in criminal matters lies on the prosecution.” The appellant contended that the trial court and the Court of Appeal court failed to ascertain whether the ingredients of the offence of money laundering was established beyond reasonable doubt by the prosecution but decided to shift the onus of proof to the appellant.

The appellant argued that by shifting the burden of proof to the appellant, his presumption of innocence, which is a right constitutionally guaranteed was breached by the trial Court and the Court of Appeal whilst arguing that the Nigeria Criminal jurisprudence puts the burden on the prosecution to prove that the appellant has committed a crime or illegal act.

In resolving the issues raised by the appellant, the Supreme Court stated that:

“Proving Money Laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced by statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle which is similar to the Proceeds of Crime Act 2002 of the UK. Even though Section 36(5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed to be innocent until he is proven guilty, the proviso allows for shifting the burden of proof on the defendant. The Section provides thus:-


“36(5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts”.
By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act.
To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited
”.

Comments

Many legal practitioners have argued in that the decision of the Supreme Court in Dauda v Federal Republic of Nigeria has significantly altered the age-long principle of our jurisprudence, which stipulates that it is the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt[2]. The decision of the Supreme Court appears to reiterate and reinforce the age-long principle of our criminal jurisprudence.

Generally, the prosecution bears the legal burden of proving the defining elements of an offence, as well as the absence of any defence. However, the accused will generally bear an evidential burden of proof in relation to defence. The prosecutor has to adduce evidence in support of the facts in issue, which pertain to the ingredients of the offence beyond reasonable doubt. The principle of presumption of innocence to which any criminally accused person is entitled compels prosecuting authorities to bear this initial evidential burden. After the prosecution closed its case, the accused is to enter into its defence. It is at this point that the accused will be required to shoulder and to discharge its burden by leading rebuttal or counter-evidence. This is the point whereupon there would be a “shift of burden of proof”[3].

More appropriately, this is referred to as the ‘placing of an evidential burden on an opponent’ or, as ‘a shift of the evidential burden of proof from the prosecutor to the accused. The evidential burden of proof would continue to shift in a criminal proceeding on the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side.

In the instant case, once the prosecution is able to establish the ingredients of the offence beyond reasonable doubt having placed sufficient evidence on the guilt of the appellant either by direct or circumstantial or presumptive evidence beyond reasonable doubt required by law, the onus is on the accused to attack or rebut the evidence so presented by a contrary evidence to what the prosecution has laid out. The request of this obligation would not amount to shifting of the burden of proof on the accused to prove his innocence.

Zamira’s case

The decision of the Supreme Court on the accused obligation to explain how he acquired the wealth seems to align with global developments and trends on unexplained wealth. A few months ago, the High Court of England ordered Zamira to explain how the properties were obtained within a short period of time as her income appears to be insufficient to afford those properties and lifestyle. Zamira was the subject of an unexplained wealth orders (UWO) obtained by the UK National Crime Agency (NCA). The UWO is the power of law enforcement agents to combat suspected corruption.

Conclusion

The legal burden to prove beyond reasonable doubt continues to rest on the prosecution in the Nigerian criminal justice jurisprudence. An accused person is not required to open the case and to lead evidence to show or to prove his innocence. It would be antithetical to the principle of presumption of innocence and other fundamental societal values to require an accused to make a defense or to disprove guilt (or to prove innocence) before the prosecutor has successfully established guilt. However, once the prosecution is able to prove the ingredient of the offence of money laundering, the accused is required to show the court the legitimacy of the said funds.

Authors

Dayo Adu

Oyeola Adeola

Blessing Adepoju

 

[1] Ben Clarke, Confiscation of Unexplained Wealth: Western Australia’s Response to Organised Crime Gangs, 15 S. Afr. J. Crim. Just. 61 (2002)

[2] The principle that the onus is on the prosecution to prove beyond reasonable doubt was first espoused in the  landmark House of Lords case Woolmington v DPP [1935] UKHL 1 is, where the presumption of innocence was first articulated in the Commonwealth.

[3] Section 20(2) of the Money Laundering (Prohibition) Act has a similar provision mandating the Federal High Court to take cognizance of accused persons who “is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known sources of income.”

LIMITATION OF TIME: THE CONFLICTING REGIMES OF THE HAGUE AND HAMBURG RULES IN NIGERIA

Introduction

A contract of carriage of goods by sea is usually between the shipper and the ship owner or carrier. The terms of the contract of carriage are generally evidenced by a bill of lading. A bill of lading is a document issued by the ship owner to acknowledge receipt of cargo delivered to him for the purpose of carriage and the terms of the contract upon which the cargo is carried are incorporated in the bill of lading. The bill of lading is usually governed by a set of rules resulting from different United Nations International Convention[1].

In Nigeria, the Hague Rules 1924 and the Hamburg Rules 1978 are concurrently in force. The Carriage of Goods by Sea Act 2004 (COGSA) domesticated the Hague Rules. COGSA essentially covers only outgoing cargo and excludes import. Accordingly, before the existence of the uncertainty surrounding the determination of the legal regime, imports were governed by the contractually agreed carriage regime usually contained in the bill of lading.

The Hamburg rule was domesticated in Nigeria by the National Assembly as the UN Convention on the Carriage of Goods by Sea (Ratification and Enforcement) Act 2005 without a formal repeal of the COGSA. The Hamburg Rules being an attempt to form a uniform legal base for transportation of goods by sea applies to all carriage by sea contracts between two different states, provided that the ports of loading and discharge or the place where the bill of lading or other transport document was issued are in a contracting state- thus, the Hamburg Rules covers both inward and outward shipments of cargo.

Limitation of time to bring an action under Hague Rules

Pursuant to Article 3 rule 6 of the Hague rules[2], a notice of loss or damage must be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery or, in the case where the loss is not apparent, within three days. Where the cargo is removed, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

Article 3 rule 6 paragraph 4 further states that a ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one (1) year after delivery of the goods or the date when the goods should have been delivered.

It is settled law based on a lead judgement delivered by Justice Karibi Whyte in Kaycee Nig Limited V Prompt & Shipping Corporation[3] that the Hague Rules provided for a one year limitation only to claims which the notice of damage was brought within the three (3) days stated under the rules.

Limitation of time to bring an action under Hamburg Rules

Article 20 rule 1[4] of the states that:

Any action relating to carriage of goods under this Convention is time-barred if judicial or arbitral proceedings have not been instituted within a period of two years”.

Just like the Hague rules, the Hamburg rules makes this Limitation of time subject to a notice of damage made in writing to the Carrier however the Hamburg Rules gives a shorter notice time – one working day[5].

Conflict on the applicable rules in Nigeria

Due to the continued co-existence of the Hamburg rules and Hague rules, there have been confusion among industry players such as ship owners, carriers, cargo owner, shippers and other key players regarding which regime is applicable.

Article 25, Rule 5 of the Hamburg Rules states that the Convention applies mandatorily to contracts of carriage in force as at the date of this Convention.

Article 31 of the Hamburg rules also provides that:

Upon becoming a Contracting State to this Convention, any state party to the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 (1924 Convention) must notify the Government of Belgium as the depository of the 1924 Convention of its denunciation of the said Convention with a declaration that the denunciation is to take effect as from the date when this Convention enters into force in respect of that State.”

 The formal notification to the Government of Belgium of the denunciation of the Hague Rules has not been done by Nigeria, neither has the Hague Rules been repealed by the House of Assembly hence the reason for the continued uncertainty as regards the applicable legal regime for carriage of goods in Nigeria.

The Supreme Court in the case of IBIDAPO .v. LUFTHANSA AIRLINES[6] held that “Where it is intended to repeal a legislation, this should be expressly so stated as the Courts generally lean against implying the repeal of an existing legislation unless there exists clear proof to the contrary….The Court will not imply a repeal unless two Acts are so plainly repugnant to each other that effect cannot be given to each other at the same time. “Emphasis ours”

Drawing an inference from the above decision, it appears that, in there must be a formal repeal, except where the acts are so plainly repugnant.

The court seem to have followed this position. The Federal High Court in MEGAPLASTICS INDUSTRIES V MV KOTA HALUS Suit FHC/L/CS/1436/12, decision of Justice I N Buba questioned the applicability of the Hamburg Rules in Nigeria and applied the Hague Rules on the basis that they have not been denounced. The Court held that:

it is trite law that he who asserts must prove. The burden is the Plaintiff/Respondent’s to establish that the Hamburg Rules have repealed the Hague Rules or that the Hague Rules have been repealed and therefore incapable of application to this matter“.

The Court stated that there was an absence of evidence that Nigeria has denounced the Hague Rules, the plaintiff cannot argue that the Hamburg Rules apply.

Construing the decision, the effect would mean that the Hague Rules continues to take effect in Nigeria and the Hamburg rules have no legal effect. Notwithstanding the foregoing, it is imperative to note that the above decision is a Federal High Court decision (court of 1st Instance) and at best, same is only persuasive on other courts of coordinate jurisdictions. It is therefore possible that another court may take a different position on the application of Hamburg Rules where compelling arguments are canvassed on implied repealing of the Hague Rules whilst distinguishing the of IBIDAPO .v. LUFTHANSA AIRLINES and noting that the Hague Rules are inconsistent with the Hamburg rules thus falling under the exception stated by the supreme Court in Ibidapo v Luftansa Airlines.

Conclusion

The Current uncertain position on the applicable regime is clearly undesirable. The legislature is saddled with the responsibility of making laws and repealing same. Accordingly, it is best that the legislature repeals the Hague rules formally. The ministry of transportation must also take steps to notify the Government of Belgium of the denunciation of the Hague Rules with a declaration that the denunciation is to take effect as from the date when this Convention enters into force. Until this is done, there might be a recurring confusion as to which law is applicable to a contract of carriage by sea in Nigeria.

Author

Damilola Osinuga

Damilola.osinuga@famsvillesolicitors.com

 

[1] International Convention for the Unification of Certain Rulesof Law relating to Bills of Lading 1924; The Hague-Visby Rules – The Hague Rules as Amended by the Brussels Protocol 1968  United Nations Convention on the Carriage of Goods by Sea, which was adopted in Hamburg on March 31, 1978 and came into force on November 1, 1992 Hamburg rules, Hague rules and the Hague-visby rules
[2] The Carriage Of Goods By Sea (Ratification And Enforcement) Act 2004
[3] 1986 Vol 2 N.S.C 431
[4] UN Convention on the Carriage of Goods by Sea (Ratification and Enforcement) Act 2005 (Hamburg Rules)
[5] Article 19 Rule 1 of the Hamburg Rules
[6] (1997) 4NWLR (PART 498) 124 AT 163 PARAS. E-F