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

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.”

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 1^st 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