REFLECTIONS, Volume 1, February 26th – 4th March, 2021
A WEEKLY ROUNDUP OF LEGAL & TECH EVENTS GLOBALLY | Volume 1, February 26th – 4th March, 2021
Welcome to REFLECTIONS our weekly roundup of events in the legal and technology sector, covering various topics and interesting learning points for today’s professional. If you couldn’t make an event, don’t worry, we probably made it and have all the juicy scoop for your reading pleasure and learning.
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COLLECTING INFORMATION AND USE OF PRIVATE INVESTIGATORS
DATE: 26/02/2021 | MODERATOR: OLUMIDE BABALOLA | PANELISTS: GBENGA ODUGBEMI, KOLA OLUGBODI, KAYODE AKINYEKE, STEPHEN AZUBIKE
Information is the new oil and it is needed for several aspects of life. However, in collecting information principles of data protection and privacy may be breached. Private Investigators gather information in the course of their works. Lawyers working with private investigators should understand the law and ethics dealing with the collection of information.
The moderator started by welcoming everyone for attending and went straight to the issue at hand.
GBENGA ODUGBEMI: What are the Legal issues arising while collecting data?
He started with saying that the way a legal person would collect data is quite different from the way an individual would collect them. The individual or private investigator (PI) is not obligated or does not see the relevance of maintaining data privacy. Also, they are not interested in knowing the source of their information and the implications attached to them.
He went on to say that despite the fact that PI’s are individual they should abide by the principles on data privacy such as lawful processing of data, storage information, security of data, accuracy of data, transparency and data minimization.
KOLA OLUGBODI: spoke on the ethical issues surrounding collection of data, background and employment checks, as well as due diligence observed by PI firm. He said their firm observe certain standard while collecting information such as:
- Obtaining consent before collection of data
- Carrying out their instructions within the confines of the law.
- Entering privacy agreement with their clients which ensures that information gathered is used for the said purpose.
That their firm is also aware of the hazards associated with collecting information such as leaks to the public and information getting to the wrong hands and as such have put certain safeguard on ground to prevent these.
KAYODE AKINYEKE: Do you think under the law the consent sought by PI’s to investigate a prospective employee is valid?
Under the NDPR it is ok when employers conduct investigation on an employee having in mind that it is only relevant information regarding their jobs that should be gathered but the Pi’s in the discharge of their duties breach certain ethical issues in the manner, they collect information considering the fact that the laws or regulations on data privacy is not strict on them.
Would a PI be regarded as a data controller or processor?
A PI should be regarded as a data controller and processor depending on which side they are working from.
STEPHEN AZUBIKE: The NDPR provide the legal basis for PI’s to conduct their business in Nigeria. The courts should be concerned with the purpose for which the information is obtained and not how it was obtained. The NDPR does not exempt any one from accessing or getting information through any means.
Learning/lessons from the event
1. Always use the legal approach or means of gathering information.
2. Choose the kind of cases you accept as a PI when contacted.
3. When carrying out surveillance (public or private) ensure that all requirements and duties are observed.
4. Ensure that data laws are not are not violated when collecting information. 5. People should be careful when procuring information to ensure that they do not fall into trouble because the NDPR might be silent but other laws are not and they provide protection by which damages can be obtained from the courts.
LAND DOCUMENTATION IN NIGERIA: Issues and Challenges that Lawyers and their Clients should be aware of.
The introduction was done by the learned SAN Adeniyi Agbonmire he says the topic shouldn’t be focused on preparation of document but the obstacles and challenges people go to in perfecting their documents title.
He cited example of land grabbers, community issue, non-uniformity in the sense that the Land Use Act gives the governor separate powers on law making.
The first speaker Folabi Kuti esq, he said that the highest title a person can have on land is right of occupancy and that by virtue of this, everyone is just a tenant to the governor. He further stated that the right of occupancy holder can decide to do lease out his tenure to another, however before this can be done, the consent of the governor has to be sought and gotten.
According to the speaker, lawyers and clients have a very big role to play in this to ensure that the process is seamless, the writer notes that lawyers have the duty to ensure the vendor has a legal and verifiable title to the land that is to be sold, this is done by going to the land registry and ensuring that there is no encumbrance or legal defects on the so-called land.
The speaker notes the principle of caveat emptor which warns a buyer to be careful when purchasing a land, the speaker notes that at times there might be different purchases on a land to multiple buyers, he notes that the person who has a right to the land is the person who registers his interest first would be the bonafide purchaser for value without notice. He stated the need for a lawyer to look at the major elements required before a land transaction is made, and ensure that those elements are out in place.
The second speaker Onajiti Shamedje on the challenges a prospective buyer would face in trying to register title said that while the process of documenting a title is cumbersome, there’s still a duty to ensure it is done properly by a lawyer.
He stated that in Lagos, the consent of the governor must be gotten and title must also be registered, he noted that however due to administrative bureaucracy and high cost, the process becomes too cumbersome and this becomes a challenge to people and investors especially real estate investors, he noted that for example mortgaging is no longer attractive in the country due to the cost of implementing a deed of mortgage.
He also noted the issues in places like Ibeju Lekki where there are rampant issues of land grabbers, and purchasers given different survey plan to that of the land being bought.
He states that lawyers have to follow the proper due diligence and ensure rigorous process especially when dealing with customary land, a lawyer shouldn’t take these processes for granted.
Third speaker Ameachi Isiekwena, said that any client who is to make a property transaction should ensure that the first thing they do is to employ the services of a lawyer, he goes further to state that one of the first thing a lawyer has to do is to consider the structure of the transaction and that of the document itself, this would determine the possibility of whether the document is registered or not.
He also mentioned that lawyers should be careful and ensure they don’t use different agreement and documents for different transaction, he also stated that lawyers should consider the state where the property is situated as different jurisdiction have different administrative process to follow, also a lawyer should consider the accompanying documents and ensure they are proper and not altered, also the speaker mentioned that lawyers must always ensure proper and due diligence before transaction is completed.
The learned SAN in his own contribution stated that the challenges faced in in land documentation itself emanates from the Land Use Act, he noted that section 1 of the act itself states that all lands in a state are vested in the governor of the state. The learned SAN also noted that the Act states that guidelines for complying with land registration subsides with the governor and he can give directives as he wishes, this means each states have different laws concerning documentation and there is no uniformity, meaning a lawyer would have to rigorously do researches if the land is in a state that is not familiar in order to get the governors consent and all thee becomes too cumbersome a process and also discourages investments.
The learned SAN notes that a legal practitioner has to ensure that there is a proper survey done by qualified surveyors on the land, a purchase receipt has to be gotten, the Certificate of Occupancy has to be applied for, a lawyer must understand the diverse modes of perfecting title in different axis of a state and country, a lawyer must also investigate the vendors title and ensure the land is visited by him.
Folabi Kuti agreed with the SAN on the LUA being part of the problem but disagrees that it is the root cause of the problem because if it is said to be the main cause of the problem, then the real reason for the creation of the Act would be forgotten. He noted that the act is an act to vest powers on the land in the state on the governors except those of a federal land and this means there can’t be uniformity in the laws.
A question was asked on whether there is any scope for derogation of the LUA e.g. party’s contraction out of the act. Afolabi said parties can decide to contract out of the written laws, but where a statute is made for a particular reason and purpose with penal provisions, parties can’t contract out of such i.e. nobody can contract out of the Act and vendors and sellers are subject to the governor’s interest.
Dr Deval Desai, a lecturer in International Economic Law at Edinburgh Law School, explained global ungovernance from experiences which informed his thinking on the subject matter. He stated that policies must be flexible to adopt and policy makers must credibly take things that look like developmental plans. Ungovernance emphasizes practices and brackets people’s thoughts. It doesn’t emphasize that different agencies need to think in two ways at once. It deals with thoughts on how to bring different practices together in a bid to attain flexibility. Global Ungovernance operates in the context of transnational institution-building projects which at once pursue big visions with claims to universality (e.g., building ‘markets’ or the ‘rule of law’), and at the same time offer no adequate prescriptions. He states that the ‘impossibility of closure’ becomes a central problematic of practical activity in Global Ungovernance. Viewed as a set of organised practices, Global Ungovernance evinces a commitment both to pursue closure and to embrace its impossibility, equally competently and even at the same time. As a result, it changes the nature, purpose and conditions of possibility of institution-building techniques and practices.
According to Dr Jan Pospisil, Research Director of the ASPR and lecturer for political science at the University of Vienna and co-investigator PSRP, resolving armed conflict by forging an inclusive political settlement is the contemporary paradigm of international peacebuilding. War-to-peace transitions are envisioned as a sequenced process, cumulating in a signed comprehensive peace agreement as the central cornerstone on the pathway to normal politics. However, the reality of peace processes appears ungoverned. While peace negotiations may succeed in formalising political unsettlement at play and to tame violence, they regularly fail in resolving the radical disagreement at the heart of the conflict. Liberal peace governance, resting on the pillars of settlement, resolution, and relation, is unlikely to deliver its promised outcomes. The irresolvable discrepancy between the promise of liberal peace and its inability to deliver is the background against which peace ungovernance emerges. It operates under the premise of non-closure in enduring transitions, where time, space, and relationality are not subject to an agreed common understanding, but elements of strategy and politics. Every peace process form is different. There is a belief in peace making process that the conflict is the issue. However, the process of attaining peace is also an issue to be dealt with. A comprehensive peace agreement requires extensive communication. Ungovernance is what the state is peace making is. It is an unfolding process and nowadays, people are unable to implement the peace they intend to. One must however do away with the thinking that failure is a root cause of this. The truth is that the process is just impossible.
Prof Christine Bell, Professor of constitutional law at Edinburgh Law School and Director of the PSRP stated that constitution are static things that have evolved. Ungovernance are rapid review of constitutions beyond the normal number of reviews. Ungovernance involves circumnavigating disagreement over the nature and purposes of government itself. Ungovernance, despite its name, does not imply a lack of governance and therefore a lack of law, but requires legal techniques to be enabled. While government requires clear stable rules for making laws that ensure that those laws are in turn open, clear, stable and prospective in application, ungovernance is enabled by legal techniques such as: re-iterated constitution-making; institutionalised strategic dissonance; regime assemblage; legalised reset; and legal postponement or deferment. This new public law retains the same symbiotic relationship to ungovernance that more traditional public law has to governance.
- Dr Deval Desai, a lecturer in International Economic Law at Edinburgh Law School.
Summary of Presentation: Policies must be flexible to adopt and policy makers must credibly take things that look like developmental plans. Ungovernance emphasizes practices and brackets people’s thoughts, while dealing with thoughts on how to bring different practices together in a bid to attain flexibility. Global Ungovernance operates in the context of transnational institution-building projects which at once pursue big visions with claims to universality (e.g., building ‘markets’ or the ‘rule of law’), and at the same time offer no adequate prescriptions.
- Dr Jan Pospisil, Research Director of the ASPR and lecturer for political science at the University of Vienna and co-investigator PSRP
Summary of Presentation: Resolving armed conflict by forging an inclusive political settlement is the contemporary paradigm of international peacebuilding. War-to-peace transitions are envisioned as a sequenced process, cumulating in a signed comprehensive peace agreement as the central cornerstone on the pathway to normal politics. However, the reality of peace processes appears ungoverned. It is an unfolding process and nowadays, people are unable to implement the peace they intend to.
- Prof Christine Bell, Professor of constitutional law at Edinburgh Law School and Director of the PSRP
Summary of Presentation: Ungovernance are rapid review of constitutions beyond the normal number of reviews. Ungovernance involves circumnavigating disagreement over the nature and purposes of government itself. Ungovernance, despite its name, does not imply a lack of governance and therefore a lack of law, but requires legal techniques to be enabled. While government requires clear stable rules for making laws that ensure that those laws are in turn open, clear, stable and prospective in application, ungovernance is enabled by legal techniques such as: re-iterated constitution-making; institutionalised strategic dissonance; regime assemblage; legalised reset; and legal postponement or deferment.
Learning/lessons from the event
1. The event explored the emerging concept of ungovernance: how it works, its potential downsides, and its implications for programs of institutional change. It brought to light the concept of peace-making process which is both governed by governance and ungovernance. It is also note worthy that the latter does not always stem from failure and as such we must get rid of that thinking.
INTRODUCTION TO INTELLECTUAL RPOPERTY RIGHTS, MEDIA AND TECHNOLOGY LAW PRACTICE
Professor Bankole Sodipo
Professor Sodipo did an introduction to Intellectual Property. He made the following points:
Intellectual property rights are the rights to restrain third parties from dealing with goods, services or processes that evolve from creativity. Intellectual Property is the bedrock of many businesses especially businesses that thrive on creativity. Some IP rights are children of statute while others are obtainable by registration
There are several classifications of intellectual property which include patents, copyrights, trademarks, trade secrets, designs, etc.
There is need for new laws on intellectual property in Nigeria.
Mr. Obafemi Agaba
Mr Agaba spoke on the Roles of Intellectual Property in Practice. He made the following points
- The primary role of IP lawyers is to protect and enforce IP rights
- IP lawyers assist their clients in the registration of registrable rights, trademarks etc.
- IP lawyers should also play he roles of a teacher by educating their clients and and also when preparing their briefs of argument
- IP lawyers should also do IP audit and regulatory interventions
Nta spoke about various Intellectual properties; she made a broad categorization into Copyright and Relate rights on one side and Industrial Property.
Copyright and Related Rights relates to literary works, musical work, artistic works, cinematograph films, sound recordings, broadcasts, neighbouring rights which include expressions of folklore and performers rights. Industrial property relates to trademarks, patents, industrial designs, trade secrets and geographical indications.
Relevant laws include Copyright Act, Trademark Act, Patents and Designs Act etc. Relevant authorities include Nigerian Copyright Commission, Trademarks Registry, Patents and Design Registry, Corporate Affairs Commission, Standards Organisation of Nigeria, International Organisations such as World Intellectual Property Organisation, INTA and associations such as IPLAN, NBA-SBL (IP).
Copyright is the exclusive rights granted to a right holder for a limited period of time to authorise or prohibit the use of his works. Patent is the right granted by government for protection of inventions which are new, involve inventive step and capable of industrial application. Patent is granted on full disclosure of invention to prevent third party exploitation and lasts for 20 years.
An industrial design is any combination of lines or colour or both and any three dimensional form whether or not associated with colours: if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process. Designs are registrable if they are new and not contrary to public order or morality.
A trade secret is any information that is not generally known to the relevant business circle or to the public and confers some sort of economic benefit to the owner, this benefit must derive from the fact that it is not generally known and not just from the value of information itself.
A trademark is any device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination of any of the above that indicates a source of origin of goods and services.
Trademarks are registered as of the date of application for an initial period of 7 years and thereafter renewable every 14 years. Trademarks can be transferred as real property either by assignment or license.
Obianuju spoke about the enforcement of Intellectual Property Rights. She made the following points:
IP rights are protected through the registration f rights with the registries and regulatory bodies in Nigeria for instance patents are registered with the Patents and Design Registry in accordance with the Patents and Designs Act.
IP rights are enforced in Nigeria through the court system, through Tribunals such as the Trademarks and Patents Tribunal and through various regulatory bodies such as, The Police, Nigerian Customs Service, Nigerian Immigration Service and the Federal Competition and Consumer Protection Commission.
Copyright Infringement occurs from the unauthorized use of the whole or a substantial part of a copyright work. This may be through lending, copying, issuing copies, playing, communicating or adapting the copyright work.
Infringement of a patent means manufacturing, using, selling or importing a patented product or process without the patent owner’s permission.
When a trademark is registered, exclusive right is granted to the owner in relation to the use of the trademark. Anyone who uses an identical or similar trademark for identical or similar goods or services o a trademark without the owner’s consent infringes on the proprietor’s right to the trademark.
There is a weak enforcement of IP laws, Nigeria needs an IP policy.
Learning/lessons from the event
- The enforcement of Intellectual Property laws is key; there has been weak enforcement of the laws which in fact hinders the protection of IP laws.
- There is the need to educate the public about Intellectual Property and Intellectual Property rights.