REFLECTIONS- JULY 16, 2021

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A WEEKLY ROUNDUP OF LEGAL & TECH EVENTS GLOBALLY | July 16, 2021

THIS IS REFLECTIONS, our weekly roundup of events in the legal and technology sector, covering various topics and interesting learning points for today’s professionals. 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.

Do you have an upcoming event you would like us to know about or attend? OR do you know of one you would like to read about? Send an email to us HERE.

EVENT ONE

LAW TECH FESTIVAL- DIGITAL POLICY FOR ECONOMIC GROWTH (DAY 3)

DATE: 7TH OF JULY, 2021

TOPIC: ARTIFICIAL INTELLIGENCE AND REGULATIONS

KEYNOTE ADDRESS by Hon. Gideon Moi

In his speech, the Senator observed how that Artificial Intelligence (AI) has had a global impact and phenomenal progress in various sectors of Kenya and the African continent. The finance, Agricultural, manufacturing sectors have all benefitted immensely from the wealth of Artificial Intelligence. He mentioned how that the government of Kenya has created a blockchain of AI taskforce with the goal of informing the government on how to productively harness the usefulness of AI to the goal that the country of Kenya is fully digitalized. Mr. Gideon went further to discuss a few legal and political implications of AI and blockchain development. He ended the speech by stressing the importance of every citizen having access to ITC and the need for the African continent to step up its game in harnessing the vast possibilities embedded in the use of AI.

The next session was on the Ethics of Artificial Intelligence and Artificial Intelligence Regulation in Africa

  1. Chenai Chair who is a social adviser for Africa Innovation was the first panelist to give answers to various questions regarding the topic.

Q: Are there any frameworks for Ethical Artificial Intelligence?

A: Yes, there are some models already in place like the Ethics Principle by Australia, The AI Ethics & Governance Body of Knowledge by Singapore. UNESCO also had consultations to develop ethical principles which are relevant in AI. She concluded by stressing the need for Africa to be cautious in consulting these frameworks in order to develop ethical principles that are relevant to the African continent.

Q: What do you think Africa should focus on when designing AI tech/ Regulations?

A: Inclusivity and responsiveness, building a technology that is responsive to our peculiar issues as Africans, creativity/ entertainment, transparency into how the AI system works, and timeliness and content

  • Serena Oduro was the next panelist to give answers to various questions regarding AI

Q: What does AI Regulation look like in the US and the UK?

A: there are not many frameworks in these regions as it is more of a patchwork of several areas. There has been a rise in agitation for data protection and the impact of AI on people of color. Questions are rising as to how AI ethics/regulation can be created in such a way that the people are put into consideration and social connections are not hindered.

  • Jorge Appiah

Q: What does AI look like in Africa?

A: Ai is still in its early stage in Africa. There are not many laid down AI ethics/regulations unlike counterparts like blockchain.

Q: What are the challenges in enforcing AI regulations and how can we make this better going forward?

A: One of the greatest challenges in enforcing AI is the data population. This is clearly as a result of the diversification of the continent and the restraint in populating data tailor-made for this diversity.

Q: What can we do?

A: Create a lot of data that can speak to the needs of Africa; Put in place measures that allow tailored solutions to develop AI; Focus on privacy and data protection.

ShamiraAhmen (South Africa)

Q: Can you speak on Gender Bias in AI?

A: Gender bias comes up in AI as a result of badly designed algorithms, bad data population etc

Q: What can be done?

A: Workplaces, where AI is developed, should be more diverse and have a culture where women’s voices are heard.

Q: What are the opportunities AI gives regarding gender bias?

A: AI can be used to highlight behaviours that promote biases. Also, women engaged in AI development are given access to more credit.

Alfred Ongere (Kenya- MD Mind Intelligence)

Q: In what ways can AI be applied in Kenya?

A: AI should be applied in government: identification of people, etc. Systems that can identify the changes in people over the years should be created.

Logistics: AI can be used to help people simulate the demand and use of products.

E-commerce: AI can be used to help people better identify and recommend products.  More focus should be on ensuring a strong underlined infrastructure e.g., helping the common people engage technology.

MASTER CLASS 1 by BRIDGET BOAKYE Internet Policy Lead-Tony Blair Institute for Global Change

The Institute’s perspective on tech revolution:

The tech revolution is the central political challenge of our time. In response, we must reimagine every aspect of our policy and institutions from the 21st century. From the Institute, you can expect:

Expert analysis of key issues in tech policy;

Insights and strategy to shape the political debate;

A platform for connections, networks, and conversations on key issues in technology.

  1. What is AI and how is it different from other technologies?

The Institute defines AI as a vast scientific discipline and technology that enables machines to carry out tasks associated with human thinking.

Algorithm: a form of automated instruction or a list of related instructions

Algorithms & AI: Algorithms and AI are intrinsically related but not the same. Every computer program is built using algorithms, but every program is not considered AI.

Automated Design Making: automated decisions and automated assisted decision making.

  • What is the global / regional playing field in the AI space?

The top global players in AI by talent are in North America and Asia, but Africa is only majorly represented by South Africa. (2017 Linkedin Study on Global AI talent).

Media mentions primarily focus on US and UK -cases, with barely any mentions in Africa.

National AI policies and strategies are primarily centered in North America, Asia & Europe. However, while policies and media mention primarily center around certain key countries, meet-ups span the globe. Finally, the burgeoning AI ecosystem in Africa is not usually captured by global mapping initiatives but efforts exist to address this problem.

  • What is the impact of AI in Africa?

AI is expected to add $15.7 trillion to global GDP (14%) by 2030 with $1.2 trillion (5.6 of GDP) attributed to developing countries.

Using a deep learning model, scientists reveal findings with huge implications for climate change. For instance, AI has just revealed that there are over a 1.8billion trees in the Sahara Desert. Darlington Akogo of Mino Health is developing machine learning algorithms to address a host of issues in medical sciences.

  • How can we harness AI for economic growth?

Generally, there are fears that AI could exacerbate the divide between Africa and the rest of the world, but AI should not spell doom for Africa’s development. It can be leveraged for economic growth through education and continent-specific research and applications. Training institutions should be supported through funding, more inclusive training delivery modules should be developed thereby closing the talent gap. Finally, there should be more investment in AI research, startups, and communities.

  • What is the potential risk and how do we balance benefits against harm and innovation?

AI systems codify social ills. Bias can arise such that models perform differently on different people. Robust AI models are trained on millions and billions of examples. Where does that data come from? Does this not raise privacy issues?  Deliberate or unintentional attacks on AI systems can lead to real-world harms e.g., deadly crashes with self-driving Uber cars. Finally, the black box problem where AI models that use neural networks are widely complex.

Ideas that can help includes; establishing global AI research and governance centered on progressive values and ethics to foster knowledge sharing between advanced and developing economies to build trustworthy, responsible AI. Finally, educate citizens to become empowered actors in today’s data/AI-driven economy and future of work through upskilling and training and explore consumer tools that give people control over their data through innovative mediums such as data cooperatives and/or trusts.

General Questions and Answers

  1. Is data colonization just between the global north and global south or between citizens and corporates around the world?

A: In relation to this master class, the data colonization is between the global north and the global south.

  • How do we ensure that the data input reflects the diversities in our communities and doesn’t transfer bias?

A: Technical work must be done to measure fairness and data diversity. Also, there may be a need to artificially create data that may be missing as well as the construction of a good framework for data collection.

  • Looking at the skepticism and fears faced regarding technology and human employment in general, how can AI be used to restore that confidence?

A: we need to drive a lot of young Africans towards more high-level skills to ensure their jobs are protected. We need to raise more critical thinkers that can go into the high-scale workforce.

This session commenced at 2:08 pm which was moderated by Mr. Declan Magero, in which he duly introduced the speakers of the day.

The first speaker was Professor, BitangeNdemo from Kenya who majorly spoke on the state of ARTIFICIAL INTELLIGENCE IN AFRICA in which he used Kenya as a case study in his presentation. The speaker here started by defining the concept of A.I, where he gave a common and easy meaning of A.I by stating that Artificial intelligence (AI) refers to the simulation of human intelligence in machines that are programmed to think like humans and mimic their actions. The term may also be applied to any machine that exhibits traits associated with a human mind such as learning and problem-solving. This was the definition he used during the course of his presentation.

He looked at the importance of AI. (Why is AI important?)- here the speaker made us understand that A.I forms the basis for all computer learning and the future of all companies’ decision-making. AI and its logical evolution of machine learning and deep learning are the foundational future of business decision-making. This basically is what the speaker said about the importance of Ai.

Also, the speaker delved into some regulatory bodies and policies in the AI industry- here the speaker made it known to us that AI should be governed under the same rules as humans. He went further by stating that manufacturers should agree to abide by general ethical guidelines mandated by international regulations. He also said that there should be an understanding of how AI logic and decisions are made. The speaker made some vital references to the regulatory policy landscape which includes the European Union and supranational bodies like the IEEE, OECD, and others, between 2016-2019 a wave of AI Ethics Guidelines was published in order to maintain social control over the technology.

The speaker went further by explaining the Areas in which AI is applied in Kenya which include:

  • HEALTH ORGANIZATION
  • EDUCATIONAL SECTOR
  • AGRICULTURAL SECTOR
  • TRANSPORTATION
  • CUSTOMER RELATIONS

The speaker also told us what Kenya has done as regards the aspect of AI. – He said the task force on AI and Blockchain recommended the development of legal sand. This was explained further by stating that a regulatory sandbox is a framework set up by a regulator that allows Fintech startups and other innovations to conduct live experiments in a controlled environment under a regulator’s supervision.

 He concluded this session by making it known that AI is taking over the economy and legal aspects of our daily transactions.

EVENT TWO

A REPORT ON WEBINAR ORGANISED BY CENTER FOR BUSINESS LAW AND PRACTICE HELD ON 14TH OF JULY, 2021

TOPIC: THE CODE OF CAPITAL: HOW THE LAW CREATES WEALTH AND INEQUALITY

MODERATOR – Moritz Renner, a Transnational, Commercial and Banking Law expert at the University of Mannheim, Germany.

SPEAKERKatharina Pistor, a leading scholar and writer on corporate governance, money and finance, property rights, and comparative law and legal institutions, and the Columbia Law School

INTRODUCTION

At 3:02 pm, the webinar commenced with the moderator welcoming participants from all over the world to the webinar. He then went ahead to also introduce the speaker and said she would be speaking on her book which title also doubles as the topic for the webinar which is the best legal book in the USA for the year 2020 and also holds the top spot for the current year which is 2021.

PRESENTATION BY KATHARINA PISTOR

Katharina Pistor started her session by defining Capital as a wealth-generating asset and Law as an institutional means of coercion.

She said that the modern nation-state has centralized the means of coercion. It does not follow that access to the means of coercion is also centralized.

The traditional concepts of the common law of property were created for and by the ruling classes at a time when the bulk of their capital was land. Nowadays, she said, the great wealth lies in stocks, shares, bonds, and the like, and is not just movable but mobile, crossing oceans at the touch of a keypad in search of a fiscal utopia.

In terms of legal theory and technique, however, there has been a profound if little discussed evolution but which the concepts originally devised for the real property have been detached from their original object, only to survive and flourish as a means of handling abstract value.

She then talked about recognition and enforcement of private claims which are:

  • Standing rules: Individual or collectives. Natural or legal persons.
  • Permissible claims: property rights. Contracts. Injury to person, assets, etc.
  • Available remedies: property rules. Liability rules.

She then defined Property in simple terms. She defined property as use plus expectations plus the probability of realizing expectations.

Expanding Assets are in form of:

  • Tangible Objects: Commodification, assertization, coding.
  • Intangibles: Originate in law, Multiply by way of legal engineering.

Examples of Expanding Assets are:

  • Intellectual property rights.
  • Financial assets/structured finance.

She talked about Legal Foundations which come in form of the following:

  • Recognition as legal:

By Courts

By patent offices, etc.

By regulators

  • Private Preemption of Regulator intervention:

No action letters

Informal assurances of non-intervention

  • Regulatory Forbearance

Non-enforcement of binding rules (in crises)

  • Support

Central bank liquidity support

Central bank/government bailouts

Legal Foundations

  • Domestic conflict of laws, rules/ international private law.
  • Domestic law on arbitration (recognition and enforcement)
  • International conventions on choice of law
  • International treaties and model laws on arbitration.

She concluded by saying that it takes a legal system or two to code capital. The malleability of law is a prerequisite for a dynamic economy based on private initiatives.

She also said that placing the law in the service of capital may be self-defeating. Subordinate social interests to private wealth. It also undermines the legitimacy /authority of law.

She then talked about the future outlook which includes:

  • Business as usual with patch-ups in crises.
  • Reset: changes in market structure plus norms against outsourcing of law.
  • Authoritarian/coercive capitalism (digital & otherwise)
  • Transformative change: decentralized market economy without legal steroids.

The webinar was concluded by 4:03 pm.

RECOMMENDATIONS AND CONCLUSION

This webinar was very insightful as the speaker did justice to the topic.

EVENT THREE

EFCC, POLICE AND THE NIGERIAN LAWYERS: PARTNERS OR FOES?

4TH JULY 2021, 1:00 PM 

The first speaker was Dr, Ayodele Akenroye, he noted that Fighting corruption is in the public interest, and all parties involved must do so within the context of the law and that despite all the efforts of the EFCC, corruption is still rampant, however even a critique of the EFCC cannot deny that the EFCC has done a lot since its inception and that it has been able to recover stolen money, he, however, noted that they have some practices which are not likable such as displaying suspects on social media, he also noted that the EFCC is always subject to political interference since its inception and that this is one of the problems that should be dealt with as they should realize that their loyalty is not to the president but to the people and that they should always do what is right for the public interest, the speaker noted that the EFCC has metamorphosed from advance fee fraud to other high profile fraudulent cases, however, he noted that there is still more to be done.

On the police their interaction with the EFCC and lawyer, the speaker noted that there have always been issues with the police and corruption in Nigeria, he noted that there have always been cases of the top police officials receiving bribes, the speaker said that the police should not be involved in investigating fraud, he noted that the police do not even enforce the law properly and that the Nigerian police are ranked as one of the worst police force in the world and therefore they can’t be used to fight corruption.

On lawyers, he said that this is an extremely dire issue of lawyers and fraudulent practices, he noted that should be a better code of conduct as the RPC is not robust enough to deal with the issue of corruption in legal practice, he noted that there cannot be rule of law without credible lawyers,  he noted that lawyers must be partners with law enforcement agencies in order to eradicate corruption and that even though a lawyer cannot disclose what the client says, a lawyer should not enable the client to exploit the loopholes in the system to enable them to hide stolen funds, he noted that there is no law that checks lawyers from corrupt practices are there no soft laws put in place to stop lawyers from corrupt practices and that though there is the RPC, it isn’t enough.

The speaker noted that both parties could be partners or foes depending on the circumstances, he noted that if access is not allowed to a client arrested then they could be foes as clients should be allowed access to their lawyers, also he noted that if the evidence is acquired illegally and is being presented in court, lawyers have a duty not to agree with such practice and also lawyers have to ensure that the EFCC does not torture people that are in their cell.

The second speaker was MR. ADEBAYO, he noted that his major concern has been that Nigerian government always have a form of different intention whenever agencies or laws are being established, and it always seems that the intention of leaders are always different when they established such organizations, he noted that the EFCC is made up of accountant, lawyers, and other professionals, he noted that they are all sourced from the government while the enforcement party of the EFCC  is sourced from the police. Therefore, police, lawyers, and accountants are all in the EFCC organization, he also noted that the legal profession is not well regulated and lawyers have no regard for their code of ethics.

On the success of the EFCC, he said looking at the way the EFCC conducts their business, there is always fundamental human rights issues involved, and that sometimes they collect bribe in order not to prosecute people, he noted that the EFCC should always follow due process instead of just making arrests without a full investigation.

The third speaker was FARUQ ABAS, he noted that there is lethargy from the people and citizens as they are not focused or interested in governorship processes, he said that the EFCC came on board because it was mandated by international bodies and that majority of the chairmen of the EFCC have been from the police force, the speaker also noted that the EFCC needs to be well funded and that this should be done by the government.

NBA-ICLE 5TH JULY

EXAMINATION IN CIVIL LITIGATION

John Baiyeshea, SAN explained that the process of examination in both civil and criminal trials are the same. The process comprises of examination-in-chief, cross-examination, and re-examination contained in Sections 214 -215 of the Evidence Act. Section 214(1) of the Evidence Act, 2011 defines the process of examination-in-chief. This is the first stage of the examination of a witness. It involves the calling and questioning of a witness. According to the law, the examination of a witness by the party who calls him shall be called examination-in-chief. The relevant civil procedure rules of court have however made this simpler with the frontloading process via a written statement on oath adopted before the court and tendered documents referred to in the statement.

This Examination must be related to relevant facts as stated by the Evidence Act in Section 215(2). As such, a counsel cannot ask a leading question. But the law provides certain exceptions to this. In MTN NIGERIA COMMUNICATION LIMITED v. CORPORATE COMMUNICATION INVESTMENT LIMITED (2019) LCN/4712(SC), it was stated that “the purpose of evidence in chief is to lead evidence in support of a party’s pleadings.” The Old Rules of the court didn’t make provision for the frontloading process as it used to be open-ended. What was obtained till 2004 was the oral testimony of a witness. It has been captured in the case of ASSOCIATED BUSINESS COMPANY LIMITED v. JONAH NWACHINEMELU ORS (2014) LCN/7627(CA) that now “there is no doubt that a statement on oath is evidence just like affidavit evidence”.  The rationale behind this new frontloading format is to reduce the time spent in litigation. Election petition trials in Nigeria now also take the same format of adopting a written statement on oath (HON. BARRISTER JOSEPH EFFIONG ETENE v. HON. SAVIOUR OKON NYONG & ORS.(2012) LCN/5605(CA)). It must however be noted that the provision on examination-in-chief does not require a counsel to tender the written statement on oath. This would amount to an error.

Section 214(2) of the Evidence Act defines cross-examination. This is the examination of a witness by a party other than the party who called him. The objective of cross-examination is to weaken the adversary’s case. Its purpose is to find out the truth. It is in itself an art that cannot be effectively taught. It is picked up over the years by practice and experience. counsel must however know when to stop. It must not be misused as a case can either be made or destroyed through it. Art is the expression of human creative skills and imagination. In cross-examination, a counsel can lead, push or pull but certain lines must not be crossed. In relation to this, there are two schools of thought. One of these schools believes that cross-examination can be at large while the other believes that it should not be at large but must be within the purview of what has been pleaded by the witness.  The Supreme court has stated in Samuel Isheno v. Julius Berger Nigeria Plc. (2008) LPELR-1544(SC), that cross-examination cannot be at large. Relevancy is the limitation of the examination process in a trial. Relevancy is the heartbeat of the law of evidence. A party is generally not allowed to cross-examine his witness except with the leave of court.

The third process of examination is re-examination contained in Section 214(2). This is where a witness has been cross-examined and is then examined by the party who sailed him. The purpose of this is to clarify but not to introduce new facts. This however depends on what is allowed by the judge and it is dependent on the facts of the case.

The speaker concluded by stating that his entire discussion was summarized in the case of SIKIRU OLAIDE OKULEYE V ALHAJI RASHEED ADEOYE ADESANYA & ANOR (2014) LCN/4264(SC).

FINAL ADDRESSES/WRITTEN ARGUMENTS IN SUPPORT OF APPLICATIONS/ORAL SUBMISSIONS AND ADUMBRATIONS

The Second speaker, Miannaya Essien, SAN stated there is a constitutional provision for written addresses. It can be found in Section 36 and Section 294(1) CFRN 1999. The latter section states that judgment must to be delivered within 90 days of evidence and final written addresses. The various civil procedure rules of the various courts also make provision for it. The rules provide for written addresses and the rationale is to save the time of the court. Some rules may however dispense with the same where the interest of justice so demands as seen in Order 22 Federal High Court.

The Aim of a final address is to present a summary of the case, to convince the court, and to urge the court to decide the case in favour of the party addressing the court. The sequence of a final written address is as follows: written address, reply, reply on points of law. where the other party calls evidence he shall file first. A party who files first has a right to reply. The rules determine the sequence, the time for filing, and also the time to respond. This however varies for interlocutory and substantive matters. A final Address is normally mandatory. If there is no written address, the application may be incomplete. Failure to file a written address was provided for, may amount to a lack of condition precedent and jurisdictional issues. The Effect of non-compliance can be found in the case of The Registered Trustees of International Society For Krishna Consciousness V. KetsonKomplex International Limited & Anor (2015).

Its role in a substantive matter is to assist the court. It may provide a clear mental opinion on the nature of the case (Ndu v The State, (1990)). The court has the duty to reach a decision with or without written addresses. In certain cases, failure to consider may lead to a breach of fair hearing (Okpeh v. State (2017)).  The speaker likened it to icing on a cake. It is not a substitute for evidence. A case can however be decided without a written address. In Niger Construction Ltd v. Okugbemi (1987) the court stated that “Addresses are designed to assist the court… cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue”.A similar notion was mentioned in Ogunsanya v. The State (2011).

Under the civil procedure rules, this concept generally applies where written addresses are ordered. The format includes: Heading as in suit, printed on good quality white opaque A4 paper, set out in paragraphs numbered (or sub-numbered) seriatim, signature & address of counsel, address for service, number of pages may be determined by the rules or the court, must be legible. The contents of a written address are the claim/application, a brief statement of facts grounding claim, refer to exhibits or evidence, issue(s) arising from the evidence for determination, succinct argument on each issue with authorities, conclusion, numbered summary, party’s prayer, list of relevant authorities and or certified true copies of unreported cases. Counsel must know his/her case and pleadings, set out material and relevant facts as in the Evidence Act, Facts must be included (what is known or exists, truth), the evidence before the court, exhibits, issue(s) distilled/arising from the evidence must all be included therein.

An issue has been defined as every disputed question of fact which arises when a fact is maintained by one party and controverted by the opposite party in the pleadings. (Akinade v. Nigerian Law School Lagos Campus Staff Co-operative Thrift & Credit Society Limited (2015). On the definition of what an issue is, see also Vidah Packaging Ltd & Anor v. Ikem (2011). While putting together a written address, counsel must tie pleadings to facts, exhibits, and law. The authorities cited must be applicable and must not be quoted out of context. Adverse authorities known must be disclosed to the court. The scope of reply on points of law was pointed out in the case of Okoroafor v. Madumere (2019). The court stated that a reply on point of law is a reply based strictly on the new issue of law raised by the adverse party in his reply.

The skills required for drafting a written address includes Excellent command of formal written English, logical, sequential arrangements, ability to identify evidential issues, be clear & succinct, be persuasive, avoid undue verbosity, do not be repetitive, a combination of similar arguments, aim not to bore, review, etc.

The process of oral adoption includes the adoption of address and relying on the same, opportunity to highlight one’s case from one’s perspective. It should generally not be more than 20 minutes, good command of English, elucidate, eloquently, where time permits, exhibit good advocacy skills, it will be deemed adopted if not present, the best foot must be kept forward, critical issues must be highlighted with reference to evidence, be civil. Leave weak arguments, minimize/neutralize adverse facts, pay attention to the court’s body language. The speaker concluded by stating that counsel must be versed with the Rules, evidence, law, case law because the evidence determines the success of the case. No matter how good an address is, it cannot supplant the evidence. 

Topic: EXAMINATION IN CIVIL LITIGATION

FINAL ADDRESSES/WRITTEN ARGUMENTS IN SUPPORT OF APPLICATIONS/ORAL SUBMISSIONS AND ADUMBRATIONS

Date: 5th JUNE 2021                          Duration: 3hrs            from: 02:00pm   to: 5.00pm

SPEAKERS:

  1. John Baiyeshea, SAN

Summary of Presentation: The process of examination in both civil and criminal trials is the same. The process comprises of examination-in-chief, cross-examination, and re-examination contained in Sections 214 -215 of the Evidence Act. They are all limited to relevancy. This determines what can be included in each. The case SIKIRU OLAIDE OKULEYE V ALHAJI RASHEED ADEOYE ADESANYA & ANOR (2014) LCN/4264(SC) gives a summary of the process.

  • Miannaya Essien, SAN

Summary of Presentation: There is a constitutional provision for written addresses. It can be found in Section 36 and Section 294(1) CFRN 1999. The various civil procedure rules of the various courts also make provision for it. The rules provide for written addresses and the rationale is to save the time of the court. Some rules may however dispense with the same where the interest of justice so demands as seen in Order 22 Federal High Court. The Aim of a final address is to present a summary of the case, to convince the court, and to urge the court to decide the case in favour of the party addressing the court.

Lesson learnt from the event:

Both topics have legal backing and must be duly abided by.

NBA-ICLE 6TH JULY

JUDGEMENT/ ENFORCEMENT OF JUDGEMENT

The speaker, Elisha Kurah, SAN defined judgement by making reference to the Black’s Law Dictionary. He defined it as the final determination of the rights and obligations of the parties in a case before the court. It was also defined by the Supreme Court in the case of SARAKI & ORS v. KOTOYE (1992) 9 NWLR (pt. 264) 156 as a binding, authentic, official, and judicial determination of the court in respect of claims and in an action before it. Section 294 of the Constitution requires that every court must deliver its decision in writing not later than ninety days after the conclusion of the evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. A judgement could either be monetary or declaratory. It is guided by the various high court rules. The Sheriffs and Civil Process Act,1945 (SCPA) and the Judgments Enforcement Rules set out the various methods of enforcing money judgments. These are by writ of FIFA, garnishee proceedings, a charging order, a writ of sequestration or order of committal on judgment debtor summons.

The writ of FIFA is issued on the application of a judgment creditor where the judgment debtor refuses to pay the money ordered to be paid in a judgment. It ensures the realization of the judgment debt by the seizure and subsequent sale of the judgment debtor’s properties and the proceeds of such a sale is used to satisfy the judgment debt. In a garnishee proceeding, where a judgment debtor has failed to pay its judgment debt and it is discovered that the judgment debtor has money with a third party (garnishee), the money in the hands of that third party will be regarded as a debt owing to the judgment debtor. The garnishee could be a bank or any other entity that has custody of the judgment debtor’s money. There is, however, a controversy as to whether a judgment debtor is a necessary party in garnishee proceedings.

Section 84 of the SCPA requires that the consent of the Attorney General of the Federation or Attorney General of a State as the case may be, must be obtained before judgments can be enforced by way of garnishee proceedings as seen in Government of Akwa Ibom State v Powercom Nigeria Ltd (2004) 16 NWLR (Pt 868) 202. In the recent case of CBN v Interstella Communications Ltd (2017) All FWLR (Pt 930) 442, the court provided some clarification on the requirement for the consent of the Attorney General. It held that the consent is not required where the Attorney General of the Federation or of a State is a party to the proceedings resulting in the judgment debt or is otherwise part of the negotiations or transactions in the case even to the extent of making part payment of the debt involved. The rationale behind this stance in seeking the Attorney General’s consent, is to avoid any embarrassment to the government that may arise from making attachment orders against public funds without notice to the government.

Enforcement of foreign judgement in Nigeria is governed by the Reciprocal Enforcement of Judgments Rules 1922 and the Foreign Judgments (Reciprocal Enforcement) Act, CAP F 35, LFN, 1990. Over time, there had been some controversy as to which of the statutes is in force. In Bronwen Energy Trading Ltd v Crescent Africa (Ghana) Ltd (2018) LPELR-43796 (CA) the court held that the proper mode of bringing an application to recognize a foreign judgment in Nigeria is by way of Petition and not Motion on Notice. For an enforcement action to be successful, it must meet the following criteria: (i) the foreign judgement is final and conclusive (ii) it was delivered by a superior court of competent jurisdiction (iii) it must have been for a definite sum of money but must not have been a tax, fine or penalty; and (iv) where the judgement is for a res, the res must be situated within the jurisdiction of the court that gave the judgement at the time of delivery of the judgement.

POST-JUDGEMENT APPLICATION

The second speaker, Wole Agunbiade, SAN discussed the applications incidental to judgement i.e., stay of execution, stay of proceedings, and injunction pending appeal. A successful litigant is expected to enjoy the fruits of his victory. A stay of execution was defined in T.S.A IND. LTD. V. KEMA INV. LTD (2006) 2NWLR (PT.964) 300, as an interim order and does not possess the attribute of finality. It is an order for suspension of rights which a Court had declared in favour of a respondent and of course, the preservation of the property pending the determination of an appeal from a judgment in respect of that right and/or property. It only prevents the plaintiff or beneficiary of the judgment from putting into operation the machinery of the law i.e., the legal process of warrants of execution and so forth.

The Civil Procedure Rules of Various courts have orders regulating the stay of execution e.g., Order 51 CPR (Kaduna) 2007, Order 58 CPR (Lagos) 2019, Order 32 Federal High Court CPR 2019. It states that an order for a stay of execution must be sought by a motion on notice, accompanied by a written address. The decision to either grant or refuse an application for this is at the discretion of the court. However, this discretion must be exercised judicially and judiciously.  An application for an injunction pending appeal is similar to the stay of execution. It is appropriate where a judgement is declaratory. It suspends or hauls the enjoyment of a party pending the determination of an appeal (CHIEF IMAM Y.P.O. SHODEINDE & ORS v. THE REGISTERED TRUSTEES OF THE AHMADIYYA). It is possible to have both prayers for a stay of execution and injunction pending appeal in an application. The monetary aspect of the application would be for a stay of execution while, the declaratory aspect for an injunction pending appeal. Stay of Proceedings applies to actions that are ongoing. It is rarely resorted to after judgement but there are a few exceptions to this.

Topic: JUDGEMENT/ ENFORCEMENT OF JUDGEMENT

POST-JUDGEMENT APPLICATION

Date: 6th JUNE 2021                          Duration: 3hrs            from: 02:00pm   to: 5.00pm

SPEAKERS:

  1. Elisha Kurah, SAN

Summary of Presentation: Judgement is the final determination of the rights and obligations of the parties in a case before the court. It was also defined by the Supreme Court in the case of SARAKI & ORS v. KOTOYE (1992) 9 NWLR (pt. 264) 156 as a binding, authentic, official, and judicial determination of the court in respect of claims and in an action before it. Section 294 of the Constitution requires that every court must deliver its decision in writing not later than ninety days after the conclusion of the evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. A judgement could either be monetary or declaratory. It is guided by the various high court rules. The Sheriffs and Civil Process Act,1945 (SCPA) and the Judgments Enforcement Rules set out the various methods of enforcing money judgments.

  • Wole Agunbiade, SAN

Summary of Presentation: He discussed the applications incidental to judgment i.e., stay of execution, stay of proceedings, and injunction pending appeal. A successful litigant is expected to enjoy the fruits of his victory. A stay of execution was defined in T.S.A IND. LTD. V. KEMA INV. LTD (2006) 2NWLR (PT.964) 300, as an interim order and does not possess the attribute of finality. It is an order for suspension of rights which a Court had declared in favor of a respondent and of course, the preservation of the property pending the determination of an appeal from a judgment in respect of that right and/or property. It only prevents the plaintiff or beneficiary of the judgment from putting into operation the machinery of the law i.e., the legal process of warrants of execution and so forth. An application for an injunction pending appeal is similar to the stay of execution. It is appropriate where a judgement is declaratory. It suspends or hauls the enjoyment of a party pending the determination of an appeal (CHIEF IMAM Y.P.O. SHODEINDE & ORS v. THE REGISTERED TRUSTEES OF THE AHMADIYYA). It is rarely resorted to after judgement but there are a few exceptions to this.

Lessons learnt from this event:

The first speaker noted the terrible working conditions of the court and the Nigerian legal system. He suggested the introduction of a better working system between the police and sheriff to assist and ensure an effective judgement enforcement procedure. The terrible working conditions of the court (such as the time-consuming long handwritten notes by the court officials and the judge) are an important factor after the delivery and enforcement of judgement in Nigeria.

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lawpavilion • July 19, 2021


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