It is with great honour and professional pride that we present this edition of the Awka Capital Bar Journal, an official publication of the Nigerian Bar Association, Awka Branch, Anambra State, Nigeria. This journal stands as a testament to our continued commitment to legal scholarship, advocacy, and the promotion of justice within our jurisdiction and beyond. The Awka Capital Bar Journal serves as a vital platform for intellectual engagement and legal discourse. It provides an avenue for members of the Bar, Bench, academia, and other stakeholders in the justice sector to contribute meaningfully to the development of legal thought and practice in Nigeria. Each edition is curated to reflect the dynamic nature of law, respond to emerging legal issues, and stimulate informed debate on matters that shape our legal system.
THE RECORDING OF CROSS-EXAMINATION QUESTIONS IN NIGERIA: A LEGAL APPRAISAL
The right to a fair hearing connotes or involves a fair trial and a fair trial of a case consists of the whole hearing; yes, the whole hearing. By section 36 of the Constitution of the Federal Republic of Nigeria 1999, the aforesaid right to a fair hearing is guaranteed. Cross-examination is a vital feature in the proceedings/trial of contentious cases and it is a noble art that occupies an Olympian position in the administration of justice. The noble art of cross-examination is the index with which the truth or otherwise of evidence-in-chief is usually measured in appropriate cases. Skilful questioning and questions constitute a very important tool in the noble art of cross-examination. Meanwhile, some judicial officers in the trial courts oftentimes neglect and/or fail to record cross-examination questions [i.e. questions asked under cross-examination]; in other words, such judicial officers record only the responses/answers elicited from a witness under cross-examination. Perhaps, this is so because the said judicial officers would want to save both time and strength since judicial officers in Nigeria are still required to record in longhand which mode of recording bountifully consumes both time and strength. Accordingly, this work interrogates the legal place of questioning and recording of cross-examination questions vis-à-vis the concept of fair hearing. It is the researchers’ finding that questioning and questions constitute the foundation upon which responses/answers elicited under cross-examination should stand in the records of trial Courts, even as it is axiomatic that the context of every response/answer is defined by the questions pursuant to which the response/answer was volunteered or given. This work adopted the doctrinal research methodology in its work analysis relying on primary and secondary sources in the cause of this research. It is further found that non-recording of cross-examination questions by a trial Court will not only lead the trial Court into the temptation of speculation in the course of evaluating evidence but may equally amount to a breach of a party’s fundamental right to a fair hearing. This work recommends that cross-examination questions should be given their due place and space in the Record of Proceedings of trial Courts even as the Supreme Court has held that the Record of Proceedings is the only indication of what takes place in Court and is always the final reference of events, step by step, that took place in the trial Court.
ODINAKACHUKWU E. OKEKE, PhD & PROF. U. C. KALU
THE INTERNATIONAL LEGAL FRAMEWORK FOR PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN NIGERIA
From time immemorial, several communities or countries have entered into relationship with each other whether friendly or hostile. From such relationships, rules of conduct have evolved and over the years became tradition. In due course these traditions became collectively described as a set of laws - the laws of nations otherwise called International Law. Just as William Fullbright puts it, “insofar as international law is observed, it provides us with stability and order and with a means of predicting the behavior of those with whom we have reciprocal legal obligations”. Intellectual Property laws are no exception to this development. In a bid to protect and enhance the intellectual property of citizens of member States, States have collectively come together to make treaties which is geared to ensuring that States in their respective accord to these treaties protect the intellectual property of their citizens municipally, and that other State parties also ensure the respect of those member State citizens in their respective jurisdictions. As a result of this dynamism, international legal frameworks have evolved in shaping the state of our laws as it relates to Intellectual Property laws in Nigeria. In this article, an appraisal look shall be made at the international legal framework for protection of intellectual property rights and its consequent influence in the protection of intellectual property in Nigeria. This study shall also evaluate these international legal frameworks to see if there are lacunae in them. This study adopts the doctrinal research approach, utilizing primary and secondary sources of data collection. In the final analysis, this article shall have critically looked at the various international legal framework on intellectual property in Nigeria and how same have influenced the national legal framework on intellectual property in Nigeria.
RETHINKING THE NON-JUSTICIABILITY OF ECONOMIC, SOCIAL AND THE RIGHTS AND THE RIGHTS TO DIGNIFIED CONDITIONS OF LIVING IN NIGERIA
This study confronts the argument that economic, social, and cultural rights (ESCRs) lack the criteria for justiciability. In Nigeria, the popular judicial opinion is that Chapter 6(6)(c) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN, 1999) creates a bar to the enforcement of these rights. Consequent upon this is judicial inertia to ESCRs, and of course, a lack of accountability for breaches. These result in impunities and human rights enigma. My research questions the rationale behind the prioritizing of civil and political rights (CPRs) over ESCRs. What use is the right to life (RTL) in the absence of the necessary conditions of dignified living such as food, shelter, access to good health, environmental safety, and sanitation? Section 46 CFRN, 1999 legitimizes the enforcement of CPRs in Chapter IV, whereas Section 6(6)(c) delegitimizes Chapter II. Unfortunately, the Nigerian courts have largely pushed the boundaries, regardless of Nigeria’s treaty obligations. This research seeks a resolution in international law by reasserting the inextricable ties between ESCRs and the CPRs through an expansionist approach. Supported by international best practices, it reaffirms the justiciability of ESCRs separately and within the RTL. So, the study prescribes functional approaches to interpreting ESCRs to enhance accountability. Hence, maintaining a sustainable human right is untenable without treating the generations of human rights equally and ensuring that the survivors of human rights violations get justice. Therefore, this research seeks to reinforce judicial activism and sustain the ESCRs regime, where judicial precedents could viably provoke policy-making and human rights reforms as seen in India and South Africa.
PROPERTY TAXATION IN NIGERIA: AN APPRAISAL
Taxation of property in Nigeria has a checkered history. Taxes imposed on property in the country are marked with intricate and complicated interaction of both traditional, colonial and modern day circumstances. Property tax, put briefly and to the point, has to do with a tax imposed on property owned by person(s) or other legal entities by the government. It is a vital source of revenue for governments worldwide. The revenue generated from the tax helps the government to finance essential public services, and also improve and maintain public infrastructure. In Nigeria, there are various types of taxes imposed on property in the country, each with its own peculiar or distinguishing features. The taxes, no doubt, play crucial roles in government project financing, although with various challenges. This Article critically examined the gamut of property taxation in Nigeria. The research methodology employed in the study is doctrinal, while data were collated from both primary and secondary sources. Findings revealed that multiplicity of taxes imposed on property, inadequate data of property, poor administrative and collection system, and lack of awareness of the tax, are some of the barriers to property taxation in Nigeria. The study ends with recommendations which if followed would improve the lot of property taxation in Nigeria and enable the government reap more from this form of tax.
Nwoke Theophilus Williams & Ajah, Joseph Okorie
ONLINE ARBITRATION: A THREE JURISDICTIONAL COMPARISON
Arbitration is a popular method of dispute resolution for many parties who seek to avoid the costs, delays, and publicity of litigation. Of late, arbitration has moved online because of the penetration of technology into arbitral process. The outbreak of Covid – 19 has also skyrocketed the influx of technology in arbitral process. Online arbitration is a form of dispute resolution using the internet as the main medium in conjunction with other technology such as multipoint video conferencing. It is an effective dispute resolution mechanism which has come to stay. However, the extent and scope of online arbitration vary across different jurisdictions. This work, aimed at comparing online arbitration in three major arbitration hubs: Nigeria, USA, and India. The objective of the paper is to investigate whether under their legal system there are laws which specifically provide for online arbitration in those jurisdictions. The work adopted doctrinal research methodology through library based and internet materials. The work finds that their legal system accommodates online arbitration. It therefore recommends that online arbitration should be legally incorporated for a better application and practice globally.
DEPARTMENT OF PETROLEUM RESOURCES GUIDELINES FOR THE RELEASE OF STAFF IN THE NIGERIAN OIL AND GAS INDUSTRY, 2019: APPLICATION AND CHALLENGES
Subsidiary legislations are laws made pursuant to, and in exercise of, the power vested or conferred by an enabling statute. They enjoy the flavour and potency of the statutory provisions pursuant to which they are issued. By this, the members of judiciary and executive arms of government are empowered to make laws which ordinarily would infringe the principles of separation of powers. The only caveat is that the potency of such authorized subsidiary legislations must be exercised in furtherance of the cause of the enabling statute. Where an arm, other than the legislature, purports to make any law which is not authorized by an enabling statute, or its provisions do not further the cause of its enabling statute, such law, especially if made by the executive arm or its agencies, could be adjudged a government policy. The Minister of Petroleum Resources issued the Department of Petroleum Resources Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019. Paragraph 3.0 of the Guidelines requires the approval of the Minister before any staff of the oil and gas industry could be released. However, the issue is whether the Minister was empowered by an enabling statute to make such Guidelines. There are legal commentaries on whether the Guidelines, if authorized, could operate to limit the powers of employers in oil and gas industry. This is when juxtaposed with extant statutory and case laws on determination of contract of employment. It is against this backdrop that this paper sets out to appraise legal challenges in application of Department of Petroleum Resources Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019. The paper adopted doctrinal methodology with analytical approach using statutes and case laws, journals, articles, Internet materials as primary and secondary sources. At the end, it was found that the Guidelines did not meet the requirement of a subsidiary legislation and was ultra vires the powers given to him by the enabling law. Therefore, the Minister could not validly make Guidelines.
Matthew Izuchukwu Anushiem, PhD; Chijioke Vincent Obueze, Esq & Chisolum Nkolika Okafor, Esq
LEGALITY OF TRANSFER OF POWER TO COLLECT TAXES MEANT FOR LOCAL GOVERNMENTS TO THE STATE GOVERNMENTS IN NIGERIA
Taxing power is the capability of one level of government level to impose taxes through its laws and establish standards for their proper collection and administration through its agencies. Taxing powers in Nigeria are derived from the Constitution and are divided between the Federal, State, and Local governments. Tax administration and enforcement within its jurisdiction is the responsibility of each level of government. The Constitution of the Federal Republic of Nigeria 1999(As amended) and The Taxes and Levies (Approved List for Collection) Act 1clearly stipulated the taxes that can be collected by each tier of government in Nigeria. The aim of this research is to examine the taxing powers of the State and Local Governments in Nigeria and the legality of any written agreement transferring the powers to collect taxes from Local Government to the State Government in Nigeria. The Constitution of the Federal Republic of Nigeria 1999(As amended) and The Taxes and Levies (Approved List for Collection) Act2 clearly stipulated the taxes that are collected by each tier of government in Nigeria. The essence of the Act is to streamline the collection of these listed taxes to avoid double taxation and multiple tax collection from the taxpayers. In order words, no tier of government is allowed to collect taxes meant to be collected by another. By the provisions of the 1999 Constitution and the Taxes and Levies (Approved List for Collection) Act,3 both the State and Local Governments are expected to strictly collect the taxes they are meant to collect and not to encroach on each other’s taxing powers but ultimately, you observe the state government collecting taxes that are meant to be collected by the local government hereby breaching the provisions of the Constitution. However, where there is a state law permitting the local government to donate its powers to collect any tax to the State government then the State government can collect these taxes and levies on behalf of the local government. In the light of the findings mentioned above, this research work hereby recommends as follows: Legal framework for enactment of a Law by the State Houses of Assembly permitting the local government to donate its powers to the State government, adequate funding of tax authority, legal framework for enactment of law to provide for the harmonization and collection of all revenues including taxes, levies, rates, fees, charges etc. due to the State and Local government in all the States, creation of synergy between the States and Local governments to ensures that these taxes are collected effectively and need for a synergy between the State, local and tax authority in order to achieve an effective enforcement mechanisms for collection of taxes due for the state and local governments in Nigeria.
Uchenna Maryjane Anushiem, PhD & William Chukwuma Amechi, PhD
ANALYSIS OF THE LINK BETWEEN HUMAN RIGHTS AND ENVIRONMENTAL PROTECTION WITHIN THE EXISTING INTERNATIONAL HUMAN RIGHTS LAW
Recent emergence and increased awareness of the need for conservation of the environment has certainly introduced a new dimension of human rights under the international human rights law. Although, the 1948 Universal Declaration of Human Rights did not contemplate or mention the environment, the world has begun to realise how much damage human activities could cause to the environment and mankind. This, coupled with the recognition of the inextricable relation between man and the environment, raise the question on the need for human rights law to recognise the importance of environmental protection. This is because, a safe and clean environment is integral to the realisation and full enjoyment of a broad range of human rights, including the rights to life, health, food, water and hygiene. Accordingly, human rights obligations in relation to a clean, healthy and sustainable environment became the core concern of the ‘mandate on human rights and the environment’ espoused by the UN General Assembly in 2022. Using doctrinal method, this article analyses the nexus between human rights and the environment under international human rights legal framework. The article finds that, beyond the inclusion of environmental issues in the broad range of human rights, there is no global/international agreement yet specifically on right to a healthy environment. It argues that environmental human right falls within the purview of the existing international human rights law, and recommends for a coherent and comprehensive universal human rights law on the environment.
ANALYSIS OF SPOUSAL RAPE: A CRIME UNDER THE NIGERIAN CRIMINAL JURISPRUDENCE
Spousal rape is simply the act of having sexual intercourse with one’s spouse without the valid consent of the said spouse. The concept of spousal rape is not common in Nigeria and the knowledge of same goes a long way in helping spouses especially wives to know that they do have a right in marriage, to politely decline sexual intercourse, at times they are not fit to do so. This paper makes known the fact that a man can indeed be raped by a woman and there is nothing shy about a man speaking up about this dilemma whenever such happens to him. The paper is not gender specific. In essence, it envisaged for both genders with respect to spousal rape. It also discussed how a man can be raped by his wife and what penetration entails in the context. It made findings that indeed, spousal rape is now a crime in Nigeria, even though not directly but according to the Violence Against Persons (Prohibition) Act1, spouses can be tried and convicted for spousal rape in Nigeria against the other spouse. In making these findings, this work adopted the doctrinal method of research, which involves analyzing of primary and secondary data. It is now certain by this paper and of course the law in Nigeria, that any spouse who is found guilty of having sexual intercourse with the wife, in other words, rape, must be convicted for the said offence. The provision of section 36(12) of the 1999 constitution of Nigeria2 as amended will not aid such a person, being that the offence of spousal rape is now a crime in Nigeria. In the final analysis, this paper made recommendations with regards to spousal rape in Nigeria and the way forward.
AN EXAMINATION OF THE EVIDENCE (AMENDMENT) ACT OF 2023
The Evidence (Amendment) Act, 2023 was enacted to modernize the use of evidence in legal proceedings. The Act aims to improve efficiency and access to justice by making significant changes to the way evidence is managed in the Nigerian legal system. The Act provides for the use of electronic records and digital signatures, allowing for the modernization of evidence management and increasing the efficiency of the legal system. Using a doctrinal research methodology, this paper examined the key provisions of the Evidence (Amendment) Act and the challenges that may arise in putting it into practice. The paper also considered the impact of the Amendment Act on judicial proceedings in Nigeria Courts. The paper found that there are a number of potential challenges to the successful implementation of the Evidence (Amendment) Act; these include a lack of infrastructure, technical expertise and the need for training. However, if these challenges are addressed, the Amendment Act has the potential to bring significant improvements to the legal system in Nigeria.
Onyeka Christiana Aduma, PhD & Helen Obiageli Obi, PhD
UNDERSTANDING THE PRACTICE AND PROCEDURE IN A SMALL CLAIMS COURT
The small Claims Court was on 29th day of September, 2023 introduced in Anambra State by a Practice Direction under the hand of the Chief Judge of Anambra State, Hon. Justice O.M. Anyachebelu, FCIArb in exercise of the power granted to him under Section 274 of the Constitution of the Federal Republic of Nigeria1 and Section 79 of the Magistrate Court Law2,. Two Small Claim Courts have been designated by the Chief Judge in each of the following Magisterial District, Awka, Onitsha, Ogidi and Nnewi. The small claims court is intended to facilitate easy access to justice for recovery of liquidated money demand with or without claim of interest or ancillary cost. The Practice Direction puts timeline for the determination of such claims with specimen of forms to be filled and filed thereby making access to that court user friendly. This is intended to fast tract resolution of simple monetary claim in order to create an enviable and sustainable environment for commercial transaction to thrive as well as to make Anambra State the first place of choice for investment. This article is a guide for user of Small Claims Court.
A REVIEW OF THE CONTROVERCIES ON THE APPELLATE JURISDICTION OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA
The controversies surrounding the appellate jurisdiction of the National Industrial Court of Nigeria (NICN) called for a clear interpretation of the provisions of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. These calls have found expression in some recent cases, one of which is Skye Bank Plc v. Iwu, with the major issues of; when an appeal from the decision of the National Industrial Court to the Court of Appeal lies as of right and when it lies with the leave of court; whether all decisions of the National Industrial Court are appealable or whether its decision is final; and whether appeals from the decisions of the National Industrial Court to the Court of Appeal is limited to only questions of fundamental human rights and criminal matters. This paper argues that the provisions of the Constitution on the appellate jurisdiction of the National Industrial Court does not eliminate the ability to appeal to the Court of Appeal on other civil concerns and causes aside fundamental rights. This paper adopted the doctrinal research methodology and utilized both the primary and secondary sources of data including statutes, journals, textbooks, Newspaper publications and internet data and materials. This paper recommends that the need for legislative clarity and a unanimous judicial interpretation in relation to the provisions of the Constitution on the appellate jurisdiction of the National Industrial Court.
TOPOGRAPHY OF HUMAN SUFFERING IN NIGERIA – FROM THE PLATEAU OF CORRUPTION TO THE LOW LANDS OF POVERTY: THE RIGHT TO DEVELOPMENT TO THE RESCUE
This article takes a critical look at the content of the right to development as provided in the African Charter on Human and peoples’ Rights and the United Nations Declaration on the Right to Development, and interrogates the availability of that right in Nigeria. The article argues that an institutionalized culture of corruption is to blame for the failure of successive Nigerian governments to promote and foster the right to development because the resources for realizing that right are usually commandeered by the corrupt leaders. It is contended that the failure of the right to development in Nigeria truncates the realization of other human rights because the right to development is indeed the fountain head of all other human rights, what with the interdependence, interconnection and indivisibility of all human rights. A deficit of the right to development is therefore the reason for so much poverty and human suffering in Nigeria. Finally, the article submits that lawyers and judges have what it takes to actualize the quest of suffering Nigerians to enjoy the right to development. If lawyers through cause lawyering can engage the courts with a flood of strategic litigations, backed by robust policy and social change advocacy, the right to development will become tangible to checkmate corruption, poverty and human suffering in Nigeria.
AWKA CAPITAL BAR JOURNAL, VOL. 3 NO 2, 2024
THE NECESSITY OF JUDICIAL TEMPLATE IN THE TRIAL OF TERRORISTS IN NIGERIA: RE: AMINU SADIQ OGWUCHE - A CRITIQUE
Against the backdrop of the various socio-political cum existential threats to Nigeria’s recent democratic experiment on the present second model of Presidential Constitutional Democracy is the emergence of the offence of Terrorism (and other allied offences such as Banditry and Hostage-taking for Ransome) and Terrorists, the actual perpetrators of Terrorism. This legal conversation as captured in this extent paper examines and solicits for necessity of established template and clear legal Direction in the trial and or prosecution of the accused terrorist(s) in line with the Rule of law. The various nuances of legal impasse and procedural lock jam to which the rule of law is subjected by all the known and amorphous legislative sanctuaries churning out these inelegant statutes (and law enforcement agents) competing among themselves in the arrest, detention, investigation and prosecution of the offence(s) are herein critically downloaded with a view to proffering a lasting solution to the legal procedural monstrosities avalanching the entire spectrum of the criminal justice administration in the beleaguered liberal state.
THE LEGALITY OR OTHERWISE OF PAYMENT OF PROPERTY TAX BY HOLDERS OF STATUTORY RIGHT OF OCCUPANCY IN NIGERIA
This work is centered on property tax payable by the holder of Certificate of occupancy. Our aim is to examine the Land Use Act of 1978 to ascertain if the provisions made for ground rent charge is payable by all land holders or is peculiar to those with certificate of occupancy. One of our objectives in this work is to scrutinize the relevant provisions of Land Use Charge Law which confers the state powers to collect charge on ground rent, tenement rate etc to ascertain whether it is lawful for the state to consolidate both collections conferred on the local government by the Constitution (as amended) and that of state. The methodology adopted in this work is doctrinal while the approach employed is descriptive. We utilized primary sources such as the Constitution, statutes, text books etc. and secondary sources such as the journal articles, internet etc were used. In view of the findings and conclusion, we therefore recommend the National Assembly to amend the Land Use Act particularly section 10(b) of the said Act to bring the entire land owners into tax net and not only the Holder of Certificate of Occupancy.
THE LAW ON PRE-ACTION NOTICE: A LOOK AT ITS CONSTITUTIONALITY AND EXCEPTIONS
Pre-action notice which is a creature of some statutory laws in Nigeria both at the federal and state levels, is a form of notice issued by an aggrieved person which is expected to be formally served on the other party before the commencement of a valid action. This work aimed at taking a second look at this legal phenomenon to ascertain its place vis-a-vis the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is not in doubt that there have been a number of decisions on the pre-action notice phenomenon in the past, but it appears that the decided cases on pre-action notice have not taken into account the provision of section 4 (8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which explicitly provides that both the National Assembly and the State Houses of Assembly are not to make laws that will oust the jurisdiction of a court of law. The study argues that the import of a pre-action notice by its very nature temporarily suspends the jurisdiction of a court to entertain a suit that is ordinarily within its jurisdiction. The study examined the exceptions that could ignore the express provision that prescribes a pre-action notice prior to a civil suit. These exceptions could be found where the civil action to be brought is on a contract or where the action is a fundamental right suit, amendment or cases of judicial review. The researcher adopted the doctrinal research methodology and utilized both the primary and secondary sources of data including statutes, journals, textbooks, newspaper publications and internet data and materials. The study found that pre-action notice limits the right of a citizen to approach the court as soon as injury has arisen against the government or statutory body. The study recommended that efforts should be made to remove from our legislations, all such unconstitutional provisions on pre-action prior to a suit
SPOUSES’ RIGHT TO “SAY NO” IN MATRIMONY: LEGAL ISSUES AND CHALLENGES
Spousal rape is one legal concept that is shrouded in controversy.1 While gender bias associated with rape simpliciter in Nigerian criminal jurisprudence, has adequately been addressed in the Violence Against Persons (Prohibition) [VAPP] Act,2 and few legal texts, that cannot be said of spousal rape. spousal rape has been outlawed in some jurisdictions and that has necessitated the cry for it being outlawed in Nigeria. But most of these agitations to criminalize spousal rape in Nigeria, are either misconceived or shrouded in gender perspective. Laws are generally predicated on the principles of; equity, equality and fairness, however most scholars advocating for criminalization of spousal rape in Nigeria tend to shut their eyes to this reality. Most scholars also appear not to appreciate the meaning of spouse(s), persons that should accorded the status of spouse or equitable parameters that must be used in that regard in their clamour to have spousal rape criminalized in Nigeria. Rape is crime against humanity and as such, should not be clothed with gender perspective. At present, there is no legislation that has criminalized spousal rape in Nigeria and this situation is bad. The VAPP Act has already laid commendable template of what constitutes the offence of rape/offenders thereof and same should be extended to spouses irrespective of model of marriage contracted. These lacunas necessitated this work. In appraising these lacunas, the work adopted the doctrinal method of research, which involves analyzing of primary and secondary data. The primary data sources were local/foreign statutes, conventions, policy documents and case laws. The VAPP Act is the sole legislation that has used gender neutrals in criminalizing rape (even though it failed to criminalize spousal rape). The work seeks to bridge the gender perspective’s gap inherent in the VAPP Act and other relevant laws amidst the call to criminalize spousal rape in Nigeria.
LEGAL STATUS AND CHALLENGES OF IRREVOCABLE POWER OF ATTORNEY AS AN INSTRUMENT OF TRANSFER OF TITLE TO LAND IN NIGERIA
In land transactions, certain documents serve certain purposes. Whereas a deed of assignment is used when a property owner intends to wholly transfer his title to another person for a consideration, a lease or tenancy is used when the property owner intends that the transferee should enjoy the property for only a period of time. Now, if a property owner wishes to appoint another person to manage his property on his behalf, he will do so through a power of attorney, and in such cases, the donee/attorney can exercise all or any of the powers conferred on him vide the power of attorney, which he could not otherwise have had the legal right to do. However, despite the traditional roles of the above-mentioned documents in land transactions, there is a growing school of thought that the utility of an irrevocable power of attorney can be broadened beyond a mere instrument of delegation, to an instrument of automatic conveyance of title in a property from the donor to the donee, thereby elevating its status to that of an instrument of assignment. This paper therefore critically examines the legal status of an irrevocable power of attorney in land transactions. The researchers find that the decisions of the Supreme Court in Ude v. Nwara and Ezeigwe v Abudu which was followed in Malami v. Ohikhuare to the effect that a power of attorney is a document of delegation and not an instrument of conveyance, constitute the extant position of the law notwithstanding the case of Ibrahim v. Obaje where the apex Court held that a power of attorney can pass title to the donee. The researchers critique the decision of the Supreme Court in Ibrahim v Obaje as it relates to the issue of power of attorney and the distinguishing of the facts of Ude v. Nwara. Apart from the analysis of judicial authorities on the issue, the researchers also discuss the various practical challenges which the use of an irrevocable power of attorney as an instrument of land transfer may pose to land vendors and buyers. In the final analysis, the researchers recommend that lawyers should admonish their clients on the importance of acquiring or transferring title through the appropriate instruments.
Matthew Izuchukwu Anushiem, PhD & Victor Obinna Chukwuma Esq
CHALLENGES OF THE FINANCE ACT ON THE TAXATION OF DIGITAL ECONOMY IN NIGERIA
The enactment of the Finance Act on 13 January 2020 introduced various changes to the principal tax laws in Nigeria, among which was the commencement of a new regime on taxation of digital services and products on persons and corporate bodies in Nigeria. Also brought under the new tax regime was the imposition of Value Added Tax (VAT) on intangible supplies and services. In that vein, the Finance Act 2020 had since its inauguration undergone several amendments. The growth in digital activities introduced a digital economy that has a solid potential of increasing the revenue of government vis-à-vis taxation in Nigeria. Foreign institutions seem to have populated the digital scene with the likes of Net Flex, Twitter, Appla, Amazon etc thus making a fortune from the country. There are challenges facing taxation of digital economy which include problem of identifying the income and profits of non-resident companies, lack of accurate data, lack of specialized court, among others, which have continued to pose serious threats to the new tax regime. Thus, providers of services/merchants seem to have been making so much out of the nation’s purse without any corresponding economic return. The aim of this paper is to examined the challenges torpedoing the taxation of digital economy, and also, advocated further amendments to the extant legal framework for taxation of digital economy as a way forward. This paper adopted doctrinal legal research methodology with the use of analytical approach. The paper used statutes and case law as primary sources and also made use of textbooks, journal articles, and Internet materials as secondary sources. At the end, the paper concluded that the extant legal framework for taxation of digital economy is shrouded with numerous legal challenges which are born out of the decreasing relevance of physical presence in the jurisdiction of consumers thereby destabilizing conventional tax regimes that are location based. The paper recommended among other things that the extant tax laws in respected of taxation of digital economy in Nigeria be amended to be in line with global best practices.
William Amechi Chukwuma PhD & Uchenna Maryjane Anushiem PhD
APPRAISAL OF THE LEGAL NATURE OF DIGITAL ASSETS: THE WAY FORWARD
The growing adoption of the digital asset market has brought to light concerns about issues related to data privacy and security, financial stability and systemic risk, money laundering and criminal activity, national risk, the exercise of human rights, and financial inclusion. It is beneficial to conceptualize digital assets for legal and regulatory reasons. This is due to the requirement that the content of digital assets and associated actions be under control, not just their appearance. As a result, the conception of these assets is based on the concept of Asset form, or conventional instruments portrayed in digital form. Digital ledger technologies are the underlying technology. The question amongst others is whether there is a global legislation regulating financial technologies and digital assets? In a bid to answer the foregoing question, the researcher adopted the doctrinal method of research which entails the use of books, journals, articles, statutes, case laws and materials. This article found that the legal nature of digital asset is largely unsettled. It also found that although few municipal and regional legislations exist, they have not been able to address the issues arising from the operations of digital assets, not to talk of countries that have no such legal framework for the regulations of digital assets. Since there isn't any widely accepted international law on digital assets, digital assets are not yet classified using a standard method. This presents a problem for the management and control of digital assets, which are commonly encountered in international, multi-jurisdictional contexts. In view of the volatility observed in the cryptocurrency and digital asset markets, which includes recent cases of egregious fraud and unviable business models, this article recommended a more standardized and stringent regulatory framework to guarantee the operations and interoperations of digital within and across countries of the world.
APPRAISAL OF THE LEGAL CHALLENGES OF PLASTIC POLLUTION MANAGEMENT IN NIGERIA
Plastic is ubiquitous and its use cannot be overemphasized. It is very useful in packaging, construction, medical and electronic industries. The reason for its prevalence is due to the fact that it possesses very unique characteristics, such as: it is light weight, cheap and durable. Plastic waste has significantly increased due to the increase in production and use and because these wastes are not properly managed, the environment is faced with the problem of pollution from plastics. Nigeria so much depends on plastic for so many things but these wastes are not properly managed after use, they are seen littered everywhere. This has however resulted in serious negative consequences on the environment. The research examined the existing laws regulating plastic waste management and the research addressed the legal challenges of plastic pollution management in Nigeria. The research adopted the doctrinal method of research. The research relied on two major sources of information; the primary and secondary sources of information. The research revealed that Nigeria does not have any national legal framework that addresses the entire lifecycle of plastic in order to tackle the menace of plastic pollution and that the existing laws are inadequate in addressing the plastic waste problem. The study finally concluded that an effective and formidable national legislation is required to tackle the menace of plastic pollution. The researcher therefore recommended the enactment of a legislation for the regulation of plastic pollution and its management in Nigeria as well as the protection of rights of citizens in the process of plastic pollution management in Nigeria.
APPRAISAL OF NATIONAL LEGAL FRAMEWORK FOR PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN NIGERIA
The laws continue to change in our society, including Intellectual Property laws. As a result of this dynamism, our laws equally change to meet up with our society as it affects Intellectual Property in Nigeria. This dynamism has made the enforcement of Intellectual Property rights more complex in Nigeria. Intellectual property laws in Nigeria are crippled by obsolete and virtually non-existent laws. The need for a more conducive Intellectual Property laws to match the ever-growing digital environment in Nigeria cannot be over emphasized. In this article, we are going to look at the national legal framework for protection of intellectual property rights in Nigeria. In this article, an appraisal look shall be made at the national legal framework for protection of intellectual property rights and its consequent in Nigeria. This study shall also evaluate these national legal frameworks to see if there are lacunae in them. This study adopts the doctrinal research approach, utilizing primary and secondary sources of data collection. In the final analysis, this article shall have critically looked at the various national legal framework on intellectual property in Nigeria and in the end, make recommendations for a more viable and robust national legal framework on intellectual property in Nigeria.
ANALYZING THE IMPACT OF THE INNOVATIVE PROVISIONS OF CAMA 2020 ON THE GROWTH AND DEVELOPMENT OF BUSINESS IN NIGERIA
The Companies and Allied Matters Act 2020 is considered to be the most significant reform of Nigeria’s company law in over 30 years. It introduces a range of new provisions and amendments to existing laws, with the aim of modernizing and simplifying the regulation of businesses in Nigeria. Using a doctrinal research methodology, this paper examined the key innovations of the CAMA 2020 and the potential impact the innovations could have on the Nigerian business sector. The paper found the innovations have the potential to have a significant impact on the Nigerian business sector, making it more attractive for foreign investors. However, the success of the new law will depend on addressing a number of challenges, including a lack of awareness and understanding of the new law, inadequate resources and concerns about privacy and data protection. These challenges could be overcome through a number of measures, including promoting awareness and understanding of the new law, through training programs, workshops and other educational initiatives. Coordination and collaboration between the key government’s agencies involved in the implementation of the CAMA 2020 to ensure successful implementation.
ANALYSIS OF THE WORST FORMS OF GIRL CHILD LABOUR IN NIGERIA
Child labour is a national issue that have steered both International and local concern. It had been observed that over 15 million children aged 5 - 14 years were engaged in child labour in Nigeria. This work examined the meaning, various forms of child labour, the causes and the consequences of child labour in Nigeria, with particular reference to the girl child. This work adopted the doctrinal research methodology with analytical approach using statutes, journals, articles, Internet materials as primary and secondary sources in examining the worst forms of child labour in Nigeria and found that poverty, high cost of education, culture, parents’ poor decision making and lack of adequate public enlightenment are the catalysts of child labour. The work therefore recommended that parents, guardians and the society in general must realize that they have legal and moral obligation to bring up children in a healthy and developed society by guarding against all forms of their involvement in child labour practices.
Helen Obiageli Obi, PhD & Damaris Chinemerem Nnajiofor, Esq
A LEGAL APPRAISAL OF THE IMPLICATION OF POLITICAL PARTY DEFECTION IN NIGERIA DEMOCRATIC PROCESS
Political party defection has become a norm in Nigeria especially amongst elected executive and legislative office holders who leave the political party that got them into office to join another political party while in office. This state of affair betrays the will of the electorate who must have cast their votes for a political party they believe in. This article did a legal appraisal of the implication of political party defection in Nigeria. The article used doctrinal research methodology and employed both primary and secondary sources of data. The primary sources of data include the Constitution of the Federal Republic of Nigeria 1999(as amended) and case laws while secondary sources of data from journal articles and internet materials were used. The research found that there has been incessant cases of defection in Nigeria’s democratic journey, and while there are some legal implications for defecting legislators, there is no legal implication for their executive counterparts, and there is need for such defection to come with some consequences. The article recommended that the consequences for party defection should be extended to elected executive office holders.
AWKA CAPITAL BAR JOURNAL, VOL. 3 NO 1, 2024
TRIAL IN ABSENTIA AND THE RIGHT TO A FAIR HEARING UNDER THE NIGERIAN CRIMINAL JUSTICE SYSTEM
Trials are most commonly regarded as being held in the presence of the defendant. The essence of the requirement that the defendant be present throughout his trial is to guarantee fair hearing in judicial process. However, certain exceptional situations may demand that the court order the trial to proceed without the presence of the defendant. Such a situation envisages what is referred to, in common parlance, as a trial in absentia. Numerous authors have argued in favour and against the adoption of this form of trial. Nevertheless, the absence of the main actor in a court drama always entails a challenge to the due process of law, and a need for proper remedies to address such a challenge. This paper therefore seeks to analyse whether the said concept impinge the right to a fair hearing granted to the defendant by the 1999 Constitution of the Federal Republic of Nigeria as amended.
NO LONGER FOES BUT FRIENDS: HORS DE COMBAT IN HUMANITARIAN LAW
As a matter of general rule, combatants are lawful targets of military operations because of the combat function they undertake. This principle is not however absolute as the intendment of Humanitarian Law is not that wars should be fought in perpetuity but that there should be an end to wars. As such, where enemy combatants have been placed hors de combat, they cease to be legitimate targets of military operations and become the subject of protection. This is predicated on the fact that they no longer constitute military threat to the adverse Party. The Article seeks to demonstrate, through doctrinal method of legal research, that enemies hors de combat are no longer foes but ‘friends’. The Article contended that since the purpose of International Humanitarian Law is to strike a balance between military necessity and concern for humanity, it serves no military purpose targeting persons who have been placed hors de combat and in fact defeats its very purpose. The Article nevertheless observed that more often than not, enemies hors de combat are rather considered as enemies in perpetuity. To obliterate this difficulty, the Article recommended among other things the constant dissemination of the rules of International Humanitarian Law particularly among armed forces, with a view to increasing their respect for Humanitarian Law.
RECOVERY OF LEGAL PRACTITIONER’S FEES IN NIGERIA: A LEGAL APPRAISAL
A legal practitioner is entitled to his fees for the services rendered to a client and same is recoverable even if the client reneges from the agreement. A legal practitioner on being briefed by his client charges professional and sundry fees for the services he is to render. Sometimes these fees are never paid. The recovery of the fees is important to a legal practitioner as he is entitled to it, having worked for it. By the provisions of the extant law, a legal practitioner cannot begin an action to recover his fees on a bill of charges unless and until he has satisfied some conditions. This paper examined the cumbersome legal procedure involved in the recovery of a legal practitioner’s fees before and after the preparation of bill of charges under the Legal Practitioners Act. This work it is believed will equip legal practitioners, judges, students and litigants who are likely to be clients to be aware and take necessary precautions to forestall this likely ugly experience. Doctrinal method of data collection using analytical approach in reviewing the relevant laws or statutes, textbooks and judicial decisions was adopted. The findings revealed that a legal practitioner can apply to recover his fees as contained in the bill of charges.