INTERNATIONAL JOURNAL OF COMPARATIVE LAW AND LEGAL PHILOSOPHY (IJOCLLEP)
International Journal of Comparative Law and Legal Philosophy (IJOCLLEP) is a peer blind reviewed periodical that provides a dynamic platform for dissemination of ideas on comparative law and philosophy of law. As it is hard, in our contemporary globalized world, to confine developments in law to one jurisdiction and isolate them from another, the Journal is a podium for reports on developments in the field of comparative law from all parts of the world. As also a philosophy of law forum, IJOCLLEP provides an opportunity for spread of the results of analysis of transnational legal history and theory, private international law/conflict of laws, and the study of legal systems, cultures, and traditions.
THE LEGAL REGIMES OF THE NIGERIAN MARITIME ZONES
Maritime law is one of the oldest branches of international law. Even before the emergence of the current state system and what we may call modern international law, the sea has been under the search-light of earlier international lawyers. Authentic schools of thought were developed in the area of the law of the sea, some of whom actually laid the foundations of present-day international law. It is the light of all these considerations we shall try to examine the Nigerian perspectives as respects the delimitation of maritime zones. As a country that signed and ratified the UNCLOS III, Nigeria is bound by the Convention and each of the zones recognised by it thus has a regime in Nigeria. We shall therefore devote this paper to Nigeria's internal waters, territorial sea, contiguous zone, continental shelf, and exclusive economic zone.
Maritime Zones, Legal Regimes, UNCLOS III, Nigeria
RECOGNITION AND ENFORCEMENT OF INTERNATIONAL COMMERCIAL ARBITRAL AWARD: NEW YORK CONVENTION IN FOCUS
An Arbitral Award is a decision of an Arbitral Tribunal delivered by the tribunal after its proceedings. The valid ingredients of a valid award are provided in section 26 of the Act which includes that the arbitral tribunal shall state the reasons for the award, the date on which the award was made, the place it was made, and it shall be written and signed by the arbitrators. The different types of awards are. Consent awards, final awards, interim awards, partial awards, interlocutory awards, self-executory awards, and additional awards. An award once it is rendered and published until it is set aside by a court of competent jurisdiction is final and binding on all the parties in the arbitration. The award shall be published to the parties alone. The award can only be made public with the consent of the parties to the arbitration agreement. This is because of the high level of confidentiality required in arbitration proceedings. Arbitration is an effective way to solve disputes, through which parties from different countries can be partially free from anyone’s local jurisdiction. However, the recognition and enforcement of international arbitration awards still rely on national court system. International arbitration awards can be enforced in Nigerian through 5 methods but we are concerned with enforcement under the New York Convention.
International Arbitral Award, Recognition, Enforcement, Arbitral Tribunal, New York Convention, Arbitration and Conciliation Act of Nigeria 2004
THE CHALLENGE OF DEFINING THE ENTITY ENTITLED TO THE EXERCISE OF THE RIGHT OF SELF-DETERMINATION UNDER INTERNATIONAL LAW
The topic of this article is: ‘The Challenge of Defining the Entity Entitled to the Exercise of the Right of Self-determination under International Law’. The aim of the study is to determine the exact unit of the individuals (the people or self) entitled to the exercise of the right to self-determination under international law and whether or not such entity includes a minority group. The methodology employed in the research is doctrinal using both primary and secondary sources. Our findings is that the various legal instruments on the norm of self-determination have clearly failed to give a precise definition of the concept of self or people entitled to the exercise of the right to self-determination. This lacuna has given rise to a multiplicity of opinions amongst scholars, jurists and publicists as to the exact meaning of that concept resulting in a serious challenge as to when or where to apply the norm of self-determination. Moreover, there is a distinction being made between a ‘people’ and a minority group. While a ‘people’ is said to be the entity entitled to self-determination, a minority group is said not to be so entitled. It is our recommendation that a clear definition of the concept be provided by international legal instrument dealing on the rule of self-determination so as to ensure a better application and operation of the rule of self-determination and that the present distinction being made between a ‘people’ and a minority group be removed as it is clearly discriminatory and defeating to the purpose of self-determination.
Right, Self-determination, International Law, Definition, Challenge
CRITICAL AREAS UNDER THE NIGERIAN COPYRIGHT ACT FOR URGENT LEGISLATIVE INTERVENTION: COMPARING WITH THE UNITED STATES COPYRIGHT ACT*
The Copyright Act is the extant law on copyright in Nigeria. The Act which was passed in 1988 has undergone few amendments. However those amendments are superficial and did not address current issues especially challenges of copyright protection in the current digital era. Notably works on the internet rampantly infringed and there is no legal framework in the Copyright Act to address the issue. The United States Copyright Act has undergone several amendments to address issues of technology as they arise and there is a robust mechanism in place to study new development in technology as it affects copyright protection. This paper analysed the Copyright Act of Nigeria and the United States of America. The research found that the Copyright Act of Nigeria is inadequate to protect the copyright in its present state especially in the digital environment. The research further found that the Copyright Act of the United States addressed contemporary issues affecting copyright protection especially in the digital era. It further addressed other issues like digital broadcasting including cable transmission, satellite transmission and internet broadcast. It was thus recommended that the Copyright Act should be amended to address the short comings and the United States Copyright Act is a good model that can be referred to in amending the Copyright Act of Nigeria.
Copyright Act, Legislative Intervention, Nigeria, United States, Comparison
NIGERIA’S APPROACH TO STATE IMMUNITY IN INTERNATIONAL COMMERCIAL ARBITRATION: A CASE FOR THE ENACTMENT OF NIGERIA’S FOREIGN STATE IMMUNITIES ACT
The concept of State or sovereign immunity had in the time past proceeded on the principle that every State was completely immune from the jurisdiction of the court or legal system of another system based on the principle of equality of States. This was expressed in the terms of absolute immunity theory. Over the years, States started getting more and more involved in commercial activities. This led to the consideration of issues of fairness in relation to investors with which States would go into commercial transaction in respect of which a State might claim immunity for any dispute that might arise. Thus the concept of relative immunity in customary international law began to spring up whereby a State might not be able to claim immunity in respect of its commercial transactions with private investors. Consequently, various States began to pass legislations codifying the concept of relative immunity. The United Nations General Assembly also in 2004 adopted the United Nations Convention on Jurisdictional Immunities of States and Their Property in order to regulate State immunity. This Convention though not yet in force as it had not yet garnered the required accessions by States, represented a codification of the rules of customary international law on relative immunity principles. The problem concerning the issue of State immunity in Nigeria was that Nigeria was yet to pass a legislation on it. The aim of this work was to examine the legal position of Nigeria on State immunity from the standpoint of case law. The objectives of this study were to criticize Nigeria’s approach to State immunity and to make recommendations on how to address it. This work used doctrinal method of legal research by consulting primary sources of law like the United Nations Convention on Jurisdictional Immunities of States and Their Property, domestic legislations of other States and case law. This study also consulted secondary sources like relevant law text books, journal articles and internet materials. This work found that Nigeria did not have a legislation regulating the issue of State immunity and that this had left the issue of State immunity to the courts which were still tended towards the obsolete absolute immunity theory. This paper therefore recommended for the enactment of a legislation on State immunity in Nigeria which would codify the established principles of customary international law on restrictive immunity doctrine in line with the global trend. The work also recommended that the Nigeria’s legislation on State immunity should equally make provision on reciprocal treatment of judgments or arbitral awards from Nigeria by other States.
States, Immunity, International Commercial Arbitration, Commercial
Mathew Izuchukwu ANUSHIEM; Ikechukwu Okwudili ODIONU
ECONOMY, POLITICS, LAW AND ENERGY: HOW CAN NIGERIA RECOVER THE LOST YEAR OF 2021?
The past year was a turbulent year for the world, as the world was hit with a rampaging pandemic, Corona virus (Covid-19). This pandemic affected all sphere of life. Nigeria as a nation was not exempted. The hit of the pandemic on Nigeria was as grave as it imparted the major source of her income; the oil industry. It is safe to say that Nigeria’s health, legal and economic sectors depend hugely on oil revenue to survive. Whilst struggling with the travails of covid-19, Nigeria was also hit with the EndSars protest against SARS brutality, extortions, extra-judicial killings etc. This work analysis Nigeria’s Economy, Politics, Law and Energy in the face of the twin impact of corona virus and the EndSars protest and how Nigeria can recover from the lost years. It adopts the analytical research methods. It reveals that Nigeria have made law and also relaxes old laws in attempt to stop this twin pandemic. This work recommends that for Nigeria to recover from the lost years she must first fight to curtail the spread of the virus, diversify her economy to agriculture and other energy, make good fiscal and economic policies and exercise strong will amongst other things.
Economy, Politics, Law, Energy, Lost year of 2021, Nigeria
THE NEED FOR OIL AND GAS SECTOR REFORMS AND THE ROLE OF TAXATION IN NIGERIA⃰
Nigeria is a country heavily dependent on its oil and gas industry. The sector has historically been the mainstay of the economy, accounting for a significant portion of the country's GDP and foreign exchange earnings. However, despite its importance, the oil and gas industry in Nigeria has been plagued by a number of challenges, including corruption, inefficiency, and underinvestment. As a result, there is a need for significant reforms in the sector. In carrying out this research, the researcher employed the doctrinal method of research wherein the comparative, descriptive and analytical approaches were adopted. Also the primary sources of legislation, books and judicial authorities as well as secondary sources of journal articles, publications etc were used. This paper explored the need for oil and gas sector reforms in Nigeria and the role of taxation in facilitating these reforms. The paper began by examining the current state of the oil and gas industry in Nigeria, including its strengths and weaknesses. It then discussed the need for reforms in the sector and outlined the various challenges that must be addressed to achieve these reforms. The paper then explored the role that taxation plays in facilitating these reforms, including the use of tax incentives to attract investment and the use of tax compliance measures to reduce corruption and increase transparency. This paper found out that significant reforms are needed in the Nigerian oil and gas sector, and that taxation can play a critical role in facilitating these reforms. By implementing appropriate tax policies, the government can encourage investment, reduce corruption, and increase efficiency in the sector. The researcher concluded that these reforms will be essential for Nigeria to maintain its position as a leading oil and gas producer and to ensure sustainable economic growth and development. Recommendations were made which suits the different phases of the challenges and inefficiencies.
Reforms, Oil and Gas, Role of Taxation, Nigeria
EOC OBIDIMMA; Nwamaka Adaorah IGUH; K.C NZEDIEGWU
MENTALLY ILL OFFENDERS VIS-A-VIS THE CHALLENGES OF ADMISSIBILITY OF OPINION EVIDENCE IN NIGERIA
The paper critically examines the evidence of mentally ill offenders’ vis-a-vis investigating the challenges of admissibility of opinion evidence in Nigeria. In cases requiring abstruse or technical knowledge which are outside the knowledge and understanding of the court or jury, opinions of those deemed knowledgeable in those faculties are often sought. This is in consonance with the rule that the testimony of experts constitute exception to the generally accepted rule that when a court is to form an opinion on a relevant fact in issue, opinions of other persons are irrelevant and inadmissible. But the judiciary has maintained a skeptical and cautious attitude toward the admissibility of opinion evidence of experts. This stems from the controversial and conflicting testimonies of experts. This paper appraises the admissibility of opinion evidence as it concerns mentally ill offenders. It presents various legal commentaries and judicial decisions on the concept – both expert and non-expert opinion evidence. The paper distinguishes between professional witnesses and expert witnesses. The paper also states that the courts have often favoured traditional methods of assessing culpability of the mentally-ill offender. It concludes however, that the courts have often rejected opinion evidence of experts because of the unreliable and conflicting testimonies of psychiatrists and other experts – regarding such testimonies as probative, advisory, not essential and do not tie the hands of the court.
Mentally Ill Offenders, Admissibility, Opinion Evidence, Challenges, Nigeria
Augustine U. AMADASU; Enakireru Eric OMO
YOUTH AND CHILD EMPOWERMENT IN NIGERIA: A LEGAL APPRAISAL
Youth empowerment is a process where children and young people are encouraged to take charge of their lives by addressing their access to resources to transform their consciousness through their beliefs, values and attitude. This is in tandem with the mandate of United Nations sustainable development goals. When youths are empowered, they have requisite skills and opportunities to positively impact their nation. Study advocates for youth empowerment and examines the various legal framework that provides for their protection. The work revealed that despite youth empowerment programmes sponsored by the Government, many youths and children still wallow in poverty due to many challenges that hinder their development. The work showed many factors that exacerbate lack of empowerment, such as population bloat, social economic and cultural factors. Further, the work discovered that despite the legal framework that provides for their empowerment that there are many lapses inherent to our laws that make it virtually impossible for the realization of their development. The work discovered that youth and children’s development is a catalyst for sustainable development in Nigeria. Furthermore, the work found that youth and children’s development is precedent for national growth and development. Hence, failure to empower them will increase the rate of social vices in Nigeria such as kidnapping cultism peddling, organ harvesting etcetera. The work recommends that government should make policies that will enhance entrepreneurial activities. Review of extent laws like Child’s Right Act, the Constitution of Federal Republic of Nigeria 1999. The government should eradicate every factor that is inimical to youth and children empowerment.
Nneka UMEJIAKU; Rose A. ENEMCHUKWU; Odinakachukwu E. OKEKE
THE DEATH OF QUEEN ELIZABETH II: IMPLICATIONS FOR THE PRINCIPLE OF PACTA SUNT SERVANDA
This article takes a broad look at the death of Queen Elizabeth II of Great Britain and its implications for the commercial/ economic principle of Pacta Sunt Servanda (agreements must be honoured). Queen Elizabeth II of United Kingdom died on the 8 September 2022, born in 1926; she became the Queen at the age of 25, and reigned for 70 years. She was buried on 19 September, 2022. On her death and burial so may appointments or agreements were cancelled or postponed. The day she was buried, was declared a public holiday (bank holiday) throughout the United Kingdom. The main aim of this article is to explain this unforeseen circumstance on the principle of Pact Sunt Servanda, that agreements must be honoured. Can her death act as an exception to this principle of commercial transaction?This article then goes further to discuss the principle of contract called rebus sic stantibus that seek to offer excuse for non-performance of a contractual obligation because of fundamental change of circumstance. One of the questions this paper seek to answer is that, could the death of the Queen of United Kingdom be used as fundamental change of circumstance thereby impeding the performance of a contractual obligation due on those days of her death and burial? Discussions shall also briefly touch the principle of force majure and recommendations shall be proffered.
Queen Elizabeth II, Pacta Sunt Servanda, rebus sic stantibus Frustration, Implication
CRIMINAL LIABILITY UNDER THE NIGERIAN CRIMINAL JURISPRUDENCE
Criminal sanction is the most serious censure the State can impose on an individual and the imposition of criminal sanction for doing nothing sound bizarre. This article examines the circumstances under which a person can be held criminally liable for acting as well as for an omission under the Nigerian criminal jurisprudence. At common law, criminal liability for pure omission is exceptional. However, all systems of criminal law seem to include offences of omission, especially where there is a legal duty. The paper shows that criminal liability will not be imposed or slammed on a person except the person breached the standard approved behaviour by the law. The paper demonstrates that in addition to actus reus and mens rea, two other elements are essential for criminal liability viz, concurrence and causation. Causation under the Nigerian criminal jurisdiction has two dimensions namely factual cause, ‘but for cause’ and legal cause, also called proximate cause. In causation, many events or causes can intervene to break the chains of causation and in consequence absolve the first defendant of criminal liability. To exonerate the defendant, the victim’s conduct must not only be a cause of his injury, it must be a superseding cause. The victims conduct will not break the causal chain to absolve the defendant or actor unless the victim’s conduct is so ‘extraordinary’. The one year rule limitation period after which the defendant may be exonerated from criminal liability is no longer tenable in other climes, especially in Britain where we inherited the rule. Accordingly, it should be expunged from our criminal jurisprudence.
Liability, Crimes, Jurisprudence, Nigeria
AN APPRAISAL OF THE LOCAL GOVERNMENT PROPERTY TAX COLLECTION IN NIGERIA: ECHOES FROM SOME OTHER JURISDICTIONS
In Nigeria, local government is conferred with powers to collect property tax. Property tax is a major source of revenue for local government in Nigeria. It is a common fact that not all property is liable to tax. Some properties are tax exempt. In this work, it is our aim to examine property taxes in other jurisdictions to ascertain whether our property tax system is similar to what is obtainable in some jurisdictions outside Nigeria. It is further our aim to ascertain whether powers conferred on the local authority can be taken over by state government in other jurisdictions. The methodology adopted in this work is doctrinal wherein we utilized both primary and secondary sources of materials. We therefore recommend that local government having been acknowledged by the Constitution, the state government should endeavor to allow her to exercise the powers conferred on her without intruding.
Local Government Property Tax, Collection, Nigeria, Some other Jurisdictions
A JURIDICAL REVIEW OF TRADE MARKS INFRINGEMENT, DEFENCES AND REMEDIES UNDER THE NIGERIAN LEGAL SYSTEM
Trade mark infringement is the colourable imitation of ones registered trade mark by another in such a way that the marks used is identical or closely resembles that of the proprietor in the of trade mark is vested in the proprietor or registered user and the court that has jurisdiction is the Federal High Court. However there are defences available to the defendant in an action for trade marks infringement, such as, bona fide use, vested rights, non registration, prior use and non use. There are also remedies that may be granted by the court to the proprietor for infringing on his product, such as damages, injunction, account of profit, delivery up of possession, Anton Pillar order and rectification of the register. The review of statutes, case laws, text books, journals and internet materials show that cases of trade mark infringement abound, some of which may be intentional or unintentional and the courts have constantly frowned at them. It is important and necessary that there should be public enlightenment on registration and non registration of trade marks and their implications. The Trade Marks Act should be amended to included provisions for remedies for infringement and using trade mark for services too like in order jurisdictions.
Juridical review, Infringement, Proprietor, Trade marks, Defences, Remedies
MEDICAL NEGLIGENCE ERROR AND MALPRACTICE AS VIOLATION OF THE RIGHT TO THE PROHIBITION AGAINST TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENT OF PATIENTS IN NIGERIA
The Nigerian medical system on which a large percentage of Nigerians depend for healthcare is bedeviled with numerous challenges which cause systemic dysfunction and inefficiencies for safe quality healthcare delivery. This problem worsens with the incidents of medical negligence, error and malpractice which are caused by medical practitioners on the one hand and government on the other through institutional weaknesses with the consequences for patients amounting to the violation of the Prohibition against Torture Cruel Inhuman and Degrading Treatment of Patients. As regards Nigerian medical professionals, the occurrence of harm to patients is prohibited under a medical rights enforcement mechanism. However, in the face of the continuing occurrence of these events, the objective of this study was to determine whether patients have fundamental rights and whether harm to patients through medical negligence, error and malpractice was in violation of their fundamental right to the Prohibition against Torture Cruel Inhuman and Degrading Treatment of Patients. Pursuant to this, the doctrinal research method was employed to undertake the evaluation through reliance on available Library literature, Journal publications and Internet sources. It was found that the harmful consequences due to medical negligence, error and malpractice are in violation of the fundamental right to liberty in Nigeria. Furthermore, it was found that although there is the problem of the significant violation of the fundamental right to the Prohibition against Torture Cruel Inhuman and Degrading Treatment of Patients in medical practice in Nigeria, fundamental rights law was not been enforced to prevent this from happening or provide remedy upon occurrence. The identification of this problem, offered the opportunity for the use of fundamental rights enforcement procedure as a basis for medical malpractice claim. Accordingly, it was recommended that the fundamental right be enforced in medical practice in Nigeria through the fundamental rights enforcement procedure.
Right to the Prohibition against Torture Cruel Inhuman and Degrading Treatment of Patients, Medical Negligence, Error, Malpractice, Fundamental Rights, Fundamental Rights Enforcement Procedure
RIGHT TO A HEALTHY ENVIRONMENT: TRENDS AND APPROACHES
It is an undeniable truth that the right to a healthy environment, referred to by some as a third generation right has gained prominence since the second half of the 20th century. This is despite the fact that after the United Nations Conference on the Human Environment held in Stockholm, where it was declared that man has a right to the environment; the UN failed to consolidate on the rights approach to environmental protection in subsequent conventions. This paper considers environmental rights and the diverse approaches suggested by its proponents. Its objectives are to analyse the content of a healthy environment as it relates to environmental rights and to examine the diverse approaches adopted and proposed by the proponents of environmental rights over the years, as well as determine the responsibility of the present generation, with regard to inter-generational equity. It adopts the doctrinal research method and concludes that whatever the approach, the right to a healthy environment has metamorphosed into an inalienable right. It recommends a more robust public interest litigation as well as judicial radicalism to promote environmental rights and inter-generational equity.
Healthy Environment, Sustainable Development, Inter-Generational Equity
AN APPRAISAL OF THE LIMITATIONS OF JUDICIAL REVIEW OF ADMINISTRATIVE POWERS IN NIGERIA
The exercise of administrative powers is a vital duty of all the tiers of government and other administrative agencies. However, not all aspects of administrative powers are in consonance or within the purview of the enabling statutes or extant laws. As a result, there are increased chances of arbitrariness and interference with the fundamental human rights of the citizens and the rule of law, hence the need for these administrative powers to be checked by an independent body such as the judiciary by way of judicial review. Although the exercise of judicial review of administrative powers in Nigeria has been quiet commendable, however, many challenges or factors hinder the operation of the concept, resulting in its failure to maximally benefit the citizenry, particularly in Nigeria where the law is not developing rapidly enough to meet with the needs of the people. This paper examines the challenges of judicial review of administrative powers in Nigeria with the view to proffering solutions that will address the challenges. The research method adopted in this research is the doctrinal method of research, whereof, primary, secondary and tertiary sources such as the constitution, case laws, text books, journals, newspapers and internet materials were widely consulted. We also adopted the NALT citation guidelines. The research findings show that ouster clauses; executive interference in the appointment of judges, financial constraints, corruption etc badly affect judicial review in Nigeria. The paper however recommends among other things that there is need to improve the judicial system in Nigeria by removing ouster clauses, entrench financial independence, fight corruption to ensure the independence of the judiciary in order to enhance the effectiveness of judicial review.
Judicial Review, Administrative Powers, Rule of Law, Human Rights, Independence of the Judiciary
Benjamin O. IGWENYI; Onyinechi Sandra OKORIE; Theresa Onyinyechi EZE
DISTINCTIVENESS AND REGISTRATION OF TRADE MARKS UNDER THE TRADE MARKS ACT
At the centre of trade mark registration and protection is the issue of distinctiveness. Though the quality of being ‘distinctive’, or being capable of becoming ‘distinctive in use’ is stipulated as a major condition for registrability of a trade mark, the scope of this term and its impact on registration under the two parts of the trade marks register continues remains a major source of worry to proprietors of trade marks. Using the doctrinal methodology, this paper examined the import and scope of distinctiveness vis-à-vis registration of trade marks under Part A and B of the trade marks register. To be effective, this work considered the legal principles on registration of trade marks and critically analyzed the concept of distinctiveness as an important factor in registration of trade marks under Nigerian law. This paper advocated that proprietors of trade marks seeking registration of such marks should pay serious attention to this all-important factor as a pre-requisite for the success of such applications for registration.
Trade mark, Trade Marks Act, registration of trade marks, distinctiveness
M.V.C. OZIOKO; Chinedu A. ONAH; Chukwubuikem J.S. AZORO
APPRAISAL OF THE QUEST FOR RESTRUCTURING THE NIGERIAN FEDERALISM
Nigeria is a federation with numerous ethnic and diverse nationalities numbering about 250, and a very large population of more than 200 million people. Even though federalism does not have a single recipe for its practice, it must however, meet certain features and must be propagated to achieve its best practice and to achieve the set goals in a federation. This article to x-rayed the factors bedeviling the Nigerian federalism and the quest for restructuring same, the challenges of restructuring in Nigeria and the benefits of restructuring. It was suggested that some items such as the police, oil mining and exploration, incorporation, business name, etc., should be moved from the Exclusive Legislative List to the Concurrent List. Again, the current sharing formula should be jettisoned, rotational presidency and governors, amongst other things. It is hoped that the socio-economic and political sphere of Nigeria would witness tremendous growth and improvement if the recommendations are carried out.
Federalism, Nigeria, Restructuring, Devolution and Challenges
RIGHTS OF PATIENTS TO SELF DETERMINATION IN THE MEDICAL CONTEXT UNDER ENGLISH AND NIGERIAN LEGAL SYSTEMS
It is a fundamental principle of Medical law and Ethics that a medical practitioner should obtain the informed consent of a competent patient. This is in line with the principle of self determination and best interests of a patient as gone are the days when a trust me, I am a doctor approach justified the imposition of treatment on a patient .Treating a competent patient without obtaining his consent would amount to a contravention of a patients’ rights not to suffer, torture or inhuman and degrading treatment. This work, therefore, considers the rights of patients to self determination in the course of his treatment.
Patients, Self Determination, Medical Context, English Law, Nigerian Law
A CRITIQUE OF GABRIEL HALLEVY’S MODELS OF CRIMINAL LIABILITY OF ARTIFICIAL INTELLIGENCE ENTITIES
The rapid technological change in the society has tremendously influenced our lives as human beings. Machines are increasingly becoming more sophisticated in their functions. The positive impacts of these artificial entities are undisputable in the society. Robots and computers are gradually replacing human activities, ranging from autonomous cars to machine translation software, robots and medical diagnosis software. From the homes to hospitals, and other public spaces, there is no denying the rapid growth and impact of Artificial Intelligence (AI) entities. However, the rise of Artificial Intelligence entities also raises questions about liability for crimes associated with them. Though Criminal law embodies the most powerful legal social control to regulate crimes, yet the concern of people in most cases is based on the fact that Artificial intelligence entities are not ordinarily considered to be subjects of law. Unfortunately, there are no enough pieces of legislation and regulations addressing the question of liability in relation to Artificial Intelligence entities. Be that as it may, scholars have made attempts to address the thorny issue. One such scholar is the Israeli Professor of Criminal Law, Gabriel Hallevy, whose basic question for consideration is: Does the growing intelligence of AI entities subject them to legal social control as any other legal entity? Hallevy developed three models of response to the subject, namely, the perpetration-via-anotheer liability model, The Natural-Probable-Consequence Liability Model’ and The Direct Liability Model. This study simply examines these models and draws a response. The conclusion is that Hallevy’s models are novel but are not sufficiently capable of addressing existing questions on the culpability of the AI entities.
Artificial Intelligence Entities, Models of Criminal Liabilty, Gabriel Halevy, Critique
INTERNATIONAL JOURNAL OF COMPARATIVE LAW AND LEGAL PHILOSOPHY (IJOCLLEP), VOLUME 4 NO 3, 2022
AN APPRAISAL OF THE INSTITUTIONAL FRAMEWORK ON DECOMMISIONING OF PETROLEUM INSTALLATIONS IN NIGERIA
It is a fact that the operating life of oil and gas fields is a limited one, and when a field reaches the end of its operational life, a plan must be in place to have it plugged and to have its disused operations – to some extent or other – removed. This process is known as decommissioning. It has been observed that ‘to date, decommissioning has been comparatively infrequent’. This trend is however set to be markedly reversed over the next few decades as a number of fields reach the end of their viable production lives. Given the extensive costs involved and the potential impact on such costs by a wide spectrum of variables – some predictable and controllable, others not – it comes as no surprise that companies in the oil and gas sector are voluntarily seeking to more systematically and comprehensively manage the full cycle of their operations. It is on the basis of the above that the aim of this article is to examine the institutional frameworks in Nigeria that regulates issues relating to decommissioning of oil installations. The objective of this article is to appraise the effectiveness or otherwise of the institutional regime put in place in Nigeria with respect to decommissioning. The doctrinal research methodology was adopted in this paper as the primary and secondary sources of law were relied upon. This paper found that though a robust regulatory regime is in place in Nigeria, but poor funding and technical expertise has hindered them from living up to expectations. This paper recommended amongst others that a special agency saddled with decommissioning should be created in Nigeria.
Decommissioning, sustainable development, petroleum installations, petroleum industry
PRACTICE OF MANAGEMENT CONTRACT IN CORPORATE GOVERNANCE UNDER NIGERIAN LAW
The practice of management contract is relatively a novelty in corporate governance. The practice has grown popularity and acceptability over the years. While its relevance cannot be under estimated, concerns have been expressed that the practice has corrosive effect on the powers of the General Meeting of the company who are the owners of the company with the possibility of attracting legal liability to the company which will affect the shareholder interest by dwindling the prospects of dividends. This paper is therefore an appraisal of the corporate practice of the relevance of management contract. The research adopts the non doctrinal research methodology culminating in examination of both primary and secondary sources of law. The research concluded with the recommendation a corporate decision to cede management of the company to outsiders in the form of management contractors must involve the shareholders in a general meeting.
Practice, Management, Contract, Corporate, Governance
COVID-19 RESTRICTIONS AND REPERCUSSIONS ON HUMAN RIGHTS IN NIGERIA: AN APPRAISAL
The corona virus is a global pandemic as declared by the World Health Organization in December, 2019. Nigeria was not spared the unwavering effects of this global threat. The pandemic heightened the economic, security and good governance challenges facing the country. The preparedness or otherwise of government to face this pandemic was an issue in the face of a dilapidated health sector, corruption, arms conflict etc. All these coupled with the measures adopted by the government to fight the global pandemic proved a direct affront on human rights in Nigeria. This paper looks into the various impacts of Covid-19 on human rights and the anti-human rights measures taken by government to curb the pandemic. It proffered some alternative measures in the interest of human rights in the fight against COVID-19 in Nigeria. To achieve this feat, the paper explored secondary sources, internet sources and existing international, regional and local laws on pandemic. At the end of this discourse, it concludes that human rights supersedes political privileges and powers and must be respected at all times. Based on this fact, it recommends that all key players should ensure the emergency measures assumed by government in the COVID-19 response conform to the international benchmark for human rights standards, amidst other things.
COVID-19, Corona Virus, Human Rights, Pandemic, Infectious Disease, Epidemic
Glory Omonigho OZURU; Coleman Thompson ONYENAJUA
THE CONVERGENCE OF REFUGEE LAW AND INTERNATIONAL HUMANITARIAN LAW
One key body of international law that regulates and manages armed conflicts is the International Humanitarian Law (IHL). Over time and more recently, Refugee law now equally has a concomitant and contemporaneous application to armed warfare. This paper seeks to determine the protection and preservation of refugees under both refugee and international humanitarian law vis-à-vis the right of asylum seekers during armed combats. The cumulative application of IHL and refugee law is another focus of analysis. The convergence and divergence between refugee and international humanitarian law in protecting the rights of displaced persons, noncombatants and asylum seekers during armed conflicts will be considered. This paper equally deals with, inter alia, the legal position of refugee and international humanitarian law as regards the international obligations of States in the areas of non -refoulement, disarmament and separation during armed conflicts. It also deals with the issue of granting refugee status to new actors, which appears during warfare, and ways to determine the right of ex-combatants and treat them as civilian refugees. This paper submits that despite the divergence between international humanitarian law and refugee law, their main objective is the protection of persons during armed conflicts.
International humanitarian law; refugee law; warfare, status of refugees; non -refoulement in warfare; displaced persons.
EXPLORING THE POTENTIALS OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN TAX DISPUTE RESOLUTION
Alternative Dispute Resolution (ADR) is a nascent adjudicative mechanism. Its preference to litigation is premised on lots of advantages which includes saving time, cost effectiveness and mutual relationship of the disputants. Notwithstanding the seeming advantages of ADR as projected by the protagonists, ADR has not been fully explored in the resolution of tax dispute. The challenge lies in the legal framework regulating the practice of ADR and the dynamic nature of tax dispute being a matter of public concern. Tax dispute is not always a controversial dispute where facts are so much in issue. The Tax authority knows its right to collect tax while tax payers know their obligation to pay tax. What is usually in issue is assessment which does not necessary require full blown litigation; what is usually required is mutual understanding of tax parties positions and differences; and the genuiness of parties to shift ground. This can be achieved through ADR process. It is on this ground that this paper evaluated the legal and theoretical potentials of the ADR process in the resolution of tax disputes other than the conventional litigation. The paper adopted a doctrinal approach. Accordingly, text books, journal articles, statutes, case laws were reviewed to propagate a profound and persuasive social-legal theory that justifies the potentials of ADR applicability to tax disputes. However, the paper does not apply to the resolution of every type of tax dispute. Jurisdictional tax disputes are beyond the scope of ADR while administrative tax disputes are suitable for the ADR process. ADR in tax is most suitable as an in-house administrative mechanism. The paper found that the applicability of ADR to tax dispute will reduce the cost and delay associated with litigation. The ADR process would require the involvement of tax experts as mediators, negotiators or conciliators who would look into the matter and advice the parties accordingly.
Alternative Dispute Resolution, Taxation, Tax Dispute, Potentials, Nigeria
LEGAL AND SOCIO-POLITICAL DYNAMICS OF PARTY DEFECTION IN NIGERIA: AN APPRAISAL OF THE DECISION OF THE FEDERAL HIGH COURT REMOVING THE GOVERNOR AND DEPUTY GOVERNOR OF EBONYI STATE
The question as to the existence or otherwise of ‘true’ multiparty democracy in Nigeria is one that has consistently begged for answer among political scholars at various levels of government. The said question also raises the issue as to the possibility or otherwise of achieving a viable and credible opposition to strengthen democracy in Nigeria. Existing literature shows that party defection is rampant in Nigeria’s democratic system due to the nature of the country’s democratic process. This notwithstanding, the paper is borne out of the March 8, 2022 judgment of the Federal High Court of Nigeria sacking the Governor of Ebonyi State and his Deputy from office on account of party defection. It is on this premise that this paper made a wholistic appraisal of the relevant constitutional provisions on removal of political office holders on grounds of having defected from the political party that sponsored them during their election to another political party. It critically analyzed the concept of defection and its implications on the political dynamics in Nigeria. This paper then considered the propriety or otherwise of the decision of the Federal High Court of Nigeria removing the Ebonyi State Governor and Deputy Governor from both legal and socio-political perspectives. This paper found that though it may be socio-politically desirable to reduce incidents of defection among political office holders, the said decision of the Federal High Court of Nigeria is insufficient to put the issue at rest, in view of the different decisions of the Supreme Court in her earlier decisions in relation to who can be declared winner of an election, such that an authoritative decision of the Supreme Court may be required to clear the air.
1999 Constitution, Defection, Political Party, Removal of Governor, Judgment of Federal High Court of Nigeria
Chinedu A. ONAH; Chukwubuikem J.S. AZORO
AN APPRAISAL OF WOMEN’S RIGHTS IN NIGERIA AND SOME OTHER JURISDICTIONS
Women’s rights are human rights and human rights are of universal application. Nigeria is one of countries with not so encouraging human rights records. Women in Nigeria are subjected to various human rights abuses. Women’s rights to life, freedom of expression and association, right to free movement, right to education, right to adequate health and right to dignity are frequently violated. Are these violations peculiar to Nigeria, or do women in other jurisdictions suffer human rights abuses? This paper analysed women’s human rights abuses occasioned by harmful cultural practices in Nigeria and compared it with what happens to women in South Africa and India. The study also took a look at the constitutions of the three countries and some other laws and policies geared towards the protection of the human rights of women. The Research methodology was doctrinal. The paper found that most of the human rights abuses suffered by women in Nigeria are equally suffered by women in the two other jurisdictions. The paper also revealed that women in the three jurisdictions are subjected to harmful traditional practices. The paper made recommendations as to what Nigeria could learn from South Africa and India to improve on the protection of the human rights of women in Nigeria. As part of the recommendations, this paper calls for review of the Nigerian constitution by making chapter 2 justiciable, and the enactment of laws that protect women from gender-based violence.
Human Rights Violations, Harmful Traditional Practices, Patriarchy
ASSETS FORFEITURE AND RECOVERY IN NIGERIA
This study discussed the role of the Nigeria Judiciary in assets forfeiture and recovery in Nigeria criminal jurisprudence. The study discovers that the relevant provisions laws that prohibit corruption is exhaustive for considering and deciphering criminal liability and complicity of a person in a corruption case. The role of the judiciary in asset forfeiting and recovery cannot be over emphasis, cause without the participation of the judiciary, no anti-graft agency can lawfully hold the asset of a person, whether he is been investigated or not. The aim of this study is to examine the role of the judiciary in asset forfeiture and recovery. This study adopted doctrinal method of legal research, thus, has made use of primary source materials such as statutes, International Instrument and case law; and the secondary sources of data such as journal/article, online materials. The study also made recommendations, particularly in the area of quick dispensation of corrupt base trials.
Assets, Forfeiture, Recovery, Interim, Final
ANALYSIS OF SECTION 24 OF THE CRIMINAL CODE IN RELATION TO MENS REA AND CRIMINAL RESPONSIBILITY IN SOUTHERN NIGERIA
The general objective of criminal law is punishment of offenders. Punishment is said to be meted out on persons who committed an act or omission that is criminal. An offence which is also used interchangeably with crime is defined as a wrongful act or omission which is prohibited by law with some penal consequences. However, punishment for offences is not done for the fun of it. At least, there was the need to ascertain the actual commission of the offence or the doing of the act or omission which constitutes a crime (actus reus) by a person(s) (parties to an offence), the existence of some blame on the part of the person (mens rea). This requirement of blameworthiness on the part of the doer also expressed in the axiom ‘no liability without fault’ becomes the hallmark of the common law doctrine of mens rea, that is, the guilty mind which constitutes the mental element of an offence. This philosophical concept of ‘no liability without fault’ is the foundational basis of the defenses (general and special) to criminal responsibilities. However, Nigeria criminal law has now dispensed with the much complicated and confusing doctrine of mens rea by specifically and expressly enacting various defenses especially section 24 of the Criminal Code which provides defenses for independent acts or omissions, or events which occur by accident. This work examined Section 24 of the Criminal Code in relation to mens rea, genetic determinism, artificial intelligence, vicarious liability, thin skull/egg shell rule and strict liability as it relates to criminal responsibility in Nigeria. For an in-depth analysis, the researcher used referential materials, statutes, case laws, textbooks, articles and journals, internet materials, opinion of scholars. At the end of this academic exercise, the researcher discovered that in spite of the salutary provisions of section 24 of the Criminal Code; little considerable attention has been paid to that provision in the determination of criminal responsibilities in Nigeria. Rather, Nigerian courts and legal practitioners continued to invoke the much confusing common law principle of mens rea in determining criminal responsibility. The researcher recommended that section 24 of the Criminal Code be given its position as the foundational corner stone of defenses in Nigeria criminal law.
Acts, Omissions, Strict Liability, Offence, Criminal, Vicarious Liability
Felicia A. ANYOGU; Chioma O. NWABACHILI; Patrick Chinedu EBOH