Cost-Benefit Analysis of Gospel Musical Practice among the Universal Reform Christian Church (URCC/NKST) of Nigeria: Survey on Creative Right Holders’ Development.

By

Joseph Jar Kur, PhD

 Abstract

This research investigated the extent to which copyright law protects the rights of authors and creators of gospel music and their creative and intellectual products from the effect of piracy,[1] counterfeiting[2] and boot leg[3] recording of works and its consequential impact in negating economic gains and developmental growth on the creators namely, composers, lyricist, songwriters and music performers using the URCC\NKST as a case study. The research postulated that, the core essence of the copyright laws are necessary for holders to derive economic benefit through  the utilisation of their works and the protection provided aimed at optimising resource allocation efficiency, thereby enhancing welfare and growth of a nation. Projecting from the foregoing assumptions, the argument is made that, gospel music development in Nigeria has grown in leaps and bounds in and outside the context of church domain and its use is no longer deployed in  church activities alone for purposes of impacting gospel messages to the targeted audiences but that the music are recorded for commercial exploitations (recorded on tapes, CDs and MP4) for retail purposes while some are used as background jingles for product advertisements for unconnected entrepreneurial activities in their business concerns whereas in others, the utilisation of the product is now being witnessed as URCC\NKST music blogs and YouTube on super digital highways. These trends notwithstanding, gospel artist of the URCC/NKST have being unable to reap the financial benefits of their creative musical talents as they receive nothing and are guaranteed nothing and secures no deal contrary to copyright expectations. In articulating on the foregoing, the research has employed the descriptive survey methods in assessing the contributions or otherwise of the URCC\NKST church on her creative right holders. The research found as a fact that, there is a widespread misunderstanding and ignorance of copyright law and protection among the creative right holders of the members. The study found as a fact that, the success or failure of the gospel music segment lies mainly in her infrastructural, operational and organisational deficiency as the main reasons why the economic value of gospel music remain low and abysmal. Keywords: Gospel, Musical, Universal Reform Christian Church (URCC/NKST), Creative- right Holders’ Development.

1.1. Introduction

This research has surveyed on the various genres of music existing and practiced among artists in Nigeria including but not limited to; gospel, hip-hop, makosa, afro-beat, country, disco, congo, jazz, rhythm or blues. Others include juju, highlife, fuji, akukon’egwu, apala, reggae, funk, swange, rock ‘n’roll, raza, rap, calypso etcetera. The research focus is on gospel music (otherwise known as Christian music) with emphasis on the Universal Reform Christian Church (URCC), which is otherwise and until recently was called NKST (Nongo U Kristu U Ken Sudan hen Tiv) (translated to mean, the Church of Christ in the Sudan among the Tiv).  The research has deciphered that, even among the contemporary   Christian music, there are diverse Christian songs adapted to the rhythm of salsa, reggae, rock, folk, hip-hop, rap, ballads, pop etcetera. Notwithstanding, the URCC (NKST) has adopted the Tiv folk method as a traditional church as opposed to other species of music earlier mentioned.

The unique nature of the traditional gospel music of the URCC (NKST) is not only fathomed  from a peculiar need of the traditional affiliation of the  Tiv to their unique culture, but that, it represent the background of culture of the Tiv race, Tiv identity, Tiv cultural roots by which the Tiv has continued to identify themselves.  The thrust of the research has evaluated the creative contributions of the song composers on the development of the church and the corresponding impact on the holders’ lives and wellbeing. The research has identified at least five right holders that can benefit economically and morally from their useful creations from the perspectives of copyright paradigm namely, the composer of the musical score, the author of the lyrics, the publishers of the scores, the performers of the work and the producers of the sound recording. The research has postulated that, composers, authors, and publishers are all protected by the substantive rules of copyright while neighbouring   rights protect performers and producers of sound recording.

The descriptive survey method has further assessed the contributions or otherwise of the URCC/NKST Church on her creative right holders as well as the effect of  technology and open access on gospel music development as it relates to recording technologies where cassettes, video tapes, CDs, VCDs and digital  audio and video networks are deployed to record the songs of the writers and composers as well as the trend of messages broadcast of same over the radio, television, internet etcetera without recompense to the right owners and outside the context of worship and the corresponding impact on the economic well being and development of the average Tiv composer of gospel hymns.

2.1.    Conceptual Clarifications

 2.1.1. Gospel

Gospel music or Church music refer, to a genre of music that emphasises praise to God in  houses of worship or religious service who are, occupied by people who profess to love God and Jesus Christ as his only Son. The Christian don all over the world propagates the personality of God, who is perceived as the Almighty and his son, Jesus Christ as the Messiah and Saviour of the world. Every Christian denomination, be it URCC/NKST, Anglican, Catholic, Baptist, Methodists, Presbyterians, Protestant and so on, employ musical elements in every aspect of their corporate worship. The music genre under which different musical media are employed for Christian worship is called ‘Church, gospel or sacred music’. In Christian churches, the concept of church or gospel music (or, in a broader sense, music in church) covers a unique wealth of activities and tasks.[4]

2.1.2.   Music, musical and musical work – Definition

Music is a form of art which addresses various facets of human existence: economics, culture, trade, health, government and religion. In other words, music can hardly stand on its merits but very often extend its context to other spheres of reality[5]. Music is also defined as “the mirror of reality”[6] and as the “expression of truth”[7]. Music is also perceived and defined as ‘art of arranging the sound of voices or instruments or both in a pleasing sequence or combination’[8] The Copyright Act[9] defines a musical work as “any musical composition, irrespective of musical quality and it includes works composed for musical accompaniment”. In another perspective, musical work is defined as ‘consisting of music, exclusive of any words or actions intended to be sung, spoken, or performed with music’[10].. Copyright therefore exists in musical works once they are written down and if music is recorded without ever being written down, it may be protected only as a sound recording[11]. While sound recording is defined as “the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced but does not include a sound track associated with a cinematograph film”[12].

There exist therefore casual link between musical works and sound recording in various forms and both are part of the work that falls under musical practice and methods whether or not within the sphere of gospel music. In this research, gospel musical works refer to genre of URCC\ NKST Christian songs from various artistes within the church domain. URCC\NKST music is here referred not the conventional gospel songs with Eurocentric traits. It is very traditional and customary of the Tiv tradition. The URCC\NKST gospel music is not all about the melody and harmony but about the message which is supreme and whose content is sufficiently composed, performed, or are deployed for many purposes, including aesthetic pleasure, religious or ceremonial purposes and as an entertainment product for the marketplace.

2.1.3.    Universal Reform Christian Church (URCC/NKST)

 The ‘Universal Reformed Christian Church’ (URCC) or NKST which mean (Nongo U Kristu U I Ser U Sha Tar) is denoted here to mean one and the same and may in appropriate context be used interchangeably  except where  the context otherwise provide. NKST is one of the major Christian denominations among the Tiv race next to the Catholic Church and other churches such as Anglican, Deeper Life, and recently Pentecostal churches of Living Faith, Redeem Church of God, Dunamis Church International among other churches of God. NKST is predominantly  found among the Tiv  dominated areas of the country namely; the states and areas of Benue, Taraba, Nassarawa, Plateau, Adamawa, Kaduna, Kano, Lagos, Port-Harcourt, Oyo  and the Federal Capital Territory, Abuja etcetera.

2.1.4. Creative-right holders

Creative right holders refer to aggregate of persons who are involved in the creation and performance of musical works that may entitle them to copyright protection. They include but not limited to the following, composers of the musical scores, the authors of the lyrics, the publishers of the scores, the performers of the work and the producers of the sound recording

2.1.5. Development

Development means different things in different context. While it is incontestable that the term is complex, ambiguous and elusive, the term means the act of bringing about social change that allows people to achieve their human potentials. In this direction, the development of copyright protection regime has an inexorable link with economic development and growth. Economic growth here is deployed in this research as the growth of the standard of living of a nation’s people from a low-income (poor) economy to a high-income rich economy. In the context deployed here, development means the unique role by which music contributes to the quality of life of society and the corresponding social and economic return that society and her institutions reciprocate or plug back on the creative right holder by way of recompense.

3.1.    Purpose of the Study

In the contemporary Christian world, the research for righteousness and salvation through Jesus Christ has led to an ascendency of wide spread of gospel messages and Christian doctrines through gospel music. In Nigeria particularly and largely in Africa, the spread of the quest for evangelism and conversion of souls for the kingdom of God has remained vibrant and even more of an entrepreneurial activity than religious. In Nigeria, experience has shown that gospel music has been the livewire of many Christian churches, crusades, revivals, evangelism and other events since the advent of Christianity and this is of no exception to the URCC/NKST church that has a well coordinated sacred/vocal and classical church hymns and gospel songs with many composers and gospel artist of repute in the church. This situation though not peculiar to URCC/NKST but indeed applicable to all churches seek to discuss the areas of friction between the various participants in the gospel music such as whether music (be it gospel or not) as a profession requires some intellectual input? Whether music as gospel or not is an investment which ought to bring back to the participants some dividends. Whether it is not just fair and equitable that those who have expended their time, energy, skill, talent, money and other forms of resources to benefit from the fruits of their labour.

In actualising these set purposes and goals, the research seeks to answer whether, gospel artists who sing in church and church related activities and concerts are evangelising or are simply playing out their God’s given talents. Should they demand to be paid when their songs are utilised for church and fund raising for the advancement of the church or should they simply to be regarded as rendering probono services as ministering for God? Should gospel artists be paid for their services for composing songs and rehearsing for performances so as to improve their overall development in the same manner as pastors who are paid to preach in the same climes? This situation has therefore prompted the writer in this aspect of research with the URCC/NKST as a centre of focus.

3.2. Statement of the Problem

The URCC\NKST Church has a large and growing membership, which forms the base of a veritable music market industry if well harnessed and placed. The Church is estimated to have over One million baptised members and followership in her existing structures comprising among its constituted 64 Classis and Consistories and 26 Missions located within and outside Benue State and Nigeria alone. The Church is credited with a robust gospel music empire comprising of over 2150 hymnal and congregational songs which are well censored, assembled, documented and published by the URCC\NKST Lamp and Word Department for monetary considerations. The Total number of song writers, lyricist and composers of these genres of musical content is well documented as at June 2019 to number 702 (representing the living and the Dead). Given this high projection in the market, there can be assumptions of the fact that there is a high yield and potential for return on music investment among the creative right holders if properly harnessed but the reverse seems to be the case.

While the church is well acknowledged to have renowned musical talents notably among them include, Ephraim Eryum Zuzu, Member John, Timothy Ter Adule( a Reverend whose first composition was accepted when he was Eleven years old) and Timothy Chia Diogo, James Tseyina, Philip Faave Ahua, Oscar Aorabee Gagajav(a Barrister at Law)  whose works are widely enjoyed by diverse audiences, the right holders continue to ravage in abject poverty with no hope of any appreciation or return on their creative endowment. Gospel music owners and producers have constantly bemoaned their nasty experiences in the hands and fate of pirates and bootleggers whose activities have jeopardised their returns on investments, thereby undermining their economic and moral rationale for copyright protection whether of church, secular or traditional musical content.

This practice serves as a disincentive to prospective investors and to right holders’ management chain thereby resulting into a dysfunctional role that triggers the socio-economic and institutional transformation of economic benefit of right holders. Beyond the unlawful recording of gospel music and the sale of pirated gospel radio cassettes, compact disks (CDs), these gospel music have secured airwaves and fixed paid programmes on radio stations such as those of radio Nigeria Enugu, radio Benue, radio Ashi waves. Beyond the radio station’s exploitations, there is a current trend of the digitalisation and distribution of the gospel musical content and works online to a global market beyond the scope, expectations and outside the context of gospel propagation and these have deepened the challenges to the gospel music industry of the URCC/NKST among its teeming users. This research has sought to evaluate and present in a chronological and systematic approach, how sacred vocal music has influenced church development among the URCC/NKST and ascertain its corresponding economic and moral impact on the creators of the musical content as recognised under the existing corpus of intellectual rights creation. Flowing from the above, the research seeks to answer the following questions;

  1. How do composers and lyricist understand their creative and music rights holding among the church and its consequential exploitations?
  2. How effective is the copyright regime regarding the protection of gospel musical rights among the right holders?
  3. How beneficial is the URCC\NKST music sector structured to assist the moral and economic value of holders?
  4. What infrastructural challenges do the music right holders face in the protection and enforcement of their rights?
  5. What role does and would the URCC\NKST as a church play with regard to recompense\compensation in the growth of gospel music among the church?

These and many more are the search for these inquiries using the technique of law.

3.3. Main Objective

To investigate the reasons as to why the economic value and net worth of the creators of gospel music among the URCC\NKST in Nigeria has remain virtually poor and low irrespective of the robust and vibrant musical content rendition.

3.3.1. Specific Objectives

  1. To investigate right holders perception about their knowledge of Copyright Law in Nigeria.
  2. To analyze the Copyright system as applicable to gospel music development in Nigeria.
  3. To examine the URCC\NKST music industry infrastructure as to whether it is in tandem with economic rights development.
  4. To appraise the correlation between the infrastructure and the various income generating streams in existence that may enhance growth and development of right holders.
  5. To ascertain the role of the church in gospel music industry developments

3.4. Research Method    

The research approach is deductive analytical strategy which is explained as working from the more general to the more specific. At the same time, conclusion follows from premises using the following method: Theory-Hypothesis-Observation-Confirmation. This scientific approach has aided in obtaining understanding through description and explanation of the empirical data. The reason for this approach is that it has provided an in-depth and comprehensive data since the nature of the problem is more complex to answer by yes or no hypothesis through questionnaire. With this, we make fewer assumptions and this is good for our explanatory research.[13] It also advantageous in investigating  problems that cannot be quantified, for instance individual experiences.

3.5. Data Collection

The study used interview and focus group discussion method for the data collection. Thus questionnaires were administered on right owners such as creative writers and composers of songs, marketers and distributors, the Lamp and Word Outreach/NKST Literature and Media Department of the church, local recording companies, pastors, and selected church members that are music enthusiasts of URCC/NKST church songs.

3.5.1 Research Instruments

The following instruments were employed in assessing information from respondents

  • Questionnaires/ Interviews
  • Focus Group Discussion Guide

 i (a) Right Owners

These questionnaires were administered on right owners such as the composer of the musical score, the author of the lyrics and performers of the songs. The aim is to elicit information on their perception and knowledge of intellectual property, intellectual property rights (copyright) in particular, rights management schemes and general economic rights that may be obtained from copyrightable works such as rights in gospel music dissemination.

ii (b) Marketers/Distributors

These questionnaires were administered on marketers and distributors, the Lamp and Word Outreach/NKST Literature and Media Department of the church, local recording companies of copyright works to elicit information on their perception of knowledge of copyright, ownership and authorship rights, royalty rights, piracy, bootlegging and their understanding of copyright infringements.

iii (c) Policy Makers

This segment of Interview was designed to determine the views, attitudes, experiences, church doctrines concerning copyright ownership, authorship and royalty payments. The interview was administered on Pastors and selected members of URCC/NKST synod members.

iv (d) The Consuming Public/Church Members

The questionnaire was designed to find out the knowledge level of the consuming public particularly, music enthusiasts of URCC/NKST church songs about copyright piracy.

(ii)Focus Group Discussion Guide

Focus group discussions were developed to elicit additional information on issues of copyright exploitation, piracy and bootlegging.

4.1 Development of Universal Reformed Christian Church (URCC) and NKST(Nongu u Kristu u i Ser u sha Tar)      

N.K.S.T stands for the “Nongu u Kristu u i Ser u sha Tar,” translated to mean, “Universal Reformed Christian Church,” based in Nigeria[14].The acronym NKST originally stood for Nongo u Kristu u Ken Sudan Hen Tiv but it was in 2001 altered to “Nongu u Kristu u i Ser u sha Tar,”. Upon the adoption of the name NKST, it was later registered as a church in Nigeria under a trusteeship in compliance with the Companies and Allied Matters Act of Nigeria[15]. On the 9th January 1957, the church was registered as an autonomous body. Following the registration, four indigenous Tiv prime pastors were ordained and became their Trustee in compliance with the extant laws; they included, Rev. DS Ugo, Rev JEI Sai, Rev. FN Anum and Rev .AV Ayaka (all of blessed memory).

NKST envisions, by the grace of God, to be a multi-ethnic Christian community drawn from all nations and cultures of the world and united in the doctrine of Jesus Christ. NKST exists to glorify God through worship and proclamation of the good news of salvation to all humanity, and observation of the sacraments as instituted by Jesus Christ, to strengthen the communion of the Saints, to responsibly teach believers and instill self-discipline.  The church has its headquarters at Mkar-Gboko in Benue state but has spread all over Nigeria, and even beyond. The members are predominantly the Tiv[16] (Tiv here refers to a people, a language, a culture as well as a geo-linguistic entity in North Central Nigeria) although other tribes in Nigeria belong to this church. It was first introduced at Sai on 17 April 1911 a village in Katsina-Ala local government area of Benue state, Nigeria.

The church is the fruit of missionary work undertaken by the Dutch Reformed Church in South Africa whose work began in 1911 among the Tiv (people in the then Gongola and Benue Province). The missionary work was truncated in 1960, due to the apartheid system, the South African missionaries were no longer tolerated in Nigeria and had to leave. In their place the SUM–Christian Reformed Church of North America, a branch related to NKST, gave it strong support until about 1985. In 1957 the church was formally organized as an autonomous, self-supporting, and self-propagating church with first four indigenous (Nigerian-Tiv) pastors[17]. A full translation of the Bible into Tiv was completed and dedicated on 4 November 1964.

The church also has a synod[18] that meet twice in a year. The Church has seven institutions of higher learning namely, The Reformed Theological Seminary, Mkar; Reformed Bible College, Harga; School of Nursing, Mkar; College of Health Technology, Mkar; School of Medical  Laboratory Sciences, Mkar; School of  Midwifery, Mkar; University of  Mkar, Mkar[19]. The NKST church has over one million followership and professing members. It has a well organised Women Fellowship with over 44,514 members. NKST church has 693 pastors since inception with 572 who are still alive. NKST has today developed in various ways with the following statistics; (a) 64 Classis and; (b) 320 organised consistories; (c) 26 Mission Stations (d) 56 Secondary Schools; (e) 500 Primary Schools; (f) 9 Hospitals and 150 primary health care centres all over Nigeria[20].

Other unique contributions of the church are with reference to Tiv language development and orthography which has a concurrent impact and effect of Tiv gospel songs. The import on this on the history of the Tivs is that it was basically an oral society which language had no written form until the coming of the missionaries in the early 20th century. The missionaries contributed meaningfully in Tiv language documentation and development especially in the production of the Holy Bible in Tiv (Icighian Bibilo)[21], Catechism (Katekisema), Bible Stories (Akaa a Bibilo), Hymns Book (Atsam A I Gema a Gema). As earlier stated, Tiv language had no written before the advent of the missionaries. The position is clearly stated as follows:

Tiv did not have any system of alphabet or a set of letters that could be used to write Tiv language. DRCM introduced English letters into Tiv language and made Tiv language a written language. The English letters were as follows:ABCDEFGHIJKLMNOP(Q)RSTUVW(X)YZ. These letters were given tiv names and they were used in writing Tiv language. As a result, the Holy Bible (Icighan Bibilo), Hymns (atsam), Catechism (katekisema)…were translated into Tiv and used in churches (ayou adua) and schools (imakerenta). Missionaries also introduced Arabic numbers:(12345678910) and Roman numerals:( i, ii. iii, iv, v, vi, vii, viii, ix and x) into Tiv pagination of published works or books, the Holy Bible, Catechism, minutes and manuscripts. The introduction of numbers contributed significantly to the development of both oral and written forms of Tiv language.[22]

The translation of the Holy Bible into Tiv language paved way for the development of the Tiv language vocabulary and assisted in the translation of English hymns into Tiv language. The book contains songs of worship and praises that Christians made constant reference to during and after the times of worship. The translated version of the hymn book made it a point that a true Christian must have the hymn book in order to worship God in a proper way.[23] The development and evolution of Tiv hymns paved way for other gospel songs in the URCC/NKST church among the various segments of the church such as, the school of Sunday classes (MIM)( translated as Makeranta U Iyange I Memen), Women Fellowship  (Mzough U Kase), Boys and Girls Brigade have their species of songs which are variously composed by different writers. The church also has a well organised English segment of the church whose proceedings are conducted in English Language for the teeming youths as well as the elderly.

4.2. The Origin of Gospel Music among the URCC\NKST of Nigeria

Gospel music among the URCC/NKST church started as far back as in 1920 wherein, the first NKST hymn which was composed and accepted for use in the church by one evangelist (orvageli) Joshua Akaer Gav was consecrated at Zaki-Biam. Notwithstanding this milestone, history has it that, the first formal and recognised documentation of the churches’ gospel history commenced in 1959. This was largely due to the low level of Christian coverts from 1911-1957. In 1960, the first woman to compose an NKST hymn was Sarah Shima from NKST Ngobua, of Alam classes. It was equally accepted and used among the emerging congregation. The history of the church gospel promotion is generally attributed to the efforts of early missionaries namely, Dr (Mrs) Susan Kok; Rev WM Scott; Rev G Terpstra; and Dr Van Doop.[24] From 1959-1962, choir conferences had continued at NKST Church Mbaamandev, Mkar, Gboko local Government presently until the intervention by NKST Sinod that formally accepted the use of choir practice in the church[25].

The period between 1962 and 1964 witnessed a devastating point in the history of the church and change in the mantle ship of the church generally and this too affected the growth of the gospel history. The change in the mantle ship was as the withdrawal of the Dutch Reformed Church Mission from Nigeria largely because of racial policy of South Africa apartheid system, the South African missionaries were no longer tolerated in Nigeria and had to leave thereby enabling the transition of gospel regime to the indigenous missionaries of the time namely, Pastor Tar Shande, Pastor Nevkar Anum and one Iortyaver Asen. [26]

The period after 1964 witnessed, epochal growth in the history of documentation of gospel songs especially with the efforts of SUM/CRC, in the compilation of Denominational hymns of NKST (Atsam a NKST), which had a total of 136 original composed songs and 177 translated songs from other compilations[27]. This effort was an improved effort of a similar work done in 1959 by the DRCM titled “New Tiv Gospel Songs” (Atsam a he ken zwa Tiv). The improvement was as a result that, the 1964 version had the names of the composers attached whereas the earlier ones of 1959 were anonymous thereby negating the efforts of early  great composers like Anengega Daudu and Ityavgyer Fate. In 1979, the Lamp and Word Books documented a set of Denominational hymns which comprised 676 original composed songs and 182 translated songs while in 1996, the said Lamp and Word Books documented a set of Denominational songs of original tiv composition numbering 1035 while translated songs were recorded at 243.

Between 1962 and 2017 several choir conferences numbering 47(see appendix) have taken place  where several gospel songs are censored, accepted and received for use in the church practice by the composers totalling 737 (both living and Dead) with a total of 5000 songs recorded in several epochal books namely;

  1. Denominational hymns (Atsam aa Ikyenge aa NKST) and translated gospel hymns (Atsam aa ii gem a gema) which are the translated hymns from English to Tiv languages) which has a total of 243 hymns[28] collection from mostly Golden Bells[29] and other Christian songs.
  2. Vue Atsam Tavaku 2014 and Mkar 2015[30] has a total of 339 hymns
  3. Vue Atsam kuhe
  4. Vue Astam Abaji

4.3. Gospel Music Development among the URCC\NKST

Music in general and singing in particular has remained an integral part of humanity. Julius Caesar once remarked about Cassius: “He hears no music: seldom he smiles”. Since creation, music and religion has been inseparable from each other. In Nigeria experience has shown that gospel music has been the livewire of many Christian churches, crusades, revivals, evangelisms and other events since the advent of European missionaries.[31] In the Christian Liturgy, there exist several justifications and instances where reference is made of music in the Bible. In Psalms[32] 150 verses 3-5 is recorded thus: “giving praises to God with sounding timbrel, trumphet, cymbals, string instruments and organ. Praise him with the timbrel and dance: praise him with stringed instruments and organs.  Praise him upon the loud cymbals: praise him upon the high sounding cymbals.”

1Samuel 16:16-18 “ Let our lord now command thy servants, which are before thee, to seek out a man, who is a cunning player on an harp: and it shall come to pass, when the evil spirit from God is upon thee, that he shall play with his hand, and thou shall be well. And Saul said unto his servants, provide me now a man that can play well, and bring him to me. Then answered one of the servants, and said, Behold, I have seen a son of Jesse the Bethlehemite, that is cunning in playing, and a mighty valiant man, and a man of war, and prudent in matters, and a comely person, and the LORD is with him”.

1 Samuel 18:6-10 “ And it came to pass as they came, when David was returned from the slaughter of the Philistine, that the women came out of all cities of Israel, singing and dancing, to meet king Saul, with tabrets, with joy, and with instruments of music.  And the women answered one another as they played, and said, Saul hath slain his thousands, and David his ten thousands.  And Saul was very wroth, and the saying displeased him; and he said, they have ascribed unto David ten thousands, and to me they have ascribed but thousands: and what can he have more but the kingdom?  And Saul eyed David from that day and forward.  And it came to pass on the morrow, that the evil spirit from God came upon Saul, and he prophesied in the midst of the house: and David played with his hand, as at other times: and there was a javelin in Saul’s hand”.

2 Samuel 1:19-27 “The beauty of Israel is slain upon thy high places: how are the mighty fallen!  Tell it not in Gath, publish it not in the streets of Askelon; lest the daughters of the Philistines rejoice, lest the daughters of the uncircumcised triumph.  Ye mountains of Gilboa, let there be no dew, neither let there be rain, upon you, nor fields of offerings: for there the shield of the mighty is vilely cast away, the shield of Saul, as though he had not been anointed with oil.  From the blood of the slain, from the fat of the mighty, the bow of Jonathan turned not back, and the sword of Saul returned not empty.  Saul and Jonathan were lovely and pleasant in their lives, and in their death they were not divided: they were swifter than eagles, they were stronger than lions. Ye daughters of Israel, weep over Saul, who clothed you in scarlet, with other delights, who put on ornaments of gold upon your apparel.  How are the mighty fallen in the midst of the battle! O Jonathan, thou was slain in thine high places.  I am distressed for thee, my brother Jonathan: very pleasant hast thou been unto me: thy love to me was wonderful, passing the love of women.  How are the mighty fallen, and the weapons of war perished”!

1 Samuel 16:23 “And Saul sent to Jesse, saying, Let David, I pray thee, stand before me; for ye hath found favour in my sight.  And it came to pass, when the evil spirit from God was upon Saul, that David took and harp, and played with his hand: so Saul was refreshed, and was well, and the evil spirit departed from him.  Which reads “And it came to pass, when the evil spirit from God was upon Saul, that David took and harp, and played with his hand: so Saul was refreshed, and was well, and the evil spirit departed from him.”

Music and religion do have a symbiotic relation. It is the livewire of many churches today and it constitutes a major if not sole solemn pathway to reaching the souls’ eternal glory. It is appeasing in moments of grief and sorrows. It is indeed a mirror of reality and expression truth of the words conveyed. It is from the forgoing biblical perspective that, URCC\NKST synod[33] from inception and progressively approved the use of traditional musical instruments\accompaniment as opposed to popular music band[34] in the worship of God in their churches. Instead, traditional musical instruments in the families of the idiophones[35], membranophones[36], chodophones[37] and aerophones[38] of the traditional Tiv affiliation namely, gbande[39],(tambourine) kwen (resounding cymbals), imar (pipe), akacha;[40] korough ku tungwan;[41] (sounding of the trumpet) adigyuve;[42](harp and lyre)  jita;[43](specific for English choir); kakaki;[44]( trumpet) chembe kwen;[45] molo, ityegh, ikpamar and kungkung;[46]( see appendix). These traditional instruments are utilised using a mode of rhythm accepted by the church as constituting the church songs. The features of the church rhythm require a soft smooth voice (but sometimes harsh) with emotional expression included in the vocal rendition .The tempo of the music is slow and moderate   and never fast (although the music structure may be high and loud)

Being a traditional brand of gospel music, the lyrics and music is strictly based on messages from the bible. This means that a composer or song writer must first and foremost be very conversant with biblical inclinations and his/her lyrics should be non panegyric in nature but only in praise of God without mention of mortals. The gospel songs do have functional roles.  In terms of style, the song must be prophetic or evangelistic. It must create an atmosphere for praise and worship. It must be a song that can be played with any instrument be it a combination, individual, or even acapella. In terms of themes, the song must be in praise of God and proclaiming one of the many names of the Lord and their meaning such as God (yohova), Abba father (Aondo a baver jua) etcetera. The song must reflect Gods love in terms of depth and breadth and must proclaim God’s physical, spiritual and emotional healing. it must also proclaim God’s holiness, exaltation, adoration, repentance and thankfulness. It is this functionality of the NKST (atsam) songs that one can refer to songs of glorifying God, songs of deep reflection, songs of joy, songs of mourning, and songs of wedding. These songs used in the worship of God have crucial values to inculcate into the worshipers and listeners of the music. In composing gospel songs, writers seek inspiration from God, attempt to come out with the lyrics in line with the church notes to go with each syllable and then write the song in phrases and present same to the larger church committee wherein the songs are censored and if in line with church policy, accepted as constituting an NKST/URCC song.

 

 

 

 

Understanding Nigerian Copyright Law for Music and Musicians

by Ese Atakpu|Published August 21, 2018

Copyright law can be complex and intimidating, but as a musician, you need to understand this law in order to know how best to protect yourself and your art.

In this first instalment of our three-part series on Demystifying Nigerian Copyright law for the Nigerian Creative, we have simplified copyright law by breaking it down into six subheadings that tell you what copyright is and how you can use it to protect yourself as a musician.

What does copyright law protect?

Copyright protects original creative works that are fixed in a tangible form. For music, two types of creative works are copyrightable- ‘musical works’ and ‘sound recordings’.
Under section 51 of the Nigerian Copyright Act, a musical work is defined as any musical composition and includes works composed for musical accompaniment, thus a ‘musical work’ includes sheet music, beats and lyrics. Copyright in a ‘musical work’ usually resides in the creator- the beat maker, the composer, the songwriter.

A sound recording, on the other hand, is “the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced”, this basically refers to the specific recording of a musical work and copyright in it usually resides in the artiste in whose name the recording was made unless a contract is made between the parties involved stating differently.

How long does your copyright last?

Copyright in a musical work lasts for 70 years after the end of the year the creator dies, and if the work was created with any additional creator such as writing partners, the copyright lasts seventy years after the death of the last surviving author. In the case of a copyright owner that is a government or corporate body, the lifespan is 70 years after the end of the year the work was first published.
On the other hand, copyright in a sound recording subsists for only 50 years after the end of the year in which the recording was first published.
Once the copyright period ends, the work enters the public domain and anyone is free to use it.

What rights does a copyright owner have?

As the owner of a copyright in a musical work, Section 6 of the Nigerian Copyright Act gives you exclusive control over acts such as commercial distribution of the work by way of rental, lease, hire, loan or similar arrangement, performance of the work, publication of the work, reproduction of the work, preparation of derivative works based upon the work, public display of the work, broadcast or communication of the work to the public by a loudspeaker or any other similar device, adaptation, translation, or making of any cinematograph film or a record in respect of the work.
In other words, your copyright gives you the right to record your music, sell or otherwise distribute copies of your music in various formats, make new works from your original work such as sampling your music to create a new song, perform your music in public, post your music online, and stream your music. Not only does a copyright give you the right to do these things with your music, but it allows you to stop others from doing these things with your music without your permission.
Copyright owners of sound recordings do not enjoy as much control as copyright owners of musical works do. This is because originality is not a requirement for copyright protection of sound recordings.
Therefore, as far as sound recording is concerned, Section 7 expressly states that copyright in a sound recording is the exclusive right to control the broadcasting, recording, communication, or commercial distribution to the public of the whole or substantial part of the recording either in its original form or in any form recognizably derived from the original.

Can you lose your Copyright?

If the creator of a musical work assigns or sells her copyright in the work to a record label or any other person, she loses the exclusive rights granted to her under Section 6 of the Copyright Act, and all she is left with is her moral right – authorial attribution as creator of the song, and right to prevent derogatory distortion or mutilation of the work which is prejudicial to her reputation-which cannot be assigned or sold.
In such a situation, the rights provided for in Section 6 are transferred to the assignee of the copyright, and the transferee is given exclusive rights over the musical work to reproduce, distribute, broadcast or perform as the case may be, and restrain any other person, including the creator of the work, from exercising such rights.

Do music performers have rights?

Neighbouring rights are rights that are related to copyright but are not exactly copyright. For music, this right exists to protect people who perform musical works. Section 26 provides that a music performer has the right to control the performing, recording, broadcasting live, reproducing in any material form, and adaptation of her musical performance. This right applies to her specific musical performance alone, and not the musical work that was performed.
This right lasts for 50 years after the end of the year in which the performance first took place.

How do you enforce your rights?

As described above, owning a copyright in a work gives you the right to do certain things with your music, and to prevent the doing of those things by other people.
When someone exploits your exclusive rights without your license or authorization, it is known as copyright infringement and is actionable by you. This is generally when you should get your lawyer involved.

Comments? Questions? Make your voice heard in our comments section below or email us.

Author’s note: The answer to the question, “What does copyright law protect?” has been edited. We apologize for any inconvenience.

 

 

 

 

 

 

 

 

5.1 Legal Narratives on Musical Works Protection under the Copyright Act of Nigeria

Traditionally, music was not viewed as a money making matter within the traditional African context[47]. Artist were valued more for their cultural impact on society, and largely satisfied by the social status that came with it. The place of music within the traditional African context does not vary greatly from country to country. Among the traditional East African communities for example, music making is closely related with and recognised as a social activity that fosters and reinforces communal unity[48]. The perspective of commodification of music in Africa in general is traceable to the effect of colonialism in its transformation of the context of music-making and performance by introducing the capitalist economic system and the notion of the market and money. It began to become clear that, there was a need to attach commercial viability specific to the art of music, especially in post colonial Africa, which also slowly embraced popular music as part of contemporary society.

The foregoing narratives based on the traditional African culture are completely reversed by the copyright system. The Eurocentric copyright ownership system view copyright as a property capable of being owned and commodified. It is in the foregoing perspective that, copyright can be viewed as an instrument of commodification as it excludes all kinds of knowledge, ideas and innovations that take place in the ‘intellectual commons’ and are recognised only when knowledge and innovation generate profits, not when they meet social needs. In this perspective, the Nigerian law on copyrights protect music and other original works of authorship. Obtaining copyright for a piece of music allows the composer or songwriter to seek protection of his /her song, secure his/her economic and moral rights as well as guarantee the right of the owner to obtain monetary damages from anyone who uses the work in a prohibited or unauthorised manner. Music companies basically manage copyright for written works, while record labels manage the copyrights for sound recordings.

The law that protect musical content in Nigeria is the copyright Act. The Copyright Act list out works that is eligible for copyright protection to mean, literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts[49]. The section further provides the conditions that the first three eligible works namely, literary, musical and artistic works must satisfy before they can be accorded copyright protection thus:

A literary, musical or artistic work shall not be eligible for copyright unless sufficient effort has been expended on making the work to give it an original character and the work has been fixed in any medium of expression now known or later to be developed, from which it can be perceived, reproduced, otherwise communicated either directly or with the aid of any machine or devise.[50]

The necessary implication of the foregoing provision is that, where a person creates a literary, musical (as applicable in this research), or artistic work, he or she is the owner of that work and is free to decide on its use. That person (called the “creator” or “author” or “owners of rights”) can control the destiny of the work. Since by law, the work is protected by copyright from the moment it comes into being, there is no formality to be complied with such as registration or deposit as a condition of that protection[51].  This protection exists and is applicable to gospel music without any exception. The necessary implication is that, mere ideas in themselves are not protected, only the way in which they are expressed. The economic rights in copyright are the rights of reproduction, broadcasting, public performance, adaptation, translation, public display, distribution and so on[52]. While the moral rights include, the authors right to object to any distortion, mutilation or other modifications of his work that might be prejudicial to his honour or reputation (otherwise known as rights of paternity and integrity). The foregoing rights are exercisable by the creator. The central right of “control” mean that he can use the work himself, can give permission to someone else to use the work or prohibit someone else from using the work. The general principle is that, copyright protected works cannot be used without the authorisation of the owner of rights,[53] which is protected throughout the life time of the creator and 70 years after the end of the year in which the author dies.[54] The foregoing assessment on creative works is no exception to the musical works protection accorded to musical rights irrespective of gospel or church orientation and least not as it relate to the composers, singers, writers of the URCC/NKST.

With respect to musical protocols, the Act defines a musical work as “any musical composition irrespective of musical quality and it include works composed for musical accomplishment”[55].Musical works may consist of songs, choruses, opera, musicals, and may be composed for instrument (solos), a few (Sonatas chamber music etc ) or many bands, orchestra etc[56]. Musical composition is defined to consist of chorus, juju songs, rock and roll, jazz, gospel, or solo[57]. An arrangement of old music which amount to a new work[58], or an adoption of an existing work for a different instrument[59] will equally amount to a protectable musical work. The key word that qualifies a work as ‘musical’ is ‘composition’ in that, it is this element that distinguishes a musical work from mere lyrics; the first qualifies as a musical while the second is literary work[60]. The English court in Chappell &Co Ltd v Redwood Music Ltd[61] held that the music and lyrics of a song each had its own separate copyright and that a song in which the words were written by one person and the music by another was neither a collective work nor was there a separate and independent copyright in the resulting song

The nature of copyright in musical work in Nigeria is the exclusive right of the owner in whose name it is imprinted to control the doing of any or all of the following acts;

  • Reproduction of the work in any form.
  • Performance of the work in public.
  • Distribution of copies of the work for commercial purpose, either by way of rentals, lease, hire, loan, or similar arrangement;
  • Broadcasting or communication of the music by the use of loudspeakers or any similar device; and
  • Adaptation of the work[62].

The category of musical works span all genres and seems to be the most generic of all eligible works except for the key word, being “composition” which element distinguishes a musical work from mere lyrics; The first qualify as a musical work while the second is a literary work, both musical and lyrics are different with each having its own separate copyright. Furthermore, a musician who composes music or writes a song is the author of a musical work. A producer who controls the recording the recording of some sound creates a sound recording. If the recording is put on a compact disc, the CD is both a copy of the musical work and a phono-record of the sound recording. Anyone who makes an unauthorized copy of the recording potentially infringes two copyrights: The Musician’s copyright in the musical work and the Producers copyright in the sound recording[63].

It is important to understand that, the copyright Act does not define musical work in any language that suggests writing or other graphic representation. What  is required, as in the case with literary and artistic works is that, the musical work should be fixed in a medium of expression (present or future) from which it can be perceived, reproduced, or otherwise communicated (either directly or with the aid of a device)[64](emphasis mine). According to Asein[65] while citing the case of Anikulapo Kuti V Iseli the requirement of fixation simply means that the musical work must be in a tangible medium without specifying the particular form it must take and this was evident in the Anikulapo Kuti’s case, where the court was persuade d by evidence that Fela was in the habit of composing his music and recording them on cassettes.

Song writing may be a solo activity or a collaborative effort. In some writing partnership, there is a clear distinction between the person who writes the musical work and the person who writes the lyrics. Alternatively, two or more people may have worked on the musical work or lyrics as a joint activity. In such cases, it means that each person has made an equal contribution to the establishment and authorship of the particular musical work or lyrics or it may be that the respective contributions are quite different and the collaborators want to recognise those differences in contribution by allocating different percentages of ownership and share of revenue.

There exist three forms of ownership in music and are distinctively separate. These include, (a) Musical work (melody, harmony, rhythm);(b) Lyrics;(c) Sound Recording. The necessary implication of the foregoing is that, a song is a combination of two different copyright works namely, the musical work and the lyrics. Each of these separate copyrights can be owned by either the same person, different people, or to make things even more complicated, by a number of different people within each separate copyright.

The owners of copyright in the musical work or the lyrics have the exclusive right[66] to:

  • Reproduce the work in any material form (or copy the song such as by making a sound recording or music video, photocoping sheet music, making CDs or electronic copies)emphasis mine to denote music content.
  • Publish the work (… the song) emphasis mine.
  • Perform the work in public (… song in public) emphasis mine.

(vii)   Broadcast or communicate the work to the public by a loudspeaker or any other similar device (…communicate the song to the public such as by radio, television or internet) emphasis mine.

The owner of the copyright in Sound Recording has the exclusive right to: (a) Make a copy of the sound recording; (b) Cause the Sound Recording to be heard in public; (c) Communicate the Sound Recording to the public; (d) Enter into commercial rental arrangement in respect of the Sound Recording. It is important to observe that, copyright exist in the sound recording separate and in addition to the copyright in music work and the lyrics and in order to record a song, the copyright owners in the musical work and the lyrics must reach an agreement to exercise their exclusive rights. The necessary implications of the foregoing provisions are that, greater portions of the music sung by church choirs and congregations are protected by copyright law. Coping and distributing written music are some of the key rights reserved to the Composer, lyricist or Publishers of music pieces. Unauthorised copying of music or songs from hymnal books violates copyright law and infringes on the copyright owner’s intellectual property rights.

Comparatively, in the United States of America, the exclusive right to perform a song in public or to licence its performance to the public is limited and the church exempted for musical works “in the course of services at a place of worship or other religious assemblies.”[67]  With reference to music recording, the United States position on the subject is further worth examining. The Copyright law exemption for religious performance of music only exempt live performance,[68] and does not authorize video or audio recording of that performance. Instructive on this issue is the referencing of the Presbyterian Church Order of the United States of America on the subject which provides that, the person seeking permission to record should locate the copyright holder through searching the copyright office or through an internet search and requesting for permission to record the performance.[69] Equally amounting to musical right infringement is sharing of copyrighted work on social media[70] without the author’s permission is effectively “publishing the work” or “communicating the work publicly”, thus amounting to copyright infringement. Infringement online or in the digital age effectively amounts to virtual damage done to copyright holders who have no control as to how far and wide their works can go and be utilized.

5.2       Gospel Music and Rights holders’ Development paradigm

The research has identified five right holders within the copyright paradigm that can benefit substantially in economic gains and moral obligation namely, the composer of the musical scores; the author of the lyrics; the publisher of the scores; the performers of the works and the producers of the sound recording. Within the church development, the song composers comprises the 737 authors (both living and no longer living) as indicated under appendix…. and may in appropriate circumstances double as authors of the lyrics. The right to be named as the author of the work (‘authorship right’ or paternity right) as well as the right to protect the integrity of the work. However, as earlier observed, Tiv language was basically oral and the language had no written form until the coming into contact with the Missionaries. The consequential effect of this practice on the stereotyped concept of authorship as recognised under the copyright was nonexistent. The publishers[71] and producers[72] (although not in recognised technical term) is vested in the Lamp and Word Department of NKST/URCC while the performing of the performer[73] reside in when the composed song is being sang in a presence of the audience.

Gospel music composition, song writing, song publishing, song (sound) recording can be owned, transmitted and assigned in the same way as physical or movable or tangible property. With respect to the Act, author in the case of …musical works, means the creator of the work.[74]This means that the writer of the songs or the composer of the songs will qualify as an author for that purpose and may in appropriate circumstances qualify as a performer while, author in the case of sound recording, means the person by whom the arrangement for the making of the sound recording were except that in the case of sound recording of musical works, author means the artist in whose name the recording was made, unless in either case the parties to the making of sound recording, provide otherwise by contract.[75] Gospel performers’ right is granted by virtue of Section 26(1) of the Act that confers on the performer the exclusive right to control the performing and recording of his performances, the broadcasting live and reproduction of his performances in any material form and adaptation of the performance. The definition of performer is given to include a dramatic performer (which include dance and mime)[76] and a musical performance.[77] Commenting on the forgoing, an author argues that, the right to control granted to the performer under section 26 is derived from ownership perspectives and that licensing of performers rights is not well enshrined under the Nigerian Copyright Act although paragraph 5 of the Third Schedule to the copyright Act contains provisions in respect of licensing of the records which comprise of a performance or a musical work and the author argued for the inclusion of provision relating to the percentage of remuneration payable to the performer in respect of licensing of the record which comprise performance.[78] This analysis is of much application to the publishers of the gospel hymnal books notably the Lamb and word book.

The rights of the performers are further fortified under Section 28(a) of the Act which makes provisions for infringements.  The section provide to the effect that, a performer’s right is infringed by a person, who without the consent of the performer or authorisation in writing, records the whole or substantial part of a live performance, provided that where the consent sought is for the purpose of making a recording of the work for research, private or domestic use, such consent shall not be unreasonably refused.

The NKST policy[79]on copyright provides that, “NKST shall have copyright of all her songs, films and any other material of the church and shall enforce all rights attendant thereto”[80]. Flowing from the foregoing, the policy provide that, “consequent upon the foregoing, writers of books founded on church resource, song composers and actors of movies, et cetera processed and accepted by the church shall not have copyright of such materials”. [81] Additionally, “In order to curtail incidents of piracy, all publications must be carried out under the NKST copyright. Any persons using the NKST copyright shall pay an amount to be fixed by the regulatory authority on behalf of the NKST Synod.[82] Subsection (d) provides that, “No part of the church’s resource in any form whatsoever may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical,  photocopying, recording or otherwise, without the prior written permission of the regulatory authority on behalf of the NKST Synod”.

The foregoing provisions reveal that, the church does take ownership of copyright embedded in their gospel songs and hymns. The composers invariably do not take any form of copyright and do not share in any entitlement or proceeds of their creative endeavour. The church is very much aware of piracy and has taken steps to prohibit same however, the extent to which these provisions are enforced is far from desire

6.1 Data Analysis and Discussion of Findings

This section deals with data presentation, analysis and discussion of findings of the research. In all, 112 respondents were selected for the research representing at least 20% of the study population of 702 writers and composers of musical songs for URCC. Out of this population, 92 respondents comprising the right owners, marketers and distributors, composers and writers of musical songs were studied using interview and questionnaires that were directly administered to them through purposive sampling technique. Additionally, 20 Pastors as policy makers and regulators in protecting copyright law were studied through focused group discussion. The primary data is thus descriptively presented in various sections as follows:

 

6.2 Descriptive Statistics

Table 6.1 Age Distribution of the Respondents

Age Frequency Percentage Cumulative Percentage
18-25 30 26.78 26.78
26-35 50 44.64 71.42
36-49 08 7.14 78.5
50 and above 24 21.43 100
Total 112 100  

             Source: Field Survey, 2019.

The descriptive statistical analysis in this section comprises of both the composers/writers and policy makers of the URCC. The result of Table 6.1 above shows that majority of the respondents sampled representing 44.64% were within the age bracket of 26-35 years of age. Those within the age bracket of 18-25 years constituted 26.78%. Those within the age bracket of 36-49 years were only few (7.14%) while those above 50 years constituted 21.43%. The distribution of the respondents signifies that energetic young people between the age bracket of 18 and 35 years have dominated gospel music in the URCC. This result is a deviation from the ancient practice in which gospel music in the church was left in the hands of old people like Fate, Diogo and Zuzu. Today, very energetic young people like Ter Adule have taken over the gospel musical landscape of the URCC gospel musical songs.

 

 

Table 6.2 Sex Distribution of the Respondents

Sex Frequency Percentage Cumulative Percentage
Male 80 71.42 71.42
Female 32 28.58 100
Total 112 100  

             Source: Field Survey, 2019.

Result from Table 6.2 above shows that the male population dominated the sampled respondents representing 71.42% while the female population was only left at 28.58%. The implication is quite simple and interesting. The female are more actively involved in singing and entertainment during church activities than writing and composing which requires a unique talent and minimum literacy. The summary result in Table 6.2 is collaborated by the bar chart and pie chart depicted below.

 

Table 6.3 Educational Distribution of the Respondents

Qualification Frequency Percentage Cumulative Percentage
School Leaving 5 4.46 4.46
School Certificate 6 5.37 9.82
NCE/Diploma 41 36.60 46.42
First Degree 51 45.54 91.95
Postgraduate 6 5.37 97.32
None 3 2.68 100
Total 112 100  

             Source: Field Survey, 2019.

In the chart, SL represents school leaving, SC stands for school certificate while PG is for postgraduate qualification. The result of Table 6.3 above and the bar chart depicted shows that majority of respondents sampled were educated up to first degree level. They constituted 45.54% of the respondents while NCE/Diploma holders represented 36.60%. In fact, there were few Postgraduate respondents representing 5.37%. This signifies that writing and composition of musical songs in the URCC is a literate and spiritual assignment done mostly by educated members of the church. Although, uneducated members of the church endowed with the spiritual talent are not prevented from composing or writing songs as can be seen from the limited number of school leavers and school certificate holders that have composed songs in limited percentages of 4.46% and 5.37% respectively.

 6.3 The Cost-Benefit Analysis of Writers/Composers Knowledge of Copyright Law

Table 6.4 How Long have you been composing Gospel Songs

How long Frequency Percentage Cumulative Percentage
Less than 2 yrs 6 6.52 6.52
2-5 yrs 39 42.4 48.92
5.9 yrs 22 23.9 72.82
10 yrs and above 25 27.18 100
Total 92 100  

     Source: Field Survey, 2019

The result of Table 6.4 above shows the distribution of the respondents’ view on how long they have been writing and composing songs for the church. It can be easily summarized that majority of the composers/writers have spent over 2 years in composing gospel songs for the church. This implies that the composers/writers must have acquired enough experience in their chosen spiritual work for God.

 

 

 

Table 6.5 How many of your songs are received/accepted for use in church

No of Songs Frequency Percentage Cumulative Percentage
1-5 55 59.78 59.78
6-10 27 29.35 89.13
11-15 4 4.39 93.53
16+ 6 6.52 100
Total 92 100  

     Source: Field Survey, 2019

Table 6.5 above shows the respondents’ views on how many of their songs have been received and accepted for use in the church. The result showed that the church has received and accepted 1-5 songs from 59.78% of the respondents and 6-10 songs from 29.35% of the respondents. Altogether, 89.13% of the respondents wrote/composed and submitted between 1-10 songs to the church. This is in line with the practical evidence that some respondents have submitted more than 16 songs to the church. Ephraim Eryum Zuzu, Chia Diogo and Timothy Ter Adule are among the numerous writers/composers who have submitted more than 16 songs to the church over the years.

Table 6.6 How much does it cost to compose a Song

Cost of Song Frequency Percentage Cumulative Percentage
Less than #1000 59 61.13 61.13
Less than #5000 21 22.82 83.95
Less than #10000 9 9.78 93.73
More than #10000 3 3.26 100
Total 92 100  

     Source: Field Survey, 2019

The cost of writing and composing a song in URCC differs significantly from song to song depending on the number of verses contained therein. To this end, the respondents picked different cost implication. It is however very pertinent to know that majority of the respondents constituting 61.13% spent less than #1000 to produce a song for the church. 22.82% spent more than #1000 but less than #5000. On the average therefore, the respondents spent between #1000 and #5000 to produce a song. The cost normally comes from writing, typing and printing of such songs. This is multiplied by the number of songs produced and the various levels such as church, catechism, consistory, classis and the entire Tiv congress where the songs are usually presented in an annual congress.

Table 6.7 How much money is realized from sale of a Song

Sale of Song Frequency Percentage Cumulative Percentage
Less than #1000 22 23.91 23.91
Less than #5000 22 23.91 47.82
Less than #10000 19 20.66 67.86
More than #10000 29 31.52 100
Total 92 100  

     Source: Field Survey, 2019

In Table 6.7 above, while some of the respondents earned between #1000 and #5000 from the sale of their gospel songs, majority of the respondents representing 31.52% sold their songs at more than #10000. The cost-benefit analysis here relates to comparing the average production cost (AC) and the average sales (AR) of musical songs. That is #1000 < #10000. It is therefore profitable in writing/composing musical songs for the church, even though the spiritual motive is adjudged ahead of the profit motive.

Table 6.8 Do you know of Copyright Law on Musical Songs

Response Frequency Percentage Cumulative Percentage
Yes 64 69.57 69.57
No 28 30.43 100
Total 92 100  

             Source: Field Survey, 2019.

In Table 6.8 above, 60.57% of the respondents are very much aware of the existence of copyright law on musical songs. This is succinctly depicted by the bar and pie chart below:

 

Table 6.9 Do you know Copyright law exist and are strong to protect your songs.

Response Frequency Percentage Cumulative Percentage
Strongly Agree 22 23.91 23.91
Strongly Disagree 4 4.39 28.3
Agree 20 21.62 49.92
Disagree 38 41.30 91.22
Undecided 8 8.78 100
Total 92 100  

     Source: Field Survey, 2019

SA represents strongly agree, SD is strongly disagree, AG is simply agree, DG is disagree while UD is undecided. Table 6.9 and the bar chart above seek to unveil whether or not the respondents are aware of the capacity of copyright law to protect their songs from piracy. From their responses, it can be seen that majority of the sampled respondents representing 41.30% disagreed with the effect of copyright law on their songs.

Table 6.10 Do you know that your songs are been pirated?

Response Frequency Percentage Cumulative Percentage
Yes 81 88.04 88.04
No 11 11,96 100
Total 92 100  

             Source: Field Survey, 2019.

In Table 6.10 above, the respondents accepted that their songs are been pirated. This is usually done by the recorders and marketers without the consent of the owners which motive is purely profit making and to deprive the song owners of the fruit of their labour. This is a clear contravention of Section 28(a) of the Copyright Act of Nigeria that such constitutes an infringement on one’s creative right. See pictorial representation for more details:

 

 

 

Table 6.11 Are you always consulted before your songs are recorded and sold out?

Response Frequency Percentage Cumulative Percentage
Yes 19 20.66 20.66
No 73 79.34 79.34
Total 92 100  

             Source: Field Survey, 2019.

In further violation of Section 28(a) of the Copyright Act, majority of the respondents were not consulted before their songs were mass produced and sold to the members of the public. 79.34% of the respondents opted for this option as against 20.66% who accepted that they were actually consulted before their spiritual works were duplicated and used. A bar chart is depicted to further drive this idea home.

 

 

Table 6.12 Have you ever received royalty payment for composing songs?

Response Frequency Percentage Cumulative Percentage
Yes 00 00 00
No 92 100 100
Total 92 100  

             Source: Field Survey, 2019.

In Table 6.12 above, all the respondents in a unanimous view rejected the notion that they were been given royalty payments by the church for composing musical songs. They contended that their spiritual talent or endowment from God is free and is freely donated in serving God, even though; profit is made outside the church.

Table 6.13 Are you happy that your songs are been pirated

Response Frequency Percentage Cumulative Percentage
Yes 12 13.05 13.05
No 80 86.95 100
Total 92 100  

             Source: Field Survey, 2019.

 

In Table 6.13 and charts above, majority of the respondents are not happy that their songs are been pirated on a daily basis for profit motive. They expressed their anger on the church for depriving them of any royalty payment at the expense of pirates who reproduce and distribute their songs openly and loudly across the country for monetary gains. At least, 86.95% of the respondents opted for such opinion. This led to the subsequent question which the researcher sought to know whether or not the church or the choir regulators are aware of the plight of writers/composers in the hands of pirates. Detailed responses as captured in Table 6.14 below. A perusal look Table 6.14 below shows that the church is aware of piracy and massive abuse with outright disregard to copyright law, the musical songs composed by their members.  As can be seen, 58.69% of the respondents agreed that the church is fully aware of continued piracy.

 

 

 

Table 6.14 Is the church aware and have taken action to control piracy of songs

Response Frequency Percentage Cumulative Percentage
Yes 54 58.69 58.69
No 38 41.31 100
Total 92 100  

             Source: Field Survey, 2019.

6.4 Role of Policy Makers in Protecting Copyright Law in URCC

Table 6.15 Is the URCC aware of copyright law and piracy of her songs

Response Frequency Percentage Cumulative Percentage
Yes 15 75 75
No 5 25 100
Total 20 100  

             Source: Field Survey, 2019.

 

The respondents’ view in Table 6.15 and the chart above is a replica of the view in Table 6.14. Majority of the church policy makers or church leaders representing 75% responded positively that the church is aware of piracy and copyright law to protect her songs. Thus, the view by writers and composers that the church is aware of piracy and abuse of copyright laws does not contradict the opinion and view of the church leaders. If the church is aware, what then is the church doing in that regard? This has taken us to Table 6.16 where the researcher seeks to unravel the church doctrine on this ugly development.

 

Table 6.16 What is the church doctrine concerning piracy

Response Frequency Percentage Cumulative Percentage
Prohibited 2 10 30
Encouraged 00 00 30
No Regulation 12 60 90
Condemned 6 30 100
Total 20 100  

Source: Field Survey, 2019.

Where P stands for prohibited, E for encouraged, N for no regulation and C for condemned. In Table 6.16 and chart above, 60% of the respondents contended that the church has no notable regulation on piracy of her songs. 30% of the respondents said, piracy is condemnable in its entire ramification and 10% of the respondents said it is prohibited. This result signifies that even though, the church is aware of piracy and other dimensions of abuse of copyright law on her songs, it has not taken concrete legal steps in seeking adequate redress. The church being a spiritual organization may feel reluctant in seeking for absolute implementation of the law. As such, the pirates are peacefully operating illegal business on church properties.

 

Table 6.17 Is gospel musical development a crucial component of church development

Response Frequency Percentage Cumulative Percentage
Yes 20 100 100
No 00 00 100
Total 20 100  

             Source: Field Survey, 2019.

To finalize discussion on this research, it was pertinent to know if musical development is a crucial component of church development in the URCC. In a unanimous agreement, the church leaders accepted that musical development constitute one of the greatest pillars of church development. As such, songs and other musical instruments have gradually gained prominence in the church due to the huge importance the church has attached to the choir as an integral part of Sacred Liturgy.

It is further contended that when the word of God is necessarily communicated by the imperfect medium of human language, the essential message of the mysterium must remain unutterable and uninterpretable. Two media that can help bridge this gap between humanity and divinity are silence and music. Music in particular, can illuminate the essential elements of the text to aid understanding. Sacred music or songs therefore makes the word of God accessible to the congregation and at the same time leading them onwards to “lift up their hearts”.

6.5 Discussion of Findings

The research was undertaken to investigate the level of awareness among gospel songs artists of the URCC and the extent to which copyright law can protest their creative and intellectual products. To do so, a cost-benefit analysis approach was deemed pertinent while a descriptive statistical analysis was adopted to analyze the primary data which was gathered from 112 respondents out of which 92 were writers/composers of musical songs and 20 were policy makers as church leaders.

The results showed the age distribution of the respondents to favour the young people than the old. It specifically signifies that energetic young people between the age bracket of 18 and 35 years have dominated gospel music in the URCC during the period of the study. The sex distribution shows that the male population dominated the sampled respondents representing 71.42% while the female population was only left at 28.58%. On educational attainment, the result shows that majority of respondents sampled were educated up to first degree level. They constituted 45.54% of the respondents while NCE/Diploma holders represented 36.60%. Altogether, 89.13% of the respondents wrote/composed and submitted between 1-10 songs to the church, which is in line with the practical evidence that some respondents have submitted more than 16 songs to the church. Ephraim Eryum Zuzu, Chia Diogo and Timothy Ter Adule are among the numerous writers/composers who have submitted more than 16 songs to the church over the years.

The cost- benefit analysis done relates in comparing the average production cost (AC) of a song and the average sales (AR) of a musical song. That is #1000 < #10000. It was thus profitable in writing/composing musical songs for the church, even though the spiritual motive was adjudged ahead of the profit motive. In a related development, the respondents accepted that their songs were been pirated. This was usually done by the recorders and marketers without their consent purely for profit making.

The policy makers or church leaders representing 75% responded positively that the church is aware of piracy and copyright laws to protect her songs. Although, the church is aware of piracy and other dimensions of abuse of copyright law of her songs, it has not taken concrete legal steps in seeking adequate redress in as much as musical development constitute one of the greatest pillars of church development.

7.1 Conclusion

It can be concluded on the basis of reviewed literature and data analysis that, it is relatively profitable to write and compose a song for use in the URCC even though the motive is not usually profit driven. It is further concluded that piracy exist to the knowledge of both the writers/composers and policy regulators but no concrete legal action is taken to remedy the ugly development. The church is reluctant in seeking enforcement of the relevant provisions of the Copyright Act to the detriment of the musical gospel artists and at the benefit of pirates who operates freely with limited or no restriction at all from the church.     

7.2 Policy Recommendations

  1. In line with modernity, there is the need for the church to create or organize aggressive campaigns aimed at educating their members particularly writers/composers of gospel songs of the negative effects of piracy on their intellectual endowment. This will be capable of blocking all loopholes or leakages through which musical songs are leaked to the pirating society.
  2. There is the urgent need for the church to put in place a taskforce to regulate the production and sale/distribution of her musical works. This will financially benefit the writers/composers and the church at the expense of the pirates.

iii. The church must make a definite pronouncement about her policy on piracy and must be willing to take the necessary legal steps in seeking enforcement of the relevant provisions of the Copyright Act. This will send the necessary signals to those whose motive is to reap where they did not sow.

  1. The fact that musical songs are a crucial component of church development, the church must initiate a way of motivating the artist. Motivation is the key to optimum performance in most organizations and the church must think of a motivating package no matter how little it is.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Questionnaire on “Cost benefit analysis of Gospel Musical practice among the Universal Reform Christian Church (URCC/NKST) of Nigeria: Survey on Creative Right Holders’ Development

 

Dear Respondent,

 

I am Dr. Joseph Jar Kur, An Associate Professor in the Department of International Law and Jurisprudence, Benue State University, Makurdi. I write to seek your indulgence to kindly fill this questionnaire to enable me   gather data for the above academic research for my own development.  This questionnaire is intended to gather data for research on the above topic. It is a private research for academic purposes please. The information provided in this questionnaire will be held confidential and used for research purpose only.

 

Questionnaire for Right Owners and Composers

Section A: Descriptive Statistics

  1. Age (a) 18 – 25 years [   ]       (b) 26 – 35 years [   ]            (c) 36 – 49 years [   ]       (d) 50 years and above [   ]
  2. Sex (a) Male [   ]        (b) Female [   ]
  3. Educational Qualification

(a) First Scholl Leaving Certificate [   ]           (b) School Certificate   [   ]

(c) NCE/Diploma        (d) First Degree [   ]        (e) Postgraduate Degree [   ]

(e) None of the above [   ]

Section B: Writers/Composers

  1. How long have you been writing/composing gospel songs?

(a) less than 2 years [   ]  (b) 2-5 years  [   ]   (c) 5-9 years   (d) 10 years and above [   ]

  1. How many songs have you composed so far?
  • 1-5 [   ]      (b) 6-10  [   ]     (c) 11-15 [   ]    (d) 16 – above [   ]
  1. How many songs are received and accepted for use in NKST/URCC church?
  • 1-5 [ ]    (b) 6-10 [   ]    (c) 11-15 [   ]     (d) 16 – above [   ]
  1. How long does it take you to compose a song
  • 1 year [ ]    (b) 2-5 years [   ]    (c) 6-10 years [   ]
  1. How much does it cost you to compose a song?
  • Less than N1,000 [ ]    (b) less than N5,000 [   ]    (c) less than N10,000 [   ]

(d) more than N10,000 [   ]

  1. How much money have you realized from sale of one of your songs?

(a) Less than N1,000 [   ]    (b) less than N5,000 [   ]    (c) less than N10,000 [   ]

(d) more than N10,000 [   ]

  1. Do you know of copyright in music?
  • Yes [   ]      (b) No [   ]
  1. Do you know that you have copyright over your songs?
  • Yes [ ]      (b) No [   ]
  1. Do you write down your composed songs before performing same?
  • Yes [ ]     (b) No [   ]
  1. Do you know that copyright laws exist and are very sound and strong to protect your songs in the church?
  • Strongly agree [ ]     (b) Strongly disagree [   ]    (c) Agree [   ]   (d) disagree [   ]

(e) Undecided

  1. Have you ever received as Royalty payment from the church for composing gospel songs?
  • Yes [ ]     (b) No [   ]    (c) Unaware
  1. Do you know that your songs are recorded by third parties and sold to the general public for monetary consideration?
  • Yes [ ]    (b) No
  1. If your nos 14 is Yes, how much have you ever being paid as Royalty?

…………………………………………………………………………………………

  1. Do you know of privacy?
  • Yes [ ]     (b) No [   ]
  1. Have you ever being consulted and permission granted to the recording and subsequent sale of the recordings by you?
  • Yes [ ]      (b) No [   ]
  1. If your (answer to question 17) is yes, are you happy that your songs are been pirated?
  • Yes [ ]     (b) No [   ]
  1. If your answer to question 18 is No, have you ever reported the matter to an authority?
  • Yes [ ]     (b) No [   ]
  1. Do the NKST/URCC church taken action to control piracy of your songs to your knowledge?
  • Yes [ ]    (b) No [   ]

Questionnaire on “Cost benefit analysis of Gospel Musical practice among the Universal Reform Christian Church (URCC/NKST) of Nigeria: Survey on Creative Right Holders’ Development

 

Dear Respondent,

 

I am Dr. Joseph Jar Kur, An Associate Professor in the Department of International Law and Jurisprudence, Benue State University, Makurdi. I write to attest that, I am a bonafide member of NKST.

 

This questionnaire is intended to gather data for research on the above topic. It is a private research for academic purposes please. The information provided in this questionnaire will be held confidential and used for research purpose only.

 

Questionnaire for Policy Makers

Section A: Descriptive Statistics

  1. Age (a) 18 – 25 years [   ]       (b) 26 – 35 years [   ]            (c) 36 – 49 years [   ]       (d) 50 years and above [   ]
  2. Sex (a) Male [   ]        (b) Female [   ]
  3. Educational Qualification

(a) First Scholl Leaving Certificate [   ]           (b) School Certificate   [   ]

(c) NCE/Diploma        (d) First Degree [   ]        (e) Postgraduate Degree [   ]

(e) None of the above [   ]

Section B: Policy Makers

  1. Is the NKST/URCC church aware of copyright laws and piracy in the songs it use?
  • Yes [ ]    (b) No [   ]
  1. If yes, what is the main church doctrine concerning songs piracy?
  • Prohibit [ ]    (b) Encouraged [   ]   (c) No regulation  [   ]   (d) Condemnation [   ]
  1. Does your church pay royalties to writers/composers of gospel songs it use?
  • Yes [ ]     (b) No [   ]
  1. What is the general role of the church in gospel musical development?

…………………………………………………………………………………………..

  1. Is gospel musical development a crucial component of church development?
  • Yes [ ]    (b) No [   ]

 

Questionnaire on “Cost benefit analysis of Gospel Musical practice among the Universal Reform Christian Church (URCC/NKST) of Nigeria: Survey on Creative Right Holders’ Development

 

Dear Respondent,

 

I am Dr. Joseph Jar Kur, An Associate Professor in the Department of International Law and Jurisprudence, Benue State University, Makurdi. I write to attest that, I am a bonafide member of NKST.

 

This questionnaire is intended to gather data for research on the above topic. It is a private research for academic purposes please. The information provided in this questionnaire will be held confidential and used for research purpose only.

 

Questionnaire for Marketers/Distributors

Section A: Descriptive Statistics

  1. Age (a) 18 – 25 years [   ]       (b) 26 – 35 years [   ]            (c) 36 – 49 years [   ]       (d) 50 years and above [   ]
  2. Sex (a) Male [   ]        (b) Female [   ]
  3. Educational Qualification

(a) First Scholl Leaving Certificate [   ]           (b) School Certificate   [   ]

(c) NCE/Diploma        (d) First Degree [   ]        (e) Postgraduate Degree [   ]

(e) None of the above [   ]

Section B: Marketers/Distribution

  1. Why do you specialize in marketing/distribution NKST songs?
  • Financial gains [ ]    (b) Employment [   ]   (c) Directives [   ]  (d) contract [   ]
  1. Are you aware of copyright laws on the songs you market/distribute to the public law
  • Yes [ ]    (b) No [   ]
  1. Do you always contact the rightful owners of the songs before recording/distributing them to the public?
  • Yes [ ]    (b) No [   ]
  1. Are you aware that piracy is a criminal offence and is punishable by law?
  • Yes [ ]    (b) No [   ]
  1. Do you know that the right owners of the songs cost during song compositions that desires some financial benefits? (a) Yes [   ]    (b) No [   ]

Questionnaire on “Cost benefit analysis of Gospel Musical practice among the Universal Reform Christian Church (URCC/NKST) of Nigeria: Survey on Creative Right Holders’ Development

 

Dear Respondent,

 

I am Dr. Joseph Jar Kur, An Associate Professor in the Department of International Law and Jurisprudence, Benue State University, Makurdi. I write to attest that, I am a bonafide member of NKST.

 

This questionnaire is intended to gather data for research on the above topic. It is a private research for academic purposes please. The information provided in this questionnaire will be held confidential and used for research purpose only.

 

Questionnaire for level of awareness among the consuming Public and Church Members

Section A: Descriptive Statistics

  1. Age (a) 18 – 25 years [   ]       (b) 26 – 35 years [   ]            (c) 36 – 49 years [   ]       (d) 50 years and above [   ]
  2. Sex (a) Male [   ]        (b) Female [   ]
  3. Educational Qualification

(a) First Scholl Leaving Certificate [   ]           (b) School Certificate   [   ]

(c) NCE/Diploma        (d) First Degree [   ]        (e) Postgraduate Degree [   ]

(e) None of the above [   ]

Section B:

  1. Are you aware of copyright law?
  • Yes [ ]    (b) No [   ]
  1. Are you aware of copyright in gospel music (Astam aa NKST)?
  • Yes [ ]    (b) No [   ]
  1. Astam aa NKST (gospel songs) are an indispensable component of the church service
  • Strongly agree [ ]   (b) Strongly disagree [   ]  (c) Agree [   ]   (d) Disagree [   ]

(e) Undecided [   ]

  1. Are you are of (Astam aa NSKT) gospel music copyright infringement?
  • Yes [ ]     (b) [   ]

 

  1. To what extent are you aware of gospel music content infringement?
  • Great extent [  ]    (b) Some extent [   ]    (c) Little extent [   ]   (d) No extent [   ]
  1. Ways in which astam aa NKST being infringed include recording of the songs on mobile sets, radio cassettes recorders, MP3 etc. at MKOHOL of atsam (NKST choirs) etc
  • Strongly agree[ ]  (b) Strongly Disagree [   ]  (c) Agree [   ] (d) Disagree [   ]

(e) Undecided [   ]

  1. Since I’m using astam aa NKST as a method of spreading the gospel of God, I do not understand that I may be infringing on the creative rights of the composers
  • Strongly agree [ ]    (b) Strongly disagree [   ]  (c) Agree [   ]  (d) Disagree [   ]

(e) Undecided [   ]

  1. Where do you acquire or purchase an NKST gospel song in cassette or CD?
  • Songwriter [ ]    (b) Song marketer [   ]    (c) Record companies [   ]
  1. Gospel Authors and Composers make money from royalties on cassettes or disks sold; Royalties on air play; Royalties on church performance; Royalties on recording; Royalties on commercial opportunities for their work
  • Strongly agree [ ]    (b) Strongly disagree [   ]   (c) Agree [   ]     (d) Disagree [   ]

(e) Undecided [   ]

 

 

 

 

 

Associate Professor, Department of International Law and Jurisprudence, Benue State University, Makurdi-Benue State-Nigeria +2348035917744  (jkur@bsum.edu.ng)

 

[1] Piracy in common usage refers to robbery in the high seas but figuratively, it is used to label copyright infringements. Piracy therefore is the illegal reproduction of copyright works.

[2] This involves facsimile reproduction of the original sound recording without the permission of Owner. Counterfeit copies do contain the same materials as the legitimate releases. In most instances, the distinguishing factor between the two is that the sound or visual quality of the illegal reproduction is usually inferior.

[3] A bootleg recording or bootlegging is an audio or video recording of a performance that was not officially released by the artist or under other legal authority. The process of making and distributing such recordings is known as bootlegging. See Black’s Law Dictionary 8th edn

[4] CN Osigwe Contemporary Nigeria Church Music: A Search for True Identity and Cultural Relevance
(2016)4 No.2 International Journal of Music and Performing Arts 67

[5]  Kombol, Alom and Ogi “ Influence of Idyu Ka Inya I Teen Ga on selected voters during the 2015 Makurdi/Guma Federal Constituency” in Adejir&Udu, Tiv Language,Culture and Political Economy (Gold Ink Company)281

[6] Webber as cited in (n2)

[7] Nietsche as cited in (n2)

[8] Oxford Advanced Learner Dictionary 816

[9] Section 39 Copyright Act,Cap 28 LFN 2004

[10] David Bainbridge, Intellectual Property Law ( Pitman Publishers co.1991)19

[11] To m Crone as quoted in DF Tom, Intellectual Property Rights and Musical Practice in Nigeria(2008) LCULJ Vol 1 p96

[12] Section 39(n1)

[13] Uwe&Flick, An Introduction to qualitative research, 3rd edn (Oxford University Press)20

[14] <https://en.wikipedia.org/wiki/Nigeria>.

[15] Cap LFN 2004

[16] <https://en.wikipedia.org/wiki/Tiv_language>

[17] Annger C NKST Church Kaduna Today ( MO Press 2011)p7

[18] <https://en.wikipedia.org/wiki/Synod>

[19] <http://www.unimkar.edu.ng/>.

[20]

[21] The Holy Bible in Tiv is published as Icighan Bibilo by The Bible Society of Nigeria with full complement of copyright with ISBN 978-978-2492-36-4 Tiv 053

[22]  Akpenpuun Dzurgba, ‘The Tiv and their Culture’ (John Archers Pubs Ltd 2011) 96

[23]  TT Udu& A Dega ’The Church, Formal Education and the Development of Tiv Language’(n2)

[24] Ayila Orbunde p22

[25] Sinod extract minutes no 510 of 1962

[26] Senod extract of minutes 777 of 1964

[27] Ayila Orbunde P52

[28] Produced and printed by Lamp& Word Books an NKST Literature Dept book

[29] Scripture Union book of L.A. Comm Evangelical Publishers

[30](2015) Jacki Publishers) Compilation by Low Level Classes, Makurdi

[31] JK Udensi,”The Efficacy of Gospel Music in the Unity Church, Nigeria”

[32] King James Bible Version

[33] See extract of minutes of the 2nd Synod of 1958, Resolution 11 as cited in Ayila Orbunde, Tom U Atsam Ken NKST (Lord Shark Communications Ltd 2017) 84-85

[34] Namely the guitar, brass, percussion and keyboard family such as piano,organ, saxophone etc

[35] These are self-sounding instruments which one have to shake them, strike them, or stamp them on one’s feet before they can produce sound i.e. agogo, shekere, udu, agidigbo.

[36] These are instruments made from animal skin and bound round a hollow wood.

[37] These are instruments that make use of strings before they can produce sound i.e. goje, zither

[38] These are instruments that produce sound by means of the air

[39]  It is a set of crafted wooden musical instrument used to compliment festive events which the drummer strike and beat it in a particular pattern to produce the desired sound.

[40] Resolution 11 of sub-committee minutes of 1964 in Ayila Orbunde

[41] Resolution of sub-committee minutes of 1981 in Ayila Orbunde

[42] 1983( it is an instrument like a violin, used for music and dances in conjunction with drums at festivals and dance occasions)

[43] 1984

[44] 1989( kakaki is a royal trumpet used in many west African groups in Nigeria, Niger, Chad and Burkina Faso. This is an instrument used to convey special messages to the people of a community)

[45] 1990

[46] 1997

[47] Askew MK Music, politics and social change in coastal East Africa ( George Washington University: 2003)

[48] Askew MK (n44)

[49] Section 1(1) of the Copyright Act, Cap C.28 LFN, 2004

[50] Section 1(2) ibid

[51] JM Nasir, DN Jangkam and AA Adewole”Online Music and movies and new technological Devices: Challenges confronting collecting societies in Nigeria (2016)36 ABULJ 184

[52] Section 5(1)(a) of the Copyright Act

[53] Section 15

[54] First schedule to the Act

[55] Section 6(a) of the Act

[56]JO  Asein , “Basic Notions of Copyright for Customs Officials” being paper delivered on 29th-31st july,1998 conference organized by NCC and NCS.

[57] Ikechukwu Magnus, Copyright Law (Lagos:Magna press Ltd 1998) p19

[58] Austin V Columbia Gramaphone co (1923)156 LT journal

[59] Wood V Boosey (1808)LR 3 QB

 [60] JO Asein, Nigerian Copyright Law and Practice,2nd Edn 59

[61] (1981)RPC 337

[62] Quoted from Ocheme P. p47 see also Section 5(1) of the Copyright Act, 2004

[63] Mcjohn Stephen, Intellectual Property,3rd Edn (New york: Aspen Publishers 2009)pp42-43

[64]  Anikulapo Kuti V Iseli FHC/L/CS/720/2000

[65] John Asein  Nigerian Copyright Law and Practice,2nd Edn 61

[66] Section 5(1) of the copyright Act

[67] Section 110(3) of the U.S.Code

[68] Cindy Hill “Music Copyright Law for Church praise and Worship  ”http\\info.legalzoom.com visited 22.5.2018

[69] ibid

[70] Social media networks include Facebook, Google+, LinkedIn, Pinterest, Twitter, WasApp, YouTube, Vine

[71] [71] In the music industry, a music publisher or a publishing company is responsible for ensuring the songwriter and composers receive payment when their compositions are used commercially. They also secure commissions for music and promote existing compositions to recording artists.

[72] A music producer oversees and manages the sound recording and production of a band or performers music, which may range from recording one song to recording a lengthy concept album.

[73] A performer is an entertainer like a musician, singer that creatively expresses their artistic talent to an audience. They perform before live audiences at a show or concert.

[74] Section 51 of the Act

[75] ibid

[76] Section 26(a)

[77] Section 26(b)

[78] Dorcas Odunaike, Perfomer’s Rights in Nigeria( Princeton Books 2017)105

[79] NKST Policy of November 2012

 [80] Section 24(n79) p7 emphasis mine

[81] Section 24(b)(n79)  emphasis mine

[82] Section 24(c)(n79)

Offences and Penalties for Violations under the Public Procurement Commission Law of Benue State 2020: Issues, Views and Perspectives

By

Joseph J Kur, PhD

1.1      Introduction

The Executive Governor of Benue State signed into law, the ‘Public Procurement Commission Law of Benue State 2020[1]. The enacted PPCLBS came into force on the 6th Day of August, 2020. The Law like its precursor, The Public Procurement Act 2007, has fundamentally, altered the landscape of procurement of Goods, Works and Services by all tiers of government namely, the Federal Government and her Agencies, the State Government and all procuring entities and the Local Governments that share from the Consolidated Revenue Funds under the Constitution of Federal Republic of Nigeria (CFRN) 1999 (as amended). The Public Procurement Commission Law of Benue State (PPCLBS) like its precursor has introduced novel and new conditions, procedures and methods of contract awards (otherwise known as procurement) and government property disposals with grave criminal consequences when acted in defiance of same. The merits of public procurement practice drive is that, it has done away with the extant financial regulations on procurement based on Ministry of Finances’ Memos, Circulars and Directives that hitherto existed. It is aimed at ensuring due process and accountability, value for money in all government acquisition, integrity and impartiality in public procurement process, elimination of corruption chain, transparency in public spending and expenditures. The law has created previously non existing offences and penalties of procurement with grave strict liability consequences for public officers, bidders, contractors, natural and artificial persons. Under the established law, a Commission is mandated to enforce compliance and liaise with relevant institutions for the effective enforcement of the letters of the law. How effective has it been with the ante dent newness of the law and its penal consequences on public officers, civil servants, bidders, contractors as well as artificial persons?  In evaluating the concept of offence(s) within the context of procurement, the paper will present an overview of public sector procurement in Nigeria; identify corrupt practices in procurement processes and applicable penal sanctions within the ambit of the Public Procurement Commission Law of Benue State. The paper will reference where applicable, the Public Procurement Act 2007 and other similar laws of other states in Nigeria, make analysis of the available case law as decided by the courts in Nigeria.

The paper has equally examined the implications of the law on the third tier of government, particularly, the 23 Local Government Councils in Benue State namely, Ado, Agatu, Apa, Buruku, Gboko, Guma, Gwer-East, Gwer-West, Katsina-Ala, Konshisha, Kwande, Logo, Makurdi, Obi, Ogbadibo, Ohimini, Oju, Okpokwu, Otukpo, Tarka, Ukum,Ushongo and Vandeikya as they draw and share from the Federation’s Consolidated Revenue Funds through the special account called “State Joint Local Government Account” under Section 162(6) of the CFRN 1999 (as amended). The paper also sojourns on the effect of the law on the Benue State House of Assembly and the Benue State Judiciary as independent arms of government that draws substantially their funds from the federation Revenue Funds. Key concept discussions will be the terms ‘offence (s)’, ‘penalty (ties)’, ‘violator(s)’, ‘corruption’, and ‘procurement’ in the context of public procurement.

2.1 Conceptualisation of Terms

2.1.1   Offence(s)

The word ‘offences’ is capture under part XII covering Sections 60(1)-(9) of the PPCL[2] and yet is not defined and not captured by part 1 covering the portions of section 2 of the PPCL titled ‘definition’. Recourse and voyage of same has to be taken elsewhere. Section 2 of the Criminal Code[3] provides that, “An act or omission which renders the person doing the act or omission liable to punishment under the code, or under any act or law is called an Offence”. Under the Penal Code[4], section 28 provides that, “Except where otherwise appears from the context, the word “offence” include an offence under any law for the time being in force”. Under the constitution[5], Section 36(12) provides that, “Subject as otherwise provided in this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law”. The same section provides that, “in this section, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”.

Passionately, offences provided under the PPCL of Benue State are legal and valid and has complied with constitutional requirements. The law has defined what constitute an offence of procurement and procurement processes under Section 60 (3)(i-vii) and (4)-(9), the penalties therein provided and the written law itself is the PPCL validly passed by the Benue State House of Assembly and duly assented to by the Governor of Benue State and properly gazetted  as Benue State Gazette No.35 vol.45, 27th August, 2020. A cursory look at the PPCL, it contains and criminalises certain acts and conducts through the description of words like, contract padding, kickback, splitting of tenders, bid rigging, forgery, alteration, alternation etcetera.

2.1.2 Penalty(ties)

The term penalty is defined to mean a punishment imposed for breaking a law, rule or contract. Penalty and punishment do go together hence Black[6]  defines punishment as any fine, penalty or conferment inflicted upon a person by authority of the law and the judgement and sentence of the court, for some crime or offence committed by him or for his omission of a duty enjoined by law. Professor Samba has argued, purposefully that, this definition, specifically excludes civil penalties redounding to the benefit of an individual. This appears the reason why many limit the burden of punishment to the ambit of the criminal law whose main objective is to penalize and deter offenders in an attempt to eliminate crime from society.[7] This argument appears persuasive in that, the PPCL aside from providing offences equally, provide for remedial or administrative review where there exist omission or breach is alleged by a complainant against a procuring entity by the Commission under Sections 55-56.  Deductive from the foregoing, the word offence and crime in legal jurisprudence are used to denote the same result as referring to a prohibited consequence that attract penal consequences and would in this context be used interchangeably.

2.1.3 Meaning of Procurement and its nexus with Procurement

The PPCL simply defines procurement as ‘acquisition’. This definition is unhelpful to a casual reader. The parent federal law, the Public Procurement Act 2007 equally defines ‘procurement’ simply as ‘acquisition’. The PPCL has expanded the definition ‘procurement’ simpliciter when it defined ‘Public Procurement’[8] to mean, the acquisition by any means of goods, works and services by the government. Transparency International[9] amplifies the meaning of procurement as the acquisition of consumption or investment, goods or services. The Organisation for Economic Cooperation and Development (OECD)[10], describes procurement as the process of identifying what is needed, determining who is the best person or organization to supply these needs, and ensuring that what is needed is delivered to the right place, at the right time, for the best price and that all of this is done in a fair and open manner.

The World Bank refers to public procurement as the acquisition of goods, services and works by a procuring entity using public funds. Deductively, Procurement may mean a way government (either, Federal, State or Local) purchase products or services from private vendors. These can be something tangible such as computers, motor cars, drugs etcetera or works construction or purchase of something intangible, such as consulting services or technology development.  Public Sector procurement is at the heart of delivering services to the citizenry and involves the management of huge financial resources.  Sound public procurement policies and practices are essential elements of good governance as they ensure the efficient and effective utilization of scarce resources to meet the needs of the people while poor policies and practices create room for corruption, wastage and sabotage of government’s good intentions.

2.14 The concept of Corruption and its Nexus with Procurement

The concept of corruption is a noun from a verb of the word corrupt which means dishonest, accepting bribes, immoral, wicked, and decaying. Black laws Dictionary defines corruption as “depravity, perversion, or faint, an impairment of integrity, virtue, or moral principle, the impairment of a public official’s duties by bribery”. The act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others, a fiduciary or official use of a station or office to procure some benefit either personally or for someone else contrary to the rights of others. Bairaman J. in Bioraku V. Police[11] defined corruption as: The receiving of a benefit or reward or inducement to sway or defect the receiver from the honest and impartial discharge of his duties.

The nature of corruption is surreptitious and so it can only be identified in terms of its ingredient, scope and character. Adeyemi[12] conceding to surreptitious nature of corruption and the problem of exact definition observed, “You can only measure what you can express in numbers otherwise your knowledge can be conveniently described as unsatisfactory”. Olusoga defines corruption as “the gain of money, materials/financial resources, contract, employment, status, fame, power or physiological (physiological satisfaction through illegal and or immoral practices such as bribery, fraud, abuse or office robbery etc.)”. Oyebode defines corruption as  “undue advantage, abuse of office, undeserved favour obtained through manipulation of rules or status; any untoward conduct occasioned by grant or promise of same”. While Gboyega[13], argues that, corruption is any discussion, act or conduct that subverts the integrity of people in authority or institution charged with promoting, defending or sustaining the democratization process, thereby undermining its effectiveness in performing its services assigned role.

The corrupt practices and other related offence act defining corruption to include bribery, fraud and other related offences. Corruption no doubt is any dishonest conduct expressed through the manipulation of proper norms for selfish interest and at the expense of public good. It is not a phenomenon common to public officers only as corruption can be found in any strata of society. The World Bank has defined corruption as when: “public office is abused for private gain, when an official accepts, solicits or extorts a bribe. It is also abused when private agents actively offer bribes to circumvent public policies and processes for competitive advantage and profit. Public office can also be abused for personal benefit even if no bribery occurs through patronage and nepotism, the theft of state assets or the diversion of state revenue”. The Vision 2010 Committee explains Corruption as: ‘all those improper actions or transactions aimed at changing the normal course of events, judgment and position of trust’.

2.2 Corruption and Procurement Process

There exist factual nexus between corruption and procurement that undermine the procurement integrity processes. Corruption in the procurement process therefore has a serious negative impact on the development and well-being of a nation because outside of salaries and social benefits, procurement accounts for the largest share of public expenditure at all tiers of government.[14]  The enormous amounts of money involved in procurement present an almost irresistible lure for corrupt practice because of the tremendous opportunity for bribes, kickbacks and other payoffs.  Corruption in procurement oftentimes involves a network of persons. The following is a typical example of a chain of corruption in project contract awards:[15]

 

  1. a) Project Conception – Contractor influences project to suit him
  2. b) Project Design    – Consultant over-designs or designs to suit a particular product or contractor’s technology
  3. c) Project admitted into National Budget – Contractors/consultants lobby legislative assembly to over – appropriate funds
  4. d) Project Implementation – Consultant manipulate figures/documents/process to suit pre-arranged outcome usually with the connivance of the MDA
  5. e) Project Execution  – Contractor delivers poor quality job, consultant looks the other way, quantity overstated. Consultants/contractor/MDA collude
  6. f) Project Completion –   Auditor admitted into the chain. Auditor confirms project completed.
  7. g) Outcome: (corruption) – Consultant, contractor, MDA, all happy, project delivered at high cost when good poor quality of work, value for money lost, COUNTRY LOSES

 

At the procurement stages, sharp practices such as collusive Agreements whether successful or not with suppliers, contractors or service providers in respect of tender bids, proposals or quotations, altering any procurement document, bribery, kick-back, inflated costs, bid-rigging etcetera also occur at micro levels of procurement; these and the afore-painted macro scenario play out in Nigeria as well as several countries around the globe where the procurement environment is porous, leading to gargantuan costs without corresponding value, inefficient service delivery and huge indebtedness.

3.1 OFFENCES AND SANCTIONS UNDER THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT 2000

The Corrupt Practices and Other Related Offences Act 2000 was signed into law on 13th June 2000, establishing the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and empowering it to carry out enforcement, prevention and education against corruption.  The Act 2000 specifies offences of corruption and corresponding sanctions.  Almost all these offences relate in one way or the other to the procurement function, a sample of which would is given below:[16]

Section Offence Punishment in Jail Terms/ Fine
8 Accepting gratification by an official 7 Years
8(2) Giving or accepting gratification through an Agent 7 Years
9 Corrupt offers to public officers 7 Years
10 Corrupt demands by person(s) 7 Years
Section Offence Punishment in Jail Terms/ Fine
12 Holding private interest in a contract or investment connected with the office of a public officer

 

7 Years
15 Deliberate frustration of investigation by the Commission 7 Years
16 Making false statements or returns in respect of money or property received 7 Years
18 Bribery of public officers in relation to voting or performance of duty 5 Years with hard labour
19 Using office or position to gratify or confer unfair advantage on oneself, relation or associate 5 Years without option of fine
21 Bribery in relation to auctions 3 Years
22(3) Inflation of the price of goods and services 7 Years and N1 million fine

 

22(4) Award of contract without budget provision, approval and cash backing 3 Years and N100,000 fine
22(5) Transferring money from one vote to another (Virement) 1 Years or N50,000 fine

Source of Table is culled from Rasheedat A Okoduwa

4.1 Offences and Penalties Relating to Procurement under the Public Procurement Commission Law of Benue State

The Law on procurement contains provisions for sanctions mechanism which seeks to make its implementation effective. The category of persons who may be liable for offences under the law are , public officers, bidders, contractors, natural and artificial persons.

Section 60(1) of the law creates an offence and penalty for “any persons” not being a ‘public officer’[17] in the services of Benue State Government. This section covers persons who may not be public servant but would include parties such as supplier, contractor or service provider, who have become particeps criminis (partner in crime)  in the crime. The section provides for a minimum of 5 years and maximum of 10 years without an option of fine. The Section provides:

“Any person not being a public officer who contravenes any provision of this Law commits an offence and is liable on conviction to term of imprisonment not less than five (5) years but not exceeding ten (10) years without an option of fine”. The import of the foregoing sentencing process is that, the court will at this stage take measures for criminal wrongdoers conduct and impose upon them sanctions in accordance with the law (and in this case without an option of discretion) for the purpose to protect the society from the dangerous action of an offender, to assist as much as possible the victims of a crime, to reform the offender and to prevent other people from criminal activity.  Section 60(2) provides for the jurisdiction of court capable of trying the offence under the Procurement proceedings. The section provides: “Any offence in contravention of this Law shall be tried by the High Court”.

Section 60(3) creates and provide a plethora of offences ostensibly that may be committed by a Public Officer[18] in the course of public procurement, procurement proceedings and or acquisition. The Section provides that: the following shall also constitute offences under this Law-

  • entering or attempting to enter into a collusive agreement, whether enforceable or not, with a supplier, contractor or service provider where the prices quoted in their respective tenders, proposals or quotations are or would be higher than would have been the case has there not been collusion between the persons concerned;
  • to conduct or attempt to conduct procurement fraud by means of fraudulent and corrupt acts, promises, threats, unlawful influence, undue interest, agreement, favour, bribery or other actions;
  • directly or indirectly attempting to influence in any manner the procurement process to obtain an unfair advantage in the award of a procurement contract;
  • splitting of tenders to enable the evasion of monetary thresholds set;
  • altering any procurement document with intent to influence the outcome of a tender proceedings;
  • uttering or using fake documents or encouraging their use; and
  • wilful refusal to allow the Commission or its officers to have access to any procurement records.

(4)        Any person whilst carrying out his duties as an officer of the Commission, or any procuring entity, who contravenes any provision of this Law commits an offence and is liable on conviction to a cumulative punishment of-

  • a term of imprisonment of five (5) years without any option of fine and
  • Summary dismissal from government services.

 

(5)        Any legal person that contravenes any provision of this Law commits an offence and liable on conviction to a cumulative penalty of-

  • debarment from all public procurement for a period not less than five (5) years;
  • a fine equivalent to 25% value of the procurement in issue.

 

(6)        Where any legal person shall be convicted pursuant to subsection (5), every Director of the Company as listed on its records at the Corporate Affairs Commission shall be guilty of an offence and is liable on conviction to a term of imprisonment not less than three (3) years but not exceeding five (5) years without an option of fine.

(7)        An alteration pursuant to subsection 3(f) shall include-

  • insertion of documents such as bid security or tax clearance certificate which were not submitted at bid opening; and
  • request for clarification in a manner not permitted under this Law.

(8)        Collusion shall be presumed from a set of facts from which it can be assumed that there was an understanding, implicit, formal or informal, overt or covert under which each person involved reasonably expected that the other would adopt a particular course of action which would interfere with the faithful and proper application of the provisions of this Law.

(9)        Bid rigging pursuant to subsection (3)(e) of this Section means, an agreement between persons whereby-

  • offers submitted have been pre-arranged between them; or
  • their conduct has had the effect of directly or indirectly restricting free and open competition, distorting the competitiveness of the procurement process and leading to an escalation or increase in costs or loss of value to the State Treasury.

A summation of these offences include, entering or attempting to enter into a collusive agreement for the increasing of prices of goods, services or construction; conducting procurement fraud through undue influence, interest favour, bribery and corruption; contract splitting; unduly influencing procurement proceedings; bid rigging; uttering  and using fake documentations; altering documentation with intent to influence proceedings, etcetera. The offences may be discovered through procurement surveillance and review by the Commission under Section 8(1) PPCL thereof, as well as under the powers of the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC) or it could be discovered during administrative review proceedings.

 

4.2 Consequential Evaluations of the Criminalisation of Conducts Prohibited by the Law

 

Law as a regulator of social norms determine in advance the implication of prohibited and permissible conducts within the reign of legislative competences as does the PPCL of Benue State. In criminal law jurisprudence as does the criminalisation of acts against procurement  ‘etiquette’ under the PPCL, the criminal quality of an act cannot be discerned by intuition nor would it be understood by reference to any conduct except one, that it is a conduct prohibited with penal consequences. It is therefore instructive to note that, the patterns and methods employed by the pepetrators of procurement corruption and frauds are numerous and unpredictable. For this reason, the PPCL deploy the use of words and concepts like, contract padding, kickback, splitting of tenders, bid-rigging, forgery, alteration, alternation tender bids, proposals or quotations, altering any procurement document, bribery, inflated costs, etcetera.

While it is instructive that these terms are not defined in the law, contract padding is over-bloated contract (padding of projects). It is defined in relation to ‘budget padding’ as the practice of  artificially inflating the  proposed  budget  in order to give room  to either expand project or cover unexpected cost that may arise from the execution of projects. [19] Many see budget padding as unethical. With reference to procurement padding, this can be expanded to mean over-bloating an acquisition to earn an undue advantage. This act when viewed without much ado, amount to both an economic crime and tantamount to breaches as envisaged by section 23(3) of the Corrupt Practices of public officers. Kickback is equally mentioned but not defined. However, kickback[20] is a slag for a bribe or incentive paid to someone who helped one to make money, or sudden, forceful recoil. It is defined as ‘an illicit payment made to someone in return for facilitating a transaction or appointment. These acts are prohibited under sections 8(2), 9, 10 and 19 of the ICPC Act 2000 and punishable therein as offences.

 

Splinting of tenders is stated under section 60(3)(d) of the law and limited to the purpose of ‘evasion of monetary threshold set’. This offence creates room for difficulty and uncertainty. The PPCL of Benue State 2020 has not in its entirety of provisions set any monetary threshold for Procurement Officers, Accounting Officers or Approving Authorities to follow. The BNSPPC meaning Council is yet to comply with Section 4 of the law which gives the Council power to consider and approve a prior review threshold for the application of the powers of this law by procuring entities. These uncertainties would be further analysed in the case of  Raymond Temisan Omatseye v Federal Republic of Nigeria[21] with its attendant consequences of the new for legislative intervention.

 

Bid-rigging, Forgery, Alteration, Alternation tender bids, Proposals or Quotations, Altering any procurement document, Bribery, Inflated costs are all created offences and yet their meanings and perspectives are not provided. However, the semblances of all the offences listed here are similar to offences created under the ICPC Act, 2000. The above provisions however demonstrate progressiveness in the Nigerian law at the national level through the Public Procurement Act and the various States that have implemented their procurement laws such as the Benue State Public Procurement Law as to adequately match the new wave of economic crime in procurement malpractices.

 

In response to this new development, the Procurement Law has progressively, criminalises ‘conduct or attempt’ to commit procurement fraud whether successful or not under section 60(3) (b) and … ‘attempt’ to influence in any manner ‘procurement process’ whether directly or indirectly under section 60(3) (c) of the BNSPPL. The effect of this section is that, it has altered the long common test of attempt and statutory criminal provisions in sections 4[22] of Criminal Code and 95[23]  of Penal Code that, attempt no matter how latent does not amount to a crime.  The tests are that, the accused must form intention to commit the crime or embark on preparation to commit the crime with just an “inch” to the actual offence. [24]The sword effect is that, once preparation to commit a procurement offence or fraud is established, whether successful or not, it is inconsequential under the sections of the Procurement Law as to whether the accused actually embarked on the commission of the crime. As Akanbi[25] noted in a similar observation that, this is a clear departure from the decision on attempt to obtain money by false pretences delivered in the case of Inspector General of Police v Fowowe.[26] Here the accused was charged with attempt to obtain money by false pretences by claiming that he could print currency notes He was however arrested before he could set up the contraption which he claimed could print currency notes. The conviction was set aside on the ground that, his alleged action was still at preparatory stage. Related to the foregoing is the case of The King v Robison[27]  is where, the appellant was charged with the attempt to obtain money by false pretences from his insurers. The appellant jeweller insured his stock against burglary. On an occasion, a policeman passing in front of the appellant’s premises, heard him shouting, ‘I am bound and gagged, open the door’. Upon forceful entry by the Police, the accused was found tied, under the situation suggesting that his attacker took away the jewellery. The Police doubting his story searched the premises and discovered the jewellery hidden behind the safe. It was held that, what the appellant did was only a preparation which had not amounted to an attempt because the false pretences which were discovered were made to the police not directly to the insurers.

 

It is important to state categorically that, any offence under the PPCL is punishable with conviction without option of fine. Where an offender is a human being but not a public officer, his/her is imprisonment for not less than 5 calendar years but not more than 10 calendar years without an option of fine without an option of fine. Where the offender is human being and a public officer, his/her punishment is summary dismissal from government services and imprisonment of not less than 5 calendar years without an option of fine. Where the offender is not a human being but a corporate entity, its punishment is debarment ( being banned and deemed ineligible to participate) from all public  procurement issues for a period not less than 5 calendar year; and a fine equivalent to 25% of the value of the procurement in issue.  In addition, all the directors of the corporate body are automatically offenders’ ipsofacto through the corporate lifting of the veil principle of criminal corporate liability. Such directors are punishable with imprisonment for not less than 3 calendar years but not more than 5 calendar years and without option of fine.

 

4.3 Prosecuting Agencies for Corruption on Public Procurement in Nigeria

There are no clear cut laws specifying prosecuting agencies for Federal and State offences committed by wrong doers in Nigeria. This factor is largely due to the federal structure of the Nigerian scene particularly due to the concurrent list items which the federal and state legislatures may enact laws on, especially as it applies in the context of procurement contracts. Generally, the following are the agencies responsible for the investigation and prosecution of related offences. The agencies include: the Nigeria Police Force,  the Economic and Financial Crimes Commission (“EFCC”), established by the Economic and Financial Crimes Commission Act; the Code of Conduct Bureau (“CCB”), established by the Nigerian Constitution and the Code of Conduct Bureau and Tribunal Act; the Independent Corrupt Practices Commission (“ICPC”), established by the Corrupt Practices & Other Related Offences Act; The Nigeria Police vested with the general powers of investigating and prosecuting offenders of crime and latest under study is the Bureau of Public Procurement Under the Public Procurement Act (The Benue State Public Procurement Commission)( Under the Public Procurement Law.

Corruption is a criminal offence and the subject has fairly received legislative approaches through various enactments such as: The enactment of the Code of Conduct for Public Officers,[28] Code of Conduct Bureau and Tribunal Act, Economic and Financial Crimes Commission (Establishment) Act, Nigerian Financial Intelligence Unit Act,[29] Money Laundering (Prohibition) Act,[30] The Public Procurement Act[31] as mutatis mutandis applicable to the Benue State Public Procurement Law. The underlying element of these laws is the intention to prevent or eradicate corruption
at all levels, from private individuals to public officials. From regulation of conduct of
public officers to regulations on public procurement and due process and transparency
in financial transactions, the laws attempt to set policies in place that effectively prevent
corruption and prescribe sanctions for default. In the case of Dr. Dayo Olagunju v FRN [32]

The argument here was whether EFCC have the sole power to prosecute a person under section 3 of the public procurement Act 2007 or it is the Bureau of Public Procurement that has the sole authority to review and determine whether any procuring entity has violated any provisions of the public procurement Act. Another question was whether EFCC lacks the knowledge of procurement and it is only the BPP that can determine any breach of the Act. In this case, the appellant and six others were arraigned before the Federal High Court Abuja for fraud and embezzlement of public funds. The Supreme Court held that, by the combined provisions of section 174 of the constitution as well as section 5(1)(k) of the EFCC Act 2004, the EFCC can investigate and prosecute cases under the Criminal Code and the Penal Code and where the EFCC exercises its powers under section 5(1)(k) of the EFCC Act, nobody has a right to question whether it obtained the necessary fiat of the AG before embarking on the prosecution. It is not necessary for the EFCC to seek consent of the BPP or the AG before it can proceed to investigate and prosecute an accused person. Per Kumai Bayang Aka’ahs JSC

4.4 Case Law Deductions on violations of Procurement Laws

Procurement is relatively new to the Nigerian environment. The first effort at institutionalisation of procurement in Nigeria was through the enactment of the Public Procurement Act of 2007 which implementation was delayed until 2009. The Public Procurement Act/Law seek to provide for the harmonisation of existing government policies and practices on public procurement for the purpose of ensuring probity, accountability, transparency in procurement processes; the implementation of competitiveness, professionalism in public sector procurement mechanisms for purposes of fairness, competitive, value for money, standard practices for procurement and disposal of public assets.  Due to this late implementation, case development is consequently scarce and few.

 In Edo State[33] scenario in Re: Adams Oshiomhole & Others, the Judicial Commission of Inquiry into the construction of the Edo Specialist Hospital and supply of equipment for the hospital, headed by Justice James Oyomire (rtd) has indicted the administration of former Governor, Adams Oshiomhole for breach of the State Public Procurement Law. The Commission held the view that, the award of the contract for the construction of the hospital to Vamed Engineering was fraught with breaches of the Edo Public Procurement Law in that, the administration breached the law by granting to the contractor 75 percent of the contract sum  upfront for the project   which is above the 25 percent upfront payment stipulated by law for government contracts upon contract award. The Commission therefore, recommended that, the Ministry of Justice should take both Civil and Criminal Proceedings against the perpetrators for breach of the law.  Although reactions have trailed the submission in the media circle by those perceived to be involved in the award, accusing Governor Godwin Obaseki  as being part of those indicted because, as at the time of the contract, Governor Obaseki was the Chief Economic Adviser and thus was part of the decision making body of that administration. The argument of one Osifo also is that, by law, a governor can limit himself to an approval of not more than #99 Million, saying that, ‘anything more than that usually comes to the Executive Council approval’.

It is interesting to note that, the Benue State Public Procurement Commission Law contain similar provisions in Sections 37 and 38. Section 37 (1) of the PPCL of Benue State provides:

“In addition to any other regulations as may be prescribed by the Commission, a mobilization fee of not more than 15% of contract sum may be paid to a supplier or contractor supported by the following- (i)in the case of State Competitive Bidding, an unconditional bank guarantee or insurance bond issued by an institution acceptable to the procuring entity; and (ii) in the case of International Competitive Bidding, an unconditional bank guarantee or insurance bond issued by a banking institution acceptable to the procuring entity. Section 37(2) of PPCL of Benue State provides further that, once a mobilization fee has been paid to any supplier or contractor, no further payment shall be made to the supplier or contractor without an interim performance certificate issued in accordance with the contract agreement”.

Section 38 of the PPCL of Benue State provides: “The provision of a Performance Guarantee shall be a precondition for the award of procurement contract upon which any mobilization fee is to be paid, provided however, it shall not be less than 10% of the contract value in any case or an amount equivalent to the mobilization fee requested by the supplier or contractor, whichever is higher”.

In Re:   Professor Thomas Agan v EFCC (2017), Justice I.E. Ekwo of the Federal High Court, Calabar, remanded the Chief Medical Director (CMD) and two other staff of the teaching hospital and promoters of two companies in prison on a five count charge bordering on alleged conspiracy, bid rigging abuse of office and breach of due process contrary to the Procurement Act 2007. According to the EFCC, Agan and his two colleagues were alleged to have used their position to corruptly influence the award of the purchase of a Life Support Ambulance Vehicle and one Toyota Coaster Bus to Anchor Industrial and Construction Services Nigeria and Basemark Energy Nigeria LTD by inflating their costs and without following due procurement process to the tune of #85,062,000.00 contrary to sections 58(4) and punishable under section 58(5) of PPA 2007 thereby committing the above offences.[34] (similar provisions exist in sections of the PPCL)[35]. In the case of Raymond Temisan Omatseye v Federal Republic of Nigeria (2017) In that case, the applicant was convicted for the offences of approving the award of contracts above his monetary threshold as Director General of NIMASA. The applicant was found guilty of approving award of contracts above his monetary threshold and was discharged for offences of bid rigging and conducting procurement fraud. The court grouped the offences into 3 groups based on similarities of the allegation.  The first group are count 1-20 and 23-26 all touching on award of contracts by the appellant above his monetary threshold contrary to section 16(1)(a) and (b) of the PPA 2007. The second group is count 21-22 which bothers on bid rigging contrary to section 58(5)(a) and (b).The third group is count 27 which is predicated on procurement fraud contrary to section 58 (4)(b) of the PPA. The Court of Appeal agreed with the trial court and upheld the conviction. On further appeal to the Supreme Court, the conviction was set aside on the basis that, the offences for the award of Contract above the monetary threshold at best constitute an administrative action and not made subject to a criminal action. Therefore by virtue of section 36(12) of the constitution 1999, which makes it clear that, no person shall be convicted for any offence unless such an offence is stated in a law and the punishment also provided.  Reference was made of the case of Bode George V FRN[36]  The Court proceeded to state that, Administrative circulars or notices have its place in government but cannot create an offence.

The apex court in the case of Maideribe V FRN,[37]  the Supreme Court held and made far reaching pronouncements on the effect of circulars bearing on procurements of a significant interest. In that case, the allegation  was that, the appellant breached the threshold as contained in a document not in any monetary threshold set or regulation duly made by the council pursuant to the Act. There was no evidence before the court when the threshold was approved by the council or reviewed, that is if the threshold was a revised one. The said sections 16(1) and 58(5) as it stand cannot create the offence of breaching monetary threshold until the power given to the council has been duly exercised as held in Bamgbose v University OF ILORIN[38]  The SC went on to hold that, the Procurement Act at Section 58(5) made a blanket criminalisation of all breaches of the Act but still went ahead in the preceding subsection to list some offences under subsection(4) as follows that, “the following shall also constitute offences under this Act…” The use of the phrase ‘shall also constitute offences’ presupposes that other offences were mentioned in the Act and the one listed in the subsection are in addition. This is not so, as no other offence was specifically listed or mentioned in the other sections of the Act. The only other provision wherein the word offence is mentioned is Section 58(5) quoted above. It is trite that, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. See EHUWA V O.S.I.E.C[39]  where the SC held that, where a statute mentions specific things or persons, the intention is that, those not mentioned are not intended to be included under the latin maxim ‘Expressio Unius Est Exclusio Alterius ( The expression of one thing is the exclusion of another). The implication of the offences bothering on violations of the monetary thresholds is that, unless the legislature amends the relevant provisions, its effect will remain docile and ineffective and defeative of its purpose.

In ICPC v AMINU MEGA[40], in this case, the ICPC had arraigned a Sokoto State civil servant, one Aminu Mega, for allegedly diverting #2.6 million belonging to the state government. The said Mega was the Deputy Director (Infrastructure) of Sokoto Agriculture Development Project (SADP) was accused of presenting fake receipts to the commission during the investigation to cover the fraud, thereby committing an offence contrary to section 16 and 19 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under the same section. Mega pleaded guilty to the charges and he was accordingly convicted. The said offence is similar to the prohibitions under section 60(3)(f) of the Benue State Pblic Procurement Law.

In another case between EFCC v Bassey Albert, a prosecuting witness, Kakwagh Ngunan, has narracted how one Senator Bassey Albert as then Commissioner for Finance in Akwa Ibom State,  allegedly received vehicles as a gift from Olajide Omokore whose companies executed over #3Billion  Contracts from the state government.

In Re-Danjuma Musa, The Accuse while being a procurement Officer of Ahmadu Bello University  sometime in 2016 at Zaria, colluded with Gboye Surgical Equipment to inflate the prices tendered for the supply of drugs and laboratory reagents, contracts awarded by ABU Zaria, which would not have been the case had there not been collusion between him and Gboye Surgical Equipment contrary to section 58(4)(a) of the Public Procurement Act 2007 and punishable under section 58(6)(a) and (b) of the same Act. The Accused pleaded guilty and Justice Mallong accordingly convicted and fined him an equivalent of 25% of the value of the procurement in issue amounting to the sum of #686, 540.43. He was also barred from  all public procurement for at least five calendar years [41]

 

 

4.5 Implications of the Public Procurement Laws on the Benue State House of Assembly; Benue State University; State Judiciary and Local Government Councils in Benue State.

 

This segment seek to appraise the scope of application of the procurement law  and the consequential powers of prosecuting agencies such as the EFCC, ICPC, the Police and Public Procurement Commission etcetera,  in investigating and prosecuting violations of Offenders under the Benue State Public Procurement Law as it may apply to third tier of government, particularly the 23 Local Government Councils in Benue State namely, Ado, Agatu, Apa, Buruku, Gboko, Guma, Gwer-East, Gwer-West, Katsina-Ala, Konshisha, Kwande, Logo, Makurdi, Obi, Ogbadibo, Ohimini, Oju, Okpokwu, Otukpo, Tarka, Ukum,Ushongo and Vandeikya as they draw and share from the Federation’s Consolidated Revenue Funds through the special account called “State Joint Local Government Account” under Section 162(6) of the CFRN 1999 (as amended), as well as the Legislative arm of government, the Benue State House of Assembly, and the Judicial arm of government in Benue State, the State Judiciary. This provision relate to Part III titled, ‘Scope of Application’.

 

Section 17 (1) of the BNSPPLCL provides: “The provisions of this Law shall apply to the procurement of goods, works and services carried out by the State Government and all procurement entities”. Section 17(2) provides: “The provisions of this Law shall not apply to the procurement of special goods, works and services involving security unless the Governor’s express approval has been first sought and obtained”. Under Section 2 of the BNSPPCL, the “State” defined to means Benue State of Nigeria without more and the entities that are supposed to be regulated by the law are not defined. This lacuna thus creates the difficulty as to whether; entities such as the Benue State House of Assembly, the State Judiciary, and Local Government Councils and the Benue State University[42] that receives funding from Public accounts would be exempted (although not expressly stated) or are impliedly included without expressly stated so. This seemingly quagmire and confusion may be noticed from the pre-emptory provisions of the Benue State University Procurement Manual 2018 which manual was made before the enactment of the PPLBNS 2020 and yet the enacted PPLBNS 2020 did not cure the defect under discourse.

 

Section 1(1.1) provides: “The scope of application of the Public Procurement Act, 2007, states that the provisions of the Act shall apply to all procurement of goods, works, and services carried out by: (a) The Federal Government of Nigeria and all procurement entities; All entities outside the foregoing description which derives at least 35% of the funds appropriated… from the Federation share of Consolidated Revenue Funds.[43]

Section 1(1.1.2) provides: “Benue State University is a state owned University. The Government of Benue State has not yet domesticated the Public Procurement Act 2007. However, the University is in dire need of an instrument that would guide procurement processes and activities in the University”.[44]

Section 1(1.3) provides: “The Procurement Manual shall apply to all acquisition and disposal of goods, works and services in the University” “However, in case of Donor Funded Projects, where the Procurement Manual of the University is inconsistent with the requirements of the donor, the manual of the donor shall apply if consistent with the Public Procurement Act, 2007”.[45]

While it is commendable the efforts of the Council and Management of Benue State University in prompting the operationalisation of the manual to be guided by the values of “transparency, value for money, accountability, efficiency and effectiveness, fairness, integrity, competition, time consciousness and professionalism,”[46] of service delivery, the said manual may have created several other legal issues and implications (which same may be far from the context of this paper).

With respect to the third tier of government for instance, the importance of the resolution of this issue is very germane and must necessarily precede the resolution of the ‘scope of application’. In assessing this quagmire, both the spirit and letters of the constitution and the law regulating local governments in Benue State, being  the Local Government Administration Amendment Law, 2016, which has amended the State Local Government Law of 2007, as amended by Benue State Law 13 of 2010 would be helpful. In Amoshima V State,[47] the court defined the word “Government” as follows: “By the provisions of section 318 of CFRN 1999, government includes the government of the federation or any state or of a local government council or any person who exercises power and / or authority on its behalf”.  A combined ripple effect of section 318 CFRN 1999 and Section 7(1) of CFRN 1999 which provides for …system of democratically elected local government councils mandates the government of every state, subject to section 8 of the constitution to ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils (emphasis mine). The views of the writer here are that, first, local governments are an appendage of the state and therefore the very definition of the “State” under section 2 of the BNSPPCL would include the local government councils in the scope of application. Secondly, procurement is an aspect of finance and the enacted PPCLBNS 2020 seek to regulate the public financing of goods, works and services or acquisitions through procurement in the state. The existence of local government functioning as an entity can only be activated by a law of the State House of Assembly as does in the enactment of the Local Government Administration Amendment Law, 2016.  Fourthly, local governments derives huge appropriations from the federation account as share of their Consolidated Revenue Funds and can therefore not be logically excluded from the operations of the law. For instance, in the month of  June 2020, the following allocations were earned in naira currencies[48];Ado(150,315,482.01),Agatu(132,202,942.64), Apa(127,628,830.07),Buruku(153,592,407.48),Gboko(199,510,111.47),Guma(159,739,509.46),Gwer-East(151,368,907.04),Gwer-West(131,893,933.78),Katsina-Ala(165,814,895.04), Konshisha(159,034,811.31),Kwande(178,132,260.75),Logo(140,410,805.62), Makurdi(170,987,819.60),Obi(123,413,096.06),Ogbadibo(130,316,372.12), Ohimini(117,508,026.72),Oju(148,515,617.92),Okpokwu(141,825,316.48),Otukpo(166,234,113.45),Tarka(114,715,008.59),Ukum(156,458,051.79),Ushongo(151,276,895.69)andVande-ikya (161,121,729.76).

An excursion to the Federal Statute, the Public Procurement Act[49] will reveal that, an important subsection namely Section 15(1)(b) PPA is omitted from the State legislation. Section 15(1) of the Act relating to ‘ scope of application’ provides: “the provisions of this Act shall apply to all procurement of goods, works and services carried out by: (a) the Federal Government of Nigeria and all procurement entities; Section15(1)(b) provides; all entities outside the foregoing description which derives at least 35%  of the funds appropriated or proposed to be appropriated for any type of procurement described in this Act from the federation share of Consolidated Revenue Funds”. Comparatively, in Kaduna, State,[50] section 3 therein define ‘Procurement Entities’ to “mean all ministries, Departments, Agencies, Legislature and Judiciary, Local Governments and parastatals responsible for all processes laid down in this law to carry out all procurement of goods, works and services”. Furthermore, section 38(1)[51] provides that, “There is hereby established the following bodies that shall be responsible for the conduct of public procurement in their respective entities:

(a) For each of the State’s Ministries, a Resident Due Process Committee;

(b) For the State Judiciary a Judicial Service Due Process Committee;

(c) For the State Legislature a Legislative Service Due Process Committee;

(d) For each of the State’s extra-ministerial departments, bureaux, offices and agencies including State Universities and Colleges, government-owned and/or controlled corporations, a parastatal Due Process Committee; and

(e) For each of the State’s Local Government Due Process Committee (LGDPC) provided that its membership shall include other persons as the Kaduna State Procurement Authority may from time to time stipulate.

Equally, a case study of Plateau State,[52] the state has enacted its law to cover the third tier Local Government by stating the definition of “Approving Authority”[53] to mean a body charged with the responsibility of approving public procurement in the case of;(a)…(b)…(c) Local Government Council, the Local Government Tenders Board;(d) State Tenders Board, State Executive Council. On the scope of Application, Section 14(1) of Plateau Law provides that, “The provisions of this law shall apply to all procurement of goods, works and services carried out by: (a) The State Government, Local Government Councils and all procuring Entities in the State. (b) Any public body in the state engaged in procurement, and shall include Ministries, Departments, Agencies, Bureaux, offices and the state Extra-Ministerial offices; parastatals and corporations; and (c) all entities outside the foregoing description which derive any funds appropriated or proposed to be appropriated for any type of procurement described in this law from the state government’s share of Consolidated Revenue Funds”.

Similar provisions exist in Edo State[54] where section 12(1)(a) provides “the Edo State Government including Local Government Councils and all Procurement entities;”[55] as well as  States of  Kano[56],  Yobe[57], and Lagos[58] etcetera. One would wonder why such serious omissions are made as in the case of Benue State. One would be tempted to argue that, the omission of the BNSPPCL to mention and include, the 23 Local Government Councils in Benue State, as well as the Legislative arm of government, the Benue State House of Assembly and the Judiciary of Benue State does not exclude these entities in complying with the provisions of the Procurement Law. The argument is based on the following reasons;

(a) The express omission to mention one thing- the 23 Local Government Councils in Benue State, as well as the Legislative arm of government, the Benue State House of Assembly and the Judiciary arm of Benue State, the High Court of Justice- does not automatically excludes any other which otherwise would have applied by implication with regard to the same issue. See EHUWA V O.S.I.E.C[59] where the SC held that, where a statute mentions specific things or persons, the intention is that, those not mentioned are not intended to be included under the latin maxim ‘Expressio Unius Est Exclusio Alterius ( The expression of one thing is the exclusion of another).

(b) The Public Procurement Act is a Federal Law which expressly includes section 15(1) (b) on 35% of the funds appropriated or proposed to be appropriated for any type of procurement described in this Act from the federation share of Consolidated Revenue Funds. The implication of this enactment to the conflict or omission of the BNSPPCL 2020 is that, adhering to the doctrine of covering the field, the federal law will supersede. See the case of Attorney General of Ogun State v Attorney General of the Federation[60] Where Supreme Court held that, the doctrine of Covering the Field can manifest where a State  House of Assembly by the purported exercise of its legislative powers enact a law, which an Act of the National Assembly has made provisions covering the matter of the law, the federal law supersedes. The SC stated that, the doctrine is  validated under section 4(5) of the CFRN 1999. See Saraki v FRN[61] where the Sc stated that, where the doctrine of covering the field is in vogue in the Constitution any other legislation on the same field whether by the Federal/State government must bow to the dictates of the Constitution.

(c) The 23 Local Government Councils[62] in Benue State, as well as the Legislative arm of government, the Benue State House of Assembly and the Judiciary[63] arm of Benue State, the High Court of Justice do respectively draw and share from the Federations Consolidated Revenue Funds.  The Consolidated Revenue Funds is the fund into which all revenues are required by the Constitution to be paid into. The only agencies that are not subject to the general procurement regime are those agencies that are not connected with the Federal Government or even if connected with the Federal Government, do not derive up to 35% of the funds appropriated  for any type of procurement from the Federation share of the Consolidated Revenue Funds.

(d) The PPA has benchmark the operationalisation of procurement scope with the understanding of commitment to enact complimentarily of State Procurement Laws[64].

Before concluding on the scope of application, the PPCLBS rather provide for an obnoxious section 17(2) which provides thus:

“Pending the appointment of the Council and the Commission, all Public Procurement may be done under extant financial regulations on Procurement in the state”

This provision with due respect is counter the spirit of procurement. There is a presumption that every enacted statute has a purpose. The law took effect on its signing the 6th of August, 2020 wherein a Director General of the Commission and members appointed. The continued retention of the said section in the law is capable of giving wrong and conflicting signals to procurement officials as to suggest collusiveness pursuant to Section 60(8) of the Law which provides thus:

“Collusion shall be presumed from a set of facts from which it can be assumed that there was an understanding, implicit, formal or informal, overt or covert under which each person involved reasonably expected that the other would adopt a particular course of action which would interfere with the faithful and proper application of the provisions of this Law.

 

Concluding Remarks

The paper has attempted to high light the importance stakeholders enlightenment and   review of basic understanding the implementation of the PPCLBS on the penal provisions on procurement violations. It has established the connection between procurement and the underhand practices of corruption in procurement award and execution of public contracts through inflation of contract costs and other kinds of manipulations of the procurement and contract award processes. It has identified major acts and omission that characterise procurement crimes, including, offences of entering or attempting to enter into a collusive agreement for the increasing of prices of goods, services or construction; conducting procurement fraud through undue influence, interest favour, bribery and corruption; contract splitting; unduly influencing procurement proceedings; bid rigging; uttering  and using fake documentations; altering documentation with intent to influence proceedings, etcetera. The offences may be discovered through procurement surveillance and review by the Commission under Section 8(1) PPCL thereof, as well as under the powers of the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC) or it could be discovered during administrative review proceedings within the Commission Powers. The offences created are strict liability offences with no corresponding defences that could be raised. The offences are strict liability because; mens rea does not seem to be imputed. The penalties are also strict without option of fine. The court vested with the jurisdiction to try the offence is the High Court of Justice.[65] Thereafter, appeals can only lie to the Court of Appeal and thereafter to the Supreme Court in line with constitutional dictates.

It is also the view of the paper that, the enacted PPCL 2020 needs an immediate amendment to bring the letters of the law to the true spirit of procurement intendment. Section 17 (2) PPCL should be abrogated and it’s substituted, the enacted provision similar to section 14(1)(2) and (3) of the Procurement Law of Plateau State. The said Section 17(2) of the PPCL of Benue State has surreptitiously institutionalised and legalised the failed inadequate system that promoted corruption in procurement through the central Tender Board of financial and Treasury Circulars on public expenditures.

It is also the submitted view of the paper that, even with no clear provisions covering the 23 Local Government Councils in the state, as well as the State House of Assembly and the Benue State Judiciary, the enacted PPCL of Benue State covers the said institutions.

 

Associate Professor of Law and Consultant on Intellectual Property, Oil & Gas and Public Procurement Laws.08035917744 email-jkur@bsum.edu.ng

[1] Benue State of Nigeria Gazette Notice No.35 Vol.45

[2] Public Procurement Commission Law of Benue State (hereinafter simply called PPCLBS)

[3] Cap C Laws of the Federation of Nigeria 2004 (as Amended)

[4] Cap 89     Laws of Northern Nigeria, 1963

[5] Constitution of the Federal Republic of Nigeria, 1999 (as amended)

[6] Black’s Law Dictionary, 6th Edition, 1990, St Paul Minn West Publishers

[7] JN Samba, The Existing Categories of Punishment: Anyway Forwards A Crime Free Society? ( 2002)BSULJ Vol 1 No1 P1

[8] Section 2 PPL of Benue State

[9] Transparency International, a German non government organisation founded in 1993 with the sole purpose to combat global corruption with societal anti-corruption measures www.devex.com>organisation>

[10] The OECD is an intergovernmental economic organisation founded in 1961 to stimulate economic progress and world trade

[11](1951) NLR p 30

[12]  Adeyemi AA  “Corruption in Nigeria”in Kalu and Osibanjo (ed) perspective in Corruption and Other Economic Crimes in Nigeria (Federal Ministry of Justice) 191

 

[13] Corruption and Democratisation in Nigeria, (1983-1993): An Overview cited in (2009)8 Vol 1 UJLJ 123

[14] Rasheedat A Okoduwa ”Aspects of Corruption in Public Sector Procurement” Being a paper presented at a 2 day Workshop on Public Procurement and Financial Management at Public Service Institute of Nigeria, Abuja on wednessday, 22/07/2011

[15]  Rasheedat A Okoduwa (n11)

[16] Rasheedat A Okoduwa (n11)

[17] Public Officer may be defined as persons who perform the services of the federation or a state in any capacity. This definition is in line with Section 319 of the Constitution 1999 which defines public service of the Federation or of a state as ‘the service of the Federation or of a state in any capacity’

[18] By virtue of part II of the 5th schedule to the 1999 constitution, public officer include, the President, the Vice President, Members of the National Assembly and State House of  Assembly of States, Governors, Deputy Governors, Chief Justice of the Federation and all Judicial Officers on the Bench, Attorney –General of the Federation and the States, Ministers, Commissioners, all members of the armed forces of the Federation, Persons in the Civil Service of the Federation and the States, Ambassadors, High Commissioners and Officers of Nigerian Missions abroad, Chairman and Staff of Code of Conduct Bureau and Local Government, Members of Boards of Statutory Corporations, all staff of Universities, Colleges and Schools owned by Federal or State Governments etc

[19] Kingsley Amah, Budget Padding: Causes and Solutions https://www.researchgate.net/publication/335431030

[20] www.dictionary.com

[21] 2017 Court of Appeal Case (infra)

[22] Criminal Code Act

[23] Penal Code Laws of Northern Nigeria

[24] Kharisu Suffiyan Chukkol, Law of Crime in Nigeria in Nigeria ( ABU Press, 1988) 37

[25] MM Akanbi, An Appraisal of the Nigerian Advanced Fee Fraud and Other Fraud Related Offences Act 2006, (2013) 15 No.1 The Nigerian Law Journal at 115

[26] (1957) WRNLR 188

[27] (1915)2 KB 342

[28] 5th Schedule to the 1999 Constitution as amended

[29] NFIU Act 2018

[30] Money Laundering (Prohibition) Act 2011

[31] Public Procurement Act 2007

[32] (2018) 10NWLR part 1627

[33] Nigeria: Panel Indicts Oshiomhole’s Administration for Alleged Breach of Procurement Law This Day newspaper 15th May 2020

[34] Saharareporters.com>2017/06/14

[35] See Sections 60(3)(i)-(vii)(4)-(9) of PPCL

[36] (2011) 10 NWLR Part 1254

[37] (2003) LPELR-21861

[38] (1999)10 NWLR PT622.

[39] (2006)10 NWLR Part 1012 p 544

[40] Matthew Ogune “ICPC arraigns Sokoto official for alleged #2.6m fraud” Metro newspaper of 21/10/2020

[41] Matthew Ogune(n40)

[42] Benue State University implemented the Benue State University Procurement Manual of December,2018.

[43] BSU (n42)

[44] BSU (n42)

 

[45] Section1(1.1.3)(n42)

[46] Section 1.2 (n42)

[47] (2011) All FWLR (pt 597) 601 at 619

[48] Federation Account Allocation Committee June Disbursement as supplied by National Bureau of Statistics www.nigerianstat.gov.ng (visited on 20/10/2020)

[49] Public Procurement Act No 14 2007

[50] A Law to Establish A Public Procurement Authority For Kaduna State and For Connected Purposes 2016

[51] Kaduna (n50)

[52] Plateau State Bureau of Public Procurement Law 2018

[53] Section 2

[54] Edo State Public Procurement Agency Law 2012

[55]  Edo State (n54)

[56] Kano State Public Procurement Commission 2012

[57] Yobe State Bureau on Public Procurement Law 2016 Amended 2019

[58] Lagos State Public Procurement  Agency Law 2013

[59] Supra

[60] (1982)2 NCLR 166

[61] (2016)LPELR 40013(SC)

[62] By virtue of Section 162 (6)(8) of the CFRN 1999

[63] By Executive Order 00-10 of 2020, granting financial autonomy to the legislature and the Judiciary in the 36 states of the Federation.

[64] The Federal Ministry of Finance, the Nigerian Governors Forum (NGF), the 36 Governors through the NGF and the International Development Partners (IDPs) signed a memorandum of understanding in 2010 to establish partnership for purposes of ensuring promotion, adoption, passage and implementation of Fiscal Responsibility and Public Procurement legislation and regulations at the state level for uniformity of purpose in fiscal and public procurement matters.

[65]  Section 60(2)

Interface of Copyright and Conflict of Laws: A Reflection on the Copyright Act Cap C.28 Laws of the Federation of Nigeria

By

Dr Joseph Jar Kur* & Professor Anthony A. Ijohor SAN, FCArb*

1.1 Introduction

The paper has examined the vexed and much avoided question of applicable law that will come into operation where ever copyright interface with conflict of law whenever an issue before the court contains foreign element. The research has  argue that, due to the transient and incorporeal nature of copyright as a property, foreign element may arise from questions relating to ownership in the work, transfer of copyright in the work, infringement of  the protected work and the consequential problem of the jurisdiction of courts; the ascertainment of the applicable law, and the enforcement of the ultimate judgement becomes germane particularly in the face of the modern trend of globalisation, the situation has taken an astronomical dimension which law has to grapple with.

In articulating on these issues, the paper is anchored on the fact that,  due to the fluid and intangible character in copyright proprietary divisible[1] nature, conflict related problems will continue to stare in the face of copyright which remain basically “territorial”  while factors as the internet has pushed acts of exploitation and infringement of copyrighted works across territorial borders. The questions therefore are which court will have jurisdiction to make decisions as to copyright jurisdiction on the internet? Which domestic law will govern the multiple acts of internet based exploitations and infringements? What are the legal huddles in integrating private international law with intellectual property law? Is it still possible to continue to rely on conflict of law’s physical property concepts such as lex loci contractus[2] and lex fori[3] in dealing with intangible property dimensions or shall there be formulated new rules for Intellectual property concern? These and several other related issues are considered within the context of the Copyright Act of Nigeria, Cap C28 Laws of the Federation of Nigeria, 2004 and relevant contributions to the discourse is made with the aim of improving the jurisprudence of the subject matter.

2.1 Problem of Conflict of Intangible Property Laws (A case of Copyright Law)

Conflict of laws is that part of law which comes into operation whenever the court is faced with a claim that contains a foreign element. It is only when the foreign element is present that the conflict of laws situation will arise.[4] The conflict of laws has three main objectives, first, to prescribe the conditions under which the court is competent to entertain such a claim. Secondly, to determine for each class of case the particular municipal system of law by reference to which the rights of the parties must be ascertained. Thirdly, to specify the circumstances in which a foreign judgement can be recognised as decisive of the question in dispute and the right vested in judgement can be enforced.[5]

Contravening the above summary of the scope of conflict of laws, it can be rightly observed that conflict of laws occurs at two levels, namely, the first one is international conflict of laws situation, and this is where the law of one country is competing with the law of another country to govern an issue before the court, while the second one is the internal conflict of law, here the clash is between two or more different laws within a country.[6] Drawing from the going proposition, there is hardly any type of property rights that deserves international protection than those of authors and by extension copyright on literary, musical, artistic, cinematograph films, sounds recording and broadcast works of (a) an individual who is a  citizen of Nigeria or is domiciled in Nigeria [7](b) any person whose work is first published in Nigeria[8]( and this includes a foreigner or non Nigerian) (c)  the work is first published in a country which is a party to an obligation in a treaty or other international agreement to which Nigeria is a party; by the United Nations or any of its specialised agencies; by the Organisation of African Unity; or by the Economic Community of West African States[9]. The problem is further captured by Agbede where he argued that, the possibility of unauthorised use of their works transcend national boundaries and has indeed assumed a global dimension with the advent of modern technology (radio, television, and internet connectivity).  It is understandable therefore that the Nigerian current enactment on this issue makes provision, like many other national laws, for the protection of foreign –protected rights on a reciprocal basis on the threefold principle of equal treatment, union priority, and common rules.[10]

2.2   General rules and application of Conflict of Laws

Matters of conflict of laws are hinged purely on the choice of applicable law with a view to ascertaining the lex causae (the applicable law). Once a matter has been classified, then the next step is to select the appropriate law. In selecting the appropriate law, certain conflict rules have being formulated namely; Rule One: Succession to immovable or landed property will be governed by the law of the situs (lex Situs) being the law where the property is situated. The connecting  factors for selecting the applicable law is the personal law namely, the lex domicile (which is the place of domicile).

Rule Two: Validity of marriage is governed by the law of the place of celebration while capacity to marry is governed by the law of the parties( domicile of the contracting person). Rule Three: In contract of sale of goods, the parties may agree upon a chosen however, in the absence of such a choice, the application is  lex loci  contractus it being the law of the place where a contract is made or has the greatest attachment or lex loci solutionis being the law of the place where a contract is to be performed.

Rule Four: In monetary debts, the law of the country in whose currency a debt is expressed ( lex monetae) is the applicable rule of conflict. Rule Five: Questions bordering on procedural law, remedies and jurisdiction are governed by the lex fori which meaning and purpose the court stated in Ramon v Jinadu[11] that, ’there is no doubt that in conflict of laws, matters of procedure are those for the forum and are governed by the lex fori. But procedure in this respect, remedies for process, damages, limitation of action, evidence, priorities, setoff and counter-claims and costs’.  Rule Six: In determining the substantive law governing the infringement issues, courts in general apply the torts conflict of laws principle of lex loci delicti  which means ‘place of the wrong’. Under this principle, the court applies the law of the country in which the infringement occurred.

Poser? What then will be the applicable conflict of laws in intellectual property being an intangible property right that is territorially-based? Is it still possible to continue to rely on conflict of law’s physical concepts such as lex loci contractus[12] and lex fori[13] or lex loci delicti  in dealing with intangible goods or shall there be formulated new rules for Intellectual property concern. To appreciate the immediate and remote concerns on these issues, the conflict scenario in intangible property laws is graphically captured by learned Agbede[14]  thus; that,

“Transborder disputes in respect of intangible property rights may arise from infringement of rights over a registered trademark, design, patent, or a grant of copyright or by way of a transfer or transmission of these rights. Such disputes will normally call to question issues of jurisdiction of courts; the ascertainment of the applicable law, and the enforcement of the ultimate judgements. Claims in respect of intangible property are generally territorial. Consequently, cases in this respect were few and far between not only in Nigeria but also in common law jurisdictions. However, with the modern trend of globalisation, the situation has taken a different dimension. The future poses increasing challenges”.

The foregoing analysis of the learned professor is apt and accurate. The question therefore is, how would conflict of law answer to such a dilemma of intellectual property scenario? If intellectual property is territorially limited, then it means that the ‘situs’ of such claim is the territory in which the incorporeal right is registered but that being the case, it then means that, a foreign author or owner of a patent or copyright or trademark proprietor registered abroad will not have the right to sue in a Nigerian court because same being viewed as a right in rem and common law will not permit. However, if a claim from such registration arises in personam, the conflict of law rules in tort action will apply in line with the case of  Benson v Ashiru[15] where the principle demands that, a defendant will will be liable for a tort committed abroad if and only if two conditions are satisfied namely:

  • The wrong is of such a character that it would have actionable if committed in Nigeria and (b) that the act must not have been justifiable by law of the place where it was done.

The above discourse has made Agbede to argue succinctly that, under intellectual property rights, an infringement of a registered trademark, design, patent, or a grant of copyright is a claim in tort and consequently, the choice of law rule is the so called ‘double liability’ rule enunciated in Benson v Ashiru and proceeds to argue that, a right that is not protected under Nigerian law will not satisfy the first condition except as it may be altered by an international treaty or agreement or there is a reciprocal agreement to that effect. He hold the view further that, equally without protection will be an infringement abroad if the right is not equally protected in such a foreign country in the absence of a reciprocal arrangement to the contrary…[16]

  • Copyright interface with Conflict of Laws.

Conflict of laws otherwise called ‘private international law and intellectual property have a long history of neglected or even avoided relationship’. According to Boschiero,[17] the reasons for the avoidance is more historical in that, as far as the late nineteenth century, the vast majority of intellectual pro perty disputes were domestic in nature: ownership or infringement issues hadn’t the potential of reaching the whole world, concerning parties established within a single national territory and rights conferred by the law of that territory and infringements that mostly took place there.[18] The implication of the foregoing scenario is that, cross-border or transnational IP disputes, involving foreign elements were rare and resolved by the courts through the standard principles embodied into the multinational treaties establishing an international protection system for intellectual property, namely the Principle of territoriality as reinforced by the principle of national treatment and independence of national rights. The territorial principle also known as territoriality principle itself being a principle of Public International law under which a sovereign state is given legal authority to exercise jurisdiction in a case, due location of the crime . The principle also bars states from exercising jurisdiction beyond its borders, though with some possible exceptions[19] including the principle of nationality, passive personality principle, the protective principle and possibly the universal jurisdiction in extreme cases of rights violations. The implication and application of the territoriality thus developed on the limitation that the scope of IPR is limited to the territory for which they have being granted. This is even so even if “parallel “rights relating to the identical intangible objects may exist in various countries, they are “independent” of one another (principle of independence)

Conversely, the narratives have changed in the contemporary world. The old order in which infringement of copyrighted works took place successively, one country at a time, by means of tangible copies of work and not simultaneously by means of “intangibles” is gone. Creative works cross borders. Copyright is not necessarily exploited at the national level; it is, in fact, exploited at a global level. Video cassettes and compact discs(CDs) containing materials protected by copyright are marketed in an increasing number of countries; Patents in CD technology were exploited whenever a CD – pressing plant was built,…the Coca Cola trademark is found on cans and bottles all over the world.[20]  With reference to copyright matters, copyrighted works can be disseminated and infringed on the internet at an alarming and explosive speed and quality…….. Conflict of laws will arise on important issues in litigation and transactions. In cross border cases, claimants often shop for forums. The reason is obvious; forum law normally includes the court’s jurisdictional, procedural and conflict laws.

The waves of digitalisation, global trading patterns and indeed forces of globalisation has destroyed the bricks and walls of physical territorial limitation thereby increased conflicts involving trans-border elements in the contemporary world thereby forcing the two areas of intellectual property and private international laws that are historically characterised by little or no interaction to confront each other and crave for the need to harmonise. Questions of jurisdiction and choice of law have become increasingly important in the field of intellectual property law since markets have become increasingly “global,” while copyright laws remain basically “territorial” hence there is no international copyright nor supranational copyright system, rather, there are splinter copyright laws in each country such as Nigeria’s Copyright Act Cap C28 Laws of the Federation of Nigeria (LFN) 2004.

The existing legal framework for deciding jurisdiction and choice of law rules for copyright law is derived from two sources namely, (a) Copyright rules(domestic laws and international instruments on copyright); and (b) Private International Law rules (rules on jurisdiction and choice of law provided in domestic laws and international instruments).[21] In buttressing further on this issue, Xalabarder,[22] has argued that, there is no “international” copyright law, just numerous domestic laws applied within the boundaries of their respective domestic territories. International efforts developed in the 19th century at bilateral, regional, and worldwide levels to ensure the protection of copyrighted works outside the boundaries of nations. The most important was the Berne Convention for the Protection of Literary and Artistic Works of 1886.[23] Intellectual Property Rights have always been regarded as territorial and the international conventions were built upon that concept.

Relying on the postulations of Xalabarder further, private international law addresses problems that arise from the territorial nature of legal systems, in particular, problems of attributing jurisdiction to national courts, and of determining applicable domestic law. No international convention  has been adopted globally in the areas of jurisdiction, choice of law and the enforcement of foreign judgements. Some “regional” Conventions[24] attempted have covered issues of jurisdiction and enforcement in civil matters but within Europe alone (not applicable to Africa nor Nigeria) while other Conventions[25] provide for choice of law rules on contract.  At best, these rules provide additional  general rules on jurisdiction and choice of law rules for torts however, there are no rules expressly for jurisdiction and choice of law for copyright infringement cases and even then these instruments are not sufficient to ensure uniform solutions for the international protection of copyrighted works. [26]

  • Nature of Copyright as Intangible Property

Copyright is the legal right granted to an author, composer, play writer or publisher for exclusive publication, production, sales or distribution of a literary, musical, artistic, dramatic or electronically produced work.[27] The Black’s Law Dictionary defines it as ‘a property right in an original work of authorship(such as a literary, musical, artistic, photographic or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distributes, perform and display the work.[28]

Copyright is an intangible and incorporeal kind of property which confers on the author a right to control the reproduction of his intellectual creation, conferring on him the authority to control his creation after disclosing thereby preventing others from reproducing his personal expressions without his consent.[29]  The exclusive nature of copyright seeks to prevent unauthorised copying or reproduction of physical materials in the said field of literature, artistry, music, cinematography, broadcasting, sounding and folklore.[30]   Property here does not connote physical, fixed or tangible property but rather connotes some kind of intangible property usually expressed in a given form of expression now known or later to be developed.

 

Copyright therefore is a property. Like Shares , real property and other assets, copyright transfers and transactions in the form of licences, assignments, testamentary bequeaths, charges and other security is of some antiquity for the living and the dead.[31] Copyright is incorporeal property. Incorporeal rights are rights that can’t be seen or touched, but are still enforceable by law. Generally, incorporeal rights have to do with intangible property and unlike real property that can be physically quantified, intangible property is conceptual in nature. However, the rights associated with intangible property are just as valid as the rights associated with real property. Incorporeal rights are also known as intangible rights, and incorporeal property is also known as intangible property.

 

Jurisprudentially, there are two kinds of incorporeal rights, namely, jura in re aliena or encumbrances and jura in re propria. Jura in re aliena refers to  incorporeal rights over corporeal things. The   Incidences of such include but are not limited to leases, easements, right of ways, mortgages and servitudes. In this sense, one can have incorporeal or intangible rights over a corporeal and tangible property, such as in the right to quiet enjoyment of a property that is conferred with a valid agreement.

 

The second kind of incorporeal right is jura in re propria, which refers to the ownership of intangible property such as in copyright, patents, trademarks and other IP related rights which in this regard confers a full ownership of property which is incorporeal or intangible, and does not have a physical presence.

 

In general, incorporeal rights give the owner a set of legally enforceable rights, either over tangible property or over the ownership of intangible property. For example, an author who holds incorporeal rights over the copyright of his or her work has the legal right to control when and how that work can be reproduced. However, the author does not have the tangible rights over the finished book; the reader who buys that book also buys the tangible or corporeal rights over the physical book as a piece of personal property that can be bought, sold, or destroyed at the owner’s discretion. In this way, incorporeal rights are different from the corporeal rights over the property carrying those incorporeal rights.

 

The incorporeal nature of copyright is a distinctive divisible floating right that crystallise and clutch on to and protect a work that satisfies some condition enabling the author either directly himself or through his licencees, assigns, successors in title or heirs to restrain third parties from dealing  with the work by the exercise of the distinctively divisible rights  either for the whole work or for a substantial part of the work that could be recognised to have been derived from the original work.[32] Copyright therefore is a bundle of distinctively divisible rights …divisibility on the basis of the whole of the rights or some of bundle of rights the right holder is vested with; divisibility on the basis of the whole or part of the term the right will subsist; or divisibility on the basis of geographical part, that is, the state, region or part of the world.[33]

 

The juridical and jurisprudence of incorporeal and intangible property in Nigeria whether in copyright, patents or trademarks has continued to expand with Comparative indices to the applicability of principles of  Lis Pendes to intangibles res  where the courts have developed the doctrine to cover intangibles as held in Umoh v Tita[34] where Sanusi JCA held that “the maxim is aimed at preserving the subject matter of litigation and it applies to both tangible and intangible resin the same case, Opene JCA said, “the principle or doctrine of lis pendens is derived from the latin maxim lis pendent lite nihil innveteur which means  nothing should change during the pendency of an action and this doctrine or maxim is aimed at preserving the subject matter of litigation and is applicable to both tangible res and intangible res.” Similarly, in Olori Motors & Co v UBN plc[35] the Supreme Court held that, “the doctrine of lis pendis prevents the effective transfer of rights in any property(emphasis mine) in which is subject of an action pending in court during the pendency in court of an action.”

 

The foregoing list of cases undoubtedly is indeed revolutionary and dynamic in nature. This is because, based on precedence of the long list of cases such as in Barclays Bank v Ashiru,[36] and Ikeanyi v ACB[37]the doctrine of lis pendes was limited to real property and the doctrine has no application to personal property such as in copyrights and patents etcetera. The simple interpretation of these decisions is to say in unequivocal terms that, the doctrine of lis pendes is applicable to intangibles res and as such to intellectual properties[38](sic). The foregoing conclusion is hard to rebut. Incorporeal goods can equally be subject of conflict of laws in all ramifications of property.

3.1 Choice of Law Dilemma under the Berne Convention and Trade Related aspects of Intellectual Property Rights(TRIPS)

The Berne Convention is the precursor of today’s copyright protection initiated in 1886. The Berne convention is anchored on certain provisions that seemingly raises the choice of law issues under Private International law notably in its Article 5.1(National Treatment) and 5.2 (Choice of Law).

Article 5.1 provides to the effect that, in addition to the minimal protection that must be granted within any member state to any foreign works, the Berne Convention relies on the principle of “national treatment”. This principle is a principle of non discrimination which enforces that, authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

Indeed, the International Convention in the field of intellectual property forming the public international law namely, the Paris Convention for the Protection of Industrial Property Right, 1883 (the Paris Convention), the Berne Convention for the Protection of Literary and Artistic work, 1886 (the Berne Convention), and Trade Related Aspects of Intellectual Property Rights, 1995 (the TRIPS) agreement are built around two pillars, national treatment, fortified by the most favoured nation treatment and minimum substantive standards of protection. The “National treatment” clause is construed to imply a duty of non discrimination. However, this duty of non discrimination is very doubtful and less relevant to an indigenous inventor or creator. The duty only requires the application of the same substantive law to foreigners and to the national, thus playing to the gallery the applicable law as defined in application of the national conflict of law rules.  An application and interpretation of the national treatment clause encapsulated in the international conventions[39] as demanding the application of the law of the country of origin.  Opinion by academics and commentators is varied as to whether this principle is a complete choice of law rule since it does not solve the question of what applicable law will apply when protection is sought for a country from a non-forum country. Other writers argue that the Article implore the application of the country of origin rule. Writers such as Nimmer maintained that, national treatment is a choice of law provision and that it should govern all elements of infringement action, regardless of the nationality of the author, the country of origin of the copyrighted work or the place of first publication.[40] While Nimmer was undoubtedly a leading authority on copyright, his interpretation was unconvincing in that it had the possibility of creating multiple ownership laws and a change of ownership every time the work crosses a country’s borders. Thus, some commentators and courts have rejected his interpretation. Instead, they consider national treatment as a non discrimination device, restricting a country’s ability to enact laws that treat domestic authors more favourably than foreign authors.   Other scholars on the contrary hold the view that the courts are to apply the law of the country of protection (lex loci protectionis)[41].  The foregoing proposition is further supported by WIPO[42] which explains the import of the Article 5.2 that;

The rights that are claimed by virtue of the convention i.e. the convention minima…in this respect article 5.2 concerns itself only with two areas; (1) the extent of protection, and (2) the means of redress”. The guide indicate that in those two areas “the law of the country where protection is claimed” shall govern exclusively unless the parties have agreed that another law should apply by the way of a forum selection clause[43].

This authoritative explanation strongly supports the initial proposition that there exist a total resembling of conflict principles found in all the international instruments of substantive public international law in intellectual property, which do not purposefully address the private international law question on which law to apply to intellectual property right infringements. The foregoing are of importance to copyright protection in all its ramifications. The issues relate to instances of infringement that occur in countries where there exist no bilateral agreement in such regard. The issue also extend to matters as to what remedy the intellectual property protecting these forms of knowledge can offer. The conflict of law question in this instance is clear in that, in all such cases of misappropriation, reproduction, mutilation, publication, without the appropriate authorisation, the plaintiff can only sue where the infringement has occurred and this is regulated by the lex loci commissi delicti, the lex loci protectionis is claimed and the law of the forum.

In yet another sophisticated doctrinal construction, Elger[44] postulated that, it is impossible for any choice of law rule to exist in view of the divergence of national laws view regulating the same judicial relationship which same is underlined by principles of territoriality in expressing private international law principle. He argued that, in view of the way each legal order grants these rights, there could be no such thing as an “international copyright”, even under international copyrights law, neither a truly international trademark nor an international patent. Comparatively, there exist also provisions of “National Treatment” under Human Rights with different amplifications and scope of protection. Under international and regional instruments on Human Rights, this principle is known as the Principle of Non discrimination. Non discrimination in Intellectual Property shows a number of differences as compared to non discrimination under human rights. The differences lead to the question of how the two sets of non discrimination rules relate to each other and which rule of non discrimination protects better authors and owners of copyrighted works.

Under non discrimination principle of human rights, an extensive definition of non-discrimination includes non-discrimination such as to race, colour, religion, national or social origin and the like. In addition provisions relating to the equality before the law are made in most of the Treaties on human rights. For example, non-discrimination clauses exist in virtually all International and Regional Treaties (except the European Social Charter) such as under the Universal Declaration on Human Rights 1948[45], (UDHR) Article 2.2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)[46].  The International Covenant on Civil and Political Rights  (ICCPR)[47], The European Convention for the Protection of Human Rights and Fundamental Freedoms[48], the American Convention on Human Rights[49], The African Charter on Human and Peoples Rights[50]. Equality before the law has been laid down as a human right in Article 7 of the UDHR; Articles 14.1 and 26 of the ICCPR; Article 24 of the American Convention on Human Rights, Article 2 of the American Declaration of the Rights and Duties of Man and Article 3 of the African Charter on Human and Peoples’ Rights. The foregoing provisions on non discrimination apply to the rights recognized in the respective treaties and declarations.

Deduced from the foregoing and using the beneficial rules of interpretation, while folklore and indigenous forms of knowledge of intellectual property rights are not explicitly mentioned in these treaties and declarations (except the African Charter on Human and Peoples’ Rights), they may be covered by provisions on the human rights of people and by extension of the same reasoning, even those instances or hurdles of these forms of knowledge of the African people that are discriminated or capable of being discriminated upon under the Intellectual Property Convention on grounds of lack of reciprocity or long accepted provisions of national laws of member states regarding the status of foreign right holders or right of communities holders in the area of intellectual property may no longer be applied to the extent to which this would amount to discrimination.

On the second pillar upon which the Public International law of Intellectual Property is built being the Minimum Substantive Standard of protection, the reasons are clear and simple. The operation of national treatment without the Minimum Standard of Substantive protection would imply an inadequate level of protection afforded by a member country to its own right holders. In this direction, the TRIPS has provided for the most favoured nation principle[51] which obliges the treatment to be meted out to nationals to members. This principle of “most favoured nation” implies that any advantage, favour, privilege or immunity with regards to the protection of intellectual property shall immediately and unconditionally be accorded to nationals of all other members. However, MFN principle does not oblige a state to recognize another state’s standard and thus the principle appears less weighty. It thereby follows that the requirement of the application of the same substantive law to foreigners and to the nationals based on National Treatment and Most Favoured Nation Clause principle relates to the law of the protecting country as the applicable law and this equally has a choice of law rule incidental to trans border protection of indigenous forms of knowledge and folklore beyond the protecting African State or Country.

In a further assertion in proof of the foregoing discourse, the Paris Convention,  for instance, determines the personal scope of application of the ‘National Treatment’ and Minimum Substantive Standard application on the basis of nationality and beneficiaries of the protection by virtue of the Convention are limited to; (i) nationals (ii) nationals of any member country of the known[52] and (iii) nationals of countries outside the union provided that they are domiciled or have a real and effective establishment in the territory of one of the countries of the union[53], with respect to Berne Convention, the National Treatment beneficiaries are (i) nationals of one of the countries (ii) Non nationals whose work are first published in one of those countries or nationals who have their habitual residence in such a country[54].On a whole, the fundamental question as to “which law applies” in infringement proceedings largely remains unanswered by Private International Law or choice of law option and the intellectual property “Public International” Laws (Conventions) have equally failed to provide any guidelines on the issue of choice of law on intellectual property rights infringements.      These uncertainties, together with the inadequacy of the International Intellectual Property System in protecting adequately the copyright system outside the scope and territory of the granting state showcase the need to develop a comparative and coherent Public Private International Law for intellectual property.   The framework must include a well agreed policy and institutional framework that recognizes the diverse international, domestic law making and enforcement mechanisms in which state and community actors generate new rules, norms and enforcement strategies.

3.1.2 Conflict and choice of law elements in Copyright Act Cap of Nigeria.

There exist a plethora of provisions of the Nigerian Act that have conflict of laws connotation and implication and as Sodipo[55] has pointed out, situations may exist where laws conflict due to the applicability of foreign laws arising from questions relating to the copyright ability of works, ownership in the works, transfer of copyright in the works, jurisdictions, remedies and the like.

The Act has provided for eligible works to mean, literary works, musical works, artistic works, cinematograph films, sound recording and broadcast.[56] This is more so applicable to copyright than in all other IP related subjects because of the possibility of unauthorised use of works that transcend national boundaries and has assumed a global dimension with the advent of modern technology such as the computer, internet and other virtual world of digital networks and platforms. This scenario makes persons exploiting and consuming copyrighted products to be reasonably connected to justify the application of a specific national copyright law. In this regard, the situs of the claim would only be the country where the right is protected and this will ultimately create a     conflict of law implication for the section where the right is protected.

Section 2(1) of the Act is another curious provision. It provide  that, “Copyright shall be conferred by this section on every wok eligible for copyright of which the author or in the case of a work of joint authorship, any of the author is…a qualified person, that is to say (i) an individual who is a citizen of, or domiciled[57] in Nigeria”(emphasis mine). The qualification of domicile is argued to mean the permanent abode or home of a party as held in Sodipo v Sodipo[58] as well as Koku v Koku[59]that  it means a place at which he intend to return and remain even though he may currently be residing elsewhere. A person who is not a citizen of Nigeria may have copyright conferred on his eligible work by this section if he is domiciled in Nigeria but not if he is merely resident in Nigeria. This is irrespective of where the work was published or made.[60] The foregoing section 2(1) is further supported by Section 3(1) which provides that, “copyright shall be conferred by this section on every work… (a) Being a literary, musical or artistic work or cinematograph film, is first published in Nigeria; or (b) being a sound recording, is made in Nigeria …”

The provisions of Section 4(A)[61] of the Act provide that; “Copyright shall be conferred by this section on every work if-

  • On this date of its first publication atleast one of the authors is-(i) a citizen of or domiciled in, or (ii) a body corporate established by or under the laws of a country that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party; (b) the work is first published-(i) in a country which is a party to an obligation in a treaty or other international agreement to which Nigeria is a party….”

The fore going provision relate to qualifying factor which, unlike the other two requirements, applies to all categories of works. The required connection contemplated by the Act may be by virtue of the status of the author, the place of first publication of the work or by reference to international agreements …are all deemed to have the requisite nexus.[62]The third  basis which is quintessential purpose to conflict of laws and copyright is qualification by reference to international treaties and agreements. This provisions are in fulfilment of Nigeria’s obligation under various international agreements namely, Berne, Ucc, Trips, United Nations,  Au etcetera. The section is relevant to the issue of reciprocal extension of protection by virtue of international agreement to which Nigeria is a party and the minister is satisfied that the country in question provides for protection of copyright in works which are protected under Nigerian copyright law, the minister may, by Order in the federal Gazette extend the application of the Nigerian copyright Act in respect of all or all of the categories of work eligible for copyright protection.

The issues of protection of foreign works came up for consideration in the Nigerian case of Microsoft Corporation v Franike Associate Ltd [63]  where the court held although per incuriam  that the said foreign copyright in Nigeria was not subject to reciprocal protection in Nigeria. Other cases include Societe Bic S.A. v  Charzin Industries Ltd & Others .[64] These cases have to do with Copyright (Reciprocal Extension) Order which provides reciprocal extension of copyright protection to individuals who are citizens of or domiciled in member countries. These and other provisions of the Act lend support to the conflict of laws application because in conflict of conflict of laws, once at any time a foreign element is involved, the court would have to determine  which legal system to apply. Thus in any conflict action, the following questions are determined by the forum court:

  • The question on jurisdiction and cause of action.
  • The classification of subject matter of the suit.
  • Selection of the applicable law.
  • Application of the applicable law.

 

4.1 Copyright Contracts and Employments and Jurisdiction of the Federal High Court.

In Nigeria, the Federal High Court has exclusive jurisdiction over all civil and criminal causes and disputes arising from the copyright Act[65] and despite the exclusive jurisdiction of the federal High Court, state High courts have continued and would in some situation continue to entertain actions on contractual obligations that have effect on contracts for copyright( as against contracts of copyright) and by extension, the National Industrial Court( NIC) would in appropriate cases be called upon to determine copyright contract of service or contract for service for purposes of determining questions of ownership of copyright made by the author ‘in the course of his employment …under a contract of service or apprenticeship…’[66]

For clarity of purpose, section 251(1) of the constitution provides thus, “…the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters… any federal enactment relating to copyright, patent, designs, trademark and passing off, industrial designs and merchandise marks, business names, commercial and industrial monopolies and trusts, standards of goods and commodities and industrial standards”[67] Under the CRA, section 46 provides “The Federal High Court shall have exclusive jurisdiction for the trial of offences or disputes under the this Act”.

The fore going discourse is not mere rhetoric because there exist cases where the Federal High Court declined jurisdiction in a number of copyright disputes where the claim was for breach of copyright and other rights granted by the Act on the ground that they involved breach of contract simplicita.[68]   This is so because of the peculiar nature of copyright being incorporeal and divisible in nature. In copyright, every work subject matter of copyright has two proprietary interests, ownership of copyright in a work in which copyright subsists and the ownership of the work per se. This analogy will suggest that the purchaser of a book acquires ownership of the book per se by virtue of his purchase but he is not the copyright holder[69] to enable him sue in the Federal High Court for theft of the book as an intellectual property because it is nonexistent. Equally true is the fact that, the owner of copyright in a painting may not be the owner of the painting[70]. Copyright law makes ownership and authorship distinctive in all works of copyright namely, literary, musical, artistic, cinematograph film and sound recording.

Conversely, Sodipo has submitted that, the test to determine whether the Federal High Court has jurisdiction is whether the claim raises issues such as the ownership of copyright, whether a party has exercised a right that is the exclusive preserve of the author of a work subject matter of copyright, whether an act was properly licenced and the like, and issues of contracts that can only be adjudicated on by a court that has jurisdiction to interpret the copyright Act, that is , the Federal High Court.[71] He argued further that, the Federal High Court has jurisdiction over contracts or other disputes arising from copyright Act  including alleged breach of fundamental rights and observed that, the case of Olufemi Aladetuyi v Daramola Taiwo [72]where the court of Appeal affirmed a state High Court’s decision that the defendant’s right was breached when he was arrested for allegedly selling infringing copies of a book was wrong. The present writers hold a contrary opinion and hold on the view that, purposeful interpretation of section 251(1)(f) CFRN 1999 would not suggest that where the reliefs sought are not affecting the validity of any executive or administrative action or decision of a federal Agency or of the copyright holder or licensee or exclusive assignee, there can be no hindrance to commencing an action in the State High Court based on the circumstances of each and every given facts. This reasoning is supported by the apex court in Adetayo v Ademola [73] where the court held that, the FHC has exclusive original jurisdiction to the exclusion  of all other courts in Nigeria, in any civil action or proceedings in which federal Government or its agencies is a party. Additionally, it is the holding of this paper that, Section 46 CRA which confers  exclusive jurisdiction for the trial of offences or disputes under the this Act is in itself  is contradictory of the opening words of section 251(1) CFRN which provides that “Notwithstanding  anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion…” the said provision is a law of the National Assembly that has only conferred an additional jurisdiction and itself cannot override the constitution and thus inconsistent in that regard. The foregoing arguments hold mutatis mutandis to disputes that may arise in ownership of works in authors who are employed and perform work either in a contract of service or contract for service and works made in the course of employment[74] same being conferred with an exclusive jurisdiction on the National Industrial Court being a labour, employment …industrial relations and a matter arising from work place thereto.[75] This internal law characterisation question such as these requires definite legislative intervention in the affected sections to bring out certainty in the judicial application of cases that comes before the courts.

Recent Choice of Law Proposals

With the advent of the internet and increased globalisation, conflict related problems will continue to stare in the face of copyright which remain basically “territorial” The questions therefore are which country and court will have jurisdiction to make decisions as to copyright jurisdiction on the internet? Which domestic law will govern the multiple acts of internet based exploitations and infringements? What are the legal huddles in integrating private international law with intellectual property law? Is it still possible to continue to rely on conflict of law’s physical concepts such as lex loci contractus[76] and lex fori[77] in dealing with intangible goods or shall there be formulated new rules for Intellectual property concern including new choice of law rules? Recent choice of law proposals include:

  • Professors David Johnson and David Post’s cyberlaw approach, under which territorial copyright laws will be replaced by customary law that aims to balance the interests of rights holders and users.[78]
  • Professor Paul Geller’s proposal of applying the law of the country that affords the greatest protection among all countries having access to network disseminating the infringing materials.[79]
  • Professor Jane Ginsburg’s approach, under which U.S. law will apply whenever the work is infringed in the United States or when the infringer is an American national, resides in the United States or has an effective business establishment in the country[80].

Conclusion

An outstanding characteristic feature of conflict of laws in any application is the lack of consensus in respect of its methods and goals and this is of equal force to copyright. While it is accepted that the complex nature of the subject stems from the fact that it is all embracing in the sense that it deals with any problem, no matter its nature, where there is a conflict of issues or where there is an indication that the legal systems of two or more countries may be involved in the determination of a particular issue before the court, it must then be called to answer to the delicate issues in one way or the other. In this direction, the following recommending are made:

1.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

*Acting Head, Department of International Law and Jurisprudence,Benue State University,Makurdi

*Secretary to Government of Benue State & Fmr Dean of Law, Benue State University,Makurdi.

[1] Divisibility in its bundle of rights; divisibility in its duration of right; divisibility of rights in geographical location.( see generally S.11(2) CRA which provide that “an assignment or testamentary disposition of copyright may be limited so as to apply to only some of the acts which the owner of the copyright has exclusive right to control, or to a part only of the period of the copyright, or to a specified country or other geographical area” (emphasis added)

[2] Such as questions bordering on copyright contracts simpliciter.

[3] Questions bordering on procedural law, remedies and jurisdiction.

[4]  AA Ijohor “Recognition and Enforcement of Foreign Judgements in Nigeria” pp2-3

[5] D Prosser Ïnterstate Publication”as quoted in AA Ijohor (n4) p3

[6] Kera Farida Aisha “The Role of a Judge in Conflict of Laws” (2015) Vol 29-35 ABULJ

[7] Section 2(1) CRA Cap C28 LFN 2004

[8] Section 2(3) and 3(1) Ibid

[9] Section 5(1)(a)and (b) ibid

[10] I O  Agbede

[11][11] (1986)5 NWLR(Pt39) 100 as culled from Bankole Sodipo (n) 315

[12] Such as questions bordering on copyright contracts simpliciter.

[13] Questions bordering on procedural law, remedies and jurisdiction.

[14] Agbede IO Intangible Property Rights in the Conflict of Law in Aremu JA, Contemporary Issues in International Law & Diplomacy( being Essays in honour of Amb MT Mbu) Lagos: Total Communications Ventures  220

[15] (1967) NMLR 363

[16] Agbede I O (n14)

[17] Nerina Boschiero, Intellectual Property in the light of the European Conflict of Laws http.www.intellectual property and conflict of laws(visited 20/8/2018)

[18] Nerina Boschiero (n5)

[19] For instance, the  S.S. Lotus case was a key court ruling on the territoriality principle. In 1926, a French vessel collided with a Turkish vessel, causing the death of several Turkish nationals. The Permanent Court of International Justice ruled that Turkey had jurisdiction to try the French naval lieutenant for criminal negligence, even though the incident happened beyond Turkey’s boundaries. This case extended the territoriality principle to cover cases that happen outside a state’s boundaries, but have a substantial effect on the state’s interests or involve its citizens.

[20] Paul Torremans, Intellectual Property Law 5th edn (Oxford University Press)27

[21] Raquel Xalabarder, “Copyright: Choice of Law and Jurisdiction in the Digital Age” (2002)vol 8 issue 1 Annual Survey of International & Comparative Law 80

[22] Raquel Xalabarder,(n9)

[23] Herein called the Berne Convention

[24] Brussels and Lugano Conventions

[25] Rome Convention

[26] Raquel Xalabarder,(n9) 80

[27] Webster’s  New College Dictionary 249

[28] Olanike AV, “Strategic Action Agaist Piracy (STRAP) Revolutionising The Nigerian Copyright Sector” p30

[29] Ekpere JA, “Nigerian Copyright Law and National Development: Philosophical andEconomic paradigm foor the next Millennium” in Asein JO, A Decade of Copyright Law in Nigeria

[30] Agbede IO,”Intangible Property Rights in Conflict of Laws”  In Aremu JA, Contemporary Issues in International Law & Diplomacy (2008) 220

[31]  Sodipo Bankole, Copyright Law Principles, Practice & Procedure 2nd edn p 113

[32] Sodipo Bankole (n19)

[33] Ibid and Section 11(2) CRA

[34] (1999) 12 NWLR pt 631 at 127

[35] (2006) MJSC at 55

[36] (1978) NSCC at 355

[37] (1991)7 NWLR pt 205 626

[38] Adebayo Akinropo O, “The applicability of Lis Pendes to intangible Res” in Ojo & Oke and Onamade, Cross- Cctting Issues in Nigerian Law (2007) Showers IMC Press) 107

[39]  Article 5.1 BERNE Convention; Article 2 of Paris Convention; Article 3.1 of the TRIPS

[40] Nimmer”Melville as quoted in Yu Peter, “Conflict of Laws Issues in International Copyright cases

[41]  Boschinro N. op.cit p.17

[42]  WIPO Guide to the Berne Convention

[43]  Ibid

[44]  Elger op.cit p. 1112

[45]  Article 2

[46]  Article 2.2 ICESCR

[47]  Article 2.1 ICCPR

[48]  Article 14

[49]  Article 2.2

[50]  Article 2 Banjul Chapter

[51]  Article 3 and 4 of TRIPS

[52]  Article 2.1 (a) and (b) of the Convention

[53]  Article 3 Ibid

[54]  Article 3 and 4 Berne Convention 1886

[55] Bankole Sodipo (n19)

[56] Section 1(1)

[57] Domicile of origin? Domicile of Choice? Domicile of Matrimony? It is however interesting to note that, the said clause is suggested in the proposed Copyright Bill to reflect Habitual Residence

[58] (1990) NBRN 98

[59] (1999)8 NWLR pt 616 at 672

[60] Bankole Sodipo (n19)

[61] Otherwise referred as section 41

[62] Adejoke Oyewunmi, Nigerian Law of Intellectual Property p44

[63] (2011) LPELR 8987(CA)

[64] (1990-1997)3 IPLR 335.

[65]  Sections 251 of the 1999 Constitution (as amended); 46 CRA Cap C28 LFN 2004

[66] Section 10 (3) CRA 2004

[67] Section 251(1)(f) CFRN 1999 (as amended)

[68] Azion ResourcesLtd v Deputy Governor, Lagos State FHC/IKJ/CS/204/12  see also Rediscover Nigeria Ltd v Skye Bank Plc FHC/L/CS/640/09

[69] Kolade Oshinowo v John Holt Group Ltd & ors FHC/L/60/86 delivered in 1991

[70] Muri Adejimi v 3C Promotions and Consultancy Services Ltd & ors FHC/L/26/89

[71] Bankole Sodipo (n)206

[72] (2013) LPELR–20283

[73] (2010)15 NWLR Pt 1215 at 169

[74] See generally Sections 10(1)(2)(3)(4) CRA

[75] See Section 254C of the NIC Act as amended by the Third Alteration Act,2010

[76] Such as questions bordering on copyright contracts simpliciter.

[77] Questions bordering on procedural law, remedies and jurisdiction.

[78] Peter Yu “Conflict of Laws Issues in International Copyright Cases”www.Gigalaw.com visited on 2/8/2018

[79] Peter Yu (n72)

[80] Peter Yu(n72)

Appointment of Heads of Superior Courts of Records in Nigeria: Between Merit, Seniority and Politics

By

Joseph Jar Kur

 

Abstract

The question of who heads a court of record in Nigeria is more than a head line but has valid issues as to whether the appointment should be based on merit, seniority or should be cloth with political connotations. These arguments call for resolutions between established tradition and content of written law. The paper has appraised the relevant factors and call for the depolarisation of the exalted office of the Chief Justice of Nigeria and indeed any head of court of record in Nigeria for purposes of enhancing professionalism. The paper calls for absolute insulation of the judiciary from politics and calls for amendment of certain constitutional provisions namely, sections 231 (1), 238 (1), 250 (1), 256 (1), 261 (1), 266 (1) 254 (A), 271 (1), 276 (1) and 281 (1) so as to strip the President/Governors of the power of appointing Heads of Court of Records. The power of appointment of the various Heads of Courts should be the Supreme powers of the National Judicial Council (NJC) in accordance with the provisions of section 153(1) and 158(1) of the Constitution as well as the true spirit of the rule of law and independence of the Judiciary. Also, the provision of section 5, Part II of the Third Schedule to the Constitution which include the Attorney-General of the State from being a member of the State Judicial Service Commission should also be amended in the true spirit of clothing the judiciary with its independence as far as appointment and discipline of judicial officers are concerned. This paper however is limited to the criteria of appointment of Heads of Courts of Records in Nigeria.

 

1.1   Introduction

*  Associate Professor and Head, Department of International Law and Jurisprudence, Benue State University, Nigeria. jkur@bsum.edu.ng Tel: +234 803 591 7744

 

 

This paper focuses on the appointment of heads of courts of records in Nigeria. The question that the paper seeks to answer is that, should the appointment be based on criteria of merit, seniority or other political considerations of ethnicity, religion, god fathers, luck, chance, federal character or simply professionalism and competency of the person to be appointed. The discourse also happens to coincide with perceived fear of about a constitutional logjam and conspiracy theories of the Buhari led administration not willing to confirm the appointment of Justice Walter Samuel Nkanu Onnoghen, as the substantive chief Justice of Nigeria, after he served as the Acting Chief Justice pursuant to Section 230(1) of the 1999 constitution and was the most senior justice of the Supreme Court. Another coincidence is the enactment of the 2014 revised National Judicial Council´s guidelines and procedural rules for the appointment of judicial officers of the superior courts of records in Nigeria, which rules have not only spelt out better merit based guidelines but call for nomination of Private legal practitioners for appointment as Supreme and Court of Appeal Justices as well as the position of Chief Justice of Nigeria. While the name of Justice Onnoghen has finally been sent to senate and indeed sworn in as the substantive Chief Justice of Nigeria, the Hon Chief Justice of Nigeria at the swearing in ceremony vowed to insist on preserving the independence of the judiciary. It is he who wears the shoes that knows where it pinches impliedly, this topic cannot be more apt than now and call for proper discourse of the subject matter with a view to proffering suggestions to the polity for a better administration of justice and if possibly avoidance of similar quagmires eminent in the future.

 

Key words:    Appointment; Superior Courts; Heads of Superior Courts of Records; Merit; Seniority; Politics; Appointment of Chief Justice of Nigeria (CJN) and Chief Judges of States (CJs) and President of Courts in Nigeria.

Appointment

Appointment is the act of assigning a job or position to someone. It is synonymous with nomination, selection, designation, election and engagement. In the context deployed here, reference is made to the power of the President of the Federal Republic of Nigeria or the Governor of a state to appoint a person to head a court on the recommendation of the National Judicial Council subject to the confirmation of Senate or State House of Assembly. The express provisions here relating to appointment of who heads a particular court in Nigeria and these involves the three arms of government namely, the legislature, executive and the judicial arm itself through the instrumentality of the National Judicial Council.

 

1.2     Superior Courts of Records in Nigeria

Superior Court of Record refers to those Courts presided over by judges trained in law where there is, a statutory duty to record same for public access, proceedings leading to their judicial pronouncements. The Superior Courts of record in Nigeria are listed in the Constitution namely,  the Supreme Court of Nigeria; the Court of Appeal; the Federal High Court; the High Court of Federal Capital Territory, Abuja;  High Court of a State; the Sharia Court of Appeal of the Federal Capital Territory Abuja;  Sharia Court of Appeal of a State; the Customary Court of Appeal of the Federal Capital Territory Abuja;  Customary Court of Appeal of a State[1] as well as the National Industrial Court[2]which is listed as one of the superior courts of records by inserting immediately after the existing section 6(5)(c) CFRN, a new paragraph “(cc)” that recognises the National Industrial Court” as one of the Superior Courts of records.

 

1.3    Heads of Superior Courts of Records in Nigeria

Heads of Superior Courts of Record  here is referred to the offices of the Chief Justice of Nigeria; President of the Court of Appeal; Chief Judge of the Federal High Court; Chief Judge of the High Court of the Federal Capital Territory; Grand Kadi of the Sharia court of Appeal of the Federal Capital Territory; President of the Customary  Court of Appeal of the Federal Capital Territory; President of National Industrial Court; Chief Judge of the State High Court; Grand Kadi of the Sharia Court of Appeal; President of the Customary Court of Appeal of a State. By virtue of the constitutional provisions establishing these offices, the appointment of these Heads of Courts are vested in the President of the Federal Republic of Nigeria on the recommendation of the NJC in respect of the federal courts subject to confirmation by the senate. The Constitution equally vests the appointment of Chief Judges of State High Courts, Presidents of Customary Courts of Appeal, Grand Kadi of the Sharia Court of Appeal under the authority of Governors of the various States on the recommendations of the NJC subject to the confirmation by the State Houses of Assembly.

 

1.4 Merit

The word merit is a noun expressing the quality of being particularly good or worthy, especially so as to deserve praise or reward.[3] The term merit constitutes a desirable trait or ability belonging to a person or (sometimes) an object. Merithere denotes earned or deserving position. To borrow the lingual of Court that decided cases are based on the merit here implies that from all material facts placed before the Court, the Court has reached its Judgment based on the most persuasive evidence. Applying this principle to appointment of who is qualified to head a court, only persons who are qualified, suitable and have distinguished themselves in character and conduct that are to be considered for the position of leading other justices as heads of court.

1.5  Seniority

Seniority is preferential status, principle or right. It is the status of being older or senior[4]. Leaning on history, the legal profession is anchored on the tradition of seniority which is principally based on when a person is enrolled and called to the Bar of the Supreme Court for purposes of practice. The profession recognises seniority and thrives on seniority[5]. The concept of seniority at the Bench must, however, be distinguished from that of seniority at the Bar. Seniority at the Bench is based on who first got appointed on a given Bench. It simply means the length of experience on the Supreme Court Bench[6] as the case may be. There exist several arguments for and against the use of seniority in appointment of Judges as heads of Courts. The proponents of Seniority principle anchor their arguments on career building and motivational factors on the job description, while opponents of appointments on seniority base their argument that, seniority enthrones mediocrity which inturn breeds corruption and ineptitude.[7]

1.6 Politics

Politics in the larger perspective relates to activities associated with governance of a country, area, or profession. It relates to the process of making decisions which apply to all members of each group. In the narrower sense, it refers to achieving and exercising positions of governance. Politics is manoeuvres or diplomacy between people, groups or organisations especially involving power, influence or conflict. Politics in the appointment of who heads a court is statutorily provided and codified although the necessary provisions are open ended as much reliance is made to bear on such issues as geo-political areas, sectional interest, tribes, religion and in some instances god fatherism. These extraneous factors that have crept into the appointment of Judges and by extension, heads of courts are alien to the administration of Justice[8]. Politics of judicial appointment here refer to the issue of how and when people get to the Bench of superior Courts and eventually become the most seniors and heads of such courts. The procedure is that, whenever there is vacancy for instance in the Supreme Court, it is often filled (by quota) or geo-political representation. However, the traditional and more often procedure adopted is by elevation from the Court of Appeal. But that doesn’t stop a person from being appointed straight to the Supreme Court without having been in the Court of Appeal (For instance, Justice Niki Tobi from Delta State, was a professor of law and Dean at the University of Maiduguri, when he was appointed as High Court Judge but got accelerated promotion to the Supreme Court). Another instance is the appointment of Dr T.O. Elias who was a senior lecturer at University of Lagos, when he was appointed the Attorney General of the Federation and thereafter appointed the  Chief Justice of Nigeria in 1973 and has remained one of the best Chief Justices. Justice Elias was appointed above serving justices of the Supreme Court. Another instance of appointment to the Supreme Court is the case of Justice Dr Augustine Nnamani who was neither a magistrate nor a high court judge, he was appointed to the Supreme Court and is acclaimed to be one of the best supreme justice until his sudden death while in service. Another instance again is the appointment of Justice Uloko, who became the chief judge of Plateau State not by virtue of his being a serving judge but as the Attorney General of the state after the exit of Hon Justice Alfred Obi-Okoye.Similarly, to get to the Court of Appeal, the traditional route is for a high court judge to be elevated to it. Beyond the above stated is the effect of or the twist of coincidence. You may wish to add ‘luck’, ‘chance’ or ‘god father’, to wit, are a few examples[9].

 

2.1   Who Qualifies to be Appointed to the office of Heads of Superior Courts of Records in Nigeria: Office of the Chief Justice of Nigeria and Chief Judge of a State Under the 1999 Constitution in focus.

The answer to the above question can be found in the applicable sections of the 1999 CFRN (as amended). The Constitution provides for the office of Chief Justice of Nigeria[10]thus

the appointment of a person to the office of Chief Justice of Nigeria (CJN) is made by the President on the recommendation of the National Judicial Council (NJC) subject to confirmation by the Senate.”[11] The Constitution further provides that “a person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15years”[12].

The constitution merely prescribes the qualification of being a legal practitioner of not less than fifteen years post Bar call and has not restricted the person to be so appointed whether, from the roll of justices of the supreme court or from outside of the bench. The provisions therefore give room for possible manoeuvring the process of appointing the Chief Justice either from the Supreme Court bench or even the possibility of appointing a private legal practitioner to the office of chief justice of Nigeria. The private legal practitioner to be so appointed is nowhere defined in the constitution and, the question whether the said legal practitioner to be appointed should be based on meritorious practice of litigation is nowhere mentioned or referenced. Equally, whether the legal Practitioner should be a senior at the legal profession Bar is neither mentioned. The constitution has equally not stated that the appointment of the Chief Justice of Nigeria nor any other head of court should reflect nor take cognisance of federal character indices. It also does not provide that the appointment of the CJN or indeed any other head of court should be based on the seniority of appointment to the bench of the Supreme Court nor from the roll of justices of the court. The provisions of the law are clear and unambiguous and cannot be contradicted by any other interpretation other than the literal rules of interpretation.

Irrespective of these clear provisions, quagmires do exist with reference to subsection four which provide that, “if the office of the chief justice of Nigeria is vacant…until the person holding the office has resumed those functions, the president shall appoint the most senior justice of the supreme court to perform those functions” It is worthy of comment here that it is subsection four that has introduced the issue of seniority[13] for the first time and by extension the inference of appointing an acting chief justice amongst  the serving justices. The necessary implication without doubt is that, the 1999 constitution is silent as to whether a person to be appointed a CJN must be a serving justice. It equally mean that, any ranking justice can be made a CJN and it equally means that any qualified person can be made a CJN. Similar provisions exist with reference to other superior courts of records under the constitution in Nigeria. With regard to the President of the Court of Appeal, the Constitution provides thus “the appointment of a person tothe office of a Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate”[14].Section 238 (4) provides that, “if the Office of the President of the Court of Appeal is vacant… until the person holding the office has resumed those functions, the President shall appoint the most Senior Justice of the Court of Appeal to perform those functions. Section 250 (1) provides that, “the appointment of person to the office of Chief Judge to the Federal High Court shall be made by the President on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate”. While Section 250 (4) provides to the effect that, “If the office of the Chief Judge of the Federal High Court is vacant…until the person holding the office has resumed those functions, the President shall appoint the most senior Judge of the Federal High Court to perform those functions”.

With respect to state superior courts of record, the appointment of Chief Judges and Presidents of Customary Courts of Appeal are equally statutorily provided. Under Section 271(1) the Constitution provides thus:“The appointment of a person to the office of Chief Judge of a state shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.”While Section 271(4) provide that, “if the office of chief judge of a state is vacant…then until a person has been appointed…the Governor of the state shall appoint the most senior judge of the High Court to perform those functions”.

 

Section 281 of the 1999 Constitution provides for the appointment of a President and Judges of the Customary Court of Appeal of a State thus, “The appointment of a person to the office of President of a Customary Court of Appeal shall be made by the Governor of the State on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the House of Assembly of the State.” Section 281(4) provides that, “If the office of the President of the Customary Court of Appeal of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed the functions of that, the Governor of the State shall appoint the most senior Judge of the Customary Court of Appeal of the State to perform those functions.”

 

While commenting in similar vein on the Appointment of state Chief Judge and President of Customary Court of Appeal with reference to Benue State, Ijohor,[15]opined that, by the operation of Section 271(1) of the Constitution, the appointment of a person to the office of Chief Judge is made by the Governor of a state on the recommendation of the NJC subject to confirmation of the appointment by the House of Assembly of the State and that the  Constitution is silent as to whether a person to be appointed as the Chief Judge of a State must be a serving Judge; he submits that any person who is qualified to hold the office of a Judge of a High Court of a State can be made a Chief Judge and that a person who is not a serving Judge at all can be made a Chief Judge.

He submits that to cure this deficiency, section 271(3) of the Constitution should be amended so that no one is in doubt that when the office of the Chief Judge becomes vacant, only serving Judges would be appointed to fill such vacancy.[16] He further suggests that since it shown by experience in other States of the Federation that the person to fill the vacancy should be chosen amongst the first three most senior Judges. If the most Senior Judges are for one reason or the other not recommended, then the next in line should be and where he is also not recommended then the third in line should be recommended. A situation where a junior Judge is made a Chief Judge over and above all his seniors must be condemned.[17]

 

As regards the appointment to the office of the President of the Customary Court of Appeal, he observed that by virtue of S. 281(3)  the person should be either a Legal Practitioner in Nigeria and who is so qualified for a period of not less than ten years and in the opinion of the NJC he has considerable knowledge and experience in the practice of Customary Law otherwise, this may create a scenario where a person can be made President of the Customary Court of Appeal even when he is not a lawyer but, the NJC is of the opinion that he has considerable knowledge of and experience in the practice of customary law.[18]

The learned writer called for constitutional amendment so that only lawyers who have been so qualified on such terms are made Presidents of the Customary Court of Appeal. Worthy of significance is the fact that in Benue State, the House of Assembly in its wisdom has taken care of this problem. Under section 6 of the Customary Court of Appeal Law  2006, a person can only be made a Judge of the Customary Court of Appeal, if he is amongst other things, a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.[19]The entire process of who appoints can thus be summed that the President of the Federal Republic of Nigeria on the recommendations of the NJC appoints all the mentioned heads of courts subject to confirmation by the Senate. While at the state level, Governors appoint heads of courts on the recommendation of the NJC subject to confirmation by the state House of Assembly.

 

The Constitutional responsibility for the appointment, punishment and removal of judicial officers as well as that of a head of court of record in Nigeria, is vested in the National Judicial Council[20] (NJC) which is one of the Federal Executive Bodies created by virtue of section 153 of the Constitution. The philosophy for the establishment of NJC is to insulate the judiciary from the whims and caprices of the Executives; hence guaranteeing  the independence of this arm of government, which is a sine qua non for any democratic government, the NJC was created and vested with enormous powers and functions which the erstwhile Advisory judicial Committee (AJC) it replaced.

 

With respect to the appointment of heads of courts, the provisions of paragraph 21 of part one of the third schedules to the 1999 Constitution (as amended) provides thus:

The National Judicial Council shall have the power[21] to:

(a)Recommend to the President from among the lists of persons submitted to it by –

(i)        The Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and

(ii)       The Judicial Service Committee for the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court… the Grand Kadi… and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory.

(c)       Recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commission persons for appointment to the offices of the Chief Judges of the State…Grand Kadi… and President and Judges of the Customary Court of Appeal of the State.

 

3.1         Politics of Appointment: An X-ray of some Select Judicial Cases

  • The then Governor of Rivers State, Hon Rotimi Ameechi, rejected the recommendations of the NJC to appoint Hon. Daisy Okocha as the Chief Judge (CJ) of Rivers State on the ground that the recommendations of the NJC was Advisory and not mandatory. His position was that in his exercise of the powers conferred on him by the Constitution[22] he was not compelled to accept the said nomination. The then Governor went ahead to appoint and swear in Hon. Justice P.N.C. Agumagu (President of Customary Court of Appeal of Rivers State) as CJ of the State. The NJC refused the appointment and suspended the CJ for accepting the said appointment without the recommendation of the NJC. The NJC went ahead to appoint Hon. Justice Daisy Okocha as “Administrative Head” with powers to assign cases to other judges of the High Court. This move led the then Governor to issue a directive to the Judiciary staff not to take directives from the Administrative Head with a threat to dismiss anyone who disobeys the directive. This chaos led to the shutdown of the Judiciary in Rivers State from 20th August 2013 to 31st May, 2015.This led to the intervention by the Court in the case of Governor of Rivers State & Ors v. National Judicial Council & Anor[23] where the learned trial Judge held that there is no requirement under Section 271(1) of the 1999 Constitution (as amended) that only a serving Judge of the High Court of a State or the most senior Judge of the State High Court is eligible to be recommended by the National Judicial Council to the Governor of a State for appointment to the office of Chief Judge of a State.
  • According to the learned trial Judge: “The Provision of paragraph 21 of the 3rd Schedule to the Constitution does not empower the NJC to make its choice of nominee for the office of the Chief Judge of a State based on seniority of Judges of the High Court of Rivers State.”(emphasis mine to buttress the constitutional provision as opposed to the Benue State Customary Court of Appeal law provision made by the State House of Assembly)

On the specific question whether or not, the Rivers State Judicial Service Commission was, bound to nominate only Judges of the High Court of Rivers State to the National Judicial Council for recommendation to the Governor for appointment to the office of Chief Judge of Rivers State, the trial Judge held further that, “the Constitution does not curtail or limit the power of the State Judicial Service Commission; to choose only candidates from Rivers State High Court when performing its constitutional function in advising the 1st defendant on a suitable candidate.[24]

  • Another scenario here in issue is the removal of Justice Ayo Salami from office as President of the Court of Appeal on the 11th August, 2011;After Salami’s removal, the late Justice Dalhatu Adamu was appointed Acting President of the Court of Appeal by then President Goodluck Jonathan in August 2011. He held the office of President of the Court of Appeal in an acting capacity for 15 months. After 15 months as Acting President of the Court of Appeal, the name of late Justice Dalhatu was not eventually recommended to President Goodluck Jonathan for nomination as the substantive President of the Court of Appeal by the NJC; rather, the name of Justice Zainab Bulkachuwa was recommended by the NJC to President Jonathan to the Senate on March 19, 2014 for confirmation.
  • Another episode relate to the scenario of Justice Mariam Aloma Mukhtar who could have become the Chief Judge of Kano State many years ago. But when she inched towards being the CJ there, it was alleged that the ‘powers that be’ in the state were reportedly not comfortable with the possibility of her heading the state judiciary then a conspiracy ensured wherein they got her elevated to the Court of Appeal. Although she missed the chance of being (a mere) state CJ, Mariam Mukhtar also got elevated again to the Supreme Court. Some people think she was equally promoted upstairs so that she might not become President of the Court of Appeal. While marking time and progressing gradually in the Supreme Court, time and chance worked for her as some older justices retired and behold, she became the first female CJN.
  • Back in the 1990s in Cross River State, then Chief Judge, Edem Koofreh, having held the office for several years was nearing retirement. A certain Justice Emmanuel Effanga was the next most senior judge to Koofreh. As he neared taking over on the imminent retirement of Koofreh, there was grapevine feed of elevating Justice Effanga to the Court of Appeal which he reportedly was not agreeable to. Justice Effanga stayed back in the Cross River State High Court until he later succeeded Koofreh as chief judge. Another point to note is that quota system appointing judges to the superior Bench if one come from a state or geopolitical area where there are many qualified people to choose from, it would take you a longer time to make it to higher courts than your colleagues from areas with fewer qualified persons. This means that by the time one make it up there, your contemporaries from the ‘less-endowed’ states who already have been on the Bench become your seniors and they would, naturally, head the Bench before you or you may even retire on account of age, before the younger ones. This could explain why for many years JSCs from the South did not emerge the CJN, especially as no highest-ranking JSC was ever side-stepped in the appointment of the CJN[25].
  • The politics of appointment also trailed in the submission and delayed submission and confirmation of Justice Onnoghen as the substantive Chief Justice of Nigeria which many critics deployed the unnecessary conspiracy theories. Justice Onnoghen was appointed Acting Chief Justice of Nigeria on November 9, 2016. Onnoghen’s appointment as acting CJN did not just happen. He was the most senior justice of the Supreme Court at the time. He was equally recommended by the NJC to be appointed CJN on October 11, 2016 following the long established tradition of the Supreme Court to appoint the most senior justice as the CJN. Instead of appointing Justice Onnoghen as the substantive CJN, the President rather appointed him in an acting capacity which appointment has a window period of three months within which a new CJN must be appointed. The delay in submitting the name of Justice Onnoghen to the Supreme Court for confirmation sparked a media war and propaganda which in turn heated up the judicial polity for the reason that no one from the southern part of Nigeria had been appointed to serve  as the CJN since Justice Ayo Irikefe left in 1987.

To address the longstanding advocacy for reforms in the mode of appointment of judicial officers by citizens and various organisations, the NJC, announced new extant Guidelines and Procedural Rules for the appointment of judicial officers of all Superior Courts of Records in Nigeria 2014. Under the Rule 4(i) candidates for elevation to the higher Bench must have the following criteria:

(a) Good character and reputation, diligence and hard work, honesty, integrity and sound knowledge of law and consistent adherence to professional ethics as may be applicable;

(b)   Active, successful practice at the Bar, including satisfactory presentation of cases in court as legal practitioner either in private or as a legal officer in any public service;

(c)   Satisfactory and consistent display of sound and mature judgment in the office as a Chief Registrar or Chief Magistrate;

(d)   Credible record of teaching law, legal research in reputable university and publication of legal works, and in addition to any of the above;

(e)   In the case of appointment of a candidate to the office of Kadi of a sharia court of Appeal, knowledge of Arabic language and grammer. rules provides that, upon compliance with Rules 1 – 4 of these rules, the chairman of the Judicial Service Commission/committee shall advice or as the case may be, recommend to the National Judicial Council by a memorandum which shall conclude with a clear declaration that the NJC Guidelines and Procedural Rules have been complied with strictly and fully.

 

Rule 6 provide further that:

(1)       Every candidate/Judge, Justice/Chief Judge/Legal Practitioner, who has been shortlisted shall undergo interview to be conducted by the NJC to ascertain his or her suitability for the judicial office.

(2)       the mode of interview shall be determined by the council.

(3)       …..

(4)       A candidate who is unsuccessful at the interview shall not be recommended for appointment by the council.

(5)       A candidate once rejected on the ground stated in Rule 4(4)(ii) shall not be represented to the council for at least another two years or such period as the council may direct.

 

The question that begs for answers is whether these provisions are sufficient for the appointment of persons to the sensitive position of Judicial office who may in no distance would became a head of Court? Whether these new rules advocate a better and more merit based, competitive and transparent process than the old? In what way would the process be a safeguard of judicial office from being politicised, or from being vulnerable to high-profile lobbying or even institutional nepotism? Perhaps, in an attempt to remedy the tainted process of nominating persons for vacancies for judicial offices, NJC disclosed that it will henceforth advertise[26] to fill vacancies through the introduction of more stringent measures to make sure that only honest, hardworking, untainted, best minds with and high moral standards lawyers become Judges[27].Succinct as these guidelines may be, certain questions call for further interrogation such as; what does good character and reputation, diligence, hard work, honesty, integrity and sound knowledge of law mean? Who determines and what are the objective standards of prescription? Why equate reputation and integrity when integrity is a self-seeking reflection and evaluation thus becoming highly subjective. What is the basis or yardstick for assessing good character?  What again does active and successful practice at the Bar means? Is it same with continuous and consistent legal practice? What does rule 4(i)(d) mean by university? Does that include research institutions or it excludes? Again, what constitute reputable university within the context of the expression? Who and what is the definition of an untainted lawyer?

 

3.2         Appointment of Heads of Courts of Record: Comparative Approach

Comparative lessons exist with a view to providing an overview of the various approaches taken by some member states to these matters and identify best practices from a rule of law perspective. In the United States where Nigeria copied the presidential system of government, the Chief Justice presides as the head of the United States Federal Court system. The Chief Justice is one of nine Supreme Court Justices; the other eight are the Associate Justices of the Supreme Court of the United States. The Chief Justice is the highest judicial officer and doubles as Chief administration officer. The Chief Justice leads the business of the Supreme Court and presides over oral arguments. When the Court renders an opinion, the Chief Justice-when in the majority, decides who should write the Court’s opinion. The United States Constitution does not explicitly establish the office of Chief Justice, but only presupposes its existence with a single reference[28] where it provides to the effect that, “when the President of the United States is tried, the Chief Justice shall preside”.[29] Beyond this mention, nothing more is said in the Constitution regarding the office including any distinction between the Chief Justice and Associate Justices[30] of the Supreme Court, who are not mentioned in the Constitution. The Chief Justice is usually nominated by the President of the United States and confirmed to sit in the Court by the United States Senate. While the Chief Justice is appointed by the President, there is no specific constitutional prohibition against using another method to select the Chief Justice from among those Justices, properly appointed and confirmed, to the Supreme Court. The necessary implication of the United State process is that, there is no autonomous body like the NJC that recommends for any appointment, and there exist no process that permits the Justices to select their own Chief Justice.[31]

 

This procedure and processes enabled three Associate Justices to receive promotions to Chief Justice namely, Edward Douglas (1910), Harlan Fiske Stone (1914) and William Rehnquist (1986) and when Bush nominated John Roberts as Chief Judge, Roberts had never been in the Court. The general criteria for selecting Supreme Court Justices in the US are based on highly professional qualifications (as lower court judges, legal scholars or private practitioners). The nominees are evaluated by the American Bar Association’s Standing Committee on the Federal Judiciary; Integrity and Impartiality and other issues are the determining factors. There  are other considerations too(as President Barrack Obama did in 2009, when announcing his nomination of Judge Sonia Sotomayor to the Court, said,)“such as “mastery of law,” the “ability to hone in on the key issues and provide clear answers to complex legal questions” and “a commitment to impartial justice.” The President added that additional requisite quality was “experience” which he explained was experience being tested by obstacles and barriers, by hardship and misfortune, experience, persisting and ultimately, overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live. And that is in a way a necessary ingredient in the kind of justice we need in the Supreme Court. A president, as well, may consider additional factors when the Supreme Court vacancy to be filled is that of the Chief Justice. Besides requiring that a candidate be politically acceptable, he should also have excellent legal qualifications and enjoy a reputation for integrity, a president might be concerned that his nominee has proven leadership qualities necessary to effectively perform the task specific to the position of Chief Justice. Such leadership qualities, in the President’s view could include administrative and human relations skills, with the latter, especially important, in fostering collegiality among the Court’s members. The President also might look for distinction or eminence in a Chief Justice nominee sufficient to command the respect of the Court’s other justices and as well enhance public respect for the Court. A President, too, might be concerned with the age of the Chief Justice nominee, requiring, for instance, that the nominee be at least of a certain age (to ensure an adequate degree of maturity and experience relative to the other justices) but not above a certain age (to allow for the likely ability to serve as a leader on the Court for a good number of years. In India, there exists no specific provision in the Constitution for appointing the Chief Justice, who, as a result, is appointed like the other judges.[32] However, conventionally, the outgoing CJI recommends the name of the senior-most Judge (i.e. by date of appointment to the Supreme Court) for appointment by the President of India, as his successor. Notwithstanding, this convention has been breached on a few occasions, when during the tenure of Prime Minister Indira Gandhi, she got Justice A.N. Ray appointed as CJI, superseding three Judges senior to him.[33]

Comparatively, in Nigeria, the criteria, procedure and safeguard as to the appointment of who to head a court is constitutionally provided. Although, the constitution of Federal Republic of Nigeria (FRN) provides that “the state social order is founded on ideals of freedom, equality and justice”[34] and further provides for the independence, impartiality, and integrity of courts of law, but in practice, the independence of the judiciary arm of government is more mythical than real in Nigeria. The theoretical independence, impartiality and integrity of courts are mostly tainted due to the influence and most a times usurpation by the ever powerful Executives and the Legislatures.

The judicial experience in Nigeria shows an arm of government without constitutional or statutory independence either in terms of substantive independence, personal independence nor internal independence. An example is the case in respect of Ayo Salami’s removal and suspension as President of the Court of Appeal, which was connected to his refusal to bow to pressure from the former CJN, Justice Katsina Alu, to throw out a petition relating to the gubernatorial elections in Sokoto State. It was alleged that Justice Katina Alu did not want the Governor’s election to be nullified by the Appeal Court Tribunal so that the Governors removal will not undermine the Sultanate interest but which the then Justice Salami did not succumb.

The deductions from the foregoing provisions of the constitution show that, the framers of the Nigerian Constitution, like all makers of constitutions in a presidential system of government, provided for separation of powers with checks and balances to regulate powers within the arms of government. But the implication of this on the practice in Nigeria is that, it is practiced flexibly with the potential harm of jeopardising the very essence of the independence of the judiciary. Indeed, the 1999 constitution has in terms of appointment of heads of courts has not guaranteed a substantial level of independence but has virtually placed the judiciary at the feet of the executive branch of government.

 

4.1  Issues in the appointment of who heads a court of record in Nigeria; Appointment of the Chief Justice of Nigeria in perspective

The question of whether the appointment of a person to the exalted office of Head of a Court of Record in Nigeria should be guided by the question of either merit, seniority or other considerations that will call into interplay of politics, can only be answered within the confines of the constitution of Nigeria. Noteworthy is the fact that even the Extant Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all superior courts of Records in Nigeria, 2014( although a subsidiary guideline) have equally failed to reference on the matter.

 

Traditionally, the question of who becomes the CJN is not premised on constitutional provisions but rather on tradition of seniority and ethnic balancing and not on the 1999 constitution. The criteria of who to be appointed the chief justice is provided by section 231(1) of the constitution while the qualification for appointment of same is provided by section 231(3); the makers of the constitution did not make seniority or tradition one of the qualifications for appointment. Rather, the provision of section 231(4) referenced “seniority’’ only with reference to the appointment of a person in notional acting appointment. Additionally, elementary rules of interpretation of statutes make it abundantly clear that, section 231(4) of the constitution does not govern the appointment of a substantive chief justice. It is the further submissions of the writer, the office of the CJN is not promotional position or reward to long stay on the bench but rather it is an appointive position which is based on the provisions of section 231(1).

Another issue of importance is that of the independence of judiciary as well as that of the National Judicial Council, as stipulated under section 21 of Part 1 of the third schedule, particularly as it relates to the power of the council to appoint who heads a particular court. The discourse is seen from the perspective of an independent judiciary being one of the cornerstones of democracy; threat to that independence haven surfaced in Nigeria rapidly in recent days, the recent tactical meddling in the appointment of the Chief Justice of Nigeria is one such incidences. The Judiciary has, in real sense, not been independent as it ought to be in Nigeria over the years despite a clear cut constitutional guarantee of independence. The constitution provides that; the state social order is founded on ideals of freedom, equality, and justice: the independence of the judiciary, impartiality and integrity of courts of law and easy accessibility thereto shall be secured and maintained. While this provision is commendable, it is important to observe that this provision is of the fundamental objectives of Directive principle, itself being a non justifiable provision under the constitution of Nigeria. The necessary implication is that, it becomes anachronistic that this provision is inserted under this head and being so, it means that, the constitution itself after providing for independence of the judicial arm renders such independence unenforceable. It is thus within the established framework that the role of the NJC and JSC, is viewed as it relates to the constitutional and institutional prerequisites for insulating Judges from the external influences of those who wield power.

The NJC is constitutionally regulated and composed of perceived people of honour. Under the third schedule, part 1 of the constitution, the NJC is comprised of the following members –

  • The Chief Justice of Nigeria
  • The next most senior Justice of the Supreme Court
  • The President of the Court of Appeal
  • Five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal
  • The Chief Judge of the Federal High Court
  • Five Chief Judges of States to be appointed by Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years
  • One Grand Kari to be appointed by the CJN
  • One President of Customary Court of Appeal to be appointed by the CNJ
  • Five members of Nigerian Bar Association at least one of whom shall be a Senior Advocate of Nigeria

While the State Judicial Service Commission is regulated under the third schedule Part II and comprises of the following: The CJ of a State, the A.G of a State, the Grand Kadi of the Sharia Court of Appeal, The President of the Customary Court of Appeal, two members who are legal practitioners of good standing, two other persons not being legal practitioners who are of unquestionable integrity.

 

NJC is an executive body established by the Federal Government of Nigeria in accordance with the provision of section 153 of the 1999 Constitution (as amended) to protect the Judiciary of Nigeria from the whims and caprices of the executive. Its sole responsibility is promoting legal professionalism. While section 153 statutorily constitute the NJC, section 158 (1), states that in exercising its powers to make appointments or to exercise disciplinary control over persons, it shall not be subject to the direction or control of any other authority or person. The core value and intent of section 158 (1) of CFRN 1999 is to preserve the independence of the Judiciary in both its subjective and objective sense of direction. In support of this view, the Court of Appeal in Manuwa v. National Judicial  Council[35] held that the purport of section 158 (1) CFRN 1999 is that the NJC shall remain independent and shall not be influenced by any person or authority while exercising its powers to make appointments or exercise disciplinary control. According to the Court, the independence of the NJC in respect of appointments starts from the point of recommendation to either the president or Governor as the case may be and during this process, no authority or person can interfere by giving directives or exercising any form or control over the Council.

The vesting of this onerous power on the NJC can be justified on the ground that apart from the peculiar advantage which the Council has by virtue of the calibre of its membership to assess the performance and industry of judges, the Council is also seized of all relevant materials and information on all judicial officers and is placed in the best position to make informed recommendations to the state Governors[36] as well as to the President.

However, as succinct as the foregoing powers are appraised, the role played by the Attorney General of the Federation (AGF)[37] in the Salami saga following his uncanny role in the continued suspension of the then President of the Court of Appeal (Justice Isa Ayo Salami as he then was) when he played the proverbial black sheep by waving the word “Subjudice” as a magic wand capable of scaring away a perceived enemy of the government in power. According to Adoke, “until all the pending litigations are disposed of, President Jonathan will not reinstate the suspended PCA”[38]. In reaction, the NBA/NEC (Nigerian Bar Association and National Executive Council)[39] considered the recent NJC recommendation to the president of FRN to recall the Hon. Justice Isa Ayo Salami back to the office of the president of the court of Appeal of Nigeria and condemned the refusal of the president to do so on the pretext of pendency of litigations in court “NBA/NEC considered the decision was made in bad faith as there was pending litigation when the original decision to suspend him was taken”.

Flowing from the foregoing facts as presented, the role of the executive in negating the recommendation of the NJC to the president amount to an unusual interference with the Judiciary contrary to the independence of the judiciary, separation of powers, rule of law, checks and balances that exist in the functions of the three arms of government. Independence of the judiciary which is the cornerstone of the rule of law demands that the judiciary should not be subservient or subordinated to the executive arm of government in terms of the appointment, discipline and removal of judicial officers[40].

Other subterranean issues for consideration here include the fact that, if NJC is an executive body established by the Federal Government as stipulated by the constitution, why then do recommendations of the body are subjected to the executive discretions? Secondly, if the legislative powers of the Federal Republic of Nigeria are vested in the National Assembly and, the two Houses, namely, Senate and House of Representatives appoint and remove their respective leaders, namely, the Senate President and speaker of House of Representatives under their established rules, procedures and privileges without recourse to any other organ of government, why then would the NJC not appoint their respective Heads of Courts in accordance with the established rules.

Thirdly, if the president and Governors, respectively, gain legitimacy upon election without recourse to either legislative or judicial approval, why would the judiciary not is allowed to appoint the respective heads of Courts? Providing positive and affirmative answers to these questions as they relate to appointment of Administrative heads of their Courts as opposed to removal or discipline of the said Heads of Court is a sure way of Curtailing Politics out of appointment of the most qualified person as Head of a Court of record. I state with all vehemence that politics be left for the political arena and jettisoned out of the judicial appointment. This may look like a far cry just like separating water from oil and being inside the river and expecting to remain dry. The reality that stare us in the face is the unwritten rule that no one becomes a CJN or a CJ except he is ‘acceptable’ to the president or Governor as the case may be despite the NJC guidelines and constitutional provisions.

Another quagmire is the call for nomination of private lawyers for appointment to the Supreme Court bench and by extension the appointment of private lawyers to the office of Chief Justice of Nigeria. From a legalistic view, proponents and agitators for this transformation or change Mantra cannot be faulted. This view is supported by section 231 (3) of the CFRN 1999 which provide thus: “A person shall not be qualified to hold the office of Chef Justice of Nigeria or of a justice of the supreme court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years”.

Pursuant to this agitation, the then acting and now CJN, Walter Onnoghen wrote to the Nigeria Bar Association (NBA), requesting that it nominates eligible members of the Bar for consideration into the Apex Court bench. The NBA in response forwarded names of Nine[41]eligible candidates to the acting CJN for appointment as justices of the Supreme Court. The call has raised divergent views affecting the profession and the judiciary, while others see nothing wrong in the appointment, adding that in Britain, only those who are Queen’s Counsel (QC), an equivalent of Senior Advocate of Nigeria (SAN) are appointed into the High Courts. Others hold the view that the development would improve legal scholarship reasoning and that the blend or regular justices with those from the Bar would enrich adjudication at the Apex Court. While others agree that, it is not just unfair but demeaning and unjustifiable of Appeal Court Justices, some of whom have spent decades in the judiciary from high Court to the Appeal Court only to be told that a lawyer who has not held any judicial post is preferable. This, undoubtedly, will affect their dedication, morale and commitment as there is no guarantee of their promotion to the Supreme Court since lawyers can be appointed from the Bar.

While many justices of the higher courts are however, opposed to the new proposal although choosing not to express their opposition publicly,[42] have decided to block the idea by not recommending the selected lawyers to the National Judicial Council (NJC) using the extant Revised NJC Guidelines for the appointment of Judicial officers of all superior Courts of Record in Nigeria 2014 which require justices of the Supreme Court and the Court of Appeal to write an assessment for whoever seeks appointment into the appellate Courts[43].

While I do not see anything wrong in appointing private lawyers from the Bar to the Bench, I make bold to call for caution in that, it will create a wrong impression contrary to the tradition of the legal profession that any Senior Advocate in Nigeria is better suited than a serving High Court Judge or a justice of the Court of Appeal and more knowledgeable, as judge of the High court cannot be automatically appointed straight to the Supreme Court. Comparatively, there exist professors and PhD holders that join the Bench at the courts below and have risen by dint of hard work to the Supreme Court. What then stops the SANs from applying to join the Bench at the Courts below?

Secondly, I make bold to assert that, as far as Heads of Courts of Records are concerned, appointing someone from the Bar to Bench whether to the Supreme Court or court of Appeal is different from appointing him or her to a leadership position while on the Bench. Purposeful interpretation of sections 231 (1) of the 1999 constitution and the Rules of NJC, one (not necessarily based on seniority) must first become a justice of the Supreme Court before he or she is appointed the Chief Justice of Nigeria and mutatis mutandis be appointed the president of the Court of Appeal or Chief Judge of the Federal High Court or State High court or President of the National Industrial Court (NIC) as the case may be.

 

 

5.1    Observations

The 1999 constitution (as amended) is lacking exhaustive procedure and criteria for the appointment of who head a court of record in Nigeria. There are substantive and procedural loopholes in the constitutional provisions relating to such. Emphasis on meritocracy are relegated to mediocrity and technocracy as well as quota systems and federal character. The constitution therefore, needs to strengthen the conditions of appointment with clear provisions that tilt towards merit than seniority as presently enshrined. The constitution further needs to provide subtle procedures to be followed in the appointment of substantive Head of court and clear procedure for the appointment of Acting Head of Court in deserving instances. The promulgation of the 2014 Revised Guidelines for the appointment of judicial officers in Nigeria has ushered in more challenges than prospects. The guidelines have not clearly spelt out desired merit criteria creditably as done in the United States of America. Aside, it is doubtful if guidelines can alter or contradict constitutional provisions as envisaged under the supremacy provisions of Section 1(1) of the constitution 1999 The guidelines have in several paragraphs contravened and contradicted the provisions of the 1999 constitution (as amended) and have ended up creating new problems, among which is Rule 4 (4) (e) of insertion of knowledge in Arabic language and grammar for candidate to the office of Grand Kadi(being Head of a Court)  and kadis of a Sharia Court of Appeal. This provision is akin to  amending constitutional provisions and adding an additional educational requirement where the constitution have not so provided for that, a person to be appointed to the sharia court of Appeal shall be knowledgeable in Arabic( a qualification not prescribed by the constitution).

5.2         Recommendations

  1. There is the need to amend the provision of section 231 (1), 238 (1), 250 (1), 256 (1), 261 (1), 266 (1) 254 (A), 271 (1), 276 (1) and 281 (1) of the Constitution of Nigeria 1999 (as amended) to strip the President/Governors of the power of appointing the Heads of Courts of Records. The power of appointment of the various Heads of Courts should be vested in the National Judicial Council as the apex and supreme authority established for the appointment and discipline of judicial officers. The exercise of the power should however be subject to the recommendations of the Federal/State Judicial Service Commissions. This amendment will no doubt create the desired effect intended in the provisions of section 153(1) and 158(1) of the Constitution as well as promote the true spirit of the rule of law and independence of the Judiciary.
  2. The provision of section 5 Part II of the Third Schedule to the Constitution which include the Attorney-General of the State as a member of the State Judicial Service Commission should also be amended in the true spirit of clothing the judiciary with its independence as far as appointment and discipline of judicial officers is concerned.
  3. The 2014 Guidelines and Procedural Rules for the appointment of Judicial officers of all superior courts of Records should be made an integral part of the Constitution so as to give it the desired force of law beyond been a mere guideline which provisions cannot supersede the provisions of the Constitution.

 

 

[1]  Section 6(5A-I) of the Constitution 1999 (as amended).

[2]   Section 2 of the Constitution (Third Alteration) Act, 2010.

[3] Cambridge English Dictionary.  p.1011.

[4] See Black’s Law Dictionary 8th Edition.

[5] Chief Yemi Okulaja (2015) Nigeria: Legal Profession operates on Seniority. www.dailytrust.com assessed 2nd March, 2017.

[6]  Obo Effanga, Facts and Conspiracy Theories about CJN Appointment. Punch Newspaper of 27/02/2017. P. 4.

[7]  Nsobundu Chuks “Make Chief Justice of Nigeria appointment according to law and not seniority”www.thenigerianlawyer.com. Accessed 2nd March, 2017.

[8] Afe Babalola (2017) Appointment of Chief Justice of Nigeria: Matters arising. www.vanguardngr.com. Assessed 2nd March, 2017.

[9]  Obo Effanga, Op. Cit. P 6-8.

[10] See Section 230 (2) (a) 1999 CFRN.

[11] See section 231 supra.

[12] See s. 231 (3).

[13] Section 231(4).

[14]  See s. 238 (1).

[15]   Ijohor, A.A “Appointment of Judicial Officers to the Superior Courts of Benue State” in Valley of Decisions (Being Essays in Honour of Justice Iorhemen Hwande)(Ibadan:Safari Books Ltd) p.344.

[16]   Ibid.

[17]   Ibid.

[18]   Ibid.

[19]   Ibid.

[20]   Third schedule to the constitution of Nigeria,1999

[21]   Section 153 of the Constitution.

[22]  Section 271 supra.

[23]  Unreported Suit No. FHC/PH/CS/421/2013.

[24]   Adangor Z op. Cit.

[25]  Ibid.

[26]  See section 231 (1), 238 (1), 250 (1), 256 (1), 261 (1) and 266 (1) of the 1999 Constitution.

[27]   2014 Revised NJC Guidelines and Procedural Rules for the appointment of Judicial Officers of All Superior Courts of Records in Nigeria.

[28]  Per Justice Mahmoud Mohammed “Judges Now to be appointed in Advertisement”. Thisday Newspaper 15/05/2015.

[29] Article 1, section 3, clause 6.

[30]   Ibid.

[31]   Note that it is Associate Justices of the Supreme Court of United States and not Associate Justice of the United States.

[32]    Todd E “Choosing a Chief Justice: Presidential Prerogative or job for the Court?”(2006) Journal of law and politics 22:231.

[33]   Seniority as Norm to appoint India’s Chief Justice is a Dubious Connection.

http://www.lexsite.com/services/network/scba/history.shtml accessed on 9/9/2017

[34]   Section 7

[35] (2013) 2 NWLR (pt 1337) 1 pp 24-26.

[36] Adangorop.cit p75.

[37] Mohammed Bello adoke SAN, the then AGF chose to play ‘the black sheep’ Vanguard Newspaper of 06/06/2012.

[38] IkechukwuNnochir “Jonathan v Salami:why Adoke.

[39] Per J.B. Daudu SAN, NBA National President.

[40] Lord Denning, what Next in Law (Landon: Butterworth 1982) p.310 see also NWabreze B.O. Military rule and Constitutioalism in Nigeria (Lagos: spectrum Law publications, 1992)p23.

[41] Dr. OlisaAgbakoba SAN, Anthony IkemefunaIdigbe, SAN, YunusUstasUsman SAN, BaatundeFagbohunlu SAN, MiannayaAjaEssien SAN, Awa Uma Kalu SAN, Professor Awalu Hamish Yadudu, TajudeenOladoja and AyubaGiwa.

[42] Tobi Soniyi “Disquiet among Judges  over proposals appointment of Lawyers to S’Court” Thisday Newspaper of 16th March, 2017.

[43] Pursuant to Rule 3(1) a and particularly (b) which provide “except a sitting Judge supports a lawyer’s application for appointment as a Judge, his application will fail”.

Intellectual Property Rights Awareness amongst Postgraduate Students’: An Empirical Survey of Centre for Food Technology and Research (CEFTER) of Benue State University, Makurdi- Nigeria.

By

Joseph Jar Kur PhD

Abstract

The  paper examined Postgraduate Students’ awareness  and perceptions of Intellectual Property (IP) mechanisms  and Intellectual Property Rights (IPRs) using the Benue State University’s Centre for Food Technology and Research (CEFTER) in Nigeria as the plot for the empirical research. The Research was anchored on the assertion that, universities have critical roles to play in providing the skills needed for innovations as the world migrates towards knowledge driven economy by which Universities practicalise their institutional capacities to convert knowledge and information into tangible economic assets. In this environment, critical stakeholders such as postgraduate students, lecturers and indeed the administration must have fair amount of awareness or knowledge of IPRs. In this paper, efforts were made to identify the level of awareness, modes of acquiring the knowledge of IPRs, questions of ownership of IP, conditions of patentability, licensing and commercialisation and IPRs policy considerations at the University. The empirical data were collected through questionnaire and interview method. A total of 115 questionnaires were distributed among the Nine (9) accredited programmes comprising 21.8% of doctorate (PhD); 69.0% of Masters ( MSc) degree and 9.2% of  Postgraduate Diploma (PGD) research students of the Centre. Eighty-Seven (87) representing (75.65%) were received. The findings demonstrate that, majority of the postgraduate students  representing 25.3% (strongly agreed) 2.3% (strongly disagreed) 63.2% (Agreed) 9.2% (disagreed) indicating  passive understanding of the IP system which they acquire through an informal and adhoc gathering processes than through a formal learning process that, can lead to the desired spin-offs that can help to create an emerging innovative business sector. The result equally found that, Benue State University do not have a well defined IPRs policy as advocated by World Intellectual Property Organisation (WIPO) and National Office of Technology Acquisition and Promotion (NOTAP). These scenario has created a weak policy base that is in itself   inhibitive of an effective IP system. The result calls for the need of the training aspect through a differential approach and needs of interest. That the University and the Centre  should develop a holistic IPR policy on ground and the curriculum of the programmes  tailored towards enriching the students’ knowledge of IP awareness for increased productivity and improved relevancy of achieving the desired results of postharvest losses prevention. The University should as a matter of urgency adopt an IPRs policy that will determine in clear terms, critical issues of IP ownership right, right to commercialisation and IP income sharing schemes among the stakeholders so as to avoid future possible litigations. Keywords: Right, Ownership, Patentable Inventions, Commercialisation, Publicly Funded Research, Postgraduate Students, Centre for Food Technology and Research (CEPTER), Benue State University.

  • Introduction

Adequate understanding and awareness have become indispensable tools in the dynamics of the knowledge- based economy and the 21st century. Accordingly, members of the university community-including Administrators, management, staff and students- should all have sufficient access to IP literacy and information. For the students, this necessarily involves gaining an understanding of their institutional IP policy and how it affects their potential rights and obligations; since most students more often than not engage in activities that may result into intellectual acquisitions and infringements. The inventions can occur, for instance, when students are working on entrepreneurship projects, when they are working in the laboratory experiment as part of their research experience or during industrial attachment. Some of these inventions as showed in table ”A” and “B” below could  have real economic value and may become patentable. The question that may arise then would be; who owns the patent and the intellectual property therein? The issue becomes germane because, student-generated IP may overlap the clear-cut employment context and raises other unique set of problem concerning ownership involving with other IP- related rights such as licencing and royalty collections.

Leveraging on the foregoing assumptions, the research seeks to find out if there exist any consensus in the university on how to manage IP generated by students whether undergraduate or postgraduate; how and when a university should claim ownership of student IP and the need to raise awareness about the key issues and decision points involved in the process. Other vital issues under consideration include, who owns the patent rights? Is ownership of patent different to ownership of result of research? What are the possible IP ownership schemes for inventions resulting from publicly-funded research?  What are the best approaches in dealing with IP issues at the university? In adumbrating on these issues, the research focuses on the Centre for Food Technology and Research (CEPTER) of  the Benue State University, the  partnership  which is a  programme funded by the World Bank in collaboration with Benue State University for control of post –harvest food losses; where students are engaged on developing programmes and projects that could make significant differences in reducing postharvest losses through ground breaking discoveries , innovations or inventive postharvest technologies. The Centre has student researchers from various disciplines such as chemistry who are targeting areas of chemistry that make food substances subject to spoilage quickly and how it can be prevented and extended. Some students in the Department of vocational and technical education who  develop projects that enable food preservation.  There are other students in physics Department who use solar energy technologies   to design equipment that can capture sunlight and concentrate it on drying food. In addition to the students,  research efforts, there are staff  on tenured appointments while some others are engaged on contract basis while a host of others are engaged as visiting staff all of who work in collaboration for postharvest research and evaluation exercises.

 

 

2.1 Objectives and Research Questions

The main   objectives of the research is to examine, Postgraduate students’ understanding of the Intellectual Property Law system in general and the patent system in particular as they undertake projects that do have  commercial  value and in some instances of patentable qualities in the execution of control of post-harvest food  losses at the  Centre for Food Technology and Research (CEPTER), The objective is to highlight the challenges that the university might face in the future and the need for the institution to overcome same through policy migration and adaption. Other objectives include the challenges in promoting and protecting intellectual property(IP) at the institution and illustrate why universities generally and in particular, Benue State University need to increase their efforts to educate students on what IP is and why it matters and its dictates. The research specially, adumbrate on the desire of Benue State University in making IP a key focus in her effort to leverage her research output, by obtaining a greater number of patents and then licensing them to industries with the hope of boosting her revenue base and speed the introduction  of the results of their research into the market.

3.1. The Legal   Dialectics of the Right of Ownership of Patentable Invention

3.1.1.   Legal Conceptions and Conditionality for Patent.

The Patents and Designs Act which is the governing legislation, does not proffer a definition of patents. Section 32 of the Act mainly defines a “patent application” as an application for the grant of  a patent and a “patentee”[1] as the person to whom a patent has been granted For the purpose of this paper,  a working definition of patent(s) is defined by Kur[2] and same is adopted that, “A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assigned) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, constitute an inventive activity and is, useful or industrially applicable”[3]. The criteria for Patent Protection in Nigeria are governed by the Patents and Designs Act.[4] The relevant sections provides thus:Subject to this section, an invention is patentable (a) If it is new, results from inventive activity and is capable of industrial application; or (b) If it constitutes an improvement upon a patented invention and is also new, results from inventive activity and is capable of industrial application.”[5] Section 1(2) of the Act further interprets the applicability of section one above thus: “For the purposes of subsection 1 of this section (a) an invention is new if it does not form part of the state of the art;(b) an invention results from inventive activity if it does not obviously follow from the state of the art, either as to the method, the application, the combination of methods, or the product which it concerns, or as to the industrial result it produces; and (c) an invention is capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture”.

The hallmark of section 1(1)(a) denotes a scenario of an invention while section 1(1)(b) denote the scenario of an innovation in the field of technology. Protectable subject matters refer to products or processes that are new and useful for diverse purposes including transport, health, communications, household equipment, et cetera. Ipso facto, patent may be used to protect new or improved electronics, mechanical and chemical products such as electric bulbs, motor vehicles, aeroplanes, different medicinal products, beauty care products, refrigerators, cookers, washing machines and other products.[6] The effect of a patent grant is to confer on the patentee, the right to exclude other certain commercial acts or exploitation of the invention, such as in cases where the patent has been granted in respect of a product, the act of: (a) making, (b) importing, (c) selling, (d) using or (e) stocking for sale or use of the product. And in cases where the patent has been granted in respect of a process, the act of (a) applying the process or (b) making, importing, selling, using, stocking for sale or use of the product obtained directly by means of the process. With the monopoly granted, the inventor has the right to prevent or stop others from competing with him so as to enable him recoup his investment in time, resources and mental ability or idea. The patentee may then take benefit of his labour by:

  1. Commercializing the product (and/or if a research tool, engage in further research on it).
  2. Giving licences to exploit the invention to others in return for monetary consideration.
  3. Share the benefits by collaborating with others in exploiting the invention. The right given to a patentee allows him to benefit from the fruits of his labour.

 

The law of patent focuses on functionality or usefulness of a product or process. According to WIPO (World Intellectual Property Organisation), the patent system contributes to technological development in five main ways:

(a)        As an incentive to creating new technology;

(b)        By providing an environment which facilitates the successful industrial application of new technology;

(c)        By facilitating technological transfer;

(d)        As an instrument of technological planning and strategy; and

(e)        Through the provision of an institutional framework which encourages flows of foreign investment.

Conversely, the scope of patentable subject matter is severally limited by the Act and the Act[7] provides as follows:

(a)        Plant or animal variety, or essentiality biological processes for the production of plants or animals (other than micro biological processes and their product); or

(b)        Inventions the publication or exploitation of which would be contrary to public order or morality

(c)        Principles and discoveries of a scientific nature are not inventions for the purposes of this Act.[8]

3.1.2 Non-obviousness, Prior Art and Development of Technologies for reducing Post-harvest Losses

The Patent Statute prohibits the granting of patent where the invention “…obviously follow from the state of the art”[9] either as to the method, the application, the combination of methods, or the product which it concerns, or as to the industrial result it produces. Indeed section 2(3) of the Act provides:

In subsection (2) of this section, “the art” means the art or field of knowledge to which an invention relates and “the state of the art” means everything concerning the art or field of knowledge which has been made available to the public anywhere and at anytime whatsoever (by means of a written or oral description, by use or in any other way) before the date of the filing of the patent application relating to the invention…

 

The implication of the non-obviousness requirement is that, before any invention or improved invention or innovation is to be granted a patent,[10] an applicant has to meet high procedural and substantive standards. The non-obviousness requirement is often considered the core requirement of patentability. It has been called the “Ultimate Condition of Patentability”.[11] An inventor is not entitled to a patent if her invention would have been obvious to someone working in the field, if that person took into account the entire “prior act” (everything in relevant fields that had been published, in public use, and so on).[12]The logicality of the grant of a patent is that, a claim which lacks novelty is said to be anticipated and a claim which lacks an inventive step is said to be obvious. Hence, to qualify for grant of a patent, the inventive step taken by the inventor must not be one which is obvious, or which follows logically from available information about the product or process. The inventor is required to have duly exercised his inventive faculty in a manner considered sufficiently ingenuous to justify the grant of the patent; otherwise the patent may be invalidated on the ground of lack of inventive activity. Obviousness therefore becomes a vital watch word for an innovator so as to save time, energy and resources over improvements that may in the end be qualified as lacking in inventive activity. Obviousness can be learnt from the ice-cold innovation project instance for the reduction of post-harvest losses otherwise known as the CoolBot system. The CoolBot system was spearheaded by one Dr. Jane Ambuko of the University of Nairobi, Kenya[13] wherein the inventor has designed and manufactured a cold storage that can preserve produce for at least two weeks as compared to two days for highly perishable fruits and vegetables exposed to room temperature. The CoolBot system, which uses a standard domestic air conditioner equipped with a control mechanism to maintain a room at the desired low temperature depending on the produce being stored. The system cost about 3,000 US Dollars. This post-harvest technology has been successfully introduced in Bangladesh, India and the United States.Similar innovative effort can be found in the  Solar Crop Dryers- Designed and constructed to replace the traditional open –to-sun technique to dry agricultural products and manure; As well as solar chicken brooders designed to replace electricity, kerosene or gas heated chick brooders[14].

  • Ownership of Intellectual Property Rights and University Policy Considerations

Depending on the policy of the university, newly generated student IP may be construed as belonging to either the institution or the student. In general, IP laws in each country- particurlary those legal systems that are rooted in English Common Law- grant default IP ownership rights to the inventor or author unless he or she knowingly agreed otherwise[15]. For there to be a legally binding contract, there must be consideration. That is, the university must give something in exchange for student’s rights to his or her invention. Thus university IP policy, as it relates to students, has to be carefully worded, widely disseminated and fair[16]. Universities do define the nature of intellectual Property and who may own same in the circumstances. In addressing the issue of ‘identification of university generated IPs’, the WIPO Guidelines under ‘coverage of IP Policy’ identifies eight IPs relevant to university researches namely: Patents, Utility Models, Industrial Designs, Copyright in literary works, Geographical Indications, Trademarks and Trade Secrets.[17]  The NOTAP Act  has similarly identified with the WIPO  but has added ‘Know-How.’[18]   The University of Ibadan identified all IPs in WIPO Guidelines and added “UI Logo”, technology-based materials in online courses and Distance learning, research proposals, traditional knowledge and any other IP-related assets, created by persons covered by the policy”[19].  The Ahmadu Bello University has equally  provided for Copyright, Patents, Electronic Online Materials and Trademarks.[20] It is instructive to observe further that, none of the universities mentioned and indeed several others have no provisions on Domain Names provisions and this is grave. The  Benue State University could leverage on this practical elsewhere to provide a conducive, comprehensive and up to date IP amenable guidelines that will include not just the routine IP species but that which will include BSU Logo, Electronic Online materials, domain names etc.

In addressing issues on ‘Ownership of IPs’, the WIPO model Guidelines provide for ‘the standard principle’[21] and provides as following:

i       University Ownership of IP

  • Course of Employment: Ownership is vested in the university if IP results from normal course of employment or responsibilities and /or if significant use of university resources (e.g. fund, university committed time, equipment, laboratory etc) is used.
  • University Commissioned Work: Unless varied by written agreement, university owns all IP( including ESW[22]) resulting from research by anybody hired or commissioned by the university for that purpose.
  1. Ownership of Sponsored or Collaborative Research
  • Sponsored Work: Ownership of sponsored research will be governed and determined by terms of the grant or agreement.
  • Collaborative Work: If there are several inventors in a collaborative research, ownership will be jointly shared subject to terms of collaborative agreement.

iii.         Individual Ownership

  • Individual Invention: IP generated by use of employee’s own time and without use of University’s resources belong to the employee.
  • Assigned Invention: University may refuse, fail, neglect or delay to file for patent application over which it asserts ownership. In such cases, the university may select to assign ownership to the true inventor(s); the individual Assignment may also be subject to application by the inventor to whom the university assigns in writing subject to sponsorship restrictions.
  • Students’ Researchers: All IP generated from students researchers belong to the students unless the said research enjoys university funding, grant or financial aid or resulting from significant use of university resources or is subject to terms of an external research grant or sponsorship agreements.
  • Exempted Scholarly Works (ESWs): these are Students’ thesis, Dissertations and Project works. The ownership automatically vest in the student author subject to royalty-free licence of the university to reproduce and publish.

The NOTAP’s Guideline for IP ownership is in pari material with that of WIPO Guidelines except with the addition that, where equipment such as office, Lab, studio, computer hardware, et ce tera  are  acquired pursuance to an externally funded research, ownership of the equipment shall at the completion of the research revert to the university as university’s property[23].

            Intellectual Property Income Sharing: IP income sharing policies are also well outlined. According to the WIPO Guidelines rules 111 and 112(as adopted by NOTAP) is as follows:

  • General Revenue sharing principle for patented and commercialized invention made by a university employee using institution’s resources is as following:
  • Gross Income: this goes to the university until the expenditure for protection and exploitation of the IP is subtracted.
  • Net Income: this is shared between the inventor and the university. The trend is the university’s percentage share increases with the increase in the net total revenue while the percentage share of inventor decreases with increase in the net total revenue.
  • Each institution determine its stakeholders such as, the inventor’s research group, campus, a faculty, scholarship fund, patent fund, Technology transfer Office and the University et ce tera.[24] BSU do not have an income distribution arrangement as does other universities such as the ABU Policy that contains the following ratio under Article 3.11:
  • Lump Sum
  • Inventor-40%
  • University- 60% ( to defray all incidental expences)
  • Royalties
  • Inventor -33%
  • Department-33%
  • University-34%

The  Benue State University (BSU) Regulation is disturbingly silent on ownership and has not reflected on categorization of ownership as to whether individual or students’ researches nor formulated policies on collaborative research. The general provisions reflecting research ownership and assignment are generally ambiguous. The University has no IP policy so to say, except for the Regulation Governing the Conditions of Service for Senior Staff[25] references inventions[26] and by implication copyright[27].The Conditions of Service provide as it relates to inventions thus:

S.14.1 A member of staff [28]who has made an invention during the course of his work shall

immediately report it to the Vice Chancellor. Staff shall, at the expense of the University if so

required by the Vice Chancellor lodge an application for provisional protection of the

patent.[29]

 

 

S.14.3 As soon as practicable, the Awards Committee shall recommend,[30] and Council will

decide, whether the member of staff shall be allowed controlling rights in the patent. Pending

Council decision, the rights shall be deemed to belong to and be held in trust by the

University. Where an invention is in all respects alien to the employment of the member of

staff, he will normally be granted the controlling rights. If the member of staff is allowed the

controlling rights, the following provisions shall apply:

 

  1. Staff will be responsible for all expenditure for taking out the patent.

 

  1. Council may attach to its decision such conditions as it may think fit and in particular, may

reserve to the University a right of user of the invention free from royalty and/or may reserve

the right to a share of any commercial proceeds.[31]

 

 

S.14.4 If the staff is not allowed controlling rights of patent, the following provisions shall

apply:

 

  1. i) The staff shall assign all his rights in the invention to the University.

 

  1. ii) The University shall be responsible for all expenditure in taking out the patent.

 

iii)        The University Council shall decide whether the staff shall be allowed a share of any

royalties or commercial proceeds.[32]

 

 

S.14.5 Whether or not he is allowed controlling rights the member of staff may apply to the

Awards Committee for an award in respect of his invention. In fixing the amount of any

award or share of any commercial proceeds:

 

  1. Any reasonable expenses incurred by the member of staff in respect of the invention

shall be taken into account.

 

  1. The reservation of the right of user, free of royalty by the University, shall not be

taken into account, but if and when such right is exercised by the University, a

material change calling for modification of the award shall be deemed to have taken place.[33]

These provisions though quite draconian in spirit, and wordings are only applicable to

Members of staff and does not include other researchers like students. Additionally, the rule

as it exist  is not in tandem with global practices and if Benue State University indeed wants

to be a citadel of knowledge within the community of world best Universities, then the

Council of Benue State University should amend same. This practice creates unhealthy and

inhibitive innovative practice in research and development pattern at the university and this

calls for a better management tool so as to identify, harness, secure, manage and exploit the

intellectual property the university may generate. The provisions are draconian because,

several factors help to establish who owns a University invention and what rights the

University may or may not, have. These factors include whether, there are express or implied

agreement to assigns ownership; whether the inventor is employed by the University; whether

the invention was made within the scope of employment and where and when the invention

was made[34]. The starting point of the law is that individuals own their inventions except

through an Invention Assignment Agreement (IAAS), there exist an express agreement

providing for assignment of inventions to an employer; and where an implied agreement to

assign is found because the employee:

  • was hired or assigned to invent,
  • was hired or assigned to solve a specific problem,
  • Served the employer in a fiduciary (president of a commercial company, for example).

Where no written agreement exists and no implied contract to assign is found, the inventor will own the invention. To address these questions, Japanese patent law has introduced the notion of an “employee’s invention”[35] and gives individual inventors the right to apply for patents at the expense of the employer.

3.4 Intellectual Property Rights Ownership and Awareness: Practical Considerations at Benue State University

The Centre for Food Technology and Research (CEFTER) is a Centre of Excellence established to cater for control of Post-Harvest food losses. The core mandate of CEFTER includes:

(a)        To develop a critical mass of well-trained students in the control of post-harvest losses;

(b)        To empower African researchers to identify technologies that will reduce post-harvest losses;

(c)        Development of technologies through applied research for reducing post-harvest losses;

(d)        Engage communities, farmers and industries in the development and dissemination of technologies in post-harvest losses.[36]

Since its establishment, the Center distinguished itself in 2015 when it won a World Bank grant for the establishment of an African Centre of Excellence (ACE) in Nigeria for the development of research to reduce post-harvest losses. Pursuance to CEFTER’s mandate, the following technologies were developed by students of the centre as herein captured and indicated by tables “A” and “B”:

 

 

 

S/N NAME OF ENTREPRENEUR DEVELOPER. STATUS PRODUCT (S) VALUE ADDITION AND BENEFITS SUGGESTED REGISTRATION REMARKS
1 Tar Sesugh MSc. Post harvest engineering student. Passive solar drier for drying of vegetable products. *Environmental friendly.

*Economical saves time and energy

Patentable invention University has not made effort to register
2 Michael Tersteagh MSc. Post harvest engineering student. Active solar drier for drying of tomatoes *Environmental friendly.

*Economical saves time and energy

Patentable invention ditto
3 Apaa Jacob MSc. Post harvest engineering student. Improved the shelve life of mango fruits using gamma irrigation and evaporative cooling *No preservatives.

*highly nutritious and well packaged to sustain life shelf.

Process invention(but not available in Nigeria) ditto
4 Beba Shedrach Luper MSc. Food science and Technology Produced bread from wheat default and beetroot composite flour. Fortified with vitamins and recommended for diabetic patients. Trademark ditto
5 Veronica Angbiandoo Ashaver MSc. Food science and Technology Produced pulse electric field equipment in the treatment of orange juice. Improved technology Patent. ditto
6 Josephine Njoughul MSc. Food science and Technology Came out with quality studies on living stone potato Improved knowledge Discovery Ditto
7 Aben Ben PhD. Fish post harvest technology Fabricated and improved fish drier. *portability

*Mechanically operated and does not require electricity.

Patent ditto
8 Aben Ben PhD fish post harvest technology Produced fish fortified baby formula and fish spices Natural and hygienically processed and nutritious. Trademark Ditto

The table ‘A’ above shows products invented and value added products executed by postgraduate students waiting for sign-up on the indicated IP platform.

Apart from the above products and products improvements, a lot of value added products that also add to innovative assets and value chain on the agricultural products  that can nevertheless constitute properties of Intellectual Property creation in patent, trademarks or trade secrets include:  Products like the “Demobilizing Spray” (which can be used in place of tear gases by security personnel and citizens alike) which was developed by a group of researchers from pepper with an utility model or inventive character  under Patent and Designs Act. Other products with value addition which Students/ Researchers at the institute incubated include:

 

S/N NAME OF ENTREPRENEUR/ DEVELOPER. STATUS PRODUCT (S) VALUE ADDITION AND BENEFITS SUGGESTED REGISTRATION REMARKS
1 Group work  (products from rice) Zaza, Rice Cookies, Risem, Jannil, Tusha, Rice Cake An improvement on what is obtainable from rice with high energy supply.

-highly economical with improved packaging.

Trademark University has not made effort to register
2 Group work (Products from Fish)   Plan Fish Cookie, G Fish Cookie, Fish Ball Rich in protein, highly economical with improved packaging. Trademark Ditto
3 Group work (Products from Soya Bean) Soy Biscuits, Soy Flour, Soy Powder Milk, Soy Animal Feed, Soy Soup 100% fresh and natural. No additives, no artificial preservatives and odorless soya beans. Trademark Ditto
4 Group work (Products from Corn)   Corn bread, free sugar popcorn, corn grit Fortified with vitamin A products. Trademark Ditto
5 Group work (Products from Orange)   Orange Crunches, Orange Muffin, Orange Cookies It is a juice extracted and packaged as orange with low sugar content Trademark Ditto
6 Group work (Products from Tomato) Tomato Juice, Tomato Salsa, Tomato Ketchup, Tomato Puree Waste to wealth Trademark Ditto
7 Group work (Products from  Mango) Mango Roll ups, Mango Crisps, Mango Jam, Mango Drink Sugar free, handy and attractive. Trademark and geographical indication Ditto
8 Group work (Products from  Beniseed) Sesame oil, Sesame Milk, Sesame Yoghurt, Sesame Animal feed Raw material are sourced locally Trademark and geographical indication Ditto
9 Group work (Products from Pepper)  *Benue Hot Scotch Bonnet,

 

*BSU MagicPuree,

 

*Demobilizing Spray;

 

*White Pepper, Kembe’s Essential Oil

 

Packaged using agric proceeds

 

Packaged using agric proceeds

 

 

 

 

Local content and technology

Trademark Ditto

Table ‘B’ above shows a variety of products developed by postgraduate students jointly as group projects during their food week exhibition for the 2017/2018 session

 

4.1       The Study Methodology

The research design adopted in this research is a survey design that sought to examine the Postgraduate students’ knowledge about the existence and operations of the patent law and operation particularly as it relate to post-harvest losses inventions at the Centre for Food Technology and Research (CEPTER) of the Benue State University. The study used interview and questionnaire to collect data used for the study. The survey design was considered appropriate in this study as it allows the use of questionnaire as a data collection instrument.

4.2       Population of the Study

The target population of the research consist of postgraduate students at the Centre for Food Technology and Research (CEPTER) of the Benue State University of the 2017/2018 session. The total number of post graduate students stands at 115. This number cut across the accredited courses at the Centre. These are as follows:

MSc/PhD Food Science & Technology; MSc Bio Statistics; MSc/PhD Post-Harvest Physiology of Crops and Management; MSc/PhD Food Chemistry; MSc/PhD Food Processing Technology; MSc/PhD Analytical/Environmental Chemistry; MSc/PhD Organic/Natural Products Chemistry; MSc/PhD Post-Harvest Engineering & Technology; MSc/PhD Rural Sociology & Agricultural Extension.

4.3       Sample and Sampling Technique

The Stratified Random Sampling Technique was adopted in carrying out this research. This sampling technique was adopted because CEPTER has already divided the population into homogeneous groups known as strata. Each stratum is represented by a course in the Centre; bringing it to a total of 12 strata. Samples were drawn from each stratum by using the purposive technique. This sampling technique was used to select at least Nine (9) respondents from each of the 12 courses at the centre making a total of 115 respondents, which represents the sample for the study.

4.4       Data Collection Instruments

A researchdesigned questionnaire titled “Postgraduate Students’ Perception of Intellectual Property Rights Ownership at Benue State University: Centre for Food Technology and Research (CEPTER) in Perspective”. the questionnaire was divided into two sections, A and B. Section A comprised the respondents’ demographic information such as age, gender, level of educational learning at the Postgraduate programme while section B featured items on the variables in the objectives of the study including, knowledge of basic IP, awareness of the requirements of IPRs, types of IP, ownership requirements and exceptions on patentable inventions ownership, institutional disclosure requirements and generally IP policy issues at the Institution.

4.5       Data Collection Procedure

The questionnaires were administered to the respondents by the researcher during their core CEPTER exhibition week. This was performed when the students were in session waiting for the formal commencement of the week long activity because it was the most convenient time and opportunity to meet with all the students, mentors of the programmes as well as visiting lecturers and colleagues in the different programmes. To ensure maximum response, the respondents, after seeking for their informed consent, were asked to fill and return the questionnaire before the end of the day’s activity. A total of 115 copies of the questionnaire were administered (100 %.) out of which 87 copies representing (75.65 %) were returned.

4.6       Data Analysis and Result

Table 1: Age Distribution of the Respondents

Age Frequency Percentage Cumulative Frequency
18 – 25 8 9.2 9.2
26 – 35 55 63.2 72.4
36 – 49 18 20.7 93.1
50 above 6 6.9 100
Total 87 100  

Sources: Field Survey, 2018

The Table 1 above shows the age distribution of the respondents. The result shows that, 8 (9.2%) respondents’ falls within the category of 18-25 years old. This is followed by 55 (63.2%) of 26-35 years old. Next is 18 (20.7) representing those who are 36-49 years old and 6(6.9%) representing respondents who are age 50 and above. The frequency shows that majority of the respondents’ falls within 26-35 years as well as 36-49 years. This is predictable from the perspective that, the research is targeted at postgraduate students who are most likely to be of adult age. This result may be consistent when viewed against the tortuous educational progression in Nigeria that is bedevilled of many crisis and strikes which lead to a lot of delays and stagnations of students.

Table 2: Gender Distribution of the Respondents.

Gender Frequency Percentage Cumulative Frequency
Male 41 47.1 47.1
Female 46 52.1 100
Total 87 100

Sources: Field Survey, 2018

The result of Table 2 above indicates that 41(47.1%) are males while 46 (42.1%) are females. This simply means that, there was more female participation than the male folk in the research. This unusual age distribution is represented below in a pie and bar chart to further buttress the female dominance.

 

Table 3: Programme of Study by the Respondents.

Programme Frequency Percentage Cumulative Frequency
PhD 19 21.8 21.8
MSc 60 69.0 90.8
PGD 8 9.2 100
Total 87 100

Sources: Field Survey, 2018

Table 3 shows that a total of 19 persons representing (21.8%) are undertaking the Doctorate Degrees programme of CEPTER, while 60 students representing (69.0%) are on the Master Degree programme while 8 students representing (9.2%) are undertaking a Postgraduate Diploma programme. The import of this statistic is that, the Master Students (MSc) are more in numbers and participation in the research. The result is supported by the findings on Tables ‘A’and ‘B’ where more MSc than PhD students developed products which may be patented, licenced or commercialised at the centre. See the bar and pie charts below for more details on the distribution of the respondents based on the programme of study at CEPTER.

 

 

Table 4: Awareness of Engagement in Post-harvest Programme with CEPTER.

Engagement at CEFTER Frequency Percentage Cumulative Frequency
Yes 83 95.4 95.4
No 4 4.6 100
Total 87 100

Sources: Field Survey, 2018

The result of Table 4 above shows a total of 83 respondents representing 95.4% were aware of the existence of their research activity with the CEPTER while 4 respondents comprising a marginal frequency of 4.6% were not aware of the core essence of their required research output. The statistical extent of their views is succinctly expressed in the bar and pie charts depicted below.

 

Table 5: Knowledge to answer basic questions on what IP means

Knowledge of IP Frequency Percentage Cumulative Percentage
Strongly agree 22 25.3 25.3
Strongly disagree 4 4.6 29.9
Agree 56 64.4 94.3
Disagree 5 5.7 100
Undecided 0 0 100
Total 87 100

Sources: Field Survey, 2018

 

Assuming, SA to be strongly agreed, SD to be strongly disagreed, AG stand for agreed, DG stand for disagreed and UD represents undecided, the result of Table 5 and the charts shows that, 22 of the respondents representing 25.3% strongly knew the basic knowledge of what IP, while 4 respondents comprising 4.6% strongly did not have knowledge of IP basis, 5 respondents constituting 5.7% disagreed of basic knowledge of IP. Furthermore, the result reveals that 78 respondents representing a combination of 56 (64.4%) and 22 (25.3%) have passive knowledge of IP. It is however, interesting to observe that, 0 (00%) that is zero respondents shows that there is a threshold of understanding of what IP stands for

Table 6: Awareness of Intellectual Property Rights

Awareness of  IP Rights Frequency Percentage Cumulative Frequency
Strongly agree 22 25.3 25.3
Strongly disagree 2 2.3 27.6
Agree 55 63.2 90.8
Disagree 8 9.2 100
Undecided 0 0 100
Total 87 100  

Sources: Field Survey, 2018

Table 6 above reveals that out of 87 postgraduate students that were sampled, 22 (25.3%) were aware of the existence of patent law/intellectual property while 2 (2.3%) were unaware of it. 55 (63.2%) have passive level of awareness while 8 (9.2%) disagreed to  having any level of awareness. This strongly implies that, a good number of postgraduate students are unaware of IP as if affects their creative research discoveries. The result is further collaborated by the bar and pie charts depicted therein.

 

Table 7: Knowledge of the forms and types of IP Rights

Forms Rights Frequency Percentage Cumulative Frequency
Strongly agree 40 46.0 46
Strongly disagree 7 8.0 54
Agree 35 40.2 94.2
Disagree 5 5.8 100
Undecided 0 0 100
Total 87 100

Sources: Field Survey, 2018

There are three Acts pertaining to intellectual property and they are Copyright Act, Patent and Designs Act and Trademark Act. The other forms of IP are Trade Secrets, Confidential Information and Database .The above Table 7 signifies that, a total of 40 (46.0%) know of the different forms of IP while 7 (8.0%) do not know of the forms of IPRs.35 (40.2%) merely agree, 5 (5.8%) disagree while 0(0%) threshold agreement on awareness of IPRs. This shows that a fair number of students have positive perception about ways in which IP exist to support creativity. See charts for further comprehension.

 

Table 8: Whether the Respondents are aware that IP can be owned

Ownership Frequency Percentage Cumulative Frequency
Yes 72 82.8 82.8
No 15 17.2 100
Total 87 100

Sources: Field Survey, 2018

 

Table 8 and the charts depicted above shows that 72 (82.8%) of postgraduate students agree that IP can be owned like any other property in moveable subject, 15 (17.2%) do not agree or are unaware of the ownership personality of IPs.

Table 9: Who owns research product at Benue State University

Ownership of Research Frequency Percentage Cumulative Frequency
Strongly agree 7 8.0 8
Strongly disagree 24 27.6 35.6
Agree 22 25.3 60.9
Disagree 28 32.2 93.1
Undecided 6 6.9 100
Total 87 100

Sources: Field Survey, 2018

Table 9 shows a discrepancy on the question of who owns a product of research. The question sought to know between the researcher, university and sponsor of a research, who actually owns same. 7 of the respondents comprising 8.0% strongly agreed that ownership is vested in the university, while 24 of the respondents representing 27.6% strongly disagree; 22 of the respondents representing 25.3% merely agrees, 28  constituting 32.2% disagree while 6 respondents constituting  6.9% were undecided as to the position. A spike bar chart and dot chart are depicted below for further illustration.

 

Table 10: Whether or not research product is capable of been licensed and commercialised for monetary consideration

Licencing and commercialisation of inventions Frequency Percentage Cumulative Frequency
Yes 83 95.4 95.4
No 4 4.6 100
Total 87 100

Sources: Field Survey, 2018

Table 10 sought to provide an answer to the availability of avenue of licencing and commercialisation schemes in existence. A total of 83 (95.4%) know of this avenue while a marginal fraction of 4 (4.6%) represents a total number of students without knowledge that IP item can be traded upon through avenues of licencing and commercilaisation.

Table 11: Whether the Respondents are aware of their obligations to promptly and fully disclose their discoveries, inventions to the University.

Obligations to report inventions Frequency Percentage Cumulative Frequency
Yes 52 59.8 59.8
No 35 40.2 100
Total 87 100

Sources: Field Survey, 2018

 

Table 11 and the charts below shows the existence of obligation of a researcher to promptly report and disclose fully, patentable inventions and discoveries that result from research. A sharp distinction occurred in that, 52 (59.8%) agreed of the existence of that obligation, 35 (40.2%) of the postgraduate students disagreed that such duty exist.

Table 12: Question on Respondents awareness of law of patents and whether the law is very sound and strong to protect an individual creativity

Knowledge of Patents Law Frequency Percentage Cumulative Frequency
Strongly agree 48 55.2 55.2
Strongly disagree 5 5.7 60.9
Agree 31 35.6 96.5
Disagree 3 3.5 100
Undecided 0 0 100
Total 87 100

Sources: Field Survey, 2018

 

Table 12 above and the charts sought to know the students knowledge of patent laws in existence, its core existence of inventiveness and innovative attribute, 48 (55.2%) strongly said yes and agreed, 5 (5.7%) strongly disagree, 31 (35.6%) merely agreed, 3 (3.5%) disagreed while 0(0%) is undecided. This result shows that postgraduate in question fairly have knowledge of what patent laws stand for. This knowledge the students explained by interaction is gotten from public orientation and seminars that is organised by the Centre by way of orientations

Table 13: Question on the Respondents’ knowledge of ‘Novelty’ ‘state of the art’ and ‘Industrial Application’ requirements under patent laws

Awareness of Patent Requirements Frequency Percentage Cumulative Frequency
Yes 59 67.8 67.8
No 18 20.7 88.5
Unaware 10 11.5 100
Total 87 100  

Sources: Field Survey, 2018

 

The Table 13 and the charts depicted above sought to consolidate the answers to table 12 afore discussed. Here, the students were examined on their awareness of the strict requirements of patentability namely, newness, inventive step and industrial application. The question was structured on a yes or no question. 59 (67.8%) answered yes, 18 (20.7%) answered no. 10 (11.5%) are unaware. This answer when juxtaposed with table 13 above shows some discrepancy and unreliability or lack of detailed understanding of the subject matter.

 

Table 14: Question on the Respondent is aware of IP policy existence and whether they signed onto the policy with the University through the Center

Signing of Intellectual Property Policy Frequency Percentage Cumulative Frequency
Yes 21 24.1 24.1
No 19 21.9 46
Unaware 47 54.0 100
Total 87 100

Sources: Field Survey, 2018

 

The above Table 14 and charts simply sought to know whether there exist a university policy on intellectual property rights and whether, postgraduate students are made to sign up on this policy. The question was structured simply ‘yes’ ’no’ or ‘unaware’. 21 (24.1%) said yes, 19 (21.9%) said no while 47 (54.0%) said they are unaware. In reality the university has no separate IP policy except as contained in the university Regulations Governing the Conditions of Service which students are not part of. Again, at the BSU, neither the staff, lecturers nor students are required to sign any agreement on that. This then means that the ‘yes’ of 24.1% is misleading; the ‘No’ of 21.9% is true while the ‘Unaware’ of 54.0% is equally valid.

Discussion of Findings

The main   objectives of the research was to examined the level of awareness of postgraduate students about IP as they undertake projects that may have commercial value   and in some instances patentable products in the control of post-harvest food losses. The objective was to highlight the challenges that the university might face in the future and the need for the institution to overcome same through policy migration and adoption. Other objectives included the challenges in promoting and protecting intellectual property(IP) at the institution and illustrate why universities generally and in particular, Benue State University need to increase their efforts to educate students on what IP is and why it matters and its dictates. The research specially, adumbrate on the desire of Benue State University in making IP a key focus in her effort to leverage her research output, by obtaining a greater number of patents and then licensing them to industries with the hope of boosting her revenue base and speed the introduction  of the results of their research into the market.

The first finding in the study shows a high level of awareness 95.4% on the part of postgraduate students about their research activity as it relates to controlling postharvest losses with the Centre. While the students are aware of their research expectation in the curbing of postharvest losses in agricultural outputs that may result in the creation of high value chain, the students are not well equipped in the basic knowledge of the dictates of the laws that regulates, control and reward creative and innovative efforts which is the Intellectual Property Law as evidenced in Patents. Table 5 of the Respondents shows the rating of inadequate perception of basic knowledge about Intellectual Property where 25.3% strongly agreed to the question of basic understanding of intellectual property, while 4.6% strongly disagreed, 64.4% merely agreed and 5.7% disagreed. Majority of the students interviewed agree to the fact that, they encountered intellectual property law for the first time on their orientation organised by the Centre and they had no fore knowledge and orientation of IP at any formal level. This finding is consistent when measured against the question of the requirements and awareness of IPRs. A ratio of 25.3% strongly agreed, 2.3% strongly disagreed, and majority of 63.2% merely agreed and 9.2% disagree. The co-finding of Respondents agrees with the fact that, the curriculum of Benue State University in general and the Centre in particular does not include the teaching of Intellectual Property Law courses such as patents, copyright, trademarks etcetera.

In identifying ways in which IP can be owned, the majority of respondents 82.8% agree that  it can be owned like any other property but who owns it at the Benue State University is disputed among the respondents. 8.0% strongly agreed that the student do not have right to own it. 27.6% strongly argued that they will own same, 25.3% merely agree they do not own same, 32.2% merely disagreed and 6.9% could not decide as to whom ownership and commercialisation resides. The foregoing result shows that, if the respondents are not aware of ownership, it then means that, even though 95.4% of the respondents who agrees that the invention can licenced or commercialised would not validly know who has that right. The finding is consistent with the fact that, neither staff nor students engaged in research are made to sign an Invention Assignment Agreement (IAA) and the university relies on her regulations to determine whether or not a university employee or research student owns his or her invention.

Table 11 of the Respondents view is based on the obligation of the researchers to promptly report research findings to the authorities of the university through the centre as well as, disclose fully their findings and result. 59.8% of the Respondents agreed that such obligations exist in reality. 40.2% of the Respondents disputed the existence of the requirement.. This finding indicates that, the 59.8% of respondents do not understand what the disclosure requirement that is expected under these circumstances. This result when viewed against the backdrop of the fact that, the university nor the Centre does not operate this kind of scheme and is not available at the university. This finding when compared with table 14 above, 24.1% of the Respondents asserted that, upon registration with the Centre, they signed up an IP Policy agreement.. 21.9% of the Respondents answered ‘No’ while 54.0% responded that they are ‘unaware’ of such a requirement justifies the need for the University to formulate an IP Policy that will help pre-determine issues of ownership, conflict of interest, profit sharing of income etcetera.

The findings in Table 12 sought to know the students knowledge of patent laws, its core existence of inventiveness and innovative attribute. The Respondents in the ratio of 48 (55.2%) strongly said yes and agreed, 5 (5.7%) strongly disagree, 31 (35.6%) merely agreed, 3 (3.5%) disagreed while 0(0%) is undecided. This result shows that postgraduate students in question fairly have knowledge of what patent laws stand for. This knowledge the students explained by interaction is gotten from public orientation and seminars that is organised by the Centre by way of orientations. However, when juxtaposed with the respondents finding in table 13 where the students were examined on their awareness of the strict requirements of patentability namely, newness, inventive step and industrial application. The question was structured on a yes or no question. 59 (67.8%) answered yes, 18 (20.7%) answered no. 10 (11.5%) are unaware. This answer shows some discrepancy and unreliability or lack of detailed understanding of the subject matter. The essence of this finding is that, since the respondents do not have good knowledge of the patent system requirements, they may be undertaking on ventures that may at the end not serve any useful purpose. The finding further supports the need for the introduction of the law of IP studies. It is important to assert that, not all IPRs are relevant for all categories of students and not all students require the same level of detail on each point. Engineering students for instance need the knowledge of Patents Law as it relate to new product that may be patentable while the researcher in interest of breeding or genetics will require knowledge of Seed or Plant Varieties as instance.

 

Conclusion

The key issue in this research is to interrogate Postgraduate Students’ understanding and awareness about IPRs and the Universities policies on IP Ownership and consequential rights to commercialisation. The result shows that, students have passive understanding about IPRs which they gain not through the formal system of knowledge acquisition but through other informal methods. This ultimately calls for the introduction of relevant IP courses on the programmes mounted by the Centre for the purpose of achieving maximum goals of reducing postharvest losses. The result further shows that, the inability of Benue State University to have a well defined IPRs policy framework has affected the defining of terms among the critical stakeholders at the Centre, namely, research students, programme consultants, research staff and this if not addressed, is likely to affect the university in the nearest future.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Sectin 32 PDA

[2] Joseph Jar Kur Intellectual Property Law And Entrepreneurship in Nigeria: Principles And Practice(Aboki Publishers 2015)

[3] (n4)P36

[4]Cap p.2 LFN 2004 (hereinafter simply called the Act)

[5]Section 1 of the Act.

[6]OyewunmiAdejoke, Nigerian Law of Intellectual Property (Lagos: Unilag Press, 2015) p.14

[7]Section 1(4)(a) and (b) PDA 2004

[8]Section 1(5) PDA 2004

[9]Section 2(b) of the Act

[10]The Exclusive rights of a Patent relate to the exclusive right to exclude others from making, using, offering to sell, selling, or importing her invention

[11]McJohn Stephen, Intellectual Property, Third Edition (Chigago: Aspen Publishers, 2009) p.252

[12]Ibid, p.253

[13]Under the University of California “Feed the Future Innovation Lab for Collaborative Research on Horticulture and supported by the U.S. Agency for International Development (USAID) https://www.feed thefuture.gov/article/icecoldinnovation-reduce-postharvest losses (accessed on 2/07/2016).

[14] Sambo AS “Commercialisable Renewable Energy Research and Development Products”(COREM) (n23)

[15] Abigail Barrow, Managing Student Intellectual Property Issues at Institutions of Higher Education: An AUTM Primer AUTM Technology Transfer Practice Manual, 3rd edn Vol 2p1

[16] n15

[17]  Article 26 Wipo Guidelines

[18] Chapter II Notap

[19] Article 2.1.2 of Ibadan Policy

[20] Article 3.8 ABU Zaria.

[21] Article 55-73

[22] Exempted Scholarly Works

[23] Article 7.1-7.6

[24] Kassim S Agbonika (n 27)

[25] Hereinafter called the 2009 Regulations

[26] Section 14

[27] Section 15

[28] Emphasis mine

[29]S.14(1) of Regulations Governing the Conditions of Service for Senior Staff, Benue State University.

[30] S 14(2)

[31]S.14(3) Ibid

[32]S.14(4) Ibid

[33]S.14(5) Ibid

[34] Weidermier Jean ‘Ownership of University Inventions: practical Consideration. http://www.iphandbook.org/handbook/ch05/p04 (accessed on 10/09/2016)

[35]  Section 35 Japanese Patent Law paragraph 1

[36]www.cefterbsu.edu.ng (visited 29/07/2016)

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