Who
Owns the Copyright to the Copyright Act in Nigeria?
–
Ishaq Obashola Apalando, Esq*
Introduction
1.
Intellectual property
has unarguably encouraged development, at least in societies where individuals
are free to create their own fortunes.[1] As a creation of statute,
there is a limit to the forms intellectual property can take, and in Nigeria,
there are four: copyright, trademark, patent and industrial design.[2]What is eligible for
protection as any of these forms of intellectual property and the associated rights
and restrictions are determined by statutory provisions.
2.
One of the rights
that inure in intellectual property ismonopolisation of the production of the
thing protected by the person in whom the said intellectual property is vested,
so that any reproduction by another person without proper authorisation will
amount to an infringement.[3]The ease with which electronic
files can be shared in the present age of information technology therefore
requires caution on the part of the person offering protected materialsfor access
or download or sharing them with some other person or thing[4].
3.
In this piece, the
aim is to answer the question of who owns the intellectual property in
legislative enactments made in Nigeria, using the Copyright Act of 1988 as an
example. The choice of the Copyright Act is informed by the fact that it falls
into the category of things protected by copyright as opposed to other forms of
intellectual property.If any intellectual property inures in legislative
enactments, reproducing them in any form, physical or electronic, as is
commonly done openly and privately online, may amount to an infringement.A good
example of the potential for infringement of any intellectual property right in
legislative enactments is readily visible in the case of legal technology
companies whose business models involve theprovision ofaccess to such enactments
especially for a fee.[5]
Legislative Powers on
Intellectual Property
4.
The 1999 Constitution
of the Federal Republic of Nigeria (the CFRN) establishes a federal system of
government in Nigeria, with three arms at both the federal and state levels.
The arms are the legislative arm, the executive arm and the judicial arm.Legislative
powers in Nigeria are shared by the two levels of government. The National
Assembly is the legislative arm of the federal government; it is comprised of
two chambers: the House of Representatives and the Senate.[6] Laws made by the National
Assembly are called “Acts” and they apply to Nigeria as a whole or to any
specific part of Nigeria. The National Assembly also makes laws for the Federal
Capital Territory, Abuja.[7]Nigeria has 36 states, and
each one of them has a State House of Assembly.[8] Laws made by the House of
Assembly of a State are called “Laws”. Both an Act and a Law may authorise some
persons to make rules or regulations in order to achieve some of the objectives
of the Act or the Law; any such rules or regulations are called subsidiary
legislation or subsidiary instrument, no matter what name they may
be called.[9]
5.
The extent of the
powers of the National Assembly and a State House of Assembly to make laws is
defined by specific provisions of the CFRN[10], especially, but not
limited to, the legislative lists in the Second Schedule to the Constitution.
The Exclusive Legislative List (ELL) contains a list of subject matters on
which only the National Assembly can make laws.[11] The Concurrent
Legislative List (CLL) contains a list of subject matters on which both the
National Assembly and a State House of Assembly can make laws.[12] A third list is called
the Residual Legislative List (RLL) which is used to refer to subject matters
found on neither the ELL nor the CLL and on which only a State House of
Assembly ca make laws.[13]
6.
“Copyright” is item
13 on the ELL; and “Patents”,“Trade Marks”, “Industrial Designs” and
“Merchandise Marks” are in Item 45 of the ELL. They are therefore matters only
the National Assembly can legislate on. To that end,the Merchandise Mark of
1916[14]; the Trade Marks Act of
1967[15],the Patents and Designs
Act of 1971[16]
and the Copyright Act of 1988[17]were enacted by the
National Assembly to put in place the legal and institutional frameworks for
those forms of intellectual property in Nigeria.
Copyright in Nigeria
7.
Copyright does not
protect an idea. Rather, it protects any“work” which falls into any of the
categories of protectible works. These categories are literary works; musical
works; artistic works; cinematograph films; sound recordings; broadcasts; and
expressions of folklore. By virtue of the Copyright Act, different conditions,
rights and restrictions apply to each of the categories for purposes of
copyright protection. With respect to a literary, artistic and musical work, Section
1(2) of the Copyright Act provides that it is only eligible for copyright if:
one, sufficient effort has been expended on making the work to give it an
original character; and the work has been fixed in any definite medium
of expression now known or later to be developed, from which it can be
perceived, reproduced or otherwise communicated either directly or with the aid
of any machine or device.
8.
A third condition is
that of authorship.For any of those works to be eligible for copyright in
Nigeria, at the time it is made, one or all of the authors: if natural,
must be a citizen of or domiciled in Nigeria[18] or a citizen of or
domiciled in a country which is a party to a copyright-related treaty along
with Nigeria[19];
or if artificial, incorporated in or registered under the laws of Nigeria[20] or of a country which is
a party to a copyright-related treaty along with Nigeria.[21] In the case of
non-Nigerian authors claiming copyright through a treaty, the work must also
have been first published in their respective countries of citizenship or
incorporation.[22]
9.
Where none of the
authors, individual or corporate, is a Nigerian and such cannot also claim copyright
through the treaty obligations of Nigeria, but the work, being a literary,
artistic or musical work, or a cinematograph film, is first published in
Nigeria, or the work, being a sound recording, is made in Nigeria, then
copyright therein nonetheless vests in the author to such extent as it vests in
a Nigerian individual or corporate author.[23]Works by the United
Nations or any of its specialised agencies, the African Union or the Economic
Community of West African States also enjoy copyright protection.[24]Governments in Nigeria
belong to another category of authors whose works may be eligible for
copyright, but focus shall be given to them later.
What Amounts to
Copyright Violation?
10. Once
copyright is vested in an author, individual or corporate, some acts in
relation to the protected work are at their exclusive preserve. Such acts are
called acts controlled by copyright. The Copyright Act lists such acts
in Section 6, and they depend on the category of works in question.
11. In
the case of literary works[25], acts controlled by
copyright include: (i) to reproduce the work in any material form; (ii) to publish
the work; (iii) to perform the work in public;(iv) to produce, reproduce,
perform or publish any translation of the work; (v) to make any cinematograph
film or a record in respect of the work; (vi) to distribute to the public, for
commercial purposes, copies of the work, by way of rental, lease, hire, loan or
similar arrangement; (vii) to broadcast or communicate the work to the public
by a loudspeaker or any other similar device; (viii) to make any adaptation of
the work; or (ix) to do in relation to a translation or an adaptation of the
work, any of the foregoing acts specified in relation to the work itself.[26]
12. Section
15 of the Copyright Act provides that it will amount to copyright infringement for
anyone, other than the copyright owner, to do any act controlled by copyright,
without the authorisation or licence of the copyright owner. Further acts
controlled by copyright under Section 15 of the Act include reproduction of the
protected work in Nigeria; importation of the protected work into Nigeria; public
exhibition of the protected work; distribution of the protected work whether or
not for a fee; making or possession of any material or device for purposes of
making the protected work; performance of the protected work for purposes of
trade or business; making works recognisably derived from the protected work
etc.
13. The
doing of acts controlled by copyright without proper authorisation also
constitutes an offence under Section 20 of the Copyright Act for which a person
may be liable to on conviction to a fine of an amount not exceeding N1,000
for every copy dealt with in contravention of this section or to a term of
imprisonment not exceeding five years, or to both such fine and imprisonment.Thus,
a person guilty of copyright can be proceeded against both civilly and
criminally.
Defences to Claim of
Copyright Infringement
14. It
will, however, always be a defence against a claim or charge of copyright
infringement that the defendant has the authorisation or licence of the
copyright owner to do the act complained against, or that the work allegedly
infringed is not eligible for copyright protection.Other defences to
allegations of copyright infringement can be found in the statutory exceptionsto
acts controlled by copyright, as can be found in the Second, Third and Fourth
Schedules to the Copyright Act.Fair dealing[27] is the first of such
exceptions, and itallows a person to do some of the acts controlled by
copyright for purposes of research, private use, criticism or review or the
reporting of current events. However, such fair dealing must always be
accompanied with an acknowledgement of the title and authorship of the work.[28]
15. Other
exceptions include: parody, pastiche or caricature; incidental inclusion of an
artistic work in a film; distribution of copies of publicly viewable artistic
works;excerpts in educational materials with sufficient reference to the
author; broadcasting of a work for educational purposes as may be approved by a
broadcasting authority; copies made for educational purposes subject to
destruction within a prescribed period or twelve months whichever is longer; reading
in public of excerpts from the work with sufficient acknowledgement etc.[29]
Copyright in Government’s Works
16. Like
other bodies corporate, the Copyright Act also vests governments within Nigeria
with copyright in such works as are so eligible. Section 4(1) of the Copyright
Act provides:
Copyright
shall be conferred by this section on every work which is eligible for
copyright and is made by or under the direction or control of the
Government, a State authority or a prescribed International body.(underlining
mine)
17. While
Section 4 of theCopyright Act does not define “Government”, “State Authority”
and “Prescribed International Body”, the meanings of these expressions can be
found elsewhere in the same Act. In relation to Section 4, Section 10(5) of the
Copyright Act provides as follows:
Copyright
conferred by section 4 of this Act shall vest initially in the Government on
behalf of the Federal Republic of Nigeria, in the State authority on
behalf of the State in question, or in the international body in question,
as the case may be, and not in the author.(underlining
mine)
18. Further,
in Section 51 of the Act, “State Authority”, in relation to a state, is said to
be the “Governor or other governmental authority of the state”. A careful
reading of Section 5(1)(b)(ii-iv) reveals those bodies which qualify as the
“Prescribed International Body” as: the United Nations or any of its
specialised agencies[30]; the Organisation of
African Unity (now the African Union); and the Economic Community of West
African States.
19. The
implications of a combined reading of Sections 4, 10(5), 45 and 51 of the Act
are as follows.Whenever a work capable of copyright protection is made by or
under the direction (commission, employment) or control of the Federal
Government of Nigeria or any of its ministries, departments or agencies, copyright
in such work vests only in the Federal Government of Nigeria for and on behalf
of the Federal Republic of Nigeria. The Minister responsible for culture may
however prescribe, by regulations, which officers of the Federal Government may
grant licences in respect of such works and at what fees such may be granted.[31]
20. The
case of a state government is however slightly different.Copyright in a work
eligible for copyright protection vests in the “state authority” for and on
behalf of the state. In other words, the “state authority” holds it in trust
for and on behalf of the state. Since a state authority is defined to be either
the “Governor” of the state in question or some “other governmental authority”
of the state in question, then the determination of which one of the twain is
vested with copyright has to be made with reference to whether the work was made
by or under the direction (commission, employment) or control of a body
corporate created by or owned by the state or a corporation sole.
21. In
other words, if the work is made by or under the direction (commission,
employment) or control of a ministry, department or agency of the state which
has corporate personality, then copyright in the work vests in the said MDA for
and on behalf of the state in question. If, however, the MDA is not a body
corporate, then copyright vests directly in the Governor of the state in
question. This distinction, however hair-splitting it may appear at first, is
important because of the power to grant licences in respect of such works and
prescribe the fees for purposes of such grants. In Section 45(2)(b) of the Act,
only the “state authority” or someone authorised by the “state authority” can
make the regulations governing the granting of such licences.
22. Where
copyright in any work is vested in the Government or a State Authority, then
the doing of any act controlled by copyright in the said work is at the
exclusive preserve of the Government or State Authority, and the doing of such
without proper authorisation from the said copyright owners or by law will constitute
an infringement under Section 15(1) of the Copyright Act. It is important to
note that where a protected work is made and supplied in accordance with the
provisions of the National Archives Act or a similar law passed by a State
House of Assembly, such will not amount to an infringement. For example,
obtaining a copy of any work deposited in the National Archives, notwithstanding
that copyright vests in same, will not amount to an infringement, but such will
not also constitute a licence to the person provided with such a copy to make
further copies thereof in violation of the Copyright Act.[32]
Protectability of
Government Works
23. All
categories of works, including literary works, capable of copyright protection,
will also enjoy copyright protection insofar as they are made by or under the
direction (commission, employment) or control of the government or a state
authority. Therefore, can a legislative enactment made by the National Assembly
(an arm of the Federal Government of Nigeria) or a State House of Assembly (an
arm of a State Government) or any subsidiary legislation made thereunder be
protected by copyright?
24. Section
51 of the Act defines “literary work” in the following words:
“includes,
irrespective of literary quality, any of the following works or works similar
thereto – (a)novels, stories and poetical works; (b)plays, stage directions,
film scenarios and broadcasting scripts; (c)choreographic works; (d) computer
programmes; (e) text-books, treatises, histories, biographies, essays and
articles; (f) encyclopaedias, dictionaries, directories and anthologies; (g)
letters, reports and memoranda; (h) lectures, addresses and sermons; (i) law
reports, excluding decisions of courts; (j) written tables or compilations.”
25. The
words employed in the above definition require the consideration of two
principles of interpretation. The first is the principle of expressio unius
est exclusio alterius i.e., the express mention of one thing is the
exclusion of another. The second principle is the ejusdem generis rule
which is used to expand or contract the categories of things to which a
statutory provision will apply.
26. Concerning
the first principle, expressio unius est exclusio alterius, the Supreme
Court in Opia v. INEC & Anor[33] held thus:
Perhaps
this is an appropriate place to remind the appellant the Expressio unius est
exclusio alterius Rule. This means that the express mention of one thing in a
statutory provision automatically excludes any other which otherwise would have
been excluded by implication. See: PDP v. INEC (1999) 11 NWLR (Pt. 625) 200;
Buhari v. Dikko Yusuf (2003)1 NWLR (Pt. 841) 446; Udoh v. Orthopaedic Hospital
Management Board (1993) 7 NWLR (Pt. 304)139; Halsbury's Laws of England, 4th
Edition, Paragraph 876." Per JOHN AFOLABI FABIYI, JSC (Pp 37 - 38 Paras G
- B)[34]
27. Given
the foregoing holding of the Supreme Court, the exclusion of the words
“legislation”,“legislative enactments” “statutes” or similar words connoting
laws passed by a legislative body, principal or subsidiary, should ordinarily mean
that such works do not constitute “literary work” and are therefore incapable
of copyright protection. However, the words used in the definition of “literary
work” in Section 51 of the Actdisallows the application of the principle of expressio
unius est exclusio alterius because they satisfy, prima facie, the
application of the ejusdem generis rule.
28. Excluding
the application of expressio unius est exclusio alterius is necessitated
by the use of the word “includes” in the definition of “literary work”. The
courts have contrasted both “mean” or “means” on the one hand with “include” or
“includes” on the other, holding that the former is used to limit the
application of the statute to those things expressly mentioned and none other.[35] In Rabiu v. Kano
State[36],
the Supreme Court explained the implication of using the word “include” in a
statute as follows:
"It
has, in my respectful view, quite rightly been said that sometimes, however, the
word 'include' is used in order to enlarge the meaning of words or phrases
occurring in the body of a statute; and when it is so used those words or
phrases must be construed as comprehending, not only such things as they
signify according to their natural import, but also those things which the
interpretation clause declares that they shall include [See Lord Watson in
Dilworth v. Commissioner of Stamps (1899) AC. 99 at 105 and 106]. It is well
known that where a statute defines a word simply as "means so and
so", the definition is meant to be explanatory and prima facie restrictive
but where the word is so defined to "include' so and so" then the
definition is clearly intended to be extensive; and as stated in Nutter v.
Accrington Local Board of Health (1879) 4 QBD 375 at 385-6, "the
interpretation clause is not restrictive." Per CHUKWUNWEIKE IDIGBE, JSC
(Pp 32 - 32 Paras B - F)(underlining is mine)
29. The
clear implication of the above pronouncement, and similar ones in such other
cases as Utih &Ors v. Onoyivwe &Ors[37] and Dashe & Ors
v. Jatau & Ors[38], even though made not in
the context of enumeration of things in a statute, is that whenever the word
“include” is used in a statute, the intendment of the lawmaker is to enlarge
the scope of the things covered and not to restrictit to the things mentioned.
30. The
above deduction is further strengthened by the phrase “any of the following
works or works similar thereto”. It is therefore clear that the things listed
in paras (a) to (j) as included in the definition of “literary work” are not
meant to be exhaustive, and it will be proper to read the words “etc.” or “and
the like” into the statute, right after the said para (j), for that is the
implication of the phrase “or works similar thereto”.
31. It
is important to note that the phrase“works similar thereto” will not only apply
to those works specifically listed as constituting “literary work”, but also to
any work specifically mentioned as not constituting “literary work”.Determining
“works similar” to those specifically listed or specifically excluded in the
said definition requires the application of the ejusdem generis rule. In
the 1962 case of Onasile v. Sami & Anor[39],
the Supreme Court held, on when the ejusdem generis rule should apply,
as follows:
It
is true that the ejusdem generis rule should not be pressed too far: it cannot
be applied unless there is a category or class into which things of
"the same kind as those specified" can be fitted. On the other
hand, the disjunctive construction should, also, not be pressed too far, or it
will produce something totally alien to the context.[40](underlining
is mine)
32. Ejusdem
generis means of the same class, kind
or nature[41]. In
ascertaining the class, kind or nature of the works
included in the list of literary works, the class, kind and nature
of anything expressly excluded from the list provides useful information on how
to expand or contract the list.Therefore, with which of the things listed in
para (a) to (j) can “legislation”, “legislative enactments” or “statutes” be
classified as of the same class, kind or nature?
Protectability of Legislative
Enactment
33. By
its nature, legislation (or legislative enactment or statute) is a source of
law, and it is the product of the primary duty of legislative bodies like the
National Assembly and State Houses of Assembly or the specific duties of those
delegated to make subsidiary legislation. From the contents of paras (a) to (j)
under the definition of “literary work”, “law reports, excluding decisions of
courts” as stated in para (i) are the works closest to “legislation”in nature.
However, further analysis is required.
34. In
the 8th edition of Black’s Law Dictionary, “law report” is defined
as a written account of a court proceeding and judicial decision.[42] In Nigeria, a law report
contains the judgements of courts, usually the superior courts of records. What
distinguishes a report from the judgement itself is the editing that goes into
it. Basically, the editors provide a summary of the case being reported and
excerpts from the judgement which constitute the rationes decidendi
(rules of law, reasons) which the court relied on in coming to the final
decision in the case.[43] The rationes decidendi
are further classified according to the legal topics or subtopics they deal with
and from such classification, an index of the rationes decidendi is generated
in a way that allows anyone to quickly and easily determine which case contains
what legal principles. A law report, therefore, is different from the judgement
being reported, hence, para (i) expressly excludes the decision (judgement) of
a court from being eligible for copyright protection.
35. What
makes a court decision a source of law is Section 287 of the CFRN which is the
foundation of the doctrine of stare decisis. Section 287 of the CFRN makes the
decision of a higher court binding on a lower court, and the lower court must
follow it when deciding a case with similar facts, questions or circumstances.[44]When a lower court chooses
not to follow the decision of a higher court, it must be that the circumstances
of the case before it are different from that of the higher court which seems
to be applicable.[45]Knowledge of the legal
principles embodied in court judgements is therefore important for purposes of
governing human conduct in society.[46]
36. The
source of law is therefore thedecision of the court itself, and not the law
report.This is why the court can rely on unreported cases i.e., cases not
contained in any law reports, in the process of adjudication. Like legislation,
a court decision (ruling, order or judgement) is the product of the primary
function of the judicial arm of government, whether at the federal or state
level. Legislation is therefore of the same kind, class and nature as a court
decision, and is for that ineligible for copyright protection.
37. From
the foregoing, the Copyright Act of 1988, as published in Chapter C28 of the
Laws of the Federation of Nigeria 2004, being nought but a piece of legislation
passed by the National Assembly of Nigeria in the exercise of its primary duty
of law-making, is not eligible for copyright protection. Therefore, any act
controlled by copyright can be done by anyone with respect to a piece of
legislation, principal or subsidiary, insofar as its integrity is maintained,without
obtaining any authorisation or licence from anyone, and any such act will not
amount to an infringementof copyright in the said work as none vests therein at
all.
Protectability of
Legislative Compendiums
38. However,
where a piece of legislation has been published in some fashion, such as with case
annotations and explanations, they might be capable of copyright protection for
the same reason as a law report, provided the annotations and explanations can
be considered efforts sufficient enough to give the legislation some original
character.This is like making a translation of a work which has fallen into the
public domain for reasons that copyright therein has expired. The translation
will nonetheless enjoy copyright protection.
39. Compendiums
of legislation without more may not however enjoy copyright protection. The
reason is that simply putting different statutes together, whether or not
arranged in a topical manner, cannot give the compendium an original character.
Two types of legislative compendiums come to mind in this instance. The first
type comprises those made by the governments, federal and states; andthe second
type comprises those made by private publishers.
Governments’ Legislative Compendiums
40. The
Laws of the Federation of Nigeria (LFN) 2004 is the extantlegislative
compendium of the federal government and the product of a legislative revision
exercise, the fourth[47] in Nigeria’s history, by
aLaw Revision Committee under the supervision of the Honourable
Attorney-General of the Federation and Minister of Justice (HAGF).[48]The mandate of the
committee was principally to compile all extant laws in Nigeria, principal and
subsidiary, as of the effective date. Its function was not to “rewrite” the
“law”, but to effect clerical, technical and very essential corrections thereto
which, given the enormity of the task, could not have been reasonably
undertaken by the National Assembly itself without it abandoning virtually all
other pressing matters.[49]
41. The
original LFN 2004 (in loose-leaf format) was compiled under the authority of The
Revised Edition (Laws of the Federation of Nigeria) Act 2004, and it contains
all extant laws passed or deemed to have been passed by the National Assembly up
to December 2002.It appears laws passed between December 2002 and May 2007 were
published as supplements to the loose-leaf edition. Hence, The Revised Edition
(Laws of the Federation of Nigeria) Act 2007 was passed to perhaps revalidate
the original LFN 2004 as supplemented.[50]In 2011, a reprint edition
of the LFN 2004 (bound format) was made, and it incorporates all laws passed in
Nigeria between May 2007 to December 2010.[51]
42. Volume
1 of the LFN 1990 carries no copyright notice. Volume 1 of the LFN2004 (loose-leaf
edition), however, carries a copyright notice thus:
–
All copyrights
reserved by the Federal Government of Nigeria. © 2004
43. Similarly,
the 2011 reprint edition carries a copyright notice which requires any
reproduction to be done with the authorisation of the Federal Government of
Nigeria, and which threatens unauthorised reproduction with both civil and
criminal sanctions.
44. The
foregoing analyses and conclusions are to the effect that “legislation”, or
“legislative enactments” are not in the category of works eligible for copyright
protection under the Copyright Act. However, Section 1 of the Revised Edition
(LFN) Act 2007, which approves the publication of LFN 2004, reads:
–
TheLaws of the
Federation of Nigeria compiled and published in 2004 under the authority of the
Attorney Genera1 of the Federation and Minister of Justice are hereby approved
by the National Assembly.
45. Considering
that only the National Assembly has the power to legislate on copyright, and given
that the published LFN 2004,as “approved”by a legislative enactment,carries a
copyright notice as reproduced above, can it be said that the compendium and
its contents are given special copyright protection under the 2007 approval Act,
in line with the principle[52] that the specific
legislation derogates from the general?Therefore,could it have been the
intention of the lawmakers to confer special copyright on the LFN publication
through the approval Act? It is submitted that it could not have been the
intention of the legislature to specially confer copyrights on the LFN 2004,
for there is no express provision therein on special copyright protection which
will have to derogate from the general provisions of the Copyright Act. Therefore,
if any copyright protection inures in the LFN 2004, it has to be conferred by
the Copyright Act.
46. Ordinarily,
when a statute, principal or subsidiary, is made, it is published as a
Government Notice in the official gazettes. Several other things are published
along with it, and several other statutes, including those amending earlier
ones, are published in the same manner. The purpose of a compendium as the Laws
of the Federation of Nigeria or Laws of Lagos State of Nigeria (LLSN)[53], is to collate all such
scattered enactments into a single publication, and such compendiums are to be
published by their respective government printers and publishers.
47. However,
for reasons of capacity, their publication is contracted out.[54]In effect, the LFN 2004 as
published in the loose-leaf format in 2004 or in a bound format in 2011 has the
status of the Federal Government Gazette, and this is further supported by Section
106(a) of the Evidence Act of 2011.[55]Thus, the LFN and the LLSN
as publications may qualify as literary works capable of copyright protection
in the same way that a law report may similarly qualify for protection under
Section 51 of the Copyright Act. However, in the same way thatthe decision of
court contained in a law report is not eligible for copyright protection, the
statutory provisions in the LFN or the LLSN, principal or subsidiary, are not
also eligible for copyright protection.
48. Thus,
while it may be an infringement to publish the LFN 2004 or the LLSN 2015 as
exactly published by the Government without proper authorisation, it is not an
infringement whatsoever to, without any authorisation from anyone whatsoever,
publish a legislative enactment as it was exactly passed or as it exactly
appears in the LFNor LLSN with the cross-referencing etc. That is because the
exact form a legislative enactment takes in an official publication is the
exact form in which it was passed or the form in which it is required to be
published by law.It should be noted that in line with Section 22 of the
Interpretation Act, whenever a statute is to be printed after it has been
amended, and the amendment has taken effect, the said statute is to be printed
as amended, and across-reference to the amending statuteis to be indicated
around the amended portion. Besides, the contents of a statute stand changed as
it may have been amended, so that the publication of a copy of the statute by
anyone with the amendments incorporated does not confer on it any special
character.
49. What
Section 1 of the approval Act (reproduced above) does is merely to approve the
publication as the official compendium and nothing more. The major advantage of
the LFN 2004 is to provide access to statutes in force at the time of
publicationand a uniform system of referencing suchstatutes, and nothing more.
If it had not been approved by the approval Act, its status as an official
publication would not have changed given that it was published under the authority
of the Federal Government. In fact, Section 2 of the approval Act makes it
clear that should any valid existing statutes[56] have been omitted
wilfully or otherwise, such omission or mistake in the publication does not
invalidate the extant law. This is quite understandable given that the National
Assembly could not have had the time to sift through the publication one line after
the other, and considering that the law reform commission which compiled it
could have made mistakes.
50. Provided
that copyright is within the exclusive power of the National Assembly, any
state law which directly or indirectly purports to confer copyright on their
own compendium of state legislation, such as the Laws of Lagos State of Nigeria
(LLSN) 2015, will be null and void.
Private Legislative Compendiums
51. The
case of private legislative compendiums is slightly different from those made
by public authorities. In Nigeria, there are no private legislative compendiums
as comprehensive as the LFN or the LLSN or similar compendiums of other states.
The closest similarity to such comprehensive compendiums isin the electronic
formats, such as the “Laws of Federation” in LawPavilion’s Primsol[57] or LawNigeria’s webpage
editions of statutes.[58] However, such compendiums
have no special character other than that they are in an electronic format.
52. The
most common forms of private legislative compendiums are those containing
different pieces of legislation on similar topics, such as those published by ‘Jide
Olakanmi & Co.[59] and Princeton Publishing
Company.[60]
These topical compendiums sometimes contain synopsis of case laws and topical
notes[61] on the relevant legal
principles. Therefore, only such case synopsis and notes are capable of
copyright protection subject to fulfilling the other conditions.
Constitutionality of Copyright in
Legislative Enactments
53. There
is justification, on both moral and constitutional grounds, for denying
copyright to legislative enactments, whether such be principal or subsidiary. A
literary work is a piece of or a collection of pieces of information on the
subject matter(s) dealt with therein. That different qualifications may be
needed by different individuals attempting to understandthe same or different
literary works does not make their contents any less of pieces of information.[62]Legislative enactments are
pieces of legislation on various aspects of human conduct in society. Section
39 of the CFRN guarantees the freedom of expression and of the press to all
persons in the following words:
Every
person shall be entitled to freedom of expression, including freedom to hold
opinions and to receive and impart ideas and information without
interference.
(2)
Without prejudice to the generality of subsection (1) of this section, every
person shall be entitled to own, establish and operate any medium for the
dissemination of information, ideas and opinions:
Provided
that no person, other than the Government of the Federation or of a State or
any other person or body authorised by the President on the fulfilment of
conditions laid down by an Act of the National Assembly, shall own, establish
or operate a television or wireless broadcasting station for any purpose
whatsoever.
(3)
Nothing in this section shall invalidate any law that is reasonably justifiable
in a democratic society -
(a)
for the purpose of
preventing the disclosure. of information received in confidence, maintaining
the authority and independence of courts or regulating telephony, wireless
broadcasting, television or the exhibition of cinematograph films; or
(b)
imposing restrictions
upon persons holding office under the Government of the Federation or of a
State, members of the armed forces of the Federation or members of the Nigeria
Police Force or other Government security services or agencies established by
law.
54. Clear
from the above is the fact that the right to receive or share information is
guaranteed by the CFRN along with the right to own, establish and operate a
medium for purposes of sharing information. Therefore, it is the right of a person
to own, buy, sell or gift another person anything containing information,
whether such be a physical or electronic book or some other devices. Similarly,
based on the provision of Section 39 of the CFRN, a person may own a medium,
such as a website, a blog or a microblogging account, or some other social
media account for purposes of sending and receiving information.
55. However,
like any other fundamental right, the right to freedom of expression is not
absolute, and neither is the right to pass and receive information.[63]Section 39 itself
enumerates instances when the right can be restricted by way oftotal or
qualified limitation. Section 39(3)(a) of the CFRN specifically allows the
legislature to regulate, among other things, broadcasting and the exhibition of
cinematograph films using laws which are reasonably justifiable in the context
of a democratic society. Similarly, Section 45 of the CFRN generally allows the
legislature to make laws restricting some fundamental rights, includingthe
right to freedom of expression in Section 39 of the CFRN, in the following
words:
Nothing
in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law
that is reasonably justifiable in a democratic society
(a)
in the interest of
defence, public safety, public order, public morality or public health; or
(b)
for the purpose of
protecting the rights and freedom or other persons.
…
56. From
the tenor of the foregoing relevant part of Section 45 of the CFRN, any other
restriction of the right to receive and share information must be: one,
authorised by law; the law must be reasonably justifiable in the context of a democratic
society; and three, the restriction must be on any one or more of the following
grounds i.e.,interest of defence, public safety, public order, public morality,
public health or protection of the right of another. What is also clear is that
the conditions so enumerated are conjunctive and not disjunctive i.e., all must
be fulfilled for the restriction of the right to be constitutional.[64]
57. InAviomoh
v. COP & Anor[65],
the question before the Court of Appeal was whether laws criminalising
defamation were an affront to freedom of expression. In that regard, the Court
of Appeal explained the limitations to the freedom of expression guaranteed in
Section 39 of the CFRN thus:
What
the above means, is that Section 39 of the 1999 Constitution as amended, which
is relevant for our purposes here, cannot operate, to invalidate any law
promulgated by any legislative body, when that law is made in the interest of
defence, public safety, public order, public morality, public health or for the
purpose of protecting the rights and freedom of other persons. So when Section
39(1) of the Constitution entitles a person to freedom of expression and
imparting ideas and information, it is not a blanket right. It must not be
utilised or invoked in such a way, that it offends public safety, order,
morality and health, and it must not be injurious to the rights and freedom
of other persons. Once a person lives in a community, his rights stop where
the rights of the other members of the community begin. He has to behave
according to the norms of that society, otherwise his conduct will be injurious
to the wellbeing and continued existence of that community. He cannot, in the
guise of exercising his freedom of expression or imparting information, trample
upon the rights of other persons in the society. He must not act in such a way,
that he defames their character or endanger their safety, health, order or
morality. The Constitution recognizes the fact that if such a person acts to
the detriment of others, he can be liable in a civil action, but the issue goes
beyond the right of an injured individual to act and the whole society has to
be involved to protect itself. Hence, criminalising such conduct of the
individual. That is why Section 45(1) of the Constitution was
promulgated." Per ABUBAKAR DATTI YAHAYA, JCA (Pp 15 - 17 Paras F - D)(underlining
mine)
58. The
foregoing holding shows that criminal law, which punishes certain acts with
loss of life (death penalty), loss of property (fines and forfeiture) or loss
of liberty and freedom of movement (imprisonment, community service etc.)
constitute a limitation to fundamental rights under Section 45 of the CFRN.Therefore,
if, in the interest of protecting the right of another,a law is made to limit the
right of anyone to pass or receive information, something included in the right
to freedom of expression, then that limiting law will be valid in so far as the
limitation imposed also makes sense in the context of a democratic society.
59. It
is submitted that in determining the context of “democratic society” as a
consideration in limiting fundamental rights, regards must be had to the
purposes of the CFRN itself. From the preamble of the CFRN, it is clear that
the people of Nigeria intend by it to establish a just and accountable system
of government where rights are guaranteed and only restricted where absolutely
necessary. This can be further deduced from the provisions of the CFRN which
establish a system of electing and removing all democratically elected
officials, a system of dispute resolution and a regulated system of law
enforcement. Further, the CFRN forbids the acquisition of political power save
through the democratic process of voting.
Copyright as Derogation
from Section 39 of the CFRN
60. Section
43 of the CFRN guarantees ownership of both movable property and interest in
immovable property. The CFRN does not however provide the meaning of “movable
property” or “immovable property”. WhileSection 18 of the Interpretation Act
states that“immovable property” means “land”,[66]it does not provide the
definition of “movable property”. Yet, Section 11 of the Copyright Act makes it
abundantly clear that copyright constitutes property capable of being dealt
with[67] as any other type of
movable property.In furtherance of copyright as movable property, the Copyright
Act permits compulsory licensing for the reproduction of certain works, subject
to payment of royalties to the owner of copyright in the work, among other things.
This is in tandem with the requirement under Section 44(1) of the CFRN to pay
compensation where any right or interest in movable or immovable property is
compulsorily acquired or possession of the said property is compulsorily taken.
61. Further,
Section 4(3) of the CFRN as well as Item 13 of its ELL recognises “copyright”
as a thing the National Assembly can legislate on. In the exercise of that
power, the Copyright Act is made, and its Sections 6 and 15 enumerate the
bundles of rights which amount to ownership of copyright, in the same way the
Land Use Act govern the ownership of land, a form of immovable property, in
Nigeria.[68]It
can therefore be safely concluded that “copyright” is part of the “movable
property” protected by Sections 43 and 44 of the CFRN.To protect the right of another in this type of
movable property, a law can be made under Section 45 of the CFRN to limit the
right to pass and receive information under Section 39 of the CFRN as far as
the exercise of that right will amount to the doing of an act controlled by
copyright or amount to copyright infringement.Therefore, Sections 15 and 20 of
the Copyright Act are a restriction to the right to freedom of expression, as
far as that right includes the right to share works vested in another.
62.
However, it is
not enough to enact Sections 15 and 20 of the Copyright Act as a limitation to
Section 39 of the CFRN. Sections 15 and 20 of the Copyright Act must also be reasonablyjustifiable
in the context of a democraticsociety. Since Sections 15 and 20 of the
Copyright Act can only apply to works eligible for copyright protection, the
question of whether they arereasonably justifiable in the context of a
democratic society should be answered on a work-by-work basis i.e., with
reference to the specific category of works sought to be protected on any of
the grounds of derogation from fundamental rights.
63. Consequently, the question is whether the protection
of legislation or legislative enactments by Section 15 of the Copyright Act can
be considered a lawful derogation from the freedom to pass and receive legislative
or statutory information under Section 39 of the CFRN. As further required
by Section 45 of the CFRN, we must ask whether it is in the interest of
defence, public safety, public order,
public morality, public healthor the
protection of the right of another to prevent citizens from doing any act
controlled by copyright when it comes to legislation or legislative enactments as
a category of works.
64. It
is the submission herein that Sections 15 and 20 of the Copyright Act and
similar provisions in the said Act cannot in any way or guise protect
legislation or legislative enactments as a category of works. This is because
doing so cannot be justified on any of the grounds for derogation of
fundamental rights. Contrarily, protecting legislation or legislative
enactments, such as the Copyright Act itself, will amount to nothing but
promotion of public immorality and encouragement of impunity.
Public Immorality in
Protecting Legislation
65. In
Nigeria, as obtains in most legal systems, ignorance of the law is never an
excuse. Once a law is passed, whether it deals with crimes or not, it is
presumed that every person is aware of the said law. In Omowaiye v. A G
Ekiti State & Anor[69],the
Court of Appeal held that:
"ignorance
of the law[those provisions of the CFRN] as
opposed to ignorance of the facts has never afforded anybody an excuse; for
everybody is supposed to know the law; the maxim is Ignorantia juris quod
quisque scire tenetur excusat [Ignorance of the law which everybody is supposed
to know does not excuse] - see UDU v. Kraus Thompson (2001) 15 NWLR (pt.736)
305." Per AMINA ADAMU AUGIE, JCA (Pp 62 - 63 Paras F - A)
66. Similarly,
the Supreme Court in Sanda v. Kukawa LG & Anor[70]
held that ignorance of a statutory limitation period for instituting an action
is not a defence or an excuse. In other words, everyone is presumed to know the
law insofar as same has been validly passed. The presumption makes absolute
sense for where ignorance of the law is permitted as an excuse, anybody charged
with a criminal offence or facing an action in court can always say they were
never aware of the law they are alleged to have violated.
67. In
this context, it isboth unconscionable and unreasonable, therefore, to grant
copyright protection to the primary sources of law, legislation and court
decisions, and prevent citizens from freely sharing these works as a way of promoting
actual awareness, as opposed to presumptive awareness, of the law. If morality
concerns right and wrong, then it is very wrong to prevent easy and open
access to the law by restricting citizen’s access to the primary sources of the
law through copyright protection, especially when the same citizens cannot be
allowed to plead actual and genuine ignorance of the law as a defence in both
civil and criminal suits. To grant copyright to legislative enactments is
therefore nothing but public immorality, and in answering the question posed at
the beginning of this section, it will be unconstitutional and a violation of the
right to freedom of expression to protect legislative enactments by copyright.
68. Finally,
as testified to in the Foreword to the original LFN 2004 itself, the texts of
some of the laws in force in Nigeria could not be recovered from the public
records because of the haphazard system and manner of law-making during the military
regimes. If, therefore, a citizen is presumed to know such law notwithstanding
that even the enforcer has no access to its text, then oppression will prevail
over justice. Protection of legislative enactments by copyright may also lead
to further abuse, whereby legislative authorities, especially those exercising delegated
legislative powers, will deliberately hide the law to procure unfair advantages
to themselves or others.
Conclusion
69. Copyright
infringement over the internet and other electronic communications media is a
major concern for owners of works eligible for copyright protection. However, in
the case of government, electronic communication media and platforms should
serve as an avenue for promoting open and easy access to legislative
enactments, principal or subsidiary, at no cost whatsoever. While Section 31 of
the Freedom of Information Act 2011 defines information as including records,
documents or information stored in an electronic format, Section 8 of the FOI
Actprovides, concerning the fees payable for accessing public information, that
–
Fees shall be limited
to standard charges for document duplication and transcriptionwhere
necessary.
70. The
clear implication of the above is that accessing public information available
in an electronic format should come at no cost whatsoever since the duplication
of the document containing it will necessitate no cost as will the duplication
of the hard copies of the same document. It appears public authorities simply
place copyright notices in some of their publications without due consideration
of whether the worksare eligible for copyright protection. A good example is
the copyright notice placed inthe High Court of Lagos State (Civil Procedure)
Rules 2019 in favour of Lagos State Judiciary with a prohibition against
reproducing the whole or any part of the said work without the consent of the
Chief Judge of the State.
71. With
due respect to the enacting authority, court rules are not eligible for
copyright protection because they are legislative enactments(subsidiary
legislation) made pursuant to constitutional or legislative duties of heads of
courts or by the legislature itself. There is no need whatsoever to request the
consent of the Chief Judge before reproducing the said court rules, and any
such reproduction cannot in any way constitute an infringement of copyright as
none exists in the said work.However, as they say, the jury is out on the
protectability of legislative enactments under copyright.
72. If
the goal of making public legislative compendiums is truly to promote access to
the law and not to generate revenue in every single way possible[71], then the publication of
the LFN in a non-electronic format seems to have outlasted its usefulness. New
laws are being passed, and old ones are being amended – the pace of law-making
in Nigeria is too fast for physical printing to keep up. Hence, what Nigeria
needs is a good legislation management system (LMS) which will be a specially
designed free-to-use computer application to manage extant legislation in
Nigeria. Such a free infrastructure is not too much to ask in a country of over
200 million people with considerable public wealth.
Disclaimer
Nothing
in this pieces constitutes legal nor professional advice. If you require advice
on any of the things covered herein, you can engage the author who is a legal
practitioner in Nigeria.
*Ishaq Obashola Apalando is a Barrister and Solicitor of the Supreme Court of Nigeria, and an associate in the law firm of Charles
Anthony (Lawyers) LLP, Lagos, Nigeria. This
piece was inspired by his frustration with LawPavilion, whose officers cite the
need to obtain the consent of state authorities as the excuse for the delay in
updating statutes in Primsol or adding new ones. Ishaq passionately believes
there is no need for such as far as the law is concerned, and that such a
requirement, even if imposed by the law, will be unconscionable and
unconstitutional. For feedback, you can email Ishaq at [email protected].
[1]That is, in capitalism. See Rod Falvey (2006) The Role of
Intellectual Property Rights in Technology Transfer and Economic Growth: Theory
and Evidence (UNIDO) pp. 9-16 (Online PDF
accessed 28 Sep. 2021)
[2]Halima Salman (2021) 2021: An Overview of Business Law in Nigeria (Online PDF
accessed 29 Sep. 2021)
[3] Olusola Jegede
(Nov. 2020) Nigeria: Forms
& Enforcement Of Intellectual Property Rights In Nigeria
(Mondaq: accessed 28 Sep. 2021)
[4]The reference to thing is an allusion to artificial intelligence
which can now be fed different types of electronic data for processing (big
data).
[5]Consider LawPavilion, LegalPedia, Toma Legal Retrieve etc. See Ishaq
Apalando (2019) LegalTech in Nigeria: Applications and Implications (Online PDF
accessed 28 September 2021)
[6] Sections 4 and
47 of the CFRN.
[7]Section 299 of the CFRN
[8]Sections 3 and 4 of the CFRN, Part I of the First Schedule to the CFRN
[9] See Section
36(12)n of the CFRN; Section 37 of the Interpretation Act Cap I23 LFN 2004;
NJOKU & ORS V IHEANATU (2008) LPELR–3871(CA) etc.It should be noted that federal laws passed under the military were
called Decrees and states laws similarly passed at the time were called
Edicts. With the commencement of Section 315 of the CFRN on 29 May 1999,
Decrees are deemed to be Acts of the National Assembly; Edicts are deemed to be
the respective Laws of the State Houses of Assembly; and the President, a
Governor or any person validly appointed for the purpose is authorized to
modify all existing laws to bring them in conformity with the CFRN.
[10]Cap C23 LFN 2004
[11] The ELL, found
in part I of the Second Schedule to the CFRN, is not the only source of the
National Assembly’s exclusive legislative powers. See also Section 12 of the
CFRN. See also AG FEDERATION v. AG LAGOS STATE (2013) LPELR-20974(SC)
[12]The respective powers of each on the same subject matters are defined;
AG LAGOS STATE v. AG FEDERATION & ORS (2003) LPELR-620(SC)
[13]Section 4(7)(a) CFRN; AG FEDERATION v. AG LAGOS STATE (2013)
LPELR-20974(SC)
[14]Cap M10 LFN 2004
[15]Cap T13 LFN 2004
[16]Cap P2 LFN 2004
[17]Cap C28 LFN 2004
[18] Section 2(1)
of the Copyright Act
[19] Section 5(1)
of the Copyright Act
[20] Section 2(1)
of the Copyright Act
[21] Section 5(1)
of the Copyright Act
[22]Section 5(5)(b)(i) of the Copyright Act
[23]Section 3 of the Copyright Act
[24]Section 5(1)(b)(i-iv) of the Copyright Act
[25]Section 6(1)(a) of the Copyright Act
[26]See in relation to artistic work, Section 6(1)(b); cinematograph film,
Section 6(1)(c) of the Copyright Act etc.
[27]In the United States. fairdealing is termed fair use. Rish
Stim (n.d.) What is Fair Use?(Stanford Libraries) accessed 1 October 2021
[28]Except where the work is incidentally included in a broadcast. Without
the fair dealing exception, academic research will be difficult if not impossible.
[29]See Second, Third and Fourth Schedules to the Copyright Act
[30]These specialized agencies are mentioned in Chapters IX and X of the
United Nations Charter, and they include the World Intellectual Property
Organisation or WIPO, the World Bank Group, the International Monetary Fund
etc.
[31]Section 45(2)(a) of the Copyright Act
[32]Section 29 of the National Archives Act Cap. N6 LFN 2004
[33] (2014)
LPELR-22185(SC)
[34]See also PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS v. MIGFO
(NIG) LTD & ANOR (2012) LPELR-9725(SC); GOV OF IMO STATE & ORS v. DELU
ENT (NIG) LTD (2021) LPELR-54724(CA) etc.
[35]See the decision of the Supreme Court in IBRAHIM v. STATE (1991)
LPELR-1404(SC)
[36] (1980)
LPELR-2936(SC)
[37] (1991)
LPELR-3436(SC)
[38] (2016)
LPELR-40180(CA)
[39](1962)
LPELR-25040(SC)
[40]See also KABIRIKIM & ANOR v. EMEFOR & ORS (2009) LPELR-902(SC); ENYI
v. BENUE STATE JUDICIAL SERVICE COMMISSION & ORS (2021) LPELR-54437(CA)
etc.
[41] OLAIYA v.
OYEDOKUN & ORS (2009) LPELR-4741(CA
[42] B.A. Garner
& H.C. Black (2004) Black's Law Dictionary (8th ed. Thomson Reuters)
[43]See B.A. Ayorinde (Nov. 2018) Nigeria: Judicial Precedent, Law Reporting And The
Need For Regulation (Mondaq:
accessed 1 October 2021)
[44] See NIGERIA
AGIP OIL CO. LTD v. NKWEKE & ANOR (2016) LPELR-26060(SC)
[45] This is called
distinguishing the cases. See UGO-NGADI v. FRN (2018) LPELR-43903(SC)
[46]This is the basis of the Nigerian common law. See Halima Salman, 2021:
An Overview of Business Law in Nigeria
[47]The first compendium was the Laws of Nigeria 1923. The second was
the first revision, published as Laws of Nigeria 1948 (compiled into twelve
volumes under and approved by the Revised Edition of the Laws Ordinance of
1947). The third was the second revision published as TheLaws of the
Federation and Lagos, 1958 (compiled in ten volumes under and approved by
the Revised Edition (Laws of the Federation and Lagos) Act of 1958). The
Revised Edition (Laws of the Federation) Decree No. 52 of 1972 was promulgated
by the Federal Military Government to authorize a very comprehensive revision
and publication of all extant federal statutes, principal and subsidiary, as of
31 December 1971. However, for some reason the author is unable to ascertain,
the said revision never saw the light of day. Efforts were also made in 1981,
but all such culminated in the LFN 1990.
[48] It started under Chief Bola Ige, SANas the HAGF with a view to updating
the compendium up to 2000 in line with a policy of 10-year cycle. After he was
murdered, it continued under Chief Kanu Agabi SAN, but was eventually completed
under Chief Akinlolu Olujinmi SAN in June 2004, by which time the updating had
been done up to December 2002.
[49] The task
required considering many statutes passed by the National Assembly; determining
the ones which are extant; incorporating amendments into the identified ones as
have been made by other statutes (in line with Section 22 of the Interpretation
Act), providing an alphabetical referencing system for easy citation etc. The
task of the committee was herculean, given especially Nigeria’s recent
emergence from military rule in 1999 since 1983.
[50]It should be noted that Revised Edition (Laws of the Federation of
Nigeria) Act 2004 is cited on the opening page of the 2004 edition and the 2011
reprint edition as the legislation authorizing the compilation. However,
Section 3 of the Revised Edition (Laws of the Federation of Nigeria) Act 2007
repealed the Revised Edition (Laws of the Federation of Nigeria) Act 1990. How,
therefore, could Revised Edition (LFN) Act of 2007 be repealing Revised Edition
(LFN) Act of 1990, if there was between the two Revised Edition (LFN) Act of
2004 as stated on the face of the 2004 loose-leaf edition? The author has not
been able to gain access to the Revised Edition (LFN) Act 2004 cited on the
face of both the loose-leaf and reprint editions as the authorizing
legislation. However, the author surmises that the referenced 2004 Act very
likely established the Law Revision Committee which compiled the said edition
up to December 2002, in the same way Decree No. 54 of 1972 (mentioned earlier)
established a Law Revision Committee with a mandate to compile the extant laws
up to 31 December 1971 which would later be published as Laws of the Federation
1971 and approved by another legislative instrument, an order made by the
Federal Executive Council of the Federal Military Government (Section 6 of the
Decree). From the Preface to the 2011 reprint, it can be garnered that
supplements were published to the LFN 2004 up till May 2007. That, therefore,
explains why the 2007 Act could have been needed to perhaps revalidate the LFN
2004 as supplemented up to May 2007, given that the said 2007 Act had 25 May
2007 as its commencement. (See the Preface to the bound 2011 reprint edition
and the Preface and the Foreword to the original 2004 loose-leaf edition)
[51]For example, the Asset Management Corporation of Nigeria Act 2010 Cap A24A
LFN 2004; the AMCON Act has been amended twice, in 2015 and 2019. Annual
Supplements to the reprint edition were published in properly bound volumes for
the years 2011, 2012, 2013 and 2014. From the year 2015 to the time of writing,
only simple bound volumes of Statutory Instruments have been used to update the
reprint edition. However, there seems to be no legislative enactment approving
the reprint, and there is nothing in the 2007 approval Act authorising a
reprint.
[52]See SUDAN
INTERIOR MISSION v. BOLAJI & ORS (2013) LPELR-24709(CA). the legal maxim is
“Generalia specialibus non derogant.” See, for example, the relaxation of the
rules of evidenceunder Sections 1(4) and 22 of the Failed Banks (Recovery of
Debts) And Financial Malpractices in Banks Act of 1994 now Cap F2 LFN 2004 and
the decision of the Court of Appeal in NDIC v. GATEWAY PAPER PRODUCTS LTD &
ANOR (2018) LPELR-43795(CA).
[53]LLSN 2015 was compiled under the authority of the Lagos State Law Reform
Commission Law of 2007 (as amended)
[54]See, for example, the opening pages of the 2004 loose-leaf edition which
states that LexisNexis Butterworths (Pty) Ltd was appointed by the Government
of the Federal Republic of Nigeria Printers and Publishers for purposes of publishing
the LFN.
[55]Cap E14 LFN 2004.
[56]Section 4 of the approval Act defines “existing statutes” thus: “means
any enactment, subsidiary instrument, legislation in force before the giving of
effect to the provisions of this Act”. The case of NWANKWOALA v. FRN (2015)
LPELR-24392(CA) illustrates the confusion created by the 2011 reprint. Chapter
(Cap) C31 of the original 2004 loose-leaf edition contains the Corrupt
Practices and Other Related Offences Act No. 5 of 2000. In 2003, the
National Assembly passed the Corrupt Practices and Other Related Offences
Act of 2003 whose Section 55 purportedly repealed the 2000 Act. However,
despite that the 2003 edition was not assented to by President Olusegun
Obasanjo at the time and it was not repassed to veto his assent, it was
published as Cap C31 in the 2011 reprint edition. Attempts to validate the
replacement by reference to the 2007 approval Act failed as the inclusion was
purely accidental, and by Section 2 of the same 2007 Act, could not invalidate
the 2000 Act. See also the decision of the Supreme Court in NWANKWOALA v. FRN
(2018) LPELR-43891(SC) and AUWALU v. FRN (2017) LPELR-43824(SC).
[57]This is a legal technology developed by LawPavilion Business Solutions
Ltd, a company incorporated in Nigeria in 2005. It is accessible for a fee at https://primsol.lawpavilion.com/.
[58]Accessible at www.LawNigeria.com, the resources are provided largely for free by Tree & Trees
JusticeMedia Group, which is comprised of Tree & Trees Enterprises, Tree
& Trees JusticeMedia Limited and Tree & Trees Legal Practitioners.
[59]Also called
LawLords Publications. Publications by this business include Anti-Corruption
Laws (a compendium of white-collar crime statutes in Nigeria incidentally
contained the invalid 2003 corruption Act); Legal Ethics (a compendium of
statutes relating to legal practice in Nigeria) etc.
[60]Publications
includeTax Laws in Nigeria As Amended 2020 etc.
[61]Consider the Evidence Act 2011 published by ‘Jide Olakanmi & Co.
[62]For example, while the untrained mind may not be able to understand
computer codes (computer programmes), anyone trained in the language in which
the programme is written can very well understand it.
[63] AGU v. DURU
& ORS (2021) LPELR-53212(CA); a very common limitation is the law against
defamation – defamation is not permitted, no matter how honest, even in the
context of comments about public matters. See DIN v. AFRICAN NEWSPAPERS OF
(NIG) LTD (1990) LPELR-947(SC).
[64] TARABA STATE
GOVERNMENT & ANOR v. SHAKU & ORS (2019) LPELR-48130(CA)
[65] (2014)
LPELR-23039(CA)
[66]See also the definition of Immovable in Black’s Law Dictionary, 8th
edition.
[67]See MTN NIG. COMMUNICATIONS LTD v. MUSICAL COPYRIGHT SOCIETY OF NIG.
LTD/GTE (2017) LPELR-50121(CA)
[68]It should be noted that the Land Use Act and the matters it deals with
are considered matters on the exclusive legislative list by virtue of Section
315 of the CFRN. However, some state laws and regulations nonetheless form
subsidiary legislation under the Land Use Act by virtue of having been
recognized by, inter alia, Section 46 therein.
[69] (2010)
LPELR-4779(CA); the question was whether a public servant appointed a
Commissioner could remain a public servant. In holding that a combined reading
of Sections 107, 192 and 208 of the CFRN make it impossible as such a person
must resign or retire from the public service.
[70] (1991)
LPELR-3001(SC)
[71]The Laws of Lagos State of Nigeria 2015 were compiled by persons
appointed under a legislative enactment, and that exercise, along with the printing
and binding by Thomson Reuters, was funded with taxpayers’ money. It is quite
understandable that hard copies of same should be sold, but it is not
justifiable that soft copies of same should also be sold, as is being done at http://lagosstatelaws.com.ng/. When
it comes to promoting easy access to the law, especially in a country like Nigeria
where a considerable portion of its population has gone through university
education and can therefore read and write, it should be a moral crime the soft
copies of legislative enactments, which are in fact supposed to be made
available for free download on the legislature’s website, are being sold. It is
even sadder that public funds are being directly and indirectly stolen in
Nigeria, so that the common Nigerians have not enjoyed the dividend of
democracy.