The outbreak of COVID-19 (also known as the novel coronavirus disease) has led to the initiation of several disputes. While some of these relate to the non-performance of contracts, others concern the damages arising from the injuries caused by coming into contact with the virus. Considering the nature of the pandemic, a plethora of disputes arising from tortious liability for the injuries caused are likely to involve a foreign element—when it results in injuries in some form to persons by the violation of quarantine rules by foreigners or the failure to impose a lockdown to curb the outbreak. For instance, in the United States [US], a group of individuals and business owners have reportedly initiated proceedings against the Chinese government for failing to prevent the disease from spreading. Likewise, tourists from several countries such as the Netherlands, Germany and the United Kingdom have initiated mass litigation against the Austrian Federal State of Tyrol and tourist businesses such as sports resorts, bars and restaurants for continuing the to operate in the State despite being designated as a high-risk zone. International disputes such as these chiefly involve the identification of the law that will govern the claim to decide the rights and liabilities of the parties. Unlike in the case of contractual claims, the determination of the applicable law is more arduous in the case of torts for the reason that the parties rarely, if ever, know each other and do not expect any particular person to injure them by the harmful behaviour. That said, several countries across the globe have made remarkable progress over the years in developing a framework to identify the governing law to adjudicate cross-border disputes on torts. The European Union [EU], the UK, China, Russia, Australia and Canada are some examples. In contrast, India continues to adhere to the century-old mechanism developed under the English common law which has mostly been replaced in the UK itself. In the absence of any black-letter law on the subject, the development of the method to identify the applicable law in matters of tort has depended on the courts. The Indian courts, however, lack experience in handling international disputes on tort. As a result, there is no conclusive and coherent mechanism to identify the governing law in such matters in India. The paper demonstrates how the rules to determine the applicable law in the present form in India will severely debilitate access to justice and increase transactional costs in obtaining legal information. In particular, it highlights the plethora of problems that are likely to arise in adjudicating disputes concerning the COVID-19 pandemic. In this respect, the author provides some suggestions that the lawmakers may consider while reformulating the mechanism to identify the applicable law in matters of tort and, in particular, while adjudicating disputes relating to the COVID-19 pandemic.
Diaries always make for a fascinating read; and Gregory Tardi’s Anatomy of an Election is no exception. Subtitled Canada’s Federal General Election of 2019 Through the Lens of Political Law, the bo...
As emoji 1 become more commonplace in courtroom proceedings, a question arises: what role do emoji play in social media messaging? The author draws a comparison between oral communication and social media messages and concludes lawyers have been too quick to treat text and emoji as a bundle when they should be adopting a piecemeal approach. While emoji may add context and clarity to social media messages that might otherwise appear ambiguous; emoji interpretation is far from an exact science. By exploring linguistic, gesture, and non-verbal communication theory, the author intends to discuss the tension that exists when it comes to deciphering the meaning of online communications – that include emoji – in court proceedings. While there is a tendency to conflate emoji with text in linguistic and non-verbal communication theory, a proper evidentiary analysis requires a piecemeal approach. To permeate these dynamics, the author has researched Canadian, U.K, Australian, and New Zealand case law over the period 2015 to 2020 where emoji were referenced in court decisions. The paper focuses on the treatment of emoji by the courts in these cases. Finally, the paper reviews the relevant legal issues and concludes with a consideration of whether the existing laws relating to electronic documents ought to be reformed to accommodate the admissibility of emoji messages in court proceedings.
The paper highlights the menace of building collapse incidences in Nigeria, the causes and the need to enforce laws to reduce these. It examines the postulations of scholars; applicable laws such as nigerian urban and regional planning act 1992 (NURPA); urban and regional planning and development law of Lagos state 2010 (URPDL) and the effectiveness of regulatory bodies such as town planners registration council (TOPREC) among others in curbing these incidences. Enabling planning laws in Japan is discussed. The paper concludes that the law is adequate in Nigeria but there is the need to enforce the provisions of these laws.
In Benjamin v Kalio, a full court of seven Justices of the Supreme Court reversed earlier decisions on admissibility of unregistered land instruments in Nigeria. Applying constitutional provisions, Benjamin’s case established that such documents are admissible under the Evidence Act which exclusively regulates admissibility of evidence in Nigeria. However, in Abdullahi v Adetutu, a regular court of five Justices simply restated the old rule without making reference to the Constitution, Evidence Act, or Benjamin’s case which has not been upturned by the court. Following the principle of judicial precedent, it appears that the procedure adopted in Abdullahi’s case was erroneous.
The Secured Transactions in Movable Assets Act, 2017 (STMA or Act) was enacted by Nigeria’s National Assembly to, amongst others, stimulate lending to micro, small and medium enterprises. The STMA, amongst others creates a collateral registry and assigns its supervision to the Central Bank of Nigeria (CBN), Nigeria’s foremost financial regulatory agency. This article evaluates the CBN’s role under the Act and contends that having regard to its regulatory focus, the assignment of this responsibility could jeopardize the realisation of the Act’s objective of stimulating funding to small business entities.
The Domestic Violence and Victims Support Unit of the Ghana Police Service (DOVVSU) prosecute perpetrators of domestic violence. DOVVSU also offers ADR services for domestic violence cases. Focusing on the ADR services at DOVVSU, this paper uses narratives from service users; the survivors and perpetrators of violence who patronized DOVVSU services; to determine their satisfaction with the ADR services. Data for the study was also from personal interviews with a random selection of police service providers. The results revealed, among others, that while service users were generally satisfied with the services provided, some viewed the ADR process as an imposition.
Misuse of ship-owners’ stronger bargaining power during the nineteenth century resulted in the formulation of rules to regulate carriage of goods by sea contracts. The adoption of the Hague Rules in 1924 was followed by that of the Hamburg Rules in 1978. Nigeria has domesticated both Rules – the Hague Rules under the Carriage of Goods by Sea Act (COGSA), 2004 and The Hamburg Rules by the United Nations Convention on the Carriage of Goods by Sea (Ratification and Enforcement) Act (UNCCGSA), 2005. In order to bring the Hamburg Rules into force, article 31 of the same Rules enjoins parties to denounce the 1924 Convention. Since the domestication of the Hamburg Rules in Nigeria, the COGSA has neither been denounced nor repealed, leading to confusion as to the applicable law in this area. This paper sets out to evaluate whether the enactment of the UNCCGSA has repealed the COGSA or whether the two legislation apply concurrently in Nigeria. Through analysis of case law, it contends that the enactment of the UNCCGSA has impliedly repealed the COGSA in Nigeria. Finally, the paper offers further suggestions which will aid in bringing certainty and uniformity to this area of law in the country.
This paper investigates the possibility and efficacy of identifying core obligations that should apply to all States in the implementation of Economic and Social Rights (ESRs). The paper acknowledges that ESRs are largely resource dependent, require progressive realisation and that States differ in their level of economic development. However, the paper finds that while the above factors are worth considering, they do not wholly offer reasonable justification to dismiss the core obligations approach. First, the paper examines the core obligations approach. This is followed by the discussion on why this approach should apply to all States. Thereafter, the discussion turns to objections that have been levelled against the core obligations approach. The paper attempts to offer responses to such criticisms. The paper then concludes with the view that although the approach has its challenges, it offers a good conceptual starting point towards the fulfilment of ESRs in domestic jurisdictions.
Wechsler thought matters of established precepts must be decided by ‘neutral principles’, requiring judges to provide ‘reasoned elaboration’. The objective of this research is to examine critically the judicial elaboration of the maxims of equity. Have judicially stated maxims of equity tended to conceal the underlying universal principles by an absence of reasoned elaboration? Argument tests the proposition that the maxims’ underlying principles are veiled, by the necessity of having to analyse their judicial elaborations, in order to infer their inherent principle. Only three of the studied maxims were true maxims. Others could not be subject to reasoned elaboration.
A viable way to establish a sense of inclusion for the physically challenged in Nigeria like elsewhere is to provide a sustainable infrastructural plan that integrates the utility concerns of the disabled. Overcoming the difficulties faced by people with disabilities requires interventions to remove environmental and social barriers. This paper examines the right of persons with disability to public vehicular and infrastructural use. It focuses on the recently enacted Discrimination against Persons with Disability (Prohibition) Act, 2018 as well as other international human rights instruments from which Nigeria derives her international obligations. It is observed that the Nigerian society is still unfriendly to the disabled as public infrastructure is constructed without considerations for the disabled.
The pursuit of developmental objectives especially those related to human/social welfare like the SDGs is often hampered by funding constraints. Hence domestic resource mobilisation is critical to sustenance of developmental programmes. A key message of SDG 17 is that partnership between governments and the private sector is needed to mobilise private resources to deliver the SDGs. This paper contends that one way this partnership can be actualised in Nigeria is through the principles of taxation considering the strong relationship between taxation and development. It recommends that developing a strong tax system is necessary to sustain the funding of SDGs.
The worldwide water crisis is alarming in recent years due to climate change, a growing world population and increasing demands for water, making the situation challenging. A large number of countries are facing a difficult situation where water supplies are not adequate to satisfy even the minimum needs of the people. While international regulation of water has traditionally operated from the perspective of the state, recent human rights instruments have shifted the debate. Despite the lack of a universal treaty containing an explicit human right to water, the UN General Assembly has adopted resolutions expressly recognizing the human right to water, and the right is furthermore incorporated in the new Sustainable Development Goals. In this context, the aim of this paper is to examine the present status of the right to water in international law. It attempts to dialogue with the different existing perspectives regarding the impact of its international recognition as a human right. It then explains the development of the right to water in legal and judicial spheres. Finally, it considers the urgency and challenge of monitoring the human right to water and sanitation and discusses important implications for public policies.
The paper highlights the National Industrial Court of Nigeria’s (NICN) importance over the general courts in the interpretation of labour statutes. It compares the judicial interpretation of some provisions of labour statutes by the general courts in Nigeria (represented herein by the Supreme Court of Nigeria’s interpretation of same provisions) with the interpretation of the NICN of same provisions. It argues that the NICN’s interpretation is more favourable to labour rights than that of the general courts. It makes use of the rules of judicial interpretation and Ronald Dworkin’s discussion on interpretation as a framework and adds to it by comparing the judicial interpretation of some provisions of labour statutes by the general courts with that of the NICN. It noted that the NICN’s interpretation was more purposive and promoted labour rights than that of the general courts. The Supreme Court cases used to represent the position of the general courts were those decided before exclusive jurisdiction on employment and labour matters was conferred on the NICN in 2010. Presently, even though the general courts no more have jurisdiction to hear and interpret employment and labour matters the NICN’s interpretations continues to promote labour rights.
The legal status of the nature of employment of religious ministers is a matter of global concern. Before now, Religious Ministers were not seen as employees due to the absence of intention to create legal relations between Ministers and the Churches. This paper argues that a Religious Minister can be an employee and, therefore, should not be denied rights accruing from contracts of employment. Comparatively, the position of other common law jurisdictions was looked into. We indeed found situations where a contract of employment can exist between the Minister and the Church. In this context, the paper makes some recommendation.
This paper examines the exercise of the executive powers of president Buhari in suspending Onnoghen chief justice of Nigeria (CJN) from office. It questions whether the power was rightly exercised by taking a look at applicable provisions of the constitution of the federal republic of Nigeria 1999 as amended pertaining to the appointment and removal of judicial officers. It also examines the doctrine of separation of power in tandem with the rightful exercise of the executive powers of the President. The paper re-echoed a similar situation in Pakistan. It concludes that the executive powers of the president was wrongly exercised.
This article examines the legal framework for the grant and exercise of the right to self-representation in criminal proceedings in Ghana, using a doctrinal research approach. It finds that the exaltation of the value of autonomy of the right above considerations of procedural equality and trial fairness affects the integrity of the trial process. More importantly, the legal system in Ghana provides little or no standards setting the modalities of the exercise or revocation of the right. This article recommends a departure from the general standard of proceeding pro se which pays no regard to the competency of the accused person in favour of an adoption of a competency-based approach in order to guarantee an effective exercise of the right to self-representation. It also suggests the formulation and adoption of efficient standards in line with international law for the purpose of delimiting the scope of revocation of the right in criminal proceedings.
Many jurisdictions have reformed their criminal justice process as a result of reported cases where convicted individuals who have exhausted their legal rights of appeal were exonerated using DNA evidence. Based on that backgrounds, this article critically examines the existing post-appeal avenues in Malaysia and highlights that they are ineffective to deal with claims of miscarriages justice. This article argues proper legal mechanisms need to be established to deal with this issue which can also allow convicted persons to request for DNA testing where relevant to prove their innocence.
Presidents Donald Trump and Muhammadu Buhari of the United States and Nigeria respectively exercised their constitutional pardon power in recent times, in circumstances that many persons view as controversial. Although pardon power is well recognised, its scope has not, however, been fully explored. This article provides a nuanced articulation of the complexities inherent in the scope of pardon power. The questions it addresses are, can pardon be granted before conviction? Can pardon power be exercised to undermine court’s power to penalise contempt? Can corporate entities be pardoned? Does a deceased person come within the scope of constitutional pardon power?
The appointment of most recognized chiefs is regulated by codified native law and custom usually called chieftaincy declaration or community constitution largely to obviate the necessity for oral proof and ensure certainty of the law. The court has maintained that it has no power to promulgate chieftaincy declaration for any community but departed from this principle in two cases when it held that it has competence to determine whether a chieftaincy declaration is in accordance with the prevailing custom and where it is not, declare it null and void. This paper concedes that the court can declare a chieftaincy declaration a nullity where the body that made it lacks competence; it cannot nullify a chieftaincy declaration on account of the correctness of the content. Whereas a finding of the court that a chieftaincy declaration does not represent the prevailing custom may necessitate a legislative reform, the nullification of a chieftaincy declaration on account of that finding amounts to judicial usurpation of legislative power. The proper construction of a chieftaincy declaration and its application to the facts will settle a dispute without the court necessarily nullifying the declaration. This paper therefore recommends a judicial rethink whenever the opportunity presents itself.
