DO WORKERS' HAVE A RIGHT TO STRIKE IN NIGERIA?

One of the fundamentals of a democratic society is workers’ right to strike. Thus, it is important that this right is preserved and secured in any society. It is to be noted that the right to strike is readily available arsenal in the hand of workers during the collective bargaining process. The tool is usually implored by workers to compel compliance for the defence and promotion of their interest. It has been said that if the right to strike should be taken away from workers that their trade union will be a lame ducks. 

Strike has been defined as a deliberate stoppage of work by workers in order to put pressure on their employer to accede to their demands. In the notorious case of Tramp Shipping Corporation v. Greenwich Marine Incorp. (1975) ICR 261 at 276, the indomitable Lord Denning stated that a strike is “a concerted stoppage of work by men, done with a view to improving their wages or conditions of employment, or giving vent to a grievance or making a protest about something or sympathizing with other workmen in such endeavour. It is distinct from stoppage brought by an external event such as bomb scare or apprehension of danger”

More also, under the Nigeria Law, Section 47 of the Trade Dispute Act states that “strike means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed, to accept or not to accept terms of employment and physical conditions of work: and in this definition: a. cessation of work includes deliberately working at less than usual speed or with less than usual efficiency: and b. refusal to continue to work includes a refusal to work at usual speed or with usual efficiency.

The International Labour Organisation, an agency of United Nations, which is responsible for upholding global labour standards, despite it's numerous Labour Convention and Recommendation on general labour related issues has no single convention that expressly provided for the right to strike. It is important to state that this does not mean the international Labour Organisation is against the right to strike. 

However, there are two resolutions of International Labour conference which provided for guidelines for ILO policy on recognition of the right to strike in member states which are Resolution concerning the Abolition of Anti-Trade Union Legislation in the State Members of the International Organisation and Resolution Concerning Trade Union Rights and their Relation to Civil Liberties provided for the right to strike.

Furthermore, the following International and Regional Instruments also provided for the Right to Strike which are: 

1.The International Covenant on Economic, Social and Cultural Rights of 1996 provided for the right to strike in Article 8(1)  (d) of the Covenant. 

2.The  European Social Charter of 1961(revised 1996) 

3.European Union of Charter of Fundamental Rights of 2000 

4.The African Charter of Human and Peoples Rights which has been domesticated in Nigeria.

Do workers’ have a right to strike in Nigeria?

At this juncture, it is important to consider whether or not workers do have a right to strike in Nigeria. A glimpse at the Labour Legislations in Nigeria shows that there exist a number of constraints to the right to strike in Nigeria. Thus, it is needful to consider those constraints as spelt out in the existing labour legislation in Nigeria. For the purpose of this discourse, we shall focus mainly on the Trade Dispute Act 2004 and Trade Union Amendment Act 2005.

1. TRADE DISPUTE ACT

The Trade Dispute Act by virtue of its Section 18, provided for circumstances where a worker shall not take part in strike action with any trade dispute and more also instances where an employer shall not take part in a lock-out. For the purpose of clarity Section 18(1) provides as follows:

a.Where the procedure specified in section 4 and 6 of this act has not been seen to be complied with in relation to the dispute;

b.Where conciliator has been appointed under Section 8 of this Act for the purpose of effecting a settlement of the dispute;

c.Where the dispute has been referred for settlement to the Industrial Arbitration Panel under section 9 of this Act.

d.Where an award by arbitration tribunal has become binding under section 13(3) of this Act.

e.Where the dispute has subsequently been referred to the National Industrial Court under Section 14(1) or 17 of this Act.

f. The National Industrial Court has issued an award on the reference.

Furthermore, Section 18 (2) makes it an offence, for any person who contravenes subsection (1) of this section. To this end, if any worker or group of workers takes part in strike in contravention of section 18(1), the strike will be prima facie illegal and the strike will be visited with criminal sanctions.

Whereas, Section 4 of the Trade Dispute Act 2004 which was made reference in Section 18(1)(a) enjoins parties to a trade dispute to settle dispute amicably by any agreed means. It stipulates further that where settlement fails, the parties should within 7 days of the failure meet together by themselves or their representatives under the presidency of a mediator that is mutually agreed upon and appointed by or on behalf of the parties, with a view to the amicable settlement of the dispute.

Section 6 of the Trade Dispute Act further provides that if within seven days of the day on which a mediator is appointed in accordance with Section 4 (2) of the Act, the dispute is not settled, the dispute shall be reported to the minister by or on behalf of either of the parties within 3 days of the end of seven days. This is usually done after securing a majority votes of its members through a secret ballot authorizing the strike. 

2.TRADE UNIONS ACT (AMENDMENT) 2005

Meanwhile, under the Trade Unions Act (Amendment) 2005, certain conditions were also spelt out before strike can be organized in contemplation of a trade dispute, which are as follows:

a.That the strike or lock-out is in contemplation or furtherance of a trade dispute.

b.That the person, trade union or employer is not engaged in the provision of essential services.

c. That the strike or lock-out concerns a labour dispute that constitutes a dispute rights.

d.The strike or lock-out concerns a dispute arising from a collective and fundamental breach of conduct of employment or collective agreement on the part of employees, trade union or employer.

e. The provision for arbitration in trade disputes Act Cap 432 Laws of the Federation of Nigeria 1990 have been complied with, and

f. In the case of an employee or trade union a ballot have been conducted in accordance with the rules and constitution of the trade union at which a simple majority of all registered members voted to go on strike.

The Trade Union Amendment Act 2005 also prohibits pickets on premises of any kind and bans the blockade of airports and highways. It further prescribe a penalty of six months imprisonment or fine of N10,000 for illegal strike actions by Section 7 of the Trade Union Amendment Act 2005.

WHETHER OR NOT THE RIGHT TO STRIKE EXISTS BASED ON THE ABOVE PROVISIONS?

Premised on the above provisions, one could be tempted to conclude that workers’ right to strike in Nigeria is a mirage. O.V.C Okene has however noted that lawful industrial actions are difficult to obtain under these regulations. For instance, the Trade Dispute Act and Trade Union Act provided strict and stringent guidelines before strike can be carried out. What this means in essence is that workers cannot go on strike unless these conditions are met. 

It is important to note however that the condition spelt out for carrying out industrial action in the Trade Union Amendment Act 2005 in particular, was ambiguously construed. The Act created a caveat that those workers in ‘essentials services’ will not be allowed to go on strike without unequivocally stating the categories of work that fall under these essential services. However, one may be tempted to pre-empt that all categories of work fall under essential services. It would have been well defined if the term essential services are defined, if it were construed as contained in the South African labour Relations Act 1995, which defined essential services to mean parliamentary services, South African police services and services which if not rendered, endangers the life, personal safety of the populations. Unlike the Nigeria provisions that muddle up everything in the guise to restrict the right to strike in  Nigeria.

Another area that needs to be pointed out pertains to restricting industrial action to only matters that constitute dispute of right i.e labour dispute.  This in essence means that only labour dispute arising out of negotiation, application, interpretation or implementation of a contract of employment or collective agreement  or any other matter relating to terms and condition of employment. Thus, disputes of interest and disputes of recognition are no longer allowed as legitimate grounds for industrial actions. This was further given judicial approval in the case of Adams Oshimole & Anor v. Federal Government of Nigeria & Anor (2005) 1 NWLR (Pt. 907) 414 where the Court held that strike action cannot be used to protect interest outside the terms of employment. It is important to note that the Nigerian Labour Congress has been known for embarking on strike for national issues not particularly related to labour matters especially when there is increase in fuel price. By this provision, the Nigerian Labour Congress which is the Centralized Labour Organization has been tamed with respect to going outside labour disputes matters when embarking on industrial actions. In order to achieve this aim in totality, the Trade Dispute Act 2005 deleted the word Central Labour Organization and replaced it with Federation of Trade Union. The aim is to democratize the labour movement in Nigeria and weaken or completely remove the potency of the Nigeria Labour Congress as the only central labour organization in Nigeria. 

It is must be noted that strike cannot be ruled out in any democratic society and it does not matter whether the labour is centralized or not. The workers will have to go on strike whenever the need arises. Professor Kahn Frend Once Said, “Workers will go on strike, whatever the law says about it”. And this explains the reason why industrial actions have been organized and staged despites the strict and stringent conditions. It must be noted that despite the clause in Trade Union Act which forbids workers in presumed “essential services” not to go on strike, Medical Practitioner occasionally do embark on strike, Radio, Television and Theatre Art Workers RATTAWU still went on strike in 2005 and recently the Judiciary Staffs went on strike in 2015 throughout the federation which took the Federal Government intervention before it could be called off. The category of those mentioned earlier can be said to be within the context of essential services in Nigeria.

Another interesting point to note is that of the lingering tussle between the Academic Staff Union and the Federal Government. This has really been a bottleneck that has swept the Federal Government off their feet. These are few instances of strike which has come into play despite what the law has to say on strike.

Meanwhile, the ILO Committee of Experts on Freedom of Association at its meeting in 1996 has cautioned, that no employee should be dismissed or refused re-employment because they have participated in strike. This position has been given further judicial credence in the case of Mr. Charles Obazuaye v. First Bank of Nigeria Plc (2013) 38 NLLR (Pt 116) 28.

In conclusion, it is important to note that workers right to strike cannot be curtailed or restricted by any national law. This is premised on the fact that workers are entitled to better condition of service at each point in time by as guaranteed by International Labour Standards. Thus, the only way to compel an employer when negotiation and the tool of collective bargaining fails is by embarking on industrial action. It can be put thus, the law might have it way but the workers will always have their unfettered right to strike when the need arises provided it's employment related. It is important to point out, that the court in recent times has frowned at industrial actions that is not related or connected to employment issue. Thus, to qualify as industrial action within the context of the legislations, it has to be related to terms and conditions of employment to eschew criminal liability.

 Rufus Adeoluwa Olodude, Esq.
Lead Counsel, Achieversworld & Partners

International Labour Standards and Worker’s Right against Discrimination in Work Place

According Tarja Halonen, the former President of Finland, noted that the establishment of International Labour Organization in 1919 stemmed from the political desire to create common international rules for reducing unhealthy competition between Countries on working conditions and terms.

International Labour Standards otherwise known as International Labour Instrument for the purposes of this discourse, refers to conventions agreed upon by international actors resulting from series of value judgments, set forth to protect basic workers’ right, enhance workers’ job security and improve their terms of employment on a global scale. Thus, the intent of such standard is to establish a worldwide minimum level of production from inhuman labour practices through the adoption and implementation of said measure.

The International Labour Organisation has noted that millions of women and men around the world are denied access to jobs and training, receive low wages, or are restricted to certain occupations simply on the basis of their sex, skin colour, ethnicity or beliefs, without regard to their capabilities and skills.  The ILO has further noted that in some developed countries, women workers earn up to 25 percent less than their male colleagues performing equal work. Hence, it is important to note that in any organization, freedom from discrimination is a fundamental human right and it is very essential for both workers to choose their employment freely, to develop their potential to the full and reap economic rewards on the basis of merit.

It is important to note that employers who practice equality have access to larger and more diverse workforce. And more also, tend to enjoy greater access to training, often receive higher wages and improve the overall quality of workforce.

Premised on the above, we shall be highlighting few International Conventions which guarantees the equality of opportunity and treatment of worker’s at their place of work. The conventions are listed hereunder:

1. Equal Remuneration Convention, 1951 (No. 100)

This convention requires countries to ensure the application to all workers of the principle of equal remuneration for men and women for work of equal value.

2. Discrimination (Employment and Occupation) Convention 1958 (No. 111)

This fundamental convention defines discrimination as any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. It is premised on the need for ratifying state to declare and pursue a national policy designed to promote, by methods appropriate to national condition and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in these fields. These includes discrimination in relation to access to vocational training, access to employment and particular occupations, and terms and condition of employment. It is important to note that this beautiful convention has been ratified in Nigeria.

3. Workers with family Responsibilities Convention 1981 (No. 156)

This convention sets a standard on the need to create effective equality of opportunity and treatment for men and women workers. The convention further requires that, ratifying states should make it a goal of national policy to enable persons with family responsibilities who are engaged or wish to engage or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities. This particular convention also requires governments to take account of the needs of workers with family responsibilities in community planning and to develop or promote community services, public or private, such as childcare and family services and facilities.

Whether or not the Nigeria State has complied with International Labour Standards with respect to equality of opportunity and treatment?

Nigeria ratified Convention No. 100 on Equal Remuneration in 1974 and Convention No. 111 on Discrimination (Employment and Occupation) in 2002. Convention No. 156 on Workers with family responsibilities is yet to be ratified in Nigeria. As a means of observing international convention, the Federal Republic of Nigeria 1999 Constitution provided for equal pay for equal work without discrimination on account of sex, or any other ground whatsoever. However, the Committee of Experts on the Application of Conventions and Recommendations (CEACR)  in 2011, has challenged the government to give full expression to the Convention’s Provisions which provide for equal remuneration for men and women for work of equal value.

Also according to the US State Department Human Rights Report, it was noted that there are no laws in Nigeria that criminalizes gender-based violence, and it further noted that some federal laws condone such violence.

It is pertinent to note further that there are no specific law prohibiting sexual harassment at the workplace, except that it may be niche under violent harassments and may be punished under other provisions of the law. Yet, It is also disheartening to note that the Nigerian Minimum Wage Act excludes many workers, in particular those in companies with less than 50 employees, part-time workers, workers paid on Commission or on a piece rate basis and season agriculture workers in Agriculture. And to say the least, women are disproportionately represented among these groups of workers.

It is important to note that Sec 13 of HIV and Aids(Anti-Discrimination) Act which was passed into law in 2014 prohibit situations whereby a person is denied employment on the basis of his/her HIV/AIDs status and also set standard that real or perceived status shall not be used as a cause for terminator of employment. Yet so many organization still discriminates on the HIV status of an individual as a ground of denial of employment opportunities and more also as a premise for terminating employment.

It is important to point out that in the year 2014, the Human Right Risk Atlas Report prepared by Maplecroft, upon evaluating 197 countries on various human rights violations classified 34 countries as having extreme human right risk in 2014. It is disheartening to note that Nigeria was listed as the 10th Worst offender of Human Rights in the World.

Based on the above, the Nigeria state is yet to comply fully with international best practices in terms of equality of opportunity and treatment of workers. Eventhough the principle of equality of workers was enshrined in the 1999 Constitution, the issue of substantial compliance has been a mirage over the years.

Thus, there is the need for the worker’s to use their democratic tool to advance towards  a better working environment and see that discrimination in the work place is totally curbed through the medium of championing proactive legislations to remedy the defects and through suitable platform towards calling out the government for a meaningful dialogue towards substantial compliance.

Rufus Adeoluwa Olodude, Esq.

Legal Practitioner & International Labour Law Consultant

HARNESSING POTENTIALS UNDER THE NEW CYBER-ARBITRATION ALTERNATIVE DISPUTE RESOLUTION METHOD by Rufus Adeoluwa Olodude, Esq. Lead Counsel, Achieversworld & Partners

The internet has truly emerged as a real global, borderless market place where anyone having access to a computer linked to the World Wide Web may participate in some sort of international commercial transaction. Commerce inspired by high technology has now transformed itself into electronic commerce and the internet has become a new, fast-developing means of communication and a new business tool.1 Nigeria is not left out of this innovation as so many business organisations have resorted to doing business online. For example, organisations like Jumia, Dealdey and Konga has made life so easy for Nigerians through their online supermarket. 2 Now, one can relax in the comfort of his/her home and at any time transact business online with a very good bargain and also have their goods delivered to them at their door step. With this new form of transactions method came up new types of disputes. 3 Thus, it has been noted that the sheer volume of transactions that are carried out over the internet, along with expectation of users for remote, impersonal and efficient communication, has rendered traditional and litigation or court-annexed dispute resolution processes ill-suited to address the resulting disputes. Thus, the need for a more suitable method brought the electronic medium of settling the simple-complex mode of transaction that has an element of technological advancement inherent in it. 

Cyber-arbitration (also known as electronic arbitration, onlinearbitration,cyberspace arbitration, virtual arbitration, or arbitration using online techniques) is an Alternative Dispute Resolution method (ADR), and precisely an Online Dispute Resolution technique (ODR).4  Cyberarbitration (E-arbitration) has been defined as a method to settle disputes through online platforms providing arbitration services. It is a new dimension of dispute resolution mechanism between economic agents through the use of information and communication technology. Cyber-arbitration or E-Arbitration is inseparable from the growth of e-commerce and cross-border trade transactions. 

It is pertinent to note that the online arbitration has been on the high demand and has also been attractive in recent times due to its non-judicial way to settle disputes, as well as the use of electronic, technological, and innovative means to go about the process by appointing an arbitration panel vested with a binding authority and conducting the process, at least partly, on virtual platforms using the Internet. 5 It has been noted that the use of information and communication technology (ICT) in  cyber-arbitration service is not only an assisting tool but an essential one to the administration and functioning of the process. Many websites already provide for an online user-friendly arbitration service that allows two or more parties to resolve business or individual disputes through experienced online arbitrators, such as: arbfile.org, netarb.com, onlinearbitrators.com and many more. In addition, there have been many attempts to initiate E-arbitration projects; some of which were successful such as the Cyber-Tribunal at the University of Montreal (Canada 1996) or WIPO (World Intellectual Property Organization- Switzerland 1967) and others with limited scope such as the Virtual Magistrate VM at the Villanova University School of Law (USA 1996).6

The Procedure for Cyber-Arbitration

It is important to note that the procedure adopted in Online Arbitration is similar to the offline Arbitration, the major difference here lies in the fact that former takes place on the internet. One of the leading online arbitration provider is known as “internet ARBitration”. This online-arbitration entity known as internet-ARBitration (net-ARB), allows parties to file their cases free of charge. It prides itself as a world leader in low-cost arbitration. 7 Other thriving online arbitration institutions are FINRA,8 onlineARBITRATION.net,9 and eQuibbly.10

The Scope of Cyber-Arbitration

The scope of online arbitration providers as it relates to their jurisdiction on matters that can adjudicate on, covers disputes involving e-commerce, domain issues, intellectual property matters and money claims. The online arbitration providers have a list of qualified arbitrators, who has got the requisite experience needed to help people settle claims brought before them amicably. 

Procedure for instituting Actions in Cyber-Arbitration

The following are the points to note in Cyber-arbitration procedure:

1. A Claimant who intends to institute an action under the Cyber-Arbitration Tribunal is expected to prepare a Statement of Claim which comprises of facts with regards to the issue he/she wants to resolve with online Arbitration procedure.

2. The Claimant is expected to file the prepared Statement of Claim with the Online Dispute Resolution provider specifying relevant facts and remedies requested. It is to be noted that the claim is filed at the website of the chosen ODR provider. However, the Cyber-Arbitration entity knows as OnlineARBITRATION.net gives a condition precedent to the party filing the arbitration process to provide the telephone number, contact representative and email address of the adverse party and his representative. It is important to state that failure to meet this condition may result in the case being dismissed or a decision vacated.11 Furthermore, a filing a statement of claim attracts a fee. Filing fees depends on the ODR provider and also the nature of the claim.12 

3.Where prior to the dispute, parties have agreed to resolve their disputes via online arbitration, the said agreement shall also be submitted along with the claim. 

4. The documentary evidence pertaining to the facts stated in the claim may also be submitted.  Thus, the said documentary evidence can be scanned and attached to a box provided by the Online Dispute Resolution provider when initiating a claim. It can also be sent via email. 

5.The monetary claim or reliefs of the Claimant must be stated in the Statement of Claim, though the onlineARBITRATION platform has provided that the claim of the claimant must be at least $5,000 (five thousand dollars).13

6. As soon as the claim is lodged at the website of the Online Dispute Resolution provider, the ODR provider is expected to contact the Respondent informing him of the initiated claim through the email provided by the Claimant and he is to persuade the Respondent to consent.

7. Once the respondent consents to online arbitration the Respondent is expected to respond to the arbitration claim by filing at the website of the Online Dispute Resolution provider, an answer specifying the relevant facts and available defenses to the claim.14

8. After settlement of pleadings, both parties (claimant and respondent) are expected to select an arbitrator from the list of potential arbitrators accredited by the ODR provider they have agreed to refer their disputes to. 

The names of these arbitrators are usually displayed on the website of the chosen ODR provider. The choice of arbitrators will be done by parties and communication as to choice of mediators will be done through exchange of emails. 

9. Parties may elect to agree on the seat of Arbitration as they deem fit.

10. A date for proceedings is to be scheduled where parties are allowed to give their testimonies and tender their evidences through the online platforms.

11. After the hearing of the proceedings, the arbitrators are expected to review all the evidences tendered and issues an award via electronic means. 

12. The successful party thereafter takes steps towards enforcing the award.

Jabiri has provided three modes on how online arbitration agreement can be concluded:15

a. Opposite parties announce their consent by referring their dispute to arbitration by email.

b. Websites selling goods and services put an arbitration clause in the ‘terms and conditions” section of their websites. In this part consumers can declare their consent by clicking “I agree” or “I accept” button in a pop-up box on computer screen.

c. The third mode is cited by the UNCITRAL Model Law, in which parties in the cyberspace, refer their disputes to a document containing arbitration clause.

During the hearing phase, all testimonies and evidence are given either by email or video conferencing depending on the choice of the parties, arbitrators or ODR provider. 16

Use of the video-conferencing is the most common method in online arbitration. By this device (videoconference), not only parties can be heard and seen easily but also testimonies of witnesses can be taken.17 

It is important to state that the technology of video-conference is not only used in online arbitration or any of the ODR mechanism. Both litigation has subscribed to videoconference.

For instance the rules of civil procedure in England, Wales, and the US, allow for the use of video-conference during hearing under certain circumstances.18 It is important to note also that the Lagos State High Judiciary is working towards implementing online hearing into its rules.

Conditions for Online Arbitration

There can be three possible situations for submitting or referring a claim, dispute or difference to an online arbitration. 19

1.  It must be an e-contract containing an online arbitration clause. 

2. It must be a written contract providing for online arbitration

3  It must have a reference to online arbitration after the dispute has arisen. 

The agreement of the parties to refer their disputes to the decision of the arbitral tribunal must be intended to be enforceable by law and hence, it must satisfy the requirement of enforceability as prescribed by Section 10 of the Contract Act, 1872 with a clear intention of entering into a legally binding relationship and parties must be ad-idem. 

Arbitration Agreement has been defined under Section 7 of the Arbitration and Conciliation Act, 1996. If an online arbitration clause passes a test of Section 7 then it is deemed to be a valid arbitration clause. Exchange of letters, telex, telegrams or “other means of telecommunication” should signify an active assent by both parties and a demonstrable meeting of minds as to the arbitration agreements.20 Whether any agreement entered into through such other means of telecommunication is enforceable? What would be included in such other means of telecommunication?

Can exchange of emails embodying an agreement to arbitrate be covered under Section 7?

The e-mail exchange may also refer to a separate written arbitration agreement (“incorporation byreference”). The parties may also wish to reach agreement through a website. In such case, an exchange of electronic communications occurs through the parties browser software. Either method (e-mail or website) will ultimately lead to the same question as to whether an electronic communication provides a required record of the agreement.

The answer was given in affirmative by the Honourable Supreme Court in the case of Trimex International FZE Ltd. v. Vedanta Aluminium Ltd (2010) 3 SCC 1. In this case, the Petitioner submitted commercial offer through email for supply of bauxite to Respondent. Respondent conveyed acceptance of offer through e-mail and the Parties entered into contract. The Contract contained an Arbitration Clause for resolution of disputes between the parties. Thereafter, Respondent refused to honour contract on the ground that there was no concluded contract between the parties and the parties are still not ad idem in respect of various essential features of the transaction. It was held by the Honourable Court that if the intention of the parties to arbitrate any dispute has arisen in the above offer and acceptance thereof, the dispute is to be settled through arbitration. Once the contract is concluded, the mere fact that a formal contract has to be prepared and initialled by the parties would not affect either the acceptance of the contract so entered into or implementation thereof, even if the formal contract has never been initialled.21

Needless to state that Section 4 of the Information Technology Act, 2000 renders legal recognition of such electronic transfer of communication which is admissible as evidence. Though, e-commerce laws have “legitimized” electronic communications in the light of traditional paper-based legal requirements, it does not mean that the controversies about arbitration agreement concluded online completely disappeared. Nor could one assume that every arbitration agreement concluded by an exchange of e-mails or electronic data interchange will be valid. The means of telecommunication applied must satisfy certain conditions, i.e. provide the agreement’s record that is “accessible so as to be usable for subsequent reference”.22

Advantages of Online-Arbitration

1. Speed: In Cyber-Arbitration, the communication process takes place through an electronic means which makes the process faster than the traditional Arbitration which may take a very long time before desired result is achieved. Thus, the electronic means makes the procedure simple thus making the process faster. In most cases, the whole process can be completed within

just a few days after both sides sign the Agreement to Arbitrate.

2. Saving of time and costs: As all the communications are done through the internet, there is no need to travel to different locations in order to present evidences, documents, or attend hearings; as a result, the time and costs that are normally implied in an arbitration will be reduced. 23

3. Easy access: parties in cyber-arbitration can get easy access to the procedure content and they should be able to present any material from their home or office at any hour on any day.24

4. Delocalization: The online arbitration process is delocalized, meaning that parties can act from any part of the world without being bound to any specific local legislation. The arbitrators do not need to be in the same geographical location, as they can discuss the award and other issues via teleconferencing.  

5. Flexibility: Parties can also decide on creating a more flexible procedure, setting such stages and deadlines as they deem convenient. Parties can also select the law pursuant to which the dispute will be solved; for instance, current legislation allows arbitrators, if agreed upon by the parties, solve ex aequo et bono.25

6. It encourages International Trade: ODR especially arbitration aids international trade by eliminating the geographic obstacles to justice. Email discards the extremely cumbersome need for in-person meeting and constant battling with time zone restrictions.

Conclusion

The concept of cyberspace arbitration is indeed a welcomed innovation especially for online users and those involved in e-commerce. Cyber-arbitration is an Alternative Dispute Resolution mechanism which is conducted primarily through the use of electronic means of communication. As can be gleaned above, Cyber-Arbitration present some landmark advantages in comparison with traditional arbitration and other ADRs, as it is a fast, economic and effective way to solve a dispute. Cyber-arbitration may constitute an ideal vehicle to solve disputes arising from e-commerce transactions as it provides the disputants with a procedure which may be conducted without their physical presence, saving them time and money, and with a final arbitral award which is binding and rendered by an impartial expert on the subject of the dispute. It is important to note that it provides variety of electronic means of communication for the conduction of the procedure. It is important to state that the most efficient and convenient device should be used by disputant to arrive at a just conclusion. It is recommended that potentials under the cyber-arbitration can be harnessed towards the speedy dispensation of justice in Nigeria, due to the fact the electronic means of communication is more convenient than the traditional method of conducting traditional proceedings. Thus, it is recommended that Nigeria borrow a leaf from the modern method of settling dispute as adopted in advanced countries so as to enable her harness the potentials under the electronic mode of settling disputes, thus reducing the number of cases in our traditional courts.  

Rufus Adeoluwa Olodude, Esq.

Lead Counsel, Achieversworld & Partners

Barristers, Solicitors, Researchers and Publishing Consultants

Email: achieversworldandpartners@gmail.com

Tel: +2347039297390

References

 Biukovic, L., 2002, International Commercial Arbitration in cyberspace: Recent Developments, Northeastern Journal of International Law and Business, vol. 22: Issue 3. Available at

http://scholarlycommons.law.nortwestern./edu/njilb/vol22/iss3/20 (last visited on 14th December, 2014). op.cit. p. 340.

2 Nwandem O.V.L,  Online Dispute Resolution: Scope and Matters arising available at Electronic copy available at: http://ssrn.com/abstract=2592926 accessed on April 4, 2018

3 Thompson, D., 2014, “The Growth of Online Dispute Resolution and its use in British Columbia”. Available at https://www.cle.bc.ca/PracticePoints/LIT/14-GrowthODR.pdf (last visited on 21st December, 2014).

4Mira Fayad and Habib Kazzi, Electronic Arbitration in Lebanon: Overview and Trends available European Scientific Journal March 2015 edition vol.11, No.7 available at https://eujournal.org /index.php/esj/article/download/5304/5113 accessed on April 7, 2018 

5Mira Fayad and Habib Kazzi, Electronic Arbitration in Lebanon: Overview and Trends available European Scientific Journal March 2015 edition vol.11, No.7 available at https://eujournal.org /index.php/esj/article/download/5304/5113 accessed on April 7, 2018 

6 ibid

7Internet-ARBitration: How net-Arbitration Works. Available on http://www.net-arb.com/howarbitration_

works.php (last visited on October 29, 2018).

8http://www/finra.org.

9http://www.onlinearbitration.net

10https://www.equibbly.com.

11 Section 1, Online ARBITRATION Process Rules. Available on www.onlinearbitration.net.

12 Parties initiating claims under net-ARB will file claims free of charge as filing fees under net-ARB has been completely eliminated

13 See Section 2-2 Online ARBITRATION Process Rules

14 FINRA: Arbitration Process. Available at www.finra.org/ArbitrationAndMediation/Arbitration/Process/ (last

visited on 20th December, 2014).

15 Jaberi M.S., Online arbitration: A vehicle for dispute resolution in Electronic Commerce. p.4 Available on www.academic.edu/1842719/online_Arbitration_A_Vehicle_for_Dispute_Resolution_in_Electronic_Commerce (last visited on 26th December 2014)

16 Net-ARB recommends evidence and testimony to be given via email.

17 Jaberi M.S., op. cit, p. 10

18 See Civil Procedure Rules Part 36, Rule 32.3 or PD 23 by leave of the court, or the US Federal Rules of Civil procedure: Fed. R Civ. P. 43(a), “The court may for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. Also see Hornle J, 2003; Online Dispute Resolution – The Emperor’s New clothes? Benefits and pitfalls of online Dispute Resolution and its Application to commercial Arbitration. International Review of Law 17(1)p.4.

19 Rafal Morek, “Online Arbitration available at http://www.odr.info/Re%20greetings.doc accessed on October 29, 2018

20 Shakti Bhog Foods Ltd. V. Kola Shipping Ltd., AIR 2009 SC 12

21 Rafal Morek, “Online Arbitration available at http://www.odr.info/Re%20greetings.doc accessed on October 29, 2018 p.2

22 Ibid @ p. 2

23  Pablo Vera Prendes, Online Arbitration, Law and Technology, Tilburg University, LL.M Thesis

24  Gabrielle Kaufmann-Kohler, Schultz, Thomas, Online dispute resolution, op. cit,, p. 68. 

25 Article 28 of the Model Law.

WORKERS RIGHT WITH REGARDS TO WORKING TIME!!

You will agree with me that the working time an employee uses in his/her place of work per week/month must be reasonable in order to hasten efficiency and productivity.

It is disheartening to note that, most times few private establishments today, negate/violates the set law as to hours of work an employee is expected to work per day or in a week or per month as enshrined in our laws.

Thus, the need for you to be guided.

The International Labour Organisation has enacted some Labour Standards that serves as minimum standards to be adopted by member state and of which Nigeria is a member.  The Fourty-Hour week Convention, 1935 (No. 47) and Reduction of Hours of Work Recommendation, 1962(No.116) of International Labour Organization was able to set the standard of 40hours work a week. It is important to state Nigeria has ratified this convention. Simlarly, the Weekly-Rest (Industry) Convention, 1921(No.14) and Weekly Rest (Commerce and Offices) Convention, 1957(No. 106) of ILO set the general standard that workers shall enjoy a rest period of at least 24 consecutive hours every 7 days.

However, under the Nigeria legal system, there exist similar provisions with regards to working time of workers.

The Nigeria labour law provides that if a worker is at work for more than 6 hours a day, he/she must be given at least 1 hour of rest-interval on that day.
The Nigerian Labour Act also provides that in every period of 7 days, a worker is entitled to at least 1 day of rest and it further provides that it must not be less than 24 consecutive hours, which is similar to the ILO Convention on Weekly Rest.

The Nigeria Labour Act provides that it is only in extraordinary  circumstances that workers may perform work on weekly rest days and public holidays. It is important to state that under this circumstance, the said worker is entitled to a day off within fourteen days in lieu of work done or a monetary compensation according to overtime rates.

Thus, it is expected that the standard should be complied, as it is expected that this should be the minimum standard obtainable in every working environment. Hence, anything short of this, is a denial of workers right as to working time.

Thanks for your time! Do have a great week!

*Rufus* *Adeoluwa* *Olodude*, *Esq*.
PP Achieversworld & Partners
& Editor-in-Chief, Oga Lawyer Network

SOVEREIGNTY OF THE STATE OVER ITS AIRSPACE

1.0 INTRODUCTION
As defined by Civil Air Navigation Services Organization, sovereignty in terms of aviation has been associated with ownership of airspace. It was further viewed as the exclusive competence of a state to exercise its legislative, administrative and judicial powers within its airspace. In another perspective, the Chicago Convention 1944, went further to state the extent of sovereignty granted the state as regards the airspace when it states thus ‘Every State has complete and exclusive sovereignty over the airspace above its territory’.
From the foregoing, it can be inferred that the state sovereignty over it airspace is complete and unfettered. Upon this basic principle of sovereignty of airspace is founded virtually all about air law, as it is premised on the fact that any flight in international aviation requires the prior consent of the state overflown, which is generally granted by treaty.
It is important to note that irrespective of whether the airspace can be regarded as a part of a state’s territory, it is generally recognized that it is a sovereign right over the airspace above its land and territorial waters.
A State’s territorial airspace includes the area above its territorial waters. Thus, there exists no right of innocent passage and scheduled international air services are only allowed with special permission of the contracting States.
Accordingly, the international law rules protecting sovereignty of states apply to the airspace as they do to the land below. As the International Court noted in the Nicaragua case, ‘The principle of respect for territorial sovereignty is also directly infringed by the unauthorized overflight of a state’s territory by aircraft belonging to or under the control of the government of another state.’  The Court noted in the Benin/Niger case that ‘a boundary represents the line of separation between areas of state sovereignty, not only on the earth’s surface but also in the subsoil and in the superjacent column of air’.

2.0: Theories of Airspace Sovereignty
Efforts to ascertain the breadth of the layer of air comprised within the air territory so as to establish a consensus and acceptable principle of sovereignty over the air space had generated a lot of controversy amongst jurists. This controversy had given rise to theories propounded on a stage by stage basis which subsequently led to the birth of the principle of sovereignty over the air space. The theories of airspace sovereignty are as follows:
a) Theory of the Unlimited Freedom: this theory is supported by those who, having seen the advantages that the absolute freedom of the seas have brought to the International community, thought that the same criteria could be applied to the air navigation.
b) Theory of the Absolute Sovereignty: completely opposed to the previous one: it refused the principle of freedom and conversely claimed the State sovereignty over the atmosphere. It also inherited the idea that the Roman Law had applied to the land property in order to define its unconditional character and to reject any claim from the other States (the already mentioned principle dominus soli est dominus usque ad sidera et usque ad inferos).
c) Intermediate Theories: it tried to combine the States‟ claims with the creation of an efficient International air navigation system. One of the most famous theories was formulated in 1901 by the French jurist Paul Fauchille, who claimed that the air is free, and its freedom may only be limited by strictly defined rights belonging to the State underneath. According to this scholar the sovereignty of the land owner over the air space was limited to the maximum height of the buildings it could build; beyond this limit the atmosphere was free and freely exploitable.
d) Theory Of The Limited Sovereignty: it stemmed from the principle that the atmosphere is subject to the State power, but it introduced some limitations in favour of the air traffic of adequate means whose airworthiness could be proved by specific international certifications. This theory anticipated the following regime which was based upon a functional and not just spatial idea of the air navigation


3.0: Sovereignty in the Air and the provision of Air Navigation Services
Under Article 28 (a) of the Chicago Convention,
Each contracting State undertakes, so far as it may find practicable, to: provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention.
Under Article 28 of Chicago Convention, it was provided that Air Navigation Services is   a state responsibility emanating from the concept of sovereignty in the air. On this premise, it was further enunciated that the State can fulfil its obligation either directly or elects to delegate this task to a private body that may be established within its territory or in a neighboring state. The delegation of these services is allowed and even encouraged by ICAO because of international cooperation. Nevertheless, the government is statutorily certified to retain the supervisory authority with respect to Navigation Services. It is important to note that if for any reason the state should delegate her functions, it should be for technical and operational reasons.
4.0: The Nigeria Air Space Management Agency
In Nigeria in line with Article 28 of Chicago Convention, the Nigeria Airspace Management Agency is the air navigation service provider saddled with responsibilities of air traffic management services, provision of communication, navigation, and surveillance services, and in some cases, aeronautical meteorological services used by aircraft during flight.  The agency is established to ensure safe, efficient, expeditious and economic flight operations. In its bid to comply with this mandate, it has a vision on making Nigerian Airspace rank amongst the safest airspace in the Africa-Indian Ocean Region and indeed, the world over. The Nigerian Airspace Management Agency (NAMA) was established by the Act of Parliament No. 48 of 29th May 1999 but operationally commenced duties on January 2000.
NAMA provides services to airspace users such as providing Aeronautical information and communication services, Aeronautical maps and charts, terrain obstacle survey at airports, and aeronautical statistics database for aviation planners and researcher.
In Nigeria, any person who wants to fly in an aircraft into the Nigeria Airspace has to start by filing the application to the Nigerian Civil Aviation Authority which issues a checklist of safety and operational conditions to be met. When the safety and operational conditions are met, NAMA is contacted with evidence of the NCAA Authorization.
Thereafter, upon meeting some safety, operational and commercial terms, the applicant obtains a joint NAMA/NCAA clearance to enter, or overfly into the Nigerian Airspace.
5.0: Nigeria Civil Aviation Authority(NCAA)
For the purposes of this discourse, it is important to examine the powers of Nigeria Civil Aviation Authority. Nigerian Civil Aviation was established by decree 49 of 1999, with the statutory responsibilities of ensuring, regulating, monitoring and promotion of safety, security, economic and reliability of air navigation oversight in line with International Civil Aviation Organization (ICAO) Standard and Recommended Practices. It is pertinent to note that this agency being the apex aviation regulator has the responsibility of regulating the whole industry, including the airlines and the service providers such as the Nigerian Airspace Management Agency and Federal Airport Authority of Nigeria. It also regulates method of entry and conduct of air transport business and setting of aviation training standards and approval of training institutions in Nigeria.
6.0: Bilateral Air Service Agreements
Bilateral Air Service agreements (BASA) are treaties signed between countries to allow international commercial air transport services between territories. On the premise that a country has exclusive and complete sovereignty over its airspace as earlier established, hence, she has unfettered right to refuse or permit another country to fly on its airspace. Article 6 of the Chicago Convention is instructive and it provides that
no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or authorisation of that State, and in accordance with the terms of such permission or authorisation.
In other words, this provision means that the airspace of all contracting States is closed de jure, until States decide to open it de facto.
Thus, if a country is to be granted permission, a Bilateral Air Service Agreement is one of the fundamental conditions to be concluded to enable a contracting country have access to enter or overfly into another company’s airspace. It is pertinent to note that BASAs promote international air links between countries which support and enable movement of persons, cargo, trade and tourism. These agreements provide the framework under which identified airlines from the two countries fly into designated ports in each other’s country.  It usually covers issues regarding traffic rights, use of intermediate routes, types of aircraft, safety standards, competition policy on ownership, design and control of airlines, etc in order for both countries to benefit from the agreement, fares and tax issues.
It is must be noted that negotiations to enter into BASAs are usually spearheaded by the ministry of aviation after extensive consultation with Aviation regulatory authorities and concerned institutions, for example immigration authorities. At a press conference, the Director General of Civil Aviation Authority revealed that as at December 2016, Nigeria  had executed Bilateral Air Service Agreement with 90 countries but only thirty one of these executed agreement are active.
However, BASAs are negotiated based on the five freedoms prescribed under the International Air Transport Agreement (IATA) which states are follows:
The privilege to fly across a state’s territory without landing.
The privilege to land for non-traffic purposes, for example for refueling, repairs and maintenance.
The privilege of an airline from one country to carry traffic from its own country to another.
The privilege of an airline from one country to carry traffic from another country to its own country and
The privilege of an airline from one country to carry traffic between two other countries provided that the flight originates and terminates in its own country.
It has been noted that the first two freedoms are considered technical rights while the last three are considered economic and commercial traffic rights. In Nigeria, it has been noted that negotiations are conducted based on economic consideration and reciprocity under the last 3 freedoms mentioned above.
7.0: Outer Space
Nowadays technological advances enable aircrafts to fly higher and higher, the maximum limit of aerodynamic lift being constantly challenged. Article 28 of the Chicago Convention imposes obligation on states to provide air navigation services in the airspace above their territory as previously seen. However this obligation does not extend to the outer space. This question was neither dealt with by the Outer Space Treaty of 1967. Furthermore, it is still undefined where the airspace ends and where the outer space begins because the international legal community could not agree on a fixed boundary between these contiguous zones until now. States were only able to concur on the fact that the outer space is the common heritage of mankind and no sovereignty claims can be made in respect of it. Naveau states that the movements within the sovereign airspace above the territory of a State is largely controlled by satellites located in the outer space which is not subject to the sovereignty of any State. Furthermore, these modern equipments located in the outer space are able to photography infrastructures and buildings in any country without asking for the permission of the relevant State. Naveau opines that the flights operated by the hybrid category of spaceships also challenge the traditional concept of sovereignty in the air. According to him, the landing rights of such crafts remain subject to the provision of the Chicago Convention and international air law in general whereas overflight rights do not fall within the scope of such legal instruments (because the overflight takes place within the outer space). For him, it is urgent to redefine the concept of sovereignty in order to efficiently address the legal, economic and security issues deriving from such new activities.

8.0: Conclusion
The concept of state sovereignty is a fundamental concept that cannot be dispensed with in aviation law because it cut across all its aspects. On this note, it has been stated that a country has exclusive and complete sovereignty over its airspace and no other country has the unfettered discretion to fly over the airspace of another country without prior consent sought and obtained. Hence, it is important to state that there exists no right of innocent passage through the airspace of a state. Thus, Aircrafts are only permitted to pass through the airspace of states based on concrete agreement with those states, and where this is has not been obtained an illegal intrusion will be involved which will justify interception.
However, some states might suggest these treaties under examination especially the Chicago Convention are not binding on them, by virtue of not being party to it or domesticating same in their national laws. It is important to note that these rules also fall under the provisions of customary international law, and as such, are binding on all states, breach of which constitutes a breach of international law. Thus, it behooves on every state that own or run the services of airline to comply strictly with these rules in order not to face the consequences of its disobedience thereof.

Rufus AdeoluwaOlodude LP
08056446555

References

1. Tang Ut Fong, Air Law
2. Ezeanya Ann Ugonna and Eno-Obong Peter Augustine, Scope and Limit of the Air Space, University of Ibadan
3. E.V.D Steinen, National Interest and International Aviation(2006)
4. www.nama.gov.ng
5.http://ncaa.gov.ng
6. George Etomi & Partners, Review of the Bilateral Air Service Agreement within the Nigeria Civil Aviation
7. Naveau, Air and Space Law(2008)

TRADEMARK REGISTRATION IN NIGERIA

A trademark has been defined as a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
Once a trademark is registered, it gives legal right to the owner of such trademark to take some lawful steps in law against any person whatsoever who uses or cause to be used without his/her prior permission. Thus, it is important to state that a successful trademark allows the owner to legally use the trademark as brand that distinguishes it from other product or services.
In Nigeria, the Trade Mark Act governs all that concerns trademark issues in Nigeria and the government agency in charge of trademark registration is the Trademarks, Patents And Designs Registry, Commercial Law Department, Federal Ministry Of Industry, Trade And Investment. Thus, applications in this regard are made to the Registrar of Trade Marks.

What and what can be registered?
For a trademark to be registered it must fall within registrable elements by containing distinctive elements. An element will be held to be distinctive if it will distinguish a product or services from others in a particular class. It must contain any of the following which must be distinctive.

The name of a company, individual, or firm, represented in a special or particular manner;
The signature of the applicant for registration or some predecessor in his business;
An invented word or invented words;
A word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification a geographical name or a surname;
Any other distinctive mark

Requirements for Trademark registration in Nigeria

Applicants details
Trademark Information which includes the name and logo to be registered
The full range of goods covered or proposed to be covered by the trademark.
Power of Attorney/Authorization of Agent

Process for Trademark Registration in Nigeria

The Trademark registration process can be categorized into 3 basic general stages:

Availability Search  At this stage a search is conducted to determine whether there exist registered marks that are similar to the proposed mark. Thus the outcome of the search will determine whether the name will be registered or not.
Trademark Application  If there is no similar mark of such in that desired category, the applicant may go ahead to apply for registration. Thus, upon application for registration, the registry will issue an acknowledgment notification letter that the application has been received.  After , If the application is deemed registrable, the registry issues a Letter of Acceptance that serves as an approval in principle. After the acceptance has been issued, the mark is advertised in the Trademarks journal published by the Trademarks Office.
Application for Certificate  Once the proposed mark has been advertised, an interested party may oppose the registration of the mark within 2 months of the advertised journal. If the mark is not opposed within 2 months, the applicant can proceed to apply to the Registrar for a Trademark Certificate.
Issuance of Certificate  If there are no objections received, the Registrar will issue the applicant with a certificate of registration.  When issued, the Registration Certificate will reflect the date of initial filing as date of registration.

A trademark is valid in Nigeria for an initial period of 7 years, and then for further renewable 14-year periods. An application for renewal should be made not less than three (3) months from the due date.
It is important to note that, a trademark in Nigeria may be registered either plainly (black and white) or in colour.  However, where a trademark is registered in colour, the protection afforded is limited to the colour(s) registered.  On the other hand, a plain (black and white) registration affords protection to all colours of presentation of the trademark.

 It is important to note that, no entity can claim the registration of a trademark where there is no certification; hence stopping at any of the preceding stage of certificate is not a proof of registration.

Nigeria Trademark Classification for Good and Services

Trademark can be registered under the following classifications in Nigeria.
Goods:

Class 1 Chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastics; manures; fire extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuffs; tanning substances; adhesives used in industry; unprocessed plastics in the form of liquids, chips or granules.

Class 2 Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colorants; mordants; raw natural resins; metals in foil and powder form for painters, decorators, printers and artists.

Class 3 Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices.

Class 4 Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels and illuminants; candles and wicks for lighting; combustible fuels, electricity and scented candles.

Class 5 Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides.

Class 6 Common metals and their alloys; metal building materials; transportable buildings of metal; materials of metal for railway tracks; non-electric cables and wires of common metal; ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores; unwrought and partly wrought common metals; metallic windows and doors; metallic framed conservatories.

Class 7 Machines and machine tools; motors and engines (except for land vehicles); machine coupling and transmission components (except for land vehicles); agricultural implements other than hand-operated; incubators for eggs; automatic vending machines.

Class 8 Hand tools and hand operated implements; cutlery; side arms; razors; electric razors and hair cutters.

Class 9 Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; compact discs, DVDs and other digital recording media; mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment, computers; computer software; fire-extinguishing apparatus.

Class 10 Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopaedic articles; suture materials; sex aids; massage apparatus; supportive bandages; furniture adapted for medical use.

Class 11 Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; air conditioning apparatus; electric kettles; gas and electric cookers; vehicle lights and vehicle air conditioning units.

Class 12 Vehicles; apparatus for locomotion by land, air or water; wheelchairs; motors and engines for land vehicles; vehicle body parts and transmissions.

Class 13 Firearms; ammunition and projectiles, explosives; fireworks.

Class 14 Precious metals and their alloys; jewellery, costume jewellery, precious stones; horological and chronometric instruments, clocks and watches.

Class 15 Musical instruments; stands and cases adapted for musical instruments.

Class 16 Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers' type; printing blocks.

Class 17 Rubber, gutta-percha, gum, asbestos, mica and goods made from these materials; plastics in extruded form for use in manufacture; semi-finished plastics materials for use in further manufacture; stopping and insulating materials; flexible non-metallic pipes.

Class 18 Leather and imitations of leather; animal skins, hides; trunks and travelling bags; handbags, rucksacks, purses; umbrellas, parasols and walking sticks; whips, harness and saddlery; clothing for animals.

Class 19 Non-metallic building materials; non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; non-metallic monuments; non-metallic framed conservatories, doors and windows.

Class 20 Furniture, mirrors, picture frames; articles made of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum or plastic which are not included in other classes; garden furniture; pillows and cushions.

Class 21 Household or kitchen utensils and containers; combs and sponges; brushes; brush-making materials; articles for cleaning purposes; steel wool; articles made of ceramics, glass, porcelain or earthenware which are not included in other classes; electric and non-electric toothbrushes.

Class 22 Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks for transporting bulk materials; padding and stuffing materials which are not made of rubber or plastics; raw fibrous textile materials.

Class 23 Yarns and threads, for textile use.

Class 24 Textiles and textile goods; bed and table covers; travellers' rugs, textiles for making articles of clothing; duvets; covers for pillows, cushions or duvets.

Class 25 Clothing, footwear, headgear.

Class 26 Lace and embroidery, ribbons and braid; buttons, hooks and eyes, pins and needles; artificial flowers.

Class 27 Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings (non-textile); wallpaper.

Class 28 Games and playthings; playing cards; gymnastic and sporting articles; decorations for Christmas trees; childrens' toy bicycles.

Class 29 Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats; prepared meals; soups and potato crisps.

Class 30 Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice; sandwiches; prepared meals; pizzas, pies and pasta dishes.

Class 31 Agricultural, horticultural and forestry products; live animals; fresh fruits and vegetables, seeds, natural plants and flowers; foodstuffs for animals; malt; food and beverages for animals.

Class 32 Beers; mineral and aerated waters; non-alcoholic drinks; fruit drinks and fruit juices; syrups for making beverages; shandy, de-alcoholised drinks, non-alcoholic beers and wines.

Class 33 Alcoholic wines; spirits and liqueurs; alcopops; alcoholic cocktails.

Class 34 Tobacco; smokers' articles; matches; lighters for smokers.

Services:

Class 35 Advertising; business management; business administration; office functions; electronic data storage; organisation, operation and supervision of loyalty and incentive schemes; advertising services provided via the Internet; production of television and radio advertisements; accountancy; auctioneering; trade fairs; opinion polling; data processing; provision of business information; retail services connected with the sale of [list specific goods].

Class 36 Insurance; financial services; real estate agency services; building society services; banking; stockbroking; financial services provided via the Internet; issuing of tokens of value in relation to bonus and loyalty schemes; provision of financial information.

Class 37 Building construction; repair; installation services; installation, maintenance and repair of computer hardware; painting and decorating; cleaning services.

Class 38 Telecommunications services; chat room services; portal services; e-mail services; providing user access to the Internet; radio and television broadcasting.

Class 39 Transport; packaging and storage of goods; travel arrangement; distribution of electricity; travel information; provision of car parking facilities.

Class 40 Treatment of materials; development, duplicating and printing of photographs; generation of electricity.

Class 41 Education; providing of training; entertainment; sporting and cultural activities.

Class 42 Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software; computer programming; installation, maintenance and repair of computer software; computer consultancy services; design, drawing and commissioned writing for the compilation of web sites; creating, maintaining and hosting the web sites of others; design services.

Class 43 Services for providing food and drink; temporary accommodation; restaurant, bar and catering services; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; retirement home services; creche services.

Class 44 Medical services; veterinary services; hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services; dentistry services; medical analysis for the diagnosis and treatment of persons; pharmacy advice; garden design services.

Class 45 Legal services; conveyancing services; security services for the protection of property and individuals; social work services; consultancy services relating to health and safety; consultancy services relating to personal appearance; provision of personal tarot readings; dating services; funeral services and undertaking services; fire-fighting services; detective agency services.

In conclusion, trademark gives the owner of the trademark the mark of authencity, ownership and security in business. A good trademark is an important aspect when it comes to business goodwill which attract customers to the goods and services offered by an entity. Hence, good branding is the life of any thriving business in the world today.

OLODUDE, RUFUS ADEOLUWA
Achieversworld & Partners
Barristers & Solicitors
For enquiries contact:
Email: achieversworldandpartners@gmail.com
whatsapp message only: 07039297390

PASSENGER'S RIGHTS UNDER THE AVIATION LAW

Often times, Air passengers are not abreast of their rights as it relates to inefficient and ineffective service delivery usually offered by the airline carriers, such as denied boarding or delay, loss of goods/baggage, injury sustained while on board and quite a number of related cases that time may not permit us to mention, which usually come in to play between the period of booking, through the time of boarding the aircraft to the period of landing of the Aircraft.

It is the respectful view of the writer that air-passengers often waive or sleep on these rights and privileges which might have earned them a fortune due to little or non-sensitization of their rights and what should ordinarily be obtainable between them and their respective airline operator.  This piece seeks to enlighten the public as to when these rights and privileges under the aviation is said to arise. It is pertinent to note that based on international best practices, it is important that everybody should be served right for the services he/she subscribes to at any point in time.         .

For the purpose of this discourse, it is important to state the following laws that regulate the liability of carrier to its passengers under the Aviation Law as domesticated under the Nigeria Laws as enunciated  in the case of Harka Air Services (Nig.) Ltd v. Keazor (2011) NWLR (Part 1264) p. 343 F-G

    1. Civil Aviation Act 2006

    2. Warsaw Convention 1929

    3.  Montreal Convention 1999.

In the case of Harka Air Services (Nig) Ltd v. Keazor (Supra), the Court held that the carriers’ liability(rights to indemnify) to its passengers is said to arise under the following circumstances, which are when there is:

1. Injury Sustained on board on Aircraft or

     2.  Death arising from the course of a journey or   

     3. Damage or loss of goods

     4. Delayed or denied boarding or

   5. Interactions in the course of preparing for the actual conduct of flight operations

Under the Civil Aviation Act 2006, the law also set limit to carrier’s liability as follows which can be waived in exceptional cases of willful misconduct on the part of the carrier. The limit set under Article 22 as provided under the Civil Aviation Act 2006 are as follows:

In cases of death – liability is limted to 100,000.00 USD

In cases of damage caused by delay- liability is limited to 4150 USD

In cases of damage caused by loss of baggage, destruction- liability is limited to 1000 USD.

It is important to state that if the damage is caused by any of the agent of the carrier acting within the scope of his employment where there is default of such magnitude that amount to a willful misconduct, the liability of the airline on compensation will not be limited to the above three (3) circumstances, as it might exceed any of the above cases.

In conclusion, it is important to state that from the above the passengers has a right to claim for damages in cases where injury was sustained on board, damage or loss goods, in cases of delayed or denied boarding, in cases of death and in cases of interactions in course of preparing for the actual conduct of flight operations.

At this juncture, it is important to stress that the law seeks to provide enforceable rights such as this is to be enjoyed by its subject.

Therefore, it is pertinent to state that anytime your rights are breached by any Airline Carrier, do your best to ventilate your grievances through the established legal means as provided under the law. Also, note that claims under this heading must be instituted within 6 months of the breach. Do not be complacent; do well to fight for your rights.

Rufus Adeoluwa Olodude, Esq.

+2348056446555