Emejulu & Emejulu Law Firm

24/10/2022

Who owns the copyright in a photograph?

The general rule, under Nigerian law, is that copyright in photographs is the property of the person who takes the photograph (the photographer) — not the person who owns the camera, and not even the person in the photo.

Exceptions to this general rule may arise where the photographer is an employee of the person who commissioned the project or an employee whose normal course of duties require photography. In such cases, the copyright belongs to his employers.

Another exception may arise in instances where the photographer signs a written agreement assigning the copyright to someone else.

So, for instance, an aspiring model voluntarily approaches a photo studio and pays the photographer who proceeds to snap a few n**e pictures of the model.

In the absence of a written agreement signed by the photographer, the photographer reserves the right to make money and enhance his career through the sale of such pictures and through the exhibition of same in exotic galleries without necessarily seeking the consent of his subject; the n**e model.

24/10/2022

NNAMDI KANU'S VICTORY AT THE CA:
Has the law as we know it changed?

The Abuja Division of the Court of Appeal, recently discharged the leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, of the 15-count terrorism charges brought against him by the federal government.

In a unanimous decision, the Court held that the arrest, abduction and subsequent arraignment of Kanu before a Federal High Court violated international convention on terrorism and, thus, robbed any court of law in Nigeria necessary jurisdiction to entertain the suit.

Now, prior to this ruling, the law as we knew it was that an irregularity in the arrest of an accused person is not relevant in determining whether or not the trial court has the power to try the accused person for the offence. The only remedy open to the accused person was to file a seperate civil suit against the arresting authority claiming damages therein.

This position of the law was clearly restated by the Court of Appeal as far back as 1991 in the case of The State v. Letitia Osler [1991] 6 NWLR (Part 199) P 588 C-E where the court held that an irregularity in the manner of arrest of an accused does not affect the jurisdiction of competent court to try the accused for the offence charged.

It is a well known fact that the Nigeria Police Force, in the exercise of their statutory powers of arrest, has the notorious habit of violating a plethora of international and regional human rights conventions to which Nigeria is a signatory, some of which Nigeria has also domesticated into law. Assuming the ratio in Kanu's case has become the law, what this means then is that I could successfully raise an objection to the jurisdiction of a court of law to try my client/an accused person in any trial court, relying on Kanu's case. Once I can prove to the court that the arrest of the accused person was done in violation of the laid down provisions of international conventions, the Court will be left with no option than to discharge the accused person.

As it stands now, there are two conflicting authorities on this point.

Happily, the Attorney General has filed an appeal at the Supreme Court challenging that ruling. Hopefully, the ruling from that appeal will clear the confusion arising from the lower court's ruling.

I await the ruling of the apex court on that point of law with apprehension and enthusiasm.

Fingers crossed 🤞🏾NNAMDI KANU'S VICTORY AT THE CA:
Has the law as we know it changed?

The Abuja Division of the Court of Appeal, recently discharged the leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, of the 15-count terrorism charges brought against him by the federal government.

In a unanimous decision, the Court held that the arrest, abduction and subsequent arraignment of Kanu before a Federal High Court violated international convention on terrorism and, thus, robbed any court of law in Nigeria necessary jurisdiction to entertain the suit.

Now, prior to this ruling, the law as we knew it was that an irregularity in the arrest of an accused person is not relevant in determining whether or not the trial court has the power to try the accused person for the offence. The only remedy open to the accused person was to file a seperate civil suit against the arresting authority claiming damages therein.

This position of the law was clearly restated by the Court of Appeal as far back as 1991 in the case of The State v. Letitia Osler [1991] 6 NWLR (Part 199) P 588 C-E where the court held that an irregularity in the manner of arrest of an accused does not affect the jurisdiction of competent court to try the accused for the offence charged.

It is a well known fact that the Nigeria Police Force, in the exercise of their statutory powers of arrest, has the notorious habit of violating a plethora of international and regional human rights conventions to which Nigeria is a signatory, some of which Nigeria has also domesticated into law. Assuming the ratio in Kanu's case has become the law, what this means then is that I could successfully raise an objection to the jurisdiction of a court of law to try my client/an accused person in any trial court, relying on Kanu's case. Once I can prove to the court that the arrest of the accused person was done in violation of the laid down provisions of international conventions, the Court will be left with no option than to discharge the accused person.

As it stands now, there are two conflicting authorities on this point.

Happily, the Attorney General has filed an appeal at the Supreme Court challenging that ruling. Hopefully, the ruling from that appeal will clear the confusion arising from the lower court's ruling.

I await the ruling of the apex court on that point of law with apprehension and enthusiasm.

Fingers crossed 🤞🏾

~ Chizelu Emejulu, Esq

08/08/2022

Can a person be found guilty of murder even where the dead body cannot be found?

'The law as regards the absence of a corpus delicti is that a court may still convict an accused person of murder even though the dead body cannot be found; provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed'.

~ Per Coker JSC, in the case of Ayinde v. State (1972) 3 S.C. 153 at 158-159.

05/08/2022

"Appellant in his argument tends to justify the arrest and detention of the 1st Respondent on the allegation that he committed an offence.

In any case, the Appellant did not appeal to the court of Appeal the decision of the trial court that:
'in any case, the transaction that gave rise to the petition upon which the applicant was arrested and detained was a purely civil transaction without criminal content or undertone whatsoever". By not appealing the finding, the Appellant is deemed to have agreed with the said decision.
Consequently, the arresting authority failed to discharge the burden cast on it proving the legality or constitutionality of the arrest/or dettention of the 1st Respondent. See COP. Ondo State v. Tohanne Hotegua & Anor. 14 WACA 18.

In Singh v. Delhi, 16 Supreme Court Tourinai, the Supreme Court of India warned:
'This court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they consider to be their duty must strictly observe the norms and rules of the law'.

The fact that a person has been accused of a crime, however serious, will not deny that person access to the court to enforce his fundamental rights if these rights have been violated.
After all, he is presumed innocent unless proven guilty".

~ per Ngwuta, JSC in Ihim v. Maduagwu & Anor (2021) LPELR- 53906 (SC).

03/04/2021

After an intensive and successful training, we are pleased to announce that our Managing Partner was on the 31st day of March, 2021 inducted as a Fellow of the Bisi Alimi Foundation (BAF) Media Justice Fellowship 2021.

The Fellowship provides training, mentorship and support to journalists and lawyers in Nigeria to strengthen their knowledge on LGBT subjects and issues in relation to media storytelling, legal representation and support. It is designed to challenge and change how narratives about LGBT people are being reported in the media and legal settings in Nigeria.

As a law firm that is very much interested in Strategic Public Interest Litigation, we find the Fellowship particularly empowering due to its emphasis on the synergy between litigation lawyers and journalists. The lawyer kicks the ball rolling in court, but it is the responsibility of the journalist to help score the goal by provoking public debates over the issues raised in court.

Many thanks to Bisi Alimi and the rest of the BAF team for putting this thought provoking training together, and to the other Media Justice Fellows for their support.

05/03/2021

A Governor's directive is NOT law.

It is not legal until the State House of Assembly passes a law to that effect.

See the case of Okafor v. Governor of Lagos State.

OKAFOR v. LAGOS STATE GOVT & ANOR (2016) LPELR-41066(CA), Per OGAKWU, J.C.A. at Pp. 18-20, Paras. F-G:

"I find worrisome the contention of the Respondents that the directive of the Governor can be equated to a Law for which criminal sanctions will lie, and a person tried and convicted for the offence of violating the directives of the Governor. The Respondents submitted as follows in Paragraph 4. 1. 20 of the Respondents' Brief:

'4. 1. 20 My lords, it is humbly submitted that this particular provision of the law settles all the displeasures that may have erupted in the appellant with regards to her arrest and trial before the Special Court. It also explains how even though the law that all residents of Lagos State must remain in their houses to observe the monthly sanitation may not be resident in any written law, same still remains valid, having been directed by the Governor. It is worthy of note that the appellant at no point contested the existence of a directive restricting the movement of persons and vehicles on every last Saturday of the month within the State, save for the fact that is not contained in any law.'

I shudder at this submission which in its elastic ramification takes us back to the dark ages of the Hobbesian state of nature. Section 36 (12) of the 1999 Constitution provides that a person shall not be convicted for a criminal offence unless that offence is defined and the penalty therefore prescribed in a written law. The Respondents while conceding that there is no written law restricting movement of persons on environmental sanitation days and making it an offence argue that the restriction still remains valid having been directed by the Governor. I find it shocking that the disobedience of the directive of the Governor in this regard has been elevated to a crime for which criminal sanctions attach, as in the conviction of the Appellant and the fine imposed on her."

03/02/2021

The Coronavirus disease (Covid-19) Health Protection Regulations 2021 was signed into law by President Muhammadu Buhari on January 26, 2021.

The law makes it illegal not to wear nose masks in public. This law, as good as it looks on paper, is already being rubbished by selective enforcement by the police.

The selective enforcement of laws is the consequence of the powers conferred by law on the police and on other law enforcement agents to choose and decide whether to arrest and prosecute any person for violating an existing law.

The problem with selective enforcement of the law is that it actively encourages police officers to rely heavily on their individual biases in the exercise of their enforcement discretion.

As is often the case here in Nigeria, such enforcement discretions are motivated by corruption which is clearly a legal abuse and a threat to the rule of law.

An FRSC officer stops a driver and asks for his papers. The driver either has no papers, or his papers are expired. The officer exercises his discretion not to impound the vehicle because the driver has offered a bribe.

Similarly, the police ignore several road users who drive through police check points without their nose masks, but randomly stop and arrest those none nose mask wearers whom they think can afford to pay a bribe to avoid prosecution.

If the Coronavirus Regulation on the wearing of nose masks continues to be selectively enforced like this, it will send a clear message to the general public that nose masks are an additional burden invented by the government , and not necessarily a means to control the spread of the virus.

02/12/2020

While you are getting ready for Christmas, we are already very ready for 2021.
We feel the energy!

01/12/2020

Muhammad Musa versus Attorney General of the Federation & 5 Others. (Suit No. FHC/L/1286/2020..................................................................
UPDATE :

When this case came up on the 27th of October, 2020, the matter could not proceed to hearing because the Police, who are the 3rd to 5th Respondents in the case, have not yet been served.

The matter came up again today, 1st December, 2020. Counsel to the Applicant, Mr. Chizelu Emejulu, filed an application; a motion ex parte, where he deposed to the fact that the 3rd to 5th Respondents are evading service of the Originating processes. He praying the court for an order for substituted service on them by pasting same within the Federal High Court premises, Lagos.

The court however hinted that due to the peculiar circumstances of this case, he would be minded to make an order directing the legal departments of the 3rd to 5th Respondents to accept service of the Originating processes in this case.

Consequently, counsel to the Applicant asked for a short date in order to file a second application praying the court for such an order.

The case was adjourned to 14th December, 2020 for further proceedings.

20/10/2020

Written by Eleazar Ugo. Esq

"JUST SO YOU KNOW

Generally, the responsibility to impose a curfew can only arise after a state of emergency has been declared.
Where a person is found violating a curfew, the procedure is as follows:

1. That person is arrested;

2. Within 24 to 4 hours such person must be brought before a court of competent jurisdiction;

3. Where a person is found guilty punishment may be imposed ONLY by the competent court;

4. Such punishments usually range from 2,500 Naira to 3,000 Naira with or without community service.
This is generally also the usual process in all democracies. The idea of shooting live ammunition sporadically or deploying armed thugs or police or army personnel to clear the streets is not only illegal, it is reminiscent of communist dictatorships".

19/10/2020

Muhammad Musa versus Attorney General of the Federation & 5 Others. (Suit No. FHC/L/1286/2020).

We represent the Applicant, Mr. Muhammad Musa, who has been behind bars till date for 10 years without trial. He has filed this suit seeking the enforcement of his fundamental rights.

The Applicant has commenced this action at the Federal High Court of Nigeria, sitting at Ikoyi Lagos, against 5 Respondents, namely;
1. Attorney General of the Federation,
2. Attorney General of Lagos State,
3. Inspector General of Police,
4. Commissioner of Police, and
5. Nigeria Correctional Service (formerly known as the Nigeria Prison Service).

In his Originating Motion filed on the 16th day of September, 2020, the Applicant is asking the court to declare that his incarceration by the 1st to 5th Respondents in the facility of the 6th Respondent from the 18th day of May, 2010 till date (10 years) is a gross violation of his guaranteed rights to the dignity of the human person and personal liberty under Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as well as Articles 5 and 6 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

The Applicant also prays the court for an order of mandatory injunction directing the Respondents to release him forthwith from detention.

He prays the court for an award of ₦100,000,000.00 (One Hundred Million Naira) as general damages against the 1st – 5th Respondents for grossly violating his fundamental rights by incarcerating him in the 6th Respondent’s facility for 10 years without trial.

As deposed to in the affidavit in support of his Originating Summons by his brother, the Applicant has suffered, and is still suffering a number of serious physical distress and psychological trauma for 10 years while in detention awaiting his trial.

He therefore prays the court for an award of ₦400,000,000.00 (Four Hundred Million Naira) as general damages against the 1st –5th Respondents for grossly violating his fundamental rights by causing him physical distress and psychological trauma which he suffers while in detention in the 6th Respondent’s facility and has been suffering for 10 years without trial. Additionally, he prays for an award of ₦200,000,000.00 (Two Hundred Million Naira) as exemplary damages against the 1st – 5th Respondents for the gross violation of his fundamental rights.

On the issue of exemplary damages, we cited in the Applicant’s written address the case of G.K.F Investment Ltd v. NITEL Plc [2009] 15 NWLR (Pt.1164) 344 S.C, where it was held per Ogbuagu J.S.C that exemplary, punitive, vindictive or aggravated damages where claimed, are usually awarded, whenever the defendant or defendant’s conduct, is sufficiently outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence, or fragrant disregard of the law and the like

The suit has been assigned to Honourable Justice Obiozor, and is adjourned to 27th October, 2020 for hearing.

15/10/2020