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The Gravitas Review of Business & Property Law

By EDITOR- Professor Joseph Abugu REVIEWER- Tony Odiadi, LLM BL MCIArb (UK)
16 June 2015   |   1:50 am
This is a review of a law review journal. Let it be stated from onset that as a vehicle for academic and legal scholarship, the law review journals have long been known to be critical and central to the development of law in most jurisdictions.

Untitled-1This is a review of a law review journal. Let it be stated from onset that as a vehicle for academic and legal scholarship, the law review journals have long been known to be critical and central to the development of law in most jurisdictions.

The purpose of law review publications is the detailed and comprehensive treatment of various topical issues in law, ranging from the interrogation of a legal principle, a statutory provision, some judicial decision, a proposed or a piece of legislation, to book reviews.

The categories of subject matter open for review are not closed, except, of course, where the journal specifies by itself the ambit of its thematic focus. The Gravitas Review of Business and Property Law, simply known as the Gravitas Review is a journal that has just returned to hold its place in the corpus of Nigerian legal publications.

A return because according to the Managing Editor ‘The Gravitas Review was an influential law journal in the late 1980s and early 1990s. It unfortunately ceased publication in the mix of socio-political crisis of 1993’.

A law journal is made by the quality and content of its text and volumes. The Gravitas Review has aimed to be at the very top with an editorial team and board of advisers made up of some of the finest legal minds within Nigeria and elsewhere in the globe.

The journal seeks ‘to be that quality business law journal from Nigeria publishing well researched articles on energy law, corporate law, international commercial transactions, economic crimes and sanctions, capital market and securities, maritime, taxation, tourism, project finance, land transactions and intellectual property among others’.

Doubtless, this commitment to top quality has been demonstrated with the inaugural edition, the March 2015 Volume 6 No. 1 which dealt with various topical issues in business and property law.

Under Intellectual Property, is the piece on page 1 titled ‘Role of the Court in the Interpretation and Development of Intellectual Property Law: The Nigerian experience’ by Professor Adebambo Adewopo.

According to the writer ‘The role of the court in the interpretation and development of intellectual property (IP) law is undoubtedly pertinent and significant in the current dynamics of IP law and practice in the country’. In the piece we find an examination of the classical role of courts regardless of the jurisprudential schools of thought, be they natural, normative or of the positive schools.

That is to say, in the exercise of the judicial powers of the court, three things are obvious- courts are responsible for adjudication, courts decisions creates precedents and rule order particularly in the Common law and even the Continental civil law system, finally as we find from the writer, courts are more able ‘to discover and give effect to the underlying policy and legislative intendment of the overall purpose of law.’

Despite having the first IP legislation received in 1900 known as the Trade Mark Proclamation of 1900, how has the courts fared with several other regulations and laws on IP having regards to legal issues in Patents, Copyrights, Trademark protection and enforcement? The writer posits that there is not much to cheer yet. In a country experiencing an upsurge of talent and creativity among the youths and other segment of the population, in the arts, music and sciences, the need to protect intellectual property of individual and groups cannot be overstated.

A number of cases were examined such as Microsoft Corp. v Frankie (2005), Omnia v Dykrade (2003), Ferodo v Ibeto (2007) whose positions were not so helpful, but the writer is of the view that MCSN v Adeokin (2007) and Compact Disc Technologies Ltd v MCSN (2008) clearly defines the role of courts as well as provide the authority ‘for the legal status of collecting societies as owner, assignee and exclusive licencee of copyright under the Copyright Act.

In the case of Company Law and Practice Enwanta Ehigiato in page 19 offered an equally engaging piece ‘Mandatory Incorporation of Foreign Companies in Nigeria: Some Legal Considerations’.

In looking at the regulatory regime of companies law and practice under the CAMA, the writer sought to put in context and interpret the expression ‘carrying on business’ as it applies to local and foreign companies.

This is analysed within the specifics of the provisions of section 54 of the CAMA which makes it mandatory for any foreign company wishing to, or doing business already at the time of enactment of the legislation to be registered. Nonetheless, by virtue of section 60(b) of CAMA as noted by the writer, the foreign company can sue and be sued.

This provision is important for international commerce and trade in a globalized economy, a point well captured by the cited case per Pats-Acholonu JCA in Watanmal (Singapore) Ltd v Liz Olofin & Co Ltd (1981). There are also exemptions to the mandatory incorporation rule in section 54 to be found in section 56(1).

In the comparative examination of the laws and practices in the United Kingdom and Australia, the judicial positions suggest that the meaning attached to ‘carrying on business’ will depend on regular and repetitive business or having a place of business.

Same position with Nigeria, except that a nation eager to be open and attractive for foreign investment must prove less stringent in the regulatory regime for foreign positive business interests.

The third article on Labour Law by Professor Joseph Abugu title ‘Nearly Always, A Strike or Lock Out is Unlawful in Nigeria’. The writer set the tone of the piece clearly thus ‘The right to strike is a keystone of modern democratic society.

No society, which lacks that right, can be democratic. Any society which seeks to become democratic must secure that right.’ Following this point, the writer further states that the right of employees to strike hinges on the power of each individual to terminate his or her employment by giving notice.

If there is a right to strike and many grand judicial and scholarly expositions hold that view, how does the exercise of that right become unlawful in Nigeria? This point is at the very heart of the writer’s focus since the 1999 Constitution recognizes the freedom of movement and association.

In Statutory Constraints, he enumerates and restates the scheme of rigid regulations through several decrees or laws, majorly under the military regime requiring the consent of the Inspector General of the Police, of the Chief of Staff Supreme Headquarters or the Military Command. Laws such as Trade Union Act, Trade Disputes Act, Trade Dispute Essential Services Act, Trade Disputes Emergency Provision, Decree 21, etc capture aspects of the statutory constraints.

There are also categories of employees totally prohibited from strike, as those in the Armed Forces and Police, Customs, Prisons, CBN, Etc called essential services. If downing tools by way of strike is deemed unlawful what is the consideration for employers Lockout of employees? The writer is of the view, and rightly so, that it is unlawful.

There are immunities for the protection of union leaders and their members as provided in sections 24 and 44 Trade Union Act 1973.

The Nigerian experience as stated by the writer finally is that though unlawful, strike as a weapon in the hands of workers continued to be utilized for bargaining and negotiating. In page 44, the title under Arbitration section is the piece is ‘The Lagos State Arbitration Law and The Doctrine of Covering The Field: A Review’ by Abdulrazaq Adelodun Daibu.

The writer makes the point about the critical importance of Arbitration as well as other Alternative Dispute Resolution (ADR) mechanisms to serve the interest of persons in the industrial, trading and commercial hub of Nigeria which is Lagos as a city and state.

Covering the field refers to the situation in which a piece of legislation has dealt with the entire content and jurisdictional ambit of its subject matter typically in a federation and a conflict arises when a state within the federation enacts a similar law.

Most Constitutions recognize the superiority of the laws of the central authority over those of the states in a federation and where the two conflicts, the central law prevails or even invalidates the other.

This is more so where the matter is either in the exclusive list to the central government or the shared concurrent list. This is the point in the case cited by the writer per Fatai-Williams CJN in AG Ogun State v AG Federation (1982).

What then is to be made of the Lagos State Arbitration Law, that is to say, can it be deemed invalid in the light of the dictum of the former CJN about invalidating a similar law at the time by Ogun State to an existing Federal Law? The writer boldly concludes that Lagos State Arbitration Law must be amended to survive the doctrine of covering the field. The fifth article is titled ‘A Critical Analysis of the Excess Dividend Rule in Nigeria: Oando Plc v FIRS (Oando IV) Revisited’.

This piece is on page 55 under the Taxation section and it reviews the Excess Dividends Tax (EDT) contained in section 19 of the Nigerian Companies Income Tax Act (CITA) 2004.

This legislation seeks to control tax avoidance by corporate entities by taxing excess dividends. Excess dividends simply refers to that which is retained by companies for its own expansion or operational purposes.

How appropriate is this scheme of taxation? The writer sought to engage with three models which are, the American model, the Taiwo Oyedele’s model and the Canadian model. The key point against the EDT is that it amounts to double taxation.

If the promptings for taxing Excess Dividend in Nigeria is because it is an obvious or disguised attempt to shortchange the state through tax evasion, this point had long been settled as a legal principle in the opinion quoted in the piece of Justice Learned Hand ‘Anyone may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the treasury; there’s not even a patriotic duty to increase one’s taxes.’

This may be the point, yet there is the need to proscribe tax avoidance and tax evasion as the writer put it with laws referred to as General Anti-Avoidance Rule (GAAR). The core issue is that the Oando IV case continues to reinforce a cycle of double taxation and such a rule of tax practice may not be the best for tax administration.

We find finally that the American model does not impose EDT but will tax all distributions; Oyedele’s model shields all previously taxed incomes and gains from further taxation, finally the Canadian model under s 83(2) of the Income Tax Act recognizes the payment of tax free capital dividends to shareholders of Canadian private corporations.

On page 75 Prof. Nnabue USF and Onyema Otitodiri both lecturers at Imo State University Law Faculty had the article under International Investments titled ‘Enforcement of International Custom on Expropriation of Foreign Properties and the Plight of Developing Countries’. From the background of sources of international law enshrined in Article 38(1) Statute of International Court of Justice, the writers stated that the ‘rationale for expropriation is based on the doctrine of economic sovereignty which in turn is derivable from the principle of economic self-determination.

This is to say that states have the inalienable right to determine both their economic system and future without interference by or reference to another state or group of states’.

How can this postulation withstand the trend in a globalized world of mutuality and economic interdependency? The writers here seek to hold aloft the concept of sovereignty as an inviolable answer. The basis for lawful expropriations as the writers enumerated are clear- public purpose, non-discriminatory, based on due process and followed by compensation. There is a strong sense in this except that hegemons dictate the pace of things in international law.

Vested rights and Acquired rights become the predominant consideration at the expense of the rights of developing nations. Vagts D.F made this point early in 2001 “Hegemonic International Law (Am. J. Int. Law) contending that ‘In the scholarship of international relations, power has been the central object of study, that no law graces the hegemons universe’. This edition concludes with a Book Review section on page 83. A review by Dr Wale Olawoyin, SAN of PRINCIPLES OF CORPORATE LAW IN NIGERIA a book by Professor Joseph Abugu.

The reviewer informs on the essential aspects of this 18 chapter, 821 pages book that looked into the evolution and structure of the corporation, protection of stakeholders against corporate maladministration, corporate governance issues and corporate insolvency.

In all, the Gravitas Review offers a rich package and anyone interested in legal scholarship and enquiry will hold this copy and others to follow as a major resource material for practice and academic purposes.

Legal practitioners, Lecturers, students and top state officials will immediately find the journal a veritable guide in law and policy evaluation.