AN EXAMINATION OF CONTEMPORARY ISSUES RELATING TO MEDICAL LIABILITY

Elizabeth Smaranda Olarinde* and Clement Chigbo**

ABSTRACT

A member of any profession, it is supposed, possesses the skills, which her/his training asserts. As such, the person is liable for the exercise of duty within their trained capacity and culpable for negligence in its practice. In Nigeria, cases of negligence are under-reported; consequently marginal compensations are made out. If the standard of measure suitable to the Court is that the professional should act within the generally accepted practice, what becomes of the practitioner who is aware of better measures that the exercise of due care would demand? To what extent is the patient’s consent informed, valid and real? What of specific cases where a patient is not in the position to grant consent? Using the Bolam criteria, this paper argues that standard of care is relative. Arguably, a professional having specialised skill should exercise discernment concomitant with their speciality and better judgement than the general skill level. Furthermore, a doctor has the obligation to inform the patient of the risks, however small, otherwise (s) he dispossesses the patient of an informed choice and that such explanation must be within the limits of the practice among colleagues. Such cases may transcend from the domain of contract into torts. For example the promise of an operation different from the promise of success, lies within the field of tort. In specific cases where it is impossible for the patient to give consent, the doctor retains the duty to do what is in the best interest of the patient. The Bolam test is a valid threshold in determining whether the doctor has acted within prescribed and expected standards to avoid negligence and whether such doctor is liable or not for damages.

Keywords: Medical, liability, negligence, Bolam, standard of care

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* E. Smaranda OLARINDE, Associate Professor and Provost College of Law, Afe Babalola University Ado-Ekiti, Solicitor and Advocate of Supreme Court of Nigeria, E: esolarinde@ abuad.edu.ng/ smarandao@yahoo.com.

** Clement CHIGBO, Solicitor of England and Wales, Senior Lecturer, Department of Private and Business Law, College of Law, Afe Babalola University Ado-Ekiti, Ekiti, Nigeria.

NESREA AND NCC REGULATIONS ON TELECOMMUNICATION MASTS: IMPLEMENTING THE PRECAUTIONARY PRINCIPLE

Tolulope Ogboru*

ABSTRACT

There have been conflicting findings in studies conducted to determine whether or not electromagnetic radiations (EMR) emitted by telecommunication masts are injurious to human health and the environment. The recent imbroglio between the National Environmental Standards and Regulations Enforcement Agency (NESREA) and the Nigerian Communications Commission (NCC) brought this matter to the fore in Nigeria. The conflict relates to the set back distance telecommunication operators are required to adopt as they site their masts near buildings. While NESREA’s Regulation provides for a farther distance because of its belief that electromagnetic radiations do have adverse impact on human health; NCC on the other hand insists that EMR does not pose any danger to human health. Having examined literature, report of studies and various opinions, it is evident that the scientific community is yet to agree on the effects of EMR on human health and the environment. This paper argues that this lack of scientific certainty should not be a reason to delay legislative action that will safeguard people’s health and their environment. The paper evokes the importance of the precautionary principle of international law to the effect that lack of full scientific evidence should not be used as a reason for postponing measures to prevent irreversible illnesses and environmental degradation that may result from EMR emitted by telecommunication masts. This paper discusses the need for regulatory agencies and the legislature to adopt the precautionary principle as they review and harmonise the two overlapping Regulations.

Keywords: Telecommunication Towers, NESREA, NCC, RF, EMR, Precautionary principle

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* LL.B, BL, LL.M, Ph.D, Senior Lecturer, Faculty of Law, University of Jos, Nigeria. Correspondence e-mail: ogboruit@yahoo.com; Tel: 08035024290.

IMPROVING SUBSTANTIVE AND PROCEDURAL PROTECTIONS FOR INDIGENOUS RIGHTS IN REDD+ PROJECTS: POSSIBLE LESSONS FROM BRAZIL

Kristen Taylor*

ABSTRACT

Nations around the world are beginning to acknowledge that climate change is an imminent threat to our planet and are responding with mitigation efforts. REDD+ (reducing emissions from deforestation and degradation plus) may be a way to minimize the deforestation that has lead to the increased greenhouse gas emissions causing a change in our global climate. Although REDD+ is one the leading proposals to address climate change, it lends itself to potentially harmful effects on indigenous people, if the regulating nation does not possess adequate policy for protections of their indigenous peoples. Indigenous peoples face the challenge of safeguarding access to their lands and the surrounding forests. In Brazil, there have been issues regarding who has property rights to the rainforest, and because of Brazil’s current legal framework, ambiguity regarding land tenure rights is the greatest obstacle to overcome when implementing successful REDD+ programs. As demonstrated in Colombia, the enumeration of specific environmental rights in their newest Constitution has effectively acknowledged indigenous rights and specific autonomy in land rights to their communities, thus requiring equal treatment and guaranteeing respect for indigenous cultures. Is constitutional recognition of indigenous peoples’ land tenure rights enough to ensure a successful implementation of REDD+ programs? If so, can Brazil effectively balance the need to implement climate change mitigation efforts while upholding indigenous people’s sacred ties to their lands? This paper examines how Brazil can prepare itself for an Indigenous REDD+ by modeling the implementation and enforcement of its current legal framework after that of Colombia.

Keywords: REDD+, indigenous rights, land grab, Brazilian Amazon, deforestation, Kayapó

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* JD (Florida A&M University College of Law); B.B.A (Georgia State University). Special thanks to Randall S. Abate, Professor of Law and Director of the Center for International Law and Justice at Florida A&M University College of Law, for his treasured advice and support in the preparation of this article.

INCREASED RELEVANCE AND INFLUENCE OF FREE PRIOR INFORMED CONSENT, REDD, AND GREEN ECONOMY PRINCIPLES ON SUSTAINABLE COMMONS MANAGEMENT IN PERU

Carlos A. M. Soria Dall’Orso, Ph. D.*

ABSTRACT

This paper examines unique opportunities provided by international discourses and practices of the Green Economy approach and valuation of ecosystem services (as promoted under the international climate change regime) on the sustainable management of indigenous forests and lands in Peru. It examines the influence of epistemological changes prompted by the United Nations Framework Convention on Climate Change (UNFCCC) on the improved understanding and conceptualization of the role of forests and sound natural resource management; and how these changes at the international level have positively impacted traditional land rights in Peru.1 It also analyses how increased development and financing of Reducing Emissions from Deforestation and Forest Degradation (REDD) processes and projects have enhanced the incorporation of interculturality into indigenous peoples’ public policy in Peru. This paper discusses the Peruvian experience, most especially how international demands for greater transparency in forest management led to the evolution of the Prior Consultation Law and Forestry (FPIC) Law in Peru. It reviews the growing relevance and influence of the Peruvian FPIC law, its impact on sustainable forest management, and the opportunities and practical challenges it portends for sustainable commons management in Peru.

Keywords: Peru, forests, green economy, FPIC, REDD, indigenous

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* MSc (Ecuador), PhD (Australia), international consultant, researcher, lecturer and activist on environmental and indigenous public policy since 1988. Dr. Soria Dall’Orso is the co-author of the Code of Environment and Natural Resources of Peru (1990); the General Environmental Law (2005), the Forestry and Wildlife Law 29763 (2011) and Regulation of the Forestry and Wildlife Law 27308 (2001). He is an Associate Researcher with the Institute for Nature, Territory and Renewable Energies Sciences (INTE) of the Pontifical Catholic University of Peru (PUCP). He teaches in the Master’s Program in Sustainable Development and Biocomerce at PUCP; Master’s programs of the Faculty of Forestry at the Universidad Nacional Agraria La Molina; Faculty of Business Administration at the Universidad San Ignacio de Loyola; and at the Postgraduate School of the Pedro Ruiz Gallo University of Lambayeque. He supported the Amazonian indigenous peoples and the Peruvian government negotiations in 2001 and 2009. From 2012-2014, he returned to the World Wide Fund for Nature WWF-Peru as Senior Policy Specialist on issues of indigenous peoples in isolation, developing voluntary standards for palm plantations, development of forestry legislation, among others. As such, he was very instrumental to the activities of World Wildlife Fund and the Coordinator of Indigenous Organizations of the Amazon Basin COICA to develop the content of the proposed Amazonian Indigenous REDD in various projects. In 2014 he helped the dialogue around the development of the regulations of the Forestry and Fauna Law.

1. The United Nations Framework Convention on Climate Change (UNFCCC) came into force in 1994 with the aim of reducing greenhouse gases (GHGs) emissions into the atmosphere. The UNFCCC COPs have been organized since 1995 as part of the commitments of the UNFCC. The Kyoto Protocol, although failed to come in to force, was, nevertheless, an important milestone whose failure to achieve still haunts us. The Kyoto Protocol ended in 2012 and the world seeks to establish a new solid and binding agreement climate change measures. For a list of UNFCCC COPs, see accessed June 15, 2015.

FOOD AND AGRICULTURAL LAW: READINGS ON SUSTAINABLE AGRICULTURE AND THE LAW IN NIGERIA

Yemi Akinseye-George, SAN, FCIArb.*

OVERVIEW

The book, Food and Agricultural Law is Nigeria’s first authoritative book publication on food, agriculture and renewable energy. In reviewing this book, the ultimate aim is to examine the key arguments and fundamental assumptions of the book and to evaluate whether it significantly advances knowledge in this unique and important area of law in Nigeria. After a painstaking review and analyses of this book, it is evident that the book delivers more than it promised. This theory-laden, analytical and expository publication offers excellent wealth of materials and knowledge on food, agriculture and renewable energy. The book will be relevant for a long time to come.

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* Professor of Law, Legal Practitioner, Consultant and Head, Department of Public and International Law, Nasarawa State University, Keffi and Visiting Professor, Afe Babalola University, Ado-Ekiti.

FORUM ISSUES IN THE ENFORCEMENT OF REGULATORY OBLIGATIONS OF NIGERIAN PUBLIC COMPANIES

Olumide Famuyiwa*

ABSTRACT

Jurisdictional conflict between judicial fora is often a common issue in countries that use a mix of specialist and regular Courts to resolve civil and criminal cases. In Nigeria, owing largely to lack of clear guiding principles, this conflict reflects presently in the judicial determination of the regulatory obligations of the country’s public companies. This paper focuses on this conflict. It examines statutory and case law rules at the centre of the jurisdictional conflict between the Federal High Court and the Investment and Securities Tribunal, in relation to the enforcement of reporting obligations of Nigerian public companies. As a contribution to regulatory clarity and law reform, it proposes and discusses normative principles for the resolution of this perceived jurisdictional conflict.

Keywords: regulation, jurisdiction, banking, public companies.

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* Doctoral Candidate and College Lecturer, Faculty of Law, University of Oxford, United Kingdom. Email: olumide.famuyiwa@law.ox.ac.uk.

LEGAL STATUS OF SECTIONS 10 AND 12 OF THE NIGERIAN OIL AND GAS INDUSTRY CONTENT DEVELOPMENT ACT (2010) UNDER THE GATT REGIME

Adewale Adetola Aladejare*

ABSTRACT

The Nigerian Federal Government in 2010 made a regulatory intervention in the Nigerian oil and gas industry by enacting the Nigerian Oil and Gas Industry Content Development Act (The “Act”). The Act prescribes in sections 10 and 12 that preference should be given to ‘...goods manufactured in Nigeria’. This paper considers the legal standing of these sections in international trade law against the backdrop of the national treatment principle contained in Article III of General Agreement on Tariffs and Trade (GATT). A comparative analysis is made using Article III to establish that the two sections flagrantly violate the obligations of the Nigerian state as a member of the World Trade Organisation (WTO) and GATT. An unexplored contract alternative to legislation argument is then advanced and recommended.

Keywords: Local content, trade, GATT, WTO, national treatment

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* Adewale Aladejare, LL.M (UK), LL.B (Ife) is a lecturer at the College of Law, Afe Babalola University, Ado Ekiti.

REFUGEE RIGHTS IN SOUTH AFRICA: ADDRESSING SOCIAL INJUSTICES IN GOVERNMENT FINANCIAL ASSISTANCE SCHEMES

Callixte Kavuro*

ABSTRACT

The political debate on exclusion of refugees and asylum-seekers from socio-economic benefits and opportunities is arguably underpinnned by assumptions, fallacies and misconceptions that a higher number of refugees are not “genuine.” Rather they are bogus refugees who are in South Africa to seek a better life. That belief has a dire consequence of treating refugee students as ‘international students” at higher learning institutions, resulting in depriving refugees and asylum-seekers of the right to education and training and of other social opportunities. These assumptions fly in the face of international refugee law principles that refugees and asylum-seekers are to be accorded ‘treatment as favourable as possible’ with respect to tertiary education. Thus, the main objective of the paper is to argue for favourable extension of student financial aid and assistance to refugees and asylum-seekers in South Africa for educational purpose in line with the principles of fair and equitable treatment under international law. The paper depends largely on the concept of social justice and the philosophy of Ubuntu (which means to be humane toward others). It argues that practicalizing Ubuntu demands a distributive justice system to ensure that the most vulnerable people have access to certain primary goods and they are afforded social opportunities to realise the most fulsome life. In so doing, the paper draws legal distinctions between two often-confused concepts vis a refugee student and an international student though the discussion of the two distinct regimes that regulate their sojourn in South Africa, namely the Refugees Act 130 of 1998, as amended and the Immigration Act 13 of 2002, as amended.

Keywords: Refugee, Ubuntu, social justice, rights, immigration, asylum.

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* Dip. Journ (CMC); LLB (Western Cape); LLM (Capetown); LLD Candidate (Stellenbosch). Email address: callixtekav@gmail.com.

ACHIEVING EXCELLENCE IN THE LEGAL PROFESSION IN A GLOBALIZED WORLD: IMPERATIVES FOR DEVELOPING ECONOMIES

Felicia Eimunjeze*

ABSTRACT

That the world has become a global village is a cliché. Today, as far as communication and dissemination of information is concerned, distance is no longer a barrier. It is therefore imperative that the training of lawyers in developing economies prepare them to be relevant and function efficiently and effectively in a borderless world. The increasing impacts of information technology and the internet have demystified knowledge and skills in all professions leaving the lawyer of today a person of business and ethics. The key argument in this paper is that the appropriate response to this is not in how much more of Law and Practice are crammed into Schools’ curricula; rather it is in training law students to become practitioners whose services will be valued in the internationalized market of today. The key to excellence in a globalized world is for lawyers to be prepared with the relevant skills, knowledge, and technological sophistication needed for them to meet complex expectations of clients in terms of high ethical standards, personal conduct and efficiency, knowledge and skill in that order.

Keywords: Legal education, excellence, globalization, technology

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* Deputy Director (Academics) The Nigerian Law School. Email: feimunjeze@gmail.com.

THAT THIS PROFESSION MAY NOT DIE: THE NEED TO FLUSH OUT MISCREANTS FROM THE NIGERIAN LEGAL PROFESSION

Ibrahim Tanko Muhammad*

ABSTRACT

One of the key hindrances to sustainable development and economic growth in Nigeria is the problem of corruption. For many years, discussions on corruption inevitably focused on political abuse of powers and privileges and wanton disregard of the rule of law. Events of the last decade however sadly reveal that corruption, nepotism, and indiscipline have equally taken prominent places in the Nigerian legal profession, ranging from the bar, bench and the legal academia. Most alarming is the geometric rise in instances of corruption in our higher institutions of learning; ranging from prevalent sharp practices in admissions, examinations, research, teaching, tenure and academic promotions. This paper examines the challenges of endemic and systemic corruption in the Nigerian legal profession. The paper adopts a crosscutting approach to discuss how perennial instances of corruption threaten the nobility and growth of the Nigerian legal profession. It proposes a holistic purging of the bench, practicing bar, and the legal academia to name, shame and expel miscreants, in order to restore the age long discipline and dignity of the Nigerian legal profession.

Keywords: Corruption, legal profession, lawyers, universities, education

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* Hon. Justice of the Supreme Court of Nigeria, Ph.D, JSC, CFR, FCIArb, FNIALS, FCLM. Paper presented at the 48th Annual Conference of the Nigerian Association of Law Teachers (NALT), held at the Afe Babalola University, Ado – Ekiti, Ekiti State (31st May – 5th June, 2015),

LEGAL AND CONSTITUTIONAL EVALUATION OF THE NIGERIAN SOVEREIGN WEALTH FUND

Solomon E. Ekokoi *

ABSTRACT

The central aim of this paper is to examine the constitutionality of Nigeria’s sovereign wealth fund (SWF) which was established in August 2012, pursuant to the Nigeria Sovereign Investment Authority (Establishment etc) Act 2011 (the NSIA Act). The paper reviews and discusses how questions on the constitutionality of a sovereign wealth fund have been dealt with in other jurisdictions with similar legal and governmental structures. It reviews practices in the United States and Canada, where the establishment of SWFs conform to their federal constitutional designs; and in Australia and Russia, where the law and practice of SWF are similar to the extant regime in Nigeria. This paper argues that questions on the constitutional basis of the SWF alone should not affect the establishment of a national SWF in Nigeria and therefore recommends a constitutional amendment to clear the grey areas. It discusses the importance of the law and development approach in resolving the identifiable setbacks in the Nigerian NSIA Act bearing in mind the potentials of the SWF in the socio-economic development of the Nigeria.

Keywords: Sovereign wealth fund, constitution, stabilization

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* LLM (Uyo) (Barrister & solicitor of the Supreme Court of Nigeria; lecturer in law, Department of Public Law, Faculty of Law, University of Uyo, Nigeria. E-mail: ekokoisolomon@ yahoo.com).