scholarly journals Are foreign copyright works protected in Nigeria?

2020 ◽  
Vol 10 (2) ◽  
pp. 238-254
Author(s):  
Bankole Sodipo
Keyword(s):  
Supreme Court ◽  
Copyright Protection ◽  
Trial Courts ◽  
Microsoft Corporation ◽  
The Supreme Court ◽  
Lower Courts ◽  
Appeal Decision ◽  
Judicial Authority ◽  
Foreign Corporations ◽  
Court Of Appeal

Despite Nigeria's treaty obligations, Nigerian courts have, in the last quarter of a century, consistently but erroneously held that the Nigerian copyright statute does not protect copyright works of foreign persons. The purport of the decisions is that foreign persons cannot sue to protect their copyright in Nigeria. Given that the decisions of three trial courts and a Court of Appeal decision were never appealed to the Supreme Court, they arguably remain good precedent. The decisions suggest that foreign direct investors who need copyright protection are exposed in Nigeria. Relying on two of these cases, a leading intellectual property law text echoed this erroneous position. This article demonstrates that the decisions were reached in ignorance of applicable statute. As such, the decisions should not be followed by trial courts irrespective of the rule of binding judicial precedent. The article outlines various mechanisms within the copyright statute that extend the protection of the Nigerian copyright statute to foreign works. This article goes further than previous works. Unlike earlier works, this article suggests the path trial courts should tread, despite the rule of precedent, in distinguishing this line of cases to hold that foreign corporations incorporated in many treaty countries and foreign works emanating from many treaty countries are protected in Nigeria. Unlike earlier works, this article demonstrates that lower courts may refer this issue to higher courts for interpretation and guidance under the case stated procedure. Whilst other works made passing references to the Copyright (Reciprocal Extension) Order 1972 (the 1972 Order), that arguably extends copyright to foreign works under the Copyright Act 1970, none cited judicial authority that held that the 1972 Order made under the repealed Copyright Act 1970 is still valid under the current Copyright Act. None referred to the Interpretation Act that supports this judicial authority. Unlike previous work, this article reveals that if the Microsoft case that is the most significant of these cases is appealed to the Nigerian Supreme Court, the court will extend the time within which the Microsoft Corporation can appeal and reverse Microsoft and the line of cases identified in this article.

scholarly journals Bokolo v S 2014 (1)sacr 66 (sca): The practicality of challenging dna evidence in court

2015 ◽  
Author(s):  
Emma Charlene Lubaale
Keyword(s):  
Supreme Court ◽  
Active Role ◽  
Case Note ◽  
Scientific Validity ◽  
Dna Evidence ◽  
The Supreme Court ◽  
Appeal Decision ◽  
Court Of Appeal ◽  
The Ideal

The techniques used in DNA profiling are well established and scientifically validated. The scientific validity of DNA evidence can, however, be so persuasive that such evidence risks being reduced to proof of guilt or innocence. Thus, the incorrect use of DNA evidence could lead to a miscarriage of justice where the innocent are convicted and the guilty are acquitted. Drawing from the Supreme Court of Appeal decision in Bokolo v S (Bokolo case), this case note discusses how DNA evidence can be placed in its proper forensic context. The article sets out the ideal role of expert witnesses, the role of opposing or neutral experts, and the active role of judicial officers in evaluating DNA evidence.

scholarly journals THE BANK’S RIGHT TO CANCEL THE CONTRACT BETWEEN IT AND ITS CUSTOMER UNILATERALLY Bredenkamp v Standard Bank of South Africa Ltd 2010 4 SA 468 (SCA)

Obiter ◽  
2021 ◽  
Vol 32 (1) ◽  
Author(s):  
WG Schulze
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Present Discussion ◽  
Main Application ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Right ◽  
Court Of Appeal

Does a bank have the right to cancel the contract between it and its customer unilaterally? This was the crisp question put to the court in the recent decision in Bredenkamp v Standard Bank of South Africa Ltd (2010 4 SA 468 (SCA); 2010 4 All SA 113 (“Bredenkamp: appeal”)). Before this case reached the Supreme Court of Appeal (“SCA”), two lower courts were asked to pronounce on the same question (see Breedenkamp v Standard Bank of South Africa 2009 3 All SA 339 (GSJ); 2009 5 SA 304 (GSJ) (“Bredenkamp: interim application”)); and Breedenkamp v Standard Bank of South Africa Ltd 2009 6 SA 277 (GSJ) (“Bredenkamp: main application”). (In passing it should be mentioned that Bredenkamp’s name was spelt incorrectly in the citation of both the interim and main applications; Bredenkamp’s name was correctly spelt in the citation of the decision of the SCA). The present discussion will refer to all three these decisions.

4. Retention of title clauses

2019 ◽  
pp. 54-70
Author(s):  
Eric Baskind
Keyword(s):  
Supreme Court ◽  
Essential Information ◽  
The Supreme Court ◽  
Appeal Decision ◽  
Court Of Appeal ◽  
Influence On Retention

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on retention of title clauses, also known as reservation of title clauses, in sale of goods contracts. It explains how retention of title (or Romalpa) clauses are especially useful in cases where the buyer becomes insolvent and then stresses the importance of properly incorporating a retention of title clause into the contract of sale. The chapter examines the 1976 Romalpa case and its influence on retention of title cases. It considers ‘all-liabilities’ clauses in contracts of sale of goods and concludes by discussing criticisms against retention of title clauses and how, in practice, they might fail. The chapter discusses the 2014 Court of Appeal decision in FG Wilson (Engineering) Ltd v John Holt & Co (Liverpool) Ltd which illustrates the dangers of retention of title clauses which can leave buyers somewhat unprotected and how a degree of balance was reintroduced by the Supreme Court in PST Energy 7 Shipping LLC and Another v OW Bunker Malta Ltd and Another.

4. Retention of title clauses

2017 ◽  
Author(s):  
Eric Baskind
Keyword(s):  
Supreme Court ◽  
Essential Information ◽  
The Supreme Court ◽  
Appeal Decision ◽  
Court Of Appeal ◽  
Influence On Retention

Each Concentrate revision guide is packed with essential information, Key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on retention of title clauses, also known as reservation of title clauses, in sale of goods contracts. It explains how retention of title (or Romalpa) clauses are especially useful in cases where the buyer becomes insolvent and then stresses the importance of properly incorporating a retention of title clause into the contract of sale. The chapter examines the 1976 Romalpa case and its influence on retention of title cases. It considers ‘all-liabilities’ clauses in contracts of sale of goods and concludes by discussing criticisms against retention of title clauses and how, in practice, they might fail. The chapter discusses the 2014 Court of Appeal decision in FG Wilson (Engineering) Ltd v John Holt & Co (Liverpool) Ltd which illustrates the dangers of retention of title clauses which can leave buyers somewhat unprotected and how a degree of balance was reintroduced by the Supreme Court in PST Energy 7 Shipping LLC and Another v OW Bunker Malta Ltd and Another.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

scholarly journals Deservingness in Judicial Discourse. An Analysis of the Legal Reasoning Adopted in Dutch Case Law on Irregular Migrant Families’ Access to Shelter

2021 ◽  
pp. 1-10
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Supreme Court ◽  
Legal Reasoning ◽  
Migrant Families ◽  
The Supreme Court ◽  
Judicial Discourse ◽  
Major Shift ◽  
New Interpretation ◽  
Irregular Migrant ◽  
Court Of Appeal

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy. This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

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