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Recovery of Foreign Judgment Debts in Nigeria

Enforcement of foreign judgments has significant relevance in this era of increased international trade and foreign investments. Businesses are more comfortable doing business with foreign partners knowing that if they obtain judgment from a superior court in their home country; it can be enforced against the judgment debtor across borders. Fortunately, Nigerian courts recognise judgments from superior courts of commonwealth countries and countries with reciprocal treatment with Nigeria.

This has increased the confidence of foreigners and foreign companies to do business with Nigerians and Nigerian companies. Nevertheless, the procedure for registration of foreign judgment in Nigeria is not without challenges. Apart from the uncertainty in the statute and rules regulating the enforcement of foreign judgment, the procedure for registration of foreign judgments does not take into cognisance the evolving trends in global economy and international commerce.

The statute regulating the enforcing of foreign judgments in Nigeria is imprecise. Ordinarily the recent Foreign Judgment (Reciprocal Enforcement) Act, CAP 152, Laws of the Federation of Nigeria, 1990 (“the 1990 Act”) would have been the legislation regulating enforcement of foreign judgment but the Supreme Court in the case of Macaulay v R.Z.B of Austria (2003) 18 NWLR (Pt. 852) 282 held that the Minister of Justice has not made an order extending the Act to judgments of the United Kingdom and other countries with reciprocal treatment with Nigeria pursuant to Sections 3 (1) and 9 (1) of the Act as such the first part of Act is inapplicable.

Again, in the case of Grosvenor Casinos Ltd v Ghassan Halaoui (2009) 10 NWLR (Pt. 1149) 309, the Supreme Court postulated that both the Act and the Reciprocal Enforcement of Judgments Ordinance, CAP 175, Laws of the Federation of Nigeria, 1958 (“the Ordinance”) (“applicable legislations”) are relevant statutes in the enforcement of foreign judgments in Nigeria.

Judgment creditors now rely on the colonial Reciprocal Enforcement of Judgment Ordinance, 1958 (“the 1958 Ordinance”) which provides for a 12 months period to register and recover a foreign judgment debt in Nigeria. This is why in Suit No. FHC/ABJ/CS/203/2017; Emmanuel Ekpenyong Esq v. Attorney General and Minister of Justice of the Federation, I sought an order of mandamus at the Federal High Court, Abuja Division to compel the Attorney General and Minister of Justice of the Federation to promulgate an Order to bring the 1990 Act into operation.

The Federal High Court in its judgment opined that the Minister has discretionary powers to promulgate the Order. The trial court held that the Minister had unlimited powers to determine when to promulgate the Order. An appeal against the trial court’s judgment is pending before the Court of Appeal, Abuja division. The backlog of appeals at the appellate court has made it difficult to obtain a hearing date for the appeal.

The imprecision on the particular statute regulating foreign judgment enforcement has a devastating effect on the whole process of registering foreign judgment in Nigeria. For instance, the time within which to register a judgment under the 1990 Act is 6 years while the time to register a judgment under the Ordinance is 12 months. Since there is no Foreign Judgment Enforcement Rules for the 1990 Act, the Reciprocal Enforcement of Judgments Rules of the Ordinance (“Rules of the Ordinance”) which was enacted in 1922 regulates the legal conditions for registration of foreign judgment in Nigeria today.

Rules 1 (1) and 5 of the Rules of the Ordinance which provides that the application for enforcement of foreign judgment be made by a motion ex-parte is inconsistent with the modern concept of fair hearing and the current civil procedure rules of Courts that an adverse party must be put on notice. It is without doubt that the Rules of the Ordinance is out of touch with modern realities and the different conditions in the applicable legislations have led to calamity and more uncertainty.

In a Ruling of a Lagos High Court, per Candide-Johnson J, the Court rejected the registration of a Judgment of Justice Michael Burton of the High Court of Justice, Queen’s Bench Division, Commercial London on the ground that since the Lagos Court did not have jurisdiction to hear the subject matter before the original Court, it could not register and execute the Judgment of the original court against the judgment debtor. But registration of foreign judgment under the provisions of the applicable legislations appears to be a subject matter on its own. Little wonder the process of registration of foreign judgment is regulated by its separate and distinct legislations and rules which spell out its conditions and legal requirements.

The applicable legislations provide that Nigerian courts shall accord reciprocal treatment to judgment of ‘superior courts’ from commonwealth countries and other countries with reciprocal treatment with Nigeria. They also provide that a judgment creditor from a foreign country with reciprocal treatment with Nigeria may apply to a ‘superior court’ in Nigeria within the specified time for registration of the judgment. From the ordinary meaning of the wordings of the provisions of the applicable legislations on conditions for registration of foreign judgments, it did not contemplate that the jurisdiction of the Nigerian court to register a foreign judgment will be subject to its jurisdiction to hear and determine the original subject matter of the case.

Since the judgment creditor is not asking the Nigerian court to hear the case based on its subject matter, but to grant leave for registration of the foreign judgment under the applicable legislations only, Nigerian courts have no business making its jurisdiction to hear the subject matter of the case, a condition precedent for registration of the judgment. Unless the appellate courts pronounce on this grey area, it will continue to impede the registration of foreign judgments in Nigeria.

An interesting requirement of the applicable legislations is that the Defendant against whom the foreign judgment is to be enforced must have been a Defendant at the original court. This requirement creates a profound difficulty for Judgment creditors. With the recent economic meltdown, businesses are trying to stay afloat by merging or acquiring other companies. To maintain a local presence, a multinational company may take over the business and goodwill of viable Nigerian Company. Upon such takeover the acquired company is wound up.

What then happens to a judgment creditor who obtained a foreign judgment against the acquired company? Does it mean that the judgment creditor cannot maintain a cause of action against the acquiring company just because the acquiring company was not a Defendant at the original court? Since the acquiring company acquired both the assets and liabilities of the acquired company and the acquired company is no more, the justice of the case demands that the foreign judgment obtained against the acquired company should be enforced against the acquiring company.

Another curious requirement in both the Act and the Ordinance is that foreign judgments in respect of fine, taxes and penalties cannot be enforced in Nigeria. This is against the whole concept of reciprocal treatment of judgment because it may give a safe haven to impenitent tax evaders. With the increase in tax evasion by foreign businesses and multinational companies, inability of states and government bodies to recover judgment debts in respect of fines, taxes and penalties across borders would led to a great loss of revenue. The role of fines, taxes and penalties is invaluable in the economic development of states in the 21st Century. Unlike the 19th Century where most states closed their borders against foreign goods and investment, the 21st century world is a global village.

Though Section 1 (2) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (“the United Kingdom’s Act”) provides that taxes or other charges of a like nature or in respect of a fine or other penalty cannot be registered and enforced in United Kingdom, the United Kingdom Prime Minister David Cameron in a letter to Leaders of the British Overseas Territories (BOTs) and Crown Dependencies (CDs) dated 20 May 2013 said “… I very much welcome the commitments you have made to automatic tax information exchange, both on a bilateral and multilateral basis, which will help us to reach our goal of setting a global standard in tax transparency… We also need to ensure information exchange works effectively for all… That is why we strongly support the Multilateral Convention on Mutual Assistance in Tax Matters”.

This highlights the importance of cross border tax collection. Nigeria will gain more if it offers herself and other states the opportunity to recover fine, taxes and penalties against evading offenders by either amending her Foreign Judgment statutes to accord foreign judgments on fine, taxes and penalties the same status with monetary judgments or enter into Multilateral and Bilateral treaties with other states to assist themselves on recovery of cross borders fine, taxes and penalties.

Furthermore, the requirement that once an appeal is filed at the original court, the foreign judgment cannot be registered at the registering court may be prejudicial to the judgment creditor. What happens in a situation where an unscrupulous debtor in an attempt to forever deny the judgment creditor the fruits of his judgment files an appeal at the original jurisdiction and goes to sleep? What happens to the judgment creditor where the judgment debtor dissipates the res before outcome of the appeal at the original court? Is it not justiciable to preserve the res at the registering court pending the outcome of the appeal at the original jurisdiction? This is the reasoning behind the provisions of Section 1 (3) of the United Kingdom’s Act which provides that “a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court”.

In conclusion, there is a need for the lingering crisis on the law regulating enforcement of foreign judgment in Nigeria to be settled. The legal conditions for enforcement of foreign judgment have been interpreted too broadly to adequately protect the interest of foreign judgment creditors. Therefore, the law and rules should be amended to reflect modern realities. The Courts should be proactive in breaking new grounds and developing the jurisprudence on enforcement of foreign judgment in Nigeria in accordance with the essence of reciprocity of judgments. This will improve the prospects of Nigeria as a business destination and enhance the growth of her economy.

Navigating Arbitration and Specialised Courts in IP matters in Nigeria

Enforcement of Intellectual Property (“IP”) in Nigeria is saddled with loop holes, bureaucratic bottlenecks, lack of technical knowledge, skills and lack of public awareness. These have led to the prevalence of piracy, counterfeiting, unauthorised, unlicensed use and infringement of IP rights. Though there have been laudable developments in recent times, there is still a wide gap in the enforcement of Intellectual Property Rights.

Regulatory Framework & Institutions

The principal types of Intellectual Property rights in the Nigeria Legal System are Copyrights, Patents, Trademarks and Industrial Designs. The regulatory frameworks include by the Copy Right Act Cap C28, Trade Marks Act Cap T13, Patent & Design Act P2 and the Merchandise Marks Act Cap M10.

These laws are enforced by the Nigerian Copyright Commission (“NCC”), The Trademark, Design and Patents Registry which is a subdivision of the Ministry of Industry, Trade & Investment, The National Agency for Food and Drug Administration Control (“NAFDAC”), The Nigerian Police (“NPF”) and The Nigerian Custom Service (“NCS”).

Nigeria is also a signatory to numerous international treaties on Intellectual Property. These include the World Intellectual Property Convention (“WIPO”) of 1970, Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), Berne Convention and Rome Convention for the Protection of Performers, Producers of Phonograms &Broadcasting Organisation etc.

The Current Situation

Enforcement of IP rights in Nigeria have been slow, largely ineffective and ladled with obstacles and loopholes. We shall consider the causative factors:-

  • Obsolete and Weak Laws: The principal laws in force were adopted from the Laws of England and date back as far as the 19th Century with no review since enactments. Intellectual Property is a steadily evolving concept and these laws do not also take into consideration, these dynamic changes in IP including the advancements in Technology. These Laws are also weak and cannot effectively control issues like piracy and counterfeiting.
  • Non Implementation of International Treaties: Section 12 of the Constitution of the Federal Republic of Nigeria 1999 as amended (“CFRN”) provides that before an International Treaty can be implemented in Nigeria, it must be ratified and enacted by the Legislative. Though Nigeria is a signatory to numerous International Treaties on IP, which can be a supplement to our laws, these cannot be implemented because they haven’t been ratified and enacted according to the CRFN.
  • Lack of Awareness and Inadequate Finance & Staffs of the Regulatory Agencies: Regulatory Agencies charged with enforcing IP rights in Nigeria are greatly understaffed; lack the necessary equipment, training and knowledge to effectively carry out their duties. . These culminate in a slow and inefficient enforcement of IP rights.
  • Lack of Uniformity and Cooperation amongst enforcement Agencies: Intellectual Property is a broad and technical area. Its enforcement cannot be carried out by one regulatory agency alone; the agencies need to work together. However in Nigeria, there is no such cooperation, they also lack a uniform public domain between the agencies to access the data of each agency in enforcing Intellectual property rights.
  • Judicial Enforcement: The Nigerian Judicial System is slow and t cases take an inordinate amount of time before coming to a conclusion. This coupled with the technical nature of Intellectual Property Rights, the lack of such technical knowledge by the Judges and the non-observance of judicial orders has further inhibited the effective enforcements of IP rights by the Judiciary. Furthermore the Federal High Court is vested with exclusive jurisdiction over IP disputes. This is a bar to parties exploring Alternative Dispute Resolution (“ADR”).

The Way Forward

Due to the loopholes in enforcing IP rights and resolving IP disputes in Nigeria, it has become necessary that new and alterative procedures need to be considered. These include Arbitrations and Special Courts.

Why Arbitration

Arbitration according to the Black’s Law Dictionary is a dispute resolution process in which the disputing parties choose one or more neutral third parties to make a final and binding decision resolving the dispute. WIPO has advocated for the use of Arbitration for resolving IP disputes and has gone further to establish an Arbitration & Mediation Centre for resolving IP disputes. It also has in place its Arbitration rules. Discussed here are the advantages of Arbitration over Litigation and why IP disputes should be resolved using Arbitration in Nigeria.

  • Technicality involved in Intellectual Property: Intellectual Property is a technical subject matter. Therefore it is a better to use an Arbitrator who has specialised knowledge of Intellectual Property. This is even more so when technical issues like computer programs, Industrial designs, patents etc. are being contested. When parties can choose their adjudicator they have the opportunity of picking one who possesses the necessary technical knowledge.
  • Expert determination: Disputing parties can also refer the matter to an expert in the area of dispute for expert opinion, appraisal, valuation or determination to settle a dispute. This expert can act as Arbitrator and the resulting decision is binding on the parties.
  • International Nature of Intellectual Property Disputes: IP is by its nature intangible and global unlike other forms of property. It can be exploited and transmitted globally instantaneously. This makes its rights infringeable internationally and disputes are cross borders. Therefore IP disputes are best resolved by Arbitration which is most suitable for International disputes.
  • Flexibility of Arbitration: Arbitration by its nature is flexible. The parties can choose the Arbitrator, time, conduct of the proceedings and venue of the proceedings. Also they can choose the applicable law to govern the proceedings. This is important having regards to the International nature of Intellectual Property disputes. Parties do not have to be bound by the local laws of a disputing party.
  • The Time Involved and Finality: Arbitral proceedings are fastidious. Parties do not have to go the tedious and formal procedure involved in litigation. Arbitration is expeditious, quick and efficient. This is an advantage for Intellectual Property disputes which are of a technical and economical nature and need to be resolved timeously. Furthermore, contracting parties can resolve that there will be no appeal to the arbitral award. This ensures the dispute will be brought to an end quickly unlike litigation where parties by contract cannot bar an appeal.
  • Confidentiality: Arbitration ensures confidentiality between parties. IP disputes may involve trade secrets and commercial benefits. These are better kept confidential in order to avoid being exploited by the public. Arbitration also ensures that parties’ trade reputation is protected and this is a commercial benefit.

Establishing Special IP Courts

A special IP Court is an independent public judicial body that can operate at national or regional levels to adjudicate IP disputes, enforcement of IP rights and incidental disputes. There has been a global trend toward the establishment of specialised IP courts especially in developed Countries. Establishing a specialised Court improves the quality of justice available to litigants. This is because the Judiciary will have vast experience and knowledge in IP. This is unlike non specialised Court where the judiciary may or may not have vast knowledge of IP. Specialised Courts are better equipped to keep pace with and adapt to dynamic developments in Law. Another advantage of specialised Courts is that they allow for timely and cost-effective handling of proceedings and can improve consistency in case Law. Establishing a specialised IP Court or Tribunal in Nigeria will further enhance the effective enforcement and protection of IP rights in Nigeria and it is important considering the fact that some IP disputes are of a criminal nature and thus not arbitrable.

Conclusion

Intellectual Property plays a key role in the economy and development of a Country. Where these rights are adequately protected, enforced and implemented, it has a lot of benefits to the economy and the society at large. Lessons have been learnt form developed countries who have given IP the paramount stage that it deserves. A crucial method of ensuring these rights and enforced and disputes are efficiently resolved is to resort to Arbitration and establish specialised IP Courts. Our Laws should be amended to meet up with dynamic trends in IP, to provide resort to ADR especially Arbitration and Special Courts and Tribunals should be established to ensure speedy and effective trial of IP disputes.

Holding a Board of Directors Meeting in Nigeria

How many members may call for a Board meeting (“the meeting”)?

Section 263 (3) of the Companies and Allied Matters Act (“the CAMA”) provides that;

“A director may, and the secretary on the requisition of a director shall at anytime summon a meeting of the directors”

Except the Articles of Association of the Company stipulates otherwise, the following persons may call for the meeting;

  • (a) Any of the Company’s Directors; or
  • (b) The Company’s Secretary upon the requisition of any of the Company’s Directors.

What is the period between dispatch of the invitation notice of meeting and the meeting?

Section 266 (2) and (3) of the CAMA provides that;

  • “(2) There shall be given 14 days notice in writing to all directors entitled to receive notice otherwise provided in the articles.
  • (3) Failure to give notice in accordance to subsection (2) of this section shall invalidate the meeting”

Consequently, the meeting shall be held 14 clear days’ after dispatch of the notice for the meeting, failing which the meeting shall be invalid.

Who should sign the invitation notice of the meeting?

Further to the provisions of Section 263 (3) of the CAMA, the following persons may sign an invitation notice for the meeting;

  • (a) The Director who summons the meeting; or
  • (b) The Company’s Secretary who summons the meeting upon the requisition of a Director.

Where should the meeting hold?

Section 266 (4) of the CAMA provides that;

“Unless the articles otherwise provide, it shall not be necessary to give notice of a meeting of directors to any director for the time being absent from Nigeria, provided that if he has given an address in Nigeria, the notice shall be sent to such address”

Since the provisions of Section 266 (4) of the CAMA provides for notice to be given only to Directors in their Nigerian address, the CAMA envisages that the meeting shall be held in any State or location in Nigeria.

Though it is the practice for Nigerian Companies to hold their Board meetings at the registered address of the Company, there is no provision of the CAMA which is against holding a Board meeting at an address in Nigeria other than the registered address of the Company.

Who should attend the meeting?

In practice, the following persons shall attend the meeting;

  • (a) The Company’s Directors;
  • (b) The Company Secretary in order to take minutes and guide the Chairman of the Board on the proceedings;
  • (c) The Chief Financial Officer to present the financial statement of the company;
  • (d) Senior officers of the Company who contribute to the running and growth of the Company;
  • (e) Any other person whose submission is important to the agenda of the meeting.

Who should be notified of the meeting?

It is compulsory to send a notice of the meeting to all the Directors failing which the meeting shall be invalidated. Once notice of the meeting is sent to all the Directors, the Director or Secretary who summons the Board meeting has discharged his responsibility under the provisions of the CAMA.

The Directors present in the meeting, may proceed to deliberate on the agenda and pass resolutions to bind the Board in the absence of some Directors, provided that the quorum stipulated in the Company’s Articles of Association has been met.

It is important to send notice of the meeting to other persons and officers of the Company whose contribution is necessary for successful deliberation in the meeting.

What are other legal and practical details for the meeting?

(a) Board Pack

The notice of the meeting is usually accompanied by a Board Pack containing the agenda of the meeting, minutes of the previous meeting, management and committee reports, financial reports, proposals and other documents which are to be discussed at the meeting. The Board Pack should be sent alongside the notice to enable the Directors and other persons invited to the meeting to adequately prepare for the meeting.

(b) Service of notice

The invitation notice shall be sent to the Directors and other persons scheduled for the Board meeting, personally or by registered post.

(c) Quorum

Section 264 (1) of the CAMA provides that;

“Unless the articles other provide, the quorum necessary for the transaction of the business of directors shall be 2 where there are not more than 6 directors, but where there are more than 6 directors, the quorum shall be one-third of the number of directors and where the number of the directors is not a multiple of three then the quorum shall be one-third to the nearest number”

This means that if the Directors of the Company are less than 6 Directors, the quorum for the meeting shall be 2 Directors. But if the Directors of the Company are more than 6 Directors, the quorum shall be one-third of that number.

Types of Technology Transfer Agreement Registerable in Nigeria

The National Office for Technology Acquisition and Promotion (NOTAP) is the technology transfer office in Nigeria with a mandate to regulate the acquisition of foreign technology. NOTAP’s mandate is implemented through the evaluation, registration and monitoring of all technology transfers agreements signed by Nigeria business owners with their foreign technical partners. The task of NOTAP is to evaluate agreements to ensure that the terms and conditions contained therein suit the Nigeria environment, is fair and well aligned to the National Innovation System.

According to NOTAP’s Revised Guidelines for Registration and Monitoring of Technology Transfer Agreements in Nigeria, 2011, all agreements must be classified under any of the following heads;

a. Management Services

This agreement incorporates all agreements in the areas of insurance, marketing, human resources, administration, accounting, sales promotion, hotel management agreements and other related services.

b. Consultancy Services

This agreement cut across various industries and fields such as construction, manufacturing, agriculture and includes the provision of architectural designs, engineering designs, construction works and feasibility studies.

c. Technical Services

This agreement deals with the provision of experts from the technical partner’s plant to the Nigerian company’s plant to render short term technical services locally for a maximum period of 6 months. The agreement must contain detailed information of the experts. This agreement is usually for technical services such as installation and commissioning of new plants, supply of equipment and machinery, operation, repairs and maintenance of equipment.

d. Technical Know-How Agreement

This agreement involves the granting of a license, the provision of technical know-how, information on manufacturing processes, drawings, diagrams, operating manuals, expertise, engineering assistance, designs, standard and quality control of products, advice on necessary equipment, plant, machinery and manufacturing capability, etc.

e. Trademark License Agreement

This agreement deals with the grant of exclusive or nonexclusive right by a foreign trademark owner or licensor to a Nigerian company to use the mark to manufacture and sell its goods and services. A Trademark License Agreement must be accompanied by technical know-how by the licensor to ensure that the goods and services for which the trademark is to be used meets the specified standard. Again, the agreement must satisfy the following conditions to be registrable in Nigeria;

  • i. The trademark must be internationally recognized and accompanied by a licensed know-how;
  • ii. The goods involved must be manufactured locally;
  • iii. The products must be for export;
  • iv. The licensor must not own more than 75% of the company’s share capital.

f. Franchise Agreement

This agreement is a business model or arrangement where the Franchisor grants the right to exploit a system developed by the Franchisor to a Franchisee. It is generally a total package including the intellectual property rights to carry out the business or provide and sell the associated goods or services.

The agreement includes the right to use the trademarks, trade secrets, trade names or logos and designs associated with the business, patents and know-how of the business and any other relevant information contained in a brochure which may be advertising or copyright related to the manufacture, sales of goods or the provision and marketing or services to customers.

The agreement covers different areas of human and economic endeavor such as manufacture of products, provisions of services, supply of manufacturing processes, distribution and sales of goods, provision and marketing of services etc.

g. Software License Agreement

This agreement involves the use of application packages to drive the operation of companies in various sectors of the economy such as banking and other financial institutions, pension, telecommunication companies etc. A Software License Agreement may incorporate the provision of Annual Technical Support or Maintenance Services. Payment for Software License is effected once, while payment for an Annual Technical Support is on a yearly basis and commences 1 year after the implementation of the Software License Agreement.

h. Research and Development Agreement

This agreement focuses on the following;

  • i. Grant of access to the patent, inventions and results or research and development activities carried out by the transferor in respect of the specified products;
  • (ii) Advice on engineering products design and product development services;
  • (iii) Advice on international research and development works carried out on the specified products including new or modified methods of manufacture, formulation product and process improvements;
  • v. Provision of specialist staff to assist the licensee company overcome its technical problem as they arise;
  • vi. Making available the licensor’s specialist departments and the specialist department of any of its subsidiary or associated companies for the licensee’s use when required.

Trademark Registration Process in Nigeria

1. Trademark Search

Trademark search is conducted with the name of the trademark and its logo. The search report shall disclose marks which are close to the proposed mark and its class. This will make the trademark agent ascertain whether the mark will be accepted for publication or not.

Trademark search takes a period of 24-72 hours (1-3 business days).

2. Application Process

The application process is commenced by Form 1 (authorization of agent) in form of a simple Power of Attorney; and Form 2 (details of the applicant) which includes the name and address of the company who owns the mark. Classification of goods and services for trademark registration are as stipulated in the Nice Agreement.

A trademark must contain or consist of at least 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 geographical name or a surname; or any other distinctive mark.

Registration of trademark in Nigeria is effected at the Trademark, Patents and Designs Registry, Commercial Law Department, Federal Ministry of Industry, Trade and Investment, Area 1, Garki, Abuja-Federal Capital Territory (“the Trademark Registry”).

The duration for registration of marks in Nigeria is usually a period of 3-4 calendar months.

3. Notices from the Trademark Registry

After filing, the Trademark Registry would issue an Acknowledgment Letter, acknowledging receipt of the mark and soon after an Acceptance Letter which indicates that the mark has been accepted for publication. The mark would be published in the Trademark Journal which is published quarterly and a Trademark Certificate issued.

4. Response to Official Refusal

If a mark is submitted for registration and the Trademark Registry finds that it infringes another mark or it is not distinct, the Registry will issue a Notice of Refusal instead of an Acceptance Letter. The Agent or Attorney of the applicant shall appeal to the Trademark Registrar stating cogent reasons why the mark should be registered and published. The Examiner will examine the appeal and if convinced with the Agent’s or Attorney’s reasons, the mark will be accepted for publication (“the Examiner’s proceedings”). If the Examiner is not convinced with the reasons, a Notice of Refusal will be reissued and the applicant will have to change the mark.

Where a mark has been published, an Attorney of the owner of the mark may by a Declaration before a Trademark Tribunal, state that a published mark infringes an existing mark of the owner. The Attorney of the owner of the published mark which is alleged to have infringed an existing mark shall file a Counter Statement and Exhibits disputing facts stated in the Declaration. The Trademark Tribunal will fix a date for oral hearing before making a decision (“the Trademark Tribunal proceedings”).

Both the Examiner’s proceedings and the Trademark Tribunal proceedings take a period of 3 calendar months respectively.

5. Renewal

Trademark registration in Nigeria is renewed after a period of 7 years.

Trademark is renewed by filing Form 12 showing the name of the applicant, the mark and its class as well as the Trademark Certificate number.

The renewal process takes a period of 1-2 calendar months.