A Review of Digital Rights Lawyers Initiative V Unity Bank on Approaching the Administrative Redress Panel as a Condition Precedent to an Action Under the Nigeria Data Protection Regulation

Description

ABSTRACT

A Review of Digital Rights Lawyers Initiative V Unity Bank on Approaching the Administrative Redress Panel as a Condition Precedent to an Action Under the Nigeria Data Protection Regulation

Felix Emmanuel*

On 9 December 2020, the Federal High Court, per Watila J, (“Court”) delivered judgment in Incorporated Trustees of Digital Rights Lawyers Initiative v Unity Bank Plc1 (the “Case”). The Court held inter alia that the failure of the Applicant to approach the Administrative Redress Panel (“ARP”) before instituting the action to enforce the rights of data subjects under the Nigeria Data Protection Regulation (“NDPR”), divested the Court of jurisdiction. In essence, the Court held that Article 4.2 of the NDPR creates a condition precedent to the institution of actions for enforcement of data subjects’ rights under the NDPR. In this article, we examine the case and conclude that (i) the decision is contrary to the clear wordings of Article 4.2 of the NDPR, (ii) the decision is contrary to the express provisions of Paragraph 11.2 of the NDPR Implementation Framework, and useful guidance from Paragraph 8.0 of the National Information Technology Development Agency (“NITDA”) Guidelines for the Management of Personal Data by Public Institutions in Nigeria, 2020 (“Guidelines”), and (iii) the decision enforced resort to the ARP which is yet to be established. We also compare the ARP with Supervisory Authorities under the European General Data Protection Regulation (GDPR), which the NDPR mirrors in several regards, to show that approaching the ARP could not have been intended to be a condition precedent to filing an action in court.

Keywords: Administrative Redress Panel, condition precedent, data subject rights, and Nigeria Data Protection Regulation.

INTRODUCTION
The focus of this article is the Court’s interpretation of the provision of Article 4.2 of the NDPR, which provides that ‘Without prejudice to the right of a Data Subject to seek redress in a court of competent jurisdiction, the Agency shall set up an Administrative Redress Panel under the following terms of reference…’ The Court interpreted this provision to mean before an action is instituted to enforce a right under the NDPR, the data subject must first approach the ARP for redress. The Court then concluded that the Applicant’s failure to comply with this condition precedent, divested the Court of jurisdiction to entertain the matter.

*LL. B, BL. Associate, Olaniwun Ajayi LP. The views expressed in this article are the personal views of the author. They do not represent the views of Olaniwun Ajayi LP.

1. Unreported decision of the Federal High Court, Abeokuta Judicial Division, per Hon. Justice Ibrahim Watila, delivered on 9 December 2020 in Suit No. FHC/AB/CS/85/2020.

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW Vol.13 No.4