Towards A Lasting Solution For Nigeria. By Grace Kalu – TheNigerialawyer

“Jurisdiction is the blood that gives life to the survival
of an action in a court of law, and without jurisdiction, the
action will be like an animal drained of its blood. It will cease
to have life and any attempt to resuscitate it without infusing
blood into it will be an abortive exercise”- The Court in Utih
v. Onoyivwe (1991) 1 NWLR [Pt. 166] 166 SC

It is no doubt that Jurisdiction is the most crucial component
of a case in any court of law. If the court does not have
jurisdiction, the matter would not succeed in the court. A court
(whether Domestic or International) without jurisdiction does not
have any authority to entertain any matter, to decide rights and
duties or impose penalty or punishment.

Jurisdiction may be territorial or geographical. Territorial
jurisdiction is often invoked where the subject matter of a case
arose in a particular territory and also involves persons living or
carrying on business in that particular territory.

The cyberspace is the domain of a global technological
environment. It is a virtual environment which enhances
communication and relations over computer networks. With regards to
territorial jurisdiction, the cyberspace is at best a borderless
jurisdiction. In this present time, it is evident that numerous
transactions, disputes and crimes occur on the cyberspace. This has
raised the basic problems of jurisdiction in international laws and
domestic laws because of the de-territorial nature of the
cyberspace.

In the present internet world, the e-commerce ventures have
multiplied tremendously bringing forth cross-border internet
disputes. Ideally, companies that carry out operations in the
cyberspace should not be restricted by the traditional notions of
sovereign territories and boundaries. Now, should it be interpreted
to mean that if a company has an internet presence in every
country, then every country should have jurisdiction over the
company?

The question of which law is applicable to the borderless world
of cyberspace always arises before the Governments, Judiciaries and
Legislatures. In the normal trend, the authority of the
Sovereign power is limited in a sphere and termed as Jurisdiction
to enable it exercise its power within that sphere. The legislative
authority has power to exercise its rules according to the law of
the land to regulate the conduct of the masses. The Executive by
its enforcement jurisdiction has the power to implement the laws
within its territory. When a court claims to have jurisdiction over
a dispute, it is affirming the authority to adjudicate the issue at
hand.[1]

It is on record that the customary international law does not
allow evasion in a sovereign state by any other (foreign) entity.
In the celebrated Lotus case,[2] the permanent court of justice
held thus:

 “now the first and foremost restriction
imposed by international law upon a State is that – failing the
existence of a permissive rule to the contrary – it may not
exercise its power in any form in the territory of another State.
In this sense jurisdiction is certainly territorial; it cannot be
exercised by a State outside its territory… except by virtue of a
permissive rule derived from international custom or from a
convention”

Now, the most basic cause of multiple jurisdictions is the
capacity of the individual actor to commit crime against many
nations. There are thousands of examples of multi-jurisdictional
crimes. News published in The New York Times addresses the gravity
of the problem. According to The New York Times, published on May
9, 2013, the hackers distributed the information to individuals in
20 countries who then encoded the information on magnetic-stripe
cards. On December 21, 2013, the cashing crews made 4,500 A.T.M.
transactions worldwide, stealing $5 million.[3] According to USA
Today, after penetrating the processor’s computer network, the
hackers fraudulently manipulated the balances and withdrawal limits
on Rak bank prepaid debit card accounts. Then, teams of so-called
cashers allegedly launched carefully timed attacks that caused more
than $5 million in criminal losses from more than 4,500 ATMs in
about 20 countries.[4] In this ATM attack, people from at least 20
countries were involved. The question then would be: Which country
has the territorial jurisdiction to entertain this matter?

Similarly, in instances of online copyright infringement,
multiple jurisdictions can be targeted. A scenario of linking and
copyright infringement links to copyrighted material from different
jurisdictions can play out.

What then is the issue of territorial jurisdiction arising in
the cyberspace?

In most cases, the parties to an internet transaction usually
lay hold to claims that national law applies to some part of their
activities even when it is obvious that the cyberspace is a world
on its own. The problem of multiple and overlapping jurisdiction is
more prominent either because the national courts have applied the
favorable principles out of available principles of International
law or evolved new principle(s) to assume jurisdiction.

It is apparent that this is not an issue for Nigerian laws and
institutions alone to tackle. Therefore, the solution to this issue
would range from the availability of international treaties where
states would agree to be a party to the adequate set up of an
online dispute resolution mechanism so as to handle issues that
could be so handled online. Also, in this chaotic situation, there
is a need to establish a supra-national organization to deal with
problems posed by cyberspace. The legitimacy of any rules governing
online activities cannot be naturally traced to a geographically
situated state. Therefore, the cyberspace needs to be recognized as
a separate jurisdiction because an individual sovereign state may
not exert adequate control over it. Whichever way, the law must
also move with the technological tide and evolve to adequately
address the jurisdictional questions in the cyberspace.

**Grace Kalu is currently a student of the Nigerian Law School,
Lagos Campus. You can reach her on [email protected] or https://www.linkedin.com/in/grace-kalu-0b4196163^[1][2]

[1]https://www.lawteacher.net/free-law-essays/commercial-law/jurisdiction-in-the-cyberspace-commercial-law-essay.php#ftn2^[3]
accessed on 3/06/2019 at 8.18am

[2](France v. Turkey) (1927) P.C.I.J., Ser. A, No.
10

[3] available at- http://www.nytimes.com/2013/05/10/nyregion/eight-charged-in-45-million-global-cyber-bank-thefts.html^[4]
accessed on 3/06/2019 at 8.56am

[4]http://www.usatoday.com/story/tech/2013/05/09/hackers-atm-branch/2148069/^[5]
accessed on 3/06/2019 at 9.02am

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