Introduction

Company X is a leading Engineering,
Procurement and Construction Company, headquartered in Ikoyi, Lagos. The firm
is recruiting for Graduate Trainees – with preference for

·       
Minimum of a 2.1 degree in any course from an accredited University.

·       
Applicants must have concluded NYSC, and must have discharge certificate
in hand.

·       
Applicant’s Date of Birth, Gender and Class of degree must be clearly
stated

·       
Minimum of 5 credits (Mathematics and English inclusive) in GCE, NECO or
its equivalent in one sitting.

·       
Applicants should not be more than 25 years of age as at January 6,
2017.

With the internet, job sites,
newspapers/magazines and wall posters awash with discriminatory job adverts
from companies like the above – the fate of the Nigerian graduate seems bleak. The
reality is starker – the rate of unemployed people
increased from
13.6 million to 18.0 million in the 3^rd quarter of 2017 –  and there is a general consensus that discriminatory job adverts makes
graduates unemployable.  On the flipside
– recruitment policies of companies like Company X is justified with a cliched
rhetoric – that “organizations should be free to pursue recruitment policies
which aligns with its visions and goals”.

The purpose of this article is
therefore to contribute to agitations for the enactment of an anti-discrimination
directive – which prevents organizations from imposing discriminatory
conditions in its job adverts and employment offers. It first sets out the
relevant laws on employment in Nigeria and international treaties on same. It
further highlights best practices from abroad and lessons which could be drawn from
these. The resulting effect is to find – that a dynamic and vibrant economy
must be predicated on nurturing talents that are competent, passionate and
skilled irrespective of age, gender or academic achievements.

Nigerian Law – enhancing
discrimination?

Employment law in Nigeria can be said
to be generally employer friendly. The reason for this is not far-fetched. It
has become a norm for employers to impose discriminatory conditions on job
applicants. The extant law on Labour and Employment in Nigeria – namely, the Labour Act of 2004; the Trade Union
Amended Act 2005; the Employees
Compensation Act 2010; the Factories
Act 2004; the Pensions
Reform Act 2004; and the Trade Disputes Act 2004 – provides little or no
discrimination protection for job applicants – and indeed employees.

The enforcement of these Statutes and
regulations falls under the auspices of the National Industrial Court of Nigeria (NICN) and with regard to
discrimination claims, there are no laws that specifically prohibit
discrimination in the employment context. The only protection against discriminatory
job requirements is provided in section 42 of the Nigerian Constitution – which
provides for freedom from discrimination on the basis of sex, age, ethnic
group, and political affiliation – and the National Employment Policy (NEP), published by the  Ministry
of Labor and Employment.
In its objective, the NEP purports that

Objective
1: To promote equality of opportunity and treatment in access to employment

1.1
Job advertisement shall reflect the job description and the selection criteria
shall principally be related to qualifications, skills, knowledge and
experience.

1.2
Job advertisements shall not state any requirement related to sex, age,
ethnicity, religion or other personal attributes except where such attribute
are inherent requirements for the job.

Quite interestingly, the implementation
of these are not far-reaching for obvious reasons – they are not extant laws
relating specifically to discrimination of job adverts. The International
Labour Organization’s Discrimination (Employment and
Occupation) 1958 (ILO Convention no. 111), to which Nigerian is a party – and
which requires states to enable legislation which prohibits all discrimination
and exclusion on any basis including of race or color, sex, religion, and political
opinions ­– is eo ipso rendered
non-effective.

Any Justification?

There are several reasons companies and
government parastatals impose restrictions. From saving recruitment cost, to
streamlining number of applicants, to catching them younger, to meeting
specific job gender demands – the list is inconclusive.

While these may be legitimate concerns
– the Nigerian reality and global modern business practice renders them
unjustifiable. With regards to the former, years of taking JAMB, incessant
strikes by ASUU and higher institutions, and the fragmented curriculum makes it
highly unlikely that a typical Nigerian graduate can meet the age and
experience requirements. With the latter, the right to secure employment
without any form of discrimination is now a universal right – protected and
pursued in many developed societies – and quite rightly so, it aids the fight
against unemployment and fosters economic productivity.

Lessons from Abroad

Nigeria is not the only country
inundated with recruitment discriminations – but more developed societies
provide safeguards to ameliorate its effect. Firstly, in the US, under the laws
enforced by Equal Employment Opportunity
Commission
(EEOC), it is illegal to discriminate against someone because of the person’s
race, color, religion, sex, and most importantly “age”. The Age Discrimination Employment Act (ADEA) enforces this and protects
applicants/employees 40yrs and above from being discriminated against on the
basis of age in hiring, promotion, discharge or compensation. If an employer is
found in violation of these employment laws, he can be sued and fined.

Furthermore, under the U.K Equality Act 2010, there are express stipulations which prohibits
discrimination, on the grounds of sex, marital status, age and any other term
of employment. If it is not carefully worded and targeted, a job
advert may be discriminating; with Ryanair for instance successfully sued for age discrimination when it used
the words ‘young and dynamic’ in a job advertisement. To enforce these
provisions, the UK Employment Tribunal was
established and ipso facto has the
power to make awards to compensate victims of discrimination for the ‘injury to
feelings’ and any ‘injury to health’ they have suffered.

Way Forward

The first recommendation is for the
promulgation of a directive/law specifically against discriminatory recruitment
practices across all level. Such directives and laws should be accompanied with
guides, modelling the UK Commission for Employment and
Skills’ Guides (UKCES) one of which is designed to encourage
employers to
prepare young people in education for the world of work. The guide provides for mandatory work experience
for all 16-19yrs old by introducing traineeship (bridging education and
employment). The onus will a fortiori be
on employers – “if you want experience, give them one”.

Secondly, remedies should be included
when fashioning out such directives/law; so that applicants can seek redress in
the NICN as it applies in the UK. A new employment taskforce could be
inaugurated to enforce these laws, with the NICN having jurisdiction over the
cases. The utility of this is not far-fetched. Job
advertisements will be targeted to a wide audience to ensure diversity of
applicants. Also, employers will have to clearly identify the skills and
competencies required to fulfil the role, and only these should form the basis
of the advert.

If anything, the President was elected
on the basis of competence and zeal for change, as against those that termed
him too old and unhealthy.

Akorede Omotay and Tomiwa Babatunde

Akorede
Samuel Omotayo is a First Class LLB graduate of Bangor University, UK and a candidate
of the Freshfields Stephen Lawrence Scholarship Scheme. He also holds a BA
(Hons) in Philosophy, Ekiti State University, and is presently preparing for
his Bar I due to start June 2018.

Image Credits – www.themuse.com 

A debt may simply be recovered by the
borrower paying back the loan. In most cases however, this is hardly the case
as the debtor may dispute a portion/entire debt or may be tardy in liquidating
his indebtedness. In such situations, an average Nigerian creditor (justifiably
frustrated) will likely procure the services of the Nigerian Police Force. In
some trivial cases, they might deploy the Nigerian troops to the recover the
sum.

Besides the obvious unconstitutionality of
the use of the Police and or the Military to resolve purely contractual
disputes, it is often messy and a downright waste of tax payers’ funds.

In the event a creditor decides to be civil
in recovering his money from a debtor, the legal regime provides for some
mechanisms to assist him in doing so. Some of which are:

·        
Claim at the Magistrate Court

A party who decides to initiate an action in
a Magistrate Court in Lagos State must comply with Order 2 Rule 1 & 2 of
the Magistrates Court Rules 2009. An action can be brought primarily where the
defendant or one of the defendants resides or carries on business in Lagos or
where the cause of action arose wholly or partly in Lagos.

What to claim before the Court:

1.     Ordinary Debt Cases: The particulars of
the claim should show dates of all items, goods or other debts, and also cash
received or credits.

2.     Unliquidated damages: In claims for
unliquidated damages, the plaintiff can state that he limits his claim to a
certain sum, which will then in general be deemed to be the amount claimed,
certainly in respect of the court fee to be paid or in relation to any award of
costs against an unsuccessful plaintiff.

3.     Moneylender’s Action: In money lender’s
action, the particulars of claim must show that the plaintiff was at the date
of the loan, a duly licensed money lender and also state the particulars of the
loan.

4.     Hire Purchase Claims: In action for
recovery of goods let under Hire-Purchase agreements the particulars of claim
must state: The date of the agreement and the parties thereto; the goods
claimed; the amount of the hire-purchase price; the amount paid by or on behalf
of the hirer; the amount of the unpaid balance of the hire-purchase price; the
date when the right to demand delivery of the goods accrued; the amount if any
claimed as an alternative to the delivery of the goods; and the amount claimed
in addition to delivery of the goods or the alternative money claim, stating
which.

5.     In Possession Cases: The Plaintiff
can join a claim for mesne profit, arrears of rent, damages for breach of
covenant, or payment of the principal money or interest secured by a mortgage
or charge. A full description of the property in question, together with a
statement of the net annual rate-able value (or if not having a separate
rate-able value, the rent (if any) and the grounds on which possession is
claimed, must be included in the particulars).

6.     Claims against the
State:
In proceedings against the State, the particulars of claim must contain
information as to the circumstances in which it is alleged the liability of the
state has arisen and as to the government departments and officers of the State
concerned.

7.     Claims on Mortgages: Claims by a mortgagor
to recover moneys secured by his mortgage or charge (whether principal or
interest), must show the following particulars:

a)      The
date of the mortgage or charge;

b)     The
amount of principal money lent;

c)      The
amount still due with interest.

A plaintiff may apply for a default summons
where his claim is for the recovery of a debt or liquidated money demand and he
believes that the defendant has no defence to his claim.

·        
Claim at the High Court

The most common way to recover a debt at the
high court is by taking out a writ of summons. A writ of summons is a formal
document issued by a court stating concisely the nature of the claim of a
plaintiff against a defendant, the relief or remedy claimed and commanding the
defendant to “cause an appearance to be entered” for him in an action at the
suit of the plaintiff within a specific period of time, usually forty two days
(Lagos), after the service of the writ on him, with a warning that, in default
of his causing an appearance to be entered as commanded, the plaintiff may
proceed therein and judgment may be given in defendant’s absence.

·        
Summary Judgment/Undefended List Procedure

A summary judgment is one given in favour of
the plaintiff or claimant summarily, without going through a full trial or
plenary trial of the action. That is, it is the fastest method by which a
plaintiff or claimant can obtain judgment where there is plainly no defence to
the claim. Thus, the normal steps of filing all necessary pleadings, hearing
evidence of witness and addresses by counsels before the court’s judgment are
not followed.

Such judgment is based on the writ of
summons, the statement of claim and, sometimes, statement of defence. The main
reason for summary judgment is to save time and cost of lengthy and expensive
trial where the defendant obviously has no defence to the action.

·        
Winding up Proceedings

Where a company is the debtor, it may be
wound-up by an order of the court. The court with the exclusive power is the
Federal High Court whose jurisdiction covers the area where the registered
office or head office of the company is located – section 407(1) of Companies
and Allied Matters Act 1990. Section 408 (d) of the Companies and Allied
Matters Act provides that a creditor may commence winding up proceedings
against a company if it is unable to pay its debts. Section 409 Act
provides that a company shall be deemed to be unable to pay its debts if it is
indebted to a creditor in a sum exceeding N2, 000 (about $ 8) and same remain
unpaid after 3 weeks of service of a statutory letter of demand delivered at
the registered place of business of the company.

Bankruptcy Proceedings

Blacks Law Dictionary, 8th Edition, Thomson
West, USA p. 156, defines Bankruptcy as ‘’A statutory procedure by which a
(usu. Insolvent) debtor obtains financial relief and undergoes a judicially
supervised reorganisation of liquidation of the debtor’s assets for the benefit
of creditors’ In commencing bankruptcy proceedings, the requirements of the
Bankruptcy Act must be strictly observed, failing which, the petition may be
struck out. The conditions stated in section 4 of the Act are cumulative and
must be complied with.

Please note that the conditions, by
themselves, are incapable of grounding a bankruptcy proceeding unless the
debtor commits any of the acts of bankruptcy provided for under Section 1 of
the Bankruptcy Act.

·        
Ways to enforce the Judgment of the Court

There are several ways of enforcing different
types of judgments like money judgments, land judgments, and other judgments.
Please find a summary below:

1.      A
judgment for payment of money may be enforced by writ of fiery facias, garnishee
proceedings, a charging order, a writ of sequestration or an order of committal
on a judgment debtor summons.

2.      A
judgment for possession of land may be enforced by a writ of possession, a writ
of sequestration or a committal order.

3.      A
judgment for delivery of goods may be enforced by a writ of specific delivery
or restitution of the goods or their value, a writ of sequestration, or an
order of committal.

4.      A
judgment ordering or restraining the doing of an act may be enforced by an
order of committal or a writ of sequestration against the property of the
disobedient person.

5.      After
the judgment or order has been made, the judgment creditor will apply to the
Registrar of the Court which made the judgment or order for an appropriate
process of execution to be issued.

 Conclusion

As can be seen above, the Nigerian legal
system has a number of ways to recover a debt. Whether or not some of them are
veritable means to procure the repayment of the debt will entirely depend on
the nature of the debt and the strategy of the legal practitioner briefed to
recover the same. So before you think of engaging the services of law
enforcement agents or recovery the same via self help, it is advisable to seek
legal advice towards knowing the best option available to you.

Please feel free to contact the author if you
require further clarification on any of the debt recovery methods open to you.

Emmanuel Ohiri

Head Of Business Development at Stark Legal

Source: Linkedin

Members present include; Chief Orok IronBar, Imo Inyang, Efifiom Ekong, Chief Ogar Ndoma Egodo, Robin Umium, Richard Opeche, Nkoyo Ama, Leo Muffy, Etim Inyang, Idaka Imoke, Henry Ntuen,Dr. Otuekong Ukut and Aguda Ememmobong Udoh, the Secretary to NBA Uyo Branch  

Nearly 37 years after, Paul Usoro SAN is back in Ile-Ife again, as a guest speaker at the Law Week of the NBA, Ile-Ife Branch.

The event which is holding today, Thursday, 15th of February 2018 will be held at the OAU Conference Centre, Ile-Ife.

Interestingly the Learned Silk studied Law at the Obafemi Awolowo University (previously known as the University, Ile-Ife), Osun State, Nigeria. He obtained his Bachelor of Laws degree (with Honors) in 1981.

As a student of the University of Ife, Paul stood out with principled qualities as the President of the prestigious Law student’s society.

A young Paul Usoro as the leader of the Law society was very active displaying a fearless and pro-active front that indeed was unique to his being. He went on to set up his own firm in 1985 which has grown from strength to strength becoming one of Nigeria’s leading Law firms under his leadership.

He has never hidden his affection for OAU, and we look forward to his message at the event later on today.

The Law week of the Nigerian Bar Association Ile-Ife began today at the Obafemi Awolowo University Conference Center, Ile Ife,Osun State.

OAU Alumna Paul Usoro SAN was invited as a guest speaker at the event, he spoke on the theme of the Law Week – Integrity of the Bar and Bench as a Panacea of Socio-economic Development in Nigeria.

Speaking at the event, Paul Usoro SAN stated some human and institutional factors that denigrate the integrity of the Bar.

Paul Usoro SAN spoke on the Lack of Integrity of the Bar & Bench stated the following-

According to him, the human factors include personal integrity and indiscipline of Bar men especially as it relates to the way they practice while the Institutional factors include judiciary’s financial dependence on the executive, government’s undue interference and subversion of the rule of law, weak regulatory framework, poor educational system and poor remuneration of judicial officers.

He listed some consequences the lack of Integrity of the Bar & Bench can cause, such as delayed justice, civil unrest and disturbances; subversion of the cause of justice by the government (the recent arrest of judicial officers) loss of confidence in the judiciary/the justice administration system and capital flight as investors prefer climes where they are likely to face less challenges.

According to him all of these problems may not necessarily be the fault of those administering justice as they are institutional.

He gave insightful thoughts aimed at addressing the Integrity Deficit in the System.

1. Bar men must endeavor to keep their personal integrity intact. For instance, stating the truth in affidavits filed in Court and refrain from applying for adjournments on basis of facts that are not true.

2. Continuing Legal Education. Lawyers must keep updating themselves so as so be equipped with sound knowledge of their profession. It is an integrity issue where a lawyer fails to make quality submissions to the Court for whatever reason. 

3. The Nigerian Bar as the grand promoter of the rule of law needs to raise its voice when the course of justice is being subverted in line with its motto.

4. Revamping of existing frameworks which includes (I) procedure for the appointment of judicial officers. Judicial officers are as good as the procedures that bring them in. (ii) Procedure for admission of lawyers to the Bar. We need to bar those who should have no business with the Bar.

5. The NBA will be able to lead the charge by electing competent people who can protect the integrity of the Bar.

The event was graced with the presence of notable dignitaries. Prof. S. B Odunsi was the moderator with Prof. Amos Idowu, amongst others as discussants. Other special guests include the Executive Governor of Osun State, Ogbeni Rauf Aregbosola, Governor Rotimi Akeredolu SAN, Senator Babatunde Owoworare, Senator Iyiola Omisore, Jimoh Ibrahim & his Imperial majesty, Oba Adeyeye Babatunde Enitan Ogunwusi Ojaja 11,the Ooni of Ife who attended the event as the Royal Father of the day.

Dear LNB Reader, 

A trade secret is information, including a formula, pattern, compilation, program, device, method, technique or process, that derives its economic value from not being generally known to the public and is protected by reasonable efforts  to maintain its secrecy. 

Information such as customer lists, process methods or other formulas that you’ve developed, they can be protected as trade secrets as long as you use reasonable efforts to keep them secret. This could include storing the information in a password protected place, only disclosing the information on a need-to-know basis and making sure the information isn’t posted in a public place.

Learn & Share 

#LNBlegaltips

@Legalnaija 

Between Voluntary Resignation and Termination of Employment

One of the easiest ways out of any confusion created by an irreconcilable difference in the course of an employment relationship is a voluntary resignation by the affected worker. Unfortunately, lack of knowledge of employee’s rights and employer’s powers has resulted in several litigious employment disputes that could have been avoided with minimal costs to both parties. It all depends on making the right decision with less stress or none at all.

Employer’s pressure, following a request or advice to a worker to resign, is a prominent element in the facts of most judicial decisions reviewed on the questions of voluntary resignation by an employee. I have addressed below, in a question and answer manner, some of the legal issues associated with a letter of termination and voluntary resignation, whether or not the resignation is based on the employer’s advice to resign:

 1.    What is the difference between a termination letter and an employer’s advice to resign?

A termination letter of employment is simply a document by which an employment relationship is determined. It is a letter which disengages an employee from any further obligations except those which he is required by agreement to fulfill before exiting the employment. However, an employer’s advice to resign is merely a verbal or written request by an employer urging an employee to voluntarily quit his job rather than a termination of the employment by the employer. An employer’s advice to a worker to resign is simply a management strategy to ensure that the company’s record does not reflect that the worker’s employment was terminated by the company (even though the worker was urged or pressured to resign).

 It is difficult to outline what will amount to undue pressure from an employer to warrant the inference of a wrongful termination of employment. It is advised that the facts of each circumstance ought to be carefully reviewed by an employment lawyer in order to advise on the best way out of any irreconcilable difference between an employer and employee. Sometimes, an employer’s advice or request for a worker’s resignation may be a kind gesture towards the employee whereas at other times, it may be inappropriate and actionable! The National Industrial Court held that an employer’s advice or request to an employee to resign has no legal effect whatsoever and, as such, can be disregarded by a worker. In a case decided on 25th September 2014 by Honourable Justice O. A. Obaseki-Osaghale of the Calabar Division of the Court, the claims of an aggrieved employee against his employer were granted in large part when the court held that the claimant’s employment had not been terminated by a memo issued by the company’s management advising the claimant to resign.

 2.    Is an employee bound to resign when the employer requests for his or her resignation?

A worker is not bound to resign on the advice or request of his or her employer. A worker is at liberty to refuse to resign, even if he is threatened by his employer to do so, especially if there are no justifiable reasons for which the employer can immediately (and lawfully) terminate the employment. In other words, if a worker is not culpable for any misconduct or poor/non-performance, he or she can disregard the employer’s advice or request for resignation.

 It would appear to be a common practice for a company to request a worker to resign in order to avoid being fired! The question, however, is how far can the company go in legitimately requesting or pressuring a worker to tender resignation without violating international best labour practice? In my view, it is a wrong decision for an employer to request or advice an employee in writing (including a report of investigation) to tender resignation unless the employee is found wanting for misconduct or poor/non-performance. This is because the court may presume that a worker’s service has been wrongfully terminated if, after his refusal to tender resignation on the written advice or request of the employer, a notice of termination is issued to such a worker.

 It is useful to mention that a worker should regard an employer’s advice to resign as a good gesture or favour if, after a considered review of the circumstances, there are, indeed, justifiable grounds for immediately terminating the employment by the company.

3.    What are the required contents of a letter of termination or resignation?

A letter of termination or resignation is required to satisfy certain conditions. These conditions are not provided in any law but are drawn from my review of some judicial decisions of superior courts in Nigeria in which letters of termination and resignation were in contention between employers and their respective employees.

 The following conditions are to be satisfied:

i. Date of the Letter: A letter of termination or resignation must be dated. Without being dated, a document is worthless as a letter of resignation or termination. The date is necessary to compute the period of notice as agreed in the employment contract.

ii. Addressed to a Specified Party: A letter of termination must be addressed to an individual employee and not to a group of employees; otherwise, this will give rise to a different legal implication. For instance, where a letter of termination is addressed to a group of employees, it may give rise to an inference that the employees have been disengaged in a manner that will entitle them to redundancy benefits. A letter of resignation, however, may not be invalidated merely because it is not addressed to a specific authority in the company, it is sufficient if it is addressed to the company or any official in the management.

iii. Clear Wording of the Termination Phrase: A letter of termination must clearly state that the employee’s services are no longer required by the employer or that his/her employment is terminated effective from a specified date. Equally, a resignation letter must state clearly that the employee wishes to bring the working relationship to an end by using any of these or similar expressions; “I hereby resign from my employment as director/manager/accountant/Head, Human Resources etc. of the company” or “Please accept my resignation as director/manager/accountant/Head, Human Resources etc. of the company”.

iv. Reason for Termination: According to recent judicial decisions, every letter of termination of employment must state a good reason for terminating the service of a worker. Liability may arise to the employer if the termination letter does not state any ground (and of course, a good ground) for the termination.

v.  Notice Period or Salary in lieu of Notice: A letter of termination or resignation must state whether a notice period is given to the addressed party or that the party issuing the letter will pay/has paid the salary payable in lieu of the notice period, depending on the employment agreement. Where the party issuing the notice intends to pay a salary in lieu of notice, the letter of termination or resignation may state the amount payable or simply enclose a banker’s cheque in the said sum. The payment should not be delayed. Where a notice period is given, the employee is expected to resume work as usual unless the employer prefers to pay the worker off and dispense with his or her service for the notice period. It is, however, unclear and, therefore, arguable whether, in the course of a notice period, a worker may decide to convert his service for the reminder of the notice period to payment of salary in lieu of notice. Where an employee accepts payment after termination of employment, he cannot complain later of unlawful termination of employment.

vi.             Date of Disengagement: A letter of termination or resignation must state when the worker will stop work or whether he is required to leave the employment immediately. If the worker is required to leave the employment immediately, his salary in lieu of notice and other benefits, in appropriate circumstance, should be paid immediately as well. Even though the Court of Appeal’s case of WAEC v. Oshionebo [2006] 12 NWLR (pt. 994) 258 has been interpreted by the National Industrial Court to imply that the tendering of resignation by an employee carries with it the “right” to leave the service automatically without any benefit, it is my view, however, that a thorough review of an employment contract is sacrosanct in determining if the employee will be entitled to any terminal benefits at the time of voluntary resignation. Please note that the parties may enter into a new agreement on how to satisfy, at a future date, any outstanding obligations under the employment contract which the parties cannot fulfil at the time of resignation or termination of the employment.

vii.            Authorized Signature: Except where delegation of authority is otherwise permitted, a letter of termination must be signed by the authorized staff of the employer in accordance with the employment contract. Please note that the authorized staff of the employer is the official who signed the employment contract on behalf of the company or the staff who has the power to terminate the employment. If there is any question as to whether the staff who signs a letter of termination has a delegated authority to do so, the answer will depend on the facts of each case, the employment contract, internal structure of a company and the court’s evaluation of evidence.

viii.          Evidence of Delivery: A letter of termination or resignation must be delivered to the addressed party in the manner agreed in the employment contract or any other manner which may justify reasonable notice. It is acceptable to forward a letter of resignation or termination under the cover of an email to the official email of the addressed party provided that nothing is done to prevent its receipt. In such case, both the letter and the cover email must be tendered in any litigation regarding the employment.

ix.             Evidence of Receipt: A letter of termination or resignation must be received by the addressed party. The addressed party has no right or discretion to reject the letter.  A letter of resignation or termination takes effect from the date on which the letter is received by the addressed party. Proof of receipt is important in order to answer any question on whether an employment relationship has been brought to an end either by termination or resignation.  

4.    What are the Remedies for terminating an employment by a defective or no letter of termination

Whenever an employee’s engagement is brought to an end by a defective letter of termination or resignation or no letter at all, damages is the only available remedy to the aggrieved party. The employee cannot be reinstated to the employment as the Court does not force a willing servant on an unwilling master and vice versa. In the case referred to under No. 1 above, the employer, by a memo dated 17th December 2009, advised the claimant to resign but he refused to resign and, instead, brought an action against the company three (3) years after (on 18th December 2012). After holding that the claimant was right to have disregarded the employer’s memo advising him to resign, the court held that the worker remained in the company’s employment and therefore entitled to salaries for the period from June 2009 till judgement date, 25th September 2014, and thereafter until his employment was properly terminated by the employer!

Kayode Omosehin, Esq

Associate at Udo Udoma & Belo-Osagie   

Source: LinkedIn             

Trademarks, trade secrets and patents are different forms of intellectual property that are capable of being protected in Nigeria. However, non-professionals tend to find a few of these terms a bit confusing. A client may walk up to his attorney with an invention in his hand and say “I want to trademark this product”. Well, it is important to note that inventions are not capable of being protected as trademarks. This leads to several questions such as “what then can you trademark”? “What is a patent”? “Can trade secrets be protected and are they registrable”?

I will proceed to briefly consider these concepts as this may aid one in understanding their differences. The first concept I will consider in this article will be trademarks.

Trademarks

The Trade Marks Act 1965 of Nigeria defines a trademark as “a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark whether with our without any indication of the identity of the person, and means, in relation to the certification trade mark, a mark registered or deemed to have been registered under Section 43 of this Act[1]”.

It is my view that the above definition is rather convoluted and so we will adopt the definition given by the World Intellectual Property Organisation (WIPO) which defines a trademark as a sign, logo or word that is used to identify certain goods and services as those produced or provided by a specific person or organisation[2].

Based on the foregoing definitions, it is evident that the primary aim of a trademark is to protect a person’s goods and services. This will also prevent those who do not have the rights to a trademark from using a similar mark such that it is likely to deceive or cause confusion in the course of trade in relation to any goods in respect of which it is registered.

How do you identify a trademark?

A trademark can be a combination of colours or can be made up of single colours. It can be a word, a combination of words, numerals, drawings, abbreviations, drawings or shapes. Examples of familiar trademarks include BMW, Coca-Cola, 7Up, YSL, MTN, 7/11, the Apple logo, the Shell logo etc.

Regardless of whatever form or shape the trademark takes, it must be distinctive and must be capable of distinguishing the goods or services with which it is used. Thus a name that simply describes the nature of the goods and services that are offered may not constitute a valid trademark. For example, “detergent” cannot be trademarked. However, although a given trademark may not be distinctive from the outset, it may acquire distinctiveness through long and extensive use.

Trademarks have multiple purposes as it enables consumers distinguish different products or services. It also serves as a marketing tool and can help the owner of the mark enhance its brand and reputation.

Other than these obvious purposes, trademarks can be very valuable assets when they become well known. For example, the “Google” trademark is considered as one of the most valued trademark on the planet and is worth an estimated value of $44.3 billion. The “Microsoft” trademark is not far behind as it is valued at $42.8 billion[3]. Thus not only can holders of these trademarks licence them to third parties who may want to be identified with the mark but the owner of the mark can equally use it to secure a credit facility from financial institutions.

Protection of trademarks

It is advisable to register trademarks as they are territorial rights. This means that they must be registered in each country where the proprietor would want them to enjoy protection as except a trademark is protected in a particular country, it can be freely used by third parties.

Trademark protection is also usually limited to specific goods and services (unless the trademark in question is a well-known or famous trademark). This means that the same trademark can be used by different companies as long as it is used for dissimilar goods or services. The exception to this is where the mark is a well-known or famous trademark. An example of a well-known mark is “Coca-Cola”. I daresay it will be difficult or impossible for an applicant to successfully register a trademark for a pair of trainers and brand them with the “Coca-Cola” logo! This is due to the fact that it is a well-known mark and no Trademarks registry will be willing to register such a trademark.

By registering his trademark, the proprietor is given the exclusive rights to use the trademark to identify his goods or services and can also prevent third parties from using an identical trademark for similar goods or services.

How is a trademark registered?

An application to register trademark must be filed with the trademarks registry at the ministry of Trade and Investment. The application must contain a clear reproduction of the sign filed for registration, including any colours, forms, or three-dimensional features. The application must also contain a list of goods or services to which the sign would apply.

The sign must fulfill certain conditions in order to be protected as a trademark or another type of mark:- it must be distinctive, so that consumers can distinguish it as identifying a particular product, as well as from other trademarks identifying other products;

– it must not be deceptive or likely to mislead the consumers as to the nature or quality of the product;

– it should not be contrary to public order or morality;

– it should not be identical or confusingly similar to an existing trademark. 

This may be determined through search and examination by the national office, or by the opposition of third parties who claim similar or identical rights.

How long is a registered trademark protected for?

A trademark is registered for an initial period of seven (7) years but may be renewed from time to time for a period of fourteen (14) years[4].

[1] Section 1, Trade Marks Act 1965

[2] World Intellectual Property (WIPO), ‘DL 001 – Primer on Intellectual Property’ (2018)

[3]Forbes, the 10 most valuable trademarks (2018)

[4] Section 23 (1) of the Trademarks Act 

Davidson Oturu MCIArb

Partner at AELEX

Source: LinkedIn

A petition is a request to do something, most commonly addressed to a government official or public entity. 

Petitions could be a potent weapon in the hands of the citizenry and an effective tool for engaging with govt or demanding a position from government. Examples include petitions that sought the release of Nelson Mandela during his imprisonment by the apartheid government of South Africa. 

Other instances are online petitions used the organisations and persons to cause govt to act in a certain way. 

As a Nigerian, if you are unsatisfied with a position of government, you may start a petition that seeks to change the situation and the more people sign your petition, the more credibility it receives. 

You may also use a petition to call the attention of government to issues of importance to your community. For instance, a petition circulated in your community for repair of public infrastructure.

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