I commiserate with the exco and members of FIDA Benue, members of the Benue State Ministry of Justice and members of NBA Makurdi Branch on the sad and regretful passing of Lady Christy Kumam Anagende.

Lady Christy was before her passing, the Solicitor General and Permanent Secretary, Ministry of Justice, Benue state and a life member and former chairperson Emeritus of FIDA Benue State Chapter. She died on 17/5/2020 after a protracted illness.

May the good Lord receive her soul and may she rest in perfect peace.

Caroline Ibharuneafe ,Mrs
Member, FIDA Lagos.
Past Vice Chairman
NBA Ikeja Branch
#integrity+accuracy

Recently, the
Presidential Advisory Committee Against Corruption  (“PACAC”) accused the Nigerian Supreme
Court of “reliance on technicalities rather than justice and public interest”
following its decision in the case of Ude Jones Udeogu v.
Federal Republic of Nigeria & 2 Others (SC622c/2019, delivered on May 8,
2020). In a release signed by its chairman, Professor Itse Sagay, SAN
(respected author of the ‘bible’ of Contract Law in Nigeria), PACAC said that
having reviewed the current state of the fight against corruption in the
country, it found that “these kinds of judgments pose a cog in the fight
against corruption especially because high profile individuals and politically
exposed persons already appear to be above the law”, see here and here.

This immediately calls to mind the common use by (Nigerian)
lawyers of the expressions “clog in the wheel of justice” or “cog in the wheel
of justice” or simply “cog” as the learned Senior Advocate of Nigeria has done,
to mean an “obstruction” or  “impediment”
to the administration of justice. It must be pointed out straightaway that the
expression “clog in the wheel” does not exist in the English Dictionary. The
expression is an unwitting Nigerian adjustment of “cog in the wheel”, which has
a totally different, arguably opposite meaning.

 

The idiom “cog in the wheel” or “cog”
means a person regarded as holding a minor but necessary position in an
organisation, or one whose contribution to an organisation is considered
insignificant but is actually important. The Free Dictionary defines it to mean
“someone or something that is functionally necessary but of small significance or importance within a larger operation or organization”, see here. Merriam-Webster
provides a more concise definition: “a subordinate but integral person or part”.
Also “cog in the machine”, the idiom alludes to the role of the
mechanical cog, one of the teeth on a wheel or
gear that, by engaging other teeth, transmits or receives motion. Used
figuratively since about 1930, it sometimes is put as “small cog in a large wheel”, emphasizing a person’s
lack of importance, see here.

 

Ironically, while “cog in the
wheel” or “cog” is commonly used by Nigerians to mean something which slows
down or obstructs progress, a cog or cog in the wheel actually
has the opposite effect, which is that it ensures or enhances progress,
although its contribution to the grand scheme of things may be considered relatively
minor. Situating this within the context of law practice and the administration
of justice, from the learned SAN’s standpoint, decisions which are borne out of
undue reliance on technicalities certainly aren’t cogs in the fight against
corruption.

A proper use of the expression
would be “court
clerks and bailiffs are cogs in the wheel of the Nigerian justice system”. While their contribution to the bigger picture is
arguably minor, the unavailability of a court clerk or a bailiff is sure to
cause some problems. Indeed, a wheel or machine with a missing or
dysfunctional cog may not work at all.

On March 1, 2020, in a publication titled “War
of words as Nigerian English recognised by Oxford English Dictionary” (see here and here), the BBC broke the
exciting news that some Nigerian words and expressions had, deservedly so,
found their way into the Oxford English Dictionary. Against this background, some
argue that Nigerians have evolved their own meaning of the idiom cog in the
wheel, as distinct from the original meaning. Interesting point. However, while
the ‘Nigerianisation’ (hopefully this too will be recognised by the
lexicographers someday) of a foreign word or expression is one thing, the incorrect
use of a known word or expression especially by legal practitioners is quite
another.

                                                                

This is perhaps an opportune time to comment on a
few other words and expressions commonly used incorrectly by Nigerian lawyers.

 

The use of “Of counsel” to simply
mean a lawyer, or a lawyer in a law firm

It is not uncommon to see a lawyer fully employed
in a law firm being referred to as “of counsel”:

 “Tunde Musa, male, Nigerian, of counsel in the
law firm of Tunde Musa & Co.” or simply “Tunde Musa of counsel”.

 “Of counsel” is actually a reference to a lawyer who participates on a
case by case basis in the activities of a law firm. A lawyer in an “of counsel”
position is not actively involved in the day-to-day work of a law firm but may
be available in particular matters or for consultation. The term may also
describe a semi-retired or retired partner who still keeps in touch with the
firm and typically provides high-level advice as a consultant, see here.

 Black’s Law Dictionary, 9^th Edition at
page 401 defines “of
counsel” as follows:

 “1. A
lawyer employed by a party in a case; especially one who – although not the
principal attorney of record – is employed to assist in the preparation or
management of the case or in its presentation on appeal. 2. A lawyer who is
affiliated with a law firm, though not as a member, partner or associate.”The above definitions suggest that lawyers who
simply work in a law firm as counsel without any special circumstances
surrounding their engagement cannot be correctly referred to as “of counsel”.

A recent example where the expression was correctly
used can be found here. It reads: 

“Myma Belo-Osagie recently retired as Senior Partner of the firm. She is
now Of Counsel with the firm, in which capacity she continues to lend her
expertise and wealth of experience to the firm…”

 

The use of “Vide” to mean “by”

Common examples include: “The suit was
commenced vide a writ of summons dated 12^th July 2008″ or
“You cannot institute divorce proceedings vide a writ of summons”.

Vide is rooted in the Latin word vidēre which means “to see” and
is used simply to refer a reader to an item, resource, document, book, passage,
etc. Black’s
Law Dictionary, Ninth Edition at page 1703 simply defines vide as
“See”. Vide ante or vide supra refers
to a previous passage in a text while vide post or vide infra
refers to a later passage.

Vide is therefore an incorrect word to use where a
lawyer simply means to say “by”. 

Examples of the proper use of the word are
“The suit was commenced on 25th July 2017, vide a copy of writ of
summons enclosed” or “An appeal is deemed to have been entered at the
Court of Appeal upon receipt of the Record of Proceedings at the Registry, vide
Order 4 Rule 10, Court of Appeal Rules 2016. 

 

 “Status quo
ante bellum” as the full form of “status quo” in all contexts. 

Nigerian lawyers have been observed to make
statements like “we urge Your Lordship to restore the status quo ante
bellum”, even where the change in the status quo was devoid of hostility
or violence or breakdown of law and order.

From experience, the phrase is commonly applied
generically without regard to the apparent nuances. Quite a few Nigerian
lawyers think that status quo is simply short for status quo ante
bellum. While, it may loosely be used as such, status quo ante bellum
has a slightly different meaning.

A few Nigerian decisions demonstrate the meaning
and proper context of the phrase, see Akapo v. Hakeem-Habeeb & Ors. (1992) 6 NWLR (Pt 247)
266, where Philip Nnaemeka-Agu,
J.S.C. stated as follows:  

“To begin with, the literal meaning of status quo
ante bellum is the state of affairs before the beginning of hostilities.
So, the status quo that ought to be maintained in this case is the state
of affairs that existed before the defendants’ forcible takeover of the
management and control of the family properties which constitutes the wrongful
act complained of in the application.”

 

See also the decision of the Court of Appeal in Olamoyegun
& Ors. Ebun & Ors. (2018) LPELR-46108 in which Chidi Nwaoma
Uwa, J.C.A. stated as follows:

 

“…it is a
harmless order to ensure that peace reigns and for the safety of lives and
property during the pendency of the substantive suit…The meaning and/or essence
of the Latin maxim status quo ante bellum is the state of affairs before
the beginning of hostilities. Therefore, the status quo that ought to be
maintained in this case is the state of affairs that existed before the
hostilities between the parties, which should be maintained until the
determination of the substantive matter.”

While status quo simply means “the situation
that currently exists” and status quo ante means “the situation that
existed before something else (being discussed) occurred” (vide Black’s
Law Dictionary (Ninth Edition) at page 1542), “ante” is Latin for
“before” while “bellum” is Latin for “war” (think belligerent,
belligerency), the phrase status quo ante bellum is therefore indicative
of the existence or threat of hostility and will not be applicable to
situations where hostility or violence did not occur or, is not envisaged.

“It is trite law”?

This is an expression commonly used to refer to a law
or legal principle that is common
knowledge or obvious. It therefore stands to reason that where a lawyer is
flying a whole new kite, that is, arguing a recondite point, advancing a fresh
argument from a brainwave, or seeking to test a new legislation, the expression
“it is trite law” should not be used. Obviously, the use of the word suggests
that the court would be likely to agree with the user since he only states what
is settled law. However, a fresh argument can stand a good chance of
succeeding, or the chance of ice in a furnace. Where there is an appreciable
chance that the court will disagree with the argument and decide the issue for
determination the other way, the use of the expression “trite law” is arguably
inapposite.  

It is also noteworthy that the word trite (from Latin tritus, past participle of terere which
means ‘to rub’) means (an idea) that has become dull, bland, worn out,
hackneyed or ineffective on account of overuse or repetition. Hence, it implies a lack of imagination or original thinking.
One should reasonably prefer that the meaning of the words and expressions used
one’s brief to be as far from the foregoing as possible.

In Richard Wydick’s Plain English for Lawyers, 5th ed
(2005), at 58, the author described the expression as one of those expressions
that lawyers (and wannabe lawyers) use to give their writing ‘a legal smell’,
but which mean little to a non-lawyer – and may, more dangerously, ‘give a
false sense of precision and sometimes obscure a dangerous gap in analysis’,
see here. The overuse of
the word by lawyers appears to have rendered it, trite.

 

Perhaps a better expression will be “it
is established law” or “it is settled law”.

 

We are all guilty!

The above
is hardly surprising. Law practice is a tradition and new entrants often (they
are actually expected to) prepare their court processes and other documents by
simply adapting those prepared by their seniors or principals, the result being
a passing down of some of these expressions ‘from generation to generation’.  

 

PLEASE NOTE:

 The above is simply a knowledge-sharing effort. No denigration
whatsoever, of person, clime or profession, is intended.  

Kelechukwu K. Okwujiako is a partner
at OkwujiakoLP, a law firm based in Lagos Nigeria. He can be reached at kkokwujiako@okwujiakolp.com

 

On behalf of my colleagues and I, our heartfelt condolence goes out to the family and friends of Kelechi Ohahuna.

Barrister Kelechi Ohahuna Esq. practised in Benin and passed away after a brief illness.

I pray May his gentle sould rest in peace and our thoughts go out to members of NBA Benin Branch and his family.

Caroline Ibharuneafe
Past Vice Chairman
NBA Ikeja Branch
#integrity+accuracy

I hereby extend my deepest condolences to members of NBA Ahoada Branch on the passing of Prince Enwerem who was also the Chairman of the NBA YLF Ahoada Branch.

Prince Enwerem would surely be missed by his family, friends and colleagues who held him in high regard for his gentlemanly and professional approach. His commitment and dedication towards the welfare of young lawyers was most welcome and I commiserate with his family.

I pray that God comfort all who knew him personally and may his soul rest in peace.

Caroline Ibharuneafe,Esq
Past Vice Chairman
NBA Ikeja Branch.
#integrity+accuracy

On behalf of my colleagues and I at Dele Adesina LP,  I commiserate with the Benue State Government, members of the Ministry of Justice, Benue State and members of NBA Makurdi Branch on the passing of Her Royal Highness Lady Christy Anagende on 17th May 2020.

Until her sad passing, Lady Christy Anagende, whose pleasant personality was a distinguished trademark was the Permanent Secretary and Solicitor General in the Benue State Ministry of Justice. Most definitely, she would be missed by her family and colleagues.

I share my heartfelt condolences with the her family, His Excellency, Dr. Samuel Ortom, the Executive Governor of Benue State and the good people of Benue State.

May the good Lord grant her learned soul eternal rest, Amen!

Dele Adesina SAN

#OBSCURELEGALFACTS by Arome Abu

‪In Nigeria, members of the Army, Navy and Air force on duty, are exempted from paying road tolls.

Tolls are levies collected to recover expenditure for road construction & maintenance.

See Section 235(1)(a) of the Armed Forces Act.

Arome Abu is the Principal Partner of TCLP.

CAVEAT: Note that this information is provided for general  enlightenment purposes and is not intended to be any form of legal advice.

Obscure Legal Facts is an exclusive daily publication of THE COUNSEL L-P.
Plot 108 Idris Gidado
Way, Wuye, Abuja.
abuarome@gmail.com
+234 803 262 2359
+234 708 1156 539.
Twitter: @TheCounselLP

ABSTRACT

The topic ‘Life After
Law School: Setting Up the Right Path
as a Law Student’ is robust, thus raising the question of whether one is to
dabble into limited or full discussion of lawyers’ post law school life ad
infinitum. However, having special consideration to the spectators, it is sine
qua none to limit the discussion to the immediate phase of lawyers’ post law
school life. It is necessary to discuss the topic under the following
sub-headings;

1.    
Unsuccessful
candidates

2.    
Successful
candidates

3.    
New
wig and National Youth Service

4.    
Planning
for the future

5.    
Building
relationships/setting the right path

6.    
Living
the expected life in future

 

1.   UNSUCCESSFUL CANDIDATES

We must accept the aphoristic statement that ‘Failure is not
a topic, it is a reality’.  At least
twenty per cent of candidates fail bar final examination annually. Suffice to
say, not everyone that attends Law School comes out successful. Failure is the
end product of one’s negligence to act promptly and reasonably. Failure at Law
School is not measured by a candidate’s level of intellectual capacity. It is
necessitated by plethora factors like shared ignorance, lackadaisical
dispositions and natural phenomenon, inter alia.

It is pertinent to emphasize that Law School courses are
divided into five i.e. Corporate Law Practice, Civil Litigation, Professional
Ethics, Property Law Practice and Criminal Litigation. These courses carry
equal marks and comprises of about twenty topics each. The examination is
divided into multiple choice questions of hundred questions and theory. The
theory comprises of six questions per course, question one and four are usually
compulsory.  To pass successfully, a
student must score at least 45 marks in all the courses. If a student fails one
course he must go back to rewrite it and pass before he can be qualified for
Call to Bar. If a student fails two or more courses he must rewrite all five
courses before being Called to Bar. Thus a student that scored 80 marks in four
courses and 44 marks in one course is disqualified from Call to Bar (see 2019
Law School marking scheme). Resit examination is usually conducted in April for
those that failed bar final. Also a student will graduate with a pass if he
makes A in four course and E in one course. Suffice to say, Law School uses the
lowest grading system to assess students. Therefore, to pass, a student must be
meticulous, dedicated, open-minded and disciplined. Law school is easier in
terms of learning than the University, but the work load will exert your
hippocampus to the extreme.

Peradventure, LIFE AFTER LAW SCHOOL sufficed indelible
failure for the unsuccessful ones. Post Law School life has left some persons
as Nigerian Law School notorious customers as they register for resit
examination annually.  It is not about
attending Law School but about your determination to come out successful. This
interaction is timely for you to prepare ahead of time in order to avoid the
reality of failing bar final. Life after Law School is full of regret and
nightmare for this class of candidates resulting in suicide and ambition
assassination. The only way to avoid the reality of failing bar final is to READ, READ AND READ.

2.   SUCCESSFUL CANDIDATES

No doubt the Call to Bar experience is one of the most
important moment for a successful candidate, even though it comes with
unavoidable stress for the celebrant. The pertinent question is what next? Some
new wigs are from wealthy homes so their task is just to get the certificate
and the stage is set for them to sail. Also certain set of new wigs will go
ahead to take over the law practice business from their parents.  Few new wigs attended Law School to add the
prefix “BARRISTER” to their names because they are wealthy and maybe old.
However, average new wigs are the first lawyers in their family with no
connection amidst impecuniosity. You will surely fall into one of these
aforementioned categories.

Our focus will be on the later set of new wigs. These are the
ones that will begin to think of the class A Law Firms for employment
especially to earn good remuneration. Their problem will be compounded if they
did not make at least Second Class Upper Division from the University and the
Nigerian Law School. You need good result, good profile and good attitude to
work in Class A Law Firms. However, the criteria can be abrogated if you have
the right connection. Thus without connection you must be qualified and be
prepared to write and pass test on areas unrelated to law (LSAT and GMAT) in
order to get a big pay. Small and big firms may reject you not because you are
not qualified but for lack of space. You may even turn down several job offers
because of low wage.

You cannot be a wealthy lawyer in rural and suburban areas
but you may start from there. Whether or not you want to work in a big firm,
any new wig that is willing to go into full litigation must decide on suitable
city to sojourn. Lagos and Kano are notorious cities for booming commercial and
corporate practice while Abuja is a good city for estate management because it
is a developing city. Port Harcourt is the best city for a new wig willing to
specialize in Oil and Gas, Commercial and General Law Practice. Please do not
return to your home town/village to start law practice except you want to be
Father Christmas and obtain notoriety in pro bono while anticipating your
reward in heaven. You will agree with me that coming out successful is not
assurance for a better or successful life but an avenue to join the race for
survival and excellence in the legal profession or elsewhere, personal
development, finding the right spouse for those that are not married, bearing
family burden, inter alia. Maybe you are creating beautiful imagination on how
to be a wealthy lawyer after Call to Bar; such imaginations are like mirage
because the closer you go, the farther it appears. You must be ready to accept
disappointments, rejections and several No’s irrespective of the content of
your resume but with patience and right work the Yes will come. NEVER GIVE UP because doing so will
tantamount to ambition assassination.

3.    
NEW WIG AND NATIONAL YOUTH SERVICE

After law school, some lawyers go for NYSC immediately. You
maybe posted to a location you never anticipated. You may have a job offer in
Lagos, NYSC may send you to Yobe. The state coordinator will appeal to your
conscience to serve in Yobe and shun relocation to Lagos. Do not be tempted to
listen to anybody apart from your inner voice. Only you know what you want and
where you are going. Relocation is legal, redeploy to a state of your choice
where accommodation, feeding, transportation and other necessaries would not
empty your pocket and push you into avoidable debt and begging. I was posted to
Ekiti State and my Primary Place of Assignment (PPA) was Ekiti State
University. The University was not ready to provide accommodation and monthly
stipends. After camping, almost all the lawyers relocated because no law firm
in Ekiti was ready to pay corp members reasonable amount. I relocated to Abuja;
it was difficult to find a firm because of late redeployment. If you must
relocate do it within a reasonable time. Develop the culture of saving because
after NYSC your firm may not retain you as other corp members will be waiting
to take your seat. You need money while moving around to look for a firm. Save,
save and save for the post NYSC days.

4.  
PLANNING FOR THE FUTURE

After Law School, people will add the prefix ‘Barrister’ to
your name but nothing will change about who you are. You must plan your life
because failure to plan is suicidal to one’s ambition. I started planning to
serve in Abuja while in the University. The end product of lack of planning is
indecision, listen to me, ‘indecision is a diseases that can alter your
ambition’. The right time to plan your life is now. The University’s
environment is a simulation of the circular world. Do not make plans that are
difficult to amend; your plans should be flexible. Also, plan for alternatives.

 

5. BUILDING RELATIONSHIPS

Building good relationships is not the same thing as making
friends and begging to be noticed by those in authorities.  Some people are annoying to you, same way you
are a nuisance to others. Even supreme beings have enemies (God and Satan are
not friends). However you cannot hate everyone. Avoid the temptation of
confronting your haters at every slightest provocation. If you pray for your
enemies to die, you may die first because you are someone’s enemy; who knows if
they are making the same supplication against you. Forgiveness is a natural
panacea for a happy living.

Notably, I am not a preacher; the rationale for the
penultimate paragraph is predicated on my personal experience and the need to
build a successful legal practice. You need people to become a wealthy lawyer
and receive referral (be it client or job). Some persons in your class would
not practice law but they may refer clients to you, some of them will be
judges, others will become Governors, Senators, Professors, Head of Blue Chip
Corporations, inter alia. The least intelligent person beside you may become
the wealthiest in future. Being comfortable or coming from a wealthy background
as a student does not mean you will be successful more than those poor and
starving students in your class. Majority of our leaders today are not from
wealthy homes for example read the profile of Professor Benedict Ayade, Atiku
Abubakar, President Buhari etc. What I am saying is that, you should do all you
can to avoid discrimination and be friendly with everyone because tomorrow is
pregnant. There is no profession that reconnects people like the legal
profession. The first personal client I handled was a referral from my friend;
the second client was a cab driver I met casually. Remember to put a smiling
face and associate with people at every given opportunity.

Whereas, I am not a marriage coach but it is important to let
you know that as a single new wig the choice of marrying the right spouse is
not less important. Life after law is not Nollywood where wealthy,
handsome/beautiful spouse with good character will appear from nowhere for
marriage. Dissolution of marriage is prevalent today because of material and
physical consideration as factors for building marital life as against good
character and understanding. After participating in several dissolution
proceedings, I started praying against the evil of choosing the wrong spouse.
One of the best environments to meet the right spouse is the University. Please
hold unto good relationships and build your castles upon them. Remember always
that OBA says ‘everyone matters, you must avoid pride and relate with people
genuinely’.

 

6. LIVING THE EXPECTED LIFE IN FUTURE

Life can never get easy, it can only get better. The older
you grow the tougher life becomes. Living a fulfilled life is not dependent on
how many cars, houses and children a person has. We all have different dreams
but we need each other to achieve those dreams. 
Like I said earlier, the University’s environment is a simulation of the
circular world.  Thus, if you want to
join circular politics, how are you participating in student’s politics without
jeopardizing your studies? If you want to become an academia how well are you
reading and planning for further studies? If you want to be a judge in future then
join the judiciary in school and start learning something. If you want to be
the best academically then stop sleeping and deal with the evil of
procrastination. No body can inspire you more than yourself. After occupying
offices as a student leader, I almost gave up my circular political ambition
because the stress was beyond my imagination. If you have positive ambition,
you need sacrifice and determination to achieve it.  Ask questions and seek direction from the
right people. You can achieve your dreams at any stage, notwithstanding your
current position in life, for instance, becoming the best student, occupying
the political offices of your dreams within the university, meeting the right
spouse and building good relationship with the future leaders in your class,
department, faculty, within and without the University. THE BETTER TIME FOR YOU
TO PLAN FOR THE FUTURE STARTS NOW, BECAUSE YOUR NOW IS THE FOUNDATION OF YOUR
TOMORROW.

 

CONCLUSION

Life after law school is complicated, but you can find your
way with proper planning. When things are hard and every opportunity appears to
be closed, all you need to do is to remember that there is always an
alternative in all situations. The alternative for thinking about giving
up/suicide after failing a course or failing bar finals is to go back and do it
better, the alternative for rejection is to work for acceptance, the
alternative for graduating with bad result is to proceed to post graduate
diploma, the alternative for abusive relationship is to quit, the alternative
for parasitic relationship is to confront the parasite, the alternative for
greater performance lies in self development, optimism and meeting the right
people. There is always an option where there seems to be none just look
closer. My principal in his early years of practice received CORN AND PEAR as consideration but he
persisted and later became a Commissioner in Cross River State, Attorney
General of the Federation, and Nigerian Legal Adviser to the United Nations. He
established the EFCC and ICPC, today he a handles almost all the juicy briefs
in Nigeria. Always remember the story of my principal Chief Kanu Godwin Agabi
SAN, CON. The early years of practice may not be good, but the later days shall
be fruitful. The legal profession is the best profession on earth, do not allow
anyone discourage you from becoming an ENDURING AND EXCELLENT LEGAL
PRACTITIONER.

 

You
can contact the writer via:

Twitter
@OkpiBernard

Email:
okpibernardadaafu@gmail.com

Phone:
+234709032116272

It is no longer news that
the Corona Virus (COVID-19) pandemic has greatly impacted the world’s economy.

Nigeria announced its
first case of the COVID-19 on Friday the 28^th of January, 2020.
Following the rapid increase in the number of reported cases of the virus in
Nigeria and globally, countries around the world, including Nigeria have put in
place strict measures such as border closures, total and partial lockdown of businesses,
restriction of movements of people, goods and services which are not essential
amongst other measures to curtail further spread of the virus. However despite
these measures the number of reported cases of persons infected with the virus
continues to increase. As at the time of this writing the report from the World
Health Organization shows that over 3 million people have been infected with
the virus globally with over two hundred thousand deaths.

The pandemic has many
economic and contractual implications. As a result of the measures put in place
to curtail further spread of the virus cash reserves have dried up, there is no
revenue and no government relief by way of cash is readily in sight for
business owners consequently, business owners are thinking of ways to handle
their obligation to pay wages and salary for the period of the lockdown and
inactivity without running afoul of the law.

The
case for Nigerian businesses

The outbreak of the global pandemic has put severe pressure on the Nigerian
economy. Nigeria is a developing economy with heavy reliance on oil, which
accounts for about 90 per cent of Nigeria’s export.  The recent crash in the global demand for oil
and oil price stemming from the pandemic has adversely affected the volume and
value of Nigeria’s net export. As result businesses in Nigeria especially those
in the private sector and the medium and small scale enterprises have been
adversely affected.

On 25 March, 2020 the Lagos State government introduced movement restrictions
by ordering the closure of non-essential markets, businesses, stores,
supermarkets, cinemas, entertainment centres and banning all public and
religious gatherings in the State. On 29^th March, 2020 the Federal
government imposed further restrictions by announcing the implementation of
measures aimed at curbing the spread of the pandemic in the states of Lagos,
Ogun and the Federal Capital Territory (FCT) Abuja. These measures include a
two-week restriction on movement commencing from 30^th March, 2020. A
further 2 weeks restriction was imposed by the Federal government in the above
states and the FCT and an additional one week till the 4^th of May,
2020 at which time partial ease of the lockdown will begin with further
guidelines.

Other states not covered by the Federal Government lockdown also
instituted partial or full state-wide lockdowns and curfews to reduce the
spread of the virus in their respective states.

This paper will consider
the impact of the COVID-19 on employment relations in the private sector in
Nigeria especially with regard to the employer’s obligation to pay wages and
salary to its employee. The paper will also make recommendations on how the issues
of remuneration of employees can be resolved by the employers to avoid unending
litigations.

Employer’s
duty to pay remuneration

The relationship between an
employer and employee is contractual and based on the contract of employment. Until
a contract of employment is determined, the mutual obligations of parties
continue and none of the parties can unilaterally amend the contract without
consulting the other. In jeremiah v.
Ziregbe & Anor (1996) 7 NWLR (Pt. 347) 356 the Court held that the
employers duty to pay salary or wages to the employee is determined by the
letter of employment. Thus it is usually said that an employer owes the
employee duty to pay wages or salary in accordance with the terms of the
contract express or implied.

 Where the contract of employment does not
expressly provide for remuneration, amount payable will depend on the value of
service rendered. Once the duty to pay wages or salary exists, the employer is
at common law, to continue to pay such remuneration to a worker who is ready
and willing to work whether or not work is provided by the employer.

Are
there instances where an employer will be relieved of this duty to pay
remuneration?

Under common law where
the employers inability to provide work is as a result of a circumstance beyond
his control then the employer will not be under a duty to pay. see Devonald v. Rosser & S one (1906) 2 K.B.
728. From the above exception an employer may argue that his inability to
provide work was as a result of circumstances beyond his control in this case
the compulsory lockdown imposed by the government and so he is not liable to
pay remuneration for the periods of the lockdown.

Under Statute Section 17
of the Nigerian Labour Act provides for the employers duty to provide work and
pay remuneration as follows:

Except where a collective agreement
provides otherwise, every employer shall, unless a worker has broken his
contract, provide work suitable to the worker’s capacity on every day (except
rest days and public holidays) on which the worker presents himself and is fit
for work; and, if the employer fails to provide work as aforesaid, he shall pay
to the worker in respect of each day on which he has so failed wages at the
same rate as would be payable if the worker had performed a day’s work:
(underlined is mine for emphasis)

Provided that –

a.           where,
owing to a temporary emergency or other circumstances beyond the employer’s
control (the period of which shall not exceed one week or such longer period as
an authorized labour officer may allow in any particular case), the employer is
unable to provide work, the worker shall be entitled to those wages only on the
first day of the period in question; and

It is important to note
that by the above provisions the period of emergency or circumstances beyond
the employers control shall not exceed one week and so for the employer to rely
on this provision for a period exceeding one week he must get the approval of
an authorized labour officer and the employee is still entitled to wages on the
first day of the period in question.

However, it is important
to note that the provisions of the labour Act only applies to junior staffs
referred to as “workers “. It does not apply to persons employed as
administrative, executive, technical or professional staffs according to
Section 91 of the Labour Act. Thus for employees not covered by the Labour Act
their employment is governed by the contract of employment and employee’s
handbook. Any variation in the salary of such employees must be based on the
contract of employment and the employee handbook.

How
then can employers mitigate the financial effect of COVID-19 on their businesses
to ensure that they remain in business?

For businesses,
especially those that have been forced to close to curtail the spread of the
virus, it would be economically unsustainable to continue incurring excess
costs at this time. Thus, businesses must take cost-cutting measures to ensure
that they stay afloat, which will likely affect workers and employees.

There are a number of
options open to employers in this case. However it is recommended that whatever
measures taken by employers should have a human face and be weighed in terms of
its economic, social and health impact on the employees. Also employees should
be reasonable and ready to negotiate and make adjustments to mitigate the
economic impact of the global pandemic on their employers business.

There is a need to create
a culture of social dialogue and workplace cooperation at this time in order to
prevent a downward spiral in employment and labour during and after the crisis
caused by the pandemic.

Some measures that can be
taken by employers with their legal implications include:

1.
        Reduction of salary of employees:

Except
for the purpose of making contributions to Provident or Pension schemes as
agreed by the employee, an employer shall not unilaterally make deductions from
the employee’s salary. Article 8 of
the Protection of Wages Convention 1949 prohibits employers from making
deductions out of an employee’s salary except to the extent prescribed by
national laws or regulations or fixed by a collective bargaining agreement or
an arbitration award. Also section 5 of the Nigerian Labour Act provides that
an employer shall not make any deduction or make any arrangement or contract
with a worker for any deduction from the wages to be paid by the employer to
the worker.

From the above any attempt to unilaterally deduct
the salary of an employee will amount to a breach of contract and an employee
can sue for damages.

Consequently, it is very important that an
employer considering this option as a way of mitigating the impact of the
pandemic must negotiate and get the consent of the employee in writing before
any deduction of salary can be made.

It is important to state here that the National
Industrial Court is the Court with jurisdiction to deal with all matters
relating to labour and industrial relations in Nigeria. The Court is empowered by
the combined reading of Sections 254C (1)(f) and (h) and (2) of the
Constitution of the Federal Republic of Nigeria (1999) as amended to apply international
best practices, treaties, conventions and protocols ratified by Nigeria. This
includes the various ILO conventions and recommendations on labour and
employment.

Consequently an employer who unilaterally deducts
the employee’s salary risks having an action being brought against him at the
National Industrial Court by an aggrieved worker or employee.

2.         Compelling employees to
take the period of the lockdown as their annual leave without pay.

Every employee who
has worked for a period of 12 months is entitled to an annual leave with pay (see
Section 18 Labour Act; ILO Convention on Holiday with Pay, No. 132 of 1970 as
revised). Thus it will amount to a
breach of contract for an employer to unilaterally elect to treat the stay at
home period as an annual leave period for which he is not obligated to pay.

However, an employer whose business could not continue
during the period of the lockdown can negotiate with his employees to have
their annual leave during the period of the lockdown rather than having it
deferred, provided full salary is paid. Where such is the case, such employee
is not required to perform any work or task during the period.

The courts will not enforce any contract that compels workers
or employees to take unpaid leave. This is inconsistent with the law and also
contrary to international best practices. 

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3.         Reducing
the number of hours of work thereby reducing salary:

As part of the measures to reduce the spread of
the corona virus government have adopted measures and guidelines for the
partial ease of lockdown which include reduction in the number of hours of work
for businesses. Businesses are mandated to only operate between the hours of
9am to 3pm. Some businesses have been able to continue operations remotely and
employees are given task to complete while in the comfort of their homes. This notwithstanding
there has been an unprecedented global decline in revenue which can be
generated from such works as a result of the decline in economic activities. It
is also possible that output may reduce with such arrangements as a result of
various challenges of remote work especially in this part of the world such as slow
or interrupted access to the internet, epileptic power supply and sometimes
distractions from family members.

            An
employer can decide to reduce the work hours of the employee and as a result
negotiate reduced salary based on the hours of work. Section 17 of the Labour
Act cited above supports this arrangement.

4.         Temporary layoff and furlough:

Temporary layoff is a period of temporary
suspension or dismissal of an employee as a result of lack of work or because
of cooperate reorganization with a right to recall by the employer under
defined circumstance. Furlough on the other hand is a suspension of employment
either pursuant to provisions in the employee’s contract of employment or by
mutual agreement between employer and employee. Generally when there is
temporary layoff and furlough an employer is not under obligation to pay salary
but the employee is still entitled to other benefits of the employment since
the contract of employment is not terminated. Most employers use temporary
layoff and furlough as an alternative to termination and redundancy.

However it should be noted that in the absence
of an agreement to the contrary in the contract of employment, layoffs actually
have the effect of terminating the contract of employment and will trigger the
application of any redundancy provision in the employee’s contract of
employment. An employee who is put on temporary layoff without pay as a result
of the pandemic cannot at the same time be expected to work. If an employer
requires the employee to work, he should provide compensation for the work
performed. Also an employee who is put on temporary layoff can personally
choose to perform limited tasks while on layoff. If an employee who is not
being paid refuses to work and the employer as a result terminates his
employment, it would amount to wrongful dismissal, and the employee can sue to
claim severance benefits.

It is recommended that an employer who intends
to adopt any of the above measures communicate and negotiate the terms of the
temporary layoff and furlough with the employee or employee’s representatives
in order to avoid litigations.  

With regard to layoff of employees in the
banking industry, on the 3^rd of May, 2020 there was a press release
from the Central Bank of Nigeria (CBN) and the Bankers’ Committee suspending
layoffs in Banks emanating from the issue of corporate cost in view of the
disruptions caused by the global economic difficulties occasioned by the
COVID-19 pandemic. The CBN further directed that in order to help minimize and
mitigate the negative impact of the COVID-19 pandemic on families and
livelihood no bank shall retrench or layoff any staff of any cadre including
full time and part-time staffs without the express approval of the CBN.

One may ask what the effect of this directive is
and whether it is binding on the banks. Banks are privately owned corporate entities
and not a creation of statute. The relationship between a bank and its employees
are based on contract. There
is no existing power granted to the Central Bank of Nigeria to suspend the
powers of an employer derived under a contract which in reality forces an
employer to continue to bear financial obligations to employees when the
business cannot support such obligations. Thus such directive from the CBN is at best persuasive but it
further emphasizes the need for social dialogue and workplace cooperation in
mitigating the effect of the harsh economic condition caused by the COVID-19 pandemic
especially in view of the fact that the directive was reached in consultation
with Banker’s Committee.

5.         Initiating redundancy procedure:

Redundancy is a situation where an employee
loses his job because the employer does not need him anymore. Redundancy
disengagement is a form of termination of employment. Section 20(3) of the
Nigerian Labour Act defines redundancy as an involuntary and permanent loss of
employment caused by an excess of manpower. Although the Act did not define
what can lead to excess of manpower but the circumstance caused by the impact
of the corona virus such as loss of revenue and change in the nature of work
from physical to remote work arrangements thus necessitating fewer staff can be
considered as valid grounds for declaring redundancy. In Alexander O. Ejah & Ors v Niger Mills
Co. Ltd NICN/CA/97/2013, 27-2-2015, the National Industrial Court reasoned
that from the evidence which showed that the mass termination of employment of
the Defendant’s employees arose from a change from a manual to an automated
process requiring fewer staff, the disengagement was necessitated by economic
and technological reasons, and being justified, was thus within the
contemplation of the Act as a ground for redundancy. In Peugeot
Automobile Nigeria Limited v. OJE (1997)11 NWLR (Part 530) the
court defined ‘redundancy’ as:

a mode of removing of an employee from service
when his post is declared “redundant” by his employer. It is not a
voluntary or forced retirement. It is not a dismissal from service. It is not a
voluntary or forced resignation. It is not a termination of appointment as is
known in public service. It is a form unique only to its procedure where an
employee is quietly and lawfully relieved of his post. Such type of removal
from office does not, in my view, carry along with it any other benefit except
those benefits enumerated by the terms of contract to be payable to an employee
declared redundant.

Usually a provision for redundancy is contained
in the contract of employment. Where such provisions are express the procedure
as stipulated should be strictly followed. However, absence of a specific
provision on redundancy does not preclude the employer from declaring a
particular position redundant.

Where an employer declares an employee redundant
he is entitled to terminate the contract of employment in accordance with the
terms of the contract of employment as to length of notice or payment in lieu
of notice as applicable.

It is important to note that Section 20 of the
Labour Act provides that before an employer terminates a contract of employment
based on redundancy, the employer shall for unionized workers first inform the
trade union or workers’ representatives concerned of the reasons and the extent
of the anticipated redundancy.

 

Conclusion

It
is beyond doubt that the economic difficulty occasioned by the impact of the
novel corona virus is unprecedented in the history of humanity. At a time like
this, it is most important that both employers and employees at all level focus
on measures that will ultimately mitigate the negative impact of the pandemic
both on families, livelihoods and businesses. Governments all over the world
including the Nigerian government at the Federal and state level are developing
fiscal measures aimed at supporting businesses and households to survive the
crisis. Government have made provisions to address the much needed access to
finance to ensure that employers in the private sectors including small and
medium scale enterprises are sustainable and reduce layoffs and retrenchment of
employees as a result of the pandemic. One of such measure is the N50 Billion
(Fifty Billion Naira) credit facility to be administered through the Nigerian
Incentive-Based Risk Sharing System for Agricultural lending (NIRSAL Plc.) a Microfinance
Bank for households, small and medium-sized enterprises that have been
significantly impacted by the COVID-19, including but not limited to hoteliers,
airline service providers, health care merchants etc. Also the Central Bank of
Nigeria has directed Banks to consider temporary and time-limited restructuring
of the tenor and other terms for loans granted to businesses and households
most affected by the outbreak of the COVID-19.

Worthy
of note also is the Emergency Economic Stimulus Bill 2020 which provides
measures aimed at providing staff retention tax relief amongst others.

Therefore,
it is recommended that employers take advantage of these fiscal measures as an
alternative to sustain their businesses.

 

NOTE:
This article is for general knowledge. Contact the writer @ ncroseline089@gmail.com
for legal advice specific to your business circumstance.

It has always been the practice in our noble profession for senior lawyers to mentor and lift the younger ones. Not just within the practice but in life as well and Chief Wole Olanipekun SAN exemplified this age long practice when he sponsored car gifts for two (2)  members of the NBA Ilorin Branch.
 
 
It is encouraging when senior lawyers like Chief Wole Olanipekun SAN magnanimously encourage young lawyers this way and I hope we all continue to carry – on this legacy of nurturing, mentoring, grooming and encouraging our younger lawyers.
 
I commend the Chairman and Exco of the NBA Ilorin Branch for the initiatives that continue to define the high standards within the legal profession and I appreciate and commend the learned silk; Chief Wole Olanipekun SAN for this uncommon feat of kindness.
 
Caroline Ibharuneafe
Past Vice – Chairman, NBA Ikeja
Integrity + accuracy
 

Ramadan Kareem 

My dear Muslim Brothers and Sisters, on this 23rd day in the holy month of Ramadan, may Almighty Allah reward your sacrifices, accept your supplications and may His Grace be sufficient for you and your family.

Ramadan kareem
Dele Adesina SAN