When You Discover You’re Not the Father | Ivie Omoregie

by Legalnaija | Aug 14, 2017 | Uncategorized

A few months ago I watched a heart
wrenching video of an Igbo man who discovered his only son was not actually his
biological child. After 32 years of being a wonderful and loving father and
relocating the boy’s destiny to England, the boy’s mother calls them to drop
the bombshell. Recently, we have been seeing a lot of news about paternity
testing in Nigeria. There have been many funny memes about it, but anyone who
has actually faced this in reality will tell you that it is not a laughing
matter.

This just made me wonder; a lot of the time
when a woman gives birth in Nigeria she tends to be married, and the father of
the child is presumed to be the woman’s husband. In almost all instances where
a woman tells a man that he is the father of her child, she would be offended
if he asked for a paternity test. However, after talking to several friends about
the topic, one comment that was reoccurring was, “Ivie you cannot even begin
to understand how many men in Nigeria are raising children that are not
biologically theirs. Many of them continue with the marriage because of image,
but tend to start misbehaving uncontrollably”.

This article talks about paternity fraud
and the legal implications in Nigeria and abroad for same.

Paternity Fraud

Paternity fraud is where a woman leads a
man to believe he is the legitimate and biological father of a child. This may
be either by misidentification, where the woman is wrong in her own belief as
to who the child’s father is; or may be outright fraud, where the mother knows
categorically that the man is not the child’s biological father, but for
reasons best known to her, continually tells him “You Are The Father…”.

In 2015 a survey conducted by Durex
revealed that Nigerian women are amongst the most unfaithful in the world; the
DNA department of the Lagos University Teaching Hospital has estimated that
approximately 30% of Nigerian men are not the biological fathers of their
children. However, many others believe paternity fraud is even more prevalent
than this. Some argue that in most cases women know who the biological father
of their children are and that misidentifications are rare.

The Legal Implications – Abroad

In other jurisdictions, paternity fraud is
a very serious issue. As you can imagine, with the gravity of child maintenance
in these countries, such a mistake often turns out to be a very expensive
mistake. In this case, the authorities have the right to use the affidavit of
paternity or birth certificate, both signed by the father, as proof of
paternity in child maintenance cases.

The laws relating to child maintenance vary
from region to region; however, what resonates is that the best interests of
the child are of the utmost importance. Thus, where there have been confirmed
cases of paternity fraud, the courts have the onus of determining whether
payments should continue, or whether the father may cease continuation of
payments.

It has not been unheard of, for a man to be
mandated to continue child maintenance payments for a child who has been
revealed as being unrelated to the man where maintaining the status quo has
been deemed as being in the best interest of the child.

Implications Of Paternity Fraud

Depending on jurisdiction, women involved
in paternity fraud are often guilty of a criminal offence, however many courts
are unwilling to convict on grounds of paternity fraud. This is because, the
best interests of the child are of paramount concern.

Where the mother is able to prove that the
matter is a genuine misidentification, as opposed to outright fraud, then this
may successfully mitigate any possible liability she may have; or rather, the
presiding judges willingness to extend the full ambits of the law against her.

In most instances, the only recourse a man
would have is a monetary claim against the woman for all the monies exhausted
on that child, however the likelyhood of her having the capacity to repay
monies, expanded over the course of several years in one lump sum, are slim to
none. Where the child is a teenager, damages awarded in such an instance could
run into the millions.

The Legal Implications – Nigeria

Unfortunately there seems to be no case
history in a court of record for paternity fraud in Nigeria. As stated above,
it is something that is definitely happening in our society. Regrettably, due
to our culture of keeping things in house, in most instances parental/community
intervention and church counselling, are the primary means of conflict
resolution.

The most one might possibly hear is that,
Tunde and Yinka are no longer together, and that Tunde doesn’t even take care
or see his “daughters” again.

Some believe that another reason for sweeping
things under the carpet is that in most instances there is no court
intervention, where a man has a child through extra-marital affairs or out of
wedlock. Fathers simply know that they have an obligation to cater for their
children, and so tend do so. Thus why would there be court intervention in this
case?

Conclusion

Unfortunately in Nigeria we have not gotten
to the stage where any man has actually sued a woman for paternity fraud.
However, just like spousal support for men, any man who establishes that he has
been wrongly maintaining a child who is not his biological child, has a claim
against the mother of said child – in the form of monetary damages. How the
Nigerian courts might decide to handle the matter is an entirely different
matter.

Any man who believes that a child is not
his biological child should seek a DNA test immediately. I believe, for the
well-being of the child, it is something that really should be highlighted and
rectified as soon as possible. Every man has the right to be able to forge
solid relationships with their biological children and every child has the
right to know their biological fathers.

Many men sign a child’s birth certificate
without “doing the needful” and I believe this is where the problem lies.
Mandatory paternity tests at the time of birth will significantly solve the
issue of paternity fraud.

In Nigeria we are very far from such an
order being likely to be implemented. If all else fails, I would advise women
to simply pray that the child is a splitting image of the identified father,
thus avoiding unnecessary questioning.

Ivie Omoregie

Energy & Finance, Associate at Templars

This article was first published here

You Don’t Always Have to ‘Drag’ People to Court | Ivie Omoregie

by Legalnaija | Aug 14, 2017 | Uncategorized

I loved litigation; it was
something I found very interesting. It was akin to story telling, yet each
story always had a different dimension; no two matters were ever the same.

I soon saw the light
however, and irritation caused me to drop my wig and gown. I don’t even know
where they are now.

Anyone who has ever been
involved with litigation in Nigeria can testify to the fact that it tends to be
long and tedious. Imagine having to prepare for trial over the entire Salah
weekend and going into the office daily, only to get to court on Monday morning
and be met by frustrating news – that the judge has postponed hearing by three
months because he cannot sit in a court where the air conditioner is not
working.

That is only one example
of the many reasons I decided to leave litigation for my stronger, more
resilient learned colleagues and focus on other aspects of law. The process
(especially in Nigeria) is tiring for all parties involved.

Not every dispute requires
legal action. Alternative Dispute Resolution (ADR) which I will be discussing
in this piece also exists. It is a must-read for anyone either contemplating or
already involved in a contentious matter.

What is ADR?

ADR is a collective term
used for the various methods and procedures through which parties to a dispute
may resolve their issue without letting it result in long and tedious court
action.

The traditional forms of
ADR are: –

1. Arbitration

2. Mediation

3. Negotiation

4. Conciliation.

With the evolution of ADR
in Nigeria, we have seen it take the forefront in different forms. In many instances
where court action has been taken, trial judges enquire what steps parties have
taken to amicably settle a dispute and tend to make various orders. An example
of such is adjourning the case, to enable parties time negotiate a settlement,
either directly or by engaging a third party.

Most contracts today
contain ADR clauses, thus mandating that parties explore ADR before court
action. However, even where the contract has omitted this clause, we often see
judges advising parties to explore an amicable resolution of the matter.
Interestingly, ADR is currently being applied in matters such as divorce
proceedings and chieftaincy title disputes.

Why ADR?

In Nigeria, quite a number
of matters escalate unnecessarily to superior courts; it is not uncommon for a
party with ‘no defense’ to a claim to use a a delay tactic such as time
wasting, aka their ‘right of appeal. This results in applications being made
for a relief at a superior court at every whim in a bid to frustrate the other
party and weaken morale.

The following are some of
the reasons anyone who is involved in litigation of any kind, might want to
explore ADR: –

•
The legal fees are considerably less than conventional litigation

•
ADR is faster than court action

•
Confidentiality can be managed perfectly

•
Parties are more likely to achieve a better resolution of their issues

•
Lack of a ridged structure means parties are allowed to control the direction
of the proceedings

•
Where there is a third party involved, parties are given an option to choose
who will settle their dispute.

I have seen matters go on
for decades due to one technicality or the other, with no resolution in sight.
Where there is a third party overseeing ADR proceedings, time wasting becomes
difficult and consent judgement is reached without delay.

What Is Consent Judgment?

Consent judgment is one
that the parties involved have agreed to. Here, parties to a dispute consent to
a settlement between the parties. This agreement is then lodged with the court
for the judge to sign and adopt as the final decision of the court.

Consent judgment is the
ultimate aim of ADR; both parties are able to negotiate the outcome they want,
and due to the fact that it is done out of the courtroom, parties successfully
avoid the usual limitations of Nigeria’s legal system.

Setting Aside Consent
Judgment

A consent judgment has an
extremely binding effect; it is an established principle in law that they may
only be set-aside in instances of fraud or misrepresentation. Interestingly, a
unilateral mistake by either of the parties is not a valid ground for the
consent judgment to be set aside.

However, where there is a
twist of events (such as breach of warranty) that completely disproves the
original agreement upon which the dispute giving rise to the consent judgement
occurs, the consent judgement can be successfully invalidated. For
instance, party B might have agreed to repay a contractual debt owed to party
A, but later discovered that party A has done something that would have caused
the contractual agreement to be rescinded. Party B will no longer have any
contractual relationship with Party A, thus he will not be bound by the terms
agreed to in the consent judgement, which is repayment of the contractual debt.

The unfortunate reality we
face in Nigeria is that the courts are congested with an unbelievable backlog
of cases. The administration of justice in Nigeria is being adversely affected
by the unnecessary and frequent delays in court proceedings. This has been
caused by many factors. Aside from cases where rulings on technicalities are
being escalated to the Supreme Court, we also have unnecessary adjournments
that add to the excessive delays.

I personally believe ADR
is the way out of the litigation web if one finds themselves there. I am firmly
against court action in instances where there is no criminal element to the
claim. In most cases litigation is simply not worth the stress and it makes
most contracts not even worth the paper they have been written on.

Ivie Omoregie

Energy & Finance,
Associate at Templars

This article was first published here

Calculating Compensation for Suspension of Employee| Kayode Omosehin, Esq.

by Legalnaija | Aug 14, 2017 | Uncategorized

1.    
Suspension of employees in a nutshell

An employer’s power to
suspend a worker at any time, during probation or after confirmation, is
without a doubt, whether or not it is expressly stated in an employment
contract. No court of law will deny an employer of this inherent power, if
utilized properly. Suspension is a powerful tool to an end and not an end in
itself. Suspension puts an employment relationship in limbo as the worker lives
in anticipation of either being recalled or laid off. A worker cannot seek
another employment in the course of suspension until the suspension is
converted to termination of employment or dismissal. It is therefore important
for a company to investigate a suspended worker, make its findings and
communicate its decision to the worker. A suspended worker needs to know
whether his service is still required by his employer or has been (technically)
terminated!

A striking difference
between suspension and termination of service or dismissal is that suspension
is neither terminal nor requires any procedure like dismissal and termination
of employment which are both terminal and usually follow an agreed procedure to
end a working relationship. Suspension is a prelude to termination/dismissal
but not all suspensions result in dismissal or termination of employment.
Suspension does not bar the affected worker from his normal employment
benefits. Unless a company’s disciplinary procedures have been conducted and
the worker has been indicted to his/her knowledge, he stands entitled to his
wages and other relevant benefits.

Notwithstanding the
impression that Nigerian labour law leans more in favour of the workers, our
law recognizes the power of an employer to suspend workers pending
investigation of allegations. It is extremely difficult, except in few special
cases recognized by law, for a suspended employee to rush to court and succeed
on a claim based on his suspension. There are many clear judicial
pronouncements to the effect that a worker will be jumping the gun by rushing
to court based on suspension from employment without waiting for the conclusion
of any investigation by the employer. For instance, there are reported cases
against First City Monument Bank Plc and First Bank
Plc, in which the courts denied the workers’ claims for compensation on the
ground that the workers were rightly suspended (and subsequently dismissed) for
gross misconduct. Also, the Court in Shell Petroleum Dev. Co. v. Lawson
Track (citation available) held that suspension of employee pending
investigation is an acceptable labour practice even if the employee is
suspended without fair hearing.

2. Suspension without
salary

As already pointed out,
suspension does not imply an end to an employment relationship unless it has
proceeded for such length of period that it evinces an intention to impliedly
terminate the service of a worker. So, naturally, unless otherwise stated in an
employment contract, the law implies that a suspended worker should be entitled
to all the benefits which he/she would have enjoyed if the service had not been
suspended. In other words, unless an employee is indicted under an agreed
disciplinary procedure which provides for loss of benefits, all employment
benefits ought to be paid as at when due during suspension or, cumulatively,
upon the end of suspension.

In all relevant employment
cases, there are always questions to be answered by an employer who suspends a
worker without pay if the contract of service does not provide for suspension
without salary. In most cases, the question is always resolved in favour of the
affected worker. Even in cases in which the employment contract provided for
power to suspend without pay, such as the one filed against Jemmtek
Resources Limited, though this case has its own peculiar twists, the issue
was nevertheless resolved in favour of the suspended employee notwithstanding
the company’s allegation that the worker had taken up an employment in another
company during the period of his suspension. Also, the Court of Appeal held in Olafimihan
v. Nova Lay-Tech Nig. Ltd. (citation available) that suspension of a
worker without pay with a restriction on the worker from entering the premises
of the company was a clear intention of the company to dispense with the
services of the worker and, as such, the worker must be paid all his
entitlements.

The onus will always be on
the company to prove its power to suspend its workers without pay and that the
investigation was concluded (indicting the affected worker) to justify its
defence against any employment litigation. The issue of proof is a matter of
evidence at trial in which the letter of employment, terms and conditions of
service or employee’s handbook and disciplinary procedures must all be
presented to the court for scrutiny and must be unambiguous as to their
contents, as any ambiguity will be resolved in favour of the employee.

3. Indefinite suspension
of worker

Indefinite suspension of
an employee appears to be a common feature in some organizations, especially in
matters bordering on allegations of crime against a worker. Whilst suspension
is a veritable tool for effective investigation of any allegation, its length
and other ramifications can result in either gain or loss to the company unless
the management proceeds with proper guidance of employment law advice. There is
a mix of two complex propositions that usually confront a judge in any labour
case that is founded on an indefinite suspension of worker.

The first approach is to
treat the employment as having been constructively terminated by the employer.
This would be consistent with judicial precedent. Popular judicial decisions
are to the effect that an indefinite suspension is a constructive or implied
(though unlawful) dismissal. That is to say, where an employee is suspended
indefinitely without recall or eventual letter of termination, the employee’s
service is deemed to have been constructively or impliedly terminated, though
wrongfully. It is however not clear and, therefore, arguable on the facts of
each employment dispute what length of suspension will be regarded as
sufficient to evince an intention of the employer to dispense with the worker’s
service. This point is more appreciated if one considers the difficulty an
indefinitely suspended worker faces in determining when to initiate a
compensation claim against the employer during the period of suspension without
jumping the gun.

The other approach is to
treat the employment relationship as subsisting to ensure a greater
compensation for the employee. In this respect, the court deems the worker to
still be in the service of the employer in order to entitle him/her to the
salaries for the period of suspension. This option would meet the justice of
the case of an employee who has fought a long litigation battle to redress
his/her grievance, especially where the length of period between the suspension
and conclusion of litigation results in fairly huge compensation from the award
of all salaries in arrears to the worker. It appears that there is no express
provision of law for this approach except to subsume it in the provision of
section 254C(1)(h) of the Constitution which grants the National Industrial
Courts powers to apply and interpret international best labour practices in any
employment litigation brought before them. The courts have held that an indefinite
suspension of worker is inconsistent with international best labour practices.

It is instructive to note
that Justice F. I. Kola-Olalere of the National Industrial Court held in a case
decided on 16th October 2014 that an employee who was suspended without salary
for a long period (more than three (3) years in that particular case) would be
deemed to still be in the service of his employer till the date of judgement
and, therefore, entitled to his monthly salaries from the date of suspension
(13th June 2011) till the date of judgement (16th October 2014). In other
words, the Court held that the indefinite suspension of the worker for more
than three years without pay meant that the termination of his employment was
with effect from the date of judgement. The Court took the foregoing position
notwithstanding the provision of clause 15 of the staff handbook of the
defendant company which permitted the company to suspend workers with or
without pay. As already stated above, the decision may appear to be at variance
with popular judicial decisions of superior courts on the point but it is one
that is consistent with the spirit and letters of the provision of section
254C(1)(h) of the Constitution. In any event, it is my view that such option is
not available to a judge in an employment litigation in which the worker has
not specifically pleaded and prayed for a declaratory order that his employment
contract subsists in the face of an indefinite suspension.

4. Calculation of the
entitlement of a worker who has been indefinitely suspended

Lawyers and judges, of
course, do some mathematics in a labour case whenever it is necessary. Unless
the facts of a case involve complex accounting principles, employment lawyers
are at liberty to establish during trial, by simple mathematical calculation of
figures in frontloaded witness statement on oath, pay slips and other
admissible documents, the total amount payable to a successful employee in
labour litigation. In few special cases, the help of an accountant is useful as
an expert witness to guide the court and the parties and, when necessary, the
onus to call an accountant as an expert witness or obtain and tender an
accountant’s opinion, lies on the party who will suffer in the absence of such
accounting evidence.

Now, let us do some
mathematics on compensation, as the court does in most employment cases, in
which an indefinitely suspended worker is successful, to arrive at what the
worker would be entitled to as damages. Suffice to say that if the matter is
resolved in favour of the company, it will be accordingly dismissed (sometimes
with costs against the worker) for lacking in merit.

(a)  Claim for
salaries in arrears

In order to found a claim
for salaries in arrears, the worker must specifically seek a declaratory relief
that his employment still subsists with the employer. Notwithstanding the power
of the court under section 254C(1)(h) of the Constitution, a court will not
grant a relief that is not sought by the claimant. In addition, the worker must
plead and prove his/her monthly salary by credible evidence. Additionally,
there must be factual pleadings and proof of the last payment by the employer
and the number of months or years which are outstanding. All applicable
deductions based on any staff loan, law or any prior agreement must be
considered by a court in arriving at what is due to the worker.

For instance, in the
decision by Justice Kola-Olalere, mentioned above, the worker’s pay slip for
the month of March 2011 was tendered and admitted in evidence showing the
worker’s total earning was N280,511.20. His total deduction was N59,127.24,
while his net pay was stated as N221,383.96. The facts of the case showed that
the employee was suspended by a letter dated 13th June 2011 till the date of
judgement, 16th October 2014, which equals to forty (40) months and three (3)
days in all! Now to translate the foregoing to monetary figure, the Court
multiplied the worker’s net pay, N221,383.96, by 40 months to arrive at
N8,855,358.40. For the extra three (3) days in October, the net pay
(N221,383.96) was divided by 31 days in the month of October, the result of
which (approximately N7,141.42) was multiplied by 3 to arrive at N21,424.25 as
the salary for the three (3) days. Consequently, the worker was awarded
N8,876,782.65 (i.e. the result of N8,855,358.40 plus N21,424.25) as his salary
arrears for the period of suspension! That was a huge but avoidable consequence
to the company, a growing company as at 2014!

(b)  Pension
contributions

Pension contribution is
one of the applicable deductions an employer makes from the earnings of a
worker to be credited, in addition to its own statutory contribution, to the
pension fund account of its workers. In Essang v. Akwa Ibom State
Government & Ors[1] (2015) 55 N.L.L.R. (Pt. 186) 93,
the National Industrial Court held that the Pension Reform Act 2004 (as amended
in 2014) does not regulate the employment relationship of an employer and
employee but only establishes the contributory pension scheme for employees in
public and private sectors. The jurisdiction of the National Industrial Court
on pension is limited to adjudging what is due and payable as pension
contributions in favour of a worker. An employee is entitled to judgement on
all outstanding contributions from the employer. However, even in the absence
of any express pronouncement in a judgement for a worker, the employer is at
liberty, without any additional liability, to remit the contributions to the
pension fund administrator of the worker in compliance with the law. Documents
showing the company’s remittal of the worker’s pension contributions are
admissible at trial to disprove a claim for pension benefit. A worker cannot
seek an order of the court to compel the employer to pay to him all his
outstanding pension contributions which are due from the employer, as this will
be contrary to the provisions of the Pension Reform Act.

(c)   Terminal
benefit, gratuity or severance package

Terminal benefit, gratuity
or severance package is a common feature contract of service in Nigeria. The
contract of employment must specifically provide for these benefits before a
claim can be founded on any of them. Any of these benefits is grantable if it
is provided in the employment contract and specifically prayed, pleaded and
proved in an employment litigation.

(d)  Annual
leave, maternity, transport, telephone and other allowances

The award of an allowance
will depend on the facts and evidence in each case. Annual leave is a right
guaranteed by law and, as such, will be due to worker in any employment.
However, leave allowance must be contained in an employment contract before it
can be claimed. In most employment contracts, leave allowance is payable to an
employee who has worked for a year as part of his/her annual package. Although
annual leave or maternity leave is a right derived from law, it is nonetheless
arguable whether an annual or maternity leave allowance is grantable to an
indefinitely suspended worker even if the contract provides for allowance but
without any express exclusion of staff on suspension. Transport or telephone
allowance appears to be payable to working staff as part of working expenses.
Transport or telephone allowance will not be appropriate in a judgement for an
indefinitely suspended worker unless otherwise proven by evidence. It is my
view that an employment contract must clearly provide for an allowance before a
claim can be founded on same.

(e)  Claim for
unlawful interference with the worker’s employment

Suspension is, no doubt,
an interference in a worker’s service, particularly if it denies him/her the
opportunity to make earnings, exercise his/her professionalism and grow in
his/her career. Whether suspension is a justifiable or unjustifiable
interference in a worker’s employment is a question of facts or mixed question
of facts and law. In my view, it is plausible for an employee to contend that
his/her suspension has negatively affected his/her chance of promotion and
career growth, particularly if his/her previous performance appraisals have
been favourable. Of course, I am aware of a decided case of an indefinitely
suspended worker whose claim for an alternative relief of N50,000,000 as
damages for unlawful interference with his employment was refused because the
court had awarded to him all his salaries in arrears. It is however not clear
whether the court would have granted a relief for exemplary damages to the
worker (if specifically prayed, as compared to seeking it as an alternative
relief) if same had been sought on the basis that his suspension interfered
with his employment and impaired his chance of promotion or career growth. In
my opinion, having strongly condemned the act of the employer in suspending the
worker indefinitely, the court, in that case, might have been inclined to grant
exemplary damages to punish the company on the ground of either being
sufficiently outrageous to merit punishment or being in flagrant disregard of
the parties’ contract and the law on best international labour practice.

(f)    Cost
of litigation

Cost of litigation is not
a straightforward relief that can be sought and granted, as a matter of course,
to a worker who is successful in an employment dispute. Generally, the
courts have held that it is unethical to attempt to pass on the burden of
counsel’s fees to the opposing party. However, there are provisions of the
National Industrial Act and the Rules of the Court that grant discretion to the
judge to award costs in employment litigation. Nevertheless, cost of action is
one which, if ever recoverable, lies in special damages which must be
specifically pleaded, strictly proven by cogent and compelling evidence and, of
course, prayed as a distinct relief. So, if supported by pleadings and
evidence, costs of litigation are grantable relief at the discretion of the
court.

(g)   Pre-judgement
and post-judgement interests

The National Industrial
Court appears not to have power to grant pre-judgement interest in accordance
with the provision of Order 47 Rule 7 of the 2017 Rules of the Court except
post-judgement interest. Order 47 Rule 7 of the 2017 Rules of the
Court permits the court to order interest a rate not less than 10% per annum
upon any judgement sum. What is clear is that 10% is the minimum rate a worker
can claim as interest on a judgement sum whilst the maximum is at the
discretion of the judge which, from experience, is usually not exceeding 20%
per annum.

5. Conclusion

From the above, it goes
without saying that suspension of a worker, however simplistic it appears given
that it has no procedure to follow, deserves to be taken seriously,
nevertheless, particularly if one considers the possible sum of the monetary
awards that are grantable against a company in favour of a worker under the
sub-headings above, namely: (a) arrears of salaries, (b) pension contributions,
(c) terminal, gratuity or severance package, (d) annual leave, maternity leave,
transportation, telephone and other allowances, (e) unlawful interference in the
worker’s employment, (f) cost of litigation, and (g) interest on judgement sum.

Therefore, suspension
should be followed by immediate investigation. Investigation should be thorough
and concluded timely, one way or the other. Report should always result from
all investigations, informing the affected worker as to whether he is indicted
or not indicted, and may contain recommendations for improvements to all the
parties concerned. After the report, the company should take a definite
position with regard to a suspended worker. All of these should be well
documented. None of these should be done by persons in the company who do not
have a thorough understanding of the company’s disciplinary procedures and the
guidance of legal advice.

 KayodeOmosehin, Esq. 

 Associate at Udo Udoma & Belo-Osagie

[1] Delivered
Obaseki-Osaghae J. NIC, Calabar, 1st December 2014. 

Ed’s Note – This article was first published here

Photo Credit – www.federalcompensation.com 

VAIDS and the need for effective tax administration in Nigeria | Olajide Olutuyi

by Legalnaija | Aug 14, 2017 | Uncategorized

As
part of efforts to improve non-oil revenue amid a global outlook of low oil
prices, Nigeria’s Acting President, Yemi Osinbajo, recently signed an Executive
Order (EO) on the Voluntary Asset and Income Declaration Scheme (VAIDS). The
main objective of the scheme – which commenced on July 1, 2017 and will last
for a period of nine months – is to help expand the country’s tax base.

Other
objectives of the scheme, as announced by the Minister of Finance, Kemi Adeosun,
include increasing tax-to-GDP ratio from 6% to 18% by 2020, and improving
compliance with existing tax laws. VAIDS is also expected to curb the use of
tax havens, discourage tax evasion, and tackle illicit financial flows. With
the introduction of VAIDS, the government hopes to encourage voluntary
disclosure of previously undisclosed assets and income and the payment of
outstanding tax liabilities.

In
one of its reports on Voluntary Disclosure Programmes, the Organization for
Economic Co-operation and Development (OECD) describes VDPs as “opportunities
offered by tax administrations to allow previously non-compliant taxpayers to
correct their tax affairs under specified terms. When drafted carefully,
voluntary disclosure programmes benefit everyone involved – taxpayers making
the disclosure, compliant taxpayers, and governments.” The Nigerian VAIDS is
being implemented by the Federal Inland Revenue Service (FIRS) in collaboration
with all 36 State Internal Revenue Services (IRS) and the FCT IRS.

While
signing the EO on the scheme, Osinbajo said it had become imperative for the
government to do something about the low level of tax compliance, adding that,
“When people pay taxes, they pay more attention to what government is doing.
There’s a greater level of political and social consciousness. Taxes are not
only about boosting government revenues. When people pay taxes, they hold the
government to account more.” He is right. In developed countries, citizens pay
their fair share of taxes and they have a say in the way their representatives
in government manage government funds.

Considering
Nigeria’s low tax-to-GDP ratio, and the fact that out of a taxable class of
about 69 million people, only 14 million are currently in the tax net, the
implementation of VAIDS could go a long way in increasing non-oil revenue.
Despite having a non-oil sector that accounts for up to 93% of Nigeria’s GDP,
government’s non-oil revenue in 2016 was N2.99 trillion (or 2.9% of GDP).
Suffice to say, though, that there was a decline in non-oil collection from the
N3.08 trillion recorded in 2015. Nevertheless, this does not alter the main
gist, which is the dismal performance of the non-oil sector in terms of
generating revenue for the government.

Permanent
and temporary disclosure schemes

Voluntary
disclosures regarding tax matters are not new in tax administration. Indeed,
VDPs are widely used in developed countries, helping to enhance the
effectiveness of their tax administration. Voluntary disclosure programmes can
generally be grouped into two categories, namely permanent or temporary
programmes. The Nigerian VAIDS is considered a temporary programme.

The
Canadian Voluntary Disclosures Program is a permanent programme. It gives
individuals and companies a second chance to change a tax return that was
previously filed or to file a return that should have been filed. To be
eligible, it must be voluntary. Should an individual or company be contacted by
the Canada Revenue Agency before making the disclosure, it won’t be considered
voluntary.

South
Africa also operates a permanent VDP as part of its tax administration.
However, a temporary VDP was introduced last year. Called the Special Voluntary
Disclosure Programme (SVDP), it is similar to Nigeria’s VAIDS. The SVDP window
period is between October 1, 2016 and August 31, 2017. It is meant for
individuals and companies who have not, in the past, disclosed tax and exchange
control defaults in relation to offshore assets.

In
developed countries, there are benefits associated with voluntary disclosure,
including reduced penalties and an allowance to negotiate for protection
against criminal prosecution – in serious cases of default.

In
the case of VAIDS, some benefits to individuals and companies were also listed
during the rollout, such as: immunity from prosecution for tax offences;
immunity from tax audit; waiver of interest; and waiver of penalties. However,
for there to be institutionalization of voluntary disclosure in Nigeria’s tax
administration, there needs to be an enactment of a permanent VDP law by the
National Assembly. The South African Revenue Service Voluntary Disclosure
Programme (VDP), which came into effect on October 1, 2012, is administered
under the Tax Administration Act, 2011.

VDPs
have been found to rake in significant funds for governments. Canada’s VDP
raked in $1.3 billion in the 2014-2015 fiscal year, out of which about $780
million came from offshore disclosures. Similarly, the United States Offshore
Voluntary Disclosure Program (OVDP) has raked in about $10 billion in taxes,
interest and penalties since 2009. In Nigeria’s case, the VAIDS has a tax
revenue target of $1 billion.

Revamping
tax administration

For
VAIDS or a future VDP law to be very successful, an efficient and effective tax
administration has to be in place. The country’s current tax administration is
bogged down with several issues, ranging from lack of accurate data, duplicity
of taxes and crude collection systems. These issues will need to be dealt with.

In
his book, The Wealth of Nations, published in 1776, Scottish economist, Adam
Smith, outlined the four principles or canons of a tax system: 1) “The subjects
of every state ought to contribute towards the support of the government, as
nearly as possible, in proportion to their respective abilities; that is, in
proportion to the revenue which they respectively enjoy under the protection of
the state.” 2) “The tax which each individual is bound to pay ought to be
certain, and not arbitrary. The time of payment, the manner of payment, the
quantity to be paid, ought all to be clear and plain to the contributor, and to
every other person.” 3) “Every tax ought to be levied at the time, or in the
manner, in which it is most likely to be convenient for the contributor to pay
it.” 4) “Every tax ought to be so contrived as both to take out and to keep out
of the pockets of the people as little as possible over and above what it
brings into the public treasury of the state.”

Modern-day
economists have re-stated the above four canons as: equality (everybody ought
to pay the same rate or percentage of his income as tax); certainty (there
should be no ambiguity about the time, manner and quantity of payment);
convenience (the sum, time and manner of payment of taxes should not be
burdensome to the taxpayer); and efficiency (taxes should be as simple as
possible and collection costs minimised). Much of these principles are lacking
in Nigeria’s tax administration.

The
FIRS and the Ministry of Finance would need to work hard to revamp the
country’s tax administration. Although Executive Chairman of the FIRS,
Babatunde Fowler, has expressed optimism that the agency and the government
will meet their revenue target for VAIDS, the tax agency will need to do more
than a temporary disclosure programme to boost tax revenue in the country. It
should also look at how a permanent VDP can be embedded in the tax
administration.

But
the much bigger task is putting in place policies to engender sustainable
inclusive economic growth, increase access to funding for small businesses and
revitalize the private sector. Tax revenue plays a key role in building the
economy. However, the economy has to be supported to grow and diversify. And
the economic diversification agenda of the government is hinged on boosting
non-oil revenue, of which tax revenue is a huge part of.  

While
VAIDS remains a temporary programme, the tax agency must also ensure punitive
measures for tax defaulters are clearly stated. Otherwise, VAIDS will soon join
the pool of several government programmes that were rolled out with pomp and
pageantry but never achieved their objectives.

In
designing an effective tax system, the FIRS and the Finance Ministry must bear
in mind the power of taxation, as James Madison, America’s fourth President
opined: “The power of taxing people and their property is essential to the very
existence of government.”

Olajide Olutuyi

Senior Financial Analyst at Scouts Canada

@jideolutuyi

This article was first published here

Difference between Letter of Dismissal & Letter of Termination | Adedunmade Onibokun

by Legalnaija | Aug 11, 2017 | Uncategorized

It
is important to note that an employment relationship cannot be forced upon
either an unwilling employer or employee. Therefore, an employer has a right to
hire and fire, likewise an employee has the right to resign from an employment.

Many a times, the words “dismissal” and “termination”
are used interchangeably when referring to an employee whose employment has
seized.  This may be appropriate in general
discussions, however, under the law, a dismissal and a termination of
employment have completely different interpretations and consequences. A letter
of resignation represents an employee’s desire to quit a job; however, the
effects of a letter of dismissal from an employer are quite different from
those of a letter of termination.  

The Oxford Dictionary describes the word “dismiss”
to mean to send away from one’s presence or employment, it also describes it as
meaning to “reject”. Likewise, a letter of dismissal is a rejection of the
employee by the employer, such rejection which is usually for a reason.  

The first difference between a dismissal
and a termination is that a dismissal is usually punitive in nature while a
termination is simply bringing an employment contract to an end. This implies that
while an employer may well under the law terminate an employment, choosing to
rather dismiss an employee seeks to punish that employee for an act of
misconduct. This was illustrated in Eigbe V Nigeria Union Of Teachers (2007)
LPELR-8310(CA) where the court held that –

“It is now well settled that in statutory
employment, as well as in private employment, the employer can dismiss an
employee where the accusations against such employee is of gross misconduct
involving dishonesty bordering on criminality, and in such a case, it is not
necessary, nor is it required under Section 36 (1) of the 1999 Constitution
that employee must be tried in a court of law.”

Another difference between a dismissal and
a termination is that, under a termination, the employee is liable to receive a
gratuity and other terminal benefits, however, an employee who has been
dismissed may not be liable to receive any such benefits. This is further
stated in Union Bank Of Nigeria Plc v. Soares (2012)
LPELR-8018(CA), where the court held that –

“There is a clear distinction between termination of a
contract of employment and a dismissal. Termination gives the parties the right
to determine the contract at any time by giving the prescribed period of
notice. Dismissal on the other hand, is a disciplinary measure which carries no
benefits.”

A third difference between a dismissal and
a termination is that, an employee whose contract of employment is terminated
without notice will be liable to collect a salary in lieu of notice, while this
is not the case under a dismissal. This was aptly put by the Supreme Court in Ekunola
V. Cbn & Anor. (2013)
LPELR-20391(SC) where the court deliberated whether an employee dismissed on the ground of allegation of gross
misconduct is entitled to notice or salary in lieu of notice, it was held that  –

 “Where his dismissal is founded on the
allegation of gross misconduct the appellant is not entitled to any notice or
salary in lieu of notice …………. And it would be wrong in law to make any awards
to him in these regards.”

The above is a guide to help when
considering, the legal implications of a letter of dismissal and a letter of
termination.

Adedunmade Onibokun

@adedunmade

dunmadeo@yahoo.com

Legal Contracts for Service and of Service in Employment Relationships |Micheal Dugeri

by Legalnaija | Aug 8, 2017 | Uncategorized

Introduction

Contracts of
service and contracts for service both connote an employment relationship
between the parties. However, they differ in their nature and the legal
consequences.  Understanding the
difference between both contracts is important for two main reasons, namely,
the nature of each party’s respective obligations, and which court has
jurisdiction in the event of dispute between the parties.

Delineation

A contract
of service is an agreement between an employer and an employee. In
a contract for service, an independent contractor, such as a self-employed
person or vendor, is engaged for a fee to carry out an assignment or project.

The line of
demarcation between an independent contractor and an employee is very thin and
the two concepts sometimes overlap. In such a situation, the question about the
relationship of employer and employee needs to be determined with reference to
the facts and circumstances of each case as to who are the parties to the
contract, who pays the wages, who has the power to dismiss, what is the nature
of the job, and the place of executing the job, all have to be kept in mind.

The Supreme Court, in Shena Security Co.
Ltd v. Afropak (Nig.) Ltd & 2 Others [2008] 18 NWLR (Pt. 1118) 77 SC; [2008] 4 – 5 SC (Pt. II) 117 laid
down the following factors that should guide courts in determining which kind
of contract the parties entered into –

If
payments are made by way of “wages” or “salaries” this is indicative that the contract is one
of service. If it is a contract for service, the independent contractor gets
his payment by way of “fees”. In like manner, where payment
is by way of commission only or on the completion of the job, that indicates
that the contract is for service.

Where
the employer supplies the tools and other capital equipment there is a strong
likelihood that the contract is that of employment or of service. But where the
person engaged has to invest and provide capital for the work to progress that
indicates that it is a contract for service.

In a
contract of service/employment, it is inconsistent for an employer to delegate
his duties under the contract. Thus, where a contract allows a person to
delegate his duties there under, it becomes a contract for services.

Where
the hours of work are not fixed it is not a contract of employment/of service.
See Milway (Southern) Ltd v. Willshire [1978] 1 RLR 322.

It is
not fatal to the existence of a contract of employment/of service that the work
is not carried out on the emjployer’s premises. However, a contract which
allows the work to be carried on outside the employer’s premises is more likely
to be a contract for service.

Where
an office accommodation and a secretary are provided by the employer, it is a
contract of service/of employment.

Dispute resolution in contracts of service
and for service

Jurisdiction is the all important factor
that the courts will consider in any case that is brought before them. It is
tempting to assume that all employment or work related disputes are to be
settled by the National Industrial Court (NIC) by virtue of the Constitution of
the Federal Republic of Nigeria (Third Alteration) Act 2010. However, this is
not always the case.

Section 254 C (i) (a) of the Act provides
that “the National Industrial Court shall
have and exercise jurisdiction to the exclusion of any other court in civil
causes and matters (a) relating to or connected with any labour, employment,
trade unions, industrial relations and matters arising from workplace, the
conditions of service, including health, safety, welfare of labour, employee,
worker and matters incidental thereto or connected therewith”.

The above provision notwithstanding, the NIC
has held in many cases that its jurisdiction covers only disputes relating to contracts
of service, and not contracts for service. This means that only strictly
employment contracts may be litigated before the NIC. Cases of an independent
contractor, such as a self-employed person or vendor, engaged for a fee to carry
out an assignment or project, are not justiciable before the NIC. Such cases
may therefore be more appropriately brought before the regular courts (i.e High
courts or magistrates courts, depending on the circumstances). In other words,
breach of contract for service is regarded as any other breach of contract and
treated as such.

In a recent case of The Registered
Trustees of Three Wheeler Beneficiaries Operators Association, Lagos State v.
Road Transport Employers Association of Nigeria (unreported Suit No.
NICN/LA/407/2013), the ruling of which was delivered on 10th May 2017, the NIC held
thus:

“This
Court does not have jurisdiction over every workplace issue. For instance, as
against contracts of service,
this Court does not assume jurisdiction over contracts for service, and yet contracts for service are workplace issues
strictly so called. See Mr. Henry Adoh
v. EMC Communications Infrastructure Limited [2015] 55 NLLR (Pt. 189)
546 NIC, Ozafe Nigeria Limited v.
Access Bank of Nigeria Plc unreported Suit No. NICN/LA/179/2014 the
ruling of which was delivered on 16th March 2016 and Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and
Engineering Co. Ltd) v. National Directorate of Employment & Another
unreported Appeal No. CA/OW/32/2015 the ruling of which was delivered on 22nd
May 2015”.

In the case of Lawrence Igwegbe v. Standard Alliance
Life Assurance Limited (unreported Suit No. NICN/LA/465/2013),
the judgment of which was delivered on 11 July 2017, the NIC had to determine on
the facts before it, if the relationship between the Claimant and the Defendant
was one of an employment relationship (contract of service) or one in
which the claimant was an independent contractor (contract for service).
The court held that the fact that the Claimant was on commission and not on
salary was very suggestive that the relationship was one of a contract for
service. The court relied on the Supreme Court decision in Shena Security Co. Ltd and held
that salary is a component part of the employment relationship strictly
speaking (contract of service).

The facts of the case are that the Claimant
was employed as Agency Manager by the Defendant, who is an insurance company.
While the Claimant argued before the court that his relationship with the
Defendant was an employment relationship, his evidence before the court showed
that he was on commission and not on a salary. This meant that he was an
independent contractor to the Defendant, and not necessarily its staff. The
court in this case took judicial notice of the fact that insurance agents are
in the main not salaried employees, but are paid commission based on the volume
of insurance business they bring in. The court declined jurisdiction, since it
was a case of contract for service as against contract of service.  

In the case of Engr.
Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co.
Ltd) v. National Directorate of Employment & Another, the claimant had
entered into a contract as a trainer with the 1st defendant under the 1st
defendant’s National Open Apprenticeship Scheme of Skill Acquisition Programme.
As a result, the 1st defendant sent trainees to the claimant for training.
Between 1996 and 2000, the claimant trained for the 1st defendant a total
number of 2204 trainees at the training cost of N6,000.00 per trainee bringing
the total debt owed the claimant to N13,776,000.00 only. When the 1st defendant
refused to pay this sum after repeated demands, the claimant accordingly sued
for it at the Federal High Court. The Federal High Court transferred the matter
to the Owerri Division of the NIC on the ground that the issue is a labour
issue in respect of which it had no jurisdiction given the provision of section
254C(1) of the 1999 Constitution, as amended.

The NIC, not certain as to whether it had
jurisdiction either, decided to refer the case to the Court of Appeal to
determine if the NIC has jurisdiction over contracts for service. In
determining this issue, the Court of Appeal held that the court with
jurisdiction, considering the facts of the case, was the State High Court, and
not the Federal High Court nor the NIC. The Court of Appeal based its decision
on the fact that the case arose from a simple contract between the claimant and
the 1st defendant/respondent; and that the relationship between the parties was
contractual, the contract being one of contract for service as opposed to a
contract of service. The Court of Appeal then considered section 254C (1) in
terms of the jurisdiction of the NIC, section 251(1) in terms of the
jurisdiction of the Federal High Court and section 272(1), (2) and (3) in terms
of the jurisdiction of the State High Court, and then concluded that the claims
of the claimant in the case do not relate to the sections dealing with the
jurisdiction of the NIC and the Federal High Court. Relying on Onuorah v. Kaduna refining and Petrochemical Co. Ltd [2005] LPELR 2707 (SC)
and Integrated Timber & Plywood Products Ltd v. Union Bank of Nig. Plc
[2006] 5 SCNJ 289, the Court of Appeal held that neither the NIC nor the
Federal High Court had jurisdiction over the matter.

Employer tax obligations in contracts of
service and contracts for service

Employees under contract of service are deemed to
have employment contract with the organisation that they work for, which
entitle them to employment benefits such as wages and salary, pension, medical
insurance and other similar employment benefits. In a contract for service,
however, an independent, self-employed, individual is contracted to provide a
specific service for the organisation in return for a fee. There is no
employer-employee relationship between the organisation and the employees of
the independent contractor.

Section 81 of the Personal Income Tax Act Cap P8,
LFN 2004, as amended to date (PITA) provides that for employees – under a
contract of service, it is the responsibility of their employers to deduct and
remit income taxes from the emoluments paid to such employees. Section 82 of
PITA provides further that the employer is answerable to the tax authorities
for taxes deducted from the employees. The employer is required to file annual
returns in respect of emoluments paid to their employees and account for the
taxes withheld and remitted to the relevant tax authorities.

Section 81(2) of PITA requires the employer to file
annual returns not later than 31 January of every year in respect of all
emoluments paid to its employees in the preceding year. Failure to comply
attracts a penalty, upon conviction. Whenever the tax authorities intend to
conduct tax audit enquiries in respect of employees’ personal income taxes, the
employer is usually held answerable.

In cases of contracts for service, however, the
independent contractor or self-employed individual is personally responsible
for his own taxes. Such individuals are expected to file personal income tax
returns under the self-assessment regime. However, the company to whom the
services are rendered has the responsibility for deducting and remitting
withholding taxes on the fees payable under the contract at applicable rate. In
the same vein, a self-employed individual has an obligation to register for
value added tax (VAT) and charge VAT on invoices issued for services rendered,
unless such service is specifically exempt from VAT.

The Value Added Tax Act Cap V1 LFN 2004 as amended
(VATA) defines a taxable person as an individual or body of individuals,
family, corporations sole, trustee or executor or a person who carries out in a
place an economic activity, a person exploiting tangible or intangible property
for the purpose of obtaining income therefrom by way of trade or business or a
person or agency of government acting in that capacity. For the purpose of
VATA, an individuals under a contract for service falls under this category.

In addition to the need to account for tax, the Pension
Reform Act, 2104 mandates employers with five or more employees to make
contributions on behalf of their employees into an approved pension fund. As
explained earlier, individuals with contracts of service are employees. Hence,
pension contributions are mandated for them but not for individuals with a
contract for service. Individual with a contract for service could make
voluntary pension contributions into their Retirement Savings Account (RSA) if
they so desire.

Conclusion

In the world of work, it is not always easy
to distinguish a contract of service from a contract for service. Sometimes,
the nature of the relationship between the parties is deliberately made nebulous
in order to hide its true identity (and thereby deny one party of certain
rights). The International Labour Organisation (ILO), well aware of
this fact, has provided guidance on how Courts should approach the issue, if it
arises. In the ILO Report titled, The Scope of the Employment Relationship
(ILO Office: Geneva), 2003 at pages 23 – 25, it is stated thus:

The
determination of the existence of an employment relationship should be guided
by the facts of what was actually agreed and performed by the parties, and not
by the name they have given the contract. That is why the existence of an
employment relationship depends on certain objective conditions being met (the
form in which the worker and the employer have established their respective
positions, rights and obligations, and the actual services to be provided), and
not on how either or both of the parties, describe the relationship. This is
known in law as the principle of the primacy of facts, which is explicitly
enshrined in some national systems. This principle might also be applied by
judges in the absence of an express rule.

The ILO concluded by advising that the
Judge in a labour dispute must normally decide on the basis of the facts,
irrespective of how the parties construe or describe a given contractual
relationship.

Micheal Dugeri

Corporate Commercial Lawyer at Austen-Peters & Co.

Senate Conducts Overight Of The Lagos – Ibadan Segment Of The Lagos To Kano Railway Modernisation Project

by Legalnaija | Aug 8, 2017 | Uncategorized

The Joint Senate Committee on Local and
Foreign Debt and Land Transport on Monday, 7^th August, 2017
conducted an oversight visit to the Nigerian Railway Corporation Headquarters
and the Project Office of the China Civil Engineering Construction
Corporation CCECC in Ebute Metta, Lagos. The purpose of the visit was to assist
the committee assess the project implementation plan for the recently approved
loan request by the Federal Government from the China Exim Bank for the purpose
of completing various railway rehabilitation/construction projects across the country.

Chairman of the Senate Committee on Land
Transport Senator, Gbenga B Ashafa, and Chairman, Senate Committee on Local and
Foreign Debts, Senator Shehu Sanni, led the delegation from the Senate. Other
members of the Joint Committee who were present include Senator Yahaya Abdulai
and Senator Philip A. Gyunka. The Permanent Secretary of the
Ministry of Transport, Alhaji Sabiu Zakari, Managing Director of the Nigerian
Railway Corporation, Mr. Fidet Okhiria and the representative of the Managing
Director of CCECC, Mr. Leo Yinv received the Senators.

In his speech, Ashafa stated, “The focus of
this visit is to immediately set in perspective our commitment to ensuring a
high level of accountability in public expenditure. This is in line with our
constitutional responsibility to carry out periodic oversight functions to the
Ministries, Departments and Agencies under the supervision of the Joint
Committee.”

Speaking further, the Senator called on the
project contractor CCECC to ensure that they maximize the local materials and
manpower in order to have direct impact on the Nigerian Economy. In his words,
“We are confident that the Lagos to Kano, and Calabar to Lagos
railway modernization projects would in no small way further reinvigorate
the Nigerian economy through the creation jobs. We therefore call on CCECC to
maximize local content in the in the area of raw materials and labour force.”

In Similar Vein, the Chairman of the Senate
Committee on Local and Foreign debt, Senator Shehu Sanni stated that with the
recent approval of the Railway Loan by the Senate, the Contractor has no excuse
but to deliver on  its mandate.

On his part, the representative of the
contractor, Mr. Leo Yinv took the members of the committee through the Project
Implementation Plan for the completion of the Lagos to Ibadan Segment of the
Lagos to Kano Railway modernization project and assured that while all
pre-fabrication works was being done in the interim, substantial earthwork
would commence on the project towards the end of November 2017.

From the headquarters of project in Ebute
Metta, the Senators also conducted an on the spot assessment of the earthwork
of the project across Lagos and assured all stakeholders of the Nigerian
Senate’s commitment to assisting the Executive arm in the actualization of
every developmental project within its purview.

Industries liable to receive Pioneer Status in Nigeria

by Legalnaija | Aug 8, 2017 | Uncategorized

The federal government on Monday, 7th August, 2017 , released
the full list of the 27 key industries and products included in the revised
list of ‘pioneer status’ incentives for prospective investors. This include –

1.     Mining and
processing of coal;

2.     Processing and
preservation of meat/poultry and production of meat/poultry products

3.     Manufacture of
starches and starch products;

4.     Processing of
cocoa;

5.     Manufacture of
animal feeds;

6.     Tanning and
dressing of Leather;

7.     Manufacture of
leather footwear, luggage and handbags;

8.     Manufacture of
household and personal hygiene paper products;

9.     Manufacture of
paints, vanishes and printing ink;

10.    Manufacture
of plastic products (builders’ plastic ware) and moulds;

11.  Manufacture
of batteries and accumulators;

12.   Manufacture
of steam generators;

13. Manufacture
of railway locomotives, wagons and rolling stock;

14.  Manufacture
of metal-forming machinery and machine tools;

15.  Manufacture
of machinery for metallurgy;

16.Manufacture
of machinery for food and beverage processing;

17. Manufacture
of machinery for textile, apparel and leather production;

18. Manufacture
of machinery for paper and paperboard production;

19.   Manufacture
of plastics and rubber machinery;

20.Waste
treatment, disposal and material recovery;

21. E-commerce
services;

22. Software
development and publishing;

23.    Motion
picture, video and television programme production, distribution, exhibition
and photography;

24.   Music
production, publishing and distribution;

25.   Real
estate investment vehicles under the Investments and Securities Act;

26.Mortgage
backed securities under the Investments and Securities Act; and

27.Business
process outsourcing.

Photo Credit – Here  

You can sue for a breach of promise to marry

by Legalnaija | Aug 4, 2017 | Uncategorized

The Nigerian culture takes marriage really serious;
many young adults consider settling down as quite important and enter
relationships with the intention of spending time with this partner. Such relationships
could include casual flings, having an exclusive dating relationship or even
had led to an engagement with a promise to marry. However, sometimes these
relationships don’t work out and parties stop dating or being friends all
together.

What if a heart break could entitle you to financial
damages, will you act on it? So you met a great guy that swept you off your
feet, you had envisioned life with your man and maybe he had even proposed to
you before your friends and family. You gave him your world and you had both
agreed to get married but at the end of the day he ditched you for someone
else. The hurt sometimes can only be best imagined. However, did you know that
you may be entitled to damages for a breach of contract to marry?  

Nigerian law states that an agreement to
enter into a marriage should leave nobody in doubt as to the real intention of
the parties to enter into a marriage. A mere convivial or romantic relationship
without more is not enough for a court to found an agreement to marry. In
essence, there must have been a promise to marry. A promise to marry can be a
“betrothal”, an “engagement to be married” also termed “agreement to marry”. Such
agreement need not also be formal such as a written agreement as it may also be
oral.

For the purpose of proving a claim, two
elements are necessary to constitute a breach of agreement or promise of
marriage. First, the party jilted must prove to the satisfaction of the court
that there was in fact a promise of marriage under the Matrimonial Causes Act,
1990, or under Islamic Law or under Customary Law, on the part of the other
sex. Second, the party reneging has really, and as a matter of fact, failed or
refused to keep to the agreement of marriage.

In proving that there was a breach of
promise to marry, the claim must be corroborated by another witness or other
material evidence such as correspondences and communications, as the law specifically
states corroboration is required in actions of breach of promise of marriage. The
reliefs you can seek in court shall however be limited to damages as the court cannot
compel anyone to marry another. Extent of damages for such breach is however at
the discretion of the court.

Damages awarded by courts fall under the
following categories: general damages e.g. compensation for the loss of
consortium of the other party; injured feelings, wounded pride, etc ; special
damages affecting property e.g for money spent or financial loss sustained by
the plaintiff as a direct result of the defendant’s breach of the promise to
marry; recovery of the engagement ring and presents. An interesting thing to
note is that damages could also be claimed against a third party who induced
the breach.

It is important to note that not everyone
is bound by a breach of promise to marry. The other party may also have valid
reasons of defences for not carrying out the obligation. Such may include false
representation, or fraudulent concealment in material particulars, of the
pecuniary circumstances or previous life of the claimant. The bad character of
the claimant will also excuse the defendant from performance of the contract,
unless he or she was aware of the plaintiff’s character before making the
promise.

Physical or mental incapacity may give rise
to a right to terminate the engagement in limited circumstances. No disease or
infirmity short of absolute incapacity on the part of the defendant will avail
him or her, however, even if it is proved that the performance of marital
duties would endanger his or her life. The fact that the defendant honestly and
reasonably believed the plaintiff to be unfit to marry is no defence if the
plaintiff was in fact fit. Also, it is a defence to an action for breach of
promise that the plaintiff has released or discharged the defendant from
performance before any breach of the contract occurs. The release may be
express or implied.

What do you think, would you sue an ex for
a breach of promise to marry?

1.     www.lawreform.ie.
(2017). THE LAW RELATING TO BREACH OF PROMISE OF MARRIAGE. Available:
http://www.lawreform.ie/_fileupload/consultation%20papers/wpBreachofPromise.htm.
Last accessed 4th August, 2017.

2.     Ezeanah v. Atta
(2004) 7 NWLR (Pt. 873)468

3.     Lambe v. Jolayemi
(2002) 13 NWLR (Pt. 784) Pg. 356 Paras. E – G

4.     Orumor. (11th
October, 2016 ). The breach of promise to marry and its legal
consequences. Available:
https://guardian.ng/features/the-breach-of-promise-to-marry-and-its-legal-consequences/.
Last accessed 4th August, 2017 .

5.     The Honourable (Mr)
Justice Adebayo Manuwa v. National Judicial Council & Ors (2011)
LPELR-5015(CA)

Adedunmade
Onibokun

dunmadeo@yahoo.com

Photo Credit – www.patch.com 

3 things you can do when the police breach your legal rights | Adedunmade Onibokun

by Legalnaija | Aug 4, 2017 | Uncategorized

That “Police is your friend” or “bail is
free’, a Nigerian will tell you is one of the biggest lies ever told in our
nation. If you doubt me, stop and ask any random person on the road or conduct
a poll. Daily, the news is filled with stories of police officers boldly collecting
bribes, demanding that bail be paid and even unlawfully extorting citizens. This
coming from a police that is employed to protect the citizenry and enforce our
laws is a big blow to democracy and life in Nigeria.

Sadly, the police hierarchy pays only lip
service to this problem that has bedeviled the police force for years. The
police condones such behavior from its officers else how can an officer have
the courage to stand in a police station and demand for bail, it is because he
or she knows that fellow colleagues in the station will not castigate the act
neither will the superiors punish it. Rather, other police officers will cover
up their law breaking colleague and even bear false witness against the victim.
But for how long will Nigerians tolerate these illegal and unscrupulous acts
from the Nigerian police. When will Nigerians be able to beat their chest and
credibly expect justice from the police. Our police officers have turned to the
job to a cartel of sorts and have succeeded in ridiculing the institution both
locally and internationally.

As active and responsible citizens, it is
important we raise our voice against the despicable acts. Due to fear, many Nigerians
have kept quiet and allowed these unruly behavior to go unchecked. Below are
steps a Nigerian or anyone visiting the country can take when faced with a
policeman who seeks to breach your legal rights or take advantage of you.

1.    
Make an official
complaint

The police in a bid
to clean up its ranks has established a procedure for reporting officers for
unethical acts or behaviours. The police has created the police complaints unit
dedicated to handling complaints against police officers. Via http://npf.gov.ng/complaint/, you can
register a complaint against any police officer. The Complaints unit can also
be reached via phone on 08057000001 or 08057000002. You may also send SMS via
08057000003 or via twitter and email on @policeNG_PCRRU and policepcrru@gmail.com respectively.

According to the
Police Complaints website on 4/8/2017, in the 1^st quarter of 2017,
there have been over 498 total complaints received, out of which over 355 have
been closed or treated. The poor numbers of reports shows that not many
Nigerians are using the complaints unit to make complaints against the police. It
is recommended that more people do same.

2.    
Institute Legal
Proceedings against the police

The court is
described as the last hope for the common man to get justice. Hence it is
important for persons to approach the courts if their fundamental human rights
have been breached by members of the police force. The Nigerian Constitution
even provides in Section 35(6) that “ any person who is unlawfully arrested or
detained shall be entitled to compensation and public apology”. In instituting
legal action against the police it is important that the victim approaches a
good lawyer who will present the matter before the courts.

3.    
Use social media

The power of social
media can never be overemphasized. If you have the opportunity to record the
police officer in the act of extortion  or
committing an offence, post same on social media and crucify such officer on
the altar of public opinion.

Bad people prevail when good people do
nothing.

Adedunmade Onibokun Esq

dunmadeo@yahoo.com 

Photo Credit – www.pulse.ng