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Star Profile – Mr. Femi Falana SAN, LL.B, B.L, FCI, Arb.

by Legalnaija | Aug 18, 2017 | Uncategorized

Femi Falana, a native of Ilawe , Ekiti State,
Nigeria was born on May 20, 1958. Femi Falana’s primary education began at St.
Michael’s Primary School, Ilawe, between 1963 and 1968. After which, Femi
attended Sacred Heart Catholic Seminary between 1971 and 1975.

Upon gaining admission into the University
of Ife (Obafemi Awolowo University), he studied law between 1977 and 1981 and was
called to the bar a year after. He worked with the Public Complaints
Commission between 1982 and 1983 and practiced
as a lawyer under the firm of Alao Aka –Bashorun & CO. between1983 and 1991.
In 1991, Femi Falana began his own
Chambers which is now known as Falana and Falana Chambers, having his wife
Funmi as a partner a partner.

Femi Falana, popularly known as a human
right activist, has championed legal causes in support of human rights all through
his legal career. He is renowned for providing free legal services to the poor
and disadvantaged and had suffered long spells in detention under Nigeria’s
past military dictators. Femi also contested and lost the governorship election
of Ekiti State in 2007 on the platform of National Conscience Party,
a party he served as National Chairman in 2011.

For his legal prowess, he was conferred with
the rank, Senior Advocate of Nigeria in 2012. Femi has published may articles,
papers and books including –

·
Fundamental
Rights Enforcement, Legaltext Publishing Company 2005 (251 pages)

·
Legal
and Policy Framework of Occupational Health and Safety in Nigeria in Idowu
Awopetu et al (eds) (1998)

·
WORKING
IN DANGER, P. 52, a CDHR Publication, Editor-in-Chief, Weekly Report of Nigeria;

Femi Falana
belongs to many Professional Memberships and held various leadership positions
such as President,
West African Bar Association, Member, Nigerian Bar Association and Member, West
African Bar Association, Member, Pan African Lawyers Union and Member,
International Bar Association. Mr Femi Falana ia a recipient of National and
International Awards / Honour. some of which are: “Defender of the year Award”
from the international league for Human Rights in 2000; The Ogoni merit award –
2002; Dr Kwame Nkrumah leadership award 2003; and Bernard Simon memorial award
for the advancement of human rights- 2003.

Falana & Falana’s Chambers is a leading
law firm in constitutional law and human rights services. His firm has
also represented many victims of human rights violation in Nigerian Courts and
the ECOWAS Community Court.

Nigerian Startup Registration in 2017: a Necessity or Luxury? | Adejorin D. Abiona

by Legalnaija | Aug 18, 2017 | Uncategorized

When starting a business, one of the major considerations on the minds of
the owners/ promoters is whether or not registration is needed at that material
time. This of course may be borne of the desire to justify every expense to be
incurred by a newly formed startup i.e. every penny has to provide a return on
the investment. Registration of a startup may seem unnecessary at the beginning
stage of a business to the owner but this should not be the case. This article
will look into registration of startups in Nigeria with focus on the major
reasons for registration and drawing a conclusion on whether registration is a
necessity or not.

Business structures

The legal structure chosen for a business has major implications. In
choosing a structure for a business, factors such as the potential risks and
liabilities of the business, the objects of the business, the costs involved in
establishing and maintaining the business structure and tax implications should
be taken into consideration. The promoters/owners of a business must decide on
the legal structure that best meets their needs, as this will determine the
type of registration procedures that will be followed.

There are three commons ways to structure a startup in Nigeria:

Sole trader: This consists of an individual trading on his own. He controls and
manages the business. It is the simplest business structure and easy to set up
with minimal costs. A sole trader is solely responsible for the liabilities of
the business and also solely enjoys the profits. The main disadvantage of this
structure is that there is no protection for the personal assets of the
Proprietor in the event that the business fails as his assets become available
to pay off creditors.

Partnership: This involves an agreement between two or more
people to go into business together. Each of the partners will be jointly and
severally liable for the debt of the partnership. It is not necessary for all
the partners to be fully involved in the management of the business but they
all share the profits or loss as the case may be.

Limited Liability
Company: This is a
legal entity separate from its shareholders, directors and employees. Liability
here is limited to the amount invested in the company as shares. Hence, the
shareholders enjoy a form of protection on their personal assets in the event
that the company goes into liquidation.

The body generally responsible for registration of businesses in Nigeria
is the Corporate Affairs Commission (CAC)[1].

Why register a startup?

Compliance with the
law

The Law makes it mandatory for every individual, firm or corporation
operating under a business name to register their business within 28 days of
commencement[2]. Also a limited
liability company can only be formed in the manner set out by the law[3]. Hence, in order to comply with
the provisions of the Law, a startup must be registered.

The law that primarily provides for registration of business
organizations in Nigeria is the Companies and Allied Matters Act (CAMA) 1990[4].

Brand reputation
and public perception

Building a reputation with new clients and customers may seem very
difficult. Registration enhances the public perception of a startup and gives
potential clients the confidence that they are dealing with a reputable
business. Also, there are many businesses who will not engage with an
unregistered startup because of their status and reputation.

Registration gives the assurance that the business is legitimate and
reputable.

Bank Account

To open a business bank account for a startup, proof of registration is
always a necessary requirement. Banks will not open a business account for an
unregistered startup. Having a business account gives a startup more
credibility and trust from the customers, bank, other associated businesses and
the public. The account also ensures that business funds are not diverted for
personal use.

Loan Facilities

Most Financial Institutions give business loans only to registered
businesses. The Institutions in order to protect their interest and to ensure
repayment of loan facilities would naturally need an assurance that a business
is legitimate and the facilities would be put into proper use. This assurance
is easily seen in a registered startup and this is why registration is a
non-negotiable requirement to qualify for such loans.

Brand identity
Protection

Registration gives a unique identity to a startup and such is also
protected under the law. By the provision of law, no two businesses should have
the same name or names so identical as to confuse the public. Once a business
name is registered, such name is recorded and recognized by the government and
as such, no other business can register with that same name.

A registered business name enjoys the advantage of protection against
competitive usage within the country.

Liability
Protection

When a startup is registered as a limited liability company, the business
becomes a different entity for its owners. The owners can not be personally
held liable for the debt of the company. This means that no one can legally go
after the personal properties of the business owners in case the business goes
into liquidation or to enforce any claim against the Company.

Registration as a limited liability company protects the personal assets
of the business owners.

Continuity

A registered startup has the ability to live longer than its owners. This
means that even if the business owners become incapacitated or dead, the
business will not close down especially when a proper structure is in place.

A registered startup is an asset transferrable to the next generations.

How to register a Startup

Registration of a startup in Nigeria involves some processes including
filling of forms and filing of some documents. It is advisable to engage the
services of persons with experience in this field who can streamline the
process and get the business registered within a very short period of time.

Conclusion

Registration of a startup may seem to be an investment without direct
return but similar to insurance. It will definitely cost money, time and
effort. However, this is a necessary price to pay for the protection of the
business, business owners and associated businesses. It is always advisable to
register a startup in order to enjoy the benefits stated above which are indeed
necessary for the smooth running and the image of the startup. Hence, it is not
a luxury to register a startup but a necessity.

[1] Section 1,
Companies and Allied Matters Act (CAMA) 1990, CAP C20, LFN 2004

[2] Section 574,
Companies and Allied Matters Act (CAMA) 1990, CAP C20, LFN 2004.

(Exceptions to this provision is contained in Section 573 CAMA)

[3] Section 35,
Companies and Allied Matters Act (CAMA) 1990, CAP C20, LFN 2004.

[4] CAP C20, LFN
2004.

Adejorin D. Abiona

Associate Attorney | Writer | Public Speaker

Ed’s Note – Article was first
published here

Photo Credit – https://www.etaxcorporate.com

Overview of the Legal requirements for revocation of certificate of occupancy in Nigeria | Teingo Inko-Tariah

by Legalnaija | Aug 18, 2017 | Uncategorized

Introduction

A certificate of occupancy is a document
that evidences the grant of a right of occupancy over land in Nigeria given by
the appropriate authority i.e. the Governor of a State [i]. The
Constitution of Nigeria provides that every citizen of Nigeria has a right to
acquire and own immovable property in Nigeria [ii]. However, such
acquisition and ownership of land is regulated by the principal statute for the
administration of land in Nigeria – Land Use Act (LUA) of 1978. All laws
relating to registration of title to or interest in land or transfer of title
or interest are required to comply with the Land Use Act [iii].
By the provision of the said Act, all land in each state of the Federation is
vested in the Governor of that State who is empowered to hold such land in
trust and administer same for the benefit of all Nigerians.[iv]

It is worth noting that the concept of
ownership in the sense of absolute dominion does not apply with regards to land [v] because
the right to convey/transfer title which is a fundamental ingredient of
ownership is subjected to the consent of the Governor thus, qualifying the
ownership of land. The nature of the title that is usually acquired over land
is that of a right of occupancy i.e. the right to lawfully use and occupy land.
A right of occupancy could either be ‘statutory’ in which case it will granted
by the Governor over land in urban and non-urban areas [vi]; or
‘Customary’, in which case, it will be over land in areas other than urban
areas [vii] and
granted by the relevant Local Government Authority [viii].

A certificate of occupancy is usually
granted for a term of 99 years subject to renewal [ix]. The
certificate would clearly state the terms and conditions of the grant [x] and
where the holder of such certificate of occupancy fails to comply with the
stated terms, the certificate of occupancy could be revoked or the holder may
be penalized.[xi] The
holder of a right of occupancy over land is prohibited by law from parting with
any portion of the land granted to him by way of mortgage, transfer of
possession, assignment, sub-lease or any other manner without first obtaining
consent to do so from the Governor [xii].
Any transaction which purports to transfer any interest or right over land in
Nigeria without complying with the provisions of the LUA shall be null and void [xiii].

Circumstances under which right of
occupancy may be revoked.

A right of occupancy may be revoked by the
Governor in accordance with the provisions of the Land Use Act and the law
provides the circumstances under which the right of occupancy over land may be
revoked as well as the procedure to be followed. A right of occupancy may be
revoked for overriding public interest [xiv].
The term ‘overriding public interest’ has been clearly defined by the law as
follows [xv]:

a) Where
the holder of a statutory right of occupancy parts with the land in any manner
contrary to the law or other regulatory provisions;

b) Where
the land over which statutory right of occupancy is granted is required by the
State or Federal Government for public purposes [xvi]

c) Where
the land over which a statutory right of occupancy is granted is required for
oil pipeline or any related purpose;

d) Where
the holder of a customary right of occupancy parts with the said land without
the requisite consent;

e) Where
the land over which customary right of occupancy is granted is required by the
Federal or State Government for public purpose

f) Where
the land over which customary right of occupancy is granted is required for
mining purposes, oil pipeline or related purposes; or for the extraction of
building materials;

g) Breach
of any provisions or any term contained in the certificate of occupancy or any
special contract made in accordance with the law in relation to the grant of
the right of occupancy;

h) Refusal
to accept to pay for certificate of occupancy granted by the Governor.

Note that the law does not give the
Governor any additional discretionary powers to determine what constitutes
‘overriding public interest’. However, since the inception of the Land Use Act
in 1978, there have been cases of abuse of powers by Governors and Military
administrators in the exercise of their lawful authority to revoke a right of
occupancy. In the case of C.S.S Bookshops Ltd v. The Registered Trustees
of Muslim Community in Rivers State & Others [xvii] the
Supreme Court held that the revocation of the Appellant’s right of occupancy
was wrongful as it did not comply with the provisions of S. 28 of the Land Use
Act. In that case, Mohammed JSC delivering the lead judgement held as follows:

“It is not at all in doubt that
the provisions of section 28 of the Act contains comprehensive provisions to
guide the Governor of a State in the exercise of his vast powers of control of
land within the territorial areas of his State particularly the power of
revocation of a right of occupancy. One of the preconditions for the exercise
of this power of revocation is that it must be shown clearly to be for
overriding public interest. In order not to leave the Governor in any doubt as
to the conditions for the exercise of his powers, the law went further to
provide adequate guidance by defining in clear terms what overriding public
interest means in the case of a statutory right of occupancy under the Act in
subsection (2) of section 28. What this means of course is obvious. Any
revocation of a right of occupancy by the Governor in exercise of powers under
the Act must be within the confine of the provisions of section 28 of the Act.
Consequently, any exercise of this power of revocation for purposes outside
those outlined or enumerated by section 28 of the Act or not carried out in
compliance with provisions of the section, can be regarded as being against the
policy and intention of the Land Use Act resulting in the exercise of the power
being declared invalid, null and void by a competent court in exercise of its
jurisdiction on a complaint by an aggrieved party. See Osho v. Foreign Finance
Corporation (1991) 4 NWLR (Pt.184) 157; Olohunde v. Adeyoju (2000) 10 NWLR
(Pt.676) 562; Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) 457 at 483”

Where a right of occupancy is revoked, the
holder will be entitled to compensation in accordance with the law based on the
value of the unexhausted improvements made to the land. Compensation would
depend on the reason for revocation and may take the form of resettlement in
any other place or area by way of reasonable alternative [xviii].
Note that compensation has nothing to do with the current market value of the
land as the land is not ‘owned’ by the occupier as hinted above. The payment of
annual ground rent further buttresses this point.

Procedure
for revocation of a right of occupancy/certificate of occupancy

Revocation of a right of occupancy is
executed by sending a notice to that effect to the holder of the right of
occupancy. The notice is required to be signed by a public officer duly
authorized by the Governor [xix] and
the title of the holder of right of occupancy will cease once the notice is
received by him or on any other date stated in the notice [xx].
The law requires any notice to the holder of a right of occupancy to be served
on the person in any of the following ways [xxi]:

a)
By
delivery to the holder personally;

b) By
leaving at the usual or last known place of abode of the holder;

c) By
sending via prepaid registered post addressed to the holder at his usual or
last known place of abode;

d) In
the case of a corporate entity or company, by delivery to the company secretary
or clerk or by sending via prepaid registered post addressed to the registered
or principal office or by sending in a prepaid registered letter addressed to
the secretary or clerk of the company;

e) Where
it is not practicable to ascertain the name and address of the holder or
occupier of land then the notice may be addressed to the person as “holder” or
“occupier” and by delivery to a person on the premises. Where there is no one
on the premises to take delivery of notice then it may be affixed on a
conspicuous part of the premises.

In C.S.S Bookshops Ltd v. The
Registered Trustees of Muslim Community in Rivers State & Others it
was held that publication in a gazette was not one of the methods of notification
provided under the Land Use Act and therefore such notification was invalid.
Again the decision of the Court per Mohammed JSC is worthy of reproduction as
follows:

“From the above it is clear that the
notice of revocation published in the said Rivers State Government Notice No.
235 dated 27th April, 1985 and published in Volume 17, No. 27 of the Official
Gazette was not a valid mode of service in accordance with the Land Use Act.
This is because the mode fell short of the requirement in the Act. There was no
personal service or in this case which is a registered company, there was no
service on the secretary or clerk of the company as provided for. The mode of
service is therefore null and void and of no effect.
I entirely agree with the trial court on this finding on the question of notice
particularly when the 2nd respondent whose powers were being challenged made no
attempt to throw light on the question. The effect of the failure of the 2nd
respondent to serve adequate notice on the appellants as required by the Land
Use Act prior to the revocation of the right of occupancy means the power of
revocation was not exercised in compliance with the provisions of the Act”.

The statement of the Court of Appeal in the
case of Olatunji v. Military Governor of Oyo State [xxii] is
also instructive on the need for the mode of service of revocation of a right
of occupancy to comply with the provisions of the Land Use Act. In that case,
it was stated as follows:

“A very careful reading of sections 28
and 44 of the Land Use Act would disclose that publication in Gazette and local
newspapers are not mode or manner of effecting service under Land Use Act. It
does appear to me that omission of publication in the Gazette and newspaper is
to further emphasize to acquiring authorities that the legislature has in mind
personal service only as it left the acquiring authority with no option.
Publication in the Gazette or newspaper is a mere grafting of a manner of
serving notice prescribed under section 9(3) of Public Land Acquisition Law on the
provisions of section 44 of the Land Use Act. For a notice to be valid it has
to be served in accordance with the provisions of the Land Use Act”.

The combined effect of the statutory and
judicial authorities on the issue of notice is that failure to comply with this
procedure will invalidate the process of revocation of a right of occupancy and
a subsequent certificate of occupancy issued on the same property will be
invalid. In other words, the grant of a right of occupancy over an existing
right of occupancy will not amount to a revocation [xxiii].

Conclusion

The Governor of Rivers State was recently
reported to have revoked the certificate of occupancy of a Hotel in the State
for allegedly condoning electoral malpractice. The purported revocation was
made orally at a public event. In the light of the foregoing, it cannot be said
that a valid revocation took place. Clearly, electoral malpractice is not one
of the reasons for which a right of occupancy may be revoked.

It is imperative that Governors uphold the
rule of law by complying with the provision of the law in the exercise of their
powers. This obligation was noted by the Supreme Court in the case of Goldmark
(Nig.) Ltd. v. Ibafon Co. Ltd [xxiv] where
the court stated thus:

“The court has always emphasized
that government has the right to compulsorily acquire property on payment of
compensation. There is no argument about such constitutional power. There are
statutes which provide for the procedure of acquiring property by the
government. Government is expected to comply with those statutes which it has
enacted. Where government disobeys its own statute by not complying with the
laid down procedure for acquisition of property, it is the duty of the courts
to intervene between the government and the private citizen”.

The words of Oguntade JSC in the case of C.S.S
Bookshops Ltd v. The Registered Trustees of Muslim Community in Rivers State
& Others [xxv] is
also very instructive on the point. The learned Justice of the Supreme Court
stated thus:

“I must express that the conduct of
the public officials of Rivers State as represented in this case by 2nd, 3rd
and 4th defendant grossly unsatisfactory. They had with their eyes wide open
engaged on a course that could have led to a religious conflict and disharmony
they had plainly shown themselves as incapable of managing prudently the
responsibilities of their offices. Why would public officials so flagrantly and
without any pretensions as to conformity with laws which are well-known seize
the property of one citizen and hand it over to, another. I should have thought
that fairness even-handedness and above all respect for the rule of law would
characterize the behaviour and standards of such men who found themselves in
public offices. So much for this show of shame”.

The Land Use Act has been the subject of
much criticism and controversy in Nigeria for years. Recently, the National
Assembly failed to get the required majority votes to delete the Land Use Act
from S. 315 CFRN 1999. The effect of such deletion would have been to remove
the strict requirement for amendment of the Act. Unless and until the law is
amended or repealed, it remains in force and valid and ought to be obeyed by
all. While it remains uncertain whether or not the right of occupancy of the
hotel has actually been revoked in accordance with the law, it is hoped that
those who have the mandate to lead will not use their powers to intimidate the
public as it will be counterproductive in the final analysis.

Teingo Inko-Tariah is a Partner in Accord
Legal Practice, Port-Harcourt Nigeria.

[i] S. 9(1) (c)
Land Use Act (LUA). Although the LUA is silent on issuance of certificate of
occupancy by Local Government Authority, it may be presumed that in the case of
a customary right of occupancy, a certificate would be granted by the Local
Government Chairman.

[ii] S. 43 CFRN
1999

[iii] S. 48 LUA

[iv] S.1 Land Use
Act

[v] Black’s Law
Dictionary; 8^th Edition defines ownership as the bundle of
rights allowing one to use, manage and enjoy property, including the right to
convey it to others. Ownership implies the right to possess a thing regardless
of any actual or constructive control. Ownership rights are general, permanent
and heritable.

[vi] S. 5 LUA

[vii] “Urban Area” is defined in the LUA to men such area of
the State as may be designated as such by the Governor in accordance with s.3
of the Act which is to the effect that the Governor may by order published in
State Gazette designate parts of the area of the territory of the State
constituting land in an urban area subject to any general conditions specified
by the National Council of States.

[viii] S. 6 LUA

[ix] There is no express statutory provision for this
period in the LUA but the Act provides that the right of occupancy must be for
a definite term. See s. 8 LUA

[x] S. 8 LUA

[xi] Ss. 19, 20
LUA

[xii] S. 22 LUA

[xiii] S. 26 LUA

[xiv] S. 28(1) LUA

[xv] S. 28(2) –
(5) LUA

[xvi] Please see S.
51 LUA for the definition of ‘public purpose’.

[xvii] [2006] 11 NWLR (Pt.992) 530

[xviii] S. 33 LUA

[xix] S. 28(6) LUA

[xx] S. 28(7) LUA

[xxi] S. 44 LUA

[xxii] (1994) LPELR-14116

[xxiii] CSS Bookshop
Ltd v. The Registered Trustees of Muslim Community in Rivers State & others
(Supra).

[xxiv] [2012]
10 NWLR (Pt. 1308) p.291

[xxv] Supra

Teingo Inko-Tariah

Teingo is a Partner at Accord Legal Practice

Special Invitation to Young Lawyers Forum (YLF) NBA Party

by Legalnaija | Aug 17, 2017 | Uncategorized

All attendees of
@nbaconferenceng are specially invited to the Biggest Party at the NBA
Conference hosted by The Ikeja Branch of NBA Young Lawyers Forum (YLF) in
collaboration with other YLF Branches in Lagos State.

Date: Tuesday, 22nd August,2017

Time: 7pm till you are tired

Venue: Farmcity, opposite Dominos, Admiralty road, Lekki Peninsula, Lekki.

Dress Code – White

NB: Attendance is FREE but strictly by
reservations. All Guests and The Chairman of each YLF Branch nationwide should
please contact: Grace: 08062465746 or Musa: +234 802 532 5113 to make
reservations.
Its a night for celebrity special appearances, music, dance, drinks and
food. Special appearances include Flip Tyce ( Ace Music producer and artiste.
producer of Jenifa’s dairy soundtrack, P-Square chop my money, Yemi
Alade-KISSING e.t .c); Award winning commedians-MC Triple U and MC Ukwa. Chief
Host: Charles Ajiboye,Esq.(Chairman,NBA-YLF Ikeja) @ajiboyecharles

Ain’t no party like a lawyers party cos a
lawyers party always rocks

Lawyer’s Advice On Why Employer Must Give Reason For Termination Of Employment | Kayode Omosehin

by Legalnaija | Aug 16, 2017 | Uncategorized

Why Employer must give reason for
termination of employment

From a review of 257 employment cases
decided by Nigeria courts, 17 by Canadian courts and 81 by the English courts,
I have observed that the relationship between an employer and a worker neither
starts nor end with equal bargaining power notwithstanding that it is created
and determined by mutual agreement. The employer will always have an advantage
over the employee. One of the most apparent instances of such inequality of
positions is (or what used to be) the employer’s power to hire and fire a
worker for good, bad or no reason at all. This was so for many in years in
simple employment contract. However, the law is constantly changing to ensure a
greater level of protection for the workers.

Termination without reason is unlawful

Times have changed in labour relations. The
employer’s power to hire and fire for bad or no reason is no more without
financial consequence to the employer. For an employer to validly terminate a
contract of employment, the employer is required to do so for a reason, and of
course, a good reason. An employer is also required to state the reason in the
letter of termination of employment. This requirement holds in all employment
cases, whether the employment enjoys statutory protection or is that of a
master-servant kind.

Under the Nigerian labour law, every
employment contract can now only be terminated with cause –and a good cause. An
employment which is terminated without any stated reason is presumed to have
been terminated without good cause, and, therefore, unlawful. For instance, in
a decided case, the court held that a termination of employment was wrong as it
was not done with any reason. The letter of termination of the employment was
reviewed. It contained nothing on the reason for the termination of the
employment except “your services are no longer required”. The court
held that “services no longer required” is not a valid ground
for termination.

Reason for termination must be proved by
credible evidence

Where an employment is terminated for a
reason, the law imposes a duty on the employer to justify any reason given for
the termination. Usually, if the reason stated in the letter of termination is
disputed by the worker, the employer must then prove to the Court during trial
that, indeed, the worker was justifiably disengaged. What amounts to credible
evidence depends on the facts of each case, the law of evidence and other
procedural laws as well as the judicial discretion of the presiding judge all
of which involve intricate and complex balancing. For instance, in between
one Nwako and the First City Monument Bank Plc¸ the
Claimant, a branch manager of the defendant bank, was dismissed for releasing
ATL (Authority To Load) to a customer of the bank without any cash lodgment,
thereby causing the bank a loss to the tune of N24,806,550.41. In justifying
the reason for the Claimant’s dismissal, the bank tendered during trial, and
the Court was satisfied with, the relevant Credit Appraisal Memorandum, the
offer letter of credit facility and the provisions of Credit Guidelines and
Sanctionable Offences Policy of the bank which the Claimant ought to comply
with before releasing the ATL as well as evidence of the Claimant’s failure to
comply with them.

Reason for termination must comply with
international labour best practices

The National Industrial Courts in Nigeria
are now required by law to take cognizance of international best practices in
labour relations when deciding matters on employment disputes. This implies
that a decision of an employer to terminate a worker’s service must be reviewed
by a judge against international best standards in labour practice around the
world. Interestingly, this legal requirement once again restates the need for
lawyers and judges (as well as employers) in Nigeria to be abreast of any
developments in labour laws of other countries of the world. Where a reason
stated for disengaging a worker is bad or inconsistent with any labour law,
convention, treaty or international best practices, the employer will be liable
for wrongful termination. It is however unclear and, therefore, arguable
if Nigerian court will accept as international best practice a singular event
or precedent which has not enjoyed consistent judicial restatement in the
international jurisdiction. In any event, it is advised that corporate bodies
should keep proper records of all disciplinary decisions against a worker in
the event that it later becomes necessary for the employer to justify the
reason for termination of the worker’s service.

Good reason must be stated in the letter of
termination

An employer is no longer allowed to fire a
worker without stating the reason why the worker is being fired. The letter of
termination of employment must state the reason for the employer’s decision to
end the worker’s service –and the stated reason must be a good reason.

The list of reasons for which an employer
may disengage a worker is a fairly long, perhaps an endless one. It is
difficult to determine what reason will suffice for every employment
relationship. Nigeria courts usually determine reasons for termination of
employment on a case by case basis, being guided by the terms of the employment
contracts (particularly the details of the employee hand book or employer’s
disciplinary procedure), industry practice, international best practice and the
facts of each case.

From my review of 257 employment cases
decided by Nigerian courts, the following reasons, not arranged in any
sequence, have been accepted as good reasons to disengage a worker, namely:

1. Commission of a crime such as
falsifying records, forgery, bribery, stealing, corruption, money laundering,
homosexuality, cybercrime, threat to life, manslaughter, murder, terrorism etc.
Even though the Constitution presumes every accused person to be innocent, the
Supreme Court of Nigeria has held that such presumption does not preclude an
employer from enforcing its disciplinary procedure against a worker who has
been alleged of a crime notwithstanding that the worker is yet to be tried,
convicted or even if he/she has been acquitted of the crime;

2. Misconduct such as insubordination,
office gossip, taking too much time off work, consuming alcohol or
intoxication at work, disrespect to senior staff or management of an
organization, violating company’s policy (or any misconduct as may be defined
by the employment contract). If a conduct is not defined as misconduct in the
contract of employment or a crime according to law, it is unlikely that the
employer would be allowed to fire a worker on that basis;

3. Gross misconduct such as revealing
employer’s trade secrets or other confidential information to third party,
operating a parallel business with the employer, disrupting other workers,
damaging company’s property, using company’s property for personal business (or
other gross misconduct as defined by the employment contract);

4. Dereliction of duty;

5. Poor performance from incompetence,
poor quality of work, low or lack of productivity;

6. Non-performance;

7. Attendance issues such as chronic
tardiness or staying away from work without official leave or acceptable
excuse;

8. Unethical conduct touching on
sexual, drug, alcoholic, smoking or other related activities in prohibited
forms. Any or all the foregoing may be the same as or different from unlawful
conduct, misconduct or gross misconduct listed out above;

9. Unlawful conduct such as physical
violence, threats or discriminatory practices against other employees. Any or
all of the foregoing may be the same as or different from unethical conduct,
misconduct or gross misconduct listed out above;

10. Any other reason stated in a
contract of employment.

Exemplary Damages is the remedy for
terminating employment without cause or for bad cause.

Generally, a worker who is aggrieved
by an unlawful termination of a simple contract of employment can only apply to
the Court for damages, not reinstatement. Damages is a monetary compensation
that is awarded by the National Industrial Court for wrongful termination of
employment. No worker can be reinstated by a Court to a job from which he or
she has been disengaged, however bad the procedure for termination, unless the
employment is regulated by some statutory procedures.

An unlawfully disengaged worker, if
successful in an action against the employer, may be awarded the amount
representing his salary for the agreed length of notice for termination and, in
some cases, exemplary damages, in addition to any outstanding or terminal
benefits due to him or her. Nigerian Court usually does not award general
damages in employment litigation except exemplary damages. Exemplary damages
may be awarded, as the court deems fit, to a worker whenever the
employer’s conduct is sufficiently outrageous to merit punishment such as where
the company was malicious, fraudulent, cruel, insolent to the worker or acted
in flagrant disregard of the law or an acceptable international best practice,
in dealing with the worker. It should be noted that in awarding exemplary
damages, the Court would be satisfied to award the amount claimed (or a lesser
sum in deserving circumstances) upon proof that the employer did not give any
reason or comply with the law or an international best practice in terminating
a worker’s contract of employment.

Kayode Omosehin, Esq.

Associate at Udo Udoma & Belo-Osagie

Ed’s Note – This article was first published here

How Pharmacisits Can Lead Charge Against Drug Abuse| Senator Ashafa

by Legalnaija | Aug 15, 2017 | Uncategorized

It
is no news that Drug Abuse in quite rampant in Nigeria, this is mad epossible because
most of drugs being abused are readily available over the counter to any
willing buyer. Hence, the call by the Senator representing Lagos
East, Senator Gbenga Ashafa on the Association of Community Pharmacist’s, to
lead the charge in the fight against the abuse of over the counter and
prescription pills.

Ashafa who made the
call as the chairman of the 2017 Edition of the Lagos Chapter of the
Associations Day, was represented by Dr. Rotimi Adesanya a family
Physician and Head of Senator Gbenga Ashafa’s Medical Outreach Team.

At the event which was
themed “National development: The role of pharmaceutical sector” with a sub
theme Building a healthy nation: role of community pharmacists”, the Senator
commended the role of community pharmacists as first responders in the
community health value chain.

While decrying the rise in
the abuse of prescription medications and over the counter pills, which he
described as dangers to National Development, the Senator stated that “At this juncture, I must state that the increased rate
of drug abuse, particularly in the dispensation of over the counter medication has
become very alarming and a threat to National Development. Drugs like, codeine,
tramadol etc have been used as stimulants and narcotics by a large number of
our youth.

“To this end, I sponsored a motion on the floor
of the senate a Motion on Nigerians involvement in illicit
Global Drug Trade and increase in Domestic Abuse by Nigerian Youths and a bill
for the amendment of the Nigerian Drug Law Enforcement Agency Act. These
legislative interventions seek to ensure that we overcome drug abuse in Nigeria.”

He concluded by charging the pharmacists not to sell
drugs capable of being abused indiscriminately, stating that “I therefore seize
this opportunity to reiterate my call that community pharmacists’ should lead
the charge in ensuring that prescription medication are only sold upon
presentation of the Doctor’s prescription. While every other over the counter
medication that have been commonly abused, should only be sold when the need is
justified.”

Wills And Letters Of Administration | Adeolu Adesuyi

by Legalnaija | Aug 14, 2017 | Uncategorized

Many Nigerians have a misconceived
impression about making Wills. When asked if he/she has a will, their ready
response is usually “do you wish me dead, why do I need a will?”.
Such statements are actually proof of ignorance, as preparing a will does not
in any way add or remove a day from anyone’s life.

Others however have many questions about
wills and their validity usually because they may currently be beneficiaries in
a will or are contesting the provisions of a will in court. This article aims
to shed more light on Wills in general.

A WILL simply helps a person to determine
what happens to his properties after his death; it also helps him to give any
instructions he may wish to be carried out if he is no longer alive.

In preparing a will, a testator (person
making his will) must have capacity to do so, meaning he must be of legal age
(above 18yrs) and have mental capacity (he must be of sound mind). Furthermore,
for a will to be valid it must be;

1. In writing. (either typed or hand
written)

2. Signed by the testator, and

3. The signature of the testator must be
acknowledged by at least 2 witnesses (please note, it is advised that a
beneficiary to a will must not act as a witness to the will).

In probate courts today, there are many
parties in legal battles contesting the provisions of a will, the court is
likely to set aside a will if there is conclusive proof that the testator did
not have the mental capacity to understand what he was doing at the time the
will was made or if the testator was unduly influenced to dispose of his
properties as he did in the will.

A person who dies without
making a will is described as a person who died intestate, in such situations,
certain members of the family shall apply to the probate registry of
the High Court to be granted letters of administration of the deceased’s
estate.

Upon the grant of Probate or Letters of
Administration, the executors or administrators, as the case may be are legally
and formally empowered to deal with or distribute the properties of the
deceased among the beneficiaries.

Adeolu Adesuyi

Solicitor/Counsel at Adeolu Adesuyi &
Co.

Ed’s Note – This article was first
published here

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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

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