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How to prove that the termination of your employment was wrongful |Michael Dugeri

by Legalnaija | Jul 6, 2017 | Uncategorized

When is termination/dismissal said to be wrongful?

You may sue and demand to enforce your rights if your employment
contract is wrongfully terminated. Wrongful termination is when any of the
following occurs:

i. Your former
employer did not follow the terms of the contract in terminating it or
dismissing you. For instance, if the contract specified that either party can
only terminate by giving the other 30 days’ notice or one month’s salary in
lieu of notice, it would be wrongful to terminate the contract forthwith and
not pay you anything in lieu. Also, if your employment contract provides for a
disciplinary procedure to be followed before you can be dismissed (say for
gross misconduct) and the procedure was not followed or your act/omission was
wrongly categorized, your dismissal would be wrongful.

ii.
Your appointment
was terminated ‘in accordance’ with the terms of contract but the reason for
the termination is unlawful or unjustifiable. For instance, where termination
is based on discrimination or sexual harassment, it will qualify as wrongful
termination. It does not matter that your employer (like most companies in
Nigeria) does not have a policy against workplace discrimination or sexual
harassment. These are matters of law and public policy that are implied into
every employment contract.

iii.
You actually did
resign ‘voluntarily’ but under conditions that left you with no other choice.
For instance, your former employer frustrated you and deliberately made it
practically impossible for you to continue with the job. The technical term for
this is “constructive dismissal”, and it also qualifies as wrongful
termination.

iv.
Your position
had been rendered redundant but your former employer played smart and clothed
it as simple termination (like merely said your ‘services no longer required’)
in order to save itself the cost of paying you redundancy or other
benefits.

While it is true that no employer should feel compelled to retain an
employee whose services are no longer required or who is no longer fit to remain
in the job, if your appointment must be terminated, it should be with the
dignity and respect deserving of your person as an employee, and all your
entitlements fully paid.

When to sue

If you are aggrieved about the manner that your appointment has been
terminated, you need to move fast in getting a redress. Sue as soon as it is
reasonably clear to you that your grievance cannot be amicably resolved. By
law, you must sue within 6 years of the termination otherwise your claim will
become stale and unenforceable. The courts are strict with this timeframe and
would hardly entertain any excuse for delay in suing; not even where the delay
was because you were trying to settle amicably with your former employer.

If you were working in the civil or public service, the need to act fast
is even more urgent. This is because the timeframe allowed to sue public
officers/offices is just 3 months! Although, there are legal arguments (and
authorities) that this principle does not apply to breaches of contract, or
claims for work and labour done, why delay and get your case entangled in any such
legal haggles!

Where to sue

The National Industrial Court is your go-to court for labour disputes. The
court only handles labour disputes hence the Judges are more able to quickly
settle the cases before them. Let me quickly add that you should always first
consider settling your case amicably (out of court) before suing. At any rate, Alternative
Dispute Resolution (ADR) options are preferred to litigation in the resolution
of disputes such as employment disputes. ADR options include arbitration,
mediation, conciliation, etc. These options better protect confidences, they
are cheaper (well, arguably) and faster too.

What facts to establish

It is not enough
to say your employment is wrongly terminated. You have to explain how you came
about that conclusion. It is helpful if you tell your story in a logical and
compelling manner. You will therefore want to capture the following facts:

i.
That you were employed
by the defendant (your former employer) – state date and the designation in
which you were employed;

ii.
The terms and
conditions of the appointment including duration and termination – emphasize
the procedure for termination;

iii.
State who had
the power, under your employment contract, to terminate or dismiss you;

iv.
State any
special circumstances that are needed to prove your case – for instance, if you
are basing your claim for wrongful termination on workplace sexual harassment,
discrimination or redundancy, state clearly the circumstances that led you to
believe the facts;

v.
State the circumstances
under which your appointment was in fact terminated – for instance, that you
had not been given any notice (or payment in lieu), fair hearing etc

vi.
State the pain
and trouble that you have suffered on account of the wrongful termination – while
this is not very necessary sometimes such sentiments prove helpful to your
cause.

vii.
Itemize your
demands in an orderly manner and with explanations where necessary.

Help the court
to help you; explain yourself!

What documents to rely on

More often than
not, your employment ‘contract’ is not just the ‘Offer Letter’. Other terms of
the contract are contained in documents like the ‘Staff Handbook’, collective
agreements (common in unionized industries like Maritime or Aviation), etc. It’s
important to place before the court all documents necessary to paint the full
picture. These include the following:

i.
Letter of Offer/Contract
of Employment

ii.
Letters of
promotion

iii.
Letters of
commendation or awards

iv.
Employee
Handbook/Expatriate Policy,

v.
The letter of termination
or dismissal,

vi.
relevant
Collective Agreements,

vii.
Circulars, internal
memos, notices, and

viii.
other workplace
documents, like official e-mails, etc that are necessary to establish your case.

These documents, together with your oral testimony (and that of any
other witness) are what the court will use in deciding your fate.

What to ask for

This is the interesting part. Nearly all claims in court about wrongful
termination are about money! You are most likely simply asking that you should
be paid some money as terminal benefits. Two quick clarifications:

a. payment of terminal benefits is not automatic and
the payment (trust me) is not a windfall. What you will be paid will depend,
largely, on what was previously agreed upon between you and your employer.
Sometimes, Lawyers get overzealous and make bold baseless assurances to clients
on what they can obtain in court. But the court is not Santa Claus and would
not award you damages just for asking. You will have to earn it. Admitted,
sometimes you would rather err on the side of caution and ask for more rather
than less, but why pad your claims and end up appearing like a gold digger
before the Judge? It is best to be clear-headed about your claims and save
everybody’s time.

In some cases, (like terminations based on workplace
discrimination, sexual harassment, redundancy, etc) the Judge would likely award
heavy penalty against your former employer as a deterrent to other employers
and as compensation deserving of the manner of your termination. What is “heavy
penalty” (Lawyers call it “punitive damages”) will ultimately depend on the
facts of each case, but our Judges here are rather conservative on these
things, so don’t get your hopes too high.

b. Suing for wrongful termination is not (and should
not) always be about money. There are cases (like a dismissal) in which it is
more important for the aggrieved employee to ‘clear his name’ and set the
records straight (or just to prove a point). Even where you are really pressed
for the money, you should not overlook this aspect of your case. Interestingly,
until you convince the Judge that indeed your dismissal/termination was
wrongful, you are likely not getting paid any damages. Don’t allow money get in
the way.

How do you determine your rightful entitlements? Look at your contract and see for yourself
what it says you will be paid in case you are asked to leave. For instance, are
there provisions in the contract that you will be paid a salary in lieu of
notice? Also check the Staff Handbook which may contain provisions on payment
of gratuity, redundancy, etc. In summary, your list of claims could run like
this:

i.
payment in lieu
of notice

ii.
outstanding
salaries (if you were owed any prior to the termination)

iii.
gratuity

iv.
redundancy (if
your case is deserving of it)

v.
other accrued
benefits (like leave allowances, etc) that are outstanding.

It is important to be sure that you are entitled to these benefits
before you make your claim for them. Don’t get greedy and start making up
claims from the blues. Also ensure that what you are claiming is actually
outstanding. Do not embarrass your Lawyer by making him/her claim for money
that is already paid to you. Finally, check to ensure that your pension, tax,
NSITF, etc. deductions are also fully remitted or paid. Your lawyer will help
you in computing the claims if your termination is based on special
circumstances and you would like punitive damages awarded in your favour
against your former employer.

What not to ask for

Keep your case tidy. Don’t spoil it with spurious demands. Some demands
are not to be made because they are simply not practicable. Let’s briefly
highlight some:

i.
Don’t ask for
money for ‘injured feelings and loss of reputation’. Don’t get your claim for
wrongful termination mixed up with claims about defamation. You can actually claim
for both but not in one breathe (and also not in the same court).

ii.
Don’t ask to be
reinstated – unless your employer is a government agency, nobody has legal
powers to foist you on your unwilling employer. Termination of ordinary
employment contracts is never “null and void, unlawful or unconstitutional”.
The termination, at best, can only be wrongful but not invalid. Either party is
free to terminate at any time and for any or no reason. All that is required is
fairness – that the terms of the contract are followed and within the bounds of
the law.

iii.
Don’t ask for
pre-judgment interest on the monies that you are claiming – unless it had
already been agreed upon between you and your former employer. Interest, if
any, on any award that the court will grant you, will start to run from the
date of the judgment, and not from the date that the money became due.

PS: The
language of this article is deliberately simple and devoid of legal niceties
because it is intended for non-lawyers. It is however, not intended to be a
substitute for legal advice. You will certainly need a Lawyer to, among other
things, plead your case in court. Finally, going to court should be a last
option. Employment disputes are best resolved amicably; unless of course you
are left with no other option than to sue.

Michael Dugeri

Corporate Commercial Lawyer at
Austen-Peters & Co.

Photo Credit – www.miza.org.za

The Supreme Jurisdiction Of The National Industrial Court Of Nigeria | Vincent Oniga

by Legalnaija | Jul 4, 2017 | Uncategorized

The constitutional right
of appeal and the well-entrenched principle of fair hearing are the foundation
of modern legal systems across the globe. The principles as guaranteed under
The Constitution of the Federal Republic of Nigeria (1999) as amended (“The
Constitution”) ensure that in the conduct of judicial proceedings to determine
the civil rights and/or obligations of the parties brought before any Court,
the twin pillars of natural justice shall be adhered to and applied by the
courts.

The basic attributes of the twin principles of fair hearing and right
of appeal includes: that a court shall hear both parties to a case fairly and
without bias as is humanly possible, that a court gives or provide equal
opportunity, treatment and consideration to the parties in presenting the
issues relevant to their side of the case, the proceedings are held in public
and all the parties shall be informed or notified of the upcoming proceedings,
dates and have free access to the venue of the hearing, that a party aggrieved
by the decision of a lower court is afforded the unfettered opportunity to
challenge such a decision in a higher court, that the proceedings are conducted
in accordance with all the legal rules formulated to ensure that justice is not
only done, but manifestly seen to have been done to the parties in the case.

The National Industrial
Court of Nigeria (NIC) was established in 1976 by the Trade Disputes Act, Cap
432, Laws of the Federation of Nigeria, 1990 and was in 2010 elevated to a
superior court of record and of coordinate jurisdiction with the Federal High
Court, the various State High Courts and other Courts of coordinate
jurisdiction with a well-defined jurisdiction and powers as contained in The
Constitution.

This paper attempts a brief but critical appraisal of the
seemingly unbridled jurisdiction vested in the Court vis-a-vis the litigant’s
right of appeal and fair hearing. Section 254 (C) (1 – 4) of The Constitution,
also known as the Third Alteration Act generally confers on the NIC the jurisdiction
to the exclusion of other courts of coordinate jurisdiction to adjudicate over
civil and criminal causes and matters relating to labour, industrial trade
union and industrial relations and environment and conditions of work, health,
safety and welfare of labor and matters related and incidental thereto amongst
others. Section 243 (2) & (3) of The Constitution provides for the right
and procedure for appeal decisions arising from the NIC. The said section was
recently given judicial interpretation in the Case of Lagos Sheraton Hotel and
Towers Vs. Hotels and Personal Services Senior Staff (2014) LPELR 23340 (CA)
and affirmed by a full panel of the Court of Appeal in Coca-Cola (Nig) Ltd
& 2 Ors Vs. Akisanya (2013) 1 ACELR 28. In both Cases, the Court of Appeal
held that section 243 (2) & (3) only recognizes the right to criminal
appeals and appeals on questions of fundamental human rights and that all other
rights of appeal are subject to an Act of the National Assembly. The Court held
further that since such Act does not exist, then the decision of the NIC is
final on the issue. The effect of the above decisions is that an aggrieved
litigant who intends to appeal on issues other than issues bordering on
criminal appeals and appeals on questions of fundamental human rights have no
constitutional right of appeal.

The writer, with due respect, is of the view
that the decision is contrary to the principle of fair hearing and amounts to
an aberration of the notion of modern justice. This writer submits that it does
not serve the cause of justice to allow a single Judge of the NIC to take
matters to finality, thereby making the NIC a Court of first instance as well
as a Supreme Court to itself at the same time. The proper approach to the
interpretation of the constitution is that of liberalism. This implies not only
that words of the constitution should be given their broad meanings, it also
means that where alternative constructions are equally open, the court should
prefer a broader construction which will bring about an effective result and is
consistent with the intention of the legislature. This writer is of the opinion
that Their Lordships ought to have given liberal interpretation to sections 240
and 254 (c) (5) & (6) of the same Constitution which vests in the Court of
Appeal the general powers to hear and determine appeals from lower courts and
resolve whatever perceived inconsistency and lacuna that may have resulted from
Section 243 (2) & (3).

Furthermore, the Court of
Appeal should have considered and applied the principle as expounded by the
Supreme Court in Bamgboye vs University of Ilorin (1999) 10 NWLR, PT 622 @ 290
that “the right of a person to fair hearing is so fundamental to our concept of
justice that it could not be waived nor taken away by a statute, whether
expressly or by implication”. There is no court of first instance in Nigeria,
save the Supreme Court of Nigeria when exercising its original jurisdiction
under Section 232 of the Constitution, whose decision is final and not
appealable; not even a court martial or other tribunals, or election tribunals
(see Section 240 of the Constitution).

This is after due consideration of the
fact that the composition of the panel of the Supreme Court allows for a
majority decision to prevail, whether the panel is composed of five (5)
Justices or Seven (7) Justices as the case may arise under Section 234 of the
Constitution. In concluding this discourse, the writer suggests that it is most
imperative for the National Assembly to undertake a consideration of the
provisions of Section 240 and other relevant sections of the Constitution and
guarantee expressly therein, the right to appeal all decisions of the NIC at
the Court of Appeal and finally at the Supreme Court. When a single Judge is
allowed to possibly make a judicial error which is not subject to scrutiny or
capable of reversal by a higher authority, it portends imminent danger for the
actors in administration of Justice.

Undoubtedly, labour and
industrial related disputes are serious issues in any nation. Labour disputes
have had and will continue to have staggering effects on both the social and
economy spheres of a country. Any form of neglect or the absence of checks and
balances could result in low productivity, unemployment, wastage of human resources
and many other problems, all of which can be avoided to a large extent by
positive judicial activism.

Vincent Oniga

Associate at Odujinrin&Adefulu

Ed’s note – This article was first
published here

Photo Credit – www.pmnewsnigeria.com

Lawyer Profile – Alex A. Izinyon, LL.B (Hons), LL.M, PhD, SAN

by Legalnaija | Jun 29, 2017 | Uncategorized

Dr. ALEX A. IZINYON, SAN is the principal
partner and the head of chambers of Alex A. Izinyon SAN and Company,
established on August 5, 1987. He has vast experience, which covers all aspect
of law ranging from simple contractual documentation to the most intricate and
complex legal matters. His vast knowledge and skill has led to his engagement
as legal adviser to several organizations, parastatals, banks, commercial
institutions, and various State Governments in the Federal Republic of Nigeria.

Dr. Alex A. Izinyon, SAN obtained his PhD
in arbitration in 2004 from the University of Uyo, Akwa Ibom State, Nigeria. He
had his LL.M from the prestigious University of Ife (now Obafemi Awolowo
University) in 1991.

He was called to the Nigerian Bar after he
received his B.L from the Nigeria Law School at Lagos and LL.B from University
of Ibadan in 1985 and 1986 respectively. As a result of his vast experience and
outstanding contributions to legal development in Nigeria, he was conferred
with the rank of Senior Advocate of Nigeria in 1999. He was the very first
Senior Advocate in Nigeria among practicing legal practitioners to be so
appointed in the Federal Capital Territory, Abuja, Nigeria. He is also a Notary
Public of the Supreme Court of Nigeria.

He has been engaged in giving expert
opinion on several bills in the process of law making in the National Assembly
of the Federal Republic of Nigeria. The Senate of the National Assembly of the
Federal Republic of Nigeria approached him to draft the ELECTORAL BILL 2006.

He was appointed Legal Adviser to the
liquidator by the Bureau of Public Enterprise (BPE) for the winding up process
of the multi-billion Dollar National Fertilizer Company of Nigeria (NAFCON).

He led the legal team that defended SIEMENS
LIMITED before the Commission of Inquiry investigating Nigeria Airways (the
National Carrier of Nigeria). He was also involved in the proceedings of the
Commission of Inquiry investigating NITEL/M-TEL; Commission of Inquiry
investigation Nigeria Airways.

His experience is also immense in Nigerian
Immigration Law and Practice and has procured expatriate quota for some
Companies and Foundations in Nigeria.

He represented the firm as external
solicitor to Liberty Bank Plc., Broad Bank, Bank of the North Ltd., Union Bank
Plc., FSB International Bank Plc., and Savannah Bank of Nigeria Plc.

He engaged in various arbitration
proceedings both in Nigeria and the United Kingdom.

He is a renowned publisher of legal books
and literature. He was a lecturer at the University of Abuja between 1994–2000.

He is a member of various professional
bodies: member, Chartered Institute of Arbitration, UK (MCIArb); member, the
London Court of International Arbitration; member, Commonwealth Lawyers
Association; and member, International Bar Association.

He has conducted several cases at the High
Court, Court of Appeal and Supreme Court of Nigeria. The cases are reported in
the Nigerian Law Reports.

He is a versatile Constitutional lawyer and
consultant. He has conducted several celebrated, intractable, and landmark
cases in Nigeria. He was one of the lead Counsel that defended the then Vice
President of Nigeria Alhaji Atiku Abubakar, when he was sacked by the
President, Olusegun Obasanjo at the Court of Appeal and Supreme Court. He was
the coordinator and one of the leading Counsels to President Umar Yar-Adua in
the fall out of presidential election at the Court of Appeal and the Supreme
Court.

He has conducted several election petition
matters for several State Governors, Senators, and Honourable Members of
Representative at the tribunals and appellate levels.

He has been involved in several celebrated
criminal matters as defence counsel and sometimes prosecution counsel. Recall
the celebrated ex-convict saga case against His Excellency James Onanefe Ibori
former Governor of Delta State, Nigeria, which case he won from High Court to
the Court of Appeal and at the Supreme Court, the Senator Wabara, bribery scam
where he defended one Senator and Hon. Member, the ex-CEO of NSTIF, the
Ex-minister of Health, etc.

He has several books, articles, and
publications to his credit. He is the Chairman of some companies and Chairman
of the Law Publication Company, Acavi Publishing Company devoted to legal
research and publication of law report etc. He is married to Grace with
children.

Culled from www.alexiziyon.com

Overview Of Wills And The Necesssary Requirements Under Nigerian Law | Motunrayo Olaleye

by Legalnaija | Jun 28, 2017 | Uncategorized

INTRODUCTION

The aim of this Article is to give a basic,
brief and easy to read explanation of the fundamental requirements that are
must know for every person with respect to Wills. This Article also intends to
correct the notion that Wills are unnecessary or trivial and gives a clear
suggestion on the significance of writing and keeping a Will.

DEFINITION OF A WILL

A Will is defined as “a document by which a
person (called the testator) appoints executors to administer his estate (his
assets and properties) after his death, and directs the manner in which it is
to be distributed to the beneficiaries (the people who are to benefit from the
Will, such as family and friends).

DEFINITION OF AN EXECUTOR

An executor is the person appointed or
nominated by the maker of a Will to administer or manage his Estate after his
death. He is responsible for ensuring that any debts and creditors that the
deceased have are paid off and that any remaining money or property is
distributed according to the wishes of the deceased.

CHARACTERISTICS OF A WILL

Every Will must have certain
characteristics for it to be valid. If a Will is not valid, it will not be
legally binding after the death of the maker of the Will (Testator). The
following are some of the characteristics of a Will:

It must be made voluntarily

The testator must be of sound mind

It must name the beneficiary or
beneficiaries

It must be in the presence of witnesses

It must identify the property.

TYPES OF WILL

There are different types of Will, such as:

Oral Will: This is a Will made orally
before two or more credible witness.

Mutual Will – This is where two or more
persons execute the same Will, conferring mutual benefit or reciprocal benefits
on each other. It is common between husband and wife. In this, none of the
testators can revoke or amend without the consent of the other.

Prenuptial Will – This is a Will made by
any of the spouses before marriage

Conditional Will – This is a Will that is
executed by a testator and made subject to a condition.

ADVANTAGES OF MAKING A WILL

There are many advantages of making a Will.
It is important and a smart choice to make a Will so that the maker of the Will
can protect his family, relatives, friends and any other person he may wish to
inherit his assets.

In our society, some people get upset when
their spouses ask if they have a Will. However, there is nothing to get upset
about and it does not mean your spouse is trying to kill you. In fact, it is a
way to protect your wife and children from suffering if the unexpected happens.

It
is merely superstitious and unnecessary to think that making a Will means you
will die soon. That is not true. Many people have Wills and still live very
long.

Some other advantages of making a Will are:

·
The
testator will be able to order his affairs before his death

·
The
testator will be able to share his assets and properties amongst his family and
friends in the way he desires

·
The
testator’s property will not be shared under customary law since he has already
decided how he wants it to be shared

·
The
testator has the benefit of appointing people he trusts as his executors, and
they have the duty to carry out his wish.

·
Trusted
persons can be appointed as guardians of testator’s infants (young children).

·
It
gives the testator the opportunity of showing generosity to other people
e.g. donation for charitable purposes

·
The
testator is given the opportunity to give his funeral directives.

WHO CAN MAKE A WILL

Every person of requisite statutory age
(above the age of 18), with a sound disposing mind and memory can make a Will
notwithstanding his tribe, religion, or physical status. Thus, a blind or disabled
person can also make a Will.

TESTAMENTARY CAPACITY OF A TESTATOR

It has been stated above that every person
can make a Will, however such a person must have testamentary capacity.
Testamentary capacity means legal capacity to make a Will. The law requires
that a testator must have a sound disposing mind both at the time of giving
instructions and execution of the Will. The purport of this is to ensure that
the Will was made voluntarily and without undue influence. The criteria for
deciding that a testator has testamentary capacity are as follows:

·
The
testator must understand the nature of the act that he is making his will and
its effect.

·
He
must understand and recollect the extent of the property of which he is
disposing.

·
He
must understand and appreciate the nature and extent of the claims upon him by
both of those whom he is including from his Will.

·
The
manner in which the property is distributed must be rational that no disorder
of the mind has poisoned his affection or perverted the exercise of his will.

VALIDITY OF A WILL

For a Will to be valid, it must be duly
executed. Therefore, the following conditions must be met:

·
It
must be in writing;

·
It
must be signed by the testator or his representative, and dated;

·
The
signature of the testator must be witnessed by at least two witnesses;

·
The
witnesses must attest and subscribe the Will in the presence of the testator

AMENDMENT OF A WILL

Can you rewrite your Will? The answer is
yes. A will can be revoked or amended by the maker during his
life time as many times as he wishes. Thus, the last Will and Testament is the
one that is made by the Testator before his death and the last will revokes all
previous wills. Where the Testator just intends to add some things, correct a
clerical error or replace or appoint new executors he might just prepare an
addendum. This is called a codicil.

WHO CAN BE A WITNESS

Anybody can be a witness to a Will.
However, it is advisable that beneficiary of a Will is not a witness to the
Will. This is because a witness who benefits under a Will loses any property or
benefit that he is given by the maker of the Will, and this is irrespective of
if the Testator is your spouse.

However, in cases where there are at least
three (3) witnesses to the Will, the beneficiary can still keep his gift if the
Court discountenances the attestation of the beneficiary so that there will be
at least two (2) witnesses to validate the Will.

HOW TO WRITE A WILL

A Will can be written by the Testator
himself. It is however good to consult a lawyer who is skillful in the art of
writing a Will so that it conforms with the requirements of a valid Will.

DIGITAL ASSETS

Digital assets can be defined as digitally
stored content or an online account owned by an individual. (www.thedigitalbeyond.com) It can
also be referred to as something that has value and can be owned but has no
physical presence. Digital assets include but are not limited to documents,
websites, books, media, designs, digital currency, data and art.
(simplicable.com)

It is needless to say that we are at a time
where many people have turned small businesses to global businesses with the
help of the Internet, mobile marketing, telecommuting, smart phones and social
media.

It is therefore apt for a Testator to consider how these tools
may be managed in the event of his demise.

WHERE IS A WILL KEPT?

After a Will has been written, it can be
kept in the custody of the lawyer, in the house of the testator, bank vault or
probate registry.

The best option is for it to be kept at a
probate registry which is located in every state’s High Court premises. It is
the safest place for the Will and makes it easier to prove. After the death of
the testator, the family members can approach the probate registry after 7 days
with a copy of the death certificate.

Subsequently, the probate registrar
contacts all beneficiaries and sets a date for the reading of the Will. On that
day, the probate registrar breaks the seal of the Will and reads out its
contents.

WHAT IS PROBATE?

Probate is the legal process whereby a will
is proved in a Court and accepted as a valid document that is the last true
testament of the deceased. (en.m.wikipedia.org).

The process of obtaining probate is the
first step in the adminstration of the estate of a deceased and can be done by
the Exceutors of the Estate. It is however usually a cumbersome and tasking
prodedure for persons who are unfamiliar with the process and it is advisable
to employ the services of a Legal Practitioner.

CONCLUSION

It is imperative that people embrace the
idea of writing a Will once adulthood is attained. Furthermore, it is also
pertinent to modify the Will when more assets are attained to avoid excluding
the additional assets from the Will.

If you put your house in order, your
dependants will not be left to suffer if the inevitable happens.

By- Motunrayo Olaleye
Legal Counsel at B. Ayorinde & Co.

Photo Credit – www.davidfreedman.ca

Lawyer Sues Govt on Section 24, Cybercrimes Act 2015

by Legalnaija | Jun 23, 2017 | Uncategorized

Barr. Solomon Okedara

Cybercrime Act 2015: Solomon Okedara V. Attorney General Of The Federation: FHC/L/CS/937/17

The last two years have
been marked with cases of arrests, detentions and prosecutions of Nigerians in
connection with speeches and expressions made on social media platforms ranging
from Facebook posts to Tweets and to blogs. Some of the persons arrested,
detained or being prosecuted have only acted within the purview of exercise of
their Freedom of Expression as guaranteed in the 1999 Constitution (as
amended).

Section 24 of the
Cybercrime Act, 2015 is the law under which Nigerians have been and are being
booked in this regard. The law, in very vague, overbroad and impermissible
terms restrict and criminalizes expressions and speeches made via computer
systems or networks including social media. Section 24 of the Cybercrime Act,
2015 provides that:

“Any
person who, knowingly or intentionally sends a message or other matter by means
of computer systems or network that

(a) Is grossly offensive, pornographic or of
an indecent, obscene or menacing character or causes any such message or matter
to be so sent; or

(b) He knows to be false, for the purpose of causing
annoyance, inconvenience danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred, ill will or needless anxiety to another or causes
such a message to be sent: commits an offence under this Act and shall be
liable on conviction to a fine of not more than N7,000, 000.00 or imprisonment
for a term of not more than 3 years or to both such fine and imprisonment”

Realizing that the
statutory provision is cancerous to Freedom of Expression and the need to
engender unbridled Freedom of Expression, the applicant –Nigerian Lawyer and
Global Research Fellow, International Center for Not for profit Law (ICNL),
Washington DC, recently instituted a legal action challenging the
constitutionality of Section 24 (1) of the Cybercrime Act, 2015 asking the
court to declare the section unconstitutional, null and void.

This is one suit that would
excite journalists, bloggers, lawyers, human rights activists, civil society
actors as its victory would mean victory not just for over 190 million
Nigerians but also for all lovers of democracy the world over.

Reflating The Economy Through MSME Support – NASME Business Luncheon on 13/7/2017

by Legalnaija | Jun 21, 2017 | Uncategorized

The Nigerian Association of Small & Medium Enterprises (NASME) charged with
the co-ordination, promotion and development of the MSME sector of the Nigerian
economy hereby invites the general public to its Business Round Table tagged
“REFLATING THE ECONOMY THROUGH MSME SUPPORT”.

NASME is the only Nigerian private sector -led BMO affiliated to the World
Association of Small & Medium Enterprises (WASME) enjoying consultative
status with the United Nations. NASME is equally being assisted through
strategic collaborations with UNIDO, UNDP, IFC, Federal Ministries, several
embassies and bilateral Chambers of Commerce on its various projects.

NASME was also jointly conceived by
promoters of MSMEs in the private sector and agencies of the federal government
of Nigeria including the Bank of Industry, to serve as the apex organization
that will coordinate MSME activities and interact with local and foreign
organizations whose services are vital to the development of MSMEs.

The Association is committed to further advancing the NASME brand by providing
high-quality and responsive services and building and strengthening partnerships
nationwide in order to better serve her members. The Association also advocates
for a conducive operating environment while partnering with MSME promoters to
ensure the emergence of Large pool of viable and technologically empowered
MSMEs.

With Employment Rates in Nigeria being averaged at 89.79 percent from 2014
until 2016, reaching an all-time high of 93.60 percent in the fourth quarter of
2014 and a record low of 86.40 percent in the second quarter of 2016; the high
exchange rate of the Dollar to the Naira. The promotion and empowerment of
Nigeria’s MSMEs as a means of achieving sustainable employment generation,
economics growth development in the country cannot be over-emphasized.

Today’s small business sector creates many of the new ideas and innovations.
Small businesses are vital to the success of the economy. They look inwards and
identify or develop prospective products for domestic consumption and export
market as a means of earning foreign exchange for

the state.

That’s why we are delighted to invite you to this round table discussion on
your small business and other MSMEs in Nigeria shall be championing the drive
towards the restoration of our economy.

Keynote Speaker for the day is Prof.
Olusegun Ajibola Ph.D, FCIB, President & Chairman of Council, Chartered
Institute of Bankers in Nigeria.

Date is 13th July, 2017

Venue – NECA Event Centre, A2 Hakeem Balogun
Street, Central Business District, Alausa, Ikeja, Lagos.

Time – 10am

Regisreteration
fee
– N5000 (Members) / N10,000 (Non Members)

For adverts and sponsor bookings, Pls
call 08082982810 or 08138333998

Let us expose your business to local and
foreign markets; help you identify and source appropriate technologies and
relevant raw materials that can enhance the efficiency of your business and
show you how you can play a more active role in policy advocacy on issues
affecting MSMEs through legislative and executive lobbying as well as ensuring
proper representative and participation in state and federal government special
committees.

Rights Of Igbo To Self Determination And A Call For The Restructuring Of The Current Nigerian Political System

by Legalnaija | Jun 20, 2017 | Uncategorized

Abstract

The recent heightened clamour for self-determination in various quarters
of southeastern Nigeria – a geographical location largely made up of the Igbo
people, has awakened the keen interest of many people around the world. Various
secessionist leaders calling for the recognition of the sovereign state of
Biafra have been incarcerated by the Nigerian Federal Government on many
occasions while a few others are standing criminal trial for offences like
sedition, treason and other treasonable felonies. It is therefore imperative
for one to look into this agitation for self-determination and decipher if
indeed such right exist in favour of the secessionists, whether this right is
recognized by international law and if there are conditions precedent to the
enjoyment of this right. This paper focuses on the international law framework
guaranteeing the right to self-determination vis-a-vis the Igbo nation of
Biafra; and also proffers probable solutions/recommendations for continued
co-existence.

1.
INTRODUCTION

The Right to
self-determination is a right that inures to every group/people as their innate
human right and does not come through negotiations. Just as there is no
condition precedent for the enjoyment of any human right across the world,
except the fact that a person is ‘Human’, same is the case with the Right of a
People to Self-determination. A proper understanding of the right to
self-determination under International Law will afford every nation seeking to
secede, without any doubt, a guide in achieving state status in a manner
acceptable to the international community.

The discussions in
this paper will be divided into four parts. Part One is the Introduction. Part
Two will provide a historical background of the struggle for self-determination
by the Biafra nation. Part Three will attempt to summarize all the relevant
international laws bothering on self-determination citing examples of some
states that actualized an independent sovereign state status in recent times.
This paper concludes with Part Four wherein the writers reemphasize the right
of every people including the Igbo race to self-determination under
International Law, and also spells out certain pragmatic recommendations for
continued co-existence.

2.
HISTORICAL BACKGROUND OF THE STRUGGLE TO
SELF-DETERMINATION BY THE BIAFRAN NATION.

The Oxford Dictionary
of Law defines “self-determination” as:

“the right of a people living within a
non-self-governing territory to choose for themselves the political and legal
status of that territory. They may choose independence and the formation of a
separate state, integration into another state, or association with an
independent state, with autonomy in internal affairs”.[1]

Various reasons can
account for the desire by an indigenous people to crave for autonomy and an
independent state status. Some of these reasons include perceived religious
bias by an extant government, ethnic domination, patent cultural differences,
injustice and marginalization, among other reasons.

The struggle for
self-determination by the Igbo race can be traced as far back as 1914 when the
then British government forcefully merged the Northern and Southern
Protectorates of Nigeria. This merger was to facilitate a functional political
and economic control over the Nigerian people.

The systems of
government that existed in the two protectorates differed significantly, more
so, the cultures and religions of those regions were extremely dissimilar. The
incongruity of the two regions immediately began to manifest in religious
clashes, election riots, persecution of Igbo traders in Northern Nigeria among
other injustices all culminating in the Nigerian Civil War, alternatively
referred to as the Biafran War, which lasted from July 6, 1967 to January 15,
1970.

Today, many years
after the civil war has ended, evidence of marginalization of south-eastern
Nigeria still exists in the form of bad road networks across the region, the
dilapidated River Niger Bridge at Onitsha, Anambra State, outrageous ethnic
inequality in the employment of persons to the federal civil service, general
exclusion in federal projects among other social, economic and political
inequalities.

The aforementioned
social, economic and political inequalities have resulted in the formation of
many indigenous organizations aimed at voicing out the grievances of the Igbo
nation. Most notable among these organizations include the Movement for the
Actualization of the Sovereign State of Biafra (MASSOB) and the Indigenous
People of Biafra (IPOB). There have also been reports of various groups of
people protesting against these perceived injustices in various ways including
organized marches, comments and write-ups on the social media, tyre burnings, stoning
of Federal Government officials, destruction of Federal Government buildings
and bombing of oil pipelines in south-eastern Nigeria.

3.
THE
INTERNATIONAL LAW RIGHT TO SELF-DETERMINATION

The United Nations
(UN) charter states that the purposes of the UN is:

“To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of
people, and to take other appropriate measures to strengthen universal peace.”[2](emphasis
mine)

The United Nation
Organization which is the primary body of UN countries in the international
community clearly recognizes this right to self-determination in its Charter.[3] As
such, no group of persons ought to be compelled by any constituted authority to
remain in a country they have no love, regard and respect for.

Furthermore, the twin
1966 Covenants i.e. the International Covenant on Civil and Political Right
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) which, unlike the UDHR, are binding covenants on all member states
(Nigeria inclusive). These Covenants enshrined a people’s inalienable Right to
self-determination in the following Clear and repetitive terms.

They both provide:

“all people have the right to
self-determination by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development”. [4]

It is instructive to
note that the right of self-determination is considered so elementary that it
is a rule of customary international law, at least in its application to
colonial territories.[5]

The United Nations
Declaration on the Right of Indigenous People (UNDRIP) was adopted by the
United Nations General Assembly on 13^th September, 2007. [6]

Inasmuch as a
Declaration is not binding in International Law, the UNDRIP goes a long way in
expressing the status of the international community vis-à-vis the right to
self-determination.

South Sudan gained
independence from Sudan in 2011, Pakistan seceded from the British Indian
Empire, Kosovo declared independence on February 17, 2008 among numerous other
active separationist movements in the world i.e. the various secessions from
Old Soviet Union, the separation of the old State Union of Serbia and
Montenegro, the division and fusion of Germany (West and East Germany), old
Czechoslovakia, the Austro-Hungarian Empire etc.

4.
CONCLUSION

It is indubitable that
International Law recognizes the right to self-determination. The clamour by
the Igbo race of south-eastern Nigeria for an independent state status is
therefore one in consonance with the provisions of International Law. The right
to self-determination is at the core of International Human Rights Law because
it is a pre-condition for the enjoyment of other human rights, and no other
human right can be enjoyed without it. The Right to self-determination should
therefore not be disregarded by an extant government or cowered by threats of
aggression, but the various grievances should be addressed and possibly a referendum
conducted like in the popular and recent Catalonia’s case which has been
scheduled for the 1^st of October, 2017, this latter date was even
after a failed referendum on “Self-Determination” in 2014.

RECOMMENDATIONS

In recent times,
asides the people of Biafra, there have been various clamours for
self-determination by various secessionist groups across Nigeria i.e. RONDEL[7] in
the Niger/Delta, Arewa youths in the North, the Oduduwa people in the South
West, the people of the Middle-Belt etc.

Although it has been
established and emphasized herein that no unwilling group can be compelled to
remain in a union they do not want to be a part of. However, if these groups
are willing to remain together as a whole, then the situation calls for a
gathering of all of them or their representatives to discuss their existence.

The best option to sustain the existence of Nigeria is Confederalism,
wherein every geo-political zone will be totally independent, uniting under an
umbrella called Nigeria. i.e. the European Union.

However, where a
Confederal system of government fails, a very palatable option to sustain the
existence of Nigeria and to alleviate these clamours for self-determination by
the various constituent nations will be the recent call for the restructuring
of the current political system, which has of late been at the forefront of
every National discourse in the country. Simply put, a call mainly for Resource
Control and autonomy.

It is not a fact to be
ashamed of, that we are different people, with different religions and cultural
complexities. In fact, admitting these very intrinsic differences go a long way
in solving our biggest and recurring problems as a country. Our strength lies
in our Diversity, and it is in our best interest to be united than divided.
According to our Former President Goodluck Jonathan, we will be more recognized
in the International Sphere as a whole than in parts. We are called the Giant
of Africa and derive a lot of benefits from same, not only because of our
wealth, but majorly because we consist of One-Quarter of the entire black
population.

The recent call for
restructuring of the current political system is a call for true federalism
along the lines of all the geo-political zones in Nigeria, wherein these
geo-political zones will be the federating states (entirely controlling their
resources), since they are largely made up people with similar cultures,
religion and identity.

The current Nigerian
purported federal structure is not a federal system of government in a real
sense, but rather a Unitary System of Government disguised as a federal system
of Government. The entire resources are forced out of the Niger-Delta and
shared amongst all the states, without the receiving states having any
contribution to the commonwealth. This is a very inequitable structure which
can never bring about our development, but will only encourage the harbouring
of spite and anarchy, like every other unjust system. A typical example of a
true Federal structure is what is obtainable in the United States of America.
Other countries which have devolved powers from the centre i.e. China, Japan,
India etc., have also experienced rapid growth.

Our National problems
are largely structural rather than peripheral. The current system and its
national-cake syndrome has inspired a spate of unpatriotism and apathy towards
nationhood, and can be linked to every challenge that the Country is now
facing. It has also succeeded in breeding strong men rather than strong
institutions. This explains why we have corruption problems that cannot be
checked or controlled, unending inter-tribal and communal conflicts, unending
issues of insurgency and militancy, different/divergent counterproductive
governance systems i.e. unitary, federal, sharia, customary etc. It only took
the fall in oil prices for us to discover that we were actually living/sitting
on a ticking time-bomb.

THE NEED TO
RESTRUCTURE OF OUR CURRENT POLITICAL SYSTEM – A CALL FOR TRUE FEDERALISM

·
The need for every people to grow at their pace without suffering
limitations from the other.

A true federal system
will allow each of the federating states to grow at their pace and choose their
individual political systems/form of internal governance or government to
achieve such growth and still remain a part of the same country. i.e. there is
no reason why a Sharia System should be imposed on all Nigerians whereas
arguably over half of the entire population consists of Christians (every
region should be allowed to choose what works for it). Although the centre may
still retain certain powers i.e. Defence and currency etc, virtually most of
the exclusive powers of the Centre ought to be devolved to the federating
states i.e. structuring of political and legal systems, aviation, creation of
Local Government to suit needs etc. With all these measures, the issue of
power/energy generation that has been a perpetual problem of Nigeria will be a
thing of the past i.e. there is no sense in a person in Lagos State for
example, generating electricity to be channelled to the National grid to be
transmitted to all Nigerians without considering the power needs of people in
Lagos. It is a very unaccountable and repressive system. There is an old Igbo
saying that ‘a dog that is owned by everyone is often killed by hunger”. That is
simply the situation of our Power Sector. A person in Lagos should be allowed
to Generate as much electricity to suit his needs.

·
Issue of Corruption and Accountability

Allowing these
federating states to develop, control and explore their resources for their own
development will give them a sense of entitlement to the workings of their
government and will bring the government closer to the people. i.e. someone in
the Niger/Delta will not need to travel all the way to Abuja in order to
regulate activities of oil companies mining its resources. Virtually all
clamour for good governance and accountability will be at the Regional level,
since all the region control its resources. When this is the case,
accountability sets in, corruption will become a thing of the past, more
credible candidates start contesting elections etc. this will also help
unburden the centre in order to channel its attention to face real national
issues. A 70-30% sharing formula between the Federating States and the Centre
respectively is very fair.

Also, a true federal
system is the best way to make the centre accountable. This is because every
public official at the centre will have the duty of explaining to each of the
regions what our commonwealth is being used for. Since all the regions will now
generate their resources and contribute a percentage to the centre, issues of
embezzlement of large chunks of money at the centre will not go unexplained and
unpunished. This is because a person involved in such act will have the
invidious task of explaining to every Nigerian, and not only the Niger-Deltans,
as to why he should go unpunished; it becomes truly a crime against the Federal
Republic of Nigeria.

Healthy Competition
Amongst Federating States And Issue Of Security

The current political
structure encourages laziness. If true federalism is practised in Nigeria,
virtually half of the present states in Nigeria have a capability of even being
more developed (all-round) than the centre. Since states will develop at their
pace, developing/progressive states will serve as an example to others. Every
state for example would love its territory to be a destination for investors.
Issues concerned with ignorant leaders, insurgency, indiscriminate killings and
other odious issues which have the capability of isolating a people from the
comity of nations will be a thing of the past. The over-dependence on oil is
very over-rated, every state in Nigeria has the resources to sustain it. Texas
is the oil-producing hub of the United States and yet it is not the richest
state in the US.

Not to mention that
every state in Nigeria is gifted with at least one natural resource, which can
at least sustain it before it can find other ways to increase its Internally
Generated Revenue (IGR).

Issue Of Diversifying
Our Economy And Unemployment

The current clamour by
the present administration to diversify the economy will never come to fruition
under the current structure, and any success at diversifying the economy will
be at best minimal. We run a system where our Governors sit every month
expecting allocations and security votes from the Centre without any
proportionate reciprocal contribution. Bearing in mind how selfish most of our
politicians are, once they get these funds, they can care less about the people.
If true Federalism is practised, states will be forced to generate their own
resources for their sustenance. Since their existence will now lie in their
hands, diversifying the economy, unemployment issues, failure to pay salaries
will be the least of our worries.

Osinachi Obi-Njoku and Henry Chibuike Ugwu

Photo Credit – www.pointblanknews.com

[1] Elizabeth A. Martin, et al., Oxford Dictionary of Law, 6^th
ed. (New York: Oxford University Press Inc., 2006) p.486.

[2] Article 1(2), United Nations Charter, 1945.

[3] Ibid., Article 73.

[4] Article 1(1) of
the I.C.C.P.R 1966 and Article 1(1) of the I.C.E.S.C.R 1966.

[5] B.B.O. Enabulele,
International Law (Lagos: AMBIK
PRESS, 2006) p.211.

[6] Worthy of note is that Nigeria among 10 other
states abstained from the voting to adopt the UNDRIP. See also Articles 3 – 5,
UNDRIP.

[7]
Region of Niger Delta

5 takeaways from our poll on whether Evans the kidnapper should be released on compassionate grounds

by Legalnaija | Jun 18, 2017 | Uncategorized

The news of the successful arrest of kidnap kingpin, Evans Onwuamadik, in Magodo, on the 10th of June, 2017, has trailed several news outlets and social media in Nigeria for the past week. Evans had led his gang of kidnappers on several successful operations which had earned him millions of naira in cash and properties including several houses scattered all over the country. While also leaving behind the emotional torture and pain inflicted on his victims and their families.

More surprising, was the call from his wife for the release of her hubby and father of her children on compassionate grounds. No doubt, majority of Nigerians found everything wrong this plea and this caused a debate on twitter and other social media outlets on why such a person should enjoy the benefits of a second chance. Hence, our poll to ascertain public opinion on the issues,here are the lessons from our poll and twitter engagement.

1. The Criminal Code needs urgent reform –

While states such as Lagos, Edo and Delta have passed stricter laws such as the death penalty and life imprisonment on kidnapping, the Criminal Code Act still provides for a lesser penalty. Section 364 of the Act states a penalty of 10 years imprisonment for anyone who unlawfully imprisons another. This clearly shows that the Criminal Code Act is far behind on the current reality of crime in Nigeria and urgently needs to be adequately reformed, hopefully the 8th National Assembly takes a critical look at the Criminal Code Act to bring it in line with current realities.

2. Revisiting the Death Penalty –

While Nigerian laws still recognise the death

Penalty for offences such as murder, it is to be considered whether the death penalty should be introduced nationally to other grievous crimes such as corruption and kidnapping. Though executions have rarely happened in the past few years, introducing capital punishment for these crimes may help considerably stem down the high rise of these offences in the country.

3. Opinion could easily become an infringement on the rights of others –

While the constituion guarantees the rights of freedom of thought and expression, many Nigerians don’t understand that these rights are in no way absolute. Where the rights of one person stops,the rights of others begin. Though we have a legal right to ask a poll to ascertain public opinion on any subject, the responses we received from fellow twitter users were quite epic. For instance, a twitter user @noffced wrote that Legalnaija was a fraudulent blawg, a clear statement made without proof of any fraudulent act committed by Legalnaija but made to disparage the public identity of the blog. A statement which could be argued as defamatory. It should be noted that a defamatory matter according to section 373 of the Criminal Code is one likely to expose a person to hatred, ridicule or contempt. While it is okay to say whatever we want,its wrong to say things that are untrue and could cause damage to the reputation of others,this may find the maker of such statement liable for the act of defamation and also to damages.

4. Kidnapping is a national emergency and must be treated as such –

The public outcry from our poll is evident of the devastation the act of kidnapping has caused on the lives of many Nigerians. Victims have included wealthy persons, government officials and also students. This is an urgent call for the overview of the national security apparatus in safeguarding the lives of Nigerians as they go about their daily activities.

5. Nigerian Twitter takes no prisoners –

Nigerian twitter is very vocal and anyone who has been on its bad side would attest that tweeps can be merciless with their comments. From our poll, we got responses asking about our mental state, asking us to delete our account, accusing us of being bribed by the family of Evans, referring us to the police, unfollowing us and even lawyers denouncing our blog.

It’s however quite important to note that the poll was for ascertaining public opinion and in no way supports or condones kidnapping or any other crime whatsoever.

A Brief Analysis Of Constructive Dismissal | Busayo Adedeji

by Legalnaija | Jun 15, 2017 | Uncategorized

Simply put constructive dismissal is the
changing of an employee’s job or working conditions with the aim of forcing
their resignation. It is resignation because of the employer creating a hostile
work environment. Since the resignation was not truly voluntary, it is in fact,
a termination. An example of constructive dismissal might be a situation where
an employer forces a senior officer to take instructions from his juniors
(where the senior officer is clearly more experienced and competent) or any
such other related actions in an attempt to frustrate the employee to the point
of resignation.

Employers might wish to know that the
concept of constructive dismissal, though not often heard of in Nigerian labour
and employment issues is no longer alien to this clime. This is especially as
the third alteration to the 1999 constitution empowers the National Industrial
Court of Nigeria (“NICN”) to apply international best practices in labour in
arriving at its decision. Also, noteworthy in this regard is the provision of
section 19(d) of the NICN Act (2006) which provides that:

“The court may in all other cases and where
appropriate make any other including; an award of compensation or damages in
any circumstance contemplated by this Act or any other Act of the National
Assembly dealing with any matter that the court has jurisdiction to hear”.

In Miss Ebere Ukoji v. Standard
Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC,
the court held that to attempt to have the employee resign, rather than
outright firing the employee means that the employer is trying to create a
constructive discharge.[ii]

Generally, an employee bringing a claim of
constructive dismissal must (1) show that his employer created a hostile work
environment in a bid to get him to resign; and (2) that the hostile work
environment led to his resignation.

[i] image credits: https://legalnaija.com/2012/03/employment-rights-constructive.html

[ii] The Changing Face of Nigerian Labour Law
Jurisprudence and What Employers Need to Know. By Hon. Justice Benedict Bakwaph
KANYIP, PhD

Busayo Adedeji

Regulatory Compliance & Commercial law
advisor

Ed’s note – This article was first published here

Legal protection from workplace sexual harassment | Michael Dugeri

by Legalnaija | Jun 15, 2017 | Uncategorized

There is legal protection from workplace
sexual harassment. Workplace sexual harassment is commonly defined as
unwelcome sexual advances, requests for sexual favours, and other verbal or
physical conduct of a sexual nature when:

·
Submission
to such conduct is made either explicitly or implicitly, a term or condition of
an individual’s employment, or

·
Submission
to or rejection of such conduct by an individual is used as a basis for
employment decisions affecting such individual, or

·
Such
conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or
offensive working environment.

Workplace sexual harassment can include a
one-off incident or a series of incidents. Both male and female colleagues can
either be the victim or offender. It is particularly serious when behaviour of
this kind is initiated by any official who is in a position to influence the
career or employment conditions (including hiring, assignment, contract
renewal, performance evaluation, working conditions, or promotion) of the
victim. Sexual harassment may also occur outside the workplace and/or outside
working hours.

The Nigerian Labour Act and the many HR
policies that workers in Nigeria are commonly bound by are silent on the issue
of workplace sexual harassment. This has left many victims of this problem in
doubt as to their legal options. Workplace sexual harassment results in
violation of the fundamental rights of a worker which include dignity of the
human person and personal liberty guaranteed under the 1999 Constitution.

A person’s right to protection against
sexual harassment and the right to work with dignity are universally recognised
human rights by international conventions and instruments. Hence every person
has the right to practice any profession or to carry on any lawful occupation,
trade or business which includes a right to a safe environment free from sexual
harassment.

The National Industrial Court (NIC) amended
its civil procedure rules recently to provide the procedure for claims against
workplace sexual harassment. Order 14 of the National Industrial
Court of Nigeria (Civil Procedure) Rules, 2017provides that an action
in which a worker alleges sexual harassment at the workplace should spell out
whether the sexual harassment is any of the following:

a. Physical conduct of
a sexual nature: such as unwanted physical contact, ranging from touching to
sexual assault and rape, strip search by or in the presence of the opposite
sex, gesture that constitutes the alleged sexual harassment ; and/or

b. A verbal form of
sexual harassment: such as unwelcome innuendoes, suggestions and hints, sexual
advances, comments with sexual overtones, sex related jokes or insults, or
unwelcome graphic comments about a person’s body, unwelcome and inappropriate
enquiries about a person’s sex life and unwelcome whistling at a person or
group of persons, any document, material or exhibit in further support of the
claim ; and/or

c. A non-verbal form
of sexual harassment which includes unwelcome gestures, indecent exposures, and
unwelcome display of sexually explicit pictures and objects ; and/or

d. Quid
pro quo harassment where an owner, employer, supervisor, member of management
or co-employee undertakes or attempts to influence or influences the process of
employment, promotion, training, discipline, dismissal, salary increments or
other benefits of an employee or job applicant in exchange for sexual favours.

To be clear, the said Order 14 of the NIC
Rules is not necessarily a codification of the law on workplace sexual
harassment; as this workplace vice has always been actionable before the
courts. However, the new NIC provision is helpful in at least three major ways.
Firstly, it defines what amounts to workplace sexual harassment. Secondly, it
explicitly makes it an actionable claim. Thirdly, it provides a guide on how to
prove it before the court.

For instance, it is common to assume that
only behaviour under paragraph (d) above amounts to workplace sexual
harassment, when in fact there is a lot more to it than that. From Order 14 of
the new NIC Rules therefore, we are now clear that any of the following
qualifies as workplace sexual harassment:

·
asking
for sex in exchange for a benefit or a favour

·
repeatedly
asking for dates, and not taking “no” for an answer

·
strip
search by or in the presence of the opposite sex

·
making
unnecessary physical contact, including unwanted touching

·
using
rude or insulting language or making comments towards women

·
(or
men, depending on the circumstances)

·
calling
people sex-specific derogatory names

·
making
sex-related comments about a person’s physical characteristics or actions

·
posting
or sharing pornography, sexual pictures or cartoons, sexually

·
explicit
graffiti, or other sexual images (including online)

·
making
sexual jokes

A worker who suffers from any of the above
can institute an action at the National Industrial Court for reliefs, which
include monetary compensation, damages and injunction.

Protesting against sexual harassment is
extremely difficult because it most often results in a hostile work
environment, delay in promotion or even loss of job. The daily humiliation is
compounded by the forced repeated encounters with the offender who is often a
person in power in the office. Harm caused by sexual harassment is often
extreme, including humiliation, loss of dignity, psychological (and sometimes
physical) injury, damage to professional reputation and career. Inevitably, the
victims face a choice between their work and their self-esteem. Sometimes, they
face a choice between their jobs and their own safety. While these effects are
not seen instantly, they linger on in the mind of the victim long after the
abuse has taken place. Employees who become less confident overtime are
sometimes the victims of sexual harassment.

While the person who sexually harasses
someone else is liable for their behaviour, employers can also be held
vicariously liable for acts of sexual harassment by their employees or
agents. This would be more so where there is proof that the employer was aware
of the sexual harassment but failed to protect the victim or punish the
offender. In fact, employers that do not take steps to prevent sexual
harassment can face major costs in decreased productivity, low morale,
increased absenteeism, health care costs and potential legal expenses.

Some types of sexual harassment may also be
offences under criminal law and should be reported to the police. These include
behaviours like indecent exposure, stalking, sexual assault and obscene or
threatening communications.

Companies that want to manage their risk
prudently must act before the problem occurs. Employers should adopt a clear
sexual harassment policy, by devoting a section in their employee policy
handbook to sexual harassment that outlines the following:

a. define
sexual harassment;

b. state
in clear terms that it will not be tolerated;

c. set
out a clear procedure for filing sexual harassment complaints;

d.
state
that retaliation against anyone who

e.
complains
about sexual harassment would not be tolerated; and

e. continually
monitor the work place for signs of sexual harassment.

It is better to be safe than sorry.

Michael Dugeri

Corporate Commercial Lawyer at
Austen-Peters & Co.

Ed’s Note – This article was first published here

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