Music Saturdays – Forte
Teniola George, a.k.a “Forte” is a Nigerian lawyer who has embraced his passion for music like our earlier Music Saturday features such as Falz, Kinggfefe and Slimusic.
Check out his music video and share.
Abimbola Balogun – Position Of Commissioned Photographers under The Nigerian Copyright Law
So I somehow walked into
an argument with a friend of mine the other day of which the true and current
position on the topic has been on my mind for a few days now. I really Don’t
remember how that happened but the issue sent me into a frenzy as I really hate
to loose arguments. Here is how I got myself into the argument. So I just
finally got my wedding album from my fantastic photographer and I was really
impressed with the turnout as I was frankly scared that it would not look as
dreamy as I had pictured in my mind (brides and their outlandish fantasy ideas
right) so I didn’t waste any time to whip out my new priced possession albums
for my guests to view on one fine Thursday evening.
an argument with a friend of mine the other day of which the true and current
position on the topic has been on my mind for a few days now. I really Don’t
remember how that happened but the issue sent me into a frenzy as I really hate
to loose arguments. Here is how I got myself into the argument. So I just
finally got my wedding album from my fantastic photographer and I was really
impressed with the turnout as I was frankly scared that it would not look as
dreamy as I had pictured in my mind (brides and their outlandish fantasy ideas
right) so I didn’t waste any time to whip out my new priced possession albums
for my guests to view on one fine Thursday evening.
To my greatest pleasure,
my guests were as impressed as I was when I first saw the albums. As they
flipped through the pages of the albums many different topics ensued from each
picture. From how hilarious a particular picture turned out; to how the
photographer’s skills were beautifully displayed when she captured “emotions”.
All small talk was warm and very welcome to massage my growing ego until one of
my guests said and I quote “do you know that the photographer owns the
copyright on your pictures?” basically she could do what she pleases with my
pictures. I thought that idea was ridiculous and I did not hesitate to mouth
out that fact. I knew that we had moved from small talk to big business. The
room was instantly heated up in arguments and legal talk on what does or should
apply. I against guest and my husband trying to be diplomatic by trying to see
the sense in both views. Of course myself and guests did not budge on our own
lawyerly opinions on the issue.
my guests were as impressed as I was when I first saw the albums. As they
flipped through the pages of the albums many different topics ensued from each
picture. From how hilarious a particular picture turned out; to how the
photographer’s skills were beautifully displayed when she captured “emotions”.
All small talk was warm and very welcome to massage my growing ego until one of
my guests said and I quote “do you know that the photographer owns the
copyright on your pictures?” basically she could do what she pleases with my
pictures. I thought that idea was ridiculous and I did not hesitate to mouth
out that fact. I knew that we had moved from small talk to big business. The
room was instantly heated up in arguments and legal talk on what does or should
apply. I against guest and my husband trying to be diplomatic by trying to see
the sense in both views. Of course myself and guests did not budge on our own
lawyerly opinions on the issue.
My Guest opined that
when a photographer takes shots, he/she as the author of that image has the
copyright on the pictures over and above any other. This is regardless of if
the pictures have been paid for. I thought this idea was weird and ridiculous.
How can I pay for someone to do a job and the person still can hold on to
rights of my own personal images that I paid to be taken?
when a photographer takes shots, he/she as the author of that image has the
copyright on the pictures over and above any other. This is regardless of if
the pictures have been paid for. I thought this idea was weird and ridiculous.
How can I pay for someone to do a job and the person still can hold on to
rights of my own personal images that I paid to be taken?
The night ended
quite pleasantly; warm hugs and kisses goodnight, but silently I knew this
argument was definitely not over.
quite pleasantly; warm hugs and kisses goodnight, but silently I knew this
argument was definitely not over.
I tried to forget about
the argument for a couple of days, but as I said I really hate to loose
arguments. So I went on my own literal photobomb expedition.
the argument for a couple of days, but as I said I really hate to loose
arguments. So I went on my own literal photobomb expedition.
While on my research I
stumbled on the American copyright article which agreed 100% with my guest’s
position[1]. The author states that Under U.S. copyright law, the original
owner of a created work is exclusively the creator, unless it’s a ‘work for
hire’. The author therein stated that in the wedding scenario, a photographer
is hardly ever ‘for hire,’ Even though married couples spend thousands for a
photographer to cast their most memorable moments in just the right light, they
may never actually own the results and also, the fact that the photographer
hands you a cd, hard copy, or soft copy of pictures taken of you does not mean
he has handed you the rights to those pictures. Hmmm interesting I thought to
myself, but still confused; plus, that one is the Americana situation; so back
to Nigerian scenario to find something that makes more legal sense to me or at
least someone or something that could explain this crazy phenomenon to me.
stumbled on the American copyright article which agreed 100% with my guest’s
position[1]. The author states that Under U.S. copyright law, the original
owner of a created work is exclusively the creator, unless it’s a ‘work for
hire’. The author therein stated that in the wedding scenario, a photographer
is hardly ever ‘for hire,’ Even though married couples spend thousands for a
photographer to cast their most memorable moments in just the right light, they
may never actually own the results and also, the fact that the photographer
hands you a cd, hard copy, or soft copy of pictures taken of you does not mean
he has handed you the rights to those pictures. Hmmm interesting I thought to
myself, but still confused; plus, that one is the Americana situation; so back
to Nigerian scenario to find something that makes more legal sense to me or at
least someone or something that could explain this crazy phenomenon to me.
It also occurred to me
that I have come across this topic a number of times in the past but I lazily
brushed aside the thought of researching the crux of the matter. For instance,
the 2face and Annie Idibia suit of 2013, where the an un-commissioned and
uninvited photographer took wedding photos of 2face and his bride[2]. Secondly;
a client of mine who also happens to be in the entertainment industry had
complained to me about his photographer who had uploaded pictures recently
taken on social media as publicity for his photography career. This was done
without any recourse to my client and even before he had seen the said
pictures. And oh thirdly, back to my wedding album, one of my photographer’s
crew members had uploaded some very nice shots of the wedding for publicity on
her Instagram page (Of course I immediately demanded that he takes down the
shots before I blink my eyes). These are only a few incidents out of the
thousands that occur on a daily basis in the new era of the growing photography
sector.
that I have come across this topic a number of times in the past but I lazily
brushed aside the thought of researching the crux of the matter. For instance,
the 2face and Annie Idibia suit of 2013, where the an un-commissioned and
uninvited photographer took wedding photos of 2face and his bride[2]. Secondly;
a client of mine who also happens to be in the entertainment industry had
complained to me about his photographer who had uploaded pictures recently
taken on social media as publicity for his photography career. This was done
without any recourse to my client and even before he had seen the said
pictures. And oh thirdly, back to my wedding album, one of my photographer’s
crew members had uploaded some very nice shots of the wedding for publicity on
her Instagram page (Of course I immediately demanded that he takes down the
shots before I blink my eyes). These are only a few incidents out of the
thousands that occur on a daily basis in the new era of the growing photography
sector.
So now to answer this
lingering question of where the copyright stands with commissioned/hired/paid
photographers in Nigeria, I have cast away the spirit of laziness and
procrastination and buried my face first to the copyright act itself, my
findings made me smile in 8 different ways. inside smile, outside smile, evil
smile, happy smile, confused smile, wide smile, one sided smile, haahahaaa I
told u so smile. (yes, 8 different types of smiles).
lingering question of where the copyright stands with commissioned/hired/paid
photographers in Nigeria, I have cast away the spirit of laziness and
procrastination and buried my face first to the copyright act itself, my
findings made me smile in 8 different ways. inside smile, outside smile, evil
smile, happy smile, confused smile, wide smile, one sided smile, haahahaaa I
told u so smile. (yes, 8 different types of smiles).
Section 10 Copyright Act, CAP C28 Laws of the Federation
of Nigeria, 2004. States as follows:
of Nigeria, 2004. States as follows:
(1)Copyright
conferred by sections 2 and 3 of this Act, shall vest initially in the author.
conferred by sections 2 and 3 of this Act, shall vest initially in the author.
(2) Notwithstanding
subsection (6) of section 10 of this Act where a work-
subsection (6) of section 10 of this Act where a work-
- is commissioned by a person who is not
the author’s employer under a contract of service or apprenticeship; or
- not having been so commissioned, is
made in the course of the author’s employment,
the copyright shall
belong in the first instance to the author, unless otherwise stipulated in
writing under contract.
belong in the first instance to the author, unless otherwise stipulated in
writing under contract.
(3) Where a
literary, artistic or musical work is made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical
under a contract of service or apprenticeship as is so made for the purpose of
publication in a newspaper, magazine or similar periodical, the said proprietor
shall, in the absence of ]any agreement to the contrary, be the first owner of
copyright in the work in so far as the copyright relates to the publication of
the work in any newspaper, magazine or similar periodical,; or to the
reproduction of the work for the purpose of its been so published; but in all
other respects, the author shall be the first owner of the copyright in the
work.
literary, artistic or musical work is made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical
under a contract of service or apprenticeship as is so made for the purpose of
publication in a newspaper, magazine or similar periodical, the said proprietor
shall, in the absence of ]any agreement to the contrary, be the first owner of
copyright in the work in so far as the copyright relates to the publication of
the work in any newspaper, magazine or similar periodical,; or to the
reproduction of the work for the purpose of its been so published; but in all
other respects, the author shall be the first owner of the copyright in the
work.
(4) In the
case of a cinematograph film or sound recording, the author shall be obliged to
conclude, prior to the making of the work, contracts in writing with all those
whose works are to be used in the making of the work.
case of a cinematograph film or sound recording, the author shall be obliged to
conclude, prior to the making of the work, contracts in writing with all those
whose works are to be used in the making of the work.
Now here’s were the
confused smile and happy smile came in. I had to read this provision about 10
times to get the gist. (legislative drafters right). So here’s how I see this
provision:
confused smile and happy smile came in. I had to read this provision about 10
times to get the gist. (legislative drafters right). So here’s how I see this
provision:
In Nigeria the
photographer owns the copyright to pictures he has taken as a general rule.
However, the following situations are exceptions to this rule.
photographer owns the copyright to pictures he has taken as a general rule.
However, the following situations are exceptions to this rule.
1.
CONTRACT OF APPRENTICESHIP:
where a photograph is taken under an apprenticeship relationship, the rights of
the photograph belongs to the trainer or master.
CONTRACT OF APPRENTICESHIP:
where a photograph is taken under an apprenticeship relationship, the rights of
the photograph belongs to the trainer or master.
2.
CONTRACT OF EMPLOYMENT WITH A
NEWSPAPER MAGAZINE OR SIMILAR PERIODICAL: in this case
section 10(3) of the copyright act stipulates that the rights to such works
belong to the proprietor in the absence of any contrary agreement in so far as
publication is concerned.
CONTRACT OF EMPLOYMENT WITH A
NEWSPAPER MAGAZINE OR SIMILAR PERIODICAL: in this case
section 10(3) of the copyright act stipulates that the rights to such works
belong to the proprietor in the absence of any contrary agreement in so far as
publication is concerned.
3. CONTRACT OF EMPLOYMENT:
reference to section 10 (1)(2)(a) (which I had to read really
slowly, and aloud several times). And here is where I had my fifty shades
of smiles; “… commissioned by a person who is not the author’s employer
under a contract of service or apprenticeship; or… the copyright shall belong
in the first instance to the author, unless otherwise stipulated in writing
under contract.” Where a photographer is an employee of a company
instructed to take the photos or is an employee whose duties include or require
photography, the photographer will be acting on behalf of his employer, and as
such the copyright in photographs taken by the employee in the normal course of
business will belong to the employer. In simpler words, a work done by a
commissioned person or employee belongs to the employer or
commissioner[3].
reference to section 10 (1)(2)(a) (which I had to read really
slowly, and aloud several times). And here is where I had my fifty shades
of smiles; “… commissioned by a person who is not the author’s employer
under a contract of service or apprenticeship; or… the copyright shall belong
in the first instance to the author, unless otherwise stipulated in writing
under contract.” Where a photographer is an employee of a company
instructed to take the photos or is an employee whose duties include or require
photography, the photographer will be acting on behalf of his employer, and as
such the copyright in photographs taken by the employee in the normal course of
business will belong to the employer. In simpler words, a work done by a
commissioned person or employee belongs to the employer or
commissioner[3].
4.
ASSIGNMENT: A
photographer may assign his copyright by written agreement. This will supersede
the provisions of the law. If there is a written contract or an agreement
signed by the photographer assigning copyright to another party, then the
rights will be deemed to belong to the assignee.
ASSIGNMENT: A
photographer may assign his copyright by written agreement. This will supersede
the provisions of the law. If there is a written contract or an agreement
signed by the photographer assigning copyright to another party, then the
rights will be deemed to belong to the assignee.
5.
GOVERNMENT COMMISSIONING: Section 4.(1) Copyright
shall be conferred by this section on every work, which is eligible for
copyright and is made by or under the direction or control of the Government, a
State authority or prescribed international body. Such rights are conferred on
the Government on behalf of the Federal Republic of Nigeria.
GOVERNMENT COMMISSIONING: Section 4.(1) Copyright
shall be conferred by this section on every work, which is eligible for
copyright and is made by or under the direction or control of the Government, a
State authority or prescribed international body. Such rights are conferred on
the Government on behalf of the Federal Republic of Nigeria.
6.
LAPSE OF TIME.
The 1st schedule to the copyright act provides that an author of a photograph
can exercise exclusive rights on his photo for a period of 50 years after the
end of the year in which the work was first published., after which he looses
the exclusive right on the said work.
LAPSE OF TIME.
The 1st schedule to the copyright act provides that an author of a photograph
can exercise exclusive rights on his photo for a period of 50 years after the
end of the year in which the work was first published., after which he looses
the exclusive right on the said work.
7.
CONTRACT FOR SERVICE:
where I have commissioned the services of the photographer, I am the employer
of the photographer’s services under a service agreement, the rights on my
photographs and album belongs to me. And yes I had to ponder on the issue of
the; “Of or For Service”. I found the key word to be
“Commission” as contained in Section 10 of the Copyright Act; my
interpretation is that once someone has paid for the service of the
photographer under a contract of any nature, without an agreement stating that
the right will belong to the photographer, such rights will be vested in the
commissioning party. Therefore, whether you employ the photographer under a
contract of service or employ the services of the photographer for a specific
purpose, this law will apply[4].
CONTRACT FOR SERVICE:
where I have commissioned the services of the photographer, I am the employer
of the photographer’s services under a service agreement, the rights on my
photographs and album belongs to me. And yes I had to ponder on the issue of
the; “Of or For Service”. I found the key word to be
“Commission” as contained in Section 10 of the Copyright Act; my
interpretation is that once someone has paid for the service of the
photographer under a contract of any nature, without an agreement stating that
the right will belong to the photographer, such rights will be vested in the
commissioning party. Therefore, whether you employ the photographer under a
contract of service or employ the services of the photographer for a specific
purpose, this law will apply[4].
Nigerian case law further
buttressed this point in the case of Joseph Ikhuoria v. Campaign Services
Ltd and Anor[5], the court noted that when a person commissions the
taking of a photograph or the painting or drawing of a portrait or undertakes
an engraving and pays or agrees to pay for it in money’s worth and the work is
made in pursuance of that commission, the person who so commissioned the work
is entitled to any copyright in it as an original work. See also Kolade
Oshinowo v John Holt Group Co [1986] FHCR 308.
buttressed this point in the case of Joseph Ikhuoria v. Campaign Services
Ltd and Anor[5], the court noted that when a person commissions the
taking of a photograph or the painting or drawing of a portrait or undertakes
an engraving and pays or agrees to pay for it in money’s worth and the work is
made in pursuance of that commission, the person who so commissioned the work
is entitled to any copyright in it as an original work. See also Kolade
Oshinowo v John Holt Group Co [1986] FHCR 308.
On this same point in my
research journey, I also found a very interesting post online which I totally
align myself with. It said in summary that although when the photos are taken,
the photographer owns the copyright to the photos. The writer further made a
distinction between license and other rights. He stated that the licence
represents the leave to reprint (i.e., use the photos for personal use, such as
on Christmas cards or in a wedding photo book), for which the photographer may
charge an extra fee. This is so for the sole reason that the photographer will
lose out on the money that you would have paid for the prints. All other rights
are purchased off the photographer upon the payment of the fees. The
photographer however is free to charge an extra and separate fee for the
release of all the rights as mentioned in a contract[6]. But to me, I know I
will only agree to a payment of extra charges if the photographer is Madame TY
Bello!
research journey, I also found a very interesting post online which I totally
align myself with. It said in summary that although when the photos are taken,
the photographer owns the copyright to the photos. The writer further made a
distinction between license and other rights. He stated that the licence
represents the leave to reprint (i.e., use the photos for personal use, such as
on Christmas cards or in a wedding photo book), for which the photographer may
charge an extra fee. This is so for the sole reason that the photographer will
lose out on the money that you would have paid for the prints. All other rights
are purchased off the photographer upon the payment of the fees. The
photographer however is free to charge an extra and separate fee for the
release of all the rights as mentioned in a contract[6]. But to me, I know I
will only agree to a payment of extra charges if the photographer is Madame TY
Bello!
As regards the 2face and
Annie Idibia matter mentioned above, I think this is an issue of facts which
will be discussed another day where the issues for determination will be
whether or not a photographer can claim copyright on an unauthorised or
illegally acquired photograph, or the copyright for paparazzi, I’ll find a
catchy name (Watch out for part 2).
Annie Idibia matter mentioned above, I think this is an issue of facts which
will be discussed another day where the issues for determination will be
whether or not a photographer can claim copyright on an unauthorised or
illegally acquired photograph, or the copyright for paparazzi, I’ll find a
catchy name (Watch out for part 2).
Therefore, ladies and
gentlemen, it is with great pleasure that I state that in my firm opinion that,
my husband and I own our beautiful wedding photos, album, and all rights
connected thereto. As I said, I hate to lose an argument.
gentlemen, it is with great pleasure that I state that in my firm opinion that,
my husband and I own our beautiful wedding photos, album, and all rights
connected thereto. As I said, I hate to lose an argument.
[1] http://blog.kunvay.com/why-you-dont-own-your-wedding-photos-how-to-own-your-wedding-day-copyrights-to-your-wedding-day-photos/;
Viewed on the 12th July 2016
Viewed on the 12th July 2016
[2] https://www.nigerianbulletin.com/threads/2face-and-annie-idibia-sued-for-n120m-by-a-photographer.192057/;
by Kenneth Chimaobi; viewed 13th July 2016
by Kenneth Chimaobi; viewed 13th July 2016
[3]http://www.academia.edu/4673044/Who_Owns_Copyright_under_the_Nigerian_Copyright_Act;
viewed 13th July 2016. Who Owns Copyright under the Nigerian Copyright Act; by
Meshack Okezi
viewed 13th July 2016. Who Owns Copyright under the Nigerian Copyright Act; by
Meshack Okezi
[4]http://repository.up.ac.za/dspace/bitstream/handle/2263/53216/Oloko_Impact_2015.pdf?sequence=1&isAllowed=y;
viewed 11th August 2013
viewed 11th August 2013
[5] F.H.C.R. 308 1986, http://news.nlipw.com/?p=19254
viewed 11th August 2012,
viewed 11th August 2012,
Impact of the World Trade
Organisation TRIPS Agreement on the Intellectual Property Law of Nigeria; by
Temitope Oredola Oloko; http://repository.up.ac.za/dspace/bitstream/handle/2263/53216/Oloko_Impact_2015.pdf?sequence=1&isAllowed=y;
viewed 11th August 2013
Organisation TRIPS Agreement on the Intellectual Property Law of Nigeria; by
Temitope Oredola Oloko; http://repository.up.ac.za/dspace/bitstream/handle/2263/53216/Oloko_Impact_2015.pdf?sequence=1&isAllowed=y;
viewed 11th August 2013
[6]http://apracticalwedding.com/2015/09/wedding-photography-contract/;
by steven Portland; viewed 11th august 2016.
by steven Portland; viewed 11th august 2016.
Ed’s Note – This article
was originally posted here
was originally posted here
Photo Credit – www.guardian.ng
Evicting tenants through self-help
A client once complained
to me about a belligerent tenant who despite owing arrears of rent had refused
to vacate the premises. My Client wanted to let the premises to someone else
who was ready to pay and asked how he could get the tenant out in two months.
to me about a belligerent tenant who despite owing arrears of rent had refused
to vacate the premises. My Client wanted to let the premises to someone else
who was ready to pay and asked how he could get the tenant out in two months.
This is rather an
unfortunate situation landlords sometimes find themselves in. My Client
required funds for his business and these funds were being held over by the unyielding
tenant, which was very frustrating for him. One cannot blame tenants who also
are in this position because such disputes usually arise from the financial
incapacity of the tenant or from dispute with the landlord over rights and
obligations of the parties.
unfortunate situation landlords sometimes find themselves in. My Client
required funds for his business and these funds were being held over by the unyielding
tenant, which was very frustrating for him. One cannot blame tenants who also
are in this position because such disputes usually arise from the financial
incapacity of the tenant or from dispute with the landlord over rights and
obligations of the parties.
Sadly for my client, I informed
him that his tenant being a yearly tenant could not be evicted in 3 months except
he left on his own accord as it was mandatory that the tenant be served a 6 months’
Notice before the process of eviction could begin.
him that his tenant being a yearly tenant could not be evicted in 3 months except
he left on his own accord as it was mandatory that the tenant be served a 6 months’
Notice before the process of eviction could begin.
My client also wanted to
know when exactly he could serve the Quit Notice as the tenants term was to
expire in seven months. According to the law in this regard, a Notice to Quit
must end not sooner than at midnight on the day preceding the anniversary of
the tenancy as stated by the Supreme Court in Nig. Joint Agency LtdV. Arrow Eva
& Gen. Trans. Co. Ltd (1970) NSCC 273. Therefore, if the yearly
tenancy term began on the 5th of February, 2015, the Notice to Quit
must expire no sooner than 4th of February, 2016.
know when exactly he could serve the Quit Notice as the tenants term was to
expire in seven months. According to the law in this regard, a Notice to Quit
must end not sooner than at midnight on the day preceding the anniversary of
the tenancy as stated by the Supreme Court in Nig. Joint Agency LtdV. Arrow Eva
& Gen. Trans. Co. Ltd (1970) NSCC 273. Therefore, if the yearly
tenancy term began on the 5th of February, 2015, the Notice to Quit
must expire no sooner than 4th of February, 2016.
Many impatient landlords
sometimes result to self-help in these situations. Some by executing physical
ejection of the tenant by forcefully removing the tenant’s belongings from the
premises or by frustrating the tenant via cutting off water supply to the
tenant’s apartment and also via some extreme measures like removing the roof of
the building and exposing the tenant to the elements of nature.
sometimes result to self-help in these situations. Some by executing physical
ejection of the tenant by forcefully removing the tenant’s belongings from the
premises or by frustrating the tenant via cutting off water supply to the
tenant’s apartment and also via some extreme measures like removing the roof of
the building and exposing the tenant to the elements of nature.
All landlords must note
that these sorts of actions are extremely frowned upon by the law. This is
further illustrated by the Supreme Court’s pronouncement in Prof.
Ajibajo Akinkugbe V. Ewulum Holdings Nigeria Limited & Anor (2008) 4 SCNJ
404.
that these sorts of actions are extremely frowned upon by the law. This is
further illustrated by the Supreme Court’s pronouncement in Prof.
Ajibajo Akinkugbe V. Ewulum Holdings Nigeria Limited & Anor (2008) 4 SCNJ
404.
Even where a tenancy has
come to an end, the landlord is not entitled to go out into the premises and
physically throw out the tenant but must give the statutory notice required to
the person in possession. The laws of all civilized nations have always frowned
at self –help. The law forbids it. Elochin (Nig) Ltd V. Mbadiwe (1986) 1 NSCC
42.
come to an end, the landlord is not entitled to go out into the premises and
physically throw out the tenant but must give the statutory notice required to
the person in possession. The laws of all civilized nations have always frowned
at self –help. The law forbids it. Elochin (Nig) Ltd V. Mbadiwe (1986) 1 NSCC
42.
Where the landlord brushes
aside the necessity to obtain an order of court of law for possession and
jettisons the rule of law, enters the premises and takes possession, he has
invaded and committed an infraction of the rights of the tenant and renders
himself liable in trespass.
aside the necessity to obtain an order of court of law for possession and
jettisons the rule of law, enters the premises and takes possession, he has
invaded and committed an infraction of the rights of the tenant and renders
himself liable in trespass.
It is therefore advised
that should a landlord be in such situation, it is wise to retain the services
of a lawyer in ejecting the tenant. Also negotiating and mediating as a means
of settling tenancy disputes should be explored and encouraged.
that should a landlord be in such situation, it is wise to retain the services
of a lawyer in ejecting the tenant. Also negotiating and mediating as a means
of settling tenancy disputes should be explored and encouraged.
Dunmade Onibokun Esq.
Principal Partner
Adedunmade Onibokun &
Co.
Co.
+2349095635314
Dunmade’s legal practice
focuses on corporate and commercial law, regulatory compliance, due diligence,
corporate advice and commercial transactions.
He is the Principal partner of Adedunmade Onibokun & Co. a law firm
based in Lagos, Nigeria. Dunmade is also a blogger and publishes the Legalnaija
Blawg via www.legalnaija.com
focuses on corporate and commercial law, regulatory compliance, due diligence,
corporate advice and commercial transactions.
He is the Principal partner of Adedunmade Onibokun & Co. a law firm
based in Lagos, Nigeria. Dunmade is also a blogger and publishes the Legalnaija
Blawg via www.legalnaija.com
Profile – Chief J. K Gadzama SAN
Called to the Nigerian Bar
in 1986 and enrolled at the Supreme Court of Nigeria the same year, Chief J-K
Gadzama was appointed Notary Public in June 1996 and elevated to the worthy
rank of a Senior Advocate of Nigeria (SAN) in 1998. His professional experience
spans a vast area of adjectival/procedural and substantive law. A worthy
professional par excellence, he has been external Solicitor to several
Merchant, Commercial, Development and Industrial Banks; adviser to major
multinational corporations and indigenous companies and organizations and
network of individuals in Nigeria. He was the lead Counsel to the Independent
National Electoral Commission (INEC), and also was the Chief Legal Counsel to
Peoples Democratic Party (PDP).
in 1986 and enrolled at the Supreme Court of Nigeria the same year, Chief J-K
Gadzama was appointed Notary Public in June 1996 and elevated to the worthy
rank of a Senior Advocate of Nigeria (SAN) in 1998. His professional experience
spans a vast area of adjectival/procedural and substantive law. A worthy
professional par excellence, he has been external Solicitor to several
Merchant, Commercial, Development and Industrial Banks; adviser to major
multinational corporations and indigenous companies and organizations and
network of individuals in Nigeria. He was the lead Counsel to the Independent
National Electoral Commission (INEC), and also was the Chief Legal Counsel to
Peoples Democratic Party (PDP).
He is registered with the
Securities & Exchange Commission (SEC), Abuja as a Capital Market
Consultant and was a partner in the legal consortium of Legal Advisory
Partnership (LAP), comprising foreign and indigenous lawyers charged with the
responsibility of providing legal services to the Bureau of Public Enterprises
(BPE) Abuja, from April 2004 to July 2007. Aside this very important
assignment, he is a Legal Consultant to Bureau of Public Enterprises (BPE), the
Secretariat of the National Council on Privatization (NCP), chaired by the Vice
President of the Federal Republic of Nigeria.
Securities & Exchange Commission (SEC), Abuja as a Capital Market
Consultant and was a partner in the legal consortium of Legal Advisory
Partnership (LAP), comprising foreign and indigenous lawyers charged with the
responsibility of providing legal services to the Bureau of Public Enterprises
(BPE) Abuja, from April 2004 to July 2007. Aside this very important
assignment, he is a Legal Consultant to Bureau of Public Enterprises (BPE), the
Secretariat of the National Council on Privatization (NCP), chaired by the Vice
President of the Federal Republic of Nigeria.
Chief J-K Gadzama has been
recognized in the international scene, as his expert opinion on the nature of
damages recoverable under Nigerian Law, was recently in 2015 sought in
Toulouse, France before The Tribunal De Grande Instance De Toulouse. He has
been recognized by Intercontinental Finance Magazine (ICFM) in 2015 as one of
the 500 best lawyers in the world. He is also featured on Who’s Who Legal as an
Arbitration Expert. He was recently appointed Liquidator to wind up the Power
Holding Company of Nigeria ( PHCN) PLC and also provide Legal Advisory Services
for the winding up proceedings.
recognized in the international scene, as his expert opinion on the nature of
damages recoverable under Nigerian Law, was recently in 2015 sought in
Toulouse, France before The Tribunal De Grande Instance De Toulouse. He has
been recognized by Intercontinental Finance Magazine (ICFM) in 2015 as one of
the 500 best lawyers in the world. He is also featured on Who’s Who Legal as an
Arbitration Expert. He was recently appointed Liquidator to wind up the Power
Holding Company of Nigeria ( PHCN) PLC and also provide Legal Advisory Services
for the winding up proceedings.
Due to his Anti-corruption
posture, he was appointed the Chairman, Legal Team of Economic and Financial
Crimes Commission (EFCC) and he was also Chairman, National Working Group on
the Rome Statute constituted by the office of the Honourable Attorney General
of the Federation.
posture, he was appointed the Chairman, Legal Team of Economic and Financial
Crimes Commission (EFCC) and he was also Chairman, National Working Group on
the Rome Statute constituted by the office of the Honourable Attorney General
of the Federation.
Until recently, Chief
Gadzama was a Federal Commissioner/Board Member with the Infrastructure
Concession Regulatory Commission of Nigeria (ICRC), Board Member, Diamond
Pension Fund Custodian and Board Member, University of Benin Governing Council.
Gadzama was a Federal Commissioner/Board Member with the Infrastructure
Concession Regulatory Commission of Nigeria (ICRC), Board Member, Diamond
Pension Fund Custodian and Board Member, University of Benin Governing Council.
Ed”s Note – Culled from www.gadzama.com
What you should know before signing a contract (Part 2)
This is the 2nd
post in a series of articles on contract. The first article defined contracts
while this post will be examining the terms and contents of contracts.
post in a series of articles on contract. The first article defined contracts
while this post will be examining the terms and contents of contracts.
Terms of contracts can be
described as the rights and obligations of parties under the contract. For
instance, under a tenancy agreement, a term of the contract is for the tenant
to pay rent, another term is for the landlord to deliver the premises in
tenable condition.
described as the rights and obligations of parties under the contract. For
instance, under a tenancy agreement, a term of the contract is for the tenant
to pay rent, another term is for the landlord to deliver the premises in
tenable condition.
A term of contract may be
express. i.e. written out expressly in the contract while others may be
implied. i.e. it can be read into a contract though it is not expressly written
out in the contract. For instance under a contract to supply frozen chicken, it
is usually an express term to state the number of cartons of chicken the buyer
requires, however it may be implied into the contract that the seller must
deliver them in good condition, probably in a cooling van in other to keep them
in good condition and not with the cartons dripping with murky defrosted water
and chicken pieces falling out of the cartons.
express. i.e. written out expressly in the contract while others may be
implied. i.e. it can be read into a contract though it is not expressly written
out in the contract. For instance under a contract to supply frozen chicken, it
is usually an express term to state the number of cartons of chicken the buyer
requires, however it may be implied into the contract that the seller must
deliver them in good condition, probably in a cooling van in other to keep them
in good condition and not with the cartons dripping with murky defrosted water
and chicken pieces falling out of the cartons.
No matter what the
contract is for, either a contract to merge companies, buy a property, a
recording contract or a contract of employment. Understanding what terms are express
and those that can be implied into a contract is essential for all parties. As everyone
must know and understand their respective duties and obligations under the contract.
Failure to do this may result in conflict later on, if a party is seeking to
enforce a perceived right under the contract but the other party claims being
not obligated for that right. This may help save you and/or your company from
unwarranted liability.
contract is for, either a contract to merge companies, buy a property, a
recording contract or a contract of employment. Understanding what terms are express
and those that can be implied into a contract is essential for all parties. As everyone
must know and understand their respective duties and obligations under the contract.
Failure to do this may result in conflict later on, if a party is seeking to
enforce a perceived right under the contract but the other party claims being
not obligated for that right. This may help save you and/or your company from
unwarranted liability.
With regard to liability,
it is also important to identify if the alleged obligation is an actual term of
the contract or a mere representation. Also, if it can be implied into the contract.
it is also important to identify if the alleged obligation is an actual term of
the contract or a mere representation. Also, if it can be implied into the contract.
The fact that parties must
fully understand the terms of their contract is further expressed by the
Nigerian Supreme Court in Best (Nigeria) Limited v. Blackwood Hodge
(Nigeria) Limited & 2 Ors (2011) 1 -2 SC (Pt I) 55, where the court
held that –
fully understand the terms of their contract is further expressed by the
Nigerian Supreme Court in Best (Nigeria) Limited v. Blackwood Hodge
(Nigeria) Limited & 2 Ors (2011) 1 -2 SC (Pt I) 55, where the court
held that –
“A
contract ought to be strictly construed in the light of the essential and material
terms agreed by parties. The court should not allow a party to dribble the
other party”.
contract ought to be strictly construed in the light of the essential and material
terms agreed by parties. The court should not allow a party to dribble the
other party”.
It is recommended that
before you sign an agreement, you evaluate if the terms constitute a valid
contract and all parties are clear of their respective duties and obligations
under the contract. Also, do not hesitate to seek counsel from a legal
practitioner if you need to.
before you sign an agreement, you evaluate if the terms constitute a valid
contract and all parties are clear of their respective duties and obligations
under the contract. Also, do not hesitate to seek counsel from a legal
practitioner if you need to.
Dunmade Onibokun Esq.
Principal
Partner
Partner
Adedunmade
Onibokun & Co.
Onibokun & Co.
+2349095635314
Dunmade’s legal practice
focuses on corporate and commercial law, regulatory compliance, due diligence,
corporate advice and commercial transactions.
He is the Principal partner of Adedunmade Onibokun & Co. Dunmade is
also a blogger and publishes the Legalnaija Blawg via www.legalnaija.com
focuses on corporate and commercial law, regulatory compliance, due diligence,
corporate advice and commercial transactions.
He is the Principal partner of Adedunmade Onibokun & Co. Dunmade is
also a blogger and publishes the Legalnaija Blawg via www.legalnaija.com
Decision Of A Court With Competent Jurisdiction – Meaning And Effect Of
“In this Constitution
unless it is otherwise expressly provided or the context otherwise requires-
“decision” means, in relation to a court, any determination of that court and
includes judgment; decree, order conviction, sentence or recommendation”.
unless it is otherwise expressly provided or the context otherwise requires-
“decision” means, in relation to a court, any determination of that court and
includes judgment; decree, order conviction, sentence or recommendation”.
- SECTION 318 (1) OF THE 1999
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).
It is trite that the
decision of a court of competent jurisdiction no matter its nature is absolute
and binding on all and sundry without question until such decision is legally
and legitimately set aside by a competent court of appellate jurisdiction. As
stated in Section 318 (1) above, the decision of a court varies from judgment
to decree, order, conviction, sentence and recommendation. The decision of a
court of competent jurisdiction could be either final or interim in nature.
decision of a court of competent jurisdiction no matter its nature is absolute
and binding on all and sundry without question until such decision is legally
and legitimately set aside by a competent court of appellate jurisdiction. As
stated in Section 318 (1) above, the decision of a court varies from judgment
to decree, order, conviction, sentence and recommendation. The decision of a
court of competent jurisdiction could be either final or interim in nature.
A final decision of a
court as the name connotes is final and permanent with respect to that suit and
the court becomes functo officio i.e. the court cannot revisit same. The
only option available to any aggrieved party in such instance will be to have
same set aside either in its entirety or in part, by a competent court of appellate
jurisdiction. Examples of final decisions are conviction, sentence and decree.
An interim decision on the other hand is neither final nor permanent. As the
word ‘interim’ connotes, it is made to last for a specific period of time,
usually pending the determination of the suit or a motion on notice. The coming
to an end of an interim order of a court of competent jurisdiction does not
adversely affect whatever such order was meant to achieve or had achieved and
examples of interim decisions are court orders and recommendations.
court as the name connotes is final and permanent with respect to that suit and
the court becomes functo officio i.e. the court cannot revisit same. The
only option available to any aggrieved party in such instance will be to have
same set aside either in its entirety or in part, by a competent court of appellate
jurisdiction. Examples of final decisions are conviction, sentence and decree.
An interim decision on the other hand is neither final nor permanent. As the
word ‘interim’ connotes, it is made to last for a specific period of time,
usually pending the determination of the suit or a motion on notice. The coming
to an end of an interim order of a court of competent jurisdiction does not
adversely affect whatever such order was meant to achieve or had achieved and
examples of interim decisions are court orders and recommendations.
The fact of a decision
being final or interim does not affect its application and effectiveness. A
decision of a court with competent jurisdiction remains valid and enforceable
and must at all times be obeyed. Whether or not an appellate court will have
come to a different decision compared to that of a trial court, even at that,
appellate courts do not ordinarily intervene as matters of practice in
decisions which border on the exercise of discretion by the lower court. An appellate
court will only interfere/intervene where it considers that the exercise of
discretion by such lower court – was wrongly exercised based on wrong or
erroneous premise; or was perverse; or where there was a violation of some
principles of law or procedure- such as where the lower court took irrelevant
materials into consideration or failed to consider relevant materials in
arriving at its decision; and in all other circumstance where such exercise
would occasion a miscarriage of justice.
being final or interim does not affect its application and effectiveness. A
decision of a court with competent jurisdiction remains valid and enforceable
and must at all times be obeyed. Whether or not an appellate court will have
come to a different decision compared to that of a trial court, even at that,
appellate courts do not ordinarily intervene as matters of practice in
decisions which border on the exercise of discretion by the lower court. An appellate
court will only interfere/intervene where it considers that the exercise of
discretion by such lower court – was wrongly exercised based on wrong or
erroneous premise; or was perverse; or where there was a violation of some
principles of law or procedure- such as where the lower court took irrelevant
materials into consideration or failed to consider relevant materials in
arriving at its decision; and in all other circumstance where such exercise
would occasion a miscarriage of justice.
When a court makes an
order or give a final judgment, every person against or in respect of whom such
order is made have an obligation to obey it unless and until that order is
discharged. This is because courts are recognized as the hallowed chambers of
justices, where even-handed justice is meted out to all and sundry, without
sentiment, emotion, favoritism or being unnecessarily embroiled in class
legalism.
order or give a final judgment, every person against or in respect of whom such
order is made have an obligation to obey it unless and until that order is
discharged. This is because courts are recognized as the hallowed chambers of
justices, where even-handed justice is meted out to all and sundry, without
sentiment, emotion, favoritism or being unnecessarily embroiled in class
legalism.
I hope this write up was
beneficial to you. You are welcomed to leave your questions, comments,
constructive criticism, suggestions, new ideas, contributions etc in the
comment section or my email address which is thelawdenike@gmail.com I look forward
to reading from your comments.
beneficial to you. You are welcomed to leave your questions, comments,
constructive criticism, suggestions, new ideas, contributions etc in the
comment section or my email address which is thelawdenike@gmail.com I look forward
to reading from your comments.
LEGAL AUTHORITIES USED:
- KUBOR V DICKSON (2013) 4 NWLR PART
1345 PG. 534 - AHMED V COP BAUCHI STATE (2012) 9 NWLR
PART 130-131 Para. E-A, IHUNWO V. IHUNWO (2013) 8 NWLR PART 1357 P. 576 - 1999 CONSTITUTION (AS AMENDED)
DISCLAIMER NOTICE:
This blog is a free education material, for your general information and
enlightenment purposes ONLY. This write up, by itself does not create a
Client/Attorney relationship between yourself and the author of this blog.
Readers are therefore advised to seek professional legal counseling to their
specific situation when they do arise. This blog is protected by Intellectual
Property Law and Regulations. It may however be shared with others parties or
person provided the writer’s Authorship is always acknowledged and this
disclaimer notice attached.
This blog is a free education material, for your general information and
enlightenment purposes ONLY. This write up, by itself does not create a
Client/Attorney relationship between yourself and the author of this blog.
Readers are therefore advised to seek professional legal counseling to their
specific situation when they do arise. This blog is protected by Intellectual
Property Law and Regulations. It may however be shared with others parties or
person provided the writer’s Authorship is always acknowledged and this
disclaimer notice attached.
www.thelawdenike.wordpress.com
Ed’s Note – This article was originally posted here.
Photo Credit – www.hotels.ng
Dunmade Onibokun – Do you have a Contract of Employment?
There
are a lot of people reading this post, answering “No” to the above question.
Next is thinking asking why you don’t have one in the first place and wondering
if you are even entitled to one?
are a lot of people reading this post, answering “No” to the above question.
Next is thinking asking why you don’t have one in the first place and wondering
if you are even entitled to one?
Personally,
I have met workers who informed me that though they were engaged in various
forms of employments, they did not have written Contracts of Employment neither
had they been provided one by their employers.
I have met workers who informed me that though they were engaged in various
forms of employments, they did not have written Contracts of Employment neither
had they been provided one by their employers.
If
you work in Nigeria and most likely any part of the World. Employers are always
required to provide a contract of employment to their workers. Also by virtue
of the Labour Act, every employer should provide a worker with a copy of the
Contract of employment not later than 3 months after the worker has commenced employment.
The law states in Section 7, that –
you work in Nigeria and most likely any part of the World. Employers are always
required to provide a contract of employment to their workers. Also by virtue
of the Labour Act, every employer should provide a worker with a copy of the
Contract of employment not later than 3 months after the worker has commenced employment.
The law states in Section 7, that –
7. (1) Not later than three months
after the beginning of a worker’s period of employment with an employer, the
employer shall give to the worker a written statement specifying-
after the beginning of a worker’s period of employment with an employer, the
employer shall give to the worker a written statement specifying-
(a)
the name of the employer or group of employers, and where appropriate, of the
undertaking by which the worker is employed;
the name of the employer or group of employers, and where appropriate, of the
undertaking by which the worker is employed;
(b)
the name and address of the worker and the place and date of his engagement;
the name and address of the worker and the place and date of his engagement;
(c)
the nature of the employment;
the nature of the employment;
(d)
if the contract is for a fixed term, the date when the contract expires;
if the contract is for a fixed term, the date when the contract expires;
(e)
the appropriate period of notice to be given by the party wishing to terminate
the contract, due regard being had to section 11 of this Act;
the appropriate period of notice to be given by the party wishing to terminate
the contract, due regard being had to section 11 of this Act;
(f)
the rates of wages and method of calculation thereof and the manner and
periodicity of payment of wages;
the rates of wages and method of calculation thereof and the manner and
periodicity of payment of wages;
(g)
any terms and conditions relating to-
any terms and conditions relating to-
(i)
hours of work, or
hours of work, or
(ii)
holidays and holiday pay, or
holidays and holiday pay, or
(iii)
incapacity for work due to sickness or injury, including any provisions for
sick pay; and
incapacity for work due to sickness or injury, including any provisions for
sick pay; and
(h)
any special conditions of the contract.
any special conditions of the contract.
Furthermore,
Subsection (2) states that if after the date to which the said statement
relates there is a change in the terms to be included or referred to in the
statement the employer shall, not more than one month after the change, inform
the worker of the nature of the change by a written statement; if he does not
leave a copy of the statement with the worker, shall preserve the statement and
ensure that the worker has reasonable opportunities of reading it in the course
of his employment, or that it is made reasonably accessible to the worker in
some other way.
Subsection (2) states that if after the date to which the said statement
relates there is a change in the terms to be included or referred to in the
statement the employer shall, not more than one month after the change, inform
the worker of the nature of the change by a written statement; if he does not
leave a copy of the statement with the worker, shall preserve the statement and
ensure that the worker has reasonable opportunities of reading it in the course
of his employment, or that it is made reasonably accessible to the worker in
some other way.
From the above, it’s
essential that workers are provided with copies of their Contracts of
employment according to the provisions of the law. By virtue of Section 21 of
the Act, any employer who breaches the above mentioned law is guilty of an
offence and liable to payment of a fine.
essential that workers are provided with copies of their Contracts of
employment according to the provisions of the law. By virtue of Section 21 of
the Act, any employer who breaches the above mentioned law is guilty of an
offence and liable to payment of a fine.
Dunmade Onibokun
Adedunmade Onibokun &
Co.
Co.
Photo Credit – www.constituitionproject.ie
Senate Passes Nigerian Railway Corporation Bill, 2016
|
|||
| Senator Gbenga Ashafa (Chairman, Senate Committee on Land Transport) |
The Senate on Thursday,
July 21, 2016, passed the Nigerian Railway Corporation Bill 2016 seeking to
replace the 61 year old obsolete Nigerian Railway Corporation Act, 1955. The
Bill sailed through third reading after a very rigorous exercise; and hopes to
revitalize the Railway sector for optimal development and conform to modern
trends and challenges.
July 21, 2016, passed the Nigerian Railway Corporation Bill 2016 seeking to
replace the 61 year old obsolete Nigerian Railway Corporation Act, 1955. The
Bill sailed through third reading after a very rigorous exercise; and hopes to
revitalize the Railway sector for optimal development and conform to modern
trends and challenges.
The Nigerian Railway
Corporation Repeal and Reenactment Bill 2015, was sponsored by Senator Andy Uba.
The Chairman of the Senate Committee on Land Transport, Senator Gbenga Ashafa and
other members held interactive sessions with the Ministry of Transport and the
Nigerian Railway Corporation to evaluate the challenges facing the rail sector
including a public hearing.
Corporation Repeal and Reenactment Bill 2015, was sponsored by Senator Andy Uba.
The Chairman of the Senate Committee on Land Transport, Senator Gbenga Ashafa and
other members held interactive sessions with the Ministry of Transport and the
Nigerian Railway Corporation to evaluate the challenges facing the rail sector
including a public hearing.
A crucial reform which the
bill is presenting is the necessary inclusion of Public Private Partnership
(PPP) Initiatives in the Nigerian Railway Sector. The bill also separates the
regulator from the operators. It is Hoped that introduction of the Bill will
drive the needed economic reform in the industry and provide private investment
opportunities for the sector.
bill is presenting is the necessary inclusion of Public Private Partnership
(PPP) Initiatives in the Nigerian Railway Sector. The bill also separates the
regulator from the operators. It is Hoped that introduction of the Bill will
drive the needed economic reform in the industry and provide private investment
opportunities for the sector.
Ivie Omoregie: When Oil & Gas Companies Start Letting Go of Staff
Many people would be aware
of the general crash in the price of a barrel of crude oil (at one point, even
Hennessy cost pass am); although the oil and gas sector has a history of boom
and busts, this would have been the lowest slump since the early 90’s. Unfortunately,
even industry experts did not see it coming.
of the general crash in the price of a barrel of crude oil (at one point, even
Hennessy cost pass am); although the oil and gas sector has a history of boom
and busts, this would have been the lowest slump since the early 90’s. Unfortunately,
even industry experts did not see it coming.
Companies involved in
upstream activities, especially deep offshore, have been forced to simply stop,
with an estimated two-thirds of all rigs being decommissioned; the implication
of this is that, oil companies who previously enjoyed a booming business have
had to readjust their business operations, with many sustaining substantial
losses. Around the world numerous oil companies have gone bankrupt, resulting
in over 250,000 redundancies.
upstream activities, especially deep offshore, have been forced to simply stop,
with an estimated two-thirds of all rigs being decommissioned; the implication
of this is that, oil companies who previously enjoyed a booming business have
had to readjust their business operations, with many sustaining substantial
losses. Around the world numerous oil companies have gone bankrupt, resulting
in over 250,000 redundancies.
Nigeria has not been left
out of this ripple effect which has shaken the industry to its core. Many oil
and gas workers involved in upstream activities have been weak at the sight of
industry wide job cuts. The few who have managed to keep their jobs have faced
nonnegotiable pay cuts as an alternative to total job losses.
out of this ripple effect which has shaken the industry to its core. Many oil
and gas workers involved in upstream activities have been weak at the sight of
industry wide job cuts. The few who have managed to keep their jobs have faced
nonnegotiable pay cuts as an alternative to total job losses.
How Low Can You Go?
A friend of mine was the
general counsel for a reasonably sized oil company, life was good. She had
great company benefits, and could afford to pay for her son’s UK boarding
school fees. When the Oil Glut first started, as a senior member of staff, she
was given ample notice of the imminent changes and was advised to accept the
15% pay cut. Obviously she was upset about it, but she didn’t complain too
much; she knew that even with the 15% pay cut she was still making a lot more
than most people of equivalent years of experience. Life went on as normal.
general counsel for a reasonably sized oil company, life was good. She had
great company benefits, and could afford to pay for her son’s UK boarding
school fees. When the Oil Glut first started, as a senior member of staff, she
was given ample notice of the imminent changes and was advised to accept the
15% pay cut. Obviously she was upset about it, but she didn’t complain too
much; she knew that even with the 15% pay cut she was still making a lot more
than most people of equivalent years of experience. Life went on as normal.
Things got to melting
point when, after 8 months, the company informed her that there would be
further firm wide pay cuts, resulting in a total of 45% reduction in salaries.
It was made clear to all members of staff that, should they not accept the
further reduction of salaries, their contracts of employment would be
terminated with immediate effect.
point when, after 8 months, the company informed her that there would be
further firm wide pay cuts, resulting in a total of 45% reduction in salaries.
It was made clear to all members of staff that, should they not accept the
further reduction of salaries, their contracts of employment would be
terminated with immediate effect.
Ooh boi… this, coupled
with the fall in the value of the Naira, was simply too much to bear. She
immediately found a job in the UK and took a 1 year sabbatical. The way she
calculated it, rather than work for half of her initially agreed salary, which
had significantly reduced in value when compared to other currencies, she might
as well work in the UK for a year, earning an equivalent of almost 3 years of
the reduced salary. Then, she will decide about her future with that company.
with the fall in the value of the Naira, was simply too much to bear. She
immediately found a job in the UK and took a 1 year sabbatical. The way she
calculated it, rather than work for half of her initially agreed salary, which
had significantly reduced in value when compared to other currencies, she might
as well work in the UK for a year, earning an equivalent of almost 3 years of
the reduced salary. Then, she will decide about her future with that company.
Termination and the Law
Generally the way most
employment contracts are drafted, the employer has the right to amend or even
terminate the contact; as stated in one of my previous articles, they usually
sneak in omnibus clauses under which, to a large extent, they can do what they
like. It is established law that the master servant relationships created by
the employee contract is, in most instances, governed and ultimately determined
by the terms of that agreement.
employment contracts are drafted, the employer has the right to amend or even
terminate the contact; as stated in one of my previous articles, they usually
sneak in omnibus clauses under which, to a large extent, they can do what they
like. It is established law that the master servant relationships created by
the employee contract is, in most instances, governed and ultimately determined
by the terms of that agreement.
However, as regards the
Nigerian oil and gas sector, in an attempt to mitigate against prolific cases
of unfair dismissal as well as further support the hiring of Nigerians in the
sector, the Department of Petroleum Resources (“DPR”) on the 5th March 2015
issued the “Guidelines and Procedures for the release of Staff in the Nigerian
Oil and Gas Industry” (the “2015 Guidelines”).
Nigerian oil and gas sector, in an attempt to mitigate against prolific cases
of unfair dismissal as well as further support the hiring of Nigerians in the
sector, the Department of Petroleum Resources (“DPR”) on the 5th March 2015
issued the “Guidelines and Procedures for the release of Staff in the Nigerian
Oil and Gas Industry” (the “2015 Guidelines”).
The 2015 Guidelines
The main objective of the
2015 Guidelines is the establishment of procedures for obtaining the prior
consent of the Minister of Petroleum prior to the release of Nigerians working
in the Nigerian oil and gas sector. Ironically, this is not the DPR’s first
attempt at controlling the unfair dismissal of Nigerian content in the sector,
a similar guideline was issued in 1997 (which was mostly disregarded). However,
the 2015 Guidelines provide more comprehensive provisions and processes for
obtaining the consent of the minister before the “release” of workers, as well
as prescribing stringent consequences for disobedience.
2015 Guidelines is the establishment of procedures for obtaining the prior
consent of the Minister of Petroleum prior to the release of Nigerians working
in the Nigerian oil and gas sector. Ironically, this is not the DPR’s first
attempt at controlling the unfair dismissal of Nigerian content in the sector,
a similar guideline was issued in 1997 (which was mostly disregarded). However,
the 2015 Guidelines provide more comprehensive provisions and processes for
obtaining the consent of the minister before the “release” of workers, as well
as prescribing stringent consequences for disobedience.
The 2015 Guidelines define
“release” of a worker as meaning:-
“release” of a worker as meaning:-
“the removal of a worker
from the employment in a manner that permanently separates the worker from the
company whether such removal is by “dismissal; retirement ‐ whether voluntary
or forced; termination; redundancy; release on medical grounds; resignation;
death or abandonment of duty post”
from the employment in a manner that permanently separates the worker from the
company whether such removal is by “dismissal; retirement ‐ whether voluntary
or forced; termination; redundancy; release on medical grounds; resignation;
death or abandonment of duty post”
Among the stringent
consequences for disobedience are:-
consequences for disobedience are:-
- Fines ranging from N5,000,000.00 (Five
Million Naira) to N10,000,000.00 (Ten Million Naira); - The recall of the released worker(s);
and - Suspension or cancellation of the
lease, licence or permit belonging to the employer.
By the provisions of the
2015 Guidelines, it is only where the employee retires voluntarily, resigns,
dies or abandons his duty post that a “mere notification” to the DPR will
suffice, in all other instances consent of the DPR would be required in the
prescribed form.
2015 Guidelines, it is only where the employee retires voluntarily, resigns,
dies or abandons his duty post that a “mere notification” to the DPR will
suffice, in all other instances consent of the DPR would be required in the
prescribed form.
Is This Gonna Work?
Some people are of the
view that as with many other ingenious ideas, arguably sporadically, developed
by the Government, monitoring and proper policing of the 2015 Guidelines will
be difficult to almost impossible. This leads one to question the number of
instances where these guidelines are being diligently adhered to, and where not
adhered to, how would the DPR ultimately find out anyway? I’m guessing that the
DPR will only find out where a disgruntled employee reports the company for not
following due process in the termination of their employment contract.
view that as with many other ingenious ideas, arguably sporadically, developed
by the Government, monitoring and proper policing of the 2015 Guidelines will
be difficult to almost impossible. This leads one to question the number of
instances where these guidelines are being diligently adhered to, and where not
adhered to, how would the DPR ultimately find out anyway? I’m guessing that the
DPR will only find out where a disgruntled employee reports the company for not
following due process in the termination of their employment contract.
Some argue that the DPR
are going beyond the scope of their powers in trying to enforce such guidelines
as, as mentioned above, the master servant relationship created by the employee
contract is governed by that contract and the Government should leave parties
to have freedom to contract as they wish.
are going beyond the scope of their powers in trying to enforce such guidelines
as, as mentioned above, the master servant relationship created by the employee
contract is governed by that contract and the Government should leave parties
to have freedom to contract as they wish.
Conclusion
When I told my friend of the 2015 Guidelines, she informed me that she was very
aware of them, and confirmed that her company definitely did not have DPR
approval before sacking dozens of employees. She said upon informing the
company of the need to seek DPR approval before releasing staff, the response
was “Abeg, na DPR go pay salaries”; after seeing the MD’s bulging eyes, and
because she knew she was on her way out anyway, she promptly dropped the
matter.
When I told my friend of the 2015 Guidelines, she informed me that she was very
aware of them, and confirmed that her company definitely did not have DPR
approval before sacking dozens of employees. She said upon informing the
company of the need to seek DPR approval before releasing staff, the response
was “Abeg, na DPR go pay salaries”; after seeing the MD’s bulging eyes, and
because she knew she was on her way out anyway, she promptly dropped the
matter.
However, most people are
not aware of the 2015 Guidelines and it sounds crazy that such important
information has not been brought to the attention of the general public, I am
sure there are hundreds of Nigerian oil and gas workers who, in light of the
recent issues with the sector, are not aware of the due process required by law
before the termination of their employment contract.
not aware of the 2015 Guidelines and it sounds crazy that such important
information has not been brought to the attention of the general public, I am
sure there are hundreds of Nigerian oil and gas workers who, in light of the
recent issues with the sector, are not aware of the due process required by law
before the termination of their employment contract.
However, in saying that,
the legality of the provisions of these guidelines have not been tested, and
until that day no clear conclusion can really be reached.
the legality of the provisions of these guidelines have not been tested, and
until that day no clear conclusion can really be reached.
Ed’s Note: – This article
was originally posted here.
was originally posted here.
Tolulope Aderemi – The Niger Delta Crisis: Negotiations Vs. Military Force
Over the years, various
agitations have filled the political space on the ‘emancipation of the
Niger- Deltans’; rightly so. The environmental degradation frequently
occasioned by the oil & gas exploration and production activities in the
Delta region has largely birthed this agitation as well as various Groups
making different claims; some to ownership of oil and gas whilst others to, a
need to be compensated for ‘taking their natural resource’. Some others have
advocated the need for government to, appropriately interpret the laws and
enlighten the populace on the state of the true ownership of the ‘black
gold’. Only recently, a former Senator of the Federal Republic of Nigeria
(and a former Minister too) on one of the private television stations,
advocated for complete secession of the oil blocs to the ‘Niger Deltans’ with
government only maintaining a ‘participating’ right. Suffice to say that
all views may be right or wrong. What is important is the consequence of not
taking prompt, strategic and decisive action on the incessant and alarming
damage done by the militants to our oil infrastructure thereby causing Nigeria
as a whole to lose its market share in the global oil space.
agitations have filled the political space on the ‘emancipation of the
Niger- Deltans’; rightly so. The environmental degradation frequently
occasioned by the oil & gas exploration and production activities in the
Delta region has largely birthed this agitation as well as various Groups
making different claims; some to ownership of oil and gas whilst others to, a
need to be compensated for ‘taking their natural resource’. Some others have
advocated the need for government to, appropriately interpret the laws and
enlighten the populace on the state of the true ownership of the ‘black
gold’. Only recently, a former Senator of the Federal Republic of Nigeria
(and a former Minister too) on one of the private television stations,
advocated for complete secession of the oil blocs to the ‘Niger Deltans’ with
government only maintaining a ‘participating’ right. Suffice to say that
all views may be right or wrong. What is important is the consequence of not
taking prompt, strategic and decisive action on the incessant and alarming
damage done by the militants to our oil infrastructure thereby causing Nigeria
as a whole to lose its market share in the global oil space.
The Niger Delta
Militants (the category of which includes the Niger Delta Avengers in
particular) started attacking oil pipelines sometimes in February, 2016. The
reactionary bombings were allegedly not unconnected with the termination of
commercial contracts (for the protection of pipelines) to the militants, the
discontinuance of the amnesty program put in place by former President Goodluck
Ebele Jonathan as well as a reduction in the stipends paid to the militants. It
will be recalled that a similar situation was averted by former President Umaru
Musa Yar’Adua, who, sometimes in 2006 and 2009 provided monthly stipends to
militants who were willing to disarm and maintain peace under an amnesty
program. This, as adjudged by many, relatively stabilized the Nigerian oil
sector.
Militants (the category of which includes the Niger Delta Avengers in
particular) started attacking oil pipelines sometimes in February, 2016. The
reactionary bombings were allegedly not unconnected with the termination of
commercial contracts (for the protection of pipelines) to the militants, the
discontinuance of the amnesty program put in place by former President Goodluck
Ebele Jonathan as well as a reduction in the stipends paid to the militants. It
will be recalled that a similar situation was averted by former President Umaru
Musa Yar’Adua, who, sometimes in 2006 and 2009 provided monthly stipends to
militants who were willing to disarm and maintain peace under an amnesty
program. This, as adjudged by many, relatively stabilized the Nigerian oil
sector.
This paper is not to
chronicle the ‘Whys’ of the Niger Delta agitations but to consider the
commercial consequence of the serial bombings which has hitherto shapened both
the micro and macro Nigeria oil space. Nigeria’s Ministern of State for
Petroleum, Dr. Ibe Kachikwu (and the immediate past Group Managing Director of
NNPC) must be commended for clinically and strategically shoring our daily
output from 1.3mbp to about 1.9mbpd. Nevertheless, his successor, Dr Maikanti
Baru, must grapple this situation with equal diplomatic and aggressive vigor to
avoid situations resulting into a sequence of missed/delayed shipments at the
various export terminals in the region; particularly, the Royal Dutch Shell
Plc’s Forcados and Bonny export terminals, Eni SpA’s Brass River, the Escravos
terminal and Exxon Mobil Corp.’s Qua Iboe terminal. These events have
also led to a declaration of force majeure by Royal Dutch
Shell, Nigeria on exports of Bonny Light crude oil, which was only lifted at on
Thursday, July 7, 2016.
chronicle the ‘Whys’ of the Niger Delta agitations but to consider the
commercial consequence of the serial bombings which has hitherto shapened both
the micro and macro Nigeria oil space. Nigeria’s Ministern of State for
Petroleum, Dr. Ibe Kachikwu (and the immediate past Group Managing Director of
NNPC) must be commended for clinically and strategically shoring our daily
output from 1.3mbp to about 1.9mbpd. Nevertheless, his successor, Dr Maikanti
Baru, must grapple this situation with equal diplomatic and aggressive vigor to
avoid situations resulting into a sequence of missed/delayed shipments at the
various export terminals in the region; particularly, the Royal Dutch Shell
Plc’s Forcados and Bonny export terminals, Eni SpA’s Brass River, the Escravos
terminal and Exxon Mobil Corp.’s Qua Iboe terminal. These events have
also led to a declaration of force majeure by Royal Dutch
Shell, Nigeria on exports of Bonny Light crude oil, which was only lifted at on
Thursday, July 7, 2016.
Counting Nigeria’s
losses:
losses:
According to NNPC’s
Monthly Financial and Operations Report (Report) for March 2016, Nigeria
produced a total of 59.27 million barrels of crude oil in February 2016 (i.e.,
an average of 2.04 million barrels daily) which is lower than the 66.49 million
barrels produced in January of the same year. This represents a 10.85% decrease
when compared to the level of production in January. In addition, NNPC states
in the April Report, that the oil production level for the month of March 2016
stood at 57.43 million barrels (i.e., an average of 1.85million barrels daily)
which is 3.10% lower than February production levels. This is by far the lowest
oil production levels Nigeria has recorded in over 27 years. Quite apart from
this, the country has lost about 1,500 MW (megawatts) of power supply due to
the damage done to the Forcados pipeline which accounts for about 40-50%
(percent) gas production.
Monthly Financial and Operations Report (Report) for March 2016, Nigeria
produced a total of 59.27 million barrels of crude oil in February 2016 (i.e.,
an average of 2.04 million barrels daily) which is lower than the 66.49 million
barrels produced in January of the same year. This represents a 10.85% decrease
when compared to the level of production in January. In addition, NNPC states
in the April Report, that the oil production level for the month of March 2016
stood at 57.43 million barrels (i.e., an average of 1.85million barrels daily)
which is 3.10% lower than February production levels. This is by far the lowest
oil production levels Nigeria has recorded in over 27 years. Quite apart from
this, the country has lost about 1,500 MW (megawatts) of power supply due to
the damage done to the Forcados pipeline which accounts for about 40-50%
(percent) gas production.
The Nigerian
Petroleum Development Company (NPDC) may also record losses in the region of
about N20billion monthly as a result of the incessant pipeline vandalism. The
country, which formerly maintained the position of Africa’s largest oil
producer with a production level of about 2.5 million barrels per day, has lost
this position to Angola due to the violent attacks on the pipelines. The
estimated growth of the country has also dampened, as the World Bank now
projects in its semi-annual Global Economic Prospects that the Nation’s economy
will grow by an estimate of 0.8% per cent which is down from the initial 4.6%
per cent growth estimate. The reduction of the nation’s oil out-put remains a
major factor for the decline in the growth of the nation’s economy. The
resultant effect of Nigeria’s poor oil production output has also consequently
affected the total monthly crude output of the Organization of the Petroleum
Exporting Countries (OPEC); which fell from 32.83 million barrels a day in
April to 32.71 million barrels in just one month.
Petroleum Development Company (NPDC) may also record losses in the region of
about N20billion monthly as a result of the incessant pipeline vandalism. The
country, which formerly maintained the position of Africa’s largest oil
producer with a production level of about 2.5 million barrels per day, has lost
this position to Angola due to the violent attacks on the pipelines. The
estimated growth of the country has also dampened, as the World Bank now
projects in its semi-annual Global Economic Prospects that the Nation’s economy
will grow by an estimate of 0.8% per cent which is down from the initial 4.6%
per cent growth estimate. The reduction of the nation’s oil out-put remains a
major factor for the decline in the growth of the nation’s economy. The
resultant effect of Nigeria’s poor oil production output has also consequently
affected the total monthly crude output of the Organization of the Petroleum
Exporting Countries (OPEC); which fell from 32.83 million barrels a day in
April to 32.71 million barrels in just one month.
Damages done to the
gas pipelines which belong to the Nigerian Gas Company (NGC) affected the flow
of gas to electricity power plants and prevented the flow of crude oil to
refineries in Warri and Kaduna. This damage has led to a daily loss of about
N79 million barrels of crude oil and that it will cost about N120 million to
repair the damaged pipelines before normal power generation can be restored.
The Forcados export pipeline operated by Royal Dutch Shell Plc which was
attacked in February, 2016 was undergoing serious repairs when it suffered a
second attack recently. These disheartening events all impact negatively on our
overall oil & gas earnings as a country.
gas pipelines which belong to the Nigerian Gas Company (NGC) affected the flow
of gas to electricity power plants and prevented the flow of crude oil to
refineries in Warri and Kaduna. This damage has led to a daily loss of about
N79 million barrels of crude oil and that it will cost about N120 million to
repair the damaged pipelines before normal power generation can be restored.
The Forcados export pipeline operated by Royal Dutch Shell Plc which was
attacked in February, 2016 was undergoing serious repairs when it suffered a
second attack recently. These disheartening events all impact negatively on our
overall oil & gas earnings as a country.
Force or
Negotiation?
Negotiation?
Initially, it was reported
in some media outfits that the government was reluctant to enter into
negotiations with the militants in a bid to curtail the attacks on the
pipelines. It is becoming clear now that diplomatic means, as opposed to
military tactics, might be the way to resolve the menace wrought by the
Niger-Delta militants. This, of course will not take away the true ownership of
the natural resource from the Federal government. Rather, more attention needs
to be paid to cleaning up the havoc wrecked by E&P activities, youth
empowerment in the Delta region, accountability of all relevant State governments
for the additional 13% derivation and other peculiar incentives peculiar to the
Niger Delta community. These are obvious and realistic methods of curbing the
violence from further escalating.
in some media outfits that the government was reluctant to enter into
negotiations with the militants in a bid to curtail the attacks on the
pipelines. It is becoming clear now that diplomatic means, as opposed to
military tactics, might be the way to resolve the menace wrought by the
Niger-Delta militants. This, of course will not take away the true ownership of
the natural resource from the Federal government. Rather, more attention needs
to be paid to cleaning up the havoc wrecked by E&P activities, youth
empowerment in the Delta region, accountability of all relevant State governments
for the additional 13% derivation and other peculiar incentives peculiar to the
Niger Delta community. These are obvious and realistic methods of curbing the
violence from further escalating.
The need to also
re-consider the security of the pipelines (by some of the indigenes) also
commends itself. Making the indigenes stakeholders in the protection of the
pipelines might reduce the spate of incessant bombings of these
infrastructures; as the oil pipelines span through rivers and mangroves and run
for over 27,027 square-mile under water, making it more difficult for military
protection; who in most cases are not as familiar of the areas as the
indigenes. The Federal Government must also increase its engagement with the
relevant State Governors to devise additional methods (particularly, with the
use of smart technology) to reduce infrastructural damage on oil assets.
re-consider the security of the pipelines (by some of the indigenes) also
commends itself. Making the indigenes stakeholders in the protection of the
pipelines might reduce the spate of incessant bombings of these
infrastructures; as the oil pipelines span through rivers and mangroves and run
for over 27,027 square-mile under water, making it more difficult for military
protection; who in most cases are not as familiar of the areas as the
indigenes. The Federal Government must also increase its engagement with the
relevant State Governors to devise additional methods (particularly, with the
use of smart technology) to reduce infrastructural damage on oil assets.
On a final note and
looking into the future, the welfare, environment and youth empowerment of the
Niger Delta community must be carefully looked into. The Ministry of the Niger
Delta and all other Agencies set up for this purpose must be made more
proactive and operational. The Petroleum Industry Bill must also be clear on
the benefits of being an indigene of a Littoral State whilst acknowledging that
sovereign rights over Nigeria’s oil and gas in situ, unarguably
rests in the government. This is very important.
looking into the future, the welfare, environment and youth empowerment of the
Niger Delta community must be carefully looked into. The Ministry of the Niger
Delta and all other Agencies set up for this purpose must be made more
proactive and operational. The Petroleum Industry Bill must also be clear on
the benefits of being an indigene of a Littoral State whilst acknowledging that
sovereign rights over Nigeria’s oil and gas in situ, unarguably
rests in the government. This is very important.
Tolu Aderemi is a
Partner, Energy & Infrastructure of Perchstone & Graeys; a foremost
commercial Law Firm in Lagos, Nigeria.
Partner, Energy & Infrastructure of Perchstone & Graeys; a foremost
commercial Law Firm in Lagos, Nigeria.
Ed’s Note: This article
was originally published here.
was originally published here.