NAFDAC; DUTIES & POWERS
If you are Nigerian and you live in Nigeria, you must remember the last
time you held up a bottle or the pack of a food or drug item just to inspect it
for a NAFDAC number. It’s almost second nature for most people, including myself.
The NAFDAC stamp of approval on food and drug items gives a sense of security
and lets you feel confident knowing its safe to use. The agency is not only at
the forefront of the fight for safeguarding public health in Nigeria but it’s
also doing a fine job.
time you held up a bottle or the pack of a food or drug item just to inspect it
for a NAFDAC number. It’s almost second nature for most people, including myself.
The NAFDAC stamp of approval on food and drug items gives a sense of security
and lets you feel confident knowing its safe to use. The agency is not only at
the forefront of the fight for safeguarding public health in Nigeria but it’s
also doing a fine job.
NAFDAC is the National Agency for Food and Drug Administration and Control,
an agency whose mission is to safeguard public health by ensuring that only the
right quality food, drugs and other related products are manufactured,
exported, imported, advertised, sold and used. Established by the National
Agency for Food and Drug Administration and Control Act, NAFDAC functions,
among others, include: to regulate and control the importation, exportation,
manufacture, advertisement, distribution, sale and use of food, drugs,
cosmetics, medical devices, bottled water and chemicals.
an agency whose mission is to safeguard public health by ensuring that only the
right quality food, drugs and other related products are manufactured,
exported, imported, advertised, sold and used. Established by the National
Agency for Food and Drug Administration and Control Act, NAFDAC functions,
among others, include: to regulate and control the importation, exportation,
manufacture, advertisement, distribution, sale and use of food, drugs,
cosmetics, medical devices, bottled water and chemicals.
It is mandatory for parties in the food or drug industry to register
their products with the agency in accordance with the law. The functions of the
Agency are listed in Section 5 of the Act, they include:
their products with the agency in accordance with the law. The functions of the
Agency are listed in Section 5 of the Act, they include:
(a) regulate and control
the importation, exportation, manufacture, advertisement, distribution, sale
and use of food, drugs, cosmetics, medical devices, bottled water and
chemicals;
the importation, exportation, manufacture, advertisement, distribution, sale
and use of food, drugs, cosmetics, medical devices, bottled water and
chemicals;
(b) conduct appropriate
tests and ensure compliance with standard specifications designated and
approved by the Council for the effective control of the quality of food,
drugs, cosmetics, medical devices, bottled water and chemicals and their raw
materials as well as their production processes in factories and other
establishments;
tests and ensure compliance with standard specifications designated and
approved by the Council for the effective control of the quality of food,
drugs, cosmetics, medical devices, bottled water and chemicals and their raw
materials as well as their production processes in factories and other
establishments;
(c) undertake appropriate
investigations into the production premises and raw materials for food, drugs,
cosmetics, medical devices, bottled water and chemicals and establish relevant
quality assurance systems, including certificates of the production sites and
of the regulated products;
investigations into the production premises and raw materials for food, drugs,
cosmetics, medical devices, bottled water and chemicals and establish relevant
quality assurance systems, including certificates of the production sites and
of the regulated products;
(d) undertake inspection of
imported food, drugs, cosmetics, medical devices, bottled water and chemicals
and establish relevant quality assurance systems, including certification of
the production sites and of the regulated products;
imported food, drugs, cosmetics, medical devices, bottled water and chemicals
and establish relevant quality assurance systems, including certification of
the production sites and of the regulated products;
(e) compile standard
specifications and guidelines for the production, importation, exportation,
sale and distribution of food, drug, cosmetics, medical devices, bottled water
and chemicals;
specifications and guidelines for the production, importation, exportation,
sale and distribution of food, drug, cosmetics, medical devices, bottled water
and chemicals;
(f) undertake the
registration of food, drugs, cosmetics, medical devices, bottled water and
chemicals;
registration of food, drugs, cosmetics, medical devices, bottled water and
chemicals;
(g) control the
exportation and issue quality certification of food, drugs, cosmetics, medical
devices, bottled water and chemicals intended for export;
exportation and issue quality certification of food, drugs, cosmetics, medical
devices, bottled water and chemicals intended for export;
(h) establish and maintain
relevant laboratories or other institutions in strategic areas of Nigeria as
may be necessary for the performance of its functions under this Act;
relevant laboratories or other institutions in strategic areas of Nigeria as
may be necessary for the performance of its functions under this Act;
(i) pronounce on the
quality and safety of food, drugs, cosmetics, medical devices, bottled water
and chemicals after appropriate analysis;
quality and safety of food, drugs, cosmetics, medical devices, bottled water
and chemicals after appropriate analysis;
(j) undertake measures to
ensure that the use of narcotic drugs and psychotropic substances are limited
to medical and scientific purposes;
ensure that the use of narcotic drugs and psychotropic substances are limited
to medical and scientific purposes;
(k) grant authorisation
for the import and export of narcotic drugs and psycho- tropic substances as
well as other controlled substances;
for the import and export of narcotic drugs and psycho- tropic substances as
well as other controlled substances;
(l) collaborate with the
National Drug Law Enforcement Agency in measures to eradicate drug abuse in
Nigeria;
National Drug Law Enforcement Agency in measures to eradicate drug abuse in
Nigeria;
(m) advise Federal, State
and local governments, the private sector and other interested bodies regarding
the quality, safety, and regulatory provisions on food, drugs, cosmetics,
medical devices, bottled water and chemicals;
and local governments, the private sector and other interested bodies regarding
the quality, safety, and regulatory provisions on food, drugs, cosmetics,
medical devices, bottled water and chemicals;
(n) undertake and
co-ordinate research programmes on the storage, adulteration, distribution and
rational use of food, drugs, cosmetics, medical devices, bottled water and
chemicals;
co-ordinate research programmes on the storage, adulteration, distribution and
rational use of food, drugs, cosmetics, medical devices, bottled water and
chemicals;
(o) issue guidelines on,
approve and monitor the advertisement of food, drugs, cosmetics, medical
devices, bottled water and chemicals;
approve and monitor the advertisement of food, drugs, cosmetics, medical
devices, bottled water and chemicals;
(p) compile and publish
relevant data resulting from the performance of the functions of the Agency
under this Act or from other sources;
relevant data resulting from the performance of the functions of the Agency
under this Act or from other sources;
(q) sponsor such national
and international conferences as it may consider appropriate;
and international conferences as it may consider appropriate;
(r) liaise with relevant
establishments within and outside Nigeria in pursuance of the functions of the Agency;
establishments within and outside Nigeria in pursuance of the functions of the Agency;
(s) determine the
suitability or otherwise of medicines, drugs, food products, cosmetics, medical
devices or chemicals for human and animal use; and
suitability or otherwise of medicines, drugs, food products, cosmetics, medical
devices or chemicals for human and animal use; and
(t) carry out such
activities as are necessary or expedient for the performance of its functions
under this Act.
activities as are necessary or expedient for the performance of its functions
under this Act.
It may interest one to learn that
not only the Police have powers to enter into a premises, NAFDAC officials are
empowered by virtue of Section 24 of the Act to do the same, the provisions
state that –
not only the Police have powers to enter into a premises, NAFDAC officials are
empowered by virtue of Section 24 of the Act to do the same, the provisions
state that –
(1) An officer of the Agency may,
in the course of his duty, at any reasonable time and on production of his
certificate of designation if so required-
in the course of his duty, at any reasonable time and on production of his
certificate of designation if so required-
(a) enter (if need be by
force) any premises in which he reasonably believes that any article to which
this Act or the regulations apply is manufactured, prepared, preserved,
packaged, stored or sold;
force) any premises in which he reasonably believes that any article to which
this Act or the regulations apply is manufactured, prepared, preserved,
packaged, stored or sold;
(b) examine any article in
the premises which appears to him to be an article to which this Act or the
regulations apply or anything in the premises which he reasonably believes is
used or is capable of being used for the manufacture, preparation,
preservation, packaging, storage or sale of any such article;
the premises which appears to him to be an article to which this Act or the
regulations apply or anything in the premises which he reasonably believes is
used or is capable of being used for the manufacture, preparation,
preservation, packaging, storage or sale of any such article;
(c) take a sample or
specimen of any article to which this Act or the regulations apply or which he
has power to examine under paragraph (b) of this subsection;
specimen of any article to which this Act or the regulations apply or which he
has power to examine under paragraph (b) of this subsection;
(d) open and examine, while on
the premises, any container or package which he reasonably believes may contain
anything to which this Act or the regulations apply or which may help in his
investigations;
the premises, any container or package which he reasonably believes may contain
anything to which this Act or the regulations apply or which may help in his
investigations;
(e) examine any book,
document or other record found on the premises which he reasonably believes may
contain any information relevant to the enforcement of this Act or the
regulations and make copies thereof or extracts therefrom; and
document or other record found on the premises which he reasonably believes may
contain any information relevant to the enforcement of this Act or the
regulations and make copies thereof or extracts therefrom; and
(j) seize and detain for such
time as may be necessary for the purpose of this Act, any article by means of
or in relation to which he reasonably believes any pro- vision of this Act or
regulations has been contravened.
time as may be necessary for the purpose of this Act, any article by means of
or in relation to which he reasonably believes any pro- vision of this Act or
regulations has been contravened.
(2) The owner or person in charge
of any premises entered by an officer of the Agency in pursuant of this
section, and every person found thereon, shall give all reasonable assistance
in their power to the officer and shall make available to the officer all such
information as the officer may reasonably require for the purposes of this Act.
of any premises entered by an officer of the Agency in pursuant of this
section, and every person found thereon, shall give all reasonable assistance
in their power to the officer and shall make available to the officer all such
information as the officer may reasonably require for the purposes of this Act.
(3) Any article seized under this
Act shall be kept or stored in such a place as the officer of the Agency may
direct and shall be returned to the owner or the person from whom it was seized
if the article upon analysis or examination is found to conform with the
requirements of this Act and regulations.
Act shall be kept or stored in such a place as the officer of the Agency may
direct and shall be returned to the owner or the person from whom it was seized
if the article upon analysis or examination is found to conform with the
requirements of this Act and regulations.
(4) Any article seized by an
officer of the Agency pursuant to this Act or the regulations may be submitted
to an analyst for analysis or examination and the analyst upon making such
analysis or examination shall issue a certificate or report in the prescribed
form setting forth the result of such analysis or examination, and the officer
of the Agency shall on demand deliver a copy of such certificate or report to
the owner of the article if the article is to be the subject of a proceeding
under this Act.
officer of the Agency pursuant to this Act or the regulations may be submitted
to an analyst for analysis or examination and the analyst upon making such
analysis or examination shall issue a certificate or report in the prescribed
form setting forth the result of such analysis or examination, and the officer
of the Agency shall on demand deliver a copy of such certificate or report to
the owner of the article if the article is to be the subject of a proceeding
under this Act.
In the above stated provisions,
the expression “article to which this Act or the regulations apply”
means-
the expression “article to which this Act or the regulations apply”
means-
(a) any food, drug,
cosmetics, medical devices, bottled water or chemical;
cosmetics, medical devices, bottled water or chemical;
(b) anything used for the
manufacture, preparation, preservation, packaging or storage of any food, drug,
cosmetics, medical device, bottled water or chemi- cal; and
manufacture, preparation, preservation, packaging or storage of any food, drug,
cosmetics, medical device, bottled water or chemi- cal; and
(c) any labelling or
advertising material relating to or for use in connection with any food, drug,
cosmetics, medical device, bottled water or chemical, but does not include a
live animal.
advertising material relating to or for use in connection with any food, drug,
cosmetics, medical device, bottled water or chemical, but does not include a
live animal.
Obstructing a NAFDAC official in the performance of his duties is an
offence liable on conviction to a fine of N5,000 or to imprisonment for a term not exceeding two years or
to both such fine and imprisonment. Also any person who contravenes the
provisions of any regulations
made under the Act is guilty of an offence and liable on conviction to the penalties
specified in the regulations. Where no penalty has been specified,
the person shall be liable to a fine of N50, 000 or imprisonment for a term of
one year or to both such fine and imprisonment. Where an offence under this Act
which has been committed by a body corporate is proved to have been committed
with the consent or connivance of, or to be attributable to any neglect on the
part of any director, manager, secretary or other similar officer of the body
corporate or any person purporting to act in any of those capacities, he, as
well as the body corporate, shall be deemed to be guilty of the offence and
shall be liable on conviction to a fine of N 100,000. The Federal High Court has
exclusive jurisdiction to try offences
under the NAFDAC Act.
offence liable on conviction to a fine of N5,000 or to imprisonment for a term not exceeding two years or
to both such fine and imprisonment. Also any person who contravenes the
provisions of any regulations
made under the Act is guilty of an offence and liable on conviction to the penalties
specified in the regulations. Where no penalty has been specified,
the person shall be liable to a fine of N50, 000 or imprisonment for a term of
one year or to both such fine and imprisonment. Where an offence under this Act
which has been committed by a body corporate is proved to have been committed
with the consent or connivance of, or to be attributable to any neglect on the
part of any director, manager, secretary or other similar officer of the body
corporate or any person purporting to act in any of those capacities, he, as
well as the body corporate, shall be deemed to be guilty of the offence and
shall be liable on conviction to a fine of N 100,000. The Federal High Court has
exclusive jurisdiction to try offences
under the NAFDAC Act.
For more information about the
activities of NAFDAC, visit the agencies website via http://www.nafdac.gov.ng/.
activities of NAFDAC, visit the agencies website via http://www.nafdac.gov.ng/.
Adedunmade Onibokun
@adedunmade
DUTIES OF YOUR LOCAL GOVERNMENT COUNCIL
.
The role of a government and its agencies in societies can never be over stated, govt agencies are responsible for our security; maintanance of public infrastructures & institutions; regulation of economic policies & even maintains law and order. In a nutshell, without a functioning govt infrastructure in place, only anarchy and chaos may just be left.
Other roles of government include distributing national wealth, planning national policies and stearing the ship of governance as a whole. In achieveing its set objectives, the system of government is divided into various arms or tiers such as the Executive, Judiciary and Legislature or the Federal, State & Local authorities. In Nigeria, the duties and functions of the different arms or tiers of government are provided for in the Constitution.
The duties of local government authorities is to foster grassroot support and partcipitation in the system of governance. Therefore, they are saddled with a number of constitutional responsibilities such as:
(a) the consideration and the making of recommendations to a State commission on economic planning or any similar body on –
(i) the economic development of the State, particularly in so far as the areas of authority of the council and of the State are affected, and
(ii) proposals made by the said commission or body;
(b) collection of rates, radio and television licences;
(c) establishment and maintenance of cemeteries, burial grounds and homes for the destitute or infirm;
(d) licensing of bicycles, trucks (other than mechanically propelled trucks), canoes, wheel barrows and carts;
(e) establishment, maintenance and regulation of slaughter houses, slaughter slabs, markets, motor parks and public conveniences;
(f) construction and maintenance of roads, streets, street lightings, drains and other public highways, parks, gardens, open spaces, or such public facilities as may be prescribed from time to time by the House of Assembly of a State;
(g) naming of roads and streets and numbering of houses;
(h) provision and maintenance of public conveniences, sewage and refuse disposal;
(i) registration of all births, deaths and marriages;
(j) assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the House of Assembly of a State; and
(k) control and regulation of –
(i) out-door advertising and hoarding,
(ii) movement and keeping of pets of all description,
(iii) shops and kiosks,
(iv) restaurants, bakeries and other places for sale of food to the public,
(v) laundries, and
(vi) licensing, regulation and control of the sale of liquor.
According to the law, the functions of a local government council shall also include participation of such council in the Government of a State as respects the following matters –
(a) the provision and maintenance of primary, adult and vocational education;
(b) the development of agriculture and natural resources, other than the exploitation of materials
(c) the provision and maintenance of health services; and
(d) such other functions as may be conferred on a local government council by the House of Assembly of the State.
From the above provisions of the constitution, it is evident the important roles our local government councils play in the administration of our various local government areas.
Knowing the different duties and roles played by govt agencies in the lives of members in the community and how to engage such agencies is quite important to encourage greater facilitation and discus among stakeholders in a community.
This is a call for every one to demand accountability and high performance from our local government authorities and their commitees.
Adedunmade Onibokun
@adedunmade
HOW TO REGISTER YOUR BUSINESS
Many people have always toyed
with the idea of registering their own companies and organisations, with SMEs
sprouting up like wildfires in Nigeria and the drive for self- employment
gaining momentum. Whether your start-up is about IT, legal or business services
or you are considering starting your own NGO; one of first things you will have
to do is register your company or organisation. That’s where this article comes
in.
with the idea of registering their own companies and organisations, with SMEs
sprouting up like wildfires in Nigeria and the drive for self- employment
gaining momentum. Whether your start-up is about IT, legal or business services
or you are considering starting your own NGO; one of first things you will have
to do is register your company or organisation. That’s where this article comes
in.
Registering your organisation or company
in Nigeria is fairly easy and not as difficult as some believe it is, the
process begins at Corporate Affairs Commission (CAC), the CAC is in charge of
regulating company affairs and conducting company registration in Nigeria.
There is a CAC office in every state while Lagos State has two.
INCORPORATION OF COMPANY
(PRIVATE OR PUBLIC)
(PRIVATE OR PUBLIC)
Incorporating a company or corporations
is distinct from sole proprietorships and partnerships in a number of ways. The
most obvious difference between a corporation and other business structures is
the ability of corporations to raise large sums of money by selling stock
shares to investors. Instead of being centered on a single person or a small
group, ownership of an incorporated business is spread out among stockholders,
who have the right to vote on key business decisions. There are 3 major forms of
companies including;
is distinct from sole proprietorships and partnerships in a number of ways. The
most obvious difference between a corporation and other business structures is
the ability of corporations to raise large sums of money by selling stock
shares to investors. Instead of being centered on a single person or a small
group, ownership of an incorporated business is spread out among stockholders,
who have the right to vote on key business decisions. There are 3 major forms of
companies including;
1. Company
limited by shares
limited by shares
Because most
companies are limited by shares, this ‘stake’ usually refers to the shares held
by the company’s shareholders. In such a company, the shareholders’ obligation
is to pay the company for the shares they have taken in it. The individual puts
money into the company, and in return the company gives it a percentage of
ownership, in the form of shares (how much of a company the individual in
question owns depends on how many shares he/she has in comparison with the other
people, if any, who own shares in that company). Requirements for registering a corporation in Nigeria include;
companies are limited by shares, this ‘stake’ usually refers to the shares held
by the company’s shareholders. In such a company, the shareholders’ obligation
is to pay the company for the shares they have taken in it. The individual puts
money into the company, and in return the company gives it a percentage of
ownership, in the form of shares (how much of a company the individual in
question owns depends on how many shares he/she has in comparison with the other
people, if any, who own shares in that company). Requirements for registering a corporation in Nigeria include;
- Availability and Reservation of Name
- Payment of appropriate Stamp Duty to Federal
Board of Inland Revenue - Submission of Memorandum and Articles of
Association together with statutory forms for verification and assessment - Payment of filing fees at the Corporate Affairs
Commission
Company
limited by guarantee
In a company
limited by guarantee, there are no shares – hence there are no shareholders.
Instead, the company will have ‘members’. The members of a company limited by
guarantee are bound by a guarantee in the company’s articles of association,
which requires them to pay the company’s debts up to a fixed sum. Requirements for Incorporation of a Company
Limited by Guarantee include:
limited by guarantee, there are no shares – hence there are no shareholders.
Instead, the company will have ‘members’. The members of a company limited by
guarantee are bound by a guarantee in the company’s articles of association,
which requires them to pay the company’s debts up to a fixed sum. Requirements for Incorporation of a Company
Limited by Guarantee include:
- Availability and Reservation of Name
- Memorandum and Articles of Association
- Completion of Statutory Forms
- Payment of Stamp Duty to Federal Board of Inland
Revenue - Payment of filing fees
- The consent of the Attorney-General of the
Federation
3. Unlimited
company
company
Unlimited
company is a private company whereby the owners or the partners accept
unlimited and personal liability for its debts in order to avoid double
taxation of a limited company. This type of company is exempted from publishing
their annual account with public authority. Simply registering a business name
is often favoured by Sole proprietors i.e. an individual proprietor who owns
and manages the business and is responsible for all business transactions. The
owner is also personally responsible for all debts and liabilities incurred by
the business. Partnerships may also conduct their business by simply
registering a business name. You can register your busy name in very easy
steps;
company is a private company whereby the owners or the partners accept
unlimited and personal liability for its debts in order to avoid double
taxation of a limited company. This type of company is exempted from publishing
their annual account with public authority. Simply registering a business name
is often favoured by Sole proprietors i.e. an individual proprietor who owns
and manages the business and is responsible for all business transactions. The
owner is also personally responsible for all debts and liabilities incurred by
the business. Partnerships may also conduct their business by simply
registering a business name. You can register your busy name in very easy
steps;
1.
Choose a number of uncommon business names
(about 3).
Choose a number of uncommon business names
(about 3).
2.
Conduct a search at the CAC to find out if the
name is available.
Conduct a search at the CAC to find out if the
name is available.
3.
Submit a duly completed statutory form with two
passport sized photographs of each applicant attached to the form.
Submit a duly completed statutory form with two
passport sized photographs of each applicant attached to the form.
4.
Pay filing fees at the CAC
Pay filing fees at the CAC
Reservation of name at the CAC cost N500 (Five Hundred
Naira) while registering business name cost N10, 000 (Ten Thousand Naira). Note
that the proposed name of your business must be clearly written on the form and
individuals can register a business name without the services of a lawyer.
NON – GOVERNMENTAL ORGANISATIONS
A non-governmental organization
(NGO) is any non-profit, voluntary citizens’ group which is organized on a
local, national or international level. Task-oriented and driven by people with
a common interest, NGOs perform a variety of service and humanitarian
functions, bring citizen concerns to Governments, advocate and monitor policies
and encourage political particpation through provision of information. Some are
organized around specific issues, such as human rights, environment or health.
They provide analysis and expertise, serve as early warning mechanisms and help
monitor and implement international agreements. Registration of Incorporated
Trustees (NGO’s) takes the following procedure;
(NGO) is any non-profit, voluntary citizens’ group which is organized on a
local, national or international level. Task-oriented and driven by people with
a common interest, NGOs perform a variety of service and humanitarian
functions, bring citizen concerns to Governments, advocate and monitor policies
and encourage political particpation through provision of information. Some are
organized around specific issues, such as human rights, environment or health.
They provide analysis and expertise, serve as early warning mechanisms and help
monitor and implement international agreements. Registration of Incorporated
Trustees (NGO’s) takes the following procedure;
- Availability of name
- Procurement of application form which contains a
memorandum for guidance of application. - Publication of notices in three (3) national
dailies, one being a local newspaper widely circulated in the area where the
organization is based. - Submission of the duly completed application
form in triplicate which should be accompanied by the following. - A formal letter of application
- The original newspaper publications
- 2 copies of Applicant’s constitution
- Minutes of the meeting whereat the trustees were
appointed, having the list of members present and absent and showing the voting
pattern, signed by Chairman and Secretary of the Board. - Minutes of the meeting where the special clause
rules was adopted into the constitution of the organization; signed by
Secretary and Chairman. - Trustees (Applicants) have to attach 2 passport
sized photographs of themselves. - Trustees have to sign against their names on the
application form (encld) and furnish permanent residential addresses. - The
impression of the common seal should be affixed on page 11 of the form and draft
of 20,000.00k in favour of CAC and made payable in Abuja. - Two copies of the application form.
- Application form duly signed by Secretary and
Chairman of the Board.
For futher information on company
registeration, log on to the CAC Website on www.cac.gov.ng.
Adedunmade Onibokun
@adedunmade
RIGHTS OF APPEAL FROM THE NIGERIAN NATIONAL INDUSTRIAL COURT
ENLARGEMENT OF
RIGHTS OF APPEAL FROM THE DECISIONS OF THE NIGERIAN NATIONAL INDUSTRIAL COURT
RIGHTS OF APPEAL FROM THE DECISIONS OF THE NIGERIAN NATIONAL INDUSTRIAL COURT
By Dr. Olumide
Kolawole Obayemi, LL.M.; SJD*
Kolawole Obayemi, LL.M.; SJD*
I. Introduction
With
the controversies surrounding the rights of appeal from the decisions of the
Nigerian National industrial Court (NIC), we submit that since its
English
counterpart has been abolished, we may turn to the English colonies in Asia and
West Indies for guidance. For this, we choose two (2) veritable examples: (a) Antigua
and
Barbuda and (b) Malaysia.
the controversies surrounding the rights of appeal from the decisions of the
Nigerian National industrial Court (NIC), we submit that since its
English
counterpart has been abolished, we may turn to the English colonies in Asia and
West Indies for guidance. For this, we choose two (2) veritable examples: (a) Antigua
and
Barbuda and (b) Malaysia.
Borrowing
from Antigua and Barbuda, we make suggestions that there should be direct
right of appeal from the NIC to the Court of Appeal on the following
grounds:
from Antigua and Barbuda, we make suggestions that there should be direct
right of appeal from the NIC to the Court of Appeal on the following
grounds:
(a) that the NIC
had no jurisdiction in the matter, but so however, that it shall not be competent
for the Court of Appeal to entertain such ground of appeal, unless objection to
the jurisdiction of the Court has been formally taken at some time during the
progress of the matter before the making of the order or award;
had no jurisdiction in the matter, but so however, that it shall not be competent
for the Court of Appeal to entertain such ground of appeal, unless objection to
the jurisdiction of the Court has been formally taken at some time during the
progress of the matter before the making of the order or award;
(b) that the NIC has exceeded its
jurisdiction in the matter;
jurisdiction in the matter;
(c) that the order or award has been
obtained by fraud;
obtained by fraud;
(d). that any
finding or decision of the NIC in any matter is erroneous in point of law; or
finding or decision of the NIC in any matter is erroneous in point of law; or
(e) that some other specific illegality, not
hereinbefore mentioned, and substantially affecting the merits of the matter,
has been committed in the course of the proceedings.
hereinbefore mentioned, and substantially affecting the merits of the matter,
has been committed in the course of the proceedings.
We
also argue that the Attorney-Generals in each state of the federation and that
of the federal government should have a right to intervene in meritorious
cases. Again, borrowing from Antigua and Barbuda, there is a right of Intervention
by the Attorney-General.
also argue that the Attorney-Generals in each state of the federation and that
of the federal government should have a right to intervene in meritorious
cases. Again, borrowing from Antigua and Barbuda, there is a right of Intervention
by the Attorney-General.
Where any
dispute is before the Court, the Attorney-General may, for the purpose of
giving such assistance to the Court as he may be able to provide with the
consent of the Court, intervene, where it appears to him that some question of
public importance or affecting the public interest or both has arisen and that
it is fit and proper that the public interest should be represented therein.
dispute is before the Court, the Attorney-General may, for the purpose of
giving such assistance to the Court as he may be able to provide with the
consent of the Court, intervene, where it appears to him that some question of
public importance or affecting the public interest or both has arisen and that
it is fit and proper that the public interest should be represented therein.
No
one would doubt, as Bamidele Aturu had noted, that there are vital issues surrounding
the NIC’s jurisdiction, such as, the jurisdiction of the various Superior Courts
and how jurisdictional overlap and other problems can be constitutionally dealt
with. It is against this background that one attempts to address the issue of
the jurisdictional confusion militating against the proper functioning of the
National Industrial Court.
one would doubt, as Bamidele Aturu had noted, that there are vital issues surrounding
the NIC’s jurisdiction, such as, the jurisdiction of the various Superior Courts
and how jurisdictional overlap and other problems can be constitutionally dealt
with. It is against this background that one attempts to address the issue of
the jurisdictional confusion militating against the proper functioning of the
National Industrial Court.
II. Historical Background of the Nigerian
National Industrial Court.
National Industrial Court.
The NIC was
established in 1976 to decide trade and union disputes and to create a
sustainable industrial harmony. The founding legislation is the Trade Disputes
Act, Cap 432, Laws of the Federation of Nigeria, 1990 (“TDA”).
established in 1976 to decide trade and union disputes and to create a
sustainable industrial harmony. The founding legislation is the Trade Disputes
Act, Cap 432, Laws of the Federation of Nigeria, 1990 (“TDA”).
This is similar to the
Industrial Court in United Kingdom, where the Industrial Court (the Court) is a
Tribunal Non-Departmental Public Body with statutory powers. It was originally
set up in 1919 to provide arbitration in industrial disputes and it still
carries out this voluntary arbitration role. However its main function is now
to adjudicate on applications relating to statutory recognition and
derecognition of trade unions for collective bargaining purposes, where such
recognition or derecognition cannot be agreed voluntarily. It also has a statutory power in relation to
determining disputes between trade unions and employers over the disclosure of
information for collective bargaining purposes.
In addition, it has responsibility for dealing with complaints under a
range of legislation deriving from European Directives, which provide employees
with Information and Consultation rights at national and European level.
Industrial Court in United Kingdom, where the Industrial Court (the Court) is a
Tribunal Non-Departmental Public Body with statutory powers. It was originally
set up in 1919 to provide arbitration in industrial disputes and it still
carries out this voluntary arbitration role. However its main function is now
to adjudicate on applications relating to statutory recognition and
derecognition of trade unions for collective bargaining purposes, where such
recognition or derecognition cannot be agreed voluntarily. It also has a statutory power in relation to
determining disputes between trade unions and employers over the disclosure of
information for collective bargaining purposes.
In addition, it has responsibility for dealing with complaints under a
range of legislation deriving from European Directives, which provide employees
with Information and Consultation rights at national and European level.
The National
Industrial Court was first set up pursuant to section 19 of the TDA. The TDA
created the NIC as a specialised tribunal, whose jurisdiction is solely to the
exclusion of all other courts, on ‘matters relating to or connected with any
labor, employment, trade unions, industrial relations and matters arising from
workplace, the conditions of service, including health, safety, welfare of
labor, employees, workers and matters incidental thereto or connected
therewith’ See, Section 7(1) of the National Industrial Court Act (2006)
(“NICA”).
Industrial Court was first set up pursuant to section 19 of the TDA. The TDA
created the NIC as a specialised tribunal, whose jurisdiction is solely to the
exclusion of all other courts, on ‘matters relating to or connected with any
labor, employment, trade unions, industrial relations and matters arising from
workplace, the conditions of service, including health, safety, welfare of
labor, employees, workers and matters incidental thereto or connected
therewith’ See, Section 7(1) of the National Industrial Court Act (2006)
(“NICA”).
Under section 15 of TDA,
the NIC is conferred with original jurisdiction to entertain applications
seeking the interpretation of the provisions of a collective agreement.
the NIC is conferred with original jurisdiction to entertain applications
seeking the interpretation of the provisions of a collective agreement.
The term, “collective
agreement” as defined under section 47 of TDA is “any agreement in writing for
the settlement of disputes and relating to terms of employment and physical
conditions of work concluded between an employer or a group of employers and a
trade union or trade unions.
agreement” as defined under section 47 of TDA is “any agreement in writing for
the settlement of disputes and relating to terms of employment and physical
conditions of work concluded between an employer or a group of employers and a
trade union or trade unions.
Further, section 24 of
TDA also provides that a right of appeal shall lie to the court from the award
of the Industrial Arbitration Panel (IAP) in cases of intra-union disputes
arising from the organisation and running of a trade union as laid down in the
union constitution or inter-union trade disputes arising from the restructuring
of trade unions established under the Trade Unions Act.
TDA also provides that a right of appeal shall lie to the court from the award
of the Industrial Arbitration Panel (IAP) in cases of intra-union disputes
arising from the organisation and running of a trade union as laid down in the
union constitution or inter-union trade disputes arising from the restructuring
of trade unions established under the Trade Unions Act.
Section 20 of the TDA
confers exclusive jurisdiction on the NIC to make awards for the purpose of
settling trade disputes and to determine, among other things, questions as to
the interpretation of the terms of settlement of any trade dispute as recorded
in a any memorandum during or after the process of conciliation.
confers exclusive jurisdiction on the NIC to make awards for the purpose of
settling trade disputes and to determine, among other things, questions as to
the interpretation of the terms of settlement of any trade dispute as recorded
in a any memorandum during or after the process of conciliation.
III. The Advent of the Nigeria Military
Rule Between 1983-1999.
Rule Between 1983-1999.
From 1976 until 1999,
the NIC issued several decisions in which it affirmed that the NIC’s
jurisdiction was not a court of first instance. In other word, a precursor to
filing a labor dispute case with the NIC mandated that the matter must concern
an award from the Industrial Arbitration Panel (IAP) under section 24 of TDA providing
for a right of appeal to the NIC from the award of the IAP. This was reinforced
in MARITIME
WORKERS UNION OF NIGERIA v NLC (unreported) Suit No. NIC/5A/2001
delivered on July 24th, 2001, the court struck out the applicants’
suit on the ground that it had no jurisdiction to entertain an intra- union dispute
as a court of first instance.
the NIC issued several decisions in which it affirmed that the NIC’s
jurisdiction was not a court of first instance. In other word, a precursor to
filing a labor dispute case with the NIC mandated that the matter must concern
an award from the Industrial Arbitration Panel (IAP) under section 24 of TDA providing
for a right of appeal to the NIC from the award of the IAP. This was reinforced
in MARITIME
WORKERS UNION OF NIGERIA v NLC (unreported) Suit No. NIC/5A/2001
delivered on July 24th, 2001, the court struck out the applicants’
suit on the ground that it had no jurisdiction to entertain an intra- union dispute
as a court of first instance.
After the military
struck and seized power in 1983, military laws constituted the grundnorm and so
military Decrees were superior to the unsuspended part of the Constitution, as
provided by the Constitution (Suspension & Modification) Decree No. 107 of
1993; See also, LABIYI v ANRETIOLA (1992) 8 NWLR (Pt.258) 139).
struck and seized power in 1983, military laws constituted the grundnorm and so
military Decrees were superior to the unsuspended part of the Constitution, as
provided by the Constitution (Suspension & Modification) Decree No. 107 of
1993; See also, LABIYI v ANRETIOLA (1992) 8 NWLR (Pt.258) 139).
Thus, in 1992, the
Babangida’s military government amended the TDA, via the
Trade Disputes (Amendment) Decree No 47 of 1992 which expanded the jurisdiction
of the NIC to include both intra-union and inter-union disputes—a
position taken by the Supreme Court in UDOH v O.H.M.B (1993) 7 NWLR
(Pt.304)139. The Court of Appeal in DANIEL
v FADUGBA (1998) 13 NWLR(Pt. 582) 482; NURTW v OGBODO (1998) 2
NWLR (Pt. 537): and TIDEX( NIG.) LTD v NUPENG (1998) 11 NWLR (Pt. 573) 263, also
gave effect to the Trade Disputes (Amendment)
Decree No 47 of 1992 expanding the NIC’s jurisdiction.
Babangida’s military government amended the TDA, via the
Trade Disputes (Amendment) Decree No 47 of 1992 which expanded the jurisdiction
of the NIC to include both intra-union and inter-union disputes—a
position taken by the Supreme Court in UDOH v O.H.M.B (1993) 7 NWLR
(Pt.304)139. The Court of Appeal in DANIEL
v FADUGBA (1998) 13 NWLR(Pt. 582) 482; NURTW v OGBODO (1998) 2
NWLR (Pt. 537): and TIDEX( NIG.) LTD v NUPENG (1998) 11 NWLR (Pt. 573) 263, also
gave effect to the Trade Disputes (Amendment)
Decree No 47 of 1992 expanding the NIC’s jurisdiction.
The constitutional
flavor added by the 1992 amendment has been a subject of debate because the
1992 amendment specifically, deemed the TDA to be an Act of the National
Assembly by virtue of section 315 of the 1979 Constitution.
flavor added by the 1992 amendment has been a subject of debate because the
1992 amendment specifically, deemed the TDA to be an Act of the National
Assembly by virtue of section 315 of the 1979 Constitution.
Specifically, section
315 of the 1979 Constitution stated that no person shall commence an action,
the subject matter of a trade dispute or any inter or intra union dispute in a
court of law.
315 of the 1979 Constitution stated that no person shall commence an action,
the subject matter of a trade dispute or any inter or intra union dispute in a
court of law.
The issue then is
whether the jurisdiction of the regular state and federal superior courts to
handle matters listed under the 1992 Amendment have been ousted.
whether the jurisdiction of the regular state and federal superior courts to
handle matters listed under the 1992 Amendment have been ousted.
From 1992 until 1999,
state and federal superior courts respected the ouster clause in the 1992 amendment
state and federal superior courts respected the ouster clause in the 1992 amendment
The 1992 amendment
further also conferred the status of a superior court of record on the NIC.
further also conferred the status of a superior court of record on the NIC.
IV. 1999 Federal Constitution
With the end of the
military rule in 1999, superior courts started to flex their muscles and so
rejected the ouster clauses in the military decrees. By this in several
decisions, superior courts started to foray into labor disputes. See, e.g., KALANGO
v DOKUBO (2003) 15 WRN 32 and Attorney-General of OYO STATE v NLC
(2003) 8NWLR 1 which hold that the provisions of the Trade Disputes(Amendment)
Act that confers exclusive jurisdiction on NIC on labour matters are
unconstitutional and so null and void.
military rule in 1999, superior courts started to flex their muscles and so
rejected the ouster clauses in the military decrees. By this in several
decisions, superior courts started to foray into labor disputes. See, e.g., KALANGO
v DOKUBO (2003) 15 WRN 32 and Attorney-General of OYO STATE v NLC
(2003) 8NWLR 1 which hold that the provisions of the Trade Disputes(Amendment)
Act that confers exclusive jurisdiction on NIC on labour matters are
unconstitutional and so null and void.
The matter came to a
head in 2010 when the Nigerian Supreme Court held thus in National Union of Electricity
Employees v Bureau of Public Enterprise (2010) LPELR-SC.62/2004:
head in 2010 when the Nigerian Supreme Court held thus in National Union of Electricity
Employees v Bureau of Public Enterprise (2010) LPELR-SC.62/2004:
“by Decree No.47 of 1992
arrogating to the National Industrial Court a superior court of record as has
been contended by the appellants does not by that token make the said National
Industrial Court a superior court of record without an amendment of the
provisions of Section 6(3) and (5) of the 1999 constitution which has listed
the only superior courts of record recognized and known to the 1999
Constitution and the list does not include the National Industrial Court; until
the Constitution is amended it remains a subordinate court to the High Court.”
arrogating to the National Industrial Court a superior court of record as has
been contended by the appellants does not by that token make the said National
Industrial Court a superior court of record without an amendment of the
provisions of Section 6(3) and (5) of the 1999 constitution which has listed
the only superior courts of record recognized and known to the 1999
Constitution and the list does not include the National Industrial Court; until
the Constitution is amended it remains a subordinate court to the High Court.”
V. Efforts Toward Amendments
Earlier
on, in June 2005, the National Assembly took a wise decision to allow the
judiciary subcommittee of the Constitution Review Committee by holding a
separate public hearing recently in Abuja. Thus, on November 10, 2005, the NIC
bill was passed by the Senate yesterday. The bill was expected to both ease and
hasten the dispensation of justice in matters related to labor and trade
unions. The NIC bill then proceeded to await concurrence by the House of
Representatives. Presenting the final report on the bill, the chairman, Senate
Committee on Judiciary and Legal Matters, Professor Osarheimen Osunbor,
explained the objectives of the bill:
on, in June 2005, the National Assembly took a wise decision to allow the
judiciary subcommittee of the Constitution Review Committee by holding a
separate public hearing recently in Abuja. Thus, on November 10, 2005, the NIC
bill was passed by the Senate yesterday. The bill was expected to both ease and
hasten the dispensation of justice in matters related to labor and trade
unions. The NIC bill then proceeded to await concurrence by the House of
Representatives. Presenting the final report on the bill, the chairman, Senate
Committee on Judiciary and Legal Matters, Professor Osarheimen Osunbor,
explained the objectives of the bill:
“The objectives of the bill, in the opinion of
the Joint Committee, are to among others, re- establish the court as a superior
court of record and to provide for an enabling law that will regulate its
functions, thus giving it its proper status as a court of law. This, it is
envisaged, will cure inherent defects of the current regime. For example,
litigants cannot approach the court directly in majority of cases except
through a referral from the Minister of Labour, Employment and Productivity.
Secondly, the situation whereby the court cannot sit unless it is presided over
by the President of the Court does not augur well for the administration of
justice. These are some of the apparent defects, which this bill seeks to
cure.”
the Joint Committee, are to among others, re- establish the court as a superior
court of record and to provide for an enabling law that will regulate its
functions, thus giving it its proper status as a court of law. This, it is
envisaged, will cure inherent defects of the current regime. For example,
litigants cannot approach the court directly in majority of cases except
through a referral from the Minister of Labour, Employment and Productivity.
Secondly, the situation whereby the court cannot sit unless it is presided over
by the President of the Court does not augur well for the administration of
justice. These are some of the apparent defects, which this bill seeks to
cure.”
Osunbo
added:
added:
“With a separate enabling law for the National
Industrial Court, the court even as a specialised court, will now be fully
integrated into the structure of the nation’s judiciary as a superior court of
law thereby securing its independence and impartiality in its adjudicatory
functions. Like all other federal courts, matters such as appointment and
discipline of judges as well as appropriation to the court, will be brought
fully under the authority of the National Judicial Council.
Industrial Court, the court even as a specialised court, will now be fully
integrated into the structure of the nation’s judiciary as a superior court of
law thereby securing its independence and impartiality in its adjudicatory
functions. Like all other federal courts, matters such as appointment and
discipline of judges as well as appropriation to the court, will be brought
fully under the authority of the National Judicial Council.
The
president of the NIC,
Justice Babatunde A. Adejumo, in a swift reaction, said the new law would be a
major step forward in the history of labour-related cases:
president of the NIC,
Justice Babatunde A. Adejumo, in a swift reaction, said the new law would be a
major step forward in the history of labour-related cases:
“By the time it fully becomes a law, it will
help us to have a quicker dispensation of trade dispute matters in the country.
It will also encourage foreigners to invest more in Nigeria since they now know
that when they invest their money, the problems that may arise between them and
their employees can now be easily resolved by this court. What has happened
today is good for the nation and it is good for the economy of the nation and
the labour force as well as employers of labour generally.”
help us to have a quicker dispensation of trade dispute matters in the country.
It will also encourage foreigners to invest more in Nigeria since they now know
that when they invest their money, the problems that may arise between them and
their employees can now be easily resolved by this court. What has happened
today is good for the nation and it is good for the economy of the nation and
the labour force as well as employers of labour generally.”
The
NIC bill as passed
had jurisdiction in civil cases relating to employment, labour, trade unions,
industrial relations and conditions, health, safety and welfare of employees.
NIC bill as passed
had jurisdiction in civil cases relating to employment, labour, trade unions,
industrial relations and conditions, health, safety and welfare of employees.
In,
2010, there was an
alteration to the 1999 Constitution via
a legislative intervention providing for the establishment of the NIC as a
superior court of record under the Constitution. Further, the 2010 Act also
provided an elaborate scope of the NIC’s specified jurisdiction by the
insertion of a new enactment in Section 254C of the Constitution of the Federal
Republic of Nigeria (Third Alteration) Act 2010.
2010, there was an
alteration to the 1999 Constitution via
a legislative intervention providing for the establishment of the NIC as a
superior court of record under the Constitution. Further, the 2010 Act also
provided an elaborate scope of the NIC’s specified jurisdiction by the
insertion of a new enactment in Section 254C of the Constitution of the Federal
Republic of Nigeria (Third Alteration) Act 2010.
The
2010 Act conferred the NIC with the exclusive adjudicating power on labour and
industrial relations laws, as opposed to the unlimited jurisdiction of the
States’ High Court.
2010 Act conferred the NIC with the exclusive adjudicating power on labour and
industrial relations laws, as opposed to the unlimited jurisdiction of the
States’ High Court.
V. The new Constitution of the Federal Republic
of Nigeria (Third Alteration) Act 2010.
of Nigeria (Third Alteration) Act 2010.
No
one would doubt the labor that went into the preparation and enactment of the
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010.
According to Section 243(2) and (3) of the Constitution of the Federal Republic
of Nigeria (Third Alteration) Act 2010:
one would doubt the labor that went into the preparation and enactment of the
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010.
According to Section 243(2) and (3) of the Constitution of the Federal Republic
of Nigeria (Third Alteration) Act 2010:
An Appeal shall
lie from the decision of the National Industrial Court as of right to the Court
of Appeal on questions of fundamental rights as contained in Chapter IV of this
Constitution as it relates to matters upon which the National Industrial Court
has jurisdiction.
lie from the decision of the National Industrial Court as of right to the Court
of Appeal on questions of fundamental rights as contained in Chapter IV of this
Constitution as it relates to matters upon which the National Industrial Court
has jurisdiction.
An Appeal shall
only lie from the decision of the National Industrial Court to the Court of
Appeal as may be prescribed by an Act of the National Assembly:
only lie from the decision of the National Industrial Court to the Court of
Appeal as may be prescribed by an Act of the National Assembly:
Provided that
where an Act or Law prescribes that an appeal shall lie from the decisions of
the National Industrial Court to the Court of Appeal, such Appeal shall be with
the leave of the Court of Appeal.
where an Act or Law prescribes that an appeal shall lie from the decisions of
the National Industrial Court to the Court of Appeal, such Appeal shall be with
the leave of the Court of Appeal.
Without
prejudice to the provisions of Section 254C (5) of this Act, the decision of
the Court of Appeal in respect of any Appeal arising from any civil
jurisdiction of the National Industrial Court shall be final.
prejudice to the provisions of Section 254C (5) of this Act, the decision of
the Court of Appeal in respect of any Appeal arising from any civil
jurisdiction of the National Industrial Court shall be final.
We
now arrive at the kernel of this paper: the scope of rights of appeal under
from the NIC
now arrive at the kernel of this paper: the scope of rights of appeal under
from the NIC
VI. Rights of Appeal
From
the above, there is a right of appeal (a) where the issues involve fundamental
human rights; (b) in decisions of the NIC on matters prescribed by an Act of
the Nigerian National Assembly; and (c) where an Act allows an appeal from the
NIC to the court of appeal, such shall be via a leave obtained allowing the
appeal by the Court of Appeal.
the above, there is a right of appeal (a) where the issues involve fundamental
human rights; (b) in decisions of the NIC on matters prescribed by an Act of
the Nigerian National Assembly; and (c) where an Act allows an appeal from the
NIC to the court of appeal, such shall be via a leave obtained allowing the
appeal by the Court of Appeal.
As
provided under Section 9(1) & (2) of the NIC Act, the decision of the Court
of Appeal on civil matters (as opposed to criminal matters) from the NIC shall
be final.
provided under Section 9(1) & (2) of the NIC Act, the decision of the Court
of Appeal on civil matters (as opposed to criminal matters) from the NIC shall
be final.
Smart
litigants have couched their appellate grounds as involving fundamental human
rights so as to have a right of appeal without leave—while claiming that they
were denied fair hearing. As Hon. Okoro, JCA had pointed out in
Nigerian Westminster Dredging & Marine Ltd v John Ovoh (Suing for himself
and as representative of the 679 Junior Staff of Nigerian Dredging & Marine
Ltd. Retrenchment in 1994). CA/L/697/08 Date of decision under reference:
14th day of May 2012:
litigants have couched their appellate grounds as involving fundamental human
rights so as to have a right of appeal without leave—while claiming that they
were denied fair hearing. As Hon. Okoro, JCA had pointed out in
Nigerian Westminster Dredging & Marine Ltd v John Ovoh (Suing for himself
and as representative of the 679 Junior Staff of Nigerian Dredging & Marine
Ltd. Retrenchment in 1994). CA/L/697/08 Date of decision under reference:
14th day of May 2012:
“I had earlier stated
in this judgment while dealing with the preliminary Objection herein that
section 9 (2) of the National Industrial Court Act permits an appeal to lie
from the National Industrial Court to the Court of Appeal “only on questions of
fundamental rights as contained in Chapter IV of the Constitution of the
Federal Republic of Nigeria, 1999. Sub-paragraph (1) thereof states that no
appeal shall lie from the decisions of the National Industrial Court to the
Court of Appeal or any other court except as provided for in the Act.
Therefore, any attempt to foist on this court any appeal on issues outside
questions of fundamental rights shall not be entertained. Thus, I shall
determine this appeal strictly on issue as to whether the Appellant herein was
given fair hearing by the lower court or not. Other matters which do not relate
to questions of fundamental right but which are stuffed into the issue in order
to beat the provision of Section 9 (1) of the National Industrial Court Act,
shall not be considered.”
in this judgment while dealing with the preliminary Objection herein that
section 9 (2) of the National Industrial Court Act permits an appeal to lie
from the National Industrial Court to the Court of Appeal “only on questions of
fundamental rights as contained in Chapter IV of the Constitution of the
Federal Republic of Nigeria, 1999. Sub-paragraph (1) thereof states that no
appeal shall lie from the decisions of the National Industrial Court to the
Court of Appeal or any other court except as provided for in the Act.
Therefore, any attempt to foist on this court any appeal on issues outside
questions of fundamental rights shall not be entertained. Thus, I shall
determine this appeal strictly on issue as to whether the Appellant herein was
given fair hearing by the lower court or not. Other matters which do not relate
to questions of fundamental right but which are stuffed into the issue in order
to beat the provision of Section 9 (1) of the National Industrial Court Act,
shall not be considered.”
We
therefore agree with Afolabi Kuti that since the state and federal superior
courts have unlimited jurisdiction over enforcement of fundamental human
rights, there would be no genuine cases that would afford outright rights of
appeal from the NIC to the Court of Appeal.
therefore agree with Afolabi Kuti that since the state and federal superior
courts have unlimited jurisdiction over enforcement of fundamental human
rights, there would be no genuine cases that would afford outright rights of
appeal from the NIC to the Court of Appeal.
From
this, the decision of the NIC appears to be final.
this, the decision of the NIC appears to be final.
Second
as to the appellate right stated thus: “An Appeal shall only lie from the decision
of the National Industrial Court to the Court of Appeal as may be prescribed by
an Act of the National Assembly”—there has to be a proper amendment of
the Constitution before such a right can be asserted. Apart from the National
Industrial Court Act and the Constitution of the Federal Republic of Nigeria
(Third Alteration) Act 2010, there is no other Act prescribing rights of
appeal.
as to the appellate right stated thus: “An Appeal shall only lie from the decision
of the National Industrial Court to the Court of Appeal as may be prescribed by
an Act of the National Assembly”—there has to be a proper amendment of
the Constitution before such a right can be asserted. Apart from the National
Industrial Court Act and the Constitution of the Federal Republic of Nigeria
(Third Alteration) Act 2010, there is no other Act prescribing rights of
appeal.
Again,
from this, the decision of the NIC appears to be final.
from this, the decision of the NIC appears to be final.
Finally,
the only other appellate right appears to be matters of labor disputes
involving criminal elements. As stated by Rupert Irikefe, appeals can lie from
the decisions of the National Industrial Court to the Court of Appeal where the
subject matter of the proceedings involves criminal causes and matters arising
from any cause or matter of which jurisdiction is conferred on the National
Industrial Court by Section 254C of the Constitution of Nigeria as amended by
the Third Alteration Act, 2010 or any other Act of the National Assembly or any
law in force in any part of the Federation.
the only other appellate right appears to be matters of labor disputes
involving criminal elements. As stated by Rupert Irikefe, appeals can lie from
the decisions of the National Industrial Court to the Court of Appeal where the
subject matter of the proceedings involves criminal causes and matters arising
from any cause or matter of which jurisdiction is conferred on the National
Industrial Court by Section 254C of the Constitution of Nigeria as amended by
the Third Alteration Act, 2010 or any other Act of the National Assembly or any
law in force in any part of the Federation.
Such
cases are few.
cases are few.
This
has led to the calls for an amendment to statutory rights of appeal from the
NIC.
has led to the calls for an amendment to statutory rights of appeal from the
NIC.
VII. An Examination of CHAPTER 214, of the
INDUSTRIAL COURT ACT of Antigua and Barbuda
INDUSTRIAL COURT ACT of Antigua and Barbuda
Let
us examine CHAPTER 214, of the INDUSTRIAL COURT ACT of Antigua and Barbuda
us examine CHAPTER 214, of the INDUSTRIAL COURT ACT of Antigua and Barbuda
Section
17 of the Antigua and Barbuda Act dealing with Appeal on point of law, provides
thus:
17 of the Antigua and Barbuda Act dealing with Appeal on point of law, provides
thus:
17. (1) Subject to this Act, any party to a matter
before the Court shall be entitled as of right to appeal to the Court of Appeal
on any of the following grounds, but no others –
before the Court shall be entitled as of right to appeal to the Court of Appeal
on any of the following grounds, but no others –
(a)
that the Court had no jurisdiction in the matter, but so however, that it shall
not be competent for the Court of Appeal to entertain such ground of appeal,
unless objection to the jurisdiction of the Court has been formally taken at
some time during the progress of the matter before the making of the order or
award;
that the Court had no jurisdiction in the matter, but so however, that it shall
not be competent for the Court of Appeal to entertain such ground of appeal,
unless objection to the jurisdiction of the Court has been formally taken at
some time during the progress of the matter before the making of the order or
award;
(b) that the Court has exceeded its
jurisdiction in the matter;
jurisdiction in the matter;
(c) that the order or award has been
obtained by fraud;
obtained by fraud;
(d).
that any finding or decision of the Court in any matter is erroneous in point
of law; or
that any finding or decision of the Court in any matter is erroneous in point
of law; or
(e)
that some other specific illegality, not hereinbefore mentioned, and
substantially affecting the merits of the matter, has been committed in the
course of the proceedings.
that some other specific illegality, not hereinbefore mentioned, and
substantially affecting the merits of the matter, has been committed in the
course of the proceedings.
17. (2) On hearing of an appeal in any matter
brought before it under this Act, the Court of Appeal shall have power –
brought before it under this Act, the Court of Appeal shall have power –
(a) if it appears to the Court of Appeal
that a new hearing should be held, to set aside the order or award appealed
against and order that a new hearing be held; or
that a new hearing should be held, to set aside the order or award appealed
against and order that a new hearing be held; or
(b) to order a new hearing on any question
without interfering with the finding or decision upon any other question,and
the Court of Appeal may make such final or other order as the circumstances of
the matter may require.
without interfering with the finding or decision upon any other question,and
the Court of Appeal may make such final or other order as the circumstances of
the matter may require.
17. (3) The Court of Appeal may in any matter
brought on appeal before it, dismiss the appeal if it considers that no
substantial miscarriage of justice has actually occurred although it is of the
opinion that any point raised in the appeal might have been decided in favour
of the appellant.
brought on appeal before it, dismiss the appeal if it considers that no
substantial miscarriage of justice has actually occurred although it is of the
opinion that any point raised in the appeal might have been decided in favour
of the appellant.
17. (4) Subject to subsection (I), the hearing and
determination of any proceedings before the Court, and an order or award or any
finding or decision of the Court in any matter (including an order or award)-
determination of any proceedings before the Court, and an order or award or any
finding or decision of the Court in any matter (including an order or award)-
(a) shall not be challenged, appealed
against, reviewed, quashed or called in question in any court on any account
whatever; and
against, reviewed, quashed or called in question in any court on any account
whatever; and
(b) shall not be subject to prohibition,
mandamus or injunction in any court on any account whatever.
mandamus or injunction in any court on any account whatever.
Intervetion
by the Attorney-General.
by the Attorney-General.
18. (1) Where any dispute is before the Court, the
Attorney-General may, for the purpose of giving such assistance to the Court as
he may be able to provide with the consent of the Court, intervene, where it
appears to him that some question of public importance or affecting the public
interest or both has arisen and that it is fit and proper that the public
interest should be represented therein.
Attorney-General may, for the purpose of giving such assistance to the Court as
he may be able to provide with the consent of the Court, intervene, where it
appears to him that some question of public importance or affecting the public
interest or both has arisen and that it is fit and proper that the public
interest should be represented therein.
18. (2) No intervention by the Attorney-General
shall be taken to cause the Attorney-General to become a party to the dispute
before the Court, and accordingly no order or award may be made against the
Attorney-General either in the matter or, subject to section 10 (2), as to
costs.
shall be taken to cause the Attorney-General to become a party to the dispute
before the Court, and accordingly no order or award may be made against the
Attorney-General either in the matter or, subject to section 10 (2), as to
costs.
18. (3) Where the Attorney-General intervenes in a
dispute he may instruct such persons as he thinks fit to appear on his behalf.
dispute he may instruct such persons as he thinks fit to appear on his behalf.
We
submit that the above provisions from Antigua may be utilized as such confer
enormous powers to whittle out frivolous appeals, while not depriving
meritorious litigants from their appellate rights
submit that the above provisions from Antigua may be utilized as such confer
enormous powers to whittle out frivolous appeals, while not depriving
meritorious litigants from their appellate rights
VIII. THE INDUSTRIAL RELATIONS ACT, (1967) LAWS
OF MALAYSIA, Reprint
OF MALAYSIA, Reprint
Act 177, Incorporating
all amendments up to 1 March 2010.
all amendments up to 1 March 2010.
Here,
section 33 of the Malaysian Industrial Relations Act dealing with “Reference to
the High Court on a question of law” provides thus:
section 33 of the Malaysian Industrial Relations Act dealing with “Reference to
the High Court on a question of law” provides thus:
33a. (1) Where
the Court has made an award under subsection 30(1) it may, in its discretion,
on the application of any party to the proceedings in which the award was made,
refer to the High Court a question of law—
the Court has made an award under subsection 30(1) it may, in its discretion,
on the application of any party to the proceedings in which the award was made,
refer to the High Court a question of law—
(a)
which arose in the course of the proceedings;
which arose in the course of the proceedings;
(b)
the determination of which by the Court has affected the award;
the determination of which by the Court has affected the award;
(c) which, in
the opinion of the Court, is of sufficient importance to merit such reference;
and
the opinion of the Court, is of sufficient importance to merit such reference;
and
(d) the
determination of which by the Court raises, in the opinion of the Court,
sufficient doubt to merit such reference.
determination of which by the Court raises, in the opinion of the Court,
sufficient doubt to merit such reference.
(2) Where an
application under subsection (1) has been granted by the Court, compliance with
the award in respect of which the application has been granted shall be stayed
pending the disposal of the reference by the High Court, unless the Court
otherwise directs in respect of the whole or a part of the award.
application under subsection (1) has been granted by the Court, compliance with
the award in respect of which the application has been granted shall be stayed
pending the disposal of the reference by the High Court, unless the Court
otherwise directs in respect of the whole or a part of the award.
(3) An
application under this section shall be made within thirty days of the date on
which the award was made.
application under this section shall be made within thirty days of the date on
which the award was made.
(4) Where a
question has been referred to the High Court under this section, the Court
shall forward the record of its proceedings to the Registrar of the High Court
who shall thereupon appoint and notify to the parties to the proceedings the
time and place for its hearing.
question has been referred to the High Court under this section, the Court
shall forward the record of its proceedings to the Registrar of the High Court
who shall thereupon appoint and notify to the parties to the proceedings the
time and place for its hearing.
(5) The High
Court shall hear and determine the question referred to it under this section
as if the reference were an appeal to the High Court against the award of the
Court, and may, consequently, confirm, vary, substitute or quash the award, or
make such other order as it considers just or necessary.
Court shall hear and determine the question referred to it under this section
as if the reference were an appeal to the High Court against the award of the
Court, and may, consequently, confirm, vary, substitute or quash the award, or
make such other order as it considers just or necessary.
(6) A decision
of the High Court under subsection (5) shall have the same force and effect as
an award of the Court has under section 32, and may be enforced as if it were
an award of the Court.
of the High Court under subsection (5) shall have the same force and effect as
an award of the Court has under section 32, and may be enforced as if it were
an award of the Court.
(7) A decision
of the High Court under subsection (5) shall be final and conclusive, and no
such decision shall be challenged, appealed against, reviewed, quashed or
called in question in any other court or before any other authority, judicial
or otherwise, whatsoever.
of the High Court under subsection (5) shall be final and conclusive, and no
such decision shall be challenged, appealed against, reviewed, quashed or
called in question in any other court or before any other authority, judicial
or otherwise, whatsoever.
Award, decision or order of the Court to
be final and conclusive
be final and conclusive
33b. (1) Subject
to this Act and section 33a, an award, decision or order of the Court under
this Act (including the decision of the Court whether to grant or not to grant
an application under subsection 33a(1)) shall be final and conclusive, and
shall not be challenged, appealed against, reviewed, quashed or called in
question in any court.
to this Act and section 33a, an award, decision or order of the Court under
this Act (including the decision of the Court whether to grant or not to grant
an application under subsection 33a(1)) shall be final and conclusive, and
shall not be challenged, appealed against, reviewed, quashed or called in
question in any court.
(2) Subject to
section 33a, no award of the Court for the reinstatement or reemployment of a
workman shall be subject to any stay of proceedings by any court.
section 33a, no award of the Court for the reinstatement or reemployment of a
workman shall be subject to any stay of proceedings by any court.
Clearly,
the duty to refer to the Higher Court cases involving issues of question of law
(a) which arose in the course of the proceedings; (b) the determination of
which by the Court has affected the award; (c) which, in the opinion of the court,
is of sufficient importance to merit such reference; and (d) the determination
of which by the Court raises, in the opinion of the Court, sufficient doubt to
merit such reference—should be utilized by the NIC. And this is whether or not
such questions of law involve fundamental human rights, matters prescribed by
the Nigerian National Assembly or criminal matters
the duty to refer to the Higher Court cases involving issues of question of law
(a) which arose in the course of the proceedings; (b) the determination of
which by the Court has affected the award; (c) which, in the opinion of the court,
is of sufficient importance to merit such reference; and (d) the determination
of which by the Court raises, in the opinion of the Court, sufficient doubt to
merit such reference—should be utilized by the NIC. And this is whether or not
such questions of law involve fundamental human rights, matters prescribed by
the Nigerian National Assembly or criminal matters
IX. Conclusion
The
rights of appeal from the Nigerian NIC are illusory as they presently stand. A widened
and much broader statutory rights are required for the Nigerian legal system to
catch up with other nations and be able to compete favorably on the international
arena. The examples from Antigua and Malaysia are pointers to the way forward. We
hope that the Nigerian National Assembly would find these suggestions useful.
rights of appeal from the Nigerian NIC are illusory as they presently stand. A widened
and much broader statutory rights are required for the Nigerian legal system to
catch up with other nations and be able to compete favorably on the international
arena. The examples from Antigua and Malaysia are pointers to the way forward. We
hope that the Nigerian National Assembly would find these suggestions useful.
Dr. Olumide
Kolawole Obayemi, LL.M. (Alberta Canada); LL.M. in Taxation Law; SJD in
International Legal Studies, is of the Bars of the Federal Republic of Nigeria
and State of California.
Kolawole Obayemi, LL.M. (Alberta Canada); LL.M. in Taxation Law; SJD in
International Legal Studies, is of the Bars of the Federal Republic of Nigeria
and State of California.
A BRIEF EXAMINATION TAX PRACTICE AND PROCEDURE IN NIGERIA:
REVISITING TSKJ II CONSTRUCES INTERNACIONALS
UNIPESSOAL LDA vs FEDERAL INLAND REVENUE SERVICE (FIRS), Abuja Federal
High Court, Suit No. FHC/ABJ/TA/11/12
UNIPESSOAL LDA vs FEDERAL INLAND REVENUE SERVICE (FIRS), Abuja Federal
High Court, Suit No. FHC/ABJ/TA/11/12
By Dr. Olumide
Kolawole Obayemi, LL.M.; SJD*
Kolawole Obayemi, LL.M.; SJD*
Introduction
Notwithstanding
the decision in TSKJ II CONSTRUCES INTERNACIONALS UNIPESSOAL LDA vs FEDERAL INLAND
REVENUE SERVICE (FIRS), Abuja Federal High Court, Suit No.
FHC/ABJ
/TA/11/12, the decision in Standard Trust Bank Plc –v- Chief
Emmanuel Olusola (2007) 9 CLRN 41, clearly shows that the Tax Appeal Tribunals can have concurrent
jurisdiction with the Federal High Courts on matters dealing with taxation. Tax
practice before tax courts range from the relatively simple to the complex
across both direct and indirect tax. Direct tax is a tax that is usually levied
directly on an individual or organization, such as income tax or corporation
tax. Indirect tax refers to tax that is usually levied on goods or services
rather than on an individual or organization, such as VAT or Customs Duty.
the decision in TSKJ II CONSTRUCES INTERNACIONALS UNIPESSOAL LDA vs FEDERAL INLAND
REVENUE SERVICE (FIRS), Abuja Federal High Court, Suit No.
FHC/ABJ
/TA/11/12, the decision in Standard Trust Bank Plc –v- Chief
Emmanuel Olusola (2007) 9 CLRN 41, clearly shows that the Tax Appeal Tribunals can have concurrent
jurisdiction with the Federal High Courts on matters dealing with taxation. Tax
practice before tax courts range from the relatively simple to the complex
across both direct and indirect tax. Direct tax is a tax that is usually levied
directly on an individual or organization, such as income tax or corporation
tax. Indirect tax refers to tax that is usually levied on goods or services
rather than on an individual or organization, such as VAT or Customs Duty.
The
jurisdiction, efficacy and practice before the Nigerian Tax Appeal Tribunal
(“NTAT”) are now at issue in Nigeria. The October 30, 2013 decision of Hon
Justice Adeniyi F.A. Ademola of the Abuja Federal High Court in TSKJ
II Construces Internacionals & Anor vs Federal Inland Revenue Service
(FIRS), Suit No. FHC/ABJ/TA/11/12, cursorily highlights the procedural
deficiencies in the enabling law setting up the NTAT. It also underscored the
need to amend the Nigerian Federal Inland Revenue Establishment Act (FIRSEA)
No. 13 of 2007 and the Tax Appeal Tribunals (Establishment) Order of November
25th, 2009 (TAT Order).
jurisdiction, efficacy and practice before the Nigerian Tax Appeal Tribunal
(“NTAT”) are now at issue in Nigeria. The October 30, 2013 decision of Hon
Justice Adeniyi F.A. Ademola of the Abuja Federal High Court in TSKJ
II Construces Internacionals & Anor vs Federal Inland Revenue Service
(FIRS), Suit No. FHC/ABJ/TA/11/12, cursorily highlights the procedural
deficiencies in the enabling law setting up the NTAT. It also underscored the
need to amend the Nigerian Federal Inland Revenue Establishment Act (FIRSEA)
No. 13 of 2007 and the Tax Appeal Tribunals (Establishment) Order of November
25th, 2009 (TAT Order).
That
TSKJ—an affiliate of Halliburton is a protagonist in this matter is not lost on
oil and gas and taxation law practitioners in Nigeria. The Nigerian Liquefied
National Gas terrain is dominated by the American giant. Nigeria LNG Limited
was incorporated as a limited liability company on 17 May 1989, to produce LNG
and natural gas liquids (NGL) for export. The plant was built by TSKJ
consortium, which was led by former Halliburton’s subsidiary KBR. Other
participants of the consortium were Snamprogetti, Technip and JGC Corporation.
TSKJ—an affiliate of Halliburton is a protagonist in this matter is not lost on
oil and gas and taxation law practitioners in Nigeria. The Nigerian Liquefied
National Gas terrain is dominated by the American giant. Nigeria LNG Limited
was incorporated as a limited liability company on 17 May 1989, to produce LNG
and natural gas liquids (NGL) for export. The plant was built by TSKJ
consortium, which was led by former Halliburton’s subsidiary KBR. Other
participants of the consortium were Snamprogetti, Technip and JGC Corporation.
T.S.K.J.
NIGERIA LTD is involved as EPCI Contractors in Nigeria.
NIGERIA LTD is involved as EPCI Contractors in Nigeria.
We
examine the enabling laws of the NTAT, and compare the prevailing rules and
practice at the NTAT with the American and British practices. We highlight our
disagreement with Ademola’s decision and proffer suggestions for the future of
tax appeals in Nigeria.
examine the enabling laws of the NTAT, and compare the prevailing rules and
practice at the NTAT with the American and British practices. We highlight our
disagreement with Ademola’s decision and proffer suggestions for the future of
tax appeals in Nigeria.
II. Tax Practice and Procedure in
Nigeria.
Nigeria.
In
Nigeria, a taxpayer (individual or corporate) that is aggrieved by the assessment
by a Relevant Tax Authority (“RTA”) may file an objection to the
assessment issued by the RTA. The RTA will then amend or refuse to amend the
assessment. Where the RTA refuses to amend the assessment, the RTA will then
issue a Notice or Refusal to Amend (“NORA”).
Nigeria, a taxpayer (individual or corporate) that is aggrieved by the assessment
by a Relevant Tax Authority (“RTA”) may file an objection to the
assessment issued by the RTA. The RTA will then amend or refuse to amend the
assessment. Where the RTA refuses to amend the assessment, the RTA will then
issue a Notice or Refusal to Amend (“NORA”).
Upon
receiving the NORA, and within 30 days,
the taxpayer may file an appeal with the Nigerian Tax Appeal Tribunal (“NTAT”)
under Section 59 the Nigerian Federal Inland Revenue Establishment Act (FIRSEA)
No. 13 of 2007, Section 11 of the Fifth Schedule to the FIRSEA and Paragraph 5
of the Tax Appeal Tribunals (Establishment) Order of November 25th,
2009 (TAT Order)
receiving the NORA, and within 30 days,
the taxpayer may file an appeal with the Nigerian Tax Appeal Tribunal (“NTAT”)
under Section 59 the Nigerian Federal Inland Revenue Establishment Act (FIRSEA)
No. 13 of 2007, Section 11 of the Fifth Schedule to the FIRSEA and Paragraph 5
of the Tax Appeal Tribunals (Establishment) Order of November 25th,
2009 (TAT Order)
In
Nigeria, a tax appeal must be filed before one of the Six (6) NTAT in the
region closest to the taxpayer, and after pleadings are completed, a hearing
follows.
Nigeria, a tax appeal must be filed before one of the Six (6) NTAT in the
region closest to the taxpayer, and after pleadings are completed, a hearing
follows.
The
Nigerian Tax Appeal Tribunal (NTAT) was established in 2007, and, it replaced
the former Body of Appeal Commissioners (BAC) and Value Added Tax (VAT)
tribunals. See, section 59, FIRSEA. The
NTAT courts are located in Abuja, Lagos, Ibadan, Benin, Enugu, Kaduna, Jos and
Bauchi while the coordinating secretariat located in Abuja is the central
coordinating office which renders support services and facilitates the
operations of the respective zones. See Paragraph
1(i),(ii),(iii),(iv),(v),(vi),(vii),&(viii).
Nigerian Tax Appeal Tribunal (NTAT) was established in 2007, and, it replaced
the former Body of Appeal Commissioners (BAC) and Value Added Tax (VAT)
tribunals. See, section 59, FIRSEA. The
NTAT courts are located in Abuja, Lagos, Ibadan, Benin, Enugu, Kaduna, Jos and
Bauchi while the coordinating secretariat located in Abuja is the central
coordinating office which renders support services and facilitates the
operations of the respective zones. See Paragraph
1(i),(ii),(iii),(iv),(v),(vi),(vii),&(viii).
III. Tax Practice and Procedure in the
United States.
United States.
Similarly,
in the United States, tax litigation usually involves disputes over federal
income tax and penalties—known as “deficiency”—i.e., the excess of the amount
the IRS contends is the correct tax over the amount the taxpayer showed on the
return—in both cases, without regard to how much has actually been paid.
in the United States, tax litigation usually involves disputes over federal
income tax and penalties—known as “deficiency”—i.e., the excess of the amount
the IRS contends is the correct tax over the amount the taxpayer showed on the
return—in both cases, without regard to how much has actually been paid.
Tax
disputes commence after an examination of a taxpayer’s return by the Internal
Revenue Service (IRS). If the IRS does not agree with the taxpayer, the IRS
will issue notices to the taxpayer. If, after issuance of a series of
preliminary written notices and a lack of agreement between the taxpayer and
the IRS, there is no resolution, the IRS will formally “determine”
the amount of the “deficiency” and will then issues a formal notice
called a “statutory notice of
deficiency,” aka “ninety
day letter“. See 26 USC, Section 6212
disputes commence after an examination of a taxpayer’s return by the Internal
Revenue Service (IRS). If the IRS does not agree with the taxpayer, the IRS
will issue notices to the taxpayer. If, after issuance of a series of
preliminary written notices and a lack of agreement between the taxpayer and
the IRS, there is no resolution, the IRS will formally “determine”
the amount of the “deficiency” and will then issues a formal notice
called a “statutory notice of
deficiency,” aka “ninety
day letter“. See 26 USC, Section 6212
Clearly,
once the IRS determines the tax amount, but before the formal IRS assessment of
the tax, a statutory notice of deficiency will be issued.
once the IRS determines the tax amount, but before the formal IRS assessment of
the tax, a statutory notice of deficiency will be issued.
What
follows is that upon issuance of the statutory notice of deficiency, the
taxpayer generally has 90 days to file a Tax Court petition for “redetermination of the deficiency“.
follows is that upon issuance of the statutory notice of deficiency, the
taxpayer generally has 90 days to file a Tax Court petition for “redetermination of the deficiency“.
Where
the taxpayer waives his right to appear before the US Tax Court with a petition
for redetermination of the deficiency issued by IRS–i.e., where no petition is
timely filed, the IRS may then statutorily “assess” the tax, by administratively
and formally recording the tax on the books of the United States Department of
the Treasury.
the taxpayer waives his right to appear before the US Tax Court with a petition
for redetermination of the deficiency issued by IRS–i.e., where no petition is
timely filed, the IRS may then statutorily “assess” the tax, by administratively
and formally recording the tax on the books of the United States Department of
the Treasury.
In
the United States, this formal statutory assessment is a critical act, as the
statutory tax lien that later arises is effective retroactively to the date of
the assessment, and encumbers all property and rights to property of the
taxpayer.
the United States, this formal statutory assessment is a critical act, as the
statutory tax lien that later arises is effective retroactively to the date of
the assessment, and encumbers all property and rights to property of the
taxpayer.
The
United States Tax Court provides a judicial forum in which affected persons can
dispute tax deficiencies determined by the Commissioner of Internal Revenue
prior to payment of the disputed amounts. The jurisdiction of the Tax Court
includes, but is not limited to the authority to hear: tax disputes concerning
notices of deficiency, notices of transferee liability, certain types of
declaratory judgment, readjustment and adjustment of partnership items, review
of the failure to abate interest, administrative costs, worker classification, relief
from joint and several liability on a joint return, and review of certain
collection actions,
United States Tax Court provides a judicial forum in which affected persons can
dispute tax deficiencies determined by the Commissioner of Internal Revenue
prior to payment of the disputed amounts. The jurisdiction of the Tax Court
includes, but is not limited to the authority to hear: tax disputes concerning
notices of deficiency, notices of transferee liability, certain types of
declaratory judgment, readjustment and adjustment of partnership items, review
of the failure to abate interest, administrative costs, worker classification, relief
from joint and several liability on a joint return, and review of certain
collection actions,
The
US Congress later amended the Internal Revenue Code, by inserting a new Section
7482, now providing that decisions of the Tax Court may be reviewed by the
applicable geographical United States Court of Appeals other than the Court of
Appeals for the Federal Circuit.
US Congress later amended the Internal Revenue Code, by inserting a new Section
7482, now providing that decisions of the Tax Court may be reviewed by the
applicable geographical United States Court of Appeals other than the Court of
Appeals for the Federal Circuit.
Also,
in the United States, “Small Tax Cases” are conducted under Internal
Revenue Code section 7463, and generally involve only amounts in controversy of
$50,000 or less for any one tax year. The “Small Tax Case” procedure
is available “at the option of the taxpayer.” These cases are neither
appealable nor precedential.
in the United States, “Small Tax Cases” are conducted under Internal
Revenue Code section 7463, and generally involve only amounts in controversy of
$50,000 or less for any one tax year. The “Small Tax Case” procedure
is available “at the option of the taxpayer.” These cases are neither
appealable nor precedential.
IV. Tax Practice and Procedure in the
United Kingdom.
United Kingdom.
The
Tax Tribunal system in the United Kingdom (“UK”), is administered by the
Ministry of Justice. It is a tiered court process, and, as such, cases are
allocated to each tier based on their complexity. Specifically, cases are
categorized into Default Paper, Basic, Standard and Complex. First–tier
Tribunal (Tax) hears appeals against decisions relating to tax made by Her
Majesty’s Revenue and Customs (HMRC). Appeals can be made by individuals or
organizations, single tax payers or large multi-national companies. Appeals
against HMRC decisions in relation to tax heard in the Tax Chamber include:
Income Tax, Corporation Tax, Capital Gains Tax, Inheritance Tax, Stamp Duty
Land Tax, PAYE coding notices, National Insurance Contributions, Statutory
Payments, VAT or duties such as custom duties, excise duties or landfill tax,
aggregates or climate change levies, or, the amounts of tax or duty to be paid,
against penalties imposed upon them and against certain other decisions
Tax Tribunal system in the United Kingdom (“UK”), is administered by the
Ministry of Justice. It is a tiered court process, and, as such, cases are
allocated to each tier based on their complexity. Specifically, cases are
categorized into Default Paper, Basic, Standard and Complex. First–tier
Tribunal (Tax) hears appeals against decisions relating to tax made by Her
Majesty’s Revenue and Customs (HMRC). Appeals can be made by individuals or
organizations, single tax payers or large multi-national companies. Appeals
against HMRC decisions in relation to tax heard in the Tax Chamber include:
Income Tax, Corporation Tax, Capital Gains Tax, Inheritance Tax, Stamp Duty
Land Tax, PAYE coding notices, National Insurance Contributions, Statutory
Payments, VAT or duties such as custom duties, excise duties or landfill tax,
aggregates or climate change levies, or, the amounts of tax or duty to be paid,
against penalties imposed upon them and against certain other decisions
According
to Olujimi Adedotun, the tax appeal process in the UK, is similar to that of
the United States and Nigeria. Her Majesty Revenue and Customs (HMRC) will
notify the taxpayer of the HMRC’s assessment of additional tax against the
taxpayer or a decision to disallow an expense or deduction as claimed by the
taxpayer.
to Olujimi Adedotun, the tax appeal process in the UK, is similar to that of
the United States and Nigeria. Her Majesty Revenue and Customs (HMRC) will
notify the taxpayer of the HMRC’s assessment of additional tax against the
taxpayer or a decision to disallow an expense or deduction as claimed by the
taxpayer.
The
taxpayer may then petition the HMRC to amend the tax assessment or decision. If
the HMRC refuses to amend, the taxpayer has the right to appeal to the Tax
Tribunal. Thus, where any decision made by HMRC can be appealed, a taxpayer
would be informed of his right to appeal.
taxpayer may then petition the HMRC to amend the tax assessment or decision. If
the HMRC refuses to amend, the taxpayer has the right to appeal to the Tax
Tribunal. Thus, where any decision made by HMRC can be appealed, a taxpayer
would be informed of his right to appeal.
There
are two (2) options available to the taxpayer, which are either to request an
independent review or to appeal directly to the Tax Tribunal.
are two (2) options available to the taxpayer, which are either to request an
independent review or to appeal directly to the Tax Tribunal.
Where
the taxpayer chooses an independent review, such review would be conducted by
an officer of HMRC who did not previously handle the case and a decision would
be communicated to the taxpayer within 45 days.
the taxpayer chooses an independent review, such review would be conducted by
an officer of HMRC who did not previously handle the case and a decision would
be communicated to the taxpayer within 45 days.
Adedotun
also stated that cases in the Default Paper category are usually decided
without a hearing once the parties have submitted documents relevant to their
case. The Tribunal will base its decision on the documents submitted and inform
the parties of its decision as soon as it completes its review. The procedure
for cases in the Basic category is similar. However, in addition to the
documents that may have been submitted to the Tax Tribunal, the case is decided
at an informal hearing where the parties present their case. It is typical that
judgment is given at the end of the hearing. For cases in the Standard and
Complex categories, there is also a frontloading of evidence to the Tax
Tribunal. The Tax Tribunal reviews the evidence prior to the hearing date. On
the chosen date, after both parties have made their case, the Tribunal judge
would either give judgment on the same day or may decide to deliberate further
on the matter. In the latter case, the Tribunal would communicate its decision within
28 days.
also stated that cases in the Default Paper category are usually decided
without a hearing once the parties have submitted documents relevant to their
case. The Tribunal will base its decision on the documents submitted and inform
the parties of its decision as soon as it completes its review. The procedure
for cases in the Basic category is similar. However, in addition to the
documents that may have been submitted to the Tax Tribunal, the case is decided
at an informal hearing where the parties present their case. It is typical that
judgment is given at the end of the hearing. For cases in the Standard and
Complex categories, there is also a frontloading of evidence to the Tax
Tribunal. The Tax Tribunal reviews the evidence prior to the hearing date. On
the chosen date, after both parties have made their case, the Tribunal judge
would either give judgment on the same day or may decide to deliberate further
on the matter. In the latter case, the Tribunal would communicate its decision within
28 days.
V. The Adventures of TSKG Consortium,
TSKG II, and T.S.K.J. NIGERIA LTD in Nigeria.
TSKG II, and T.S.K.J. NIGERIA LTD in Nigeria.
According
to Chudi Offodile, the Nigeria Liquefied Natural Gas Limited (NLNG) was
incorporated in 1989 with the Nigeria National Petroleum Company [NNPC] having
majority stake. In 1993, the Administration of Chief Ernest Shonekan agreed to
a reduction of Nigeria’s equity in the company, ceding 51% to the foreign share
holders in this order: Shell – 25.6%, TotalFina ELF – 15%, ENI- 10.4%. The
remaining 49% is held by the NNPC.
to Chudi Offodile, the Nigeria Liquefied Natural Gas Limited (NLNG) was
incorporated in 1989 with the Nigeria National Petroleum Company [NNPC] having
majority stake. In 1993, the Administration of Chief Ernest Shonekan agreed to
a reduction of Nigeria’s equity in the company, ceding 51% to the foreign share
holders in this order: Shell – 25.6%, TotalFina ELF – 15%, ENI- 10.4%. The
remaining 49% is held by the NNPC.
In
November, 1995, the engineering, Procurement and construction (EPC) contract
was awarded to the TSKJ consortium owned equally by Technip (French)
Snamprogetti, (Italy) Kellog, Brown & Root (KBR) (Halliburton) and Japanese
Gas Corp (JGC) at the cost of $3.6 billion knocking out the rival consortium
BCSA, comprised of Bechtel, Chiyoda, Spibat and Ansaldo. The rivalry between
the two consortia was so intense that it nearly derailed the Project.
November, 1995, the engineering, Procurement and construction (EPC) contract
was awarded to the TSKJ consortium owned equally by Technip (French)
Snamprogetti, (Italy) Kellog, Brown & Root (KBR) (Halliburton) and Japanese
Gas Corp (JGC) at the cost of $3.6 billion knocking out the rival consortium
BCSA, comprised of Bechtel, Chiyoda, Spibat and Ansaldo. The rivalry between
the two consortia was so intense that it nearly derailed the Project.
The
TSKJ consortium through its subsidiary, LNG SERVICOS, engaged the services of a
Company called TRI-STAR Investments Limited to among other services, promote
and support the consortium in its commercial action and assist in the
maintaining of ‘favorable relationship’ with the client and other Government
and business representatives when deemed desirable.
TSKJ consortium through its subsidiary, LNG SERVICOS, engaged the services of a
Company called TRI-STAR Investments Limited to among other services, promote
and support the consortium in its commercial action and assist in the
maintaining of ‘favorable relationship’ with the client and other Government
and business representatives when deemed desirable.
The
issues before Justice Ademola were whether the costs paid by TSKG Ii to its
Nigerian subsidiary were deductible as business expenses, whether the
Assessment and NORA issued by the FIRS were valid, and, whether the Order of
the NTAT that upheld the assessment and NORA can be enforced.
issues before Justice Ademola were whether the costs paid by TSKG Ii to its
Nigerian subsidiary were deductible as business expenses, whether the
Assessment and NORA issued by the FIRS were valid, and, whether the Order of
the NTAT that upheld the assessment and NORA can be enforced.
While
Ademola’s decision fell on the jurisdictional issues, we are of the opinion
that the court failed to deal with the substantive issues as to propriety of
the assessments and taxes assessed against TSKJ conglomerate.
Ademola’s decision fell on the jurisdictional issues, we are of the opinion
that the court failed to deal with the substantive issues as to propriety of
the assessments and taxes assessed against TSKJ conglomerate.
VI. TSKJ II Construces Internacionals
& Anor vs Federal Inland Revenue Service, Suit no. FHC/ABJ/TA/11/12. (the
judgment delivered by Justice A. F. A. Ademola on October 30, 2013, was
formally signed about 2p.m Tuesday, November 12, 2013.)
& Anor vs Federal Inland Revenue Service, Suit no. FHC/ABJ/TA/11/12. (the
judgment delivered by Justice A. F. A. Ademola on October 30, 2013, was
formally signed about 2p.m Tuesday, November 12, 2013.)
Herein,
TSKJ II Construces Internacionals (TSKJ) sued the Federal Inland Revenue
Service (FIRS) at the Federal High Court by challenging the judgment of the
NTAT—the tax appeal tribunal, after the NTAT had issued a ruling mandating TSKJ
to pay the sum of $12.9 million as tax liabilities for 1997, 1998,1999, 2000, 2001
and 2002 to the FIRS.
TSKJ II Construces Internacionals (TSKJ) sued the Federal Inland Revenue
Service (FIRS) at the Federal High Court by challenging the judgment of the
NTAT—the tax appeal tribunal, after the NTAT had issued a ruling mandating TSKJ
to pay the sum of $12.9 million as tax liabilities for 1997, 1998,1999, 2000, 2001
and 2002 to the FIRS.
As
we saw above, TSKJ, a non-resident tax payer had obtained a contract for the
construction of the Nigeria Liquefied Natural Gas (LNG). In executing the
contract, TSKJ II Construces Internacionals used its subsidiary—TSKJ Nigeria,
to render logistic support service to TSKJ II Construces Internacionals in the
course of the contract. TSKJ II Construces Internacionals then filed
self-assessment forms on deemed profits meaning that its profit could not be
ascertained.
we saw above, TSKJ, a non-resident tax payer had obtained a contract for the
construction of the Nigeria Liquefied Natural Gas (LNG). In executing the
contract, TSKJ II Construces Internacionals used its subsidiary—TSKJ Nigeria,
to render logistic support service to TSKJ II Construces Internacionals in the
course of the contract. TSKJ II Construces Internacionals then filed
self-assessment forms on deemed profits meaning that its profit could not be
ascertained.
TSKJ
II Construces Internacionals thereafter made deductions of recharges being the
cost paid to its local subsidiary.
II Construces Internacionals thereafter made deductions of recharges being the
cost paid to its local subsidiary.
FIRS
disallowed the said deductions on the ground that the deductions were not
allowed under the turnover basis assessment.
disallowed the said deductions on the ground that the deductions were not
allowed under the turnover basis assessment.
FIRS
consequently issued additional assessment in respect of the alleged wrong
deductions made by TSKJ II Construces Internacionals.
consequently issued additional assessment in respect of the alleged wrong
deductions made by TSKJ II Construces Internacionals.
TSKJ
II Construces Internacionals objected to the additional deductions and filed an
appeal with the tax appeal tribunal, asking that the additional assessment be
set aside. The NTAT dismissed TSKJ II Construces Internacionals’ claims
following which an appeal was filed at the Federal High Court.
II Construces Internacionals objected to the additional deductions and filed an
appeal with the tax appeal tribunal, asking that the additional assessment be
set aside. The NTAT dismissed TSKJ II Construces Internacionals’ claims
following which an appeal was filed at the Federal High Court.
Justice
Ademola upheld TSKJ II Construces Internacionals’ argument—i.e., that the NTAT lacked
the jurisdiction to entertain the suit on the ground that the FIRS
(Established) Act 2007 under which the tribunal was established conflicted with
the exclusive jurisdiction of the Federal High Court conferred by section 251
(1)(a) and (b) of the constitution. Justice Adeniyi Ademola, while giving
judgment in an appeal filed by TSKJ Construces Internacionals Unipessoal LDA,
declared tax appeal tribunals illegal saying the bodies were established in
contravention of section 251 (1) (a) and (b) of the Constitution of the Federal
Republic of Nigeria.
Ademola upheld TSKJ II Construces Internacionals’ argument—i.e., that the NTAT lacked
the jurisdiction to entertain the suit on the ground that the FIRS
(Established) Act 2007 under which the tribunal was established conflicted with
the exclusive jurisdiction of the Federal High Court conferred by section 251
(1)(a) and (b) of the constitution. Justice Adeniyi Ademola, while giving
judgment in an appeal filed by TSKJ Construces Internacionals Unipessoal LDA,
declared tax appeal tribunals illegal saying the bodies were established in
contravention of section 251 (1) (a) and (b) of the Constitution of the Federal
Republic of Nigeria.
The
judge also ordered the Coordinating Minister for the Economy and Minister of
Finance, Dr. Ngozi Okonjo-Iweala, to immediately disband the eight tax appeal
tribunals constituted by her, saying they were illegal. The judge held thus:
judge also ordered the Coordinating Minister for the Economy and Minister of
Finance, Dr. Ngozi Okonjo-Iweala, to immediately disband the eight tax appeal
tribunals constituted by her, saying they were illegal. The judge held thus:
“The respondent counsel’s arguments that Tax
Appeal Tribunal created by FIRS (Established) Act 2007 as being an
administrative panel and not a court affecting the exclusive jurisdiction of
the Federal High Court on federal revenue and taxation of companies are mere
semantics, misconceived and untenable in law in as much as their decisions
affect the civil rights and obligations of companies in relation to taxation
matters and revenue of the federal government.”
Appeal Tribunal created by FIRS (Established) Act 2007 as being an
administrative panel and not a court affecting the exclusive jurisdiction of
the Federal High Court on federal revenue and taxation of companies are mere
semantics, misconceived and untenable in law in as much as their decisions
affect the civil rights and obligations of companies in relation to taxation
matters and revenue of the federal government.”
The
judge found that the jurisdiction of the tribunal was in direct conflict with
the jurisdiction of the Federal High Court. He therefore advised that the
constitution should be amended before such jurisdiction could be conferred on
the tribunals. He ordered Ngozi Okonjo-Iweala, the coordinating minister for
the economy and minister of finance, to disband the eight Tax Appeal Tribunals
(TAT) across the six geo-political zones of the country:
judge found that the jurisdiction of the tribunal was in direct conflict with
the jurisdiction of the Federal High Court. He therefore advised that the
constitution should be amended before such jurisdiction could be conferred on
the tribunals. He ordered Ngozi Okonjo-Iweala, the coordinating minister for
the economy and minister of finance, to disband the eight Tax Appeal Tribunals
(TAT) across the six geo-political zones of the country:
“The
judgment and orders of this court made today (October 30, 2013) are to be
served on the attorney general of the federation and the minister of finance.”
judgment and orders of this court made today (October 30, 2013) are to be
served on the attorney general of the federation and the minister of finance.”
This
implies that the NTAT as constituted further to the provision of the Federal
Inland Revenue Service (Establishment) Act, 2007 now does not have jurisdiction
to entertain corporate tax matters – matters relating companies’ income tax,
petroleum tax, capital gains tax, value added tax and any matter relating to
the revenue of the federation.
implies that the NTAT as constituted further to the provision of the Federal
Inland Revenue Service (Establishment) Act, 2007 now does not have jurisdiction
to entertain corporate tax matters – matters relating companies’ income tax,
petroleum tax, capital gains tax, value added tax and any matter relating to
the revenue of the federation.
In
addition to the implication of this judgment on settlements already entered as
judgment of the Tax Appeal Tribunals, it also implies that any tax payer who is
aggrieved with any assessment or decision or action of the tax authority will
now file an appeal at the regular courts.
addition to the implication of this judgment on settlements already entered as
judgment of the Tax Appeal Tribunals, it also implies that any tax payer who is
aggrieved with any assessment or decision or action of the tax authority will
now file an appeal at the regular courts.
All
the commissioners in the Tax Appeal Tribunals across the six geopolitical zones
had on November 4, 2013 moved down to Abuja where they held crucial meetings
with the minister of finance as a way to look for way out of the judgment and
continue to sit.
the commissioners in the Tax Appeal Tribunals across the six geopolitical zones
had on November 4, 2013 moved down to Abuja where they held crucial meetings
with the minister of finance as a way to look for way out of the judgment and
continue to sit.
VII. Section 251 of the Constitution of the
Federal Republic of Nigeria (1999).
Federal Republic of Nigeria (1999).
Section
251 of the Constitution of the Federal Republic of Nigeria (1999) enumerates
the jurisdiction of the Nigerian Federal Courts thus:
251 of the Constitution of the Federal Republic of Nigeria (1999) enumerates
the jurisdiction of the Nigerian Federal Courts thus:
251. (1) Notwithstanding
anything to the contained in this Constitution and in addition to such other
jurisdiction as may be conferred upon it by an Act of the National Assembly,
the Federal High Court shall have and exercise jurisdiction to the exclusion of
any other court in civil causes and matters –
anything to the contained in this Constitution and in addition to such other
jurisdiction as may be conferred upon it by an Act of the National Assembly,
the Federal High Court shall have and exercise jurisdiction to the exclusion of
any other court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation
in which the said Government or any organ thereof or a person suing or being
sued on behalf of the said Government is a party;
in which the said Government or any organ thereof or a person suing or being
sued on behalf of the said Government is a party;
(b) connected with or pertaining to the taxation of companies
and other bodies established or carrying on business in Nigeria and all other
persons subject to Federal taxation;
and other bodies established or carrying on business in Nigeria and all other
persons subject to Federal taxation;
(c) connected with or pertaining to customs and excise duties
and export duties, including any claim by or against the Nigeria Customs
Service or any member or officer thereof, arising from the performance of any
duty imposed under any regulation relating to customs and excise duties and
export duties;
and export duties, including any claim by or against the Nigeria Customs
Service or any member or officer thereof, arising from the performance of any
duty imposed under any regulation relating to customs and excise duties and
export duties;
(d) connected with or pertaining to banking, banks, other
financial institutions, including any action between one bank and another, any
action by or against the Central Bank of Nigeria arising from banking, foreign
exchange, coinage, legal tender, bills of exchange, letters of credit,
promissory notes and other fiscal measures:
financial institutions, including any action between one bank and another, any
action by or against the Central Bank of Nigeria arising from banking, foreign
exchange, coinage, legal tender, bills of exchange, letters of credit,
promissory notes and other fiscal measures:
Provided
that this paragraph shall not apply to any dispute between an individual
customer and his bank in respect of transactions between the individual
customer and the bank;
that this paragraph shall not apply to any dispute between an individual
customer and his bank in respect of transactions between the individual
customer and the bank;
(e) arising from the operation of the Companies and Allied
Matters Act or any other enactment replacing the Act or regulating the
operation of companies incorporated under the Companies and Allied Matters Act;…
Matters Act or any other enactment replacing the Act or regulating the
operation of companies incorporated under the Companies and Allied Matters Act;…
We
disagree with Justice Ademola, when he declared that tax appeal tribunals
illegal saying the bodies were established in contravention of section 251 (1)
(a) and (b) of the Constitution of the Federal Republic of Nigeria. The fact is
that this Constitutional provision notwithstanding, the controversy rages on as
some borderline cases have presented difficulties to the Court to define. See,
e.g., Madukolu –v- Nkemdilim (1962) 2 SCNLR 341, S.P.D.C (Nig.) Ltd –v-
Sirpi-Alusteel Const. Ltd (2007) 1 NWLR (Pt. 1067) p 128; Jammal
Steel Structures Ltd. –v- African Continental Bank Ltd. (1973) All N.
L. R (PT 2) 208, Bronik Motors Ltd. –v- Wema Bank (1983) 1 SCNLR 296, Savannah
Bank (Nig.) Ltd –v- Pan Atlantic (1987) 1 A.N.L.R (PT 1) 31 etc.,
stating with exactitude which of the two courts has jurisdiction in a given
commercial matter.
disagree with Justice Ademola, when he declared that tax appeal tribunals
illegal saying the bodies were established in contravention of section 251 (1)
(a) and (b) of the Constitution of the Federal Republic of Nigeria. The fact is
that this Constitutional provision notwithstanding, the controversy rages on as
some borderline cases have presented difficulties to the Court to define. See,
e.g., Madukolu –v- Nkemdilim (1962) 2 SCNLR 341, S.P.D.C (Nig.) Ltd –v-
Sirpi-Alusteel Const. Ltd (2007) 1 NWLR (Pt. 1067) p 128; Jammal
Steel Structures Ltd. –v- African Continental Bank Ltd. (1973) All N.
L. R (PT 2) 208, Bronik Motors Ltd. –v- Wema Bank (1983) 1 SCNLR 296, Savannah
Bank (Nig.) Ltd –v- Pan Atlantic (1987) 1 A.N.L.R (PT 1) 31 etc.,
stating with exactitude which of the two courts has jurisdiction in a given
commercial matter.
VIII. Analysis and Deductions
As
we stated above, our position is that notwithstanding the decision in TSKJ
II CONSTRUCES INTERNACIONALS UNIPESSOAL LDA vs FEDERAL INLAND REVENUE SERVICE
(FIRS), Abuja Federal High Court, Suit No. FHC/ABJ/TA/11/12, the
decision in Standard Trust Bank Plc –v- Chief Emmanuel Olusola (2007)
9 CLRN 41, clearly shows that the
Tax Appeal Tribunals can have concurrent jurisdiction with the Federal High
Courts on matters dealing with taxation.
we stated above, our position is that notwithstanding the decision in TSKJ
II CONSTRUCES INTERNACIONALS UNIPESSOAL LDA vs FEDERAL INLAND REVENUE SERVICE
(FIRS), Abuja Federal High Court, Suit No. FHC/ABJ/TA/11/12, the
decision in Standard Trust Bank Plc –v- Chief Emmanuel Olusola (2007)
9 CLRN 41, clearly shows that the
Tax Appeal Tribunals can have concurrent jurisdiction with the Federal High
Courts on matters dealing with taxation.
In
Nigeria, for a jurisdictional test, the foundations of such a test was laid by
the Supreme Court
Nigeria, for a jurisdictional test, the foundations of such a test was laid by
the Supreme Court
in
NEPA
–v- Edegbedero (2002) 18 NWLR (Pt. 798) p79 SC. per Tobi JSC at page
100 as follows:
NEPA
–v- Edegbedero (2002) 18 NWLR (Pt. 798) p79 SC. per Tobi JSC at page
100 as follows:
“ In construing section 230(1) of the 1979
constitution as amended, two important matters arise. They are the parties in
the litigation as well as the subject-matter of the litigation”.
constitution as amended, two important matters arise. They are the parties in
the litigation as well as the subject-matter of the litigation”.
Thus,
the elements of the jurisdiction test are (i) ‘what is the cause of action and
the subject matter of litigation as determined from the claimants writ of
summons, particulars of claim (if any) and statement of claim’, and (ii) ‘who
are the parties’.
the elements of the jurisdiction test are (i) ‘what is the cause of action and
the subject matter of litigation as determined from the claimants writ of
summons, particulars of claim (if any) and statement of claim’, and (ii) ‘who
are the parties’.
While
the two elements above may apply concurrently, they are independent and
disjunctive indices, dependent on the exact paragraphs of section 251(1) in
issue and the facts of each case. According to F.O Akinrele, it is very
important to consider the cause of action and subject matter first before
referring to the parties. A reference to the parties without first having a
clear view of the cause of action and subject matter may mislead the court.
Further, the exception created in the case of simple contracts can only be
determined by having regard to the cause of action and the subject matter first
and foremost. It is also not enough to conclude that it is a contractual matter
without having regard to the relevant paragraph of section 251(1) to determine
the subject of the contract.
the two elements above may apply concurrently, they are independent and
disjunctive indices, dependent on the exact paragraphs of section 251(1) in
issue and the facts of each case. According to F.O Akinrele, it is very
important to consider the cause of action and subject matter first before
referring to the parties. A reference to the parties without first having a
clear view of the cause of action and subject matter may mislead the court.
Further, the exception created in the case of simple contracts can only be
determined by having regard to the cause of action and the subject matter first
and foremost. It is also not enough to conclude that it is a contractual matter
without having regard to the relevant paragraph of section 251(1) to determine
the subject of the contract.
In
addition, a consideration of the parties is particularly relevant where the
Federal Government or any of its agencies is a party to the action, as section
251(1) paragraphs (a), (p), (q), (r) and (s) tends to deal with parties more
than the subject matter; subject to the exception as it relates to simple
contracts.
addition, a consideration of the parties is particularly relevant where the
Federal Government or any of its agencies is a party to the action, as section
251(1) paragraphs (a), (p), (q), (r) and (s) tends to deal with parties more
than the subject matter; subject to the exception as it relates to simple
contracts.
Coming
back to TSKJ II CONSTRUCES INTERNACIONALS UNIPESSOAL LDA vs FEDERAL INLAND
REVENUE SERVICE (FIRS), the matter was between TSKJ and the FBIR
related to contracts performed between TSKJ and its subsidiaries and had no
governmental flavor. The underlying project concerned the works performed by
TSKJ conglomerates. For instance, it had nothing to do with federal elections,
or Nigerian Airways. In addition, it was not a contract involving maritime or
construction of airport.
back to TSKJ II CONSTRUCES INTERNACIONALS UNIPESSOAL LDA vs FEDERAL INLAND
REVENUE SERVICE (FIRS), the matter was between TSKJ and the FBIR
related to contracts performed between TSKJ and its subsidiaries and had no
governmental flavor. The underlying project concerned the works performed by
TSKJ conglomerates. For instance, it had nothing to do with federal elections,
or Nigerian Airways. In addition, it was not a contract involving maritime or
construction of airport.
It
would have been a proper federal case if TSKJ was suing the federal and/or
state government, or it was for the enforcement of right of way over the seas.
would have been a proper federal case if TSKJ was suing the federal and/or
state government, or it was for the enforcement of right of way over the seas.
IX. Conclusion
For
the fact that the issues before Justice Ademola were whether the costs paid by
TSKG Ii to its Nigerian subsidiary were deductible as business expenses,
whether the Assessment and NORA issued by the FIRS were valid, and, whether the
Order of the NTAT that upheld the assessment and NORA can be enforced, these
are not strictly federal government issues.
the fact that the issues before Justice Ademola were whether the costs paid by
TSKG Ii to its Nigerian subsidiary were deductible as business expenses,
whether the Assessment and NORA issued by the FIRS were valid, and, whether the
Order of the NTAT that upheld the assessment and NORA can be enforced, these
are not strictly federal government issues.
These
are simple business deductions and have no bearing on governmental interests. Such
cases should remain in the tax court.
are simple business deductions and have no bearing on governmental interests. Such
cases should remain in the tax court.
Dr. Olumide
Kolawole Obayemi, LL.M. (Alberta Canada); LL.M. in Taxation Law; SJD in
International Legal Studies, is of the Bars of the Federal Republic of Nigeria
and State of California. He is admitted to practice before the United States Tax
Court in Washington, DC.
Kolawole Obayemi, LL.M. (Alberta Canada); LL.M. in Taxation Law; SJD in
International Legal Studies, is of the Bars of the Federal Republic of Nigeria
and State of California. He is admitted to practice before the United States Tax
Court in Washington, DC.
DUTIES OF THE NIGERIAN MINISTER OF INTERIOR
The Ministry of Interior is a
Federal organ which evolved from the Ministry of Internal Affairs which was
created in 1957. The Ministry’s mandate is fostering and ensuring the
maintenance of internal security and citizenship integrity for the promotion of
good governance of the nation. It has statutory responsibility for the
formulation and implementation of policies and programmes on the following:
i. Registration of voluntary organisations
ii. Issuance of expatriate quota
allocation
allocation
iii. Permit for foreign
participation in business
participation in business
iv. Granting of Nigerian
citizenship
citizenship
v. Seamen’s identity
card/certificate
card/certificate
vi. National Day Celebration
vii. National Flag and National
Coat of Arms
Coat of Arms
viii. Coordination of all issues
of the Nigeria Prisons Service
of the Nigeria Prisons Service
ix. Coordination of all issues of
the Nigeria Immigrations Service; issues relating to immigration and visa;
passport and travel documents; movements of aliens in the country and
repatriation of aliens; x. Coordination of all issues relating to the Nigeria
Security and Civil Defence Corps; and
the Nigeria Immigrations Service; issues relating to immigration and visa;
passport and travel documents; movements of aliens in the country and
repatriation of aliens; x. Coordination of all issues relating to the Nigeria
Security and Civil Defence Corps; and
xi. Coordination of all issues
relating to the Federal Fire Service.
relating to the Federal Fire Service.
The Ministry of Interior also conducts
Nigeria’s Internal Policy and International Relations, and other duties related
to foreign countries and Nigerians abroad.
Nigeria’s Internal Policy and International Relations, and other duties related
to foreign countries and Nigerians abroad.
RESPONSIBILITIES OF THE HONOURABLE MINISTERS
The Federal Executive Council
meeting (EC 18 (07) 4) of May 2007 approved the Responsibilities of the
Honourable Minister and Honourable Minister of State as detailed out below.
i) Providing political leadership
to the Ministry in line with Government objectives towards the attainment of
its goals;
ii) Providing overall guidance in
the formulation and implementation of policies necessary for the realization of
the mandate of the Ministry;
iii) Presiding over the Civil
Defence, Immigration and Prisons Services Board to provide oversight and
coordinate the activities of other relevant security/safety organs to ensure
that they are in harmony and supportive of the Ministry’s overall mandate;
iv) Providing oversight for the
Customs, Immigration and Prisons Services Pension Scheme to ensure full
compliance with all statutory rules and regulations and the provision of
quality service as intended for the beneficiaries;
v) Ratifying the decision of the
Ministerial Tenders Board to ensure full compliance with statutory rules and
regulations;
vi) Providing oversight for the
following agencies/responsibilities:
to the Ministry in line with Government objectives towards the attainment of
its goals;
ii) Providing overall guidance in
the formulation and implementation of policies necessary for the realization of
the mandate of the Ministry;
iii) Presiding over the Civil
Defence, Immigration and Prisons Services Board to provide oversight and
coordinate the activities of other relevant security/safety organs to ensure
that they are in harmony and supportive of the Ministry’s overall mandate;
iv) Providing oversight for the
Customs, Immigration and Prisons Services Pension Scheme to ensure full
compliance with all statutory rules and regulations and the provision of
quality service as intended for the beneficiaries;
v) Ratifying the decision of the
Ministerial Tenders Board to ensure full compliance with statutory rules and
regulations;
vi) Providing oversight for the
following agencies/responsibilities:
a) Nigerian Security and Civil
Defence Corps
Defence Corps
b) Nigeria Immigration Service
c) Citizenship Matters
d) Repatriation and Deportation
e) Immigration and Emigration
f) Passport and other travel
documents
documents
g) Consular and Visa matters
h) Registration and the movement
of Aliens in Nigeria
of Aliens in Nigeria
i) Expatriate Quota Matters
j) Permit for foreign
participation in business
participation in business
k) Matters relating to the civil
Defence, Immigration and Prisons Services Board; and
Defence, Immigration and Prisons Services Board; and
l) Matters relating to Customs,
Immigration and Prisons Pension Office;
Immigration and Prisons Pension Office;
m) Ensuring the implementation of
Treaties; and
Treaties; and
n) Initialing and presenting
Memoranda at the Federal Executive Council.
Memoranda at the Federal Executive Council.
For more information on the
Ministry of Interior, contact the following details:
Ministry of Interior, contact the following details:
Block F, Old Federal Secretariat, Area 1, P.M.B. 7007,
Garki, Abuja
Phone : 09-6713526, Fax : 09-6713526.
@adedunmade
REPORT: RICE PRODUCTION IN NIGERIA: HOW IT CAN IMPROVE TRADE, EMPOWER YOUTH & REDUCE UNEMPLOYMENT
Nigeria is the world’s, and
therefore also inherently, Africa’s most populous black nation with a
population of over 175 million people. As
a result, it should come as no surprise that the demand for rice in Nigeria is extremely
high. However, Nigeria does not produce enough rice to meet the high demand
that is present.
Economics dictates that when
demand for a particular good in a domestic economy is higher that the supply,
the country will import from the world market. This is exactly what Nigeria has
been doing in order to satisfy the gap between the domestic supply and domestic
demand. At the moment, Nigeria is importing rice from countries such as China.
One of the biggest issues that have been raised about this is the poor quality
of the rice that is being imported.
demand for a particular good in a domestic economy is higher that the supply,
the country will import from the world market. This is exactly what Nigeria has
been doing in order to satisfy the gap between the domestic supply and domestic
demand. At the moment, Nigeria is importing rice from countries such as China.
One of the biggest issues that have been raised about this is the poor quality
of the rice that is being imported.
There are several problems that arise as a
result of this. For example, there is the issue of local producers losing the
motivation to produce. When a country
introduces goods from the world market, that inherently means that the price at
which the foreign goods will be sold at are going to be lower than the price at
which local producers would be selling the goods at. This may seem beneficial
for the consumer, however, on a larger scale, this is extremely detrimental to
the economy of the country as a whole.
result of this. For example, there is the issue of local producers losing the
motivation to produce. When a country
introduces goods from the world market, that inherently means that the price at
which the foreign goods will be sold at are going to be lower than the price at
which local producers would be selling the goods at. This may seem beneficial
for the consumer, however, on a larger scale, this is extremely detrimental to
the economy of the country as a whole.
The Central Bank of Nigeria
has put a large emphasis on agriculture because they are aware of the potential
that agriculture has within the country. With oil at number one, agriculture is
Nigeria’s second largest source of income; so as a result, the Nigerian
Government has invested a lot in it. Aliko Dangote, Africa’s richest man has
invested $300 million in agriculture. This emphasises the effect the
agriculture has in Nigeria. Dangote successfully manages a conglomerate that
has essentially monopolised sugar and cement in Nigeria. For him to invest such
a large amount in agriculture may be the boost that Nigeria needs to try and
veer away from oil that it has relied on so heavily over the past decades.
has put a large emphasis on agriculture because they are aware of the potential
that agriculture has within the country. With oil at number one, agriculture is
Nigeria’s second largest source of income; so as a result, the Nigerian
Government has invested a lot in it. Aliko Dangote, Africa’s richest man has
invested $300 million in agriculture. This emphasises the effect the
agriculture has in Nigeria. Dangote successfully manages a conglomerate that
has essentially monopolised sugar and cement in Nigeria. For him to invest such
a large amount in agriculture may be the boost that Nigeria needs to try and
veer away from oil that it has relied on so heavily over the past decades.
According to Index Mundi, 63.1
percent of Nigerians are under the age of 25. Also bearing in mind Nigeria’s
incredibly large population, this is approximately 110 million people all under
the age of 25. The World Bank shows that
50 percent of Nigeria’s population lives outside of cities in the rural parts
of the country. Although statistics are just statistics, it seems fair to
assume that there is plenty of opportunity to farm. With almost 40 percent of
people above the age of 15 that cannot read, it is fair to assume that these 70
million people must make a living somehow. The information shown above is
evidence that shows a large opportunity for people in Nigeria to farm. The use
of the metaphor “killing two birds with one stone” is very applicable here.
There is large population that needs to make a living through menial manners
and there is also a large demand for rice in the country.
percent of Nigerians are under the age of 25. Also bearing in mind Nigeria’s
incredibly large population, this is approximately 110 million people all under
the age of 25. The World Bank shows that
50 percent of Nigeria’s population lives outside of cities in the rural parts
of the country. Although statistics are just statistics, it seems fair to
assume that there is plenty of opportunity to farm. With almost 40 percent of
people above the age of 15 that cannot read, it is fair to assume that these 70
million people must make a living somehow. The information shown above is
evidence that shows a large opportunity for people in Nigeria to farm. The use
of the metaphor “killing two birds with one stone” is very applicable here.
There is large population that needs to make a living through menial manners
and there is also a large demand for rice in the country.
I believe that rice
production can liberate youths in rural Nigeria as it is a task that doesn’t
necessarily need any form of formal education. Over a period of five years, I
envision Nigeria’s unemployment rates amongst the youth plummeting from 54% in
2012 to below 10 percent by 2020. People may argue that in
doing so, Nigeria would not be actually helping itself but providing an
incentive to not be educated. Although I understand how this is a valid
criticism, it overlooks the fact that there are approximately 80 million youths
in Nigeria that are not in any form of education. There are methods to improve
Nigeria’s education system in place, however we are making the assumption that
these people out of education want to be educated. Education is not for all
people and some of these youths may choose not to be in education. With this in
mind, we cannot simply leave them by the wayside; we must provide them with
vocational tasks such as farming.
production can liberate youths in rural Nigeria as it is a task that doesn’t
necessarily need any form of formal education. Over a period of five years, I
envision Nigeria’s unemployment rates amongst the youth plummeting from 54% in
2012 to below 10 percent by 2020. People may argue that in
doing so, Nigeria would not be actually helping itself but providing an
incentive to not be educated. Although I understand how this is a valid
criticism, it overlooks the fact that there are approximately 80 million youths
in Nigeria that are not in any form of education. There are methods to improve
Nigeria’s education system in place, however we are making the assumption that
these people out of education want to be educated. Education is not for all
people and some of these youths may choose not to be in education. With this in
mind, we cannot simply leave them by the wayside; we must provide them with
vocational tasks such as farming.
What I therefore propose is
that the Nigerian government provides workshops in the rural parts of Nigeria
where they teach entrepreneurship in farming. If the government is able to
educate the youths that have dropped out of school in vocational jobs such as
farming, this would greatly impact the youths of Nigeria and Nigeria as a
whole. At the same time, these people are uneducated youths and therefore are
clearly susceptible to being manipulated by others around them. This is the
reason why I believe that the government should have entrepreneurship workshops
that allow the youths to learn how to manage their finances and increase their
crop growth.
that the Nigerian government provides workshops in the rural parts of Nigeria
where they teach entrepreneurship in farming. If the government is able to
educate the youths that have dropped out of school in vocational jobs such as
farming, this would greatly impact the youths of Nigeria and Nigeria as a
whole. At the same time, these people are uneducated youths and therefore are
clearly susceptible to being manipulated by others around them. This is the
reason why I believe that the government should have entrepreneurship workshops
that allow the youths to learn how to manage their finances and increase their
crop growth.
It is essential that the
youth farmers are aware of how to manage their finances properly. However, many
farmers are financially excluded and are not utilising their assets properly.
The Nigerian government could set up miniature farmer’s business classes as
part of the entrepreneurship workshops that teach farmers more agronomic
methods on how to grow their crops. The cost needed to train someone on how to
manage their finances and how to harvest in the most efficient manner is a mere
N3000 per person. Alternatively, the
Nigerian government could host an outreach programme in which they have several
teams that accumulate youths outside of education in the local areas and run
workshops and hold lectures on how to farm in the most efficient way possible.
youth farmers are aware of how to manage their finances properly. However, many
farmers are financially excluded and are not utilising their assets properly.
The Nigerian government could set up miniature farmer’s business classes as
part of the entrepreneurship workshops that teach farmers more agronomic
methods on how to grow their crops. The cost needed to train someone on how to
manage their finances and how to harvest in the most efficient manner is a mere
Nigerian government could host an outreach programme in which they have several
teams that accumulate youths outside of education in the local areas and run
workshops and hold lectures on how to farm in the most efficient way possible.
In conclusion, I believe that
producing rice is a method by which youths in Nigeria that are not in formal
education, can easily maintain a sustainable lifestyle for the future. I
believe that if Nigeria were to utilise the millions of youths that are
available to farm to their fullest potential, Nigeria would be able to reduce
its imports and actually increase its exports.
producing rice is a method by which youths in Nigeria that are not in formal
education, can easily maintain a sustainable lifestyle for the future. I
believe that if Nigeria were to utilise the millions of youths that are
available to farm to their fullest potential, Nigeria would be able to reduce
its imports and actually increase its exports.
By: Peter Akindele
Akindele is a 16 year-old student at African Leadership Academy. He
recently won the Sylvia Trott Prize for Languages for his achievements
in foreign languages, gaining A*A*A*A in Japanese, French, Spanish and
Mandarin respectively. He has been nominated to receive the Lord Lexden
Academic Achievement Award at the House of Lords in March 2014.
recently won the Sylvia Trott Prize for Languages for his achievements
in foreign languages, gaining A*A*A*A in Japanese, French, Spanish and
Mandarin respectively. He has been nominated to receive the Lord Lexden
Academic Achievement Award at the House of Lords in March 2014.
NATIONAL HUMAN RIGHTS COMMISSION
The National Human Rights Commission was established by the National Human Rights Commission (NHRC) Act, 1995, as amended by the NHRC Act, 2010, in line with the resolution of the United Nations General Assembly
which enjoins all member States to establish national human rights institutions for the promotion and protection of human rights.
The NATIONAL HUMAN RIGHTS COMMISSION ACT is an Act to establish the National Human Rights Commission, for the protection of human rights, dignity and freedoms in Nigeria. Section 2 of the Act establishes the Governing Council of the Commission (referred to as”the Council”) which shall be responsible for the discharge of the functions of the Commission.
The Council shall consist of-
(a) a chairman who shall be a retired Justice of the Supreme Court of Nigeria or the Court of Appeal or a retired judge of the High Court of a State;
(b) a representative each of the following Federal Ministries-
(i) Justice; (ii) Foreign Affairs; (iii) Internal Affairs;
(c) three representatives of registered human rights organisations in Nigeria;
(d) two legal practitioners who shall not have less than ten years post qualification experience;
(e) three representatives of the media, at least, two of whom shall be from the private sector;
(f) three other persons to represent a variety of interests; and
(g) the executive secretary of the Commission.
Section 4 provides for the cessation of office of members of the Council and they shall cease to hold office if-
(a) he becomes of unsound mind; or
(b) he becomes bankrupt or makes a compromise with his creditors; or
(c) he is convicted of a felony or of any offence involving dishonesty; or
(d) he is guilty of serious misconduct in relation to his duties.
A member of the Council may be removed from office by the President if he is satisfied that it is not in the interest of the public that the member should remain in office. Where a vacancy occurs in the membership of the Council, it shall be filled by the appointment of a successor to hold office for the remainder of the term of office of his predecessor, so however that the successor shall represent the same interest and shall be appointed by the President.
Functions of the Commission include-
(a) deal with all matters relating to the protection of human rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1999, the African Charter on Human and Peoples’ Rights, the United Nations Charter and the Universal Declaration on Human Rights and other International Treaties on human rights to which Nigeria is a signatory;
(b) monitor and investigate all alleged cases of human rights violation in Nigeria and make appropriate recommendation to the President for the prosecution and such other actions as it may deem expedient in each circumstance;
(c) assist victims of human rights violation and seek appropriate redress and remedies on their behalf;
(d) undertake studies on all matters pertaining to human rights and assist the Federal Government in the formulation of appropriate policies on the guarantee of human rights;
(e) publish, from time to time, reports on the state of human rights protection in Nigeria;
(f) organise local and international seminars, workshops and conferences on human rights issues for public enlightrnent;
(g) liaise and co-operate with local and international organisations on human rights with the purpose of advancing the promotion and protection of human rights;
(h) participate in all international activities relating to the promotion and protection of human rights;
(i) maintain a library, collect data and disseminate information and materials on human rights generally; and
(j) carry out all such other functions as are necessary or expedient for the performance of its functions under this Act.
Also the Commission shall have power to-
(a) do all things which by this Act or any other enactment are required or permitted to be done by the Commission; and
(b) do such other things as are necessary or expedient for the performance of its functions under this Act.
For more information on the NHRC, you may visit this website http://www.nigeriarights.gov.ng.
Adedunmade Onibokun Esq
@adedunmade
“BE AN IMPARTIAL UMPIRE” – HON. DAYO BUSH–ALEBIOSU CHARGES INEC
Ahead of the 2015 General Elections, the Independent National Electoral Commission (INEC) has been charged to be fair to all political parties as the different parties jostle to outwit one another ahead of the polls.
This call was made by the National Assembly Member, representing Kosofe Federal Constituency of Lagos in the House of Representatives, Hon. Dayo Bush-Alebiosu
while speaking with newsmen in Lagos over the flouting of electoral act provision by the PDP which has been conducting several rallies despite subsisting ban on election campaigns by the Electoral Act.
Hon. Bush-Alebiosu remarked that the electoral umpire must be fair and just to all stakeholders’in the polity and not selective as being currently done on the issue of campaigns ahead of next year’s elections.
Hon. Dayo Bush Alebiosu who is the House Committee Chairman on Treaties and Agreements pointed out that by virtue of the 1999 Constitution and indeed the Electoral Act, INEC is saddled with the responsibility of directing and supervising the affairs and conduct of political parties registered by it and must insist that all parties and politicians at large, abide by the rule of the game.
The Federal Lawmaker pointed out that in the past three weeks, President Goodluck Jonathan has been moving from one state and region to another, campaigning and welcoming new members into their fold whereas the Professor Attahiru Jega’s INEC is still laying claim to the fact that political campaigns are still not allowed, saying this double stance casts huge doubts on the impartiality of the election body.
In his words’ INEC has lost the moral right and authority to threaten sanctions against anybody or political parties on the issue of early campaigns as Professor Jega did not see anything wrong when President Jonathan went to Minna (Niger State), Sokoto, Ilorin (Kwara State), Imo and just yesterday, Kaduna State for PDP rallies and INEC is still saying the ban on election campaign is still in place’.The lawmaker remarked.
‘If truly the ban on campaigns by political parties has not been lifted, why has INEC refused to speak out against the PDP and Mr. President instead of accusing all the political parties of contravening the law when INEC National Chairman knew the parties that were involved in the illegality’ .He asked.