by Legalnaija | Sep 29, 2020 | Uncategorized
INTRODUCTION
The
novel coronavirus struck in December 2019, and by March 2020, the World Health
Organisation (WHO) declared it a pandemic.
This declaration inspired nations to impose a lockdown, thus disrupting
patterns and methods of living. Although for the good of all, this act was a
great inconvenience to people. Ranging from education, to movement, to economic
activities, everything stood still. But life is progressive, and as COVID
became the world’s new normal, technology and digitalisation were utilised for
the advancement of society. Schools for instance embraced online learning, dispute
resolution employed the virtual space, social interactions, commercial
transactions, webinars, colloquium etc., all recruited internet
applications. Remarkably, the effective
operation of all of these is hinged on the processing and security of an
essential element called Data. It is the manner of protection afforded to a
vital substance like this in Nigeria that is the crux of this work.
WHAT IS DATA?
Data
elevates from minor details easily divulged about ourselves such as our names,
age, sex etc. to classified information such as our medical history, trade
secrets, credentials etc. however, data in itself is meaningless, it is
empowered upon processing. The likes of Facebook, Google, Microsoft, Amazon
etc., exemplify the economic benefits to be realised from proper processing of
data. Even artificial intelligence owes its efficiency to data processing, but
data means different things for different persons.
The
National Aeronautics and Space Administration (NASA) defines data to include: observation data ,metadata, products, information,
algorithms, including scientific source code, documentation, models, images,
and research results.[2]
A basic definition provided by the Cambridge dictionary is that: data is information, especially facts or numbers, collected to
be examined and considered and used
to help decision-making or information in
an electronic form that can be stored and used by
a computer[3]
Alarming then it is to know that while such an
element could yield beneficial results, misplacement or unauthorised
divulgement of it could wreak a great havoc. Does this mean that data should be
withheld, unprocessed? No. Instead it should be ensured that persons are
informed of who has access to and control over their data. This is of utmost
importance because data protection is an extension of the internationally,
regionally and nationally guaranteed right to privacy.
Data protection has been unanimously agreed to be a measure necessary to deter
and curb the abuse of the personal information of individuals, especially children(whom
are the most vulnerable category), either by natural or artificial persons;
including the government.
The non-protection of data is tantamount to the violation of privacy.[6]
So dire is the need for this, that in
some climes, data protection has been conferred the status of a right.
FRAMEWORK FOR THE
PROTECTION OF DATA
Asides
from instruments guaranteeing the right to privacy, some instruments
specifically govern the protection of data and they include:
•
Organisation for Economic
Co-operation and Development (OECD)
•
OECD Guidelines Governing
the Protection of Privacy and Trans Border Flows of Personal Data 2013
•
African Union Convention
on Cyber Security and Personal Data Protection 2014
- The
Economic Community of West African States Data Protection Act 2010
- The
European General Data Protection Regulations (GDPR)
Thus
far, the European GDPR is adjudged the most comprehensive data protection
legislation because it fully empowers citizens right to access and erasure of
their data. It subjects all data controllers to a legal obligation and
penalties for breach of this obligation. Put shortly, this Regulation contains
the eight principles of data protection, considered to be the foundation of all
data protection legislations. This has earned the Regulation the status of a
model for other legislations.
In
my dear country Nigeria, data is protected by a plethora of legislations; all
limited to an extent. Some of them include: Section 37 of the 1999 Constitution
of the Federal Republic of Nigeria, the Freedom of Information Act, the
Cybercrimes Act 2011, The Consumer Protection Framework, the National Identity
Management Commission Act, Child’s Right Act etc.
However, a rather notable framework is the
National Data Protection Regulation (NDPR) formulated by the National
Information Technology Development Agency (NITDA). Clause 1 of this regulation
states that it is to safeguard the rights of natural persons to data privacy,
to ensure the safe conduct of transactions involving the exchange of personal
data, to prevent manipulation of personal data, to ensure that Nigerian
businesses remain competitive in international trade; through the safeguards,
afforded by a just and equitable legal regulatory framework on data protection
and which regulatory framework is in tune with global practices.
The
above provision explicitly shows that the drafters of this regulation set out
to achieve a regulation strong enough to respond to the global challenges of
data protection. To a large extent, this was achieved for as it stands now the
Regulation is the most comprehensive legislation on data protection that the
country can boast of. Regrettably, it
too is not without flaws.
CRITICISMS
In
order to spell out the loops in the country’s data protection legislation, it
is important that we trace it to its roots. Which in this case would be the
constitution, the grundnorm. section
37 of the constitution expressly provides that the privacy of citizens, their homes, correspondence, telephone
conversations and telegraphic communications is hereby guaranteed and
protected. This provision is incomprehensive because it does not explicitly
mention data protection. Only a liberal interpretation of this guarantees data
protection. But unfortunately, asides from cases such as and MTN Nigeria Communications Ltd v Barr.
Godfrey Eneye[8], there is a dearth of such application.
The NITDA is a very beautiful initiative
enacted in 2007, but as clearly stated in section 6 (c) the act only monitors
electronic dissemination of information. This directive was reiterated again in
the preamble of the NDPR. The distress here is thus that in a society like
Nigeria where citizens are predominantly illiterate and lack access to
technology, this Regulation neglects paper-based communications; the manual
mode of doing things.
Section
1(a) of the NDPR gives the objective of the Regulation to be the safeguarding
of the rights of natural persons to data privacy, but our law also recognises
artificial persons to be entitled to legal rights. It would thus be required
that as they engaged in digital transactions entailing the transfer of
information, they are afforded the protection of the law in securing the data.
Section 1 (2) (b) also states that this
Regulation applies to natural persons of Nigerian descent only. Such provision
might hamper the development of the nation’s economy as multinationals are
likely to invest in nations with strong data protection laws to guarantee their
data security.
Also
sections 1 (3) (l) and 2 (13) (3) (a) mention that the data subjects may be
requested to pay a reasonable fee for some services. It is uncomfortable that
in cognisance of Nigeria’s history of corruption in numerous sectors, such
provision should be included without a fixed amount or criteria for arriving at
this reasonable amount. Such provision will only lead to the encouragement of
bribery amongst the officials and the exploitation of the masses.
RECOMMENDATION
The
first suggestion is that our courts adopt a liberal approach to section 37.
Courts should dismiss the claims of citizens to their rights under this
section, as section 6(6)(b) of the constitution empowers the judiciary to act
upon all actions and proceedings relating to the determination of any question
as to the civil rights and obligations of that person.
As
regards the payment of fees by data subjects, it is suggested that the NITDA
explicitly states a standard fee to be paid or a standard formula for the
calculation of this. This will be resourceful in preventing the extortion of
citizens as well as promoting transparency and accountability amongst
officials.
In
all ramifications, the NDPR is not a holistic legislation because it does not
contain the basic eight principles of data protection. it is therefore
suggested that there should be the enactment of a data protection act which not
only comprises these essentials, makes provisions for children and foreign
residents, but also, provides remedies for data subjects when their rights are
violated. After all, it is ubu jus, ibi
remedium.
Lastly,
there should be a defined mechanism for enforcement. This lies in the arm of
the executive arm of the government and I suggest that this should be allocated
to a neutral body and not the police force since the latter is yet to undergo a
reform for the proper discharge of its duties and the protection of lives.
CONCLUSION
The
right to privacy and digital protection is jealously guarded because it is
fundamental to the security of life, property and reputation of individuals and
even organisations. But as the world becomes a global village and data transfer
cuts across geographical boundaries, the violation of this right is highly
plausible. Data scandals are reportedly very embarrassing and brand denigrating
situations to experience. To prevent further occurrences, it is necessary that
Nigeria puts in place robust data protection laws and an effective mechanism.
This will defend the rights of citizens and rekindle their passion for the
country. Entrenchment of data protection is also a great boost for foreign
investment and the revival of the economy.
by Legalnaija | Sep 29, 2020 | Uncategorized
INTRODUCTION
The right to life is sacrosanct to the bearer and
nobody has the authority to deprive them of this natural gift which the creator
has gifted them. Just as this right is intrinsic and fundamental, so is the
right to decide what happens to one’s state of health which ultimately has a
far-reaching effect on the person’s life.
This is the reason for obtaining the consent of a
patient before the conduct of any medical process or treatment on them is paramount.
Failure to do so will render the medical practitioner liable for breach of the
Medical Code and for assault on the patient or research subject. This work will
discuss the key concepts around Informed Consent, the components that
underlines this practice and the exceptional cases where it may be legally foregone.
AUTONOMY
Autonomy is a Latin word for
“self-rule”. Every human has an obligation to respect the autonomy of other persons, which
is to respect the decisions made by other people concerning their own lives.
This is in accordance with the fundamental right to human dignity. In medical practice, autonomy is usually expressed as
the right of competent adults to make informed decisions about their own medical care. The principle
underlies the requirement for a medical practitioner to seek the consent or
informed agreement of the patient before any investigation or treatment takes
place. The principle of patience autonomy mandates the health care providers to educate the patients about the treatment
options available to the patient; it prohibits the health care provider making the decision for the patient. It
is an absolute, inalienable right of the concerned patient.
INFORMED CONSENT
Informed consent forms the basis of the
fiducial relationship existing between the patient and the health worker and it
is essential to the health worker’s ability to diagnose and treat patients as
well as the patient’s right to accept or reject clinical evaluation, treatment,
or both.
According to the provision of Part A section 19 of
the Code of Medical Ethics in Nigeria,
informed consent is:
“The permission granted in full
knowledge of the possible consequences, typically that which is given by a
patient to a doctor for treatment with knowledge of the possible risks and
benefits”.
Informed consent means that patients or
research subjects understand their health condition after much explanation by
their health care provider; the options available to them, and the attendant
benefits and risks of each option.
It
is important that the person undergoing the treatment has sufficient time to
weigh his or her option before making the decision. In fact, according to the code of medical
practice, the main purpose of
informed consent process is
to protect the patient.
A consent form
is a legal document that ensures an ongoing communication process between the
patient and health care provider. It enables the patient decide which treatment
they want to receive and whether
they even want it or not.
Additionally, informed consent allows the
patient to make decisions
with the close assistance of their healthcare provider. This collaborative
decision-making process is an ethical and legal obligation of healthcare
providers and a fundamental right of the patient.
Informed consent generally requires the patient or responsible party to
sign a statement confirming that they understand the risks and benefits of the
procedure or treatment and are willing to proceed and receive it.
The concept of Informed consent is not an
alien practice in Nigeria, its operation, as in other societies, is influenced
by relationships within the culture of the people and the ethos of the Medical
profession. It is modulated by extended
family relationships, the high level of religious expression,
the multiplicity of religions and ethnic groupings, and defined gender and age relationships
within the society. These influences, however, seem
vitiated in the educated patient.
Societies and cultures are neither homogenous
nor static. Therefore, variations in the practice of informed consent exist not
just in comparison with the Western world but also between and within
the different subcultures in the country.
The Nigerian medical community should improve
the ethical conduct of her healthcare workers through better education and
additional research on the consent needs of the Nigerian public.
ELEMENTS OF INFORMED CONSENT
The
key components of informed consent
are the ethical issues of research involving human subjects. The principles of autonomy, beneficence,
and justice are basic to these ethical issues and merit your consideration. Obtaining informed consent in medicine is a
process that should include:
·
Describing the proposed intervention to
the patient,
·
Emphasizing the patient’s role in
decision-making,
·
Discussing alternatives to the proposed
intervention,
·
Discussing the risks of the proposed
intervention
·
Making sure the
patient has the capacity (or ability) to make the decision.
·
The healthcare
worker must disclose information on the treatment, test, or procedure in
question,
·
The expected
benefits and risks, and the likelihood (or probability) that the benefits and
risks will occur must be fully explained.
·
The patient must
comprehend the relevant information.
·
The patient must
voluntarily grant consent, without coercion or duress.
BASIS
OF LIABLILIY
The basis of liability on the part of a
healthcare provider or researcher for not seeking the informed consent of the
patient or research subject is that; a person has the right to determine what
is done with his or her body. Failure to secure the consent in circumstances
not exempted by law, attracts liability on the part of the healthcare provider
or researcher. It is the informed consent
that distinguishes medical procedures from assault. Explaining the basis of
liability, JUSTICE CARDOZO stated in the landmark decision of Schloendorff v. Society of New
York Hospital, 105 N.E. 92 (N.Y. 1914)
that:
“Every
human being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an operation without
his patient’s consent commits an assault, for which he is liable in damages.” (Underlined
is mine for emphasis).
It is important to note that informed consent
does not only apply to surgery. It applies to therapeutic and non-therapeutic
procedures, invasive and non-invasive treatment.
IMPORTANCE
OF INFORMED CONSENT
Consent to
treatment is among the most complex ethical issues healthcare workers face. Therefore,
it is important to understand what is involved.
No one can guarantee positive outcomes in
healthcare settings, but informed consent at least ensures that patients
understand the risks they undertake with treatment. It is also the law, when
patients agree to a treatment, they must sign paperwork indicating they
understand the risks and agreeing that doctors can take specific life-saving
measures if needed.
Informed consent creates trust between doctor
and patient by ensuring good understanding. It also reduces the risk for both
patient and doctor. With excellent communication about risks and options,
patients can make choices which are best for them and physicians face less risk
of legal action.
Informed consent allows patients to make their
own decisions, instead of the traditional approach where the doctor decides
what is best for them. This means medical professionals must offer enough
information to patients to enable them make a choice and provide enough time to
exercise this all too important right, where possible, so patients do not feel
pressured.
Pain medication and some medical conditions
can affect judgment and understanding, so doctors must consider these factors
when seeking consent from a patient.
EXCEPTIONS
TO INFORMED CONSENT
There are several exceptions to informed
consent acknowledged by the legal system in most countries.
The generally accepted exceptions to
the requirement for informed
consent include:
·
Emergencies.
In
an emergency, a doctor must act quickly to save lives. If stopping life-saving
efforts and describing the risks of a procedure will cause a delay that puts
the patient’s life further at risk, then the doctor does not need to obtain informed consent.
·
Voluntarily
waived consent
This is when the patient has voluntarily disclaimed
that he/ she needs not to be sought
before any treatment is carried out on him/her. In this case, the patient has
given the healthcare worker the sole responsibility to deal with his/ her
condition according to their best practice and knowledge. This must be reduced
to writing and signed by parties, to nip in the bud any chance of liability
that may arise, should the patient subsequently deny consent.
·
Where
the patient is incapacitated
If the patient’s ability to
make decisions is questioned or unclear, an evaluation by a psychiatrist to
determine competency may be requested.
A situation may arise
in which a patient cannot make decisions independently but
has not designated a decision-maker. In this instance, the hierarchy
of decision-makers, which is determined by each state’s laws, must be sought to
determine the next legal surrogate decision-maker. If this is unsuccessful, a
legal guardian may need to be appointed by the court.
·
Prior patient knowledge
The patient is already aware of the risks
involved in his or her treatment and has come to a conclusion which he/ she has
disclosed to the healthcare provider prior to the treatment.
·
Therapeutic privilege
This is when a patient can be expected to
become so emotionally distraught upon disclosure that he/she will not be able
to make a rational decision, and this may hinder his/her own treatment. It
acknowledges that in some situations the disclosure of certain risks would not
be in the patient’s best medical interest. This exception does not imply that
the health worker may withhold information simply because the patient will not
agree with the preferred treatment (and later claim it was for the patient’s
benefit). It should be exercised with great care and discretion and should not
be used as an excuse to withhold the truth, it is the patient’s entitlement.
·
Patients lacking capacity
Legally, capacity refers to a person’s
ability to understand the nature and quality of a transaction and to take
actions or make decisions that influence his/her life. A decision that a patient
lacks capacity is a significant one, as it strips them of their right to
control their life in relation to the decision in question.
Where patients lack capacity, other people
will have to make the decision for them. The health worker must consider the
views of anyone the patient asks the health worker to consult, or who has legal
authority to decide on their behalf or has been appointed to represent them.
Otherwise, the views of people close to the patient, who know the patient’s
preferences, feelings, beliefs, and values should be consulted to try to decide
whether the proposed treatment would be in the patient’s best interests. If the
patient regains capacity, they must be promptly informed what treatment has
been administered to them and why it was opted for.
CONCLUSION
A healthcare provider or researcher should
obtain the written, informed consent of the Patient or research subject;
failing which the healthcare provider or researcher will be liable. However,
the healthcare provide will escape liability if it comes under the exception
provided by law.
There are adequate laws regulating Informed
Consent in Nigeria. The problem is with the compliance. The mechanism to ensure
compliance can be improved. Two great factors affecting the issue of informed
consent are; awareness and finance. On one hand, most people are not aware that
their healthcare providers are obligated to get their consents before carrying
out treatment or medical examination. On the other hand, they are also ignorant
of the fact that they are entitled to redress. Some healthcare providers are
also ignorant of the law on informed consent. Those who are aware of the
necessity for informed consent, do not seek redress because of the cost.
Written by:
MUSTAPHA MOYOSORE. is with Messrs O. M. Atoyebi, SAN & Partners
(OMAPLEX LAW FIRM) where she works in the Corporate and Commercial Department
of the Firm. She has an in-depth understanding of Medical Law and Minin Sector
and has worked with various key industry stakeholders and facilitated several
transactions.
by Legalnaija | Sep 22, 2020 | Uncategorized
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by Legalnaija | Sep 20, 2020 | Uncategorized
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by Legalnaija | Sep 19, 2020 | Uncategorized
ABSTRACT
Couple of days ago, I was requested to furnish
legal opinion on a judgement SUIT NO. NICN/LA/160/2017 delivered in June, 2020
by National Industrial Court of Nigeria. In the said judgement, the honourable
trial court, in its respectful wisdom, held that statute of limitation is not
applicable to contract of employment. The nucleus of the judgement was the
court’s heavy reliance on N.R.M.A. & FC vs Johnson (2019) 2 NWLR (P 1656)
SC 247. This piece of writing considers the applicable authorities and
maintains that statute of limitation is applicable to contract of
employment.
1. BACKGROUND
The precis of the judgement under examination is
that, the claimants were dismissed from the employment of the defendant in 2009
-the claimants were natural persons while the defendant was a corporate person.
The claimants instituted an action at National Industrial Court in 2010,
challenging their dismissal. The judgment of the court was delivered in 2016 in
the claimants’ favour. The claimants, yet again, in 2017, approached the same
National Industrial Court, claiming for their employment entitlements via
another fresh suit. The defendant raised, among others, the defence of statute
of limitation. Though finding that the cause of action accrued in 2009, the court
assumed jurisdiction and held that the matter was not statute barred. Relying
on the judgement of the Supreme Court in N.R.M.A. & FC vs Johnson (2019) 2
NWLR (P 1656) SC 247, the Trial court held:
“I have seen the arguments of counsel and without
need to rehash, I find that the position of the law regarding the applicability
of statutes of limitation on employment contracts has been clarified by the
Supreme Court in the case of N.R.M.A. & FC vs Johnson (2019) 2 NWLR (Pt
1656) SC 247 where His Lordship Ariwoola, JSC declared that statutes of
limitation do not apply to employment/service contracts. As the reliefs for the
claimants’ gratuity in this case relate to claims that inured as a result of
contracts of service with the defendant, this court is bound to follow these
decisions of the Appellate courts. I therefore find that this action is not
caught by Limitation law of Lagos State. I so hold.”
The twain questions this paper seeks to answer
are: 1. Was the case of N.R.M.A. & FC vs Johnson (2019) 2 NWLR (P 1656) SC
247 applicable in this case? 2. Does contract of employment now enjoy
perpetuity going by the reasoning of the trial court?
2. EXAMINATION
OF N.R.M.A. & FC vs JOHNSON (2019) 2 NWLR (P 1656) SC 247
Johnson and others were employed by National
Revenue Mobilization Allocation and Fiscal Commission (N.R.M.A. & F.C.) The
Commission later terminated their employment. Johnson and his co-employees sued
the Commission for wrongful dismissal and claimed their salaries and other work
benefits. The Commission raised the defence that, it, the Commission, was a
Federal Government agency and no legal action could be commenced against the
Commission except within three months of accrual of the cause of action as
provided by section 2, Public Officers (Protection) Act. The relevant provision
of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria
1990 relied upon by the Appellant in Section 2 (a) states:
“Where any action, prosecution or other
proceeding is commenced against any person for any act done in pursuance or
execution of any act or law or of any public duty or authority, or in respect
of any alleged neglect or default in the execution of any such act, law, duty
or authority, the following provisions shall have effect – (a) The action,
prosecution or proceeding shall not lie or be instituted unless it is commenced
within three months next after the act, neglect or default complained of, or in
case of a continuance of damages or injury within three months next after
ceasing thereof.”
The Supreme Court, discountenancing this
argument, held:
“In this matter, while the appellants maintain
that the action is caught by section 2a of the Public officers Protection Act,
the respondents argue that the act is inapplicable. There is no doubt, a
careful reading of the respondents’ claim will show clearly that it is on
contract of service. It is now settled law, that section 2 of the Public
officers Protection Act does not apply to cases of contract.”
This same position of the law has been variously
recognised and echoed by our courts for quite a long period of time before
2019. The Court of Appeal’s decision in NIGERIAN ARMY v. ABAYOMI (2019)
LPELR-47084(CA) buttresses this position when it held, on when the Public
Officers Protection Act will apply:
“Two conditions must coexist before a person can
avail himself of the protection and these are (i) the person must be a public
officer; and (ii) the act done by the person in respect of which the action was
commenced was an act done in pursuance or execution or intended execution of a
law or public duty or authority – Central Bank of Nigeria Vs Okojie (2004) 10
NWLR (Pt 882) 488, Hassan Vs Aliyu (2010) 17 NWR (Pt 1223) 547. Where either of
these conditions is missing, the person concerned does not come under the
provisions of Section 2 of the Public Officers Protection Act and an action
against him is not caught by the three months limitation period.” Per
ABIRU, J.C.A. (Pp. 30-34, Paras. D-B).”
The Johnson’s case in question only excluded
application of three months limitation of action contained in Public Officers
Protection Act and analogous enactments, in contract of employment or where the
defendant government agency does not act in discharge of its duty. The case is
not a precedent on employment contract of six/five-years limitation contained
in various Limitation Act/Law.
3. DISSIMILITUDE
BETWEEN THE TWO CASES
In the Johnson’s case, the party invoking statute
of limitation under Public Officers (Protection) Act was a Federal Government
Agency and the Supreme Court refused to be swayed. Conversely, in the instant
case, the party raising the defence of statute of limitation is not a federal
government agency and did not invoke the provision of Public Officers
(Protection) Act or Law, rather, it invoked the statute of general limitation
i.e. Limitation Law, which is the only limitation law applicable in this case.
For the sake of emphasis and at the risk of
repetition, the position taken by the Supreme Court in Johnson has been
enjoying full compliance of subordinate courts but not in the manner and
instance in which the trial court applied it. The Court of Appeal held in FUTO
v. AMCON & ORS (2019) LPELR-47327(CA):
“On the contention that the 3rd party notice
is against a public officer which is the Appellant, this issue has long been
settled by the Apex Court in a long line of cases that the statute of
limitation does not apply to contract, it is the subject matter that determines
if the public officer is to benefit from the application. It is granted that
the Appellant is established by statute and enjoys the protection of the Public
Officers Act but having admitted that the subject matter is simple contract
therefore it does not apply to it.”
As indicated above, the case of N.R.M.A. & FC
vs Johnson (2019) 2 NWLR (P 1656) SC 247, and similar precedents largely relied
on by the trial court, were based on a special provision of limitation in
special circumstances against public officers or offices.
4. STATUTE
OF LIMITATION REMAINS APPLICABLE TO CONTRACT OF EMPLOYMENT
The general position of the law is that, a suit
initiated outside the prescribed period of time is statute barred and the
potential claimant is deemed to have been slumbering till time lapses and he is
left with no legal remedy in a court of law. Limitations to actions are
basically provided by statutes, though being a form of procedural law. In
Nigeria jurisprudence, there are specific statutes which stipulate time within
which legal action could be instituted against some bodies and in some special
circumstances. Examples of such special provisions are found in statutes such
as Electoral Act, Public Officers Protection Act, Nigerian National Petroleum
Corporation Act or similar Acts/Laws establishing government institutions.
There is also a general statute of limitation titled “Limitation Act/Law”,
which evenly applies to all persons and in all instances.
The scope of applicability of limitation act/law
is to all and general matters of any nature except and save the one excluded by
another parallel statute. In giving nod to this, the court held in CBN v.
HARRIS & ORS (2017) LPELR-43538(CA)
” Now, it is trite that where a statute
prescribes that an action must be filed in Court within a specific period, such
provisions of the law must be strictly complied with, in order to avoid being
caught up by the limitation under the law. In OBA J. A. AREMO II v. S. F.
ADEKANYE & ORS (2004) 19 NWLR (pt. 891) 572; (2004) LPELR – 544 (SC), the
Supreme Court, per EDOZIE, JSC held at 17, paras C – F, thus: “Where a
statute of limitation prescribes period within which an action must be
commenced, legal proceedings cannot be properly or validly instituted after the
expiration of the prescribed period. When an action is statute-barred, a
plaintiff who might otherwise have had a cause of action loses the right to
enforce it by Judicial process because the period of the time laid down by the
limitation for instituting such an action has elapsed….” Per
OBASEKI-ADEJUMO, J.C.A. (Pp. 16-17, Paras. D-D)”
A case on all fours with the case decided by the
court in the judgement under appraisal is TRANSOCEAN SUPPORT SERVICES (NIG) LTD
v. MINA PRAH (2019) LPELR-47249(CA) in which contract of employment of a
claimant was held to be caught by limitation period:
“It is not in doubt that the action was
commenced on 30/11/2000 when the writ of summons was filed. The Limitation Law
of Rivers State Cap 80 Laws of Rivers State 1999, provides in Section 16
thereof that; No action founded on contract, tort or any other action not
specifically provided for in Parts I and II of this law shall be brought after
the expiration of five years from the date on which the cause of action
accrued. From the above provision, it can be seen that the limitation period in
actions founded on contract is five years”.
The holding quoted above remains the true
position of the law; contract of employment is still under the reach of the
long hand of limitation law, to hold otherwise would be giving it an eternal life
which would be inequitable to the adverse party.
5. APPLICATION
OF JUDICIAL PRECEDENT
There is no gainsaying that a trial/subordinate
court is inescapably duty bound to follow decision of a superior court. The
prerequisite for the application of such stare decisis is that there must be
substantial similarity between the case decided by the superior court and the
one present before a subordinate court; similar facts and similar legal
principles, as held in INTEGRATED REALTY LTD V. ODOFIN & ORS (2017) LPELR
48358(SC):
“The application of the principles of stare
decisis or judicial precedent does not involve an exercise of judicial
discretion. It is what must be done; mandatory. The doctrine is based on the
relevant likeness of or between the cases if there is no likeness between the
two, it is an idle exercise to consider whether the previous one should be
followed or departed from. It is settled law that a previous decision is not to
be departed from or even followed, where the facts or the law applicable in the
previous case are distinguishable from those in the latter case.”
Also, in LAWAL v. MAGAJI & ORS (2009)
LPELR-4427(CA), it was held:
“For a previous decision to serve as an
authority in any given case, it must be contextually situated to the facts, law
and rules in the case under consideration. Previous decisions do not apply
generally across board unless the facts are the same or sufficiently similar
and the law/rule applied in the previous case can be said to be in pari materia
with that applicable to the case under consideration.” PER SANKEY, J.C.A. (P.
50, paras. C-E)”
It is settled law that where the facts of a case,
the principle of law stated by Superior Court (Supreme Court in this instance),
is not with exact similitude with the case before a subordinate court, the
subordinate court is not duty bound to apply that principle of law.
6. CONCLUSION
The right to enforce an action on contract of
employment is not a perpetual right but a right generally limited by statute.
Public Officers Protection Law and similar statutes of limitation do not apply
to contracts which a public authority makes but which is not in the discharge
or performance of its statutory duty. However, the protection applies to
contracts or actions which the public authority has a duty under a statute to
make. The application of judicial precedent is inevitable in the predictability
of matter’s outcome as it finetunes our judicial system and makes sensible the
hierarchy of courts. This application is however founded on binary pillars:
substantial similarity of fact and of legal principle.
Author:
Hafeez Folohunsho Zubair is a dynamic lawyer who
practises in Lagos, Victoria Garden City (V.G.C.), Lekki, and can be reached
on: +2347038816822, hafeez4a@gmail.com
by Legalnaija | Sep 17, 2020 | Uncategorized
When a person publishes false statements which seek to defame another’s character, it is referred to as libel. For an action for libel to be successful, one of the grounds is that such writing must have been published.
A true statement on the contrary, can never be defamatory as the written publication must be false and without lawful justification for it to be defamatory.
In such situations anyone who is a victim of libel can sue for damages at the appropriate court. Its however important to note that an action for libel cannot be brought after 6 years from the date of which the action occurred.
Do you have any questions on defamatory statements, post a comment or send us a DM
#nigerianlawyers #aoclegal #defamation #libel #barrister #slander
by Legalnaija | Sep 16, 2020 | Uncategorized
INTRODUCTION
The Nigerian Local Content Development and
Enforcement Commission Bill, 2020, (the “Bill”) is seeking to repeal the Nigerian Oil and Gas Industry Content Act,
2010 (hereinafter referred to as the “Act”). This shortsighted initiative
emerged out of the misconstrued perception of the true purpose behind the
issuance of the Executive Order 03 signed
by the President of the Federal Republic of Nigeria seemingly in support of
Local Content, which mandates all Ministries, Departments and Agencies (MDAs)
to grant preference to local manufacturers of goods and service providers in
their procurement of goods and services.
Also, another misconception is the
proclamation entitled “Presidential Executive Order for Planning and Execution
of Projects, Promotion of Nigerian Content in Contracts and Science,
Engineering and Technology,’’ by President Muhammadu Buhari, pursuant to the
authority vested in him by the Constitution, which was signed on Friday,
February 2, 2018, the Executive Order
No. 5 (“EO5”) by which all Ministries, Departments and Agencies (“MDAs”) of
Government were directed to engage indigenous professionals in the planning,
design and execution of National Security projects and maximize in-country
capacity in all contracts and transactions with science, engineering and
technology components.
These are directives
which can be easily actualized through the simple release of Guidelines or
modalities to that effect by the concerned MDAs without the need to enact a new
Local Content Law, let alone repeal the existing Act.
While this move
introduced by the Bill could be considered as remotely development-driven on
the surface, however, its bid to repeal the hitherto existing NOGICD Act, by
establishing a Local Content Commission and expanding the scope of Local
Content into all other Sectors of the economy, will only result in the
furtherance of unwarranted bureaucratic bottlenecks, which will hamper the much
desired rapid growth of the economy if assented to. This work exposes the
attendant shortfalls of the Bill, along with the impracticability of the
innovations it seeks to import into the economic structure of the country and
expound on why efforts should rather be channeled along the lane of properly
revamping the NOGICD Act already before the House of Representative and
undergoing some salient modifications, rather than obliterating it completely.
THE EXCLUSIVITY OF LOCAL CONTENT LAW TO THE OIL AND GAS
SECTOR
Local content
requirements are provisions (usually under a specific law or regulation) that
commit Foreign Investors and companies to a minimum threshold of goods and
services that must be purchased or procured locally. From a trade perspective,
local content requirements essentially act as import quotas on specific goods
and services, where Governments seek to create market demand via legislative
action. It ensures that within strategic Sectors particularly those such as Oil and Gas with large economic rents,
or vehicles where the industry structure involves numerous supplier’s domestic
goods and services are drawn into the industry, providing an opportunity for
Local Content to substitute domestic value-addition for imported inputs.
The rationale for
Local Content requirements is especially strong, particularly for the Energy
Sector. Apart from the United Kingdom, very few new energy producers including
Norway, long considered as the gold standard Local Content had, upon discovery
of their Oil and Gas deposits, stated the requisite industrial capacity to
serve as an internationally competitive platform for exploration, extraction,
distribution and export. Given that the Nigerian Oil and Gas industry is nearly
a century old, the dominance of established operators and the sophistication of
energy technology particularly for offshore deposits implies that emerging
energy producers will, at the outset, nearly always depend on foreign firms.
While energy sector investments (if properly managed) can ensure a steady revenue
stream and constant (and in the case of developing countries, rising) demand
levels, its exploitation however, requires sophisticated and cutting-edge
technology, a ready-made demand for a wide network of suppliers in virtually
all areas of manufacturing and services, and ongoing employment for trained
staff, both at home and in other energy-producing countries around the world.
Therefore, the reason
for having a Local Content Development Act specifically enacted for the Oil and
Gas Industry was not just to create more jobs but primarily to ensure
technology transfer of the grossly technical expertise applied in the Oil and
Gas Industry among other industry-based objectives. Countries all over the
world reserve Local Content laws for exploration of natural resources
especially in relation to the energy sector and this is because they desire to
build the necessary capacity to cater for that sector without high dependence
on external bodies.
Similarly, a cursory
look at the regime of Local Content in other Countries such as Ghana, will
reveal that the whole concept of Local Content not only resides with the Oil
and Gas sector, but also focuses on production and utilization of the Country’s
resources, and this puts away the need to have it present in other sectors.
Regulation 49 of its Petroleum (Local Content and Local Participation)
Regulations, 2013 L.I 2204, defines Local Content thus:
“The quantum or
percentage of locally produced materials, personnel, financing, good and
services rendered in the petroleum industry value chain and which
can be measured in monetary terms” (Underlined is ours for emphasis).
Having so defined
local content, the country has no other law on the area, as this will mean an
overstretching of its objectives.
Similarly, Section
106 0f the NOGICD Act defined “Nigerian Content” as thus:
“The quantum of composite value added to or created in the Nigerian
economy by a systematic development of capacity and capabilities through the
deliberate utilization of Nigerian human, material resources and services
in the Nigerian Oil and Gas industry” (Underlined is ours for emphasis).
THE BILL LACKS A CLEAR-CUT APPLICATION AND DIRECTION
Unlike the NOGICD Act
which provides for a clearly-worded spectrum of its application as regulating
activities in the Oil and Gas Sector, and thus makes for ease of its
enforcement, the Bill in question seeking to repeal the Act has failed to
delimit itself to any relevant Sector(s) of the economy or even spell out the
nature of the exact activities it intends to regulate. It equally does not
provide for the purpose its eventual enactment will achieve, which is in sharp
contrast with the NOGICD Act, the focal point of which is the implementation
and monitoring of Nigerian Content, ensure and encourage the full indigenous
participation and transfer of technology to Nigerians and the provision for the
development of Nigerian Content in the Nigerian Oil and Gas Industry, as
vividly indicated by the wordings of the sections that ran through its pages
and even more so, in the clauses of the Bill (NOGICD Act (Amendment) Bill)
seeking to amend it.
The Local Content
Development and Enforcement Commission Bill on the other hand is not Sector
specific and other Sectors of the Nigerian economy comprises of Services,
Mining, Forestry, Agriculture, Transport, Tourism, Energy, etc. Considering
these Sectors are made up of 70% low income earners and striving entrepreneurs,
it is quite an enormous task if not an outright impossibility to implement the
wordings of the Bill. This deficiency it has by itself brought to the fore in
many of its proposed clauses. Prominent among which is the very first Clause
that hinges on the number of objectives it undertakes to achieve. Some
provisions are stated below:
Clause 1
The objectives of
this Bill include —
“(1) The imposition
of the application of Nigerian Local Content to any transaction in which public
fund belonging to the Federal Government of Nigeria or any of its arms and/or
agencies is used in any sector of the Nigerian economy, in donor or loan funded
projects and in activities carried out by any entity in possession of an
investment agreement with any arm of the Federal Government of Nigeria or any
of its agencies;
(2) The imposition of
Nigerian Local Content to transactions in all sectors of the Nigerian economy
where regulated activities are carried out especially in the petroleum, solid
minerals mining, construction, power, information and communication technology,
manufacturing and health sectors of the Nigerian economy;”
The foregoing provisions alone without
addition, are an obvious pointer to the fact that the Bill is certainly biting
a lot more than it can chew. Given that an innumerable percentage of publicly
funded transactions involving the Federal Government, its Arms, Agencies in
various sectors and activities by entities in investment Agreement with these
bodies, are conducted year in and year out, of which an accurate data and
status reports of are unfortunately not obtainable in any of the regulatory or
statutory establishments empowered to oversee and monitor these transactions.
If such primary
duties have been so neglected over the years, it automatically follows that
there is absolutely no footing upon which the imposition of the application of
Local Content can possibly thrive, as multiple projects and activities have not
been and are still not being tracked, thus, breeding more avenue for; perpetual looting of funds, low or zero
revenue generation and abandoned or uncompleted public works, the sum of which
could have been positively harnessed towards achieving the fast growth of the
economy and according more impetus to public-private-partnership which will aid
the smooth implementation of government policies, bring about robust economic
and commercial boost and add to the volume of the national wealth.
Conversely, the NOGICD Act has maintained a
solid record since its inception 10years ago, as it has remained focused on
achieving its sole objective, made possible by the specific nature of its
application to the Oil and Gas Sector, the mainstay of the economy and large
contributor to the overall national GDP. Interestingly, about $9 billion has
been retained from the average $20 billion being spent in the Oil and Gas
industry yearly due to the implementation of the Act and about Nine Million
man-hours has been achieving in training, with indigenous players owning about
40% of marine vessels operating in the industry. These are only a few of the
laudable economic transformations ushered in by the Act as a result of the
clarity and narrowed application of its mandates and the powers, functions and
roles exercised by the agency saddled with the onus of giving effect to its
sector-based provisions, the Nigerian Content Development and Monitoring Board.
ADDITIONAL EXPENSES TO THE NATIONAL BUDGET
It is beyond debate
that an Act to make provision for Local Content on all sectors of the economy
would not only be too voluminous and incapable of capturing all necessary
developments it ought to, but it will equally increase the amount of expenses
accruing to the annual national budget in running the costs of the numerous
Directorates and Departments the Bill seeks to establish and in setting up
offices for more Directors. This is especially
because the new Departments are more of a duplicate to the already existing
Departments in the Ministries. Instead of creating new Directorates and
Departments, it is advisable that the provisions in this Bill be used as an
upgrade to the already existing Departments to properly discharge their
administrative functions.
CONCLUSION
Before
the advent of the Bill, the NOGICD Act has withstood the test of time and
ensured developmental breakthroughs in the Oil and Gas Sector it regulates,
piloted by the skillful management of the NCDMB, and it will be an economic
drawback to discard it after a decade of excellence. Also, there are in
existence various Ministries to cover each Sector of the economy all having
regulations governing their activities. The application of Local Content is
indeed, a concept that can only be successfully actualized in the Oil and Gas Sector
alone, as records have exhibited, attempting to drag it into the shores of
other Sectors is fated to being an exercise in harmonic futility.
Mr. Oyetola Muyiwa Atoyebi, SAN is one of the most notable professional Nigerian lawyer,
who has distinguished himself in his professional sphere within the country and
internationally. He is the youngest in the history of Nigeria to be elevated to
the rank of a Senior Advocate of Nigeria. At age 34, he was conferred with the
prestigious rank in September, 2019. Mr. O.M. Atoyebi, SAN can be characterized
as a diligent, persistent, resourceful, reliable and humble individual who
presents a charismatic and structured approach to solving problems and also an
unwavering commitment to achieving client’s goals. His hard work and dedication
to his client’s objectives sets him apart from his peers.
As the Managing Partner of O.M. Atoyebi, SAN &
Partners, also known as OMAPLEX Law Firm, he is the team leader of the Emerging
Areas of Practice of the Firm and one of the leading Senior Advocates of
Nigeria in Local Content Law, where he has worked with various key industry
stakeholders and successfully facilitated transactions in the Oil & Gas and
Energy Sector. He has a track record of being diligent and he ensures that the
same drive and zeal is put into all matters handled by the Firm.
by Legalnaija | Sep 16, 2020 | Uncategorized
INTRODUCTION
International sports law has seen
several developments and changes in the last decade, one of such is the radical
change in the Athlete nationality regime and the remodelling of the
international and municipal concepts of citizenship.
As the world is fast becoming a global
village due to the strong influence of globalization, the stringiest
requirement for citizenship and nationality has been relaxed by various nations
in the alarming race to secure top class athletes or seek dominance in certain
sports.
In
the light of this, athletes have been seen to throw nationality and patriotism
to the wind in an emerging world of marketization of citizenship. The International
Olympic Committee (IOC) have also taken steps to regulate and control this
growing tide. In a fair attempt to regulate same, several legislations and
rules have been made and agreed upon to curb and set a standard for nationality
swapping.
This paper shall examine the principles
governing nationality swapping at the Olympic Games.
THE QUESTION OF NATIONALITY
AND CITIZENSHIP
According to the European
Convention on Nationality (1997), nationality can be defined as ‘the
legal bond between a person and a state’.
Furthermore, the definition does not indicate the person’s ethnic origin that
is ones nationality is nowhere connected to one’s ethnic affiliation or
background.
Although National/domestic laws are
provided to regulate acquisition of nationality status by various states,
International Federations (IF’s) also make provision for attainment of
nationality status.
In international law, citizenship is a
reference to the general nationality of a state acquired by one under the
various citizenship laws of a state. The Universal Declaration of Human Rights
Guarantees the right to swap (change) his/her nationality without deprivation
on any grounds.
It is now no gain saying that the right to swap (change) nationality is one
provided for and protected by International conventions/treaties.
NATIONALITY
SWAPPING UNDER THE OLYMPIC CHARTER EXAMINED
The issue of nationality under the Olympic
Charter is regulated by Rule 41 of the Charter. It is a fundamental
principle that for an athlete to participate/compete at the games such an
athlete must be a national of the country of the National Olympic Committee
(NOC) which is entering such competitor.
Any dispute arising from the nationality of a competitor at the games relating
to the athlete’s state of nationality is resolved by the international Olympic
committee (IOC) Executive Board.
Due to globalization, many athletes
are very much eligible to represent more than one country. Example, Yamile
Aldama, a world class triple jumper, has been a beneficiary of the fluidity in
nationality at the games which has seen her represent three different countries
i.e Cuba at the 2000 games in Sydney, Sudan at the Athens 2004 games and
Britain at the London 2012 games. This dynamic is recognised by the charter in
Bye-law to Rule 41 (1). But it goes further to the state and specify the
conditionality’s for nationality swapping.
The charter provides that where an
athlete (competitor) is a national of two or more countries at the same time,
he (the competitor) may represent either one of them, as he (the competitor)
may elect. Where such an athlete (the competitor) has opted to represent one
country in the Games (Olympics) or in a continental or regional or world
championship (IAAF World Championship for example) recognised by the relevant
International Federation (IF) he may not represented another country unless he
meets the following requirements:
i)
Three years has passed since
the competitor last represented his former country. Note that this period may
be reduced or even cancelled with the agreement of the NOC and IF concerned, by
the IOC Executive Board.
ii)
The competitor must first
change or acquire a new nationality subject to the nationality laws of the new
state.
If the athlete (the competitor) can fulfil the above
stated requirements then he can be eligible to represent his new nation at the
games.
Another
principle worth noting is the status of ‘Stateless Athletes’. Stateless may be as a result of a refugee
status by an athlete where he fled his country of birth and domicile in another
country. In this situation, if the athlete meets the three year waiting period
and can prove he (the competitor) had severed his ties to his country of birth.
Also, where an
athlete is from a state with no NOC, such an athlete is not deemed as
‘stateless athletes’, such athlete will be regarded as an ‘independent
athlete’. The Charter of the Games provides that an athlete must be sponsored
by a country’s NOC. This situation arose with Guor Mamal, a South Sudanese
Marathon runner at the 2012 London Games, he wanted to join the national team
of the United States, his domicile, but he was not a United States citizen and
his country of birth, South Sudan had no NOC, as South Sudan was in its first
year of independence.
CONCLUSION
In summary, the question of nationality amongst athletes
at the games is a fluid one, which gives a power to bigger, richer and well
established countries to offer better welfare and financial packages to
athletes to entice them to represent them at the games. This has served
countries with rich resources but not much talent pool to draw from, thereby
allowing them to deep into the global athlete market to window shop for willing
athletes who are ready to swap nationality for better working and competing
conditions.
On the other
hand, the IOC is also encouraged to make alterations to the procedure for
nationality swap, i.e the waiting years as this is not really important as the
consensual agreement between the athlete, adopting country and the IF concerned
is of utmost importance.
F. E. OROK (Esq)
Rule
41 Bye-Law (ii) of the Olympic Charter
by Legalnaija | Sep 12, 2020 | Uncategorized
The role played by the Nigerian Bar
Association and lawyers in the development of Nigeria’s economic and societal goals
cannot be overstated. Due to this, the expectations of everyone who
participated in or followed the recent NBA Elections are quite high, a fact
that is not lost on the new officers. The NBA President, Mr. Olumide Akpata, noted
this at his inauguration, when he stated that “As I informed the new national officers during our strategy retreat
last weekend, hitting the ground running immediately will not be enough, we
also need to hit it flying. Nothing short of that would match the expectations
of our members and Nigerians.”
While the new NBA officers have their work
cut out for them, it is important to note that they will not achieve remarkable
success except with the cooperation and support of members of the Bar. The
purpose of this series on NBA Officers, is therefore to ensure that lawyers are
informed of the respective duties of the newly sworn officers to enable easy
communication, and collaboration.
Though the NBA President leads the
Association and is ultimately responsible for the administration of the NBA
under his watch, the ten (10) other officers also play a huge role in the management
of the Association’s affairs.
In this post, we shall therefore be looking
at the duties of the Assistant Publicity Secretary of the NBA. As provided in
Section 5 (k) of the NBA Constitution; the duties of the Assistant Publicity
Secretary shall be as follows:
i.
He/She shall assist
the Publicity Secretary in the performance of his/her duties and shall in the
absence of the Publicity Secretary act in his/her place;
ii.
He/She shall perform
all other duties as may be assigned to him/her by the President or the National
Executive Committee or the Annual General Meeting.
Mr. Ferdinand Naza is the current Assistant
Publicity Secretary of the Nigerian Bar Association. Follow him on Twitter
@ferdinand_naza
by Legalnaija | Sep 11, 2020 | Uncategorized
INTRODUCTION
The Oil and Gas sector of the Nigerian
economy has hitherto, remained the mainstay of the country’s capital value chain
and the most remarkable component of our National Gross Domestic Product. Given
this incontrovertible fact, it has therefore become highly imperative that the
Act be revamped and its provisions brought into compliance with international
industry best practices while still preserving its core objective, which is
provision for the development of Nigerian Content in the Nigerian Oil and Gas
Industry by encouraging participation of Nigerians.
Before the National Assembly, is a
Bill to amend the Nigerian Oil and Gas Industry Content Development Act, 2010,
properly short cited as the Local Content Act (the “Act”). The Act which is
composed of 106 Sections is sought to be amended by the Nigerian Oil and Gas
Industry Content Development (Amendment) Bill, 2020 (HB.838) (the “Bill”). The
move to amend the decade-old Act sprang out of the pressing need to address
certain salient issues which have been either neglected or improperly captured
in the legislation. In a bid to prevent
the enactment of provisions considered inconsistent with the mandate and true
spirit of the Act, the Bill seeking to usher in these amendments has thus, been
subjected to rigorous legal scrutiny to capture enlightened viewpoints that
will allow the fulfilment of its objects before it ascends into law. This paper
is focused on some provisions of the Bill we believe needs to be addressed.
THE
NEED TO DEFINE NIGERIAN INDIGENOUS COMPANIES: FUNDAMENTAL ROLE IN THE
DEVELOPMENT OF NIGERIAN CONTENT
The mandate of the Nigerian Oil and Gas Industry Content
Development Act is primarily to provide for the development of Nigerian
Content in the Nigerian Oil and Gas Industry by encouraging participation of
Nigerians. Indeed, the true measure of the success of content development in
Nigeria is in the amount and complexity of works and role played by Companies
wholly owned and managed by Nigerians, whose focus is on developing
Infrastructure and Technology in Nigeria, thereby encouraging profits to be
retained and reinvested into our economy. Consequently, these Companies are
building and developing capabilities towards ultimately exporting Nigerian
products and services, rather than relying on importation, which is an absolute
characteristic of a Nigerian Indigenous Companies.
The focus of the Act
primarily is on Nigerian indigenous companies. Therefore, any amendment to the
Act must be to protect and encourage an environment for exponential increase in
their numbers and rapid growth in size, so as to pull along the Nigerian
economy. Just as the most developed Oil and Gas countries have done, they have
prioritized the interests of indigenous companies by enacting laws that will
foster and encourage their participation on the sector that is driving their
economy. The glass ceiling which is preventing our economic growth will go away
when we prioritize indigenous companies in the dealings of the sector that
corners us the most revenue annually.
The Act has fallen short of providing
a comprehensive definition as to what constitute the entities regarded as “Nigerian Indigenous Companies”, rather it
resorted to using terms such as “Nigerian
Independent Operators” and “Indigenous
Service Companies” in making reference to exclusive and first consideration
to Nigerians as stipulated in the Act. Furthermore, Section 106 (interpretation Section), defines “Nigerian Companies” thus:
“A company formed and registered in Nigeria in accordance with the
provision of Companies and Allied Matters Act with not less than 51 % equity
shares by Nigerians”.
A cursory study of judicial
pronouncements on the definition of what constitutes a Nigerian Company, will
reveal that the meaning provided by the Courts over time, appears to be at a
sharp variance with what the Act envisages, which apparently allows room for
foreign ownership of equity shares in a company considered Nigerian. A
classical case in point, is SIKIRU AGBOOLA LASISI v. REGISTRAR OF
COMPANIES [I176] LPELR-SC.301/1975, where the Supreme Court laid down
the correct test for determining whether a company is a Nigerian association or
not, in these words:
“It is clear from the definition under
Section 16(1)(c) of the Nigerian Enterprises Promotion Decree, 1972 that the
correct test for determining whether a company is a Nigerian association or not
is to discover the owners of its capital and other financial interests. If its
capital and other financial interests are wholly and exclusively owned by
Nigerian citizens, then it is a Nigerian Association. If, however, a portion of
its capital or other financial interest is owned by an alien then, except as
otherwise prescribed by or under the Decree, it is an alien association”. (Underlined
is ours for emphasis).
The Act having defined the term
Nigerian Company makes no further mention of a “Nigerian Company” at all, rather it resorted to various vague variations; “Nigerian Indigenous Operator”; “Nigerian Indigenous Service Companies”;
“Nigerian Indigenous Contractors”; “Nigerian Contractors and Service or
Supplier Companies”, and “Indigenous
Companies” to reference sector participants contemplated under each
relevant provision. Although, the Act has implicitly substituted the term “Nigerian Company” with the
above-mentioned phrases, it nevertheless still intends for the word “indigenous” to remain in the Act so as
to portray its very meaning and objective.
The ambiguity created by the above mentioned words has opened the
provision to different constructions, with stakeholders having to rely on the comprehension
of industry best practice or formally recurring to the interpretation of the Nigerian
Content Development and Monitoring Board (the “Board”) in line with S. 70(1) of
the Act, which permits the Board to “provide
guidelines, definitions and measurement of Nigerian Content and Nigerian
Content Indicator to be utilized throughout the Industry”.
The Bill attempts to cure this ambiguity by proposing to replace
the terms “Nigerian Independent
Operators” with “Nigerian Companies”,
and “Nigerian Indigenous Service
Companies” with “Nigerian Service
Companies”. Regrettably, this has failed to fix the uncertainty occasioned
by the Act, instead, it moved further away from the purpose the Act is designed
to attain, which is the exclusive consideration and participation of Nigerians.
Hence, the proposition by the Bill to erase outright, the term “Indigenous”, nullifies the true meaning
and intention of the Act.
Undoubtedly, what gauges the achievement of content development in
Nigeria and especially in the oil and gas industry, rests on the intricacy and
aggregate of works done and the contributions made by Nigerian domestic
companies concerned with the development of infrastructure, technology and
building galvanized human capacity in Nigeria, thereby assuring the reflow,
retention and reinvestment of profits in our economy. Accordingly, these
Companies are forming and expanding the required competence geared towards the
ultimate exportation and transatlantic
trading of Nigerian goods and services, in place of protracted dependence on
importation, which typifies the precise features of Nigerian Indigenous
Companies.
A brief study of some oil producing countries shows how their
Local Content Laws focus on participation of its citizens in the Oil and Gas Sector
and have reflected same in their laws. We can take a cue from our sister
nation, Ghana, having passed a
similar Law three years after the enactment of the NOGICD Act. The Petroleum (Local Content and Local
Participation) Regulation, 2013 (Ghana), passed in 2013, was enacted with
the purpose of enhancing the capacity of indigenous Ghanaian companies and to
promote their participation in the Oil and Gas Industry.
Regulation 49 of the country’s Petroleum (Local Content and
Local Participation) Regulations, 2013, defines an “indigenous Ghanaian Company” as
“A company incorporated under the Companies Act, 1963 (Act 179)
that: a) has at least 51% of its equity owned by a citizen of Ghana; and b) has
Ghanaian citizens holding at least 80% of executive and senior management
positions and 100% of non-managerial and other positions”.
Similarly, resource rich countries;
Kuwait, Qatar, Saudi-Arabia and the United Arab Emirates (UAE) etc. also focus
on local content requirements to maximize the gains of foreign participation in
their Oil and Gas Sectors. The aim is to provide opportunities for local
industries to participate in Oil and Gas activities. Although, several of these
countries do not exactly define the term “local” in their Local Content
Regulation (LCR), generally it means; nationals, and companies owned, or
majorly controlled by nationals.
It is owing to this prevailing reason, that Nigerian Indigenous
Companies must assume a central place within the covers of our Local Content
Act. Therefore, any amendment to it must be anchored on providing and
encouraging an atmosphere for a flooding increase in their numbers and rapid
growth in sizes, in order to redefine the Nigerian economy.
This work recommends that the term “indigenous” be retained and
consequently, the interpretation Clause of the Bill should interpret “Nigerian
Indigenous Companies” to mean;
“A company with
100% equity and assets owned by Nigerian Citizens with its head office/parent
company located in Nigeria”.
It is only a clearly worded and purpose-driven definition of this
kind that can adequately foster the existence of a truly Nigerian Indigenous
Company and guarantees an all-round local content development in our dear Oil
and Gas Sector.
INCREASE OF
PERCENTAGE TO BE CONTRIBUTED TO THE NIGERIAN CONTENT DEVELOPMENT FUND
The
Act makes provision for the establishment of a Nigerian Content Development
Fund (the “Fund”) under Section 104(1),
for the purposes of funding the implementation of Nigerian content development
in the Nigerian Oil and Gas Industry. In other words, it is provided to ensure
the absolute achievement of the goal for which the Act was enacted in the first
place.
Having
so established the Fund, Section 104(2)
of the Act further categorically spells
out the major source from which the fund will be generated and placed at 1%
deductible at source, of every awarded contract to any of the listed entities
who are concerned with all the goings-on in the Upstream Sector of the Nigerian
Oil and Gas Industry, to be paid into the fund. This arrangement has worked
perfectly well for the fund itself and provided a considerable measure of ease
to all concerned parties in the undertaking of their business operations within
the spheres of the industry.
Conversely,
the Bill by virtue of a new Clause 105
(2) proposes a coinage of this provision, such that the major source of the
fund will now be derived from the deduction of 2% at source of every contract
awarded to any operator, contractor, subcontractor, alliance partner or any
other entity involved in any project, operation, activity or transaction in the
Upstream Sector and designated Midstream and Downstream projects operation of
the Nigeria Oil and Gas Industry, which is to be paid into the fund.
Flowing
from the foregoing is the overt fact that, while the initiative to extend the
spectrum of application of this provision by the Bill to include “designated Midstream
and Downstream projects operation” is by far a commendable one, as it will
automatically open the floodgate of more income pooling into the fund and in
turn, speed up the implementation of content development in the industry.
However, an increase in the contributory funds from 1% to 2% of every contract
awarded, is outrageous and can be regarded as double taxation on so many
levels. It can be argued that the sector is indeed already significantly
overburdened by a plethora of levies and fees; Education tax, Nigeria Police
Trust Fund (NPTF) levy, Nigerian Capital Development Fund (NCDF) Levy, Niger
Delta Development Commission (NDDC) Levy, Nigerian Export Supervision Scheme,
and Offshore Safety Permit, others include Cargo & Stevedoring Dues, Waste
Reception Facilities Levy, Value Added Tax among others, and the proposed
minimum of 0.5 per cent of participants respective gross revenues for Research
& Development (R&D) activities in Nigeria. Industry Stakeholders have
expressed concern that any additional financial imposition as proposed by the
Bill on the industry, will very negatively impact Nigeria’s competitiveness and
affect the viability of projects and investments.
It is a bit alarming that while the Government
seems to want to
achieve lower costs, it is imposing
multiple taxes and levies. This is without consideration for high security
costs, assets fixing and environmental remediation costs, that follows asset damages. The Government is expected to support the
industry to remain a viable partner for the economic development of Nigeria and
not impose unnecessary burden.
In
addition, an increase to 2% smacks of unaccountability, given that there are no
detailed developmental returns on previous contributions to the Fund, published
by either the Board or any other responsible regulatory body. It then becomes
valid to recommend that contributions be retained at 1% as provided in the Act.
APPLICATION
OF THE NIGERIAN CONTENT DEVELOPMENT FUND
Unequivocally, the landmark success in the Nigerian economy over the breadth of
the last decade is attributable to the enactment of the Nigerian Oil and Gas
Industry Content Development Act. The
proposed amendment, which is channeled along the lane of enhancing better
participation of Nigerian citizens, rests on how the industry, local businesses
and state institutions create the needed synergy to overcome the obstacles
militating against the actualization of local content opportunities. `
Clause 105(3) of the Bill provides that;
“The Fund shall be managed by the
Nigerian Content Development and Monitoring Board and employed for projects,
programmes, and activities directed at increasing Nigerian Content in the Oil
and Gas Industry.”
While it can be argued that the
reasoning behind the above clause is progressive, however, it has merely
replicated the provision of the same clause it seeks to substitute, which fails
to address the evident flaw in the application of the fund.
The resources released for funding by
the Board is commendable in most cases but usually are totally insignificant
for some projects. Bringing into account the yearly generated revenue of the
Board, which is earmarked at $360 million from commercial ventures for the year
2020 alone,
it will be most ideal to allocate a percentage of the yearly generated revenue
to the advancement of indigenous companies; large projects, laudable
programmes, capacity building solutions, activities and services of robust
advantage to indigenous companies from whose operations the source of the
generated fund is derived.
Therefore, in order to realize and meet the full objectives of the Fund, for the purpose of
unceasing advancement in the Sector, at least one major project considered
instrumental to the exponential expansion of indigenous companies should be initiated
and executed in the industry, every fiscal year. Thus, not only would it be
highly profitable to set aside a minimum percentage of the total generated
contribution to be spent on projects each year, but it will also prepare the
fertile ground for the acceleration of these companies into the league of their
counterparts with multi-national repute, the economy will be better enriched,
and the multiple returns can then be directed towards stretching the boundaries
of research and development in the industry and even ultimately financing the
process of diversifying into and promoting other sectors in the not too long
run.
Similarly, the Board
should through the Fund, provide
low-Interest Loans to Nigerian Indigenous Companies operating in the Upstream
Sector, to enable them deliver services at competitive pace, intentionally proceed on ceaseless capacity building programs for local
companies in order to both build and boost the right structures to enable them
compete favorably in the Industry, ensure effective enforcement of the
Act to enhance in-country value creation, retention, reinvestment, and
generation of employment for Nigerians
across the Industry value chain, especially at such a time when the revenue
accruable to the Federal Government from other key sectors of the economy is
degenerating at an alarming rate.
Suffice it then to assert that, the provision of Clause 105(3) is
the key to attaining all of these promising potentials which the whole
amendment process portends for the Oil and Gas industry in particular and the
economy as a whole, only if it is redrafted to encapsulate the pertinent
enabling words in the manner described hereafter:
“The Fund shall be managed by the Nigerian Content Monitoring
& Development Board, and 50% of the total generated fund thereof shall be
employed for projects, programmes and activities beneficial to Nigerian
Indigenous Companies and directed at increasing Nigerian content in the Oil and
Gas Industry”
The Local Content Development Fund can only serve its true purpose
if applied to the right course, and the Act must state this in no uncertain
terms.
CONCLUSION
The Bill cannot afford to reenact the
shortcomings it is meant to eliminate. It is therefore required at this crucial
moment for our Legislators to ensure that the Bill underway, is cleared of all
the ambiguities, irregularities, and shortfalls replete in the subsisting
principal Act. A carefully thought amendment of the Act is vital to crystalize
the core intentions of the initial drafters of its letters. While this is being
done, we must balance the interests of the stakeholders in the sector. An
increase in the contributory funds will be burdensome on the already over taxed
stakeholders.
Damilola
Vordah Imong is with Messrs O. M. Atoyebi, SAN
& Partners (OMAPLEX LAW FIRM) where she works in the Corporate and
Commercial Department of the Firm. She has an in-depth understanding of the Oil
& Gas and Energy Sector and has worked with various key industry
stakeholders and facilitated several transactions.
