It is
such exciting news to learn that Hon. Dame Linda Dobbs will be a Special Guest
and Speaker at the upcoming 60th Annual General Conference of the
Nigerian Bar Association. Hon. Dame is the Director of Training at the Judicial
Institute for Africa; Pro Chancellor of the University of Surrey; Senior Fellow
at SOAS; Advisory Board of the International Inequalities Institute at the
London School of Economics; Independent Assessor for Miscarriages of Justice
Compensation; Judicial Commissioner to the Investigatory Powers Commission; and
acting judge of the Grand Court of the Cayman Islands.
At
the Conference, she would be speaking on “The Equality Gap: Changing the Status
Quo against Stereotypes in the Legal Profession”.
See
her profile below –
Following
a successful career at the Bar, in October 2004, Dame Linda became the first
non-white high court judge in the UK, having been appointed a Deputy High CoNBAurt
Judge in 2013. At the Bar she was a member of, and chaired, a number of
committees, including the Race Relations, Equal Opportunities, International, Professional
Conduct and Professional Standard Committees. In 2003 she became the Chairman
of the Criminal Bar Association where she set up its first Equality and Diversity
sub-committee. Whilst on the High Court Bench she was the Senior Liaison Judge
for Diversity, Chair of the Magisterial Committee of the Judicial Studies Board
and Chair of the International Committee of the Judicial College and a Fawcett
Commissioner.
In
2013 Dame Linda stepped down early from the High Court Bench to pursue her
various interests, which includes the training of judges and lawyers
internationally (in particular, in the Caribbean and Africa), and supporting the
charities with which she has connections.
Dame
Linda is a contributing and consultant editor to a number of legal publications.She has been involved in the training of
lawyers and judges both in the UK and internationally for over 25 years and is
the Director of training at the Judicial Institute for Africa, based at the
University of Cape Town where she is an honorary professor. Other areas of
expertise include mediation, facilitation, conducting investigations, inquiries,
needs assessments, chairing panels/boards/committees and other consultancy work.
She is a regular keynote speaker at events.
Dame
Linda holds 7 honorary doctorates; she is a Fellow of the Judicial College; she
was a member of the Court of Governors at the London School of Economics from
2006 – 2015 and chair of its Ethics Policy Committee from 2012 to 2015. She is
a patron of a number of charities (including in Sierra Leone and South Africa);
she also sits on a number of advisory committees. She is the immediate past President
of ILFA (International Lawyers for Africa) and chair of the UK-Sierra Leone Pro
Bono Network. She has been named in the past as one of Britain’s most powerful
black women and one of the 100 Great Black Britons and she has featured regularly
in the Power 100 List of Influential Black Britons. She is the current Chair of
the Powerlist Selection Panel.
It is with the highest sense of responsibility and consciousness of the task ahead that I accept my appointment by His Excellency President Muhammadu Buahri to serve as the Managing Director/Chief Executive Officer of the Federal Housing Authority of Nigeria.
My focus as Chief executive will be to ensure a vigorous implementation of the Federal Government’s housing policy which entails the provision of mass affordable housing for millions of Nigerians and the rejuvenation of the economy through the creation of meaningful jobs for millions of young Nigerians.
Needless to say, this task cannot be achieved without the cooperation of both the Government and the organized private sector. We are, however, fully determined to leverage on this important cooperation in order to create housing opportunities for many Nigerians while creating millions of jobs in order to stimulate the economy.
Worth acknowledging, also, is the quantum of work already done by the Federal Ministry of Works and Housing under the able leadership of His Excellency Mr. Babatunde Raji Fashola SAN, the Federal Housing Authority and other complementary agencies in this regard.
I hereby look forward to working closely with the Federal Ministry of Works and Housing, the management and staff of the Federal Housing Authority, other relevant agencies and our partners from the private sector.
I remain grateful to His Excellency, President Muhamadu Buhari for the enormous confidence he has reposed in us by this appointment, while looking forward to a period of diligent service.
Blood
transfusion is the process of transferring blood or blood products into one’s
circulation intravenously. Transfusions are used for various medical conditions
to replace lost components of the blood. In an emergency, a blood transfusion
can be what saves a patient’s life.
However, not everyone
believes in blood transfusions, for instance it is a deep belief between
Jehovah Witnesses that blood transfusion, according to their faith is not
acceptable. While every global citizen has the right to their choice of
religion, faith or beliefs, it can get tricky when the lines between justice, health
emergencies and religion cross.
It is a general and
well-grounded principle of law that in the determination of a child’s rights,
the paramount consideration of the Court will be the interest of the child. The
Court takes this position in all matters, either it bothers on custody and
maintenance proceedings or life and death matters such as administering a blood
transfusion on a child.
This was illustrated in the
case of Tega Esabunor & Anor vs. Dr.
Tunde Faweya & 4 others, SC.97/2009. In the matter, the first Appellant
was a one month old baby when the incident that led to this Appeal occurred. He
was very ill and would have died if the first Respondent did not act quickly
enough to obtain the Court Order that allowed him to administer the blood
transfusion. After first Appellant got well and was discharged from hospital,
the second Appellant, who fought against the said blood transfusion, because it
is against her religious beliefs, filed an Application wherein she prayed that
the Order for blood transfusion made on 12/5/1997, by the fifth Respondent, be
set aside. The Application was dismissed both at the High Court and the Court
of Appeal.
The Supreme Court when pronouncing
on the matter stated that; “all adults
have the inalienable right to make any choice they may decide to make and to
assume the consequences. When it involves a child, different considerations
apply and this is so because a child is incapable of making decisions for
himself and the law is duty bound to protect such a person from abuse of his
rights as he may grow up and disregard those religious beliefs. It makes no
difference if the decision to deny him blood transfusion is made by his
parents. When a competent parent or one in loco parentis refuses blood
transfusion or medical treatment for her child on religious grounds, the Court
should step in, consider the baby’s welfare, i.e. saving the life and the best
interest of the child, before a decision is taken. These considerations
outweigh religious beliefs of the Jehovah Witness Sect. The decision should be
to allow the administration of blood transfusion especially in life threatening
situations.”
From the above pronouncement,
the Court once again reinforces the position of law as stated in Section 1, Child’s Right Act (2003) that best interest
of a Child to be of paramount consideration in all actions.
It is on record that Mr. Alegeh, SAN, a former President of the Nigerian Bar Association had congratulated Mr. Olumide Akpata on the 30th of July 2020 even before the conclusion of the 2020 NBA election. Mr. Alegeh has since urged Mr. Dele Adesina, SAN and Dr. Babatunde Ajibade, SAN to support Mr. Olumide Akpata for emerging victorious in the controversial election. I expect Mr. Alegeh to have realised that the support of both gentlemen for Mr. Akpata will not wish away the electoral fraud that has since been institutionalised by the NBA. No doubt, Mr. Alegeh SAN is entitled to congratulate Mr. Olu Akpata and mobilize support for him. But it is incumbent on Mr. Alegeh and other leaders of the NBA to ensure that the allegations of electoral malfeasance that characterize NBA elections are addressed. More so, that these allegations have serious implications for the collective honour and integrity of members of the NBA and the entire legal profession in Nigeria.
It is common knowledge that the 2016 and 2018 elections of the National Officers of the NBA were marred by e-fraud. The refusal of the ECNBA to produce a credible voters register and disclose the name of the Service Provider to the contestants heightened suspicion that the 2020 NBA election might be electronically manipulated. Incidentally, both Mr. Dele Adesina, SAN and Mr. Olu Akpata made these anomalies known to the ECNBA in their separate letters of 9th of July and 20th of July, 2020 to ECNBA. But the ECNBA did not reply the letters of both candidates. Even when the integrity of the 2020 NBA election was questioned last week the ECNBA did not speak up. It was the outgoing President of the NBA, Mr. Paul Usoro, SAN who unsuccessfully tried to defend the conduct of the election by the ECNBA. Mr. Alegeh may wish to persuade the members of the ECNBA to come out of their cocoon of silence and defend the grave allegation of a premeditated electronic fraud.
Notwithstanding Mr. Alegeh’s decision to mobilise support for Mr. Akpata he ought to encourage the ECNBA to defend the allegations of electoral malfeasance. In particular, the ECNBA should explain the basis for releasing the Verified Voters Register a few hours before the election contrary to the mandatory period of 28 days and why the verified register itself contained a list of voters far less than the number of verified voters for some branches of the NBA! For instance, 2800 members of the NBA Ikeja Branch were duly verified to vote. But in the voters’ list released a few hours to the election the number had been reduced to 1770. NBA Ibadan branch had 1072 verified voters reduced to 833; NBA Jos had 699 reduced to 452; NBA Markurdi had 478 reduced to 288; NBA Ilorin had 721 reduced to 344; NBA Akure had 447 reduced to 320; NBA Gombe had 232 reduced to 132. On the contrary, NBA Obollo-Afor had 39 names of verified voters increased to 662!
The ECNBA may also want to explain how the system ensured that the percentage of votes recorded for the 3 presidential candidates was consistent for 24 hours. In other words, are we to believe that all the voters throughout the country voted at a regulated percentage ratio at the same time for 24 hours! Some concerned members are desirous to know when the Diaspora Branch of the NBA was created since its members participated in the election. The ECNBA should equally explain why over 4,000 members without recognised branches appeared on on the List of Voters that was released a few hours to the commencement of the election. Therefore, Mr. Alegeh ought to persuade the members of the ECNBA to defend the grave allegation of a premeditated electronic fraud.
It will be recalled that the Independent National Electoral Commission had declared Alhaji Umaru Musa Yar’Adua the winner of the 2007 presidential election. The Supreme Court affirmed the electoral victory in a split decision of 4-3 Justices. But President Umaru Musa Yar’Adua publicly admitted that the election that brought him to power was flawed and proceeded to institute a panel headed by the Honourable Justice Mohammed Uwais, former Chief Justice of Nigeria to investigate the electoral malpractice that marred the elections and recommend substantial reforms of the electoral process. The panel carried out the assignment with diligence and made far reaching recommendations. But the refusal of the ruling political parties to implement the recommendations has continued to expose the nation to shame in the comity of democratic countries.
Finally, I recognize that Mr. Alegeh SAN is entitled to congratulate Mr. Olu Akpata and mobilize support for him. But it is incumbent on Mr. Alegeh and other leaders of the NBA to ensure that the allegations of electoral malfeasance that characterize NBA election are addressed and not swept under the carpet on a biannual basis. More so, that these allegations of impropriety and impunity have serious implications for the collective honour and integrity of members of the NBA and the entire legal Profession in Nigeria. Since lawyers prosecute and defend election petitions conducted by the Independent National Electoral Commission the NBA cannot afford to choose its National Officers through electronically manipulated electoral process. Therefore, Mr. Alegeh may wish to persuade the leaders of the NBA to defend the grave allegations of premeditated electronic fraud that has questioned the integrity of the 2020 election.
The
Finance Act 2019 (“the Finance Act” or “the Act”) was signed into law on 3
February 2020. The major aim of the Act is to make the provisions of existing
tax legislations more responsive to tax reform. The Act amended the Companies
Income Tax Act, Cap C21, Value Added Tax Act, Cap. V1, Customs and Excise
Tariff, Etc. (Consolidation) Act, Cap. C49, Personal Income Act, Cap. P8,
Capital Gains Tax Act, Cap. C1, Stamp Duties Act, Cap. S8 and Petroleum Profit
Tax Act, Cap. P13, Laws of the Federation of Nigeria 2004.
One
of the highlights of the Act is the introduction of a new tax regime for
non-Nigerian companies with ‘significant
economic presence’ (“SEP”) in Nigeria. Section 4 of the Finance Act amended
Section 13(2) (c), (e) and (4)of the Companies Income Tax Act and empowered the
Minister of Finance to, by order; determine what constitutes the significant
economic presence of a company other than a Nigerian company.
In
exercise of the above powers, the Honourable Minister of Finance, Budget and
National Planning made the Companies Income Tax (Significant Economic Presence)
Order, 2020 (“the Order”).
The
Order sets out, among other things, the criteria for determining non-resident
companies with significant economic presence.
Significant Economic
Presence as Basis for Taxation of Foreign Companies
Section
13(2) (c), (e) and (4) of the Companies Income Tax Act(“CITA”) as amended by
Section 4 of the Finance Act provides as follows:
“The profits of a
company other than a Nigerian company from any trade or business shall be
deemed to be derived from or taxable in Nigeria:
(c) if it transmits, emits or receives
signals, sounds, messages, images or data of any kind by cable, radio,
electromagnetic systems or any other electronic or wireless apparatus to Nigeria
in respect of any activity, including electronic commerce, application store,
high frequency trading, electronic data storage, online adverts, participative
network platform, online payments and so on, to the extent that the company has
significant economic presence in Nigeria and profit can be attributable to such
activity;
(e) if the trade or
business comprises of furnishing of technical, management, consultancy or
professional services outside of Nigeria to a person resident in Nigeria to the
extent that the company has significant economic presence in Nigeria;
Provided that the
withholding tax income under this paragraph shall be the final tax on the
income of a non-resident recipient who does not otherwise fall within the scope
of subsection (2) (a)–(e).
(4)
For the purpose of subsection (2) (c) and (e), the Minister may by order,
determine what constitutes the significant economic present of a company other
than a Nigerian company.”
In
the light of the foregoing, the Companies Income Tax (Significant Economic
Presence) Order, 2020 (“the Order”) provides that for the purpose of the above
provisions of CITA, a non-Nigerian company shall have significant economic
presence in Nigeria where it derives gross turnover or income of more than ₦25
million or its equivalent in other countries, in that year, from any or
combination of the following –
“(i)streaming or
downloading services of digital contents, including but not limited to movies,
videos, music, applications, games and e-books to any person in Nigeria,
(ii) transmission of
data collected about Nigerian users which has been generated from such users’
activities on a digital interface including website or mobile applications,
(iii) provisions of
goods or services… directly or indirectly through a digital platform to
Nigeria, or
(iv)
provision of intermediation services through a digital platform, website or
other online applications that link suppliers and customers in Nigeria”;
In
determining the ₦25 million threshold
above, the activities of connected persons shall be aggregated. The Order
defines “connected persons” to mean associates or business associates where one
person is involved in the management, control or capital of the other or where
same person or persons are involved in the management, control or capital of
both enterprises.
The
Order also provides that where a non-resident company uses Nigerian domain name
(.ng) or registers a website address in Nigeria; or has a purposeful and
sustained interaction with persons in Nigeria, including reflecting the prices
of its products and services in Nigerian currency or providing options for
billing or payment in Nigeria currency, such company will be deemed to have
significance economic presence in Nigeria.
Furthermore,
a non-resident company will be deemed to have significant economic presence in
Nigeria if the company provides technical (including advertising services,
training and provision of personnel), professional, management or consultancy
services in return for payment to a person resident in Nigeria or to a
non-Nigerian company with a fixed base or agent in Nigeria except where such
payment is made to an employee of the person to whom the services are rendered
under a contract of employee as well as payments made for educational purposes
or by a foreign base of a Nigerian company.
The
Order defines “any other electronic or wireless apparatus” as used in Section
13(2)(c) of the Finance Act to include digital or related activities carried on
through satellite.
Implications of this
new tax regime
In
the light of the foregoing, non-resident companies with SEP are now required to
register for income taxes, prepare financial statements in respect of the
income generate from Nigeria; determine the profits that are attributable to
their activities in Nigeria, and file annual tax returns to the Federal Inland
Revenue Service (“the FIRS”) as provided by CITA.
On
the other hand, Nigerian companies are now required to deduct withholding tax
(“WHT”) from payments made for services provided by non-Nigerian companies.
Additionally,
the Order provides that foreign companies covered under any multilateral
agreement to which Nigeria is a party, or any consensus arrangement aimed at
addressing the tax challenges arising from the digitalization of the economy,
will be treated in accordance such agreement or arrangement from the effective
date in Nigeria.
This
is noteworthy since Nigeria is a member of the Organization for Economic
Co-operation and Development’s Inclusive Framework on Base Erosion and Profit
Shifting (“the OECD Framework on BEPS” or “the framework”). Thus, the
government recognizes that an agreement may be reached under the framework on a
unified approach for the allocation of taxing rights and profits pertaining to
SEPs.
However,
the framework’s current unified approach will only apply to groups with annual
revenues above €750 million ($840 million). Also, even where this threshold is
met, a group may still be excluded from the scope of the approach if its profit
margins are below a threshold which is yet to be determined. The implication of
the foregoing is that many non-resident groups that do not qualify to be taxed
under the current unified approach may continue to be taxed under the extant
SEP Order and the applicable rules.
It
is therefore advisable for non-resident companies who wish to rely on the any
tax treaties or consensual arrangement including the OECD Framework on BEPS, to
engage FIRS in this regard, to claim benefit under such arrangement.
Challenges
The
first challenge to be noted with respect to this tax regime is that while the
Order was published on 29 May 2020, the effective date is 3 February 2020 which
is the effective date of the Finance Act, having been signed by the President
of Nigeria on that day. The implication of this on transactions and/or payments
carried out before 29 May 2020 is still unclear. It is expected that the
Minister and/or FIRS will issue a circular to provide guidance in this regard.
It
is also not clear how the FIRS intends to enforce this Order with respect to
non-resident digital companies. While Nigerian customers of such companies may
be expected to make withholding tax (“WHT”) deductions and remit to FIRS; FIRS
may yet issue a circular to this effect.
Moreover,
neither the Finance Act nor the Order states how to determine the amount of
profits of a foreign digital company that will be taxed. While the OECD public
consultation document, of 13 February 2019 on Addressing the Tax Challenges of the Digitalisation of the Economy,
contemplates that only a portion of the profits from the transaction should be
taxed in the jurisdiction where the non-resident company has significant
economic presence, it is not yet settled whether this can be applied in Nigeria
in view of the arm’s length principle of profit attribution provided in the
Income Tax (Transfer Pricing) Regulation 2018 and other relevant legislations,
and reemphasized by the Tax Appeal Tribunal in the case of Prime Plastichem Nigeria Limited
v. Federal Inland Revenue Service, Appeal No.: TAT/LZ/CIT/015/2017, judgment delivered on 19 February
2020. Thus, fractional apportionment of profit may only apply to companies with
SEP, if a new legislation or guideline is introduced to allow such method of
determining taxable profit.
In
practice, when FIRS is unsure about the taxable profits of non-residents, an
assessment is based on a percentage (usually 6%) of the Nigerian sourced
turnover. It must however be noted that companies with SEP are not included in
the categories of non-residents that can be taxed in this manner. Nevertheless,
FIRS can still employ this method of taxation, relying on sections 30 and 65 of
CITA that allows FIRS to tax companies using a best of judgment assessment.
Conclusion
Non-resident
companies with a customer base in Nigeria are advised to consider how this new
tax regime affects them. While we await clarifications from FIRS on the gray
areas pointed out above, affected companies may, in the meantime, engage FIRS
on these issues. This will help to avoid disputes and possible double taxation.
Nigerian
companies are also advised to consider deducting WHT from payments made to
non-resident digital companies in view of this new tax regime.
Non-resident
companies with SEP in Nigeria are also advised to bear in mind the provisions
of relevant treaties and arrangements that may affect their tax liability when
negotiating agreements. Both resident and non-resident companies are advised to
seek expert opinion on specific issues that may affect them.
Tolu Aderemi LLM, CIArb, a
partner in the firm of Perchstone & Graeys is set to launch his new book titled
– “Arbitration Law & Practice in
Nigeria: The Practitioner’s Perspective”. The Book is a compendium of scholarly papers that
focus on contemporary topics which will deepen the practice of arbitration;
whether at a junior or mid-Senior level.
The book
focuses on topics that are unlikely to be contained in one single text. It is
therefore a Practitioner’s guide from very eminently qualified and senior
Arbitration practitioners such as Kamal
Shah (UK), Funke Adekoya SAN, Tunde Ajibade SAN, Doyin Rhodes-Vivour SAN, Hon.
Justice Nnamdi Dimgba, Tunde Fagbohunlu SAN, Osaro Eghobamien SAN, Chief Bolaji
Ayorinde SAN, Bode Olanipekun SAN, Tunde Busari SAN, Ikponwosa Omigie (Company
Secretary, NAPIMS),Prof Alero Akeredolu, Funmi Roberts and Prof Olawuyi.
My Lord, Justice of the Supreme Court, Hon Justice Olu Ariwoola JSC OFR
and the global President, Chartered Institute of Arbitrators (CIArb), Francis
Xavier both wrote the FOREWORD (from the Bar and the Bench) to the book.
The Book promises to be a
valuable resource tool for Arbitration Practitioners and is a welcome
contribution to the body of knowledge on the topic in Nigeria. The Public
Presentation is set to hold on the 20th of August, 2020, and everyone
is urged to be on the look-out for the book.
Over the last 2 – 5 years, the
beauty industry in Nigeria has witnessed a lot of new entrants, consisting of
both small businesses and well established brands. According to Temitope
Mayegun of Avila Natural Products, reports state that the global cosmetic
product market was around $532 billion in 2017 and is expected to reach
approximately $836 billion in 2024 with an inclusion of the Nigerian beauty
market in 2018 estimated at N500
Billion annually.
Also according to Kosmetica
World, Nigeria has become a destination of choice for investment by international
companies that aim to seize the opportunities presented by the beauty and
personal care markets.
This definitely means that the
beauty industry in Nigeria is set to witness more growth and a continuous flow of
injected capital by both big and small players within the industry. As much as entrepreneurs
and businesses are willing to come into the business, it is important to note
the following legal tips.
1. Register
Your Business
You
should register your business at the Corporate Affairs Commission either as a
Sole Proprietor or Limited Liability Company. Benefits of registering your
company include; opening bank accounts for your business, getting loans, and builds
customer confidence.
2. Trademark
Your Name and Logo
Register
your trademark to help protect the name and logo of your brand. This ensures
you have exclusive rights over your name and logo and also provides protection
from infringement.
3. NAFDAC
Registration
Register
your product with NAFDAC (National Agency for Food and Drug Administration and Control).
NAFDAC has displayed on its website, guidelines and regulatory documents for
the manufacture, importation, distribution, sale and use of cosmetic products
in Nigeria.
4. Keep
Records
Keep
records of all transactions and treatment procedures given to clients. This can
also help save your business from reputational damage should a client bring a
false claim of injury resulting from use of your products.
5. Maintain
Standards
Ensure
your product meets the requisite standards, recently a popular cosmetic brand
was in the news because some of the clients reported complications following
the procedures.
As the cosmetic industry
continues to grow, there are a couple of legal issues that may crop up for
players in the industry, should you have any questions, do post a comment or
contact via email at AOCSolicitors@gmail.com
In order to discourage hostile work environment, common law sides with an employee who has been subjected to a forced or compulsory resignation, especially where it is clear that the employer has pressured the employee into involuntary resignation without any reasonable ground.
Whenever a resignation is not voluntary, the #law views it as a kind of unlawful #termination known as constructive dismissal or constructive discharge. In C.B.N. v. Aribo (2018) 4 NWLR (Pt. 1608) 130,the Supreme Court held as follows:
“A forced or compulsory resignation by an employee amounts to constructive dismissal ……. In this case, the respondent did not voluntarily resign. His employer (the bank) advised him to resign after the 1st appellant revoked the bank’s licence to conduct foreign exchange and fined it for illegal foreign exchange transaction. In the circumstance, the respondent’s resignation amounted to a constructive dismissal.” (P. 172, paras. C-E)
Constructive dismissal is a type of disengagement which arises from the involuntariness of the employee’s decision to leave an employment, which entitles the employee to sue the employer after exiting the employment. According Hon. Justice Kanyip in Balonwu v. Voluntary Service Overseas (VSO) International, “constructive dismissal/discharge once proved evinces a poor and unfair labour practice on the part of the employer”.
2. When Can Constructive Dismissal Arise?
From notable judicial decisions, constructive dismissal may arise in two circumstances resulting in involuntary resignation:
1. When an employee resigns on the advice or request of the employer; or
2. When an employee is forced by the employer to resign.
Management’s advice to an employee to resign must be proved by credible evidence and this can be established through the email or memo or report of a panel. For instance, in Mrs. Vivien Folayemi Asana v. First Bank of Nigeria Ltd, the judgment of which was delivered on 9th October 2018, the National Industrial Court held thus:
“By Exhibit C5/D3 (i.e. Claimant’s letter of resignation and Exit Form), the claimant stated thus:“Further to the request that I should resign, by Management of First Bank of Nigeria Ltd. I hereby tender my letter of resignation”. (words in parenthesis supplied for clarification).
A worker may be forced into #resignation where the employer’s action or action is #discriminatory, oppressive, humiliating or intolerable and the #employee has no choice but to resign. In Mr. David A. Fadipe v. Cedarcrest Hospitals Limited, the Court held that constructive dismissal means the attempt by an employer to have the employee resign, rather than outright firing the employee.
For instance, while relying on the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC, my lord Justice Kanyip, President of the National Industrial Court, in the Balonwu v. Voluntary Service Overseas (VSO) International, held as follows:
“From Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd, the employer need not have asked the employee to resign. The behaviour of the employer is sufficient once it is intolerable or heinous that the employee has no choice but to resign. The employer must have created such working conditions or so changed the terms of employment that the employee has little or no choice but to resign. It must be noted though that the claimant’s case in the instant case is not that the employer changed the terms of employment. Where the employer makes life extremely difficult for the employee, to attempt to have the employee resign, that will amount to constructive dismissal.
Below is a list of unbearable behaviours or circumstances which the courts have held to justify an employee to resign and make a claim for constructive dismissal on the ground of involuntary resignation:
– Actual or repudiatory breach of employment contract such as employer’s unilateral reduction of salary, demotion, non-payment of salaries;
– Victimization, witch-haunt, vendetta, retaliation, targeting the victim for whistleblowing or filing a complaint or grievance procedure against a colleague or superior;
– Discrimination on ground of sex, age, religion, ethnicity or nationality, disability, etc;
– Gender harassment, for example telling female colleague that “this is a boys club” or a male colleague that “why do you like ladies’ job?”
– Racial harassment in form of racial slurs, insults, jokes, disgust, degrading comments and intolerance of difference or other form of racial harassment;
– Personal harassment such as inappropriate comments, offensive jokes, personal humiliation, critical remarks, ostracizing behavious, intimidation tactics, or any other behavior that creates intimidating and offensive work environment for the victim.
– Physical or verbal harassment or workplace violence (such as physical attack or destroying something to intimidate the victim) or threat of violence (such as shaking fists at the victim’s face);
– Power or psychological harassment in form of excessive or impossible targets above employee’s ability or resources, demeaning demands far below the employee’s designation, intrusion of personal life such as unreasonable tracking or monitoring of personal device, belittling acts, discrediting or challenging everything the victim says or does, cyberbullying the victim,
– Third party harassment, which involves someone from outside of the organization, usually vendor, supplier, customer or client of the company who is friends with a colleague or boss (i.e. the perpetrator).
Anyone one of the above (happening alone) or a collection of some of the above circumstances are enough to justify immediate resignation and a claim for constructive dismissal by the victim.
Whatever an employee finds unbearable or intolerable, the employee is required to show that the behaviour of the employer is so intolerable or heinous that the employee has no choice but to resign. The employer must have created such working conditions or so changed the terms of employment that the employee has little or no choice but to resign.
While relying on the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC, my lord Justice Kanyip, President of the National Industrial Court, in the Balonwu v. Voluntary Service Overseas (VSO) International, held as follows:
“From Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd, the employer need not have asked the employee to resign. The behaviour of the employer is sufficient once it is intolerable or heinous that the employee has no choice but to resign. The employer must have created such working conditions or so changed the terms of employment that the employee has little or no choice but to resign. It must be noted though that the claimant’s case in the instant case is not that the employer changed the terms of employment. Where the employer makes life extremely difficult for the employee, to attempt to have the employee resign, that will amount to constructive dismissal. The employee may resign over a single serious incident or over a pattern of incidents. But generally, the employee must have resigned soon after the incident?”
3. How Does an Employee Prove Force, Coercion or Involuntariness of a Resignation?
It is sometimes difficult to prove that an employee has been forced to resign. Circumstantial evidence may help but it is better to have direct evidence. For instance, where there is an email or memo or a report of investigation from the management requesting, advising or directing an employee to resign, the job of proving involuntariness will become easy. It is important for all employees to keep proper record of email communication, especially on disciplinary process.
Sometimes, also, employees may assist the court in setting out in their respective resignation letters, the background facts that are relevant to their decision to resign. For instance, in Mr. Charles Ughele v. Access Bank Plc, thejudgment of the National Industrial Court, which was delivered on10th February 2017, the National Industrial Court held thus:
“The claimant did not leave anyone in doubt that he resigned involuntarily. Exhibit C4 (same as Exhibit D4) is the Exit Form. Against the reasons for exit, the claimant ticked “redundancy” under “involuntary”; and under question 1 at page 2, to the question, “What are your primary reason(s) for leaving?”, the claimant answered, “Management decision to create room for new people to work with new GM”.
It is important for the employee to have clear and credible evidence to show the employer’s request, advice or directive to the employee to resign or some other unpleasant actions of the management which, indeed, forced the employee to resign.
4. When Must the Employee Resign? What happens if resignation is delayed?
In order to successfully make a claim for constructive dismissal, the victim must have resigned immediately or within a reasonable time after experiencing the unpleasant incident. Delay in putting a resignation letter may amount to acquiescence and, consequently, destroy the chance of claiming for constructive dismissal.
The case of Western Excavations v. Sharp [1978] 1 All ER 713 points to the fact that there must be a repudiatory breach (actual or anticipatory) on the part of the employer, which must be sufficiently serious to justify the employee resigning; the employee must resign in response to the breach; and the employee must not delay too long in acting on the breach.
Also, in Joseph Okafor v. Nigerian Aviation Handling Company Plc, the judgment of which was delivered on 25th April 2018, National Industrial Court held thus:
“…to be able to succeed in a claim for constructive dismissal, the claimant must show that he resigned soon after the incident(s) he is complaining about.”
According to Justice Kanyip, President of the National Industrial Court, in the Balonwu v. Voluntary Service Overseas (VSO) International:
“The employee may resign over a single serious incident or over a pattern of incidents. But generally, the employee must have resigned soon after the incident?”
It is difficult to set a definite timeline for all cases, as every case will be determined on its merits. If an employee resigns within a reasonable time after becoming a victim of unbearable and unpleasant circumstance, the court will grant his or her claim for constructive dismissal.
For instance, in the Balonwu’s case, the employee (a #Country Director of the Voluntary Service Overseas (VSO) International) resigned 3 days after the unbearable event she complained about and the #Court held that the 3-day period wasn’t too long to defeat her claim for constructive dismissal. Specifically, the Court held as follows:
“The point in these cases is that for a claim for consecutive dismissal/discharge (for that is what the claimant’s case actually is in the instant suit) to succeed, the claimant must have resigned so soon after the employer’s act. The defendant argues that the 3 days in between the date of Exhibit C5/D3 and when it was received is too long a period for the claimant’s claim for forceful resignation (constructive dismissal/discharge) to be hinged on. Is this the case? I do not think so. Three days is not too long a period in this regard especially as the defendant made no attempt before now to dispute the fact that the claimant alleged that she was requested by the defendant to resign her employment. The defendant was until now silent on that fact. I accordingly believe the claimant that she was requested by the defendant to resign her employment…I accordingly hold that the claimant has made out a case for constructive dismissal/discharge. Relief (1) accordingly succeeds and so is hereby granted….…”
A good example of delayed resignation can be found in Suit No. NICN/LA/291/2016 Joseph Okafor v. Nigerian Aviation Handling Co. Ltd. (delivered by Justice B.B. Kanyip in Lagos on 25th April 2018) as follows:
“……..the claimant’s resignation took effect from 31st December 2015. I agree with the defendant that the acts for which the claimant complains and hence makes a case for constructive dismissal were acts that occurred between 2009 and 2014. This means that it took a year for the claimant to resign because of the said acts. This is tantamount to waiver or condonation by the claimant. It cannot even be that the claimant showed that he resigned soon after the incident(s) he is complaining about as Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (supra) enjoins. As it is, therefore, the claimant has failed to prove his case. The case fails and is hereby dismissed.”
5. What is the Remedy for Constructive Dismissal?
Once constructive dismissal is proved, general #damages become awardable. The amount to be awarded will be based on the facts of each case. Even in the case of B.E.D.C. Plc. V. Eseluka (2015) 2 NWLR (Pt. 1444) 411 where the plaintiff did claim wrongful dismissal but lack of notice of dismissal, the Court of Appeal found that the plaintiff was constructively dismissed and held at page 439 as follows:
“As I have imputed legal notice of the respondent’s dismissal by end of April 2000, then the respondent was only entitled to his salary from the date he was interdicted on half pay till end of April 2000 when he received constructive notice of his dismissal. That is the discretionary resolution that accords with the law, equity and common sense. I hereby order that the respondent be paid his full salaries and allowances due to him from 22nd October 1996 when he was put on half pay till April 2000.”
In Mrs. Vivien Folayemi Asana v. First Bank of Nigeria Ltd, delivered on 9th October 2018, Honourable Justice B. B. Kanyip, PhD of the National Industrial Court awarded N2,000,000 (Two Million Naira) as damages for constructive dismissal, which was deducted from the claimant’s outstanding staff loan.
In three cases, Mr. Charles Ughele v. Access Bank Plc delivered on 10th February 2017, Mr. David A. Fadipe v. Cedarcrest Hospitals Limited delivered on 8th July 2020 and Ms. Lucia Balonwu v. Voluntary Service Overseas (VSO) International delivered on 22nd July 2020, Hon. Justice B.B. Kanyip awarded the sum of N1 Million only as general damages for the constructive dismissal of the claimant in each of those cases.
It should be noted that the old judicial authorities which decided that the measure for damages for unlawful dismissal is the amount representing the length of notice the employee would have be entitled to are all inapplicable since the advent of the Third Alteration of the 1999 Constitution.
The upcoming NBA Annual
General Conference is just weeks away and there are a few exciting things you should
know about the Conference. The first is that this is the 60th
Anniversary of the Annual General Conference and it’s the NBA’s 1st
Virtual Conference.
Also registration for the
conference is absolutely free and the registration process is quite easy. You
simply log on to www.conference.nigerianbar.org.ng
and hit the registration button.
Two other things you should
know is you can look forward to stimulating sessions and dynamic engagement. We
are looking forward to an exciting Annual Conference and are glad you are going
to be part of it.
As Lawyers are gearing for
the 60th Annual General Conference of the NBA and the very first
virtual conference, let’s go back memory lane to the 2019 Annual General Conference
which still fills us with excitement from just thinking about it.
The 2019 AGC was one of a
kind and has the NBA President Mr. Paul Usoro SAN promised, it raised the bar
for subsequent conferences. For one it was amazing to have the President of the
International Bar Association, Mr. Horacio Bernardes Neto in attendance.
The AGC featured over 40 amazing
technical and show case sessions and introduced several innovative ideas. The
musical “Fela and The Kalakuta Queens” also had lawyers in awe.
Also the party had
superstars like Teni the Entertainer and Wande Coal thrill the audience. No
doubt the NBAAGC2020 is going to be more amazing and we welcome lawyers to
register via this link www.conference.nigerianbar.org.ng
You can also watch one of the NBAAGC2019 sessions below:
