by Legalnaija | Jun 30, 2020 | Uncategorized
is an expression of dissatisfaction made to an organisation, related to its
product or service. Complaints management is, therefore, the aggregate of ways,
tools and processes an organisation uses to collect, analyse, and act on
customer dissatisfaction. In
practice, customer complaints may take one or more of the following categories:
complaints alleging failure
of service delivery, and
complaints with potential
The complaints may arise from issues such as delay in execution; poor
customer service; failure to carry out lawful instructions; negligence;
mistakes in the computation of charges/fees; and system errors or technological
It has been noted that complaints are a critical element of consumer
contact management. Customers are rarely as motivated to speak to
organisations as they are when something has gone wrong. While no one likes to
hear what they have done wrong, knowing how to receive, manage and resolve
customer complaints can yield significant insights that can help organisations
meet the current and future needs of their customers.
Beyond making individual
customers happy by addressing their problems, complaints can also be leveraged
upon by an organisation to enhance product development, mitigate risk, and find
opportunities for growth and innovation. Hence, while customer complaints are
often seen as negative events that successful organisations should avoid, forward-looking
organizations see them as vital inputs for enhancing customer satisfaction and
Complaints Management Framework of the Nigerian
Complaints and associated issues of product and service reliability are
often focused on by regulators because of their potential impact on a market’s
dynamism, fairness, transparency and efficiency. The
Investments and Securities Act (ISA) gives the Securities and Exchange
Commission (SEC) the responsibility to maintain efficient, transparent and
effective capital markets in Nigeria. This includes the responsibility of
ensuring that investments are not violated, misused or mismanaged in any way.
As a result, the SEC has issued Rules relating
to the complaints management framework of the Nigerian Capital Market for all
entities operating in the capital market, including the SEC. This means that
the SEC Complaints Management Framework Rules are applicable to Self-Regulatory
Organisations (SROs), recognized Capital Market trade groups, Capital Market
Operators (CMOs) and listed public companies.
The overreaching aim of the Rules is to implement a framework for
customer (investor) complaint management in the capital market to entertain
complaints arising out of issues that are covered under the following:
a. the Investments and Securities Act, 2007 (ISA),
b. the SEC Rules and Regulations made pursuant to the ISA,
c. the rules and regulations of Securities Exchanges; and
d. the guidelines of recognised trade associations.
can only solve the problems they know about, so organisations that don’t
provide opportunities and incentives for customers to provide feedback are
missing a vital component in their quest for constant improvement and enhanced
customer experience. The SEC Rules
therefore require all entities in the Capital Market to establish complaints
management policies that are fair, impartial and objective for the handling of
complaints made in respect of all forms of complaints against operators by
client, between operators, against regulators and SROs, and trade manipulation,
accounting frauds, Ponzi schemes.
Responsibility for implementation and monitoring compliance of such
policy is vested in individual company’s/firm’s senior management. The
‘relevant Competent Authority’ is to ensure that Companies/firms have a
complaints management function which enables complaints to be investigated
fairly and possible conflicts of interest to be identified and mitigated, and
properly documented. The term ‘Competent Authority’ in relation to these rules
means SROs and recognized Capital Market trade associations.
It is pertinent to note that not all complaints are qualifying of
treatment under the Framework. For instance, complaints against unlisted,
delisted, wound up, liquidated or ailing companies fall outside the purview of
this Framework. Also not to be treated under the Framework are complaints that
are sub-judice or under the purview of other regulatory bodies.
It is also pertinent to note that a complaint must qualify as such in
order for it to be entertained. This is important in order to better manage
resources in the complaint management process. Hence, the following ‘complaints’
are not considered as deserving of attention or resolution:
a. Complaints that are incomplete or not specific.
b. Allegations without supporting documents.
c. Offering suggestions or seeking guidance or explanation.
d. Seeking explanation for non-trading of shares or illiquidity of shares.
e. Not satisfied with trading price of the shares of the companies.
f. Non-listing of shares of private offers of securities by private
g. Disputes arising out of private agreement with companies or
h. Any other matters as may be determined by the SEC from time to time.
There is, however, no yardstick for determining when a complaint is
frivolous. In the absence of guidance on acceptable forms of a complaint,
companies/firms have discretion on what they consider to be incomplete or frivolous
complaints. There is the possibility that such discretion may be abused in
cases where the affected firm is more concerned with reputational damage
control than customer satisfaction.
The SEC complaint resolution framework is multi-layered, such that
complaints by clients are to be resolved by individual companies/firms within
10 days; complaints between CMOs are to be resolved by the relevant Competent
Authorities within 20 days; while the following complaints are to be referred
to the SEC for further investigation, and ultimately to the Administrative
Proceedings Committee (APC) of the SEC:
a. complaints against Competent Authorities;
b. complaints against operators by SROs/Regulator;
c. Trade manipulation, accounting frauds, Ponzi schemes and such other
complaints as may be determined by the SEC from time to time.
Complainants not satisfied with resolutions /decisions reached by SEC
reserve the right to appeal to the Investments and Securities Tribunal (IST)
provided there is full compliance with the ISA.
Finally, the Rules require every SROs, recognized Trade Associations,
CMO and public company to maintain an electronic Complaints Register, which
shall contain details such as name of the complainant, date and nature of the complaint,
and remarks/comments. The Register is to be updated regularly, and status
reports of the complaints are to be forwarded to the SEC quarterly. The
importance of a Complaints Register lies in the fact that a successful
resolution of complaints is almost as important as ensuring that the reason for
the complaint does not recur. With customers lodging
complaints across a wide variety of communication channels (such as email,
customer response surveys, and social media), many organisations have
difficulty keeping track of all the information. It is not unusual to find
these complaints piling up in the personal email accounts of frontline workers
or customer experience representatives. Without the opportunity to engage in
rigorous analyses of customer complaints, organisations lose the opportunity to
mine the deep insights that complaints can provide about the customer
Appraisal of the Complaints Management Framework
It appears that the SEC Complaints Management Framework of the Nigerian Capital Market is more
concerned with complaints about breach of a regulatory rule as against
complaints that are on internal policies or practices of individual capital
market operators. But while SEC, the regulator, may be more concerned with the overall
health of the market, individual capital market operators should leverage on
the Framework for customer service performance improvement.
Prior to the Complaints
Management Framework of the Nigerian Capital Market, it was not uncommon for
aggrieved customers/investors to engage law enforcement agencies like the Nigerian
Police or the Economic and Financial Crimes Commission (EFCC) to resolve
disputes with capital market operators, especially where the dispute involved
criminal allegations, such as embezzlement or misappropriation of funds of an
investor. It is to be noted that in involving the Police or EFCC, complainants
are often motivated by the perceived potential for quick results/resolution. The
Complaints Management Framework of the Nigerian Capital Market is intended to
discourage such tendencies, for obvious reasons. The new Framework is therefore
expected to prevent complaints from becoming disputes that might take a long
time to resolve.
It is suggested
that the prevention of complaints from becoming disputes should have formed the
basis of the Capital Market Complaints Management Framework, rather than the
resolution of active disputes in the capital market, which is already well
provided for under extant provisions of the ISA. Otherwise, the Complaints
Management Framework will only add to already existing dispute resolution
channels, such as the SEC Administrative
Proceedings Committee (APC), Investment
and Securities Tribunal (IST) and even the courts. Apart from potential
jurisdictional conflicts, the current system will only prolong the timeframe
for resolving disputes, exhaustively. As a result, the Framework should have been more focused on
complaint management as it relates to internal processes and practices of individual
capital market operators, as opposed to complaints on the laws, rules and
regulations governing the market.
Appreciating the difference
between a ‘complaint’ and a ‘dispute’ is important in delineating appropriate
resolution channels in the capital market. The ISA appreciates this difference,
as it uses ‘complaint’ for matters that are to be referred
to the APC for determination; and ‘dispute’ for matters that the IST is to
handle. Where a party files a
complaint at SEC against an operator for any securities transaction, the
complaint is referred to the Administrative Proceedings Committee for
determination. The decision of the Committee is appealable to the Investment
and Securities Tribunal (IST). The Investment and Securities Act 2007
prescribes that all actions must be concluded within 90 days at the IST. The
decisions of the IST are appealable to the Court of Appeal and subsequently to
the Supreme Court. It is unclear why the Complaints Management Framework is considered by the SEC a necessary
appendage to this statutory dispute resolution framework.
It is suggested that the Complaints
Management Framework should be redesigned to focus more on prevention of complaints from becoming disputes in the capital market.
This means an increased focus on the internal policies of organisations on
complaint management as against regulatory breaches. It is not realistic to expect CMOs to develop and
implement policies on all forms of complaints in the Capital Market. One way to
do this is to be clear on what qualifies as a complaint to be treated at the
individual company’s level and also make clear that the complaint management
policies of companies/firms should be tailored towards addressing complaints
about the individual internal processes of the companies/firms.
There is also the issue of awareness on the existence of the Framework
and of individual companies/firms of the customer complaint policies. The SEC
Rules should contain a provision that mandates companies/firms to notify their
customers and stakeholders of their customer complaint policies.
Photo 1 Credit – www. dailynigerian.com
by Legalnaija | Nov 1, 2018 | Uncategorized
How much does a Nigerian
senator earn as monthly salary? What are the allowances such a senator is
entitled to? How many Nigerians know the amount of money spent on the health of
the President annually? Can you state with certainty the total amount of money
recovered from corrupt public officials so far by the Economic and Financial
Crimes Commission (EFCC)? What is security vote and how much is a Nigerian
governor given as security vote? Are Nigerians afforded a breakdown of the
expenditures of such security votes by Nigerian governors? Sadly these are some
of the many questions that Nigerians cannot answer about the government and its
agencies. They are questions that require many months of exercise, prayers and
strategy to commence the voyage of discovering their answers irrespective of
the fact that they involve public servants and public funds, and which
information ordinarily should be easily accessible by all Nigerians.
The issue of holding the
government accountable to Nigerians with regards to how its arms and agencies
disburse and use public funds, is very key if all Nigerians are to enjoy the
dividends of democracy; and witness the prudent application of our resources
for economic and infrastructural growth of the country.
More so, Nigerians must be
able to demand from every public institution, information bordering on the
workings and finances of such institutions and have these information supplied
to them with dispatch. This should be the beauty of practicing a democracy- a
system of government where the people, as the sovereign, elect political
leaders to supervise public institutions and disburse public funds on their
With the kind of powers
and obligations entrusted to government and its agencies by the sovereign- the
people, it is, to say the least, extremely important that the people hold these
officials of government accountable for all their activities in either the
government or in public service.
Officials of the Nigerian
government cannot be held accountable if the government is run by stealth, or
its activities, policies, expenditures, etc, are unascertainable by the people.
This is where the Freedom of Information Act (FOIA) 2011, comes in very handy.
Prior to the enactment of
the FOIA, it was virtually impossible for ordinary Nigerians and
Non-governments Organisations to demand from public institutions any
particulars of their activities and secure the information sought. The people
were incapable of ascertaining what their monies were used for, the particulars
of disbursement and expenditure of public funds and the manner and basis in
which recruitments for public service were conducted. We were left at the mercy
of the media which in many circumstances provided us with inadequate or
OF THE ACT:
Section 1 of the FOIA
establishes the right of all Nigerians to have access to all information or
records of public nature that emanates from or is in the custody or possession
of any public official. The Section goes on to provide that an applicant for
any such public information need not demonstrate any specific interest in the
information sought and can proceed to a competent court to ensure such a
request is complied with. This therefore removes all erstwhile embargoes with
regards to locus standi that may have
existed in the past against any such applicant for public information.
The FOIA in its section 2
imposes on all public institutions the obligation of recording and storing
information about its activities, operations and businesses. The Act also directs
all such institutions to publish certain information in such a way that the
information “is widely disseminated and
made readily available to members of the public through various means,
including print, electronic and online sources; and at the offices of such
The framers of the FOIA
intended that access to public information should be made as easy and simple as
possible. This is why under the Act, an applicant can make an oral application
for information of a public nature and the authorized official of such public
institution to which such an oral application is made is required by law to
reduce the application into writing, and afford the applicant with a copy of
the written application.
More so, illiteracy and
other forms of disability that preclude a person from making an application in
person for public records or information does not ipso facto disentitle such a
person from accessing such information under the Act. This is so because the
law allows such a person to make application under the Act through a third
The Act also stipulates a
timeframe of seven (7) days within which an applicant’s request for information
is to be attended to by a public institution. The seven (7) days begins to run
from the moment an institution or public official receives an application for
information. The public institution is to make available the information sought
by an applicant or communicate to such an applicant via written notice, its
reasons for refusing to afford the applicant with part or all the information
Where a public
institution receives an application for access to information and which
information it considers another public institution to have greater interest
in, the former shall transfer the application for such information to the
latter and the applicant shall be notified of such transfer via a written
notice in accordance with the FOIA.
Also imperative to note
is the fact that under the FOIA, where a case of wrongful denial of access to
public information is established, the defaulting officer or institution
commits an offence and is liable on conviction to a fine of five hundred
thousand (N500,000.00) naira.The FOIA also makes it a
criminal offence punishable with a minimum sentence of one year imprisonment
for any officer or head of any government or public institution to which it
applies, to willfully destroy any records kept in his custody or attempt to
doctor or otherwise alter same before they are released to any person, entity
or community applying for it.
It is also important to observe that access to
public information under the FOIA is not absolute. As such, the Act prescribes
circumstances when a public official or institution will be permitted, or is
mandated to deny an applicant access to information.
Accordingly, where an
applicant requests for information that may be injurious to the conduct of
international affairs and the defence of Nigeria, the public official or
institution to which the request is directed may decline to grant the request. More so, a request under
the Act may be rightfully refused where the information sought for borders on
law enforcement and investigation that pertains to, is authorized by, or
pursuant to the administration or enforcement of any Act, Law or Regulation.Certain information
requested for may also not be availed the applicant where such information is
of a personal nature and is exempted under the Act.
A public official or
institution is also obligated to deny request for information that relates to
trade secrets and commercial or financial information where such disclosure may
cause harm to the interests of a third party; or where such information
sought can be reasonably expected to interfere with contracts or negotiations
of a third party;
or information with regards to proposals and bids for any contract, grants, or
agreement, and information which if disclosed is capable of frustrating
procurement or give unfair advantage to any person.
Exemptions with respect
to information accessible by the public also include professional and
privileged communications protected by law, and information which
contains course or research materials prepared by faculty members.
A public institution may
also deny an applicant’s request where information sought includes test
questions, scoring keys or other examination data used to administer an
academic examination or determine the qualifications of an application for a
license or employment; or architects’ and
engineers’ plans for buildings not constructed in whole or in part with public
funds and for buildings constructed with public funds, to the extent that
disclosure would compromise security; and library circulation
and other records identifying library users with specific materials.
The rights created for
members of the public with respect to access to public information do not
extend to certain documents and materials. That is to say all published
materials or materials available for purchase by the public; library or museum
materials made or acquired and preserved solely for public reference or
exhibition purposes; or materials placed in the National Library, National
Museum, or non-public section of the National Archives of the Federal Republic
of Nigeria on behalf of any person or organization other than a government or
It would seem that
irrespective of all the exemptions to access to public information provided for
under the FOIA, a public institution or official who a request for information
is directed to under the Act is still obligated to afford such an applicant
with the information sought as long as the public interest in disclosing the
information outweighs whatever injury that disclosure would cause.
It is also imperative to
express that where an applicant requests for information which is partly
constituted of information exempted from disclosure under the FOI Act, any part
of the information sought which is not exempted shall be disclosed by the
public institution or official.
The beauty of access to
information under the FOIA is that the framers of the law were at all times
conscious of the fact that obtaining certain public information may prove to be
very difficult for applicants especially as public institutions and officials
may put obstacles on the road to access such information where the information
may expose fraud, financial recklessness or other forms of illegality committed
by a public institution or official. As such, it is a criminal offence to
willfully destroy or doctor any public records requested for by an applicant; and where a case of
wrongful denial of access to information is established, the defaulting officer
or institution is liable to conviction for a criminal offence. More importantly, any
applicant who has been denied access to any public information may apply to the
High Court for judicial review.
The FOIA also makes
provision for the protection of public officials from any criminal or civil
liabilities that may arise from the disclosure, in good faith, of any
information pursuant to the Act.
With the enactment of the
FOIA, a subtle but extremely significant protection seems to have come into
existence in favour of whistleblowers who, without
authorization, disclose to any person an information which is reasonably
believed to show a violation of any law; mismanagement, gross waste of funds,
fraud, and abuse of authority; or a substantial and specific danger to public
health or safety.
This protection also extends to any person who receives such information
disclosed by such a public official without authorization, even where the
receiver further discloses the information, as no civil or criminal proceedings
can lie against such a person.
The hub of the FOIA is to make information in institutions where
public funds are expended or in which the public has other forms of interests,
easily available to the public. Under the FOIA therefore, private institutions
that utilize public funds also fall under the definition of “public
Section 31 of the FOIA defines a public institution as “any legislative, executive, judicial,
administrative or advisory body of the government, including boards, bureau,
committees or commissions of the State: and any subsidiary body of those bodies
including but not limited to committees and sub-committees which are supported
in whole or in part by public-fund or which expends public fund and private
bodies providing public services, performing public functions or utilizing
public funds.” (Underlining mine for emphasis).
It therefore follows that institutions like the Nigerian Bar
Association, Nigerian Medical Association, Nigerian Labour Congress etc, are
public institutions under the FOIA as they provide public services or perform
public functions or utilize public funds. The writer therefore commends the
erudite and distinguished Professor of law- Ernest Ojukwu SAN for recently
taking the bold step to make a freedom of information request to the NBA in
respect of information that should be ordinarily available to all legal
practitioners in Nigeria and indeed the general public.If
all Nigerians are on the qui vive and
learn to probe the finances and workings of public institutions, the country
would be better-off.
THE FREEDOM OF INFORMATION ACT, 2011 APPLICABLE TO STATES?
The Constitution of the
Federal Republic of Nigeria (CFRN) provides that the
legislative powers of the Federal Republic of Nigeria shall be vested in the
National Assembly, while that of a State of the Federation shall be in the
House of Assembly of such a State.
Accordingly the National
Assembly is empowered by the grundnorm to
make laws for the peace, order and good government of the Federation with
respect to any matter included in the Exclusive or Concurrent Legislative List
set out in Part I and Part II of the Second Schedule to the CFRN respectively,
while a House of Assembly of a State has the imprimatur to legislate on all
matters outside the Exclusive Legislative List, or those contained in the
Concurrent Legislative List.
It goes without saying
therefore that both the National Assembly and State House of Assembly are
competent to make legislations on matters as per the items contained in the
Concurrent Legislative List. However, if any Law made by a House of Assembly is
inconsistent with an Act of the National Assembly, the Act of the National
Assembly shall prevail and the inconsistent Law of such a House of Assembly
shall be null to the extent of its inconsistency- this is the core of the well
established doctrine of covering the field. 
The FOIA was enacted by
the National Assembly in line with its powers derived from the CFRN and
particularly over the item in Paragraph 4, Part II of the Second Schedule to
the CFRN. The said Paragraph of the Concurrent Legislative List provides that:
“The National Assembly may make laws for the Federation or any part
thereof with respect to archives and public records of the Federation.”
Worthy of note also is
that Paragraph 5, Part II of the Second Schedule to the CFRN reads as follows:
House of Assembly may, subject to paragraph 4 hereof, make laws for that State
or any part thereof with respect to archives and public records of the
Government of the State.”
number of commentators have postulated that by the provisions of the CFRN, the
FOIA having been validly made by the National Assembly covers the field for all
States in the Nigerian Federation, and it would be superfluous for any State to
embark on a process of enacting any law in respect of matters covered by the
FOIA as such a law would be subordinate to the FOIA, and indeed inoperative
wherever it conflicts with the said Act. By this position, an applicant for
information can direct his request to a State Government or any of its agencies
and any of those public institutions will still be mandated to avail the
applicant with the information sort under the FOIA. The Court of Appeal has
also ruled that the FOIA applies to all States of the Federation.
However, the above
argument did not find favour with the Court of Appeal in EDOSACA v. Osakue & Ors
(2018) LPELR-44157(CA) where, in an apparent volte-face, it held that:
said and done, a perusal of the Freedom of Information Act will not, in my
humbly view, project the intention that it is meant to cover the field. In
other words, it is nowhere indicated or prescribed in the whole gamut of the
Act that it shall apply both to the central and State governments…This no doubt
presupposes that the Freedom of Information Act, though a noble and worthwhile
piece of legislation, does not have automatic application to the states as
submitted by learned counsel for the Respondents. It therefore behoves any
State interested in adopting the provisions of the Act in its territory to set
the necessary machinery in motion for the enactment of a similar law by the
House of Assembly of the State.” Per Oseji, JCA (Pp.21-24, paras. D-C).
writer’s opinion in respect of the Court of Appeal decision in EDOSACA
v. Osakue & Ors (supra) is consistent with the dissenting view
expressed by Justice Moore Aseimo Abraham Adumein JCA, especially as he held
that the Freedom of Information Act, 2011 has already covered the field in
respect of access by ‘any member of the public’ to public records, subject to
the exceptions set out in the Act. He therefore invoked and relied on the
doctrine of covering the field in giving his dissenting opinion to the extent
that the FOIA is applicable to all States of the Federation.
are hopeful that at least one of the conflicting decisions of the Court of
Appeal will be tested at the Supreme Court so this issue would be laid to rest.
With the advent of the
FOIA, all Nigerians can request from any public institution, any statistics or
information they require, and this demand must be attended to by the said
institution. In fact any public official who denies affording any Nigerian with
any public information requested for in a manner inconsistent with the Act
risks being convicted for a criminal offence.
The Nigerian people have
therefore been given a platform to contribute to the fight against corruption
in government and its agencies. We can now engineer the change we want to see
in our society via appraising the actions of public institutions and public
servants, and blowing whistles where there seems to be any form of corruption
of public office.
While we await the
verdict of the apex Court on the issue of applicability of FOIA to States,
perhaps it may be wise for all well-meaning Nigerians and non-profit
organizations interested in securing accountability from government and its
proxies to lobby State Houses of Assemblies across the Federation in a bid to
ensure they adopt and enact the FOIA at their State levels so one can be
certain the objective and spirit of passing the Act is not limited by any
technical application of the law or misinterpretation of the extant laws.
Chibuike Ugwu Esq.,
 Ibid, s.
2(3)(a)-(f). Worthy of note also is the fact that a person entitled to access
information under the Act can institute proceedings in court to compel a public
institution to publish all information required by section 2 and in the manner
consistent with the Act. See s. 2(6) of the Act.
 Ibid, s.
4(4)(a) & (b).
14. Personal information exempted under this section are information that
include files and other particulars maintained with respect to clients,
patients, residents, students, or other individuals receiving social, medical,
educational, vocational, financial, supervisory or custodial care or services
directly or indirectly from public institutions; personnel files and personal
information maintained with respect to employees, appointees or elected
officials of any public institution or applicants for such positions; files and
personal information maintained with respect to any applicant, registrant or
licensee by any government or public institution cooperating with or engaged in
professional or occupational registration, licensure or discipline; information
required of any tax payer in connection with the assessment or collection of
any tax unless disclosure is otherwise requested by the statute; and
information revealing the identity of persons who file complaints with or
provide information to administrative, investigative, law enforcement or penal
agencies on the commission of any crime. See generally, s. 14(1)(a)-(e) of the
FOI Act, 2011.
See sections 11(2), 12(2), 14(3), 15(4) and 19(2) of the FOI Act. It is however
arguable that the exemptions provided in sections 16 & 17 of the Act are
absolute (as there are no specific qualifications or limitations to the
exemptions in the Act) and disclosure ought not to be made to any applicant
requesting for information covered by those exemptions. The writer is however
of the humbly view that the tenor of the FOI Act, 2011, suggests that the
public should have access to all forms of public information, irrespective of
the exemptions, so long it is in the overriding interest of the public to have
such information disclosed.
Ibid, s. 20. See also sections 21-25 of the FOI Act.
whistleblower is an employee who reports employer wrongdoing to a government or
law enforcement agency. Definition culled from B.A. Garner, Black’s Law
Dictionary, 9th edn., p. 1734.
Ibid, s. 27(2)(a)-(c).
Constitution of the Federal Republic of Nigeria, Cap. C23, Laws of the
Federation of Nigeria, 2004.
Ibid, s. 4(1) & (6).
Ibid, s. 4(2), (4)(a), (7)(a) & (7)(b).
Ibid, s. 4(5). See also AG Lagos State v. Eko Hotels LTD & Anor (2017)
LPELR-43713(SC); INEC v. Musa (2003) LPELR-1515(SC); & Osun State
Government v. Estisione H. Nigeria Limited & Anor (2012) LPELR-7936(CA).
by Legalnaija | Aug 29, 2017 | Uncategorized
With approximately 188 million
inhabitants, Nigeria is the most populous country in Africa and the seventh
most populous country in the world. The country has one of the largest
population of youth in the world. In 2014, Nigeria overtook South Africa
to become Africa’s largest economy and in 2015, Nigeria was said to be the
world’s 20th largest economy, worth more than $500 billion and $1 trillion in
terms of nominal GDP and purchasing power parity respectively.
With the stats detailed above, it
is no wonder the country has become a first port of call for Foreign Direct
Investors looking to invest in Africa. This article seeks to examine and point
out some salient facts every employer of Expatriate Employee must know while
operating in Nigeria. These industry practices and regulations apply to both
local and foreign companies.
Every company desirous of
employing Foreign Nationals (“FN”) in Nigeria must
have first obtained an Expatriate Quota (“EQ”) from the
Federal Ministry of Interior (“FMI”). The EQ is a
condition precedent that must be fulfilled by any company (local or foreign)
employing FNs in Nigeria. The document details out the positions in the company
approved by FMI to be filled by FNs. It is important to state that the position
to be occupied by every FN must correspond with his qualifications. A concise
illustration of this point is that, it is very likely that The Nigeria
Immigration Service (“NIS”) would reject an application
for the resident/work permit of a FN who is an accountant and who is expected
to occupy the position of “lead engineer” in a company.
It is also expedient to note
that, flowing from a recently issued directive, companies operating in specific
sectors are required to join certain professional bodies before employing FNs.
E.g., companies operating in the engineering sector are required to register
with Council for The Regulation of Engineering in Nigeria.
For any FN to enter into Nigeria
for employment related purposes, particularly on a long-term basis, the said FN
must have obtained a Subject to Regularization (“STR”) visa from his
country of residence abroad. Upon arrival in Nigeria the FN is expected to
apply for a Combined Expatriate Resident Permit and Aliens Card (“CERPAC”) within 90 days of arrival. The application for
STR visa and CERPAC is to be made by the employer on behalf of the FN. The
employer must also undertake to bear full immigration responsibility on behalf
of the FN.
Pursuant to the Personal Income
Act, an employee is said to be resident in Nigeria if he is domiciled in
Nigeria for a period of 183 days or more in any 12-month period. Expatriates
who have obtained resident permit in Nigeria are liable to personal income tax.
In instances where the relevant
Inland Revenue Service (“IRS”) is of the view
that no or insufficient tax has been paid, the IRS has the power to assess
individual FNs on Deemed Income Assessment basis. When this happens, the onus
is on the employer to prove that the tax paid is sufficient by providing:
of Employment of the Expatriate;
passport of the Expatriate;
Quota Position granted to the company; and
quota returns for the company.
Though section 2(1) of the
Pensions Reform Act 2014 provides that the act shall apply to every employment
in Nigeria, the Guidelines for Cross Border Arrangements under the Pension
Reform Act provides that “any foreign employee of a company registered in Nigeria
shall, at his/her discretion, join the contributory
pension scheme, without considering whether he/she has a pension arrangement in
his/her home country.” This means that the FN may maintain a
Pension Fund Administrator (“PFA”) in his home country or elect to join a
The immigration regime in Nigeria
allows for change of employment of FNs already employed in Nigeria by a
previous company to another company. In instances of such, the consent of the
comptroller of immigration must be sought and obtained prior to changing such
employment. The previous employer is also required to issue a letter of no
objection to the employment of the FN by the new company.
End of Expatriate Employment
Upon completion or termination of
an FN employment in Nigeria, the employer is expected to formally inform the
Comptroller General of the NIS of this fact. The reason of the aforesaid stems
from the need for NIS to be able to ascertain at any given time the number of
FN’s employed in the country, to keep records and also release the
employer from immigration responsibility as it concerns the exited FN.
Busayo Adedeji is an associate at
Bloomfield Law Practice. He has experience assisting clients on regulatory
compliance and general commercial law issues.
by Legalnaija | Aug 1, 2017 | Uncategorized
May 2017 –
Stacey who works in a salon in Port Harcourt was hit by a car while going
across the road to fetch water to wash a customer’s hair. The salon usually has
water facilities but is undergoing a renovation which causes interruptions to
their normal water supply. The accident resulted in a broken bone which has
placed her off work and off earnings. This represents the kind of situations
the Employees Compensation Act was enacted to deal with.
compensation in Nigeria is governed by the Employees Compensation Act Cap E7A,
LFN 2004 [ECA] and administered by the Nigeria Social Insurance Trust Fund
Management Board [Board]. In countries with a robust legislative framework,
occupational health and safety legislations set the tone for how employers should
make work places safe. With such legislation in place, the occasion for
employee compensation should be minimized. As at today, occupational health and
safety in the work place in Nigeria is regulated by the Factories Act Cap F1,
LFN 2004. This Act has long become moribund with several attempts by erstwhile
National Assemblies to repeal it and enact an Occupational Safety and Health
Act. As at the 9th of March 2017, the Senate read the current Occupational
Health and Safety Bill for the second time and referred it to the Senate
Committee on Labour and Productivity. It remains to be seen if the current
National Assembly will achieve success in repealing the Factories Act and
replacing it with a much-needed Occupational Health and Safety Act.
of occupational health and safety was buttressed at an event held in Abuja in
April to commemorate the 2017 World Day for Safety and Health at Work. Mr.
Dennis Zulu, the Country Director for the Nigerian International Labour
Organization (“ILO”) office represented by Mr. Aly Cisse, the office Chief
Technical Advisor stated that “ILO statistics show that a worker dies every 15
seconds while 153 workers have work-related accidents every 15 seconds
globally”. He further revealed that 6, 300 people die daily as a result of
occupational accidents or work related diseases.
The absence of an
occupational health and safety legislation that addresses present day
work-place realities sets the mode for increased cases of employee
The ECA which
repealed the Workmen’s Compensation Act has the objective of providing an open
and fair system of guaranteed and adequate compensation for all employees or
their dependents for any death, injury, disease or disability arising out of or
in the course of employment. It provides for a minimum monthly contribution of
one per cent of the total monthly payroll by employers. It is noteworthy that
this contribution is not to be deducted from the remuneration of the employee
and thus constitutes an additional employment cost to employers.
In addition to
accidents occasioned in the workplace, the ECA covers injuries sustained
between the work place and the employee’s residence; the workplace and the
place where the employee usually takes meals; the work place and the place
where remuneration is usually received provided the employer has prior
notification of such place. It also covers injuries sustained
where the employee is required to work both in and out of the workplace or
where the employee has the permission of the employer to work outside the
normal workplace. The Act lists several injuries and diseases and conditions
under which compensation will arise. The percentage of compensation and the
periods of payments are also provided for.
anticipates coverage for all workers in Nigeria and defines an employee to
include persons employed under continuous, part-time, temporary, apprenticeship
or casual basis including domestic servants. The definition covers oral and
written contracts of employment. The Act specifically provides that in the case
of independent contractors and sub-contractors, the person or organization
engaging the service and the independent contractor shall be jointly liable for
assessments under the Act relating to that work.
procedure begins with an injured employee, or in the case of death the deceased
employee’s dependant, informing the employer of the injury or death and the
particulars of the injury within fourteen days of occurrence or receipt of
information of occurrence. The employer in turn has an obligation to make the
report to the Board within seven days of receiving the information. By the
provisions of the law, the application for compensation to the Board ought to
be made within one year after the date of the death, injury or disability.
Failure to make the application within the prescribed time may disentitle the beneficiary
to compensation unless the Board is satisfied that special circumstances
precluded the filing of an application within the first year. In practice,
employees sustaining work related injuries may be treated by their employers
who in turn make claims to the Board for reimbursements with documented
evidence of expenses and proper medical reports. In the case of death, the
Board makes payments directly to the deceased’s dependants.
stated, the essence of the ECA is to provide an open and fair system of
guaranteed and adequate compensation for all employees or their dependants for
any death, injury, disease or disability arising out of or in the course of
employment. The question however is: how do these benefits become
accessible to Stacey and the numerous undocumented workers who get injured
current national economy and employment disequilibrium affords little incentive
for an employer of unskilled labour or casual workers to comply with the ECA.
This is further worsened by the fact that most casual workers are completely
undocumented. The employees on the receiving end will also rather keep a job
than worry about a lack of coverage in the event of a work-related injury or
disease. Accordingly, employees such as Stacey for whom remittances are not
made, will never get compensated. Unfortunately, many Nigerian citizens
employed on temporary or permanent basis whose employments are not divulged to
the Board could die while carrying out their works and such deaths will never
be compensated for.
Senior Associate at Streamsowers & Kohn
Ed’s Note – This article was first
by Legalnaija | Jul 27, 2017 | Uncategorized
The Nigerian House of Representatives on 27th
July, 2017, in a plenary session, with 97 Senators in attendance, deliberated
over Bills seeking to amend the 1999 Constitution of the Federal Republic. The
1. Bill on Members of
the Council of States
Bill on the
composition of members of the council of state
Yes – 274 No – 6
Abstain – 2
2. Authorization of
expenditure (Section 62 and 182)
Bill to reduce the
period of which the Governor of a State may withdraw funds from the
consolidated revenue funds in the absence of an appropriation act from 6 months
to 3 months.
Yes: 295 No: 0
Bill to amend 2nd
schedule, part 1 and 2 of the 1999 Constitution to give more legislative powers
to state by moving some items to the Concurrent List in the Constitution.
Yes: 210 No: 71
4. Financial Autonomy
of State Legislature
Bill to provide for
funding of Houses of Assemblies directly from the consolidated revenue of the
Yes: 286 No: 10
account for LG’s to have their own special account
Bill to alter
Section 162 to empower each local council to maintain its own accounts into
which all allocations due to the local government council shall be paid
directly from the federation account and state allocations.
Yes: 281 No: 12 Abstain:
Existence funding and tenure of LG council
Bill aims at
strengthening local government administration in Nigeria by guaranteeing the
democratic existence and funding of local government councils.
Yes: 285 No: 7
7. State creation and
Bill seeks to
ensure that only democratically created local government councils can
participate in state creation and boundary adjustments.
Yes: 166 No: 125
8. Immunity for
legislators for Acts in Course of Duty
This is a Bill to
alter section 4, 51, 61, 68,93 and 109 of the constitution, to provide immunity
for members of legislature in respect of words spoken or written in plenary.
This means that no member of the Senate can be legally prosecuted for words and
writings made during a plenary session or in committee. And to institutionalize
legislative bureaucracy in the constitution and obligate the president to
address the joint national assembly once a year to give a state of the nation
288 No: 10 Abstain: 1
9. Political Parties
and Electoral Matters: Time to conduct Bye Elections and Power to deregister
Bill seeks to alter
Section 134 and 179 of the Constitution to provide time for INEC to conduct bye
elections and Section 225 to empower INEC to deregister political parties for
non-fulfillment of certain conditions such as a breach of registration requirements
and for not winning any seat in any election.
Yes: 293 No: 2
This Bill seeks to
alter Section 58, 59 and 100 of the Constitution to resolve the impasse when a
President or Government fails to give or withdraw accent from a Bill passed by
Yes: 248 No: 28
frame for submission of names of ministerial or commissioner nominees. To set a
time frame within which a president or governor shall forward names of nominees
for ministerial or commissioner positions along with their intended portfolios.
Nomination shall be
between 30 days after President has taken oath of office.
Yes: 248 No: 46
12. The Bill seeks to alter section 147 of the
Constitution of the Federal Republic of Nigeria, 1999 to provide for the
appointment of a Minister from the FCT, Abuja to ensure that the FCT is
represented in the Executive Council of the Federation.
Yes: 191 No: 91 Abstain: 3
of names of some LG councils: Ebonyi, Oyo, Ogun, Pleateau and Rivers.
This Bill seeks to alter the Constitution to provide for change in the
names of some Local Government Councils and the definition of the boundary of
the FCT, Abuja.
Yes: 220 No: 57
This seeks to alter sections 65, 106, 131, and 177 of the Constitution.
This is aimed at expanding the political space and broadening the options for
the electorate by allowing for independent candidacy in all elections.
Yes: 275 No: 14
Nigeria Police Force to become Nigerian Police
This Bill seeks to alter the Constitution in sections 34, 35, 39, 214,
215, 216 and the Third Schedule to change the name of the Police from “Nigeria
Police Force” to “Nigeria Police” in order to reflect their core mandate.
Yes: 280 No: 9
of the tenure of President and Governor
The Bill sought
that any vice president who had completed a tenure of a sitting president and
contested a fresh four years mandate shall not be eligible to run for a second
term of office.
Yes: 292 No: 3
of Office of the Accountant-General
This Bill seeks to alter section 84 of the Constitution to establish
the office of the Accountant-General of the Federal Government separate from
office of the Accountant-General of the Federation.
Yes: 274 No: 23
of Auditor General to be included in first line chat of consolidated revenue.
This Bill seeks to make the office of the Auditor-General for the
Federation and for the State financially independent by placing them on
first-line charges in the Consolidated Revenue funds of the Federation and of
of Office of the Attorney General from the Minister/Commissioner of Justice
This Bill seeks to alter sections 150, 174, 195, 211, 318 and the Third
Schedule to the Constitution to separate the office of the Minister or
Commissioner for Justice from that of the Attorney-General of the Federation
and of states soas to create an independent office of the Attorney-General of
the Federation insulated from partisanship. It also seeks to redefine the role
of the Attorney-General, provide a fixed tenure, provide the age and
qualification for appointment and also for a more stringent process for the
removal of the Attorney General.
Yes: 234 No: 58
from the Judiciary
This bill contains a vast array of alterations with regards to the
Judiciary such as the composition of the National Judicial Council, and
empowering Justices of the Supreme Court and Court of Appeal to hear certain
applications in chambers thereby enhancing the speedy dispensation of justice.
Yes: 265 No: 6
of pre-election matters.
This Bill seeks to among other things make provisions for timelines for
the determination of pre-election disputes.
Yes: 288 No: 3
Amendment on Civil Defence
This Bill seeks to reflect the establishment and core functions of the
Nigeria Security and Civil Defence Corps. It is a consequential amendment
because of the inclusion of the national security and civil defence as an item
in the Exclusive Legislative List under the Second Schedule to the
Yes: 293 No: 2
This Bills seeks to alter section 25 of the Constitution to guarantee a
married woman’s right to choosing either her indigeneship by birth or by
marriage for the purposes of appointment or election.
Yes: 208 No: 78
for Overriding Presidential Veto in Constitutional Alteration
This Bill seeks to among other things provide the procedure for passing
a Constitution Alteration Bill where the President withholds assent.
Yes: 271 No: 20
of law making power from Executive Arm.
This Bill seeks to alter section 315 of the Constitution of the Federal
Republic of Nigeria, 1999 to remove the law-making powers of the Executive Arm
Yes: 139 No: 148
and Securities Tribunal
This bill seeks to establish the Investments and Securities Tribunal
under the Constitution.
Yes: 270 No: 12
of Age for Election
This Bill seeks to alter the Sections 65, 106, 131, 177 of the
Constitution to reduce the age qualification for the offices of the President
and Governor and membership of the Senate, House of Representatives, and the
State Houses of Assembly.
Yes: 261 No: 23
of expenditure time frame for laying Appropriation bill, Passage etc
This Bill seeks to provide for the time within which the President or
Governor shall lay the Appropriation Bill before the National Assembly or House
of Assembly to encourage the early presentation and passage of Appropriation
of State Electoral Commission from
Yes: 229 No: 51
of Section 141 of the Electoral Act in the Constitution.
Yes: 241 No: 16
In total, there were 33 proposed
amendments, 30 were adopted and 3 were rejected.
Adedunmade Onibokun, Esq.
Photo Credit 1 – www.nigerianews.com
by Legalnaija | Jul 19, 2017 | Uncategorized
The Whistle Blower Protection Bill, 2017, on
19th July, 2017, was passed by the Nigerian Senate. The Bill seeks
to encourage and facilitate the disclosures of improper conduct by public
officers and public bodies and to ensure that persons who make disclosures and
persons who may suffer reprisals in relation to such disclosures are protected
under the law.
The Bill aims to provide for the manner in
which individuals may in the public interest disclose information that relates
to unlawful or other illegal conduct or corrupt practices of others.
The Bill in Section 1 begins by stating the
class of persons who may be Whistle blowers. It provides that –
1.—(1) A person may make a disclosure of
information where that person has reasonable cause to believe that the
information tends to show—
an economic crime
has been committed, is about to be committed or is likely to be committed;
(b) another person has not complied with a law or is in the
process of breaking a law or is likely to break a law which imposes an
obligation on that person;
a miscarriage of
justice has occurred, is occurring or is likely to occur;
(d) in a public institution there has been, there is or
there is likely to be waste, misappropriation or mismanagement of public
the environment has
been degraded, is being degraded or is likely to be degraded; or
the health or safety of an individual or a community is endangered, has been
endangered or is likely to be endangered
It however is not everyone that brings
forward information that is a Whistle Blower, such person must be making the
disclosure in good faith, believing the information to be true and same must be
made to any of the following persons in line with Section 2 and 3 of the Bill
including; an employer of the whistle blower; the Inspector General of police; the
Attorney-General; the Auditor-General; a staff of the Independence Corrupt Practices
Commission; a member of the National Assembly; the Economic and Financial
Crimes Commission; the Human Rights Commission; the print and Electronic media;
the National Drug Law Enforcement Agency; a chief; the head or an elder of the
family of the whistleblower; a head of a recognised religious body; a Minister;
the Office of the President; the Federal Inland Revenue Service; or the Public
It is important to note that a disclosure
can be either oral or written. The procedure for making a disclosure is
contained in Section 4 of the Bill and states that such disclosure must contain
as far as possible the following –
the full name,
address and occupation of the whistleblower;
(b) the nature of the impropriety in respect of which the
disclosure is made;
the person alleged
to have committed, who is committing or is about to commit the impropriety;
(d) the time and place where the alleged impropriety is
taking place, took place or is likely to take place;
the full name,
address and description of a person who witnessed the commission of the
impropriety if there is such a person;
whistleblower has made a disclosure of the same or of some other impropriety on
a previous occasion and if so, about whom and to whom the disclosure was made;
(g) if the person is an employee making a disclosure about
that person’s employer or a fellow employee, whether the whistleblower remains
in the same employment.
Where a disclosure is made to a person
other than the Attorney-General, the person shall submit a copy of the written disclosure
to the Attorney-General within seven working days after receipt of the
disclosure. It is important to note that when a disclosure is made, any investigation
into the matter by the authority to whom it was reported must be completed
within 60 days and if such person does not have the authority or capacity to
investigate the disclosure, such must be reported to the Attorney – General’s
Also, if the investigator believes that the
evidence in the disclosure will be tampered, an application can be made to court
to preserve the evidence.
specifically in Section 12 provides that a whistleblower shall not be subjected
to victimisation by the employer of the whistleblower or by a fellow employee
or by another person and victimisation will be inferred if the whistleblower, being an employee, is
dismissed, suspended, declared redundant, denied promotion, transferred against
the whistleblower’s will, harassed, intimidated or threatened. If the Whistle
blower is not an employee, victimization will be inferred with such person is
subject to discrimination, intimidation or harassment by a person or an
A whistleblower is
not liable to civil or criminal proceedings in respect of the disclosure unless
it is proved that whistleblower knew that the information contained in the
disclosure is false and the disclosure was made with malicious intent. Also,
any contract of employment which seeks to prevent a disclosure is void.
A whistleblower who
has been subjected to victimisation may bring an action in the High Court to
claim damages for breach of contract or for another relief or remedy to which
the whistleblower may be entitled, except that an action shall not be commenced
in a court unless the complaint has first been submitted to the Commission on
Human Rights and Administrative Justice.
One major flaw
however of the Bill is that it does not specifically make provisions for the reward
of a Whistle Blower. Many Whistle blowers will be willing to make disclosures
most importantly because of the possibility of a reward. The Bill however
provides in Section 14(4) that the Commission may, where it considers it just
in the circumstances of the case, make an order for payment of reward from the
Fund established under section 20 of the Bill. Section 20 thus further provides
that the Attorney _General or Minister of Justice may make regulation for or
with respect to any matter required or permitted by this Act to be prescribed
to give effect to this Act. The above seems very vague and puts the onus on the
Minister to make policy in regard to the rewards for Whistle Blowers.
This single flaw
will in no small way limit the success of the Bill.
Photo Credit – www.nationaldaily.com
by Legalnaija | Jun 8, 2017 | Uncategorized
Being the text of a paper delivered by Ahmed
Adetola-Kazeem, MCIArb (UK) at alecture organized by the Nigeria
Association of Muslim Law Students (NAMLAS) Olabisi Onabanjo University chapter
in honour of Hon. Justice M. O Abimbola, Chief Judge of Oyo State.
The recent Judgment of Hon. Justice Adedayo
Oyebanji in suit no. LD/13/2008- Adebo Holdings Ltd
&Anor v. Nigerian Bottling CompanyPlc&Anor, has brought to
the fore Nigeria’s lackadaisical attitude towards the protection of consumers
just as it is in other facet of its national life.
The black’s law dictionary 9th edition
defines a consumer as a person who buys goods or services for personal, family
or household use, with no intention of resale; a natural person who uses
product for personal rather than business purposes. A consumer has been defined
by the Consumer Protection Council Act, CAP C25 Laws of the Federation, 2004 as
an individual who purchases, uses, maintains or disposes of products or
ADEBO HOLDINGS LTD &ANOR V.
NIGERIAN BOTTLING COMPANYPLC&ANOR REVISITED
The court held in Adebo Holdings
Ltd & Anor v. Nigerian Bottling Company Plc & Anor that
high levels of benzoic acid and sunset additives in the coca-cola products
could pose a health risk to consumers when mixed with ascorbic acid, commonly
known as vitamin C.
Justice Adedayo Oyebanji ordered the
Nigerian Bottling Company (NBC) to place written warnings on Fanta and Sprite
bottles against drinking them with vitamin C, and awarded costs of two million
naira ($6,350) against the National Agency For Food and Drug Administration and
Control (NAFDAC) for failing to ensure health standards.
The court said “It is manifest that
NAFDAC has been grossly irresponsible in its regulatory duties to the consumers
of Fanta and Sprite manufactured by Nigeria Bottling Company, NAFDAC has failed
the citizens of this great nation by its certification as satisfactory for
human consumption products which become poisonous in the presence of ascorbic
A background to what transpired leading to
the filing of the action against NBC and NAFDAC was given by Dr. Fijabi Adebo
in an interview granted to Punch Newspaper on the 26th of March 2017. He said,
“When the Coca Cola European Union alleged
that the products our trading company, EFAD Limited brought into the UK were
fake and unsafe for human consumption which made the UK Customs and Excise to
act by destroying the products, we had to query the NAFDAC which plays
supervisory roles in safeguarding public health as an agency of the Federal
Government. We had to ask what it was doing when products unfit for human
consumption were being manufactured in the country. That was why we joined them
in the suit. In fact, our initial prayer was to stop the production of Fanta
with sunset yellow because it really alarmed us and according to the UK
findings, it could cause injury to children and others. Justice Taiwo in 2009
ruled that NAFDAC should go to the premises of NBC and make it reduce the
content of sunset yellow in Fanta. They obeyed the order and reduced the
content considerably. Before then, you would notice that whenever children
drank Fanta, their tongue would be yellowish. If they knew that it was not
injurious to consumers’ health, why did they reduce the sunset yellow? After
that, we got another ruling against NAFDAC compelling it to henceforth do
things right after being negligent by allowing manufacturers do things their
way. It was after we concluded those ones that we faced Coca Cola. Our lawyers
wrote them and they were so arrogant. They were not interested in our loss as a
customer who bought products from them. Their response to our lawyers was a
little less insulting. We then thought that if we had been so badly treated in
England on issue that was a fault of a manufacturer in Nigeria, I would not
come to my country and be so treated. I therefore swore to pursue the case
until justice was served.”
“My main aim was to save Nigerians. I later
got rulings compelling the NBC to reduce the sunset yellow in Fanta and make
NAFDAC responsible in discharging its responsibilities. I also got an order for
the continuous monitoring of the content of Coca Cola products. The rulings
were satisfying to me. At the time we got the rulings, one would have
expected them to act in a normal, serious and corporate manner. But all we got
was that we did not tell them we were taking the products to the UK. What law
says I should tell them where I was taking the products to? By law, I have a
right to export to anywhere in the world? Through the Nigerian company law, I
have a limited liability company and also a licensed company in the UK. I
brought a shipping company to their premises to load the drinks including
customs to check the products. What else do they want me to do?”
Lawyers for the NBC argued that the
products were not intended for export on the grounds that the UK standards
limit benzoic acid in soft drinks to a maximum of 150 mg/kg. Both Fanta and
Sprite have benzoic levels of 200 mg/kg which is lower than the Nigerian
regulatory limit of 250 mg/kg, but Justice Adedayo Oyebanji rejected this
The Honourable Judge said, “Soft
drinks manufactured by Nigeria Bottling Company ought to be fit for human
consumption irrespective of color or creed.”
NAFDAC and NBC have appealed the decision
of the Lagos High Court, it remains to be seen which side of the divide the
appellate court will tilt.
In view of the High Court Judgment in
Adebo’s case and other worrisome cases, how has Nigeria faired in protecting
its consumers from the claws of manufacturers, business men and service providers
whose main aim is to make profit at the expense of unsuspecting Nigerians?
It will be wrong to suggest that there are
no adequate laws that govern consumer protection in Nigeria. The problem is not
the non-availability of laws but ignorance of the laws by consumers and the
unwillingness of those in authority to implement the laws. Nigeria’s
situation was best described by a former MD of Nestle Plc, when he said
“Nigeria is over-legislated but under-governed.
CONSTITUTIONAL RIGHTS OF CONSUMERS
Chapter IV of the Constitution of the
Federal Republic of Nigeria, 1999(as amended) contains the fundamental rights
of all citizens and persons in Nigeria. These are the rights to life; dignity
of human person; personal liberty; fair hearing; private and family life;
freedom of thought, conscience and religion; freedom of expression and the
press; peaceful assembly and association; freedom of movement; freedom from
discrimination; and the right to acquire and own immovable property anywhere in
These rights can be said to have some
affinities with consumer protection. Some actually have direct bearing on
consumer Protection. For instance the right to fair hearingaddresses
the principle of access to justice which
is a cardinal principle of consumer protection. Section 36(1) of the Constitution provides:
“In the determination of his civil
rights and obligations, including any question or determination by or against
any government or authority, a person shall be entitled to a fair hearing
within a reasonable time by a court or other tribunal established by law and
constituted in such manner as to secure its independence and impartiality.”
In addition, on the strength of the
Constitution, Any citizen whose rights has been violated under any law
including consumer protection laws can approach the court or any other
appropriate body for redress, under section 46. The Fundamental rights are so
important that failure to observe them in any case vitiates the proceedings. They
cannot be derogated from except to the extent allowed by law. Describing
the primacy of a fundamental right, Eso,J.S.C, In Ransome Kuti v.
Attorney General of the Federation (1985) 2 NWLR (Pt.6) 211
“It is a right which stands above
the ordinary laws of the land and which in fact is antecedent to the political
society itself. It is a primary condition to a civilized existence and what has
been done by our Constitution, since independence … is to have these rights
enshrined in the Constitution so that the rights could be “immutable” to the
extent of “non immutability.”
CONSUMER PROTECTION COUNCIL
The Consumer Protection Council is the body
saddled with the responsibility of the protection of the rights of consumers in
Nigeria. Other agencies saddled with the duties of consumer protection in
various specific sectors are:
Drug Law Enforcement Agency (NDLEA)
Electricity Regulation Commission(NERC)
Communications Commission (NCC)
Agency for Food and Drug Administration and Control (NAFDAC)
Bank of Nigeria (CBN)
Deposit Insurance Corporation (NDIC)etc.
Whilst the agencies listed above
individually deals with specific sectors, the Consumer Protection Council has a
wider coverage and has the power to deal with any consumer complaints against
any manufacturer or service provider.
FUNCTIONS OF CONSUMER PROTECTION
Some of the functions of the Council as
provided in section 2 of the Consumer Protection Council Act are as follows:
a) Providing speedy
redress to consumers complaints through negotiation, mediation and
b) Seeking ways and
means of removing from the markets hazardous products and causing offenders to
replace such products with safer and more appropriate alternatives;
from time to time list of products whose consumption and sale have been banned,
withdrawn, severally restricted or not approved by the Federal Government;
d) Causing an offending
company, firm, trade association or individual to protect, compensate, provide
relief and safeguards to injured consumers or communities from adverse effects
of technologies that are inherently harmful, injurious, violent or highly
e) Organising and
undertaking campaigns and other forms of activities that will lead to increased
public consumer awareness;
trade, industry and professional associations to develop and enforce in their
various fields, quality standards designed to safeguard the interest of
guidelines to manufacturers, importers, dealers and wholesalers in relation to
their obligation under the CPC enabling law;
h) Encouraging the
formation of voluntary consumer groups or associations for consumers’ well
that consumers’ interest receive due consideration at appropriate fora and
providing redress to obnoxious practices or the unscrupulous exploitation of
consumers by companies, firms, trade associations or individuals;
and monitoring products, services and sales promotions in the market place.
Section 3 of the CPC act gives additional
powers to the Council to do the following:
(a) Apply to court to prevent the
circulation of any product which constitutes an imminent public hazard;
(b) Compel a manufacturer to certify that
all safety standards are met in their products;
(c) Cause as it deems necessary, quality
tests to be conducted on a consumer product;
(d) Demand production of label showing date
and place of manufacture of a commodity as well as certification of compliance;
(e)Compel a manufacturer, dealer and
service company where appropriate, to give public notice of any health hazards
inherent in their products;
(f) Ban the sale, distribution,
advertisement of products which do not comply with safety or health regulation.
The Consumer Protection Council
Website lists some rights
which consumers are entitled to and must insist on as follows:
The Right to Satisfaction of Basic Needs Access to
basic goods and services necessary for survival, such as food, water, energy,
clothung, shelter, health-care, education and sanitation. Goods and services
must meet the standard of quality promised such that there is value for money
in the purchase.
The Right to Safety Protection from hazardous
products, production processes and services.
The Right to Information Provision of
information enabling informed consumer choice as well as protection from
misleading or inaccurate advertising and labeling.
The Right to Choose Access to variety of quality
products and services at competitive prices.
The Right to Redress Compensation for
misrepresentation, shoddy goods and unsatisfactory public and private services,
including the right to adequate legal representation
The Right to Consumer Education Acquisition
of the skills required to be an informed consumer throughout life
The Right to Consumer Representation Advocacy of
consumers’ interest and the ability to take part in the formulation of economic
and other policies affecting consumers i.e. the right to be heard
The Right to a Healthy Environment Habitation is
a place that is safe for present and future generations and which will enhance
the quality of their lives.
RECENT STRIDES OF THE CONSUMER
It is interesting to note that the Council
has made giant strides towards the protection of consumers’ rights in Nigeria.
In 2015, the Council issued Volkswagen Nigeria a 7 days ultimatum to provide
information on the status of its vehicles as regards the emissions of cheating
software which is reported to have affected 11 million cars worldwide. The
Council went on a nationwide sensitization campaign to checkmate smuggled
poultry products in the Country. Upon numerous complaints of subscribers to Digital
Satellite Television (“DSTV“), in July 2015 the Council
commenced investigative sittings into the operations of Multichoice Nigeria,
the franchise owners of DSTV.  The
Council later announced that it had “substantiated” allegations of abuses of
consumer rights brought before the council against MultiChoice Nigeria, the
owner of DSTV. In August 2015, the Council waded into a complaint of Bauchi
State Goverment of excess bank charges by First City Monument Bank, the Council
upon conclusion of investigation ordered the bank to refund N1.543 Billion
Naira unlawful deductions. The Council also investigated the activities of
VIP Express Tourism Limited, a Nigerian hospitality company upon receipt of complaints
that the operations of the company is against the rights of their subscribers,
the company was ordered to refund N25 Million Naira to aggrieved consumers.
It is also interesting to note that the
Council has commenced independent investigation into safety of additives in
Nigerian Bottling Company’s Fanta and Sprite. The Director of CPC in a
recent statement said, “Indeed the judgment only serves as the subject of
bringing this information to CPC’s attention, the Council would conduct its own
independent investigation. The reason for CPC’s interest is not far-fetched.
For years, Fanta, Sprite and Coca Cola have arguably and consistently been the
most widely consumed beverages in Nigeria. The spectrum of consumption is also
perhaps the widest, with consumption starting as early as age four and far into
“In addition, Vitamin C is one of the most
consumed medications for both children and adults, both as a matter of
prescription/ over the counter and, or as dietary supplement. Essentially, both
the NBC products and Vitamin C are routinely consumed in Nigeria with
absolutely no restrictions to access and availability” she added.
FAILINGS OF THE CONSUMER PROTECTION
In spite of these achievements, there is
still a lot of work to be done. The Nigerian market is flooded with substandard
products and products which are not registered with the Council. Many Nigerian
consumers are not aware of their rights or how to enforce them. It is
difficult for the Council to suspend the business activities of big
multi-nationals such as DSTV or MTN in proven cases of abuse of consumer’s
rights. It is also difficult for the Council to enforce consumer rights against
Federal Government agencies which are mandated to provide essential services to
RECOMMENDATION AND CONCLUSION
It is important for the Council to devise
creative means of ensuring that its orders are obeyed, particularly by
multinationals and government agencies. The Council’s taskforce should
intensify its efforts by carrying out regular monitoring of factories, markets
and shops to ensure that products sold to Nigerian consumers are not
substandard and are duly registered with the Council. The Nigerian Customs
service and other security agencies must ensure the security of our borders and
ports through which many substandard products enter the country.
More sensitization campaign should be
carried out in schools, churches, mosques, print media, electronic media and
social media to create awareness on the rights of consumers and how to get
redress when such rights are infringed upon. The Council must be attentive to
complaints against the products of foreign or local companies, big and small
enterprises, private establishments and government agencies if it is to
adequately achieve its statutory mandate.
Adegboruwa, “Challenges of Consumer Rights Protection in Nigeria”. A
paper delivererd at the NBA Conference 2015.
MCIArb(UK) is a counsel at Gani Adetola-Kaseem (SAN) LP and ExecutiveDirector
of Prisoners’ Rights Advocacy Initiative (PRAI).
Ed’s Note – Article was first published here.
by Legalnaija | Jun 7, 2017 | Uncategorized
According to news
reports, on Tuesday, the 6th of June, 2017, 16, Northern groups including
the Arewa Citizens Action for Change, Arewa Youth Consultative Forum, Arewa
Youth Development Foundation, Arewa Students Forum and Northern Emancipation
Network on the Igbo Persistence for Secession, among others directed all Igbos
residing in their States to vacate the northern region before the 1st
of October, 2017.
This comes closely behind
the Indigenous People of Biafra (IPOB) and the Movement for the Sovereign State
of Biafra (MASSOB)’s May 30 shut down of commercial and social activities in
major towns in the East over Biafra agitations. The deadline which is worrisome
and could lead to a volcanic rise in ethnic tensions or probably another civil
war is condemnable in the highest words and not in the spirit of national unity
or have we as a country crossed the rubicon
and now heading towards self- implosion?
The Constitutional and
fundamental rights of every Nigerian with an Igbo descent is now on the line and
the a subsequent breach of same will likely result to violence, senseless loss
of lives and regional tensions as seen during the Nigerian civil war. According
to Nigerian Constitution, Section 41 guarantees the right of every Nigerian to
freedom of movement. It provides in subsection 1 that-
Citizen of Nigeria is entitled to move freely throughout Nigeria and to reside
in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria
or refused entry thereto or exit there from.”
Section 43, further
provides for the right to acquire and own immovable property anywhere in Nigeria.
For ease of reference, it provides that;
to the provisions of this Constitution, every citizen of Nigeria shall have the
right to acquire and own immovable property anywhere in Nigeria”.
The above provisions of
the Nigerian Constitution clearly shows that the deadline given to Igbos is a
clear breach of our constitutional provisions and thus should be met the full
force of the law and expertise of national security agencies to prevent the
grave mishap that looms in our front yard. The only legal exceptions provided
for the above constitutional provisions is also clearly outlined in Section 45
of the said Constitution which provides that only laws passed in a democratic
society and in the interest of defence, public safely, public order public morality
or public health; or for the purpose of protecting the rights and freedom of
other persons. Can the deadline be described as a law in line with the
provisions of Section 45, the answer is No.
Moreover, the said
deadline is seditious in itself and a breach of Section 51 of the Criminal Code
Act. Sedition has been defined by the Criminal Code in Section 50(2) to mean; any
act that excites the citizens or other inhabitants of Nigeria to attempt to
procure the alteration, otherwise than by lawful means, of any other matter in
Nigeria as by law established; or to
raise discontent or disaffection amongst the citizens or other inhabitants of
Nigeria; or to promote feelings of ill-will and hostility between different
classes of the population of Nigeria. Could the deadline given by these
Northern groups be said to fall in line with the definition of a seditious act
under the criminal code, the answer is Yes. What the n is the penalty?
Section 51 of the Criminal
Code provides that;
does or attempts to do, or makes any preparation to do, or conspires with any
person to do, any act with a seditious intention;
utters any seditious words;
prints, publishes, sells, offers for sale, distributes or reproduces any
imports any seditious publication, unless he has no reason to believe that it
shall be guilty of an offence and liable on
conviction for a first offence to imprisonment for two years”.
The Penal Code also recognizes
the offence of sedition where it provides in Section 417 that “Whoever, seeks
to excite hatred or contempt against any class of persons in such a way as to
endanger the public peace, shall be punished with imprisonment for a term which
may extend to three years or with fine or with both”.
Clearly the deadline given
by the Northern groups to Igbo-Nigerians is a clear seditious, constitutional
and fundamental breach of Nigerian laws which clearly should attract prosecution.
Onibokun & Co.
by Legalnaija | Jun 6, 2017 | Uncategorized
A Patent is an official
right to be the only person to make, use or sell a product or an invention. The
essence of a patent is to protect inventors by ensuring they get due
recognition and compensation for their efforts in inventing. A patent usually
covers new and ground breaking inventions which could be in any industry and
not necessarily in the sciences alone.
A patent confers upon the
patentee the right to preclude any other person from doing any of the following
the patent has been granted in respect of a product, the act of making,
importing, selling or using the product, or stocking it for the purpose of sale
or use; and
where the patent has been granted in
respect of a process, the act of applying the process or doing, in respect of a
product obtained directly by means of the process, any other acts mentioned
That’s why various
governments have made it a point of duty to support and protect the rights of
inventors through patents. In Nigeria, a patent is registerable at the Ministry
of Trade and Investment located in Abuja.
The application for patent
registration begins with a search to ascertain whether such innovation or
invention had been created by another person in the past. This is then followed
by an application for registration. The Applicant must include other vital
information such as; the applicant’s full name and address; a specification,
including a claim or claims in duplicate; plans and drawings, if any, in
duplicate; where appropriate, a declaration signed by the true inventor
requesting that he be mentioned as such in the patent and giving his name and
address; a signed power of attorney or authorization of agent if the
application is made by an agent; an address for service in Nigeria if the
applicant’s address is outside Nigeria; and The prescribed fee.
It is important to note
that a patent shall stay valid for 20 years, after which other manufacturers
may have access to the creation or be legally able to create another version in
itself. An inventor who has registered a
patent in another country can also re-register the patent in Nigeria. Such
inventor will be requested to append to his application a written declaration
showing the date and number of the earlier application, the country in which
the earlier application was made, and the name of the applicant who made the
earlier application. The applicant will be expected to furnish the Registrar,
not more than three months after the making of the application in the initial country
with a copy of the earlier application certified correct by the Industrial
Property Office (or its equivalent) in the country where the earlier
application was made.
A patent shall also lapse
if the prescribed annual fees are not duly paid in respect of it, provided that
a grace period of six (6) months shall be allowed for the payment of the fees;
and if the fees and the prescribed surcharge are paid within that period, the
patent shall continue as if the fees had been duly paid.
Many inventors have not
had the benefit of registering their inventions. This may result in a loss of
ownership by these inventors or a situation where the invention is registered
by someone else who is not the rightful creator of that invention.
Adedunmade Onibokun & Co.
Photo Credit – www.insidecounsel.com
by Legalnaija | May 17, 2017 | Uncategorized
the 5th of May, 2010, President Musa Yar’adua passed-on, thereby
leaving the office of the President of the Federal Republic of Nigeria vacant. Shortly
after, President Goodluck Jonathan, the Vice President at the time, was sworn in
as the President of the Federal republic of Nigeria. This action was in line with
the constitutional provision to that effect.
vacancy in the office of the President by virtue of any of the instances cited
in the constitution, the law provides for succession. The relevant provision of the constitution which
refers to the above can be found in Section 146.
provisions of Section 146 (1) of the Constitution of the Federal Republic of Nigeria
(1999) states that;
Vice-President shall hold the office of President if the office of President
becomes vacant by reason of death or resignation, impeachment, permanent
incapacity or the removal of the President from office for any other reason in
accordance with section 143 of this Constitution.
The above provision of the Constitution seeks to
ensure continuity of government upon the unwelcome demise of a sitting
president. Such as, the aforementioned, untimely death of President Musa Yur’adua
in 2010. In this spirit, the Constitution
also provides for instances when the position of Vice President may also become
vacant. Sub-section (2) provides that;
any vacancy occurs in the circumstances mentioned in subsection (1) of this
section during a period when the office of Vice-President is also vacant, the
President of the Senate shall hold the office of President for a period of not
more than three months, during which there shall be an election of a new
President, who shall hold office for the unexpired term of office of the last
holder of the office.
the constitution provides for instances when the office of the Vice President
is vacant, however, the office of the President is occupied.
the office of Vice-President becomes vacant:-
reason of death or resignation, impeachment, permanent incapacity or removal in
accordance with section 143 or 144 of this Constitution;
his assumption of the office of President in accordance with subsection (1) of
this section; or
any other reason,
President shall nominate and, with the approval of each House of the National
Assembly, appoint a new Vice-President.
stated by the Supreme Court in Bakare
v. L.S.C.S.C (1992) 10 SCNJ 173; “the constitution is the source of our
Nigerian laws. The right, privileges and the protection of the citizen are
derived from its provisions. The regulations and rules governing the tenure and
rights of the public officer derive their authority and validity from the
Though, President Yar’adua
is the only Nigerian civilian president to pass away while in office, other
heads of states include Major General Aguiyi-Ironsi, General Murtala Mohammed
and General Sani Abacha.
Photo Credit – www.newsreelonline.com