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The Employer’s Right To Hire And Fire: A Paradoxical Principle In The Nigerian Oil And Gas Industry

by Oluwatobi Adetona

It is a well settled principle of law that an employer who has a right to hire, also has the right to fire. The employer has unfettered right to terminate the employee’s employment. He may terminate for good or bad reason or even for no reason at all. Also, the motive for exercising the right does not render the exercise ineffective. What is essential is that the exercise of the right to fire an employee must be done in accordance with the terms and conditions of the employment. The rationale behind this principle of law is that a servant, though willing, cannot be foisted upon an unwilling master. However, in cases where the employment is governed by the agreement of the parties, removal by way of termination of appointment or dismissal must be in accordance with the terms agreed upon. Failure to comply with the terms renders the termination a breach of the agreement, but not void.

The extant law regulating employment and labour relationship in Nigeria is the Labour Act CAP. L1, Laws of the Federation of Nigeria, 2004. The employment recognized under the labour Act in Nigeria is categorized below:

  • Employment which is governed by statute;
  • Employment by written contract of employment;
  • Employment at will or servant holding an office at pleasure of employer or Master and servant relationship.

Modern employment is governed by a contract of employment. A contract of employment is defined in Section 91 of the Labour Act as-

any agreement, whether oral or written, express or implied whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”.

Further, Section 54 of the National Industrial Court Act, defines the word: “employee” to mean “a person employed by another under a written contract of employment whether on a continuous, part time, temporary or casual basis and includes a domestic servant who is not a member of the family of the employer. In same vein, the apex Court in IYERE V. BENDEL FEED & FLOUR MILL LTD (2008) LPELR-1578 (SC) held inter-alia that “…although much of modern employment law is contained in statutes and statutory instruments, the legal basis of employment (by whatever means) remains the contract of employment between the employer and the employee. The contract of employment is important in itself, in that it may give rise to a common law action for its enforcement or for damages for its breach. I should add that an employee, except where a different meaning is given in the context of the employment, means an individual who has entered into or works under, or where the employment has ceased, worked under a contract of employment…” Per Muhammad, J.S.C. (P. 21, Paras. B-E).

An employer’s right to hire and fire is however limited in the oil and gas industry despite the fact that parties are governed by a contract of employment. The oil and gas sector is one of the most highly regulated industries in Nigeria and the release of employees in this sector is governed by the regulation made pursuant to Regulation 15A of the Petroleum (Drilling and Production) Regulations 1969 (as amended) which are made pursuant to Section 9 of the Petroleum Act , Cap P10 LFN, 2004, which is to the effect that before any worker is released, a prior approval of the Minister of Petroleum through the Director of Petroleum Resources (DPR) must be sought and obtained. Accordingly, the DPR on the 18th of October 2019 released a new guideline for the release of staff in the oil and gas industry 2019. These 2019 guidelines repealed the 2015 guideline earlier regulating the release of staff in the oil and gas industry.

Further, an employer who wishes to release a staff  in this sector must not only seek the consent of the Minister in writing, Paragraph 4.0 of the Guidelines mandates the employer to also state the manner of release, reasons for the release and compensation due to the worker. A staff release under Paragraph 3 of the 2019 Guideline includes dismissal, retirement, termination, redundancy, release on medical grounds, resignation, death and abandonment of post. Where the  release is by involuntary retirement, dismissal, termination, redundancy, or on medical grounds, the DPR shall conduct an enquiry into the circumstances of the proposed staff release and make a decision on whether to convey the minister’s approval or otherwise.

Any employer who fails to comply with these guidelines is liable to a penalty issued by the DPR in an amount not exceeding Two Hundred and Fifty Thousand United States Dollars (USD) ($250,000.00); and in addition, any permit, license or lease granted to that person may be withdrawn or cancelled by the DPR.

While the guidelines may be trying to curb or rectify some anomalies in the oil and gas industry, especially with regards to the arbitral release of employees, it is safe to say that this Guideline is more or less foisting a willing employee on an unwilling employer. It is my humble submission that in as much as the Minister has the power to make regulations by the power conferred on him, the regulations should not re-write the contract freely entered into by parties, neither should it interfere with, nor usurp the performance of the respective parties’ obligations under the contract of employment. Since the courts in Nigeria with all its might lacks the power to re-write a contract freely entered into by parties, neither should the Minister of Petroleum resources have that power.

Amotekun-6

AMOTEKUN Security And The Federal Government’s Stance

Written by Abdulbasit Usman

Amotekun-6

The Western Nigeria Security Network (WNSN) on 9th January 2020 declared the formation of Operation Amotekun (Leopard), the first regional security outfit in Nigeria, with the principal aim of combating terrorism and insecurity in the south west region. In a counter move, the Federal government on 14th January 2020 via the office of the Attorney General of the Federation declared the newly formed security outfit as illegal and directed the immediate disbanding of the outfit for having been formed contrary to the spirit of the constitution of the federal republic of Nigeria and for having no legal backing within the legal framework of the Federation.

The move by the Federal government has led to widespread uproar within the polity, with some calling for the Federal government to review its decision, while some are in support of the declaration of illegality by the Federal government, citing the constitution as the grundnorm and the father of all laws, a breach of which renders everything made contrary to its provisions ultra vires and devoid of any force of law.

Even though proponents of the establishment of the security outfit are quick to point out the existence of other state sponsored or state-owned security outfits like the Hisbah Police of Kano State, and the Civilian Joint Task Force ( CJTF ) in war torn Borno and Yobe States, the divide opposed to the idea are quick to point out the distinguishing factors being that the former can be found within the legal framework of kano state, i.e Shariah Law, while the latter is not the result of any specific act of Government, but an evolution or hybridization caused by necessity of the situation forced upon the region by its security challenges.

The conservatives however are cautious of the intrigues that the novelty of the issue brings to the fore in the legal coliseum that is our courts. These conservatives however are quick to avert their minds to the provisions of the 1st Part of the SECOND SCHEDULE to the Constitution of the Federal Republic of Nigeria (Exclusive Legislative List), particularly items; 17, 38 and 45. So that a combined reading of these items will create an impregnable impression that anything that has to do with the Defence of the Country, The Military of the Country and the Police or other Security services established by or under any law, are or ought to be done or established under the exclusive powers of the federal government.

However, as stated, that is only but an illusion until same solidifies into an unbreakable principle of law after standing the test of our courts. So for now the arguments for and against rages on, until our apex court lays the matter to rest.  On what side of the divide do you rest? Join the conversation by leaving us your views in the comments section.

CBN

HIGHLIGHT ON THE CENTRAL BANK’S REGULATION ON INSTANT (INTER-BANK) ELECTRONIC FUNDS TRANSFERS IN NIGERIA

By Victor Chikezie 

The Central Bank of Nigeria on the 13th of September 2018 introduced a Regulation for Instant Electronic Transfer Funds (EFT) Services in Nigeria. The new regulation titled: ‘Regulations on Instant (Inter-Bank) Electronic Funds Transfer Services in Nigeria’ was issued to all deposit money banks, microfinance banks, mobile money operators and other financial institutions; with the aim of regulating all Instant EFT services on various payment channels in Nigeria.

The Regulation makes provision for Responsibilities of a Sending and Receiving Entity in an EFT, stipulates stiff sanctions for non-compliance, and also provides for Dispute Resolution mechanisms to aid the effective implementation of the rules contained therein. The major highlights of the Regulation are as follows:

  • The Regulation prohibits Sending Entities from providing Instant Electronic Fund Transfer Services to anyone who does not have a bank account in Nigeria. In line with its objective of promoting sound financial systems in Nigeria, the CBN under this Regulation mandates Sending Entities to ensure that EFT messages contain the sender’s name, BVN and Account number, beneficiary’s name, account number and narration information specified by the Customer at the point of initiating the transfer, to aid reconciliation.

 

  • It provides further that where an EFT fails, the Sending Entity shall refund into the Customer’s account full proceeds returned by the Receiving Entity within 10 minutes of receiving same.

 

  • The Regulation states that where a sending entity erroneously sends a value contrary to the Customer’s instruction to a receiving entity and requests the reversal in writing within 14 working days of the transaction, the Receiving Entity should oblige within one business day without recourse to the Customer who benefitted from the erroneous transaction provided the funds are available in the wrongly credited Customer’s account.

 

  • Where the funds are no longer available in the Customer’s account, the Receiving Entity should immediately notify its Customer that the account was wrongly credited and provide proof of such notification to the Sending Entity. Furthermore, the Receiving Entity is to notify the Customer about the consequences of not funding the account within 24 hours, which includes sanctions such as watch-listing, credit bureau, and reporting the Customer to the law enforcement agencies.

 

  • The Regulation also makes provisions for situations where a transfer is made in error by the Customer. Where the beneficiary is known to the complainant, the apex Bank and the Sending Entity shall encourage the complainant (in this case the Customer who made the erroneous transfer) to contact the beneficiary in an amicable manner for a refund. However, where the beneficiary is unknown to the complainant, the Sending Entity having received a tenable complaint from a Customer shall notify the Receiving Entity. Upon notification, the Regulation provides that the Receiving Entity shall place a lien on the amount in the account of the beneficiary and thereafter obtain the consent of the beneficiary to execute a refund.

 

  • Again, the Regulation provides that a failed NIP Transaction not reversed into a Customer’s account within 24 hours (based on a complaint from a sender and/or a beneficiary) would attract a sanction of N10, 000 per item. Also, any delay in application of inward NIP into a beneficiary’s account beyond 4 minutes (based on a complaint from a sender and/or a beneficiary) would equally attract a sanction of N10, 000 per item in addition to any other sanction prescribed in the Nigeria Bankers’ Clearing System rules or any amendment thereto.

 

  • Furthermore, the Regulation imposes rights and responsibilities on the Bank Customers involved in electronic transfers. In effect, a bank Customer in an EFT transaction is required to provide accurate beneficiary account details for every EFT instruction. Where the Customer experiences problems arising from the EFT transaction, the Regulation mandates the Customer to promptly report the issue to the Sending/Receiving Entity. In line with the dispute resolution procedure in Article 10 of the Regulation, Section 5.4 of the Regulation provides that where a credit has been erroneously applied to a Customers’ account with the Receiving Entity, the customer shall promptly notify the Receiving Entity and authorise the reversal of such erroneous credit. In the event that the customer’s account is unfunded, the Regulation stipulates that the Customer shall provide funds within 24 hours and failure to do so shall be a ground for watch-listing of the Customer, credit bureau, and reporting the defaulter to law enforcement agencies.

 

The move by the CBN to regulate Electronic Fund Transfers and problems arising therefrom is commendable. In an accompanying circular, the Apex Bank stated that the regulation shall take effect from the 2nd day of October 2018. It is therefore imperative for all EFT stakeholders to be familiar with the responsibilities imposed by the Regulation to avoid any of the stiff penalties applicable thereunder.

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2018_8$large_Controversies_as_NBA_AGC_holds_in_Abuja[1]

The 58th NBA Annual conference commenced in Abuja on Sunday with about 10, 000 lawyers, the biggest gathering in Africa

The Nigerian Bar Association (NBA) Annual General Conference (AGC), which commenced in Abuja on Sunday, is coming on the heels of a number of controversies that have trailed the association in recent weeks.

The programme, which will hold August 26-30 in Abuja, will have as its theme: ‘Transition, Transformation and Sustainable Institutions’ with Ghana’s President, Akufo-Addo as keynote speaker.

Among the controversial issues is the ratification of the just-concluded NBA national elections by the National Executive Committee (NEC) .

The other candidates in the election that produced Paul Usoro (SAN) as the new President of the NBA, were Prof Ernest Ojukwu (SAN) and Arthur Obi-Okafor (SAN) have both criticized the election.

There are also rumblings over moves to amend the NBA constitution during the AGM. Lawyers claim the newly elected executive will be used to implement the new constitution.

Former General Secretary of the NBA, Femi Adesina (SAN) and former NBA President, Wole Olanipekun (SAN) among others have kicked against the constitution amendment by the Abubakar Mahmoud (SAN) outgoing executive especially in the area of succession of the governing board of the association.

“I was the General Secretary of our great Association between August 2002 and August 2004 and a life member of the National Executive Committee, yet I never received the Notice of the proposed Amendment to the Constitution from the General Secretary of the Bar up to the date of writing this publication,” Adesina said.

Olanipekun said the amendment is coming despite advice by former presidents and secretaries of the association to postpone such amendment to a later date.

“You are advised not to force the amendments on our beloved Association at the AGM, which, with much respect, might be constituted in such a way that the attendees would not readily understand or appreciate the unending conundrum we will be plunged into if the amendments sail through. And in case you insist on going ahead to present the amendments at the AGM, can you be gracious enough, as a lawyer and leader, to circulate this letter of mine to the AGM,” he said.

Also, many lawyers have complained that the conference bags for this year’s conference is not with the tablets as contained in the previous edition despite the spending of N750 million to organize the conference and the retention of the fees like the previous year.

The 58th conference will have five sub-themes which include Political Transition and Governance; Rule of Law & Security; Sustainable Economic Development; Technological Disruptions; and Diversity and Inclusion.

The stakeholders will examine the theme of ensuring peaceful and successful transitions, drawing references from Africa, the Americas, Asia and Europe.

The NBA AGC will be held in partnership with the British-Nigeria Law Forum (BNLF), the Bar Council of England and Wales, the American Bar Association (ABA) and other bar associations from across the continent and they have offered to provide technical support to the conference planning.

About 10, 000 lawyers, the biggest gathering in Africa, are expected to attend the conference in Abuja.

Besides, the keynote address by the President of the Republic of Ghana, Nana Akufo-Addo, there will be a conversation with President Muhammadu Buhari, and an address by a former Head of State of Nigeria, General Abdusalami Abubakar (Rtd), who is generally acclaimed to have overseen one of the most peaceful transitions of power from military to civilian authorities.

The conference will also feature high level panel discussions by renowned global and industry leaders in various fields as well as a complement of young minds who will be making robust contributions to nation-building from their perspectives.

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Lawyers’ vox populi on the 58th annual general conference of the NBA

Our association should be concerned with members welfare, rule of law’SHUAIB ALARAN

I think a lot of people have been debarred the opportunity of attending the conference.

It looks to me that certain cabals, who actually want to restrict the attendance of the conference to only the moneybags, have hijacked our noble association.

It will interest you to know that the registration fee for members who are just between 1 to 5 years is N80, 000, which is the least.

Members who are 20 years and above are to pay N300, 000, while the SANs will pay N500, 000, apart from the practicing fees and the branch dues already paid by these members. To me, this is purely exploitative, to say the least.

The executive members of the association did not take into cognizance, the economic realities in Nigeria before fixing these exorbitant fees.

We should also bear in mind that lawyers’ incomes are very irregular.

In all of these, my dream NBA is that which will be concerned at all times with the welfare of its members; an association that will ensure that there is absolute compliance with the rule of law.

A body, which will be the mouthpiece of the downtrodden in the fight against corruption!

What I observed is that almost everybody is contesting for one position or the other in the NBA for his or her selfish interest, to make money for themselves in particular, among other benefits.

‘NBA requires total makeover’

OYENIJI OLUYINKA

If I have any expectation, it is that other lawyers, especially the young ones should set up an alternative association like many organs of governance in this country. The association has had its cradle steadily desecrated.

The only rationale for being a member and being called one is to pay Practice Fee.

Those have been astronomical by your years of supposed practice at the bar.

So we pay, not because we believe the funds are judiciously utilized but because we would want to practice.

The entire processes of the last elections were a ruse.

If the banking sector has produced BVN, why can’t all lawyers be automatically recognised and businesses of the NBA conducted online?

The NBA has been unable to maintain any justifiable fight nor championed one to a logical conclusion.

We cannot even fight for the bench nor improved judicial processes. The NBA definitely requires a total makeover, now, more than ever before!

‘The Bar should re-engineer itself’

LAYI BABATUNDE (SAN)

We look forward to a period of happy reunion, in spite of the challenges our country is going through at the moment.

Moving forward, one hopes, that the Bar will re-engineer itself ready and able to play our role as a vibrant and dependable bull work in the defence of the rule of law, democracy and democratic norms, especially now, that major elections are around the corner.

I believe this can be done while ensuring the sustainability and growth of our profession, both as a business and social service!

‘We need vibrant NBA’

BAMIDELE OGUNDELE

There is no alternative to rule of law, except anarchy.

The rule of law must be obeyed. I want the NBA to look at the issue of rule of law for the love of the nation.

People are looking forward to the NBA to be at the vanguard of the rule of law and due process.

Aside that, the Bar should come forward as a unified body, irrespective of the grievances surrounding the election of Mr. Paul Usoro (SAN).

It is an internal democracy, now that people have spoken that Usoro should lead for the two years, they should bury the agitation and give all necessary support to the newly elected officers.

I am looking forward to a vibrant NBA and not a dormant one. I also want to see NBA confronting the excesses of the executives.

NBA should return back to the days of Alao Aka Bashorun whose regime, NBA was able to confront and challenge the executive excesses and lawlessness.

Even though it was military regime, the Aka Bashorun executives were able to champion them because of the truth and justice not to talk of democracy.
‘The Bar is asleep, they need to bring it back’

ADINDU UGWUZOR

In the past three years, some of us are no longer looking forward to the annual general conference, because of the way it is been conducted.

I did not get a single material last year in Lagos and they said they gave us one Ipad that the battery does not last up to 10 minutes.

To activate it, you go through hardship, visit Airtel office and at the end of the day, nobody is using it.

Another issue is that of the election that is being questioned and the constitution that is being amended anyhow.

The Bar is asleep, they need to bring the Bar back. It is not what it used to be. Bringing people to Abuja to just talk is not the NBA.

So, that enthusiasm is no longer there to attend the conference. We need the NBA that will pose a confidence.

We must reshape the organisation before we can now attend the conference.

I have been attending conference every year but the past three years now, have not been there. We need the NBA that will speak.

Lawyers are being harassed, beating here and there. We don’t want NBA that will be attachment to government.

We want an NBA that would be independent body, a normal pressure group.

We want an NBA that will make sure that the rule of law prevails in the country.

That was what NBA was in the era of Alao Aka Bashorun. We want it to be back and up and give us hope.

We want NBA that would be proud of its leadership. When we get that, the enthusiasm will be back and we will attend the conferences.

Many people will not attend this year’s because of the administration of previous conferences.
‘Integrity should be watchword for NBA’

YEMI OMODELE

NBA conference is the gathering of highest number of lawyers in Africa.

It is a forum where lawyers in all sphere of legal practice meet to deliberate on issues of law, the development of the legal profession and the challenges therein.

I expect this year’s conference to focus on how the profession will be more developed in terms of dispensation of justice with a view to addressing the issues of the forthcoming general election in the country.

The members of the body should distinct themselves from being used by politicians who want to achieve their goals at all cost.

The body should ensure that the right persons become the leaders of the necessary units of government.

The body should discourage delay of cases in court and rather fast track cases. Integrity should be the watchword of members of NBA across the globe.

Pa-Gomez

Oldest Nigeria practicing lawyer, Pa Gomez dies at 90

Acclaimed oldest Nigeria lawyer, Pa Tunji Fortunatus Gomez died Tuesday night.
Pa-Gomez
According to report, the death of Pa Gomez was officially announced by the Nigerian Bar Association, NBA, Lagos branch through its Chairman, Mr. Chukwuka Ikwuazom. Vanguard gathered that Pa Gomez as he was popularly called marked his 90th birthday some months back with pomp and pageantry. Announcing the lawyer’s passing away, the Lagos NBA branch chairman simply stated : “It is with a heavy heart that I announce the passing of Pa Tunji Gomez.
Pa Gomez was until his death yesterday night, the oldest practising lawyer in Nigeria and a deeply loved member of the Premier Bar. “The Branch had, in recognition of his excellent service and uncommon devotion to the Branch, celebrated his 90th birthday in style a few months ago. Our deepest condolences go to his immediate family.
We will greatly miss Pa Gomez and pray that his soul will rest in perfect peace. We will make further announcements in due course.” Pa Gomez was born in 1928 and enrolled into King’s College, Lagos in 1944. His activism manifested early in his eventful life, as he is reputed to have led the 1948 strike at the College which significantly turned around the fortunes of the students. Pa Gomez was part of the legal team that defended late Chief Obafemi Awolowo during his celebrated treason trial in 1962.
He is also reputed as the first lawyer to sue the Military Government in Nigeria in the celebrated case of Madam Shapara vs. Lagos State Government. An avid yoga practitioner, Pa Gomez is a long-standing advocate for the welfare especially of young lawyers. He is the author of the book: Guide to Happy Marriage. There were reactions to the death of Pa Gomez. Life Bencher, Lady Debbie Obodoukwu wrote: “Adieu great legal luminary. May your gentle soul rest in perfect peace.”

Source: www.vanguardngr.com

Prerogative-of-Mercy

Edo State Governor has inaugurated a 12-man Advisory Council on Prerogative of Mercy

The Edo State Governor, Mr. Godwin Obaseki, has inaugurated a 12-man Advisory Council on Prerogative of Mercy, headed by Hon. Justice Peter Isibor (Retd.), with a charge to uphold mercy, where applicable, in the dispensation of justice.
Prerogative-of-Mercy
Speaking during the inauguration of the Advisory Council, Obaseki noted that prerogative of mercy ensures justice is served with mercy, but without perverting the course of justice.
He said, “I believe in advising me you will balance the concept of justice with mercy for victims, victims’ family, society, the convicts and justice to all.” Other members of the council include Isaiah Gaja; the state’s Attorney General and Commissioner for Justice, Professor Yinka Omorogbe; Professor Violet Aigbokhaevbo; Mrs. F Osazee; Dr. Stephanie Ighedosa; Dr. E Oyanna; Mrs. Rosaline Edigin; Ven. Osaro Uyi Igbinosa, the state’s Controller of Prisons; the Commissioner of Police; and the Commander of the Nigerian Air Force.
The governor said that during a National Economy Council meeting in Abuja, the National Committee on the Decongestion of Prisons and Awaiting Trial Inmates presented statistics of inmates awaiting trial and condemned criminals, revealing that Edo State ranked sixth in the country.
The governor noted that with the inauguration of the council, the state will ensure justice is served, noting that it is a principle that was provided for in the constitution. “The Prerogative of Mercy is a constitutional power granted to the governor under section 212 subsection 1 of the 1999 Constitution as amended, which allows the governor to grant any person respite from execution or any punishment after consultation with an advisory council on Prerogative of Mercy as may be established by the law of the state. “It is important to note that the advisory council on Prerogative of Mercy has been provided for by the Bendel State Advisory Council on Prerogative of Mercy Law Number 11, 1980,” he said.
He said he was confident that with the composition of the Advisory Council, the principle of the prerogative of mercy would come into force to decongest prisons. The Chairman of the Advisory Council, Hon. Justice Peter Isibor said the council will equitably discharge its duties. “We will be dealing with people who are already convicted by a superior court of the land and ensure only persons who deserve mercy are recommended for state pardon,” he added.

Source: https://www.vanguardngr.com