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Legal Alert – June 2011 – Employees' and Trade Unions
 
In this Issue:-
1. Legal Alert – June 2011 – Employees' Rights and Trade Unions
2. Disclaimer
3. Subscribe & Unsubscribe
Introduction
The privatisation with the resulting expansion of many previously owned government corporations by private corporations, and the liberalisation of many sectors of the Nigerian economy should have lead to the enhancement of the constitutional rights of employees to freely join Trade Unions for the protection of their employment rights. This has unfortunately not occurred.
The politicisation of the existing Trade Unions' groups has equally undermined the institutionalisation of best Trade Union practices in Nigeria.
Employers' resistance to Trade Unions' groups could be attributable to the lack of a proper understanding and or appreciation of the current legislations on the subject matter of Trade Unions Law in Nigeria, and the benefits that such Trade Unions bring to both the private and public sectors of the Nigerian economy.
This Legal Alert seeks to bridge the information gap by providing you with an understanding of the provisions in the Trade Union's Act (as amended) with other related legislations under Nigerian Law.
Who is a Trade Union?
The Trade Unions Act defines a Trade Union to be a combination of employees, or of employers, whether on temporary or a permanent employment basis, who come together with the primary purpose or objective of regulating the terms and conditions of the employment of employees, and resisting any practice that is in restraint of trade, and lawfully applying its funds to providing benefits to its members which benefits must not political in nature.
Registration of Trade Unions
It is mandatory that a Trade Union, before it commences the execution of its objectives, must apply for and be registered by the Registrar of Trade Unions in accordance with the provisions of the Trade Unions Act (as amended).
An application for the registration of a Trade Union can only be made, in the case of a Trade Union of employees, by at least fifty (50) members of the Trade Union executing/signing the Trade Union's application form; and in the case of a Trade Union of employers, the application form must be signed by at least two members of the Trade Union of employers.
However, a Trade Union will not be registered where:-
(a) There is evidence that there already exist a registered Trade Union that sufficiently represents the interest of the employees or of the employer in a class or industry whose interest the Trade Union intending registration, wishes to represent its members. See the Supreme Court's decision in The Registered Trustees of the National Association of Community Health Practitioners of Nigeria & Others v. Medical & Health Workers Union of Nigeria & Others (2008) 1 SC (part. III) 1.
(b) The proposed name of the Trade Union closely resembles that of an existing and registered Trade Union so as to be likely to deceive the members of the public or the members of the Trade Union itself.
(c) The purpose or objectives of the Trade Union is/are unlawful.
(d) The consent of the members of the Trade Union was/were obtained by force or by fraud.
(e) The purpose of the Trade Union has ceased to exist or the Trade Union has ceased to function.
Membership of Trade Unions
No employee of a company, who is recognised as a projection of the management team of such a company or who is within the management structure of the company, can be a member of or hold office in any Trade Union in Nigeria. This proviso is to ensure that there are no conflict of interest issues in the administration of Trade Unions in Nigeria.
Also, no employee or employer can be an executive official in more than one Trade Union, at any one given time.
The membership of a Trade Union cannot be denied of an employee or an employer on grounds of ethnicity, race, religions beliefs or political opinions or affiliations.
Members of the Armed Forces, Police Force, Custom Service, Nigerian Security Printing & Minting Company, Central Bank of Nigeria, Nigerian Telecommunications Limited and every Federal or State Government establishment whose employees bear arms, cannot join or form a Trade Union. They can however establish consultative committees to protect their employment interests.
Effect of Non registration of a Trade Union.
A Trade Union cannot lawfully perform any of its objectives unless and until it is registered by the Registrar of Trade Unions. A breach of this statutory provision by a Trade Union ascribes to the Trade Union and every official of the Trade Union, with any member of the Trade Union that takes active part in the breach, legal liability and penalties as prescribed in the Trade Unions Act (as amended).
Employers are statutorily required to recognise and deal with a registered Trade Union to which their employees have registered their membership in accordance with the provisions of the Trade Unions Act (as amended). It is an offence for an employer to refuse to recognise a registered Trade Union. The liability on conviction is a fine in the paltry sum of N1,000:00 (One Thousand Naira).
Funds of a Trade Union
Employers whose employees belong to a Trade Union, or Trade Unions, are required by the Trade Unions Act (as amended) to deduct Trade Unions dues' from the wages or salaries of every such employee(s), and to remit such trade union dues' deductions to the registered office of the Trade Union concerned within a reasonable period of time or within such period as may be prescribed from time to time by the Registrar of Trade Unions.
Trade Unions are in turn required to pay to the appropriate Federation of Trade Unions, out of the contributions or trade union dues that the Trade Unions have received from their members, such a percentage of the dues as may be prescribed in the Constitution of the Federation of Trade Unions concerned.
Any Trade Union that defaults in remitting its contributions to the Federation of Trade Unions concerned shall be guilty of an offence and shall be liable on conviction to a fine of two times the said contribution.
Application of Trade Union Funds
The subscriptions and or dues contributed by the members of a Trade Union, with other funds belonging to a Trade Union, are not to be applied directly or indirectly, or otherwise to further any political objective or agenda. Where the funds of a Trade Union are applied in the furtherance of a political objective, the Trade Union and every official thereof shall be guilty of an offence.
Also, no person shall apply the funds of a Trade Union, whether directly or through any other Trade Union, or some other association or body, to prosecute any legal proceedings relating to such a person's election or appointment into any office in a Trade Union.
Any person who applies the funds of a Trade Union to purposes that are expressly prohibited under the Trade Unions Act (as amended) will be guilty of an offence and liable on conviction to a paltry fine of (N5,000:00) Five Thousand Naira.
The Benefits of Trade Unions Registration
One of the primary benefits for the registration of a Trade Union is that a Trade Union, once registered, assumes a legal personality of its own, with the legal capacity to negotiate collectively on behalf of its members' better employment conditions using the most modern tools and information for negotiating such agreements.
However, collective agreements that are negotiated by Trade Unions and executed by Employers with these Trade Unions are not legally binding except they are enshrined in the individual employment contracts of each employee. This is in the light of the privity rule in the law of contract.
It is mandatory for an employer or employers to recognise a registered Trade Union and to allow its employees the constitutional right to elect whether or not to join any Trade Union in Nigeria.
Federation of Trade Unions & Affiliations
A group of Trade Unions may combine to form a Federation of Trade Unions provided that a majority of the members of the intending combined Federated Trade Union have agreed to the creation of the Federation of Trade Union. Despite this provision, Trade Unions representing junior employees cannot combine or be affiliated to senior employees Trade Unions.
The Nigerian Labour Congress ("NLC") is the statutorily recognised Federated Trade Union for junior employees while the Trade Unions Congress ("TUC") is the statutorily recognised Federated Trade Union for senior employees.
A Federation of Trade Unions may be registered by the Registrar for Trade Unions where:-
(1) Its main objective is to represent the interest of employees;
(2) Its members are twelve or more registered Trade Unions none of which is a member of another Federated Trade Union;
(3) It is established by a majority resolution of the national delegates conference of the trade unions concerned;
(4) Its name does not resemble nor conflict with the name of another federation of trade unions;
(5) It has adopted a constitution and or rules which is/are in accordance with the first schedule to the Trade Unions Act.
A critical objective for the establishment of a Federated Trade Union is for such federation to, among other things and subject to its Rules or Constitution, collect and disseminate to its members information and advice on labour relations, economic and social matters, or such other connected fields or matters; in addition to giving advice, encouragement and financial assistance to any of its members in need of such assistance.
Rendering of Accounts and Returns by Trade Unions
Every registered Trade Union in Nigeria is statutorily required to prepare and have certified by a licensed Auditor the Trade Union's Statement of Accounts and Returns which must be filed at the office of the Registrar of Trade Unions on or before the 1st day of June of each year.
Every member of a Trade Union is entitled to receive free of charge, the audited returns and statement of accounts that is filed with the Registrar of Trade Unions, once a request is made by such a member to his or her Trade Union. Failure to file or furnish such an audited account, with returns, is an offence by the Trade Union and every official of the Trade Union.
Peaceful Picketing or Persuasion
Section 43 of the Trade Unions Act (as amended) makes it lawful for a person or group of persons, acting on their own behalf or on the behalf of a Trade Union or a registered Federation of Trade Unions, or on behalf of an individual employer or firm, in contemplation of or in furtherance of a trade dispute to attend at or near a house or place where another person reside or works or carries on business or happens to be so present, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person that is at work to abstain from working in furtherance of such a trade dispute. This exercise is more commonly known as the right to peaceful picketing or persuasion.
The right to a strike action or picketing or peaceful persuasion in the premises of an employer in furtherance of a trade dispute is guaranteed under the Trade Unions Act (as amended) and under the 1999 Constitution of the Federal Republic of Nigeria (as amended). Employees engaged in any of these activities cannot, subject to the exceptions stated in the following paragraphs, be charged with any offence arising from such peaceful exercise of their constitutional rights.
Exceptions to Peaceful Picketing and Strike Action
However, no person is allowed to subject another person or group of persons to any form or kind of intimidation, constraint or restriction of the latter's right to free movement in the course of the peaceful picketing or persuasion in another's premises.
Also, no Trade Union or registered Federation of Trade Unions or any member thereof shall in the course of any peaceful picketing or persuasion, or strike action compel any person who is not a member of its Union to join in such picketing, persuasion or strike action, in any premises, institution or highway of any kind, for the purpose of giving effect to the picketing or strike action.
Exemption from Actionable Torts in a Trade Dispute
Any action done by a person in the contemplation of or in the furtherance of a trade or labour dispute is not actionable in a Court of Law in Nigeria. Such actions include the inducement of or the persuasion or threat of persecution of Trade Union members to breach or break their contracts of employment and interference with an employer's trade or business, or the employment of some other party. Any actions outside the latter stated exemptions to the general protection to trade union activism could be actionable in a court of law.
Trade Unions and the Companies and Allied Matters Act
The provision of the Companies and Allied Matters Act do not apply to the activities of any Trade Unions, or to any Federation of Trade Unions in Nigeria. This exclusion includes the registration of a Trade Union under part C of the Companies and Allied Matters Act as such registration is declared null and void by Section 45 of the Trade Unions Act (as amended).
Jurisdiction
The jurisdiction to try offences committed under the Trade Unions Act (as amended) was conferred on a Magistrate Court having the jurisdiction in the area where the registered office of the Trade Union concerned is registered or where the offending party resides.
However, the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 now confers on the National Industrial Court of Nigeria the status of a superior Court of Record with exclusive jurisdiction to entertain all labour, employment, trade unions, industrial relations related matters, with other matters connected therewith, that arise from the workplace, the conditions of service, welfare of employees, etc. You can visit the National Industrial Court's website, www.nicn.gov.ng for more information.
Conclusion
Trade Unions in Nigeria, with the Federated Unions for Trade Unions in Nigeria, have failed to enlighten their members, employers, with other stakeholders, on the twenty-first century benefits of Trade Unions to employers and employees via Trade Unions, and the necessity for these stakeholders to enter into loose partnerships to the benefit of all concerned.
The Trade Unions have also failed to build twenty-first century tools and capacity to enlighten their own members and economically protect them whenever their employment interest are threatened or jeopardised.
The Trade Unions have also failed to find a more effective negotiation tool other than threats of or actual strike or industrial actions which have failed due to the very weak economic structures in Nigeria and the lack of financial support to the employees during the period of the strike actions. Also, the percentage of employees or employers who are members of Trade Unions have diminished considerably in the last few years when compared to the entire workforce in the country.
The democratic structures in the various Trade Unions in Nigeria are undermined by the very poor governance and electioneering structures in the larger society. The labour movement continues to find it very difficult to show a good governance example as they had in the past due to their poor structures.
The none enforcement of the provisions of the Trade Unions Act with the fundamental human rights provisions in the Constitution of the Federal Republic of Nigeria, by the Trade Unions will continue to improvise the Nigerian workforce.
Curiously also are the paltry penalties for breaches of the express provisions of the Trade Unions Act (as amended). These paltry penalties appear to be designed to encourage Employers' breach and disobedience that compliance with the present day applicable Law.
A holistic amendment of the Trade Unions Act (as amended) to meet present-day realities is therefore fundamental to the development of the Nigerian economy.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purposes ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed with many thanks.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached
Subscribe & Unsubscribe to Legal Alerts
This Alert and others produced by us are provided without any charge to you and without the creation of a client-attorney relationship. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally free to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.
Legal Alert – May 2011 – Electricity Licenses & Tariffs – Law & Regulations
 
In this Issue:-
1. Legal Alert – May 2011 – Electricity Licenses and Tariffs – Law and Regulations
2. Disclaimer
3. Subscribe & Unsubscribe
Introduction
The Electric Power Sector Reform Act, 2004 ("the EPSRA") in its preamble or Explanatory Memorandum, states that the EPSRA "...... provides for the formation of companies to take over the functions, assets, liabilities and staff of the National Electric Power Authority, develop competitive electricity markets, establish the Nigeria Electricity Regulatory Commission; provide for the licensing and regulation of the generation, transmission, distribution and supply of electricity; enforce such matters as performance standards, consumer rights and obligations and provide for the determination of tariffs."
The EPSRA has not being able to achieve, on the average, its preliminary objectives. Power generation, transmission, distribution and tariff regulation are still at dismal levels. Most contentious is the methodology for computing electricity consumption in Nigeria and charging the appropriate tariff for the electricity consumed on a balanced, commercially viable basis. Another related contentious matter is the tariff to be charged for privately generated electricity in private estates in Nigeria, on a commercial basis, due to poor public-sector generated electricity.
This Legal Alert will practically examine the above critical issues as they relate to sustainable electricity supply and investment in Nigeria.
Electricity Licensing
Section 62 of the EPSRA provides that only persons duly licensed by the Nigeria Electricity Regulatory Commission ("NERC") or persons deemed to have being issued with such a license under Section 98(2) – i.e. licenses issued before enactment of EPSRA and the unbundling of NEPA – can construct, own or operate, or in any way be engaged in the business of:-
(a) Electricity generation, excluding captive generation;
(b) Electricity transmission;
(c) System operation;
(d) Electricity distribution; or
(e) Trading in electricity.
The second exemption to the mandatory licensing requirement above stated is where a person constructs, owns or operates an undertaken that generates electricity that does not exceed 1 megawatt ("MV") in aggregate at one site; or where a person or an undertaking distributes electricity with a capacity not exceeding 100 kilowatts ("KW") in aggregate at a site; or in such other instances as the NERC determines, in the public interest, that an operating license will not be required for the electricity activity.
Electricity Tariffs
The Nigeria Electricity Regulatory Commission ("NERC") is authorised by law to create the methodologies that this Regulatory Commission will adopt for regulating electricity tariffs/prices resulting from electricity generation and trading, in addition to electricity transmission, distribution and system operations, in respect of which licenses are required as explained above.
The tariff methodologies to be adopted by NERC must incorporate the following factors:-
(a) Allow a licensee to recover its full operating costs and a reasonable return on the capital invested in the electricity enterprise;
(b) Provide incentives for the continued improvement of the quality of the electricity services provided;
(c) Provide incentives for the continued improvement of the technical and economic efficiency with which the electricity services are provided;
(d) Give to consumers information and data regarding the costs of the electricity generated;
(e) Avoid undue discrimination between consumers and consumer categories; and
(f) Phase out or substantially reduce cross subsidies.
NERC is authorised by the EPSR Act to, in establishing the tariff methodologies, differentiate among electricity consumers on the basis of differences in the total electricity consumed, the time periods that the electricity is consumed, load factors, power factors, voltage levels, location within the country and such other criteria that may affect the costs of providing electricity services and allow a lifeline tariff for some consumers.
The NERC is also required to publish a tariff methodology or any change in an existing tariff methodology that the Commission intends to approve and enforce. Objections or representations received from interested consumers or consumer groups, licensees and other electricity stakeholders must be considered by NERC before any tariff methodology is approved and enforced.
In addition to the above statutory requirements, all electricity licensees are required to keep in their offices a current copy of the tariff methodology applicable to that licensee's business and provide a free copy to any person that request for the tariff methodology during normal working hours.
Licensees are barred from transferring to the consumers any fines or penalties imposed in accordance with the EPSRA. There are Fines and terms of imprisonment, if convicted, where the tariff methodology duly approved are not followed or the consumer protection measures are not adhered to by a Licensee.
Case Law on Electricity Licensing and Tariffs
Billing for the electricity actually consumed, and adhering to the approved electricity tariffs, have lead to many disputes due to the disconnect between electricity regulations vis-à-vis the market forces of demand and supply in the electricity sector in Nigeria. An examination of some of the litigation in this subject area will provide some further enlightenment on the urgent need for practical electricity reforms.
Order No. NERC/H/061 – Funke Adekoya, SAN v. VGC Management & Maintenance Co. Limited & Eko Electricity Distribution Company.
The petitioner in this case challenged the legality of the power supply arrangement within Victoria Garden City Estate ("VGC Estate") wherein the 1st Respondent funded the design, construction and commissioning of a 15MVA (33/11kv) injection sub-station. The Nigeria Electricity Regulatory Commission ("NERC") held on 25th August 2008 that the trading arrangements in VGC Estate contravened Sections 62(1) and 100 of the EPSRA which requires that vendors in all aspects of electricity generation, distribution and tariff must possess a valid license duly issued by NERC in accordance with the EPSRA. The only exception to this license rule is where the electricity distribution capacity is less than 100kw in a designated site.
NERC also held that the Respondents cannot increase the electricity tariffs payable by the residents of VGC Estate as all the parties are under a legal obligation to abide by the NERC prior approved electricity tariffs or rates.
In another matter, Petadis Enterprise v. HFP Properties Limited, Case No. NERC/ 10/0011/08, the petitioner complained about the power supply arrangement whereby electricity was sold to the residents at Ikota Shopping Complex, by the Respondents, at rates above those approved. The Electricity Regulator held that pursuant to Sections 62, 67 and 69(1) of the EPSRA 2004, and following the Commission's decision in the above cited matter, the electricity distribution arrangement at Ikota Shopping Complex is illegal in the absence of the Respondents applying for and obtaining a NERC license for power generation in excess of IMW in the aggregate at one site. The Appeal against this decision failed as NERC held, while determining the appeal, that as a creation of statute and as the Regulator of the Electricity Industry, it must comply strictly with the provisions of the Electricity Power Sector Reform Act, 2004 (''EPSRA'') which prohibits any person, without a valid license issued by NERC, engaging in the business of electricity generation except where such electricity generation is below 1MW at a site, or where the electricity distribution takes place its capacity is below 100KW in aggregate at a site. Trading in electricity generally also requires a license subject to the exemptions mentioned above.
Soft copies of the above decisions can be found on the NERC website www.nercng.org
Conclusion:
The inability of the Nigerian Government and the Nigeria Electricity Regulatory Commission to privatise the different aspects of electricity businesses in Nigeria in accordance with the provisions of the Electricity Power Sector Reform Act, 2004 continues to inhibit and discourage private investment in the electricity sector which has in turn retarded development in other facets of life. For example, the unbundled entities are not functioning as commercial enterprises without government interference, thus resulting in very poor corporate governance, and very poor service delivery.
Also, the tariff regime, from metering to a tariff methodology, is not transparent to encourage consumer voluntary compliance or private sector increased investment. Electricity consumers continue to receive and pay for estimated electricity bills without their electricity metres being read by the electricity distribution companies.
Ultimately, the mustering of the political will to adhere to/implement the provisions of the Electricity Power Sector Reform Act will attract the much required direct local and foreign investment to the electricity industry in Nigeria.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purposes ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed with many thanks.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached
Subscribe & Unsubscribe to Legal Alerts
This Alert and others produced by us are provided without any charge to you and without the creation of a client-attorney relationship. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally free to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.
Legal Alert – April 2011 – Compulsory Insurance Regime
 
In this Issue:-
1. Legal News – Stamp Duties Office and Tax Clearance Certificates
2. Legal Alert – April 2011 – Compulsory Insurance Policies in Nigeria
3. Disclaimer
4. Subscribe & Unsubscribe
Legal News
Effective 21st March 2011, copies of the tax clearance certificates of the shareholders of a registered company and of the company itself will be required to be furnished at the Stamp Duties Office when a new company is to be incorporated or where an existing company applies to register an increase in its share capital.
Legal Alert – April 2011 - Introduction – Compulsory Insurance Policies in Nigeria
The National Insurance Commission ("NAICOM"), in pursuance of the provisions of the Nigerian Insurance Act 2003, and in a renewed attempt to reinvigorate insurance use, practice and regulations, recently fixed the end of March 2011 as the cut-off date from when all compulsory insurance policies, under various Nigerian statutes, will be fully enforced and penalties applied to defaulters.
This Legal Alert provides you with a summary of the various compulsory insurance policies in Nigeria.
Kinds of Compulsory Insurance Covers
There are six kinds of insurance policies that must be obtained and retained in Nigeria. They are:-
1. Statutory Group Life Insurance as required by Section 9(3) of the Pension Reform Act, 2004.
2. Employee's Compensation (which replaced Workmen Compensation) as required by Section 33 of the Employee's Compensation Act, 2010.
3. Occupier's Liability Insurance as required by Section 65 of the Insurance Act, 2003.
4. Motor Third-Party Insurance as required by Section 68 of the Insurance Act, 2003.
5. Builder's Liability Insurance as required by Section 64 of the Insurance Act.
6. Health Care Professional Indemnity Insurance as required by Section 45 of the National Health Insurance Act, 1999.
Now following is a summary of what each of the above insurance policy entails.
Statutory Group Life Insurance
In addition to the statutory pension contributions that employers and employees must remit under the Pension Reform Act, Section 9(3) of the Pension Reform Act mandatorily requires all employers to also make group life insurance premium payments towards "... maintain life insurance policy in favour of the employee for a minimum of three times the annual total emolument of the employee."
Employee's Compensation Contribution
The Employee's Compensation Act 2010 abrogated the Workmen's Compensation Act. Under the new 2010 legal regime, every employer is required, within the first two years of the commencement of the Employee's Compensation Act, to make a minimum monthly contribution of 1% of the employer's total employees' monthly payroll to the Employee's Compensation Fund. The Employee's Compensation Fund is created to pay adequate compensation to employees or their dependents for any injury, disease or disability arising out of or in the course of the employee's employment.
Occupier's Liability Insurance
Section 65 of the Insurance Act requires all public buildings to be insured against various hazards among which hazards are building collapse, fire, earthquake, storm and flood. The Insurance Act 2003 describes "public buildings" to be any tenement house, hostel, a building occupied by a tenant, a lodger or a licensee or any building used for the purposes of educational, medical or recreational services or for the transaction of any business.
Motor Third-Party Insurance
Section 68 of the Insurance Act and Section 3 of the Motor Vehicle (Third Party) Insurance Act requires that no person shall use, or cause or permit any other person to use, a motor vehicle unless such a motor vehicle is insured against damage to the property of third parties.
Builder's Liability Insurance
All Builder's of real property that have more than two floors must compulsorily register and insure such a building against all construction risks resulting from the Builder's negligence or the negligence of the Builder's servants, agents or consultants which negligence may result in bodily injury or loss of life or damage to the property.
Health Care Professional Indemnity Insurance
All Health Care Providers in Nigeria must compulsorily obtain and retain a Professional Indemnity Insurance cover from an Assurance Company approved by the National Health Insurance Scheme ("NHIS") Council.
Tax Benefit of Insurance
All insurance expenses are tax deductible in the computation of the tax payable by the employer and the employee under the various tax legislations in Nigeria.
Conclusion
Insurance administration and regulation in Nigeria has remained at a very appalling low ebb due to the general practice of insurance companies in only collecting insurance premiums but not settling legitimate insurance claims that may arise afterwards. The Regulator of all insurance businesses in Nigeria has equally failed to apply the statutory provisions on compulsory insurance compliance, as contained in the various statute books in Nigeria, to businesses and individuals in Nigeria.
Entrepreneurs will however now need to be on the alert by proactively assessing their businesses vis-a-viz what insurable risks they will need to obtain insurance covers against in order for these risks not to adversely affect their businesses or in some cases, out-rightly liquidate the business(es) should the insurable event occur.
In addition, there are very punitive penalties where an entrepreneur or business or individual fails to comply with the above-mentioned compulsory insurance provisions. The statutory penalties outstrip whatever short-term savings that the entrepreneur or business owner might think he or she is obtaining by non-compliance with these compulsory insurance regulations. You will therefore do well to assess your business insurance requirements and immediately contact your chosen licensed insurance company or agent to obtain the required insurance covers.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purposes ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed with many thanks.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached
Subscribe & Unsubscribe to Legal Alerts
This Alert and others produced by us are provided without any charge to you and without the creation of a client-attorney relationship. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally free to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.
Legal Alert – March 2011 – Employee's Compensation Act
 
In this Issue:-
1. Legal News – Money Laundering (Prohibition) Bill, 2011
2. Legal Alert – March 2011 – Employee's Compensation Act, 2010
3. Disclaimer
4. Subscribe & Unsubscribe
Legal News
The Nigerian Upper House of Parliament, the Senate, has passed the "long overdue" Money Laundering (Prohibition) Bill. This Bill seeks to repeal the 2004 Money Laundering Act, which is reported not to be compliant with the recommendation of the Financial Action Task Force ("FATF"). According to reports, this Bill, when signed into law, will avail the financial regulators with more comprehensive statutory provisions prohibiting Terrorism Financing among other money laundering prohibited activities.
This legislation also seeks to increase the penalties for offenders of the provisions of this law to a maximum jail term of ten (10) years when compared to three (3) years in the 2004 Money Laundering Law. The new Money Laundering (Prohibition) Law will also expand the scope of the supervisory role of the various regulatory authorities like the Central Bank of Nigeria, the National Drug Law Enforcement Agency, etc in the area of money laundering prohibition in Nigeria.
Introduction - The Employee's Compensation Act
Various provisions of Nigerian legislations on employment or labour matters have always allowed the employers to wield enormous powers and discretion to the disadvantage of the employees. This legal position has currently not really changed.
The old Workmen Compensation Act was enacted to make provisions for the payment of compensation to employees for injuries suffered in the course of their employment. However, the compensatory provisions of this Act were mostly insufficient and inequitable when a workman gets injured in the course of his or her employment. The insurance provisions of this Act were also held more in disobedience than in compliance due to very weak enforcement machinery in Nigeria.
To address the flaws in the Workmen Compensation Act, the Employee's Compensation Act, 2010 was signed into law in late 2010. The Employee's Compensation Act, 2010 repealed the Workmen Compensation Act and made comprehensive provisions for the compensation that will accrue to an employee or the employee's estate in the event of death, injury, illness or any disability arising out of or in the course of the employee's contract or employment.
This legal Alert is our contribution to the discuss of this law and how it affects the Nigerian employees, employers and the economy.
Employee's Compensation Act
According to the Nigerian Federal Government, when announcing the signing into Law of the Employee's Compensation Act, the latter law is to "provide a more open and fair system of guaranteed and adequate compensation for all employees or their dependants for any death, injury, disease or disability of any kind arising out of or from the course of employment". The Employee's Compensation Act also seeks to provide a "solvent compensation fund which will be managed in the interest of the employees and their employers. This Act further makes provisions for the rehabilitation of employees affected by work related disabilities including mental illnesses.
The Employee's Compensation Fund is required to provide for a fair and adequate assessment system from which an appeal, whose procedure is simple, fair and accessible with minimal delays, is available to both the employers and the employees.
Like the Workmen Compensation Act, which was repealed by the Employee's Compensation Act, the provisions of the Employee's Compensation Act applies to all employers and employees in the public and private sectors of the Nigerian economy with the exemption of members of the Armed Forces who are not employed in a civilian capacity, and who not statutorily covered under the provisions of this law.
Regulator of the Employee's Compensation Fund
The Nigeria Social Insurance Trust Fund Management Board ("NSTF") is statutorily empowered to implement the provisions of the Employee's Compensation Act, and to manage the solvent compensation fund created thereof.
Statutory procedures for reporting and making claims resulting from workplace injury or disabling occupational disease or death can be found in Part 11 of this law. A failure by an Employer to make a report as statutorily required constitutes an offence unless the Employer is exempted in writing from making such a report by the NSITF Board.
The statutory procedures for paying compensation to employees for any disabling injury, death or disease, whether or not such disabling injury, occupational disease or death occurred in a workplace but arose in the course of the employee's employment must be in accordance with part iv of this law.
A waiver to receive compensation, or for an Employer to make the mandatory contributions to the Fund, is prohibited and such infringement attracts criminal conviction(s) and fine(s).
Compensation payments are required to be made on a monthly basis but without prejudice to the pension contributions of the Employee which pension contributions shall continue to be deducted in accordance with the provisions of the Pension Reform Act as will Pension benefits or entitlements not be prejudiced or stopped by the provisions of the Employee's Compensation Act.
The Functions of the NSITF Board
The key function of the Nigeria Social Insurance Trust Fund Management Board ("the NSITF Board") is the charge of the overall formulation of policies for the effective administration of the Employee's Compensation Fund ("the Compensation Fund")
A further function of the NSITF Board is the formulation of policies and strategies for the assessment of compensation, rehabilitation and welfare of employees who sustain injuries or contact occupational diseases at the workforce or in the course of their employment.
Employers Contributions to the Fund
Section 33 of the Employee's Compensation Act provides that "every employer shall within the first two years of the commencement of this Act, make a minimum monthly contribution of 1% of the total monthly payroll into the Fund." After the first two years, the NSITF Board is authorised to "... assess employers for such sums in such manner, form and procedure as the Board may, from time to time, determine for the due administration of this Act."
The NSITF Board is further authorised by Section 33(2) of this Act to from time to time, make regulations prescribing the categorisation of risk factors of each class or sub class of industry and the amount of contribution to be made and for different assessment rates applicable to each class or sun- class of industry, sector or work place.
The provisions of this Act also apply to independent contractors and subcontractors as their principals are required to withhold from the remuneration payable under such contract or sub-contract any amount that the principal is otherwise liable to remit under the provisions of the Employee's Compensation Act, and ensure the remittance of such amount to the Board,.
The penalty for non-payment of the assessment is an amount equal to 10% of the unpaid assessment or the value of the security required. It is an offence where an employer defaults in providing the security required or defaults in making the payment of any amount due to the Fund or contravenes the decisions of the Board.
Any person aggrieved with a decision of the Board is entitled to appeal against such a decision within 180 days from the date the decision was pronounced and the Board must determine such a decision within 180 days following the filing of the appeal. A further right of appeal, against the appellate decision of the Board, must be made to the National Industrial Court.
Employee's Compensation Fund
All contributions under this law with the take–off grant from the Federal Government of Nigeria, fees and assessments charged or made pursuant to this Law with the proceeds from the investments of the Fund, gifts and grants, etc, are required to be deposited in the statutorily created Employee's Compensation Fund.
All Income of the Fund shall be used to pay adequate compensation to employees or their dependents for any injury, disease or disability arising out of or in the course of the employee's employment. The fund is also required to make provisions for employees with work related disabilities.
Also established under this law is the Independent Investment Committee with the mandate to advise the Board on the investment of any income standing to the credit of the Fund.
Miscellaneous Provisions
In the event of an employer becoming insolvent, the Employer's contributions to the Fund shall constitute a lien in favour of the NSITF Fund for a period of five years from the end of the calendar year from when the assessment was levied, over and above all other liens, charges or mortgages of every other security or charge, wherever or however created, on the employer's property. Section 70(3) of the Law requires that where the employer is a body corporate and the body corporate becomes insolvent, the property of the body corporate shall include the property of any director, manager, secretary or other officer of the body corporate used in connection with the business of the body corporate.
Every offence that is committed under this Law by a body corporate shall be deemed to have also being committed by every Director, Manager, Secretary or other officer or officers of the body Corporate, or where a firm, by a partner or other officer of such a firm save where such a person is able to establish that the act or omission constituting the offence took place without his or her knowledge, consent, connivance or neglect and or that he or she took reasonable steps to prevent the commission of the offence.
Conclusion
As commendable as this legislation may be, the appointment of NSITF as the Regulator of the Employee's Compensation Fund gives cause for much concern in the light of the historical inability of NSITF to manage its statutory functions before the enactment of the Pension Reform Act. Under the new pension regime, there is no evidence that NSITF has practically improved on the discharge of the functions assigned to NSITF under the Pension Reform Act. To assign further statutory responsibilities and resources on NSITF places the Nigerian employee at further statutory and implementation risks and disadvantage.
The Employee's Compensation Act also grants to the NSITF Board over-bearing unfettered discretionary powers to assess employers more than the statutorily provided one per cent (1%) of total monthly payroll after the initial two years of the commencement of the Employee's Compensation Act. Of equal concern is the provision that an employer will be liable to make its contributions to the Fund even where the NSITF Board does not carry out its statutory duty of raising the assessment in the first place.
The addition of a one per cent payroll charge or tax, which percentage is expected to increase after the initial two years of the commencement of the Employee's Compensation Act, is a further tax burden on employers of labour who are presently unable to profitably overcome the problems of multiple taxation and poor infrastructural facilities in Nigeria. The latter will ultimately increase the cost of doing business in Nigeria, discourage direct foreign investments and continue to escalate and exacerbate unemployment in Nigeria.
Provisions in this statute that make the employers liable for outside work related injuries is open to future disputes on its interpretation and application to the disadvantage of the weak employee.
In spite of the flaws with this law, Employers will be better served by ensuring compliance while looking forward to the implementation of the law drawing up enough resistance to warrant some amendments.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purposes ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed with many thanks.
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Legal Alert – February 2011 – Tax Clearance Certificates
 
In this Issue:-
1. Legal Alert – February 2011 – Tax Clearance Certificates
2. Disclaimer
3. Subscribe & Unsubscribe
Legal Alert – February 2011 – Tax Clearance Certificates
The voluntary payment of direct taxes in Nigeria has over the years systematically deteriorated as has the quality of the services delivered by the various tiers of government to the citizenry. To combat the earlier mentioned malice of tax evasion, the Nigerian tax authorities introduced the issuance of Tax Clearance Certificates in the late 1970s to enable governments and other related third parties to, at a glance, and prima facie, confirm that the holder of the Tax Clearance Certificate has in the past three preceding years of the date of the issuance of the tax clearance certificate, paid his or her or its taxes.
In logical reverse to the statement in the above paragraph, persons that do not have a tax clearance certificate are presumed not to have paid their taxes.
Unfortunately, the non-automation of the various Inland Revenue Services all over the federation of Nigeria, coupled with bureaucratic delays and archaic tax laws, have resulted in the procedure for applying for and obtaining a Tax Clearance Certificate unnecessarily protracted which in turn has encouraged a culture of corruption which has led to a negation of the statutory objectives for issuing a Tax Clearance Certificate in the first place.
The efforts of the Inland Revenue Service to correct the negative culture of non-payment and in some instances the under-payment of taxes and also, the issuance of bogus Tax Clearance Certificates in other instances, may be negated by the lack of public information on the statutory provisions on this subject matter. This Alert is therefore intended to assist you with the basic information on this subject of Tax Clearance Certificates.
What is Tax Clearance Certificate?
Various legal writers, including Dr. Asada and Mr. Zumka Sekop have described a Tax Clearance Certificate to be a written confirmation from the revenue authorities that a tax payer's tax liabilities for the three years immediately preceding the current year of tax assessment, have been settled as at the date of the issuance of the Tax Clearance Certificate, and that no further tax is due for payment. These authors have also acknowledged that in some instances, a Tax Clearance Certificate may be issued to a tax payer who has some tax arrears due for payment but have entered into an agreement with the revenue authorities on how the tax arrears will be liquidated.
The best description on what a Tax Clearance Certificate is can be found in the statutory provision of Section 101(1) of the Companies Income Tax Act ("CITA") as amended, which provides as follows:- "Whenever the Board is of the opinion that tax assessed on profits or income of a person has been fully paid or that no tax is due on such profits or income, it shall issue a tax clearance certificate to the person within two weeks of the demand for such certificate by that person, or, if not, give reasons for the denial". Reference to the Board in this provision is the Federal Board of Inland Revenue.
A tax clearance certificate must disclose with respect to the last three preceding years of assessment, of the mentioned tax payer, the total profits or chargeable income of the tax payer, the tax payable, the tax actually paid and the tax amount outstanding for payment; and alternatively, a statement that no tax is due for payment.
Mandatory Submission of Tax Clearance Certificates
It is a mandatory statutory requirement that all departments of government and commercial banks must demand for the Tax Clearance Certificate, for the last three preceding years, of any person with whom they intend to have any dealing in the areas of applications for government loans, contracts and other businesses, registration of motor vehicles, applications for firearms license, foreign exchange transactions or the remittance of funds outside Nigeria, applications for certificate of occupancy of land, building plans, transfer of legal title to land, applications for plot of land, export or import licenses, pools or gaming licenses, distributorship, registration of a limited liability company or a business name, allocation of market stalls, etc. See Section 101(2) & 101(4) of Companies Income Tax Act, as amended, for further elucidation.
Is a tax clearance certificate final and conclusive?
A contentious question with regard to tax assessments and tax clearance certificates is whether they are by themselves final and conclusive tax documents? Section 76 of the Companies Income Tax Act (as amended) provides that where no valid objection or appeal has been lodged within the time provided in the relevant tax law against a tax assessment, or where the total profit and the tax payable on such profit of a company has been determined after an objection or an appeal, the determined assessment shall be final and conclusive for all purposes of compliance with the tax provisions of the Companies Income Tax Act, as amended.
In the Matter of Alhaji Audu Bado v. Commissioner of Revenue (1972) (4) SC (reprint) 57, the Appellant's contention was that the assertion that the Commissioner of Revenue's assessment certificate is sufficient and conclusive evidence of the tax owed was contrary to the constitutional provision on fair hearing, and therefore null and void. The Supreme Court considered this objection and held that a Tax Assessment Certificate is sufficient and conclusive evidence of the tax amount due for payment provided that no contradictory evidence is produced by the tax payer to displace the figures in the Tax Assessment Certificate. The Supreme Court was further was of the view and so held that the tax payer's Constitutional right to challenge the Assessment Certificate by calling contrary evidence is in compliance with the tax payer's constitutional right to fair hearing and this right was not infringed in this instance particularly as the Appellant was served with the notices of assessments, and the Appellant never raised any objection nor provided any contrary evidence challenging the assessments. The Assessment Certificate was therefore upheld to be valid for payment by the tax payer.
In another matter, Federal Board of Internal Revenue v. Owena MOTELS Limited, 2 TLRN March 2010, the Federal High Court sitting in Akure held that on the service of the notices of assessments on the Defendant, for the period of 1993-1998, without any objection by the defendant, it meant that the sums thereon stated became conclusive, final and due for payment thirty (30) days after the service of each notice of assessment on the Defendant. Judgment was accordingly entered in favour of the Federal Inland Revenue Service based on the preponderance of evidence before this Court.
There is however no specific Section or provision in the Companies Income Tax Act, as amended, or in any tax circular which makes the issuance of a Tax Clearance Certificate final and conclusive evidence of the tax paid or payable for the stated period. The professional view in this regard is that many Tax Clearance Certificates are generally issued based on the tax returns which are filed under the self-assessment procedure. However, should the tax authority detect any under-payment of tax or fraud in the payment or non-payment of tax, the various tax legislations allow the Inland Revenue Service to undertake a tax audit and or issue further tax assessments based on the audited accounts filed with the self assessment forms, or apply the best of judgment principle or other methods allowed under the tax laws to raise further tax assessment.
Therefore, the amount of tax paid and indicated as such in a Tax Clearance Certificate will be final and conclusive where it has been adjudicated upon and or finally determined by a judicial authority.
Conclusion
The non-alignment of the existing and sometime archaic tax legislations in Nigeria to address the present day realities of doing business and living in Nigeria in the twenty-first century will continue to promote tax evasion if these legislations are not, as a matter of urgent national economic emergency, amended.
Also, Nigeria remains one of the most expensive places to do business in the world as a result of poor governance, poor systems and poor infrastructures; e.g. poor power supply, multiple taxation, high cost of funds, poor transportation network, insufficient twenty-first century compliant human capital resources, poor water supply, etc. In addition to these defects are the issues of poor public and private governance, and a high level of public and private corruption which further encourage tax evasion. It is expected that improvements in public governance and corruption will align the entire economy including promoting tax compliance and economic growth in the nearest future.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purposes ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed with many thanks.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached
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This Alert and others produced by us are provided without any charge to you and without the creation of a client-attorney relationship. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally free to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.