The Administration Of Criminal Justice Act, 2015 (ACJA)

Introduction

The Administration of Criminal Justice Act, 2015 (ACJA) is unmistakably the hottest Law in Nigeria presently and it is without doubt due to its wide applicability and revolutionary nature. The Law comes in handy for both lawyers and non-lawyers.

The Act which was signed into law in May 2015, has a 495-section law divided into 49 parts, providing for the administration of criminal justice and for related matters in the courts of the Federal Capital Territory and other Federal Courts in Nigeria.  With the ACJA, Nigeria now has a unique and unified law applicable in all federal courts and with respect to offences contained in Federal Legislations. The law repeals the erstwhile Criminal Procedure Act as applied in the South and the Criminal Procedure (Northern states) Act, which applied in the North and the Administration of Justice Commission Act.

The ACJA, by merging the major provisions of the two principal criminal justice legislations in Nigeria, that is CPA and CPC, preserves the existing criminal procedures while introducing new provisions that will enhance the efficiency of the justice system and help fill the gaps observed in these laws over the course of several decades.

The law has been described as the much awaited revolution in the criminal justice arena as the criminal justice system existing before the coming into force of this law has lost its capacity to respond quickly to the needs of the society, check the rising waves of crime, speedily bring criminals to book and protect the victims of crime.

Section 1 of the ACJA is overtly apt in explaining the purpose of the Act thus: The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.

One essential feature of the ACJA is its paradigm shift from punishment as the main goal of the criminal justice to restorative justice which pays serious attention to the needs of the society, the victims, vulnerable persons and human dignity generally. The general tone of the Act puts human dignity in the fore, from the adoption of the word defendant instead of accused, to its provision for humane treatment during arrest[1], to its numerous provisions for speedy trial, to suspended sentencing[2], community service[3], parole[4], compensation to victims of crime[5] and so-on.

A Peep Into Administration Of Criminal Justice Act, 2015

The ACJ Act has 495 Sections through which its tentacles spread across every major aspect of criminal justice system. In fact, the Act regulates more than just criminal procedure; it covers, in most part, the entire criminal justice process from arrest, investigation, trial, custodial matters and sentencing guidelines. It is about all things criminal, from the cradle to the grave. We shall take a look at some of the innovative provisions of the Act which we consider to be landmark issues as follows:

  1. Unlawful Arrests

This is one of the provisions of the Act that every Nigerian should be grateful for. By section 10(1) of the CPA, the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself. This particular provision has been greatly abused by the police who use it as a ground to arrest people indiscriminately and has been deleted by the ACJ Act. Now, police cannot arrest persons in lieu of suspects[6], where actual arrest is carried out; a suspect is entitled to notification of cause of Arrest[7] and shall be accorded humane treatment, having regard to dignity of his person.[8]

Similarly, long gone is the era in which police dabble into civil matters or even simple contracts and use their power of arrest as a weapon to intimidate and oppress a lot of innocent Nigerians. By virtue of the ACJ Act, it is now illegal for the police to arrest persons over civil wrongs and contracts[9].

  1. Plea Bargain [10]

Under the Act, plea bargain means the process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaint or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the Court’s approval[11]. The Act empowers the prosecution to enter into plea bargain with the defendant, with the consent of the victim during or after the presentation of the evidence of the prosecution, but before the presentation of the evidence of the defence. This provision of the law helps in quick dispensation of justice and saves the time and resources that would have been wasted in trial.

  1. Trial of Corporation [12]

In times past, a company could not be said to commit a crime as the law requires the presence of mens rea and actus reus to ground a charge of crime. Thus, this twin requirement has continuously shielded corporate entities from criminal liability over the years. However, by virtue of the provision of the Act,[13] a corporation can now be tried for criminal matters through its representative. A company is now treated as an adult ‘defendant’ ‘for any of­fence’ without exception[14].

  1. Suspended Sentence and Community Service [15]

The Act, in pursuance of its reformative and restorative approach, provided that a court, having regard to the need to reduce congestion in prisons; rehabilitate prisoners by making them to undertake productive work; and prevent convict who commit simple offences from mixing with hardened criminals may, with or without conditions, suspend a convict’s sentence in which case, the convict shall not be required to serve the sentence in accordance with the conditions of the suspension or the convict may be sentenced to specified service in his community or such community or place as the court may direct. Provided however, that the offence for which the convict was tried does not involve the use of arms or offensive weapon, or for an offence which the punishment exceeds imprisonment for a term of three years.

  1.     Speedy Trial

The ACJA in amplifying the provisions of the constitution to ensure speedy dispensation of justice makes the following provisions among others:

  1. Stay of proceedings[16]

The new position of the law now is that application for stay of proceedings shall no longer be heard in respect of a criminal matter before the court. This unprecedented provision puts a gag on the delays occasioned to the trial process by interlocutory applications to stay proceedings pending appeal on preliminary matters even when the substantive issues are yet to be tried on the merits.

  1. Day-to-day trial [17]

Upon arraignment, the trial of the defendant shall proceed from day-to-day until the conclusion of the trial. Where day-to-day trial is impracticable, the Act provides that parties shall be entitled to only five adjournments each. The interval between each adjournment, according to the Act, shall not exceed two weeks each. Where the trial is still not concluded, the interval for adjournments will be reduced to seven days each.

  1. Assignment of information and issuance of notice of trial [18]

By virtue of this section, information filed are to be assigned to courts by the Chief Judge within fifteen days and the Judge in turn, is to issue notice of trial within ten working days of the assignment of the information to his court.

  1. Objection to the validity of charge [19]

Any objection to the validity of the charge or information raised by the defendant shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgement.

  1. Women Sureties [20]

This is one of the provisions of the Act that has been lauded the most. This is because it has finally laid to rest the long-standing controversy as to whether a woman can stand surety for a bail applicant. The law provides that “no person shall be denied, prevented or restricted from entering into any recognition or Standing as surety for any defendant or application on the ground only that the person is a woman”.[21]

  1.  Electronic Recording of Confessional Statements [22]

A number of criminal cases are bedevilled with denial of confessional statements. It is either the defendant is denying ever making the statement or alleging that the statement was made under duress or other such vitiating factors. This often leads the court to suspend trial of the substantive matter to conduct what is called trial within trial. This takes an awful length of time and even at times leads to the confessional statement being set aside. This is largely due to the fact that the confessional statements are merely in writing. The ACJA, in conformity with the provision of the Evidence Act 2011[23], now provides that a Confessional Statement may be made by means of an electronic recording in a retrievable video compact disc or such other audio-visual means[24].

  1. Prosecution of Offences

Another interesting feature of the Act is Section 106 of the Act which makes the prosecution of cases the exclusive preserve of lawyers. In effect, police personnel who are not lawyers have lost the right to prosecute. This provision has been said to impliedly suspend section 23 of the Police Act which empowers police officers to prosecute matters in court. This section also by extension, overrules the Supreme Court decision in FRN v Osahon (2006) 5 NWLR (Pt. 973). To a very large extent, this is a welcomed development because a lot of cases are being mismanaged in court by the police officers due to lack of diligent prosecution.

  1.  Remand Time Limit [25]

Our prison cells are jam-packed today not just because of the number of convicts serving actual jail terms, but largely because of a huge number of suspects been remanded in those prisons. Suspects are being remanded at will and sometimes indefinitely. However, by the provision of ACJA[26], a suspect shall not be remanded for more than 14 days at first instance and renewable for a time not exceeding fourteen days where “good cause” is shown. At the expiration of the remand order, if Legal Advice is still not issued, the court shall issue hearing note to the Inspector General of Police and Attorney General of the Federation or the Commissioner of Police or any other authority in whose custody the suspect is remanded to inquire into the position of things and adjourn for another period not exceeding fourteen days for the above mentioned officials to come and explain why the suspect should not be released unconditionally.

  1. Compensation to Victims of Crime

Generally in criminal matters where the defendant is found guilty of the alleged crime, the only ‘remedy’ was sentencing. Victims of crimes are often neglected and left without any form of compensation. The ACJA has however brought succor to victims of crime by broadening the powers of the court to award commensurate compensation in deserving cases to victims of crime[27].

Further, the Act provides that a court may, within the proceedings or when passing judgment, order the convict to pay compensation to any person injured by the offence, a bonafide purchaser for value, or for defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence[28].

This is a very commendable provision of the law in that it does not only seek to punish the offender, but also to ameliorate the hardship occasioned by the commission of the offence thus, serving justice in both ways.

Conclusion

By and large, the provisions of the Act are geared towards curing most of the anomalies and lacuna in the existing criminal laws. But as we all know, in Nigeria, the problem is always not with the law but with the implementation of the law. This new law is very progressive, timely and in conformity with international best practices and we sincerely hope that it will be well implemented to give life to the dream justice system that the legislators have in mind for Nigeria.

 

[1] Section 8(1) Administration of Criminal Justice Act, 2015

[2] Section 460(1) Administration of Criminal Justice Act, 2015

[3] Section 460(2) Administration of Criminal Justice Act, 2015

[4] Section 468 Administration of Criminal Justice Act, 2015

[5] Section 314; 319 Administration of Criminal Justice Act, 2015

[6] Section 7 Administration of Criminal Justice Act, 2015

[7] Section 6 Administration of Criminal Justice Act, 2015

[8] Section 8(1) Administration of Criminal Justice Act, 2015

[9] Section 8(2) Administration of Criminal Justice Act, 2015

[10] Section 270 Administration of Criminal Justice Act, 2015

[11] Section 494 Administration of Criminal Justice Act, 2015

[12] Section 477 Administration of Criminal Justice Act, 2015

[13] Section 477 Administration of Criminal Justice Act, 2015

[14] Section 484 Administration of Criminal Justice Act, 2015

[15] Section 460 Administration of Criminal Justice Act, 2015

[16] Section 306 Administration of Criminal Justice Act, 2015

[17] Section 396 Administration of Criminal Justice Act, 2015

[18] Section 382 Administration of Criminal Justice Act, 2015

[19] Section 396(2) Administration of Criminal Justice Act, 2015

[20] Section 167 (3) Administration of Criminal Justice Act, 2015

[21] Section 167 (3) Administration of Criminal Justice Act, 2015

[22] Section 15 (4) Administration of Criminal Justice Act, 2015

[23] Section 29 thereof

[24] Section 15 (4) Administration of Criminal Justice Act, 2015

[25] Section 296 Administration of Criminal Justice Act, 2015

[26] Section 296 thereof

[27] Section 314 Administration of Criminal Justice Act, 2015

[28] Section 319 (1) Administration of Criminal Justice Act, 2015

Source: Lawpavillion

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Limitation Laws Do Not Apply to Debts Owed to A Failing or Failed Financial Institution – Court of Appeal

POATSON GRAPHIC ARTS TRADE LIMITED & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION

COURT OF APPEAL LAGOS DIVISION

(IKYEGH; ABUBAKAR; OGAKWU, JJ.CA)

The 1st appellant was a customer of the defunct Trade Bank Plc. which gave certain facilities to the 1st appellant secured by a deed of legal mortgage. The 1st appellant alleged that Trade Bank failed to administer the facilities properly; and consequently initiated an action against it at the High Court of Lagos State seeking inter alia, a declaration that the defunct Trade Bank Plc. was not entitled to enforce its rights of sale under the legal mortgage after the 1st appellant defaulted in repayment of the facilities. The matter was still pending in court when the respondent was appointed as the liquidator of the defunct bank which was already in distress. Thus, the respondent was substituted in the action against the 1st appellant. With the leave of court, the respondent amended the existing statement of defence and incorporated a counterclaim which for the first time brought the 2nd appellant into the matter. The appellants responded to the counterclaim of the respondent by filing a defence and a counter claim. After being served with the defence of the appellants and the counterclaim, the respondent filed an application urging the court to dismiss the counterclaim of the appellants for being statute barred on the ground that the cause of action upon which the counterclaim of the appellants was predicated arose in 1997 and 1998 and therefore could not be litigated in 2009. On the 30th of September, 2014 the lower court delivered its ruling on the application of the respondent and dismissed the counterclaim of the appellants. The appellants were dissatisfied with the court’s ruling and filed a notice of appeal at the Court of Appeal, Lagos Division. One of the issues raised in the appeal is whether the learned trial judge was correct in his decision that the appellants’ counterclaims were statute barred.

Arguing the issue, learned counsel for the appellant contended that the lower court ought to have applied the provisions of Section 3 of the Limitation Law, Cap L67, Volume 5, Laws of Lagos State, 2003 to hold that the appellants’ counterclaims were not statute barred rather than resorting to Section 8 of the Limitation Law. Learned counsel contended that Section 3 is a special provision while Section 8 is a general provision and that a general clause does not extend to those things which are specially provided for. Learned counsel cited the cases of FMBN v. Olloh and Schroder v. Major in support of the maxim generalis clausula non porrigitur ad ea quae ante specialiter sunt compretiensa; (a general clause does not extend to those things which are before specially provided for). It was stated that the lower court was in error, which occasioned a miscarriage of justice, by rejecting Section 3 of the Limitation Law which deals specifically with counterclaims and applying Section 8 which generally deals with fresh actions. Furthermore, Learned Counsel submitted that by Section 3 of the Limitation Law, a counterclaim is deemed to have been commenced on the same date as when the action was commenced. It was suggested that the respondent’s counterclaim though filed in 2009, is by virtue of its being a counterclaim, and in accordance with Section 3 of the Limitation Law, deemed to have been commenced in 1998 when the suit was commenced. Therefore, the appellants’ counterclaims to the respondent’s counterclaim though filed in 2014 and 2012 respectively is deemed in the eyes of the law by virtue of the said section 3 to have been commenced in 1998. It was therefore posited that since the 1st appellant’s cause of action in the amended counterclaim accrued in 1998 and the 2nd appellant’s cause of action accrued at the latest in 1996, their counterclaims, deemed commenced in 1998, are therefore not statute barred. Learned Counsel urged the court to resolve the issue in favour of the appellants.

Responding to the argument of the appellants, Learned Counsel for the respondent contended that section 3 of the Limitation Law is inapplicable to the appellants’ counterclaims that were already statute barred and that for purposes of the limitation of action, a cause of action arises where there is a person who can sue and another who can be sued. Learned Counsel stated that the 2nd appellant only became a party in the suit in 2012 and could not have been deemed to have commenced a counterclaim in 1998, when it was not yet a party in the suit.

The respondent’s Counsel submitted that Section 3 of the Limitation Law is inapplicable to save the appellants’ counterclaims that were already statute barred. It was stated that for purposes of limitation, a cause of action arises where there is a person who can sue and another who can be sued. It was stated that the 2nd appellant only became a party in the suit in 2012 and could not have been deemed to have commenced a counterclaim in 1998, when it was not yet a party in the suit. It was also submitted that the 1st appellant’s counterclaim was for libel, which cause of action accrued in 1998 with a limitation period of three years; while the 2nd appellant’s counterclaim was in contract, which cause of action accrued between 1993 and 1996 with a limitation period of six years and therefore there was no way the cause of action which arose at different times and were filed at different times could be deemed to have been commenced together. Learned Counsel further contended that even though the respondent’s counterclaim may have been statute barred, it was rescued by the provisions of section 44 of the Nigerian Deposit Insurance Corporation Act (NDIC Act), a provision which does not apply in favour of the appellants. Learned Counsel cited UBA Plc v. Abdullahi to support his argument that by virtue of section 44 of the NDIC Act, its counterclaim is not statute barred, even though the limitation period had long expired. Learned Counsel urged the court to discountenance the argument and authorities cited by the appellants as being inapplicable and resolve the issue in favour of the respondent.

In resolving the issue, the court held thus:

The crux of the appellants contention is hinged on the legal principle generalis specialia derogant (special things derogate from general things). The appellants posit that the special provision of limitation period as it relates to a counterclaim in Section 3 of the Limitation Law overrides the general provision as it relates to a fresh action as set out in Section 8 of the Limitation Law. In Maxwell on Interpretation of Statutes (11th Ed.) page 164, it is stated that where a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. See Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt 91) 622, Schroder v. Major (supra) and FMBN v. Olloh (supra). It is on this premise that the appellants maintain that Section 3 of the Limitation Law was applicable and that their counterclaims to the counterclaim of the respondents consequently dates back to 1998 when the action was commenced since the counterclaim of the respondent though filed in 2009 also dated back to 1998. The basis of this contention is the appellants’ presumption that the provisions of the Limitation Law apply to the respondent’s counterclaim, such that it can be said to have been filed in 1998 in order for the counterclaims to counterclaim to also take benefit of Section 3 of the Limitation Law and be deemed to have been filed in 1998. The provision of Section 3 of the Limitation Law is relevant. It provides:

            “3.       Set-off and Counterclaim

For the purposes of this Law, any claim by way of set-off or counter-claim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counter-claim is pleaded.”

The above provision is explicit and admits of no ambiguity in its stipulation that a counterclaim for purposes of the Limitation Law is deemed to have been commenced on the same date as the action in which the counter-claim is raised. So on the face of it, it would appear that Section 3 would apply to the appellants’ counterclaims for it to be deemed as having been commenced on the same date as the respondent’s counterclaim, which by the said provision would relate back to 1998 when the action was filed. But there is a caveat, and a big one at that. This shall only be so if the respondent’s counterclaim was filed pursuant to the provisions of Section 3 of the Limitation Law, or put differently, if the Limitation Law applied to the respondent’s counterclaim as to give it its validity. Where it does not, then totally different considerations would apply.

It is in this wise, that the provisions of Section 44 of the NDIC Act come into play. It reads:

“44.     The provisions of the Limitation Law of a State or the Limitation Act of the Federal Capital Territory shall not apply to a debt owed to a failing or a failed insured institution.”

The above provision-is clear that the Limitation Law does not apply to the respondent’s counterclaim. The effect of this therefore is that by the provision, the respondent’s counterclaim to recover the debt owed Trade Bank Plc by the appellants cannot become statute barred, the effective commencement date for the counterclaim is when it was filed as it cannot be deemed to have been commenced when the main action was commenced because the provision of Section 3 of the Limitation Law which provides for that does not apply to the respondent’s Counterclaim.

Issue resolved in favour of the respondent.

Andrew Igboekwe, Esq., SAN with Miss Ogochukwu OfiIi & Mrs. Damilola Ajayi for the Appellants.
Layi Babatunde, Esq., SAN with J. O. Akolade, Esq., Opeoluwa Akinosi, Esq., Miss Tomike Layi-Babatunde & David Owoeye, Esq., for the Respondent.

This summary is fully reported at (2017) 11 CLRN
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The Tax Appeal Tribunal Has Jurisdiction to First Hear and Determine Tax Assessment Appeals

Tax Litigation concept

CNOOC EXPLORATION AND PRODUCTION NIGERIA LIMITED & ANOR v. NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR

COURT OF APPEAL LAGOS DIVISION

(IKYEGH; OGAKWU; TUKUR, JJ.CA)

The appellant and 1st respondent are parties to a Production Sharing Contract (PSC) concerning an Oil Mining Lease (OML) 130 over a Contract Area (the Contract Area) in which another company, Total Upstream Nigeria Limited is the Operator of the Contract Area. In accordance with the PSC, Total Upstream Nigeria Limited prepared the Petroleum Profits Tax (PPT) returns for the 2010 accounting year in respect of the Contract Area and sent same to the 1st respondent for filing with the 2nd respondent. However, the 1st respondent failed to file the returns and instead unilaterally prepared and filed another returns with the 2nd respondent. Relying on the returns filed by the 1st respondent, the 2nd respondent assessed the Contract Area for the purpose of Tertiary Education Tax and served the Notice of Assessment on the appellants in October, 2011.

The Operator on behalf of the appellants filed a Notice of Objection challenging the Notice of Assessment on the ground that it believed that it was incorrectly prepared. After receiving the Notice, the 2nd respondent replied by sending a letter to the Operator stating that the objection had been “noted for memorandum purposes only”. The appellants, being dissatisfied with the response, filed an appeal to the Tax Appeal Tribunal on the ground that the assessment was wrong. After being served, the 2nd respondent challenged the appeal on several grounds one of which was that the appellant lacked the locus to appeal to the Tax Appeal Tribunal since the returns were not filed by the appellants but by the 1st respondent and that non-joinder of the 1st respondent rendered the appeal incompetent. The Tax Appeal Tribunal in its ruling delivered in June, 2012 dismissed the objection of the 2nd respondent and went ahead to join the 1st respondent in the matter.

After being served with the joinder, the 1st respondent filed a Notice of Preliminary Objection challenging the jurisdiction of the Tax Appeal Tribunal to hear and determine the appeal on grounds which bordered mainly on the allegation that the claims before the Tax Appeal Tribunal were connected with taxation of companies carrying on business in the Federal Republic of Nigeria, and as such only the Federal High Court has the jurisdiction to the exclusion of any other court to entertain the matter. In its ruling of February 2013, the Tax Appeal Tribunal held that it has the requisite jurisdiction to entertain the appeal while striking out the 1st respondent. The 1st respondent was dissatisfied with the ruling and consequently filed a Notice of Appeal at the Federal High Court, Lagos Division urging it to overrule the Tax Appeal Tribunal.

After hearing the parties, the Federal High Court Judge gave his ruling on the 22nd of May 2015 in which it held that the appellant had no locus standi to initiate the appeal and that the Tax Appeal Tribunal lacked jurisdiction to entertain the appeal as the subject matter is connected with the taxation of a Nigerian company which is an exclusive duty of the Federal High Court. The court also held that the non-joinder of the 1st respondent was fatal as it strips the Tax Appeal Tribunal of jurisdiction to hear the appeal. The appellants became aggrieved and filed a Notice of Appeal at the Court of Appeal, Lagos Division. One of the issues raised for determination was whether the jurisdiction of the Tax Appeal Tribunal to entertain the appellants’ appeal infringed on the exclusive jurisdiction of the Federal High Court to hear tax disputes as stipulated under section 251 of the Constitution of the Federal Republic of Nigeria, 1999.

Arguing the issue, Learned Senior Counsel for the appellant submitted that the Tax Appeal Tribunal has the jurisdiction to entertain the tax appeal because the Federal Inland Revenue Service Act, which established the Tax Appeal Tribunal does not encroach on the exclusive jurisdiction of the Federal High Court. Learned Senior Counsel further argued that the Tax Appeal Tribunal is an administrative body and that its proceedings is a condition precedent to the assumption of jurisdiction by the Federal High Court. Counsel relied on section 251(1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Federal Inland Revenue Service (Establishment) Act, 2007; Eguamwense v. Amaghizemwen. Learned Senior Counsel further contended that the Tax Appeal Tribunal was not created to be a court but to be deemed as functioning like a civil court. Learned Senior Counsel cited Paragraphs 1(1) and 20(3) of the Fifth Schedule to the Federal Inland Revenue Service Act, 2007; Orji v. Dorji Textile Mills. Reliance was also placed on the decision in Nigerian National Petroleum Corporation v. Tax Appeal Tribunal and 3 Ors to submit that the Tax Appeal Tribunal is not a court. Counsel urged the court to resolve the issue in favour of the appellant.

Responding to the argument of the appellant, Learned Senior Counsel for the Respondents submitted that the Tax Appeal Tribunal does not have the jurisdiction to hear and determine tax appeals and that once a court is clothed with exclusive jurisdiction, other courts are precluded from exercising original jurisdiction over the matter. Learned Senior Counsel cited section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria and the cases of Buhari v. INEC and Oyeniran v. Egbetola. Learned Senior Counsel further submitted that the Tax Appeal Tribunal was deemed to be a Civil Court by the National Assembly and that it was placed in the same category with courts mentioned in section 6(5)(j) of the 1999 Constitution. Counsel also argued that by the clear wording of Paragraph 20(3) of the Fifth Schedule to the FIRS Act, the Tax Appeal Tribunal is to be treated as a civil court for the purposes of exercising jurisdiction in respect of disputes arising out of tax laws, which pertain to taxation of companies in Nigeria, tax payable to the FIRS, an agent of the Federal Government. Learned Senior Counsel also relied on Nospecto Oil and Gas Ltd v. Olorunnimbe to argue that the provisions of the FIRS Act, no matter how laudable and practicable, cannot override the provisions of the Constitution donating exclusive jurisdiction to the Federal High Court in respect of revenue of the Federal Government, taxation of companies and issues involving Federal Government agencies. Counsel urged the court to discountenance the argument of the appellants and resolve the issue in favour of the respondents.

In resolving the issue, the court held thus:

Now in Shell Nig. Exploration and Production & Ors v. FIRS & Anor, this Court at page 38 held thus:

“The procedure for resolving claims and objections such as in the instant matter, are spelt out. When an assessment is made and the party is not satisfied, it can serve a Notice of Objection with the FIRS. It can also file a notice of refusal to amend the assessment as desired where it disagrees with FIRS. The party may also then appeal against the assessment to the Tax Appeal Tribunal. If the party is still dissatisfied with the decision of the Tax Appeal Tribunal, then it can approach the Federal High Court, the Court of Appeal and the Supreme Court.”

The above recognition of the Tax Appeal Tribunal by this Court as a vital step towards the resolution of tax related disputes shows that the Tax Appeal Tribunal has jurisdiction over such matters.

The facts of the case of Esso v. NNPC contained in the certified true copy presented to this Court by learned senior counsel to the Appellants, are also relevant to this instant one, as the facts in issue there also revolved around petroleum profit tax and education development tax arising from a production sharing contract. In that case, this Court at page 11 of the CTC of the judgment, wholly approved the procedure prescribed by the petroleum profit Tax Act, which includes an appeal to the Tax Appeal Tribunal. This Court then went on to hold at page 12 thus.

“It must also be stated that Section 251(1)(b) of the Constitution of Nigeria 1999 as amended gives exclusive jurisdiction to the Federal High Court in civil causes and matters connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation. It may be added that in respect of the petroleum profit tax, it is after the exhaustion of remedies or the process set out in (i) (ii) and (iii) above that a person may approach the Federal High Court”.

Part of the process referred to by this Court above, is an appeal to the Tax Appeal Tribunal. In essence, the combined effect of the aforementioned decisions is that the Tax Appeal Tribunal has jurisdiction to entertain tax matters such as in the instant case.

Issue resolved in favour of the appellants.

A. Tunde Oluwo with Berenibara and A. Adewusi for Appellants
Chidimma Okoronkwu for 1st Respondent
Oladapo Akihaosun with A. Jolaoso and O. Omeyele Miss for 2nd Respondent.

This summary is fully reported at (2017) 10 CLRN
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How to Compensate for Mental Stress at Our Workplaces

workplace-stress

By Michael Dugeri

Work-related mental stress has been described as the adverse reaction experienced by workers when workplace demands and responsibilities are greater than the worker can reasonably manage or are beyond the workers’ capabilities. Therefore, it has been advocated that employers need to balance both demands and resources in the workplace in order to manage work-related mental stress.  This is because high levels of job demand and low levels of job resources could easily result in mental stress for the workers.

Mental health is an integral component of Occupational Safety and Health (OSH), which is a primary concern of labour and employment law. A safe workplace is not only about physical safety – it’s about the worker’s psychological safety too.  This means that employers have a duty of protecting the safety, health and welfare of their workers. The enjoyment of these standards at the highest levels is a basic human right that should be accessible by each and every worker. Regardless of the nature of their work, workers should be able to carry out their responsibilities in a safe and secure working environment, free from all forms of hazards.

The law provides for compensation to workers who have experienced mental stress in the course of their employment. The Employee’s Compensation Act, 2010 (“ECA”) provides that compensation is available to an employee who suffers mental stress, where the mental stress is an acute reaction to a sudden and unexpected traumatic event arising out of or in the course of the employee’s employment; or if the employee has been diagnosed by a medical practitioner as suffering from mental stress arising out of the nature of work or the occurrence of any event in the course of the employee’s employment. See section 8 ECA.

Section 8 (2) of the ECA provides that where the mental stress is caused by the decision of the employer to change the work or the working condition in such a way as to unfairly exceed the work ability and capacity of the worker (thereby leading to mental stress), such situation shall be liable to compensation to the degree as may be determined under any regulation made by the Nigeria Social Insurance Trust Fund (NSITF). The NSITF is the statutory body charged with the responsibility of administering the Employee’s Compensation Scheme (ECS) established under the ECA.

It is pertinent to note that the ECS is a social security/welfare scheme that provides comprehensive compensation to employees who suffer from occupational diseases or sustain injuries arising from accidents at the workplace or in the course of employment. The basis for ‘compensation’ is the employer’s duty of care. The idea of compensation suggests that someone has suffered a wrong for which he has to be compensated monetarily. This implies that another person has a duty to prevent the occurrence of the wrong suffered. Payment of compensation by the employer to the worker is rooted in the accepted common law principle that the employer has a duty of care, a duty to protect the health, welfare and safety of the workers. Where the worker sustains injuries, gets ill or dies under work-related circumstances, the employer is liable to pay compensation to the worker or to his dependents, in the event of death. The ECS is funded by monthly contributions from employers for the purpose of this compensation, as may be required from time to time by deserving workers.

The system of compensation for occupational mental stress established under the ECA is laudable, even though it also poses certain challenges for affected workers. First, having to prove that the worker’s mental stress actually relates to his/her work is tough, especially in an environment like Nigeria that is plagued with many other intervening factors. Second, it is doubtful if monetary compensation is adequate for victims of occupational mental stress or if full rehabilitation of the victim is possible in all cases. It is against the foregoing that it is argued that a better system of compensation is the type that mirrors contemporary frameworks for OSH, which are designed to be proactive rather than reactive to the physical, social and mental aspects of the workers’ health. Just like physical infirmities, mental health problems in the workplace are a global phenomenon. In Nigeria, the typical work environment is full of precipitating factors such as:

  1. High quantitative and qualitative workload,
  2. Inconsiderate work schedules,
  3. Poor remuneration, deficient welfare package, delayed/unpaid salaries.
  4. Neglect of safety measures, etc.

All these translate to an increase in the risk of mental health problems in the workplace. Unlike the ‘loud’ nature of physical health problems, mental health problems in employees is a ‘silent’ phenomenon, which goes unnoticed and may be confused with lack of commitment to the job. Unrecognized mental health problems in the workplace can affect performance and productivity, hence the need for organizations to be proactively pre-occupied with promoting and ensuring both the physical and mental health of its employees. Beyond the issue of high quantitative and qualitative workload, closer attention should also be paid to physical features of the workplace like lighting, ventilation, work space, sanitation and noise levels.

Organisations can manage and prevent stress by improving conditions at work. While the common treatment for mental health problems is prescriptive medication, employers have a role in making adjustments and helping the affected individual to manage the problem at work. Some of the suggestions that have been advanced by experts in the field of OSH include the following:

  1. Having senior management committed to  reduce  workplace stress;
  2. Consulting with workers to create and promote a mentally healthy workplace culture;
  3. Use validated risk assessment processes;
  4. Ensuring the organisation has appropriate policies and procedures in place and workers are aware of these;
  5. Managing workplace psychosocial risk factors and stressors;
  6. Providing regular and respectful performance feedback;
  7. Having a ‘Harassment Contact Officer’ in place for workers to speak to;
  8. Provide training around managing workplace and individual stress levels;

Mental health is an intricate but pressing workplace issue with multiple consequences. Occupational demands can be highly stressful and many jobs make severe demands in terms of responsibility, time, and performance. Rather than continuing with a culture of indifference, denial and evasion, there is need for Nigerian workplaces to recognize mental health as a realistic and legitimate concern, as well as display total commitment to the implementation of policies and practices that will ensure a supportive framework for workers.

Occupational Injury: The NIC Awards N10.3m Against Employer

The National Industrial Court, Lagos Division has ordered Lagos Travel Inn to pay N10.3m to one Mr. Emmanuel Abah, who sustained an ankle injury after being trapped by the hotel’s elevator sometime in 2013.

The court, in a judgment by Justice J.D. Peters, said the order must be complied with within 30 days of the judgment.

Abah had, in the suit filed through his lawyer, Mr. Daniel Onwe, in 2014, explained that he was trapped by the hotel’s faulty elevator in the course of his duty as a cleaner in the employment of the hotel.

He claimed that the management of the hotel had been aware of the faulty state of the elevator, which was noisy and had on several occasions trapped people, but refused to fix it.

He claimed that rather than fix the elevator, the management urged the employees to continue to use it so as not to attract the attention of visitors to the hotel.

He claimed that on November 13, 2013, while trying to take the elevator from the ground floor to clean the rooms upstairs, one of his legs was caught in the doors.

He said that as he stepped his left foot onto the floor of the elevator while lifting his cleaning materials, the elevator swiftly took off in the upward direction with the doors trapping his left leg, pulling and dangling him headlong.

He said his ankle bone was crushed in the process, which eventually caused him a permanent injury.

He claimed that after receiving treatment in a hospital with no improvement, he was advised to seek the intervention of a trado-medical bone centre at Otukpa in Benue State, where he incurred extra expenses of N286,000, and a medical balance of N40,000.

He claimed that upon being discharged from the trado-medical centre, he resumed work on July 1, 2014, and was reluctantly admitted and redeployed to the laundry section.

Abah said he subsequently applied to the hotel for a loan of N40,000 to enable him to defray the outstanding medical bill, but his application was ignored.

He said two weeks after his resumption he was eventually served with a letter terminating his appointment without any reason.

He contended in his suit that his sacking was unjustifiable and urged the court to order the hotel to pay him N30m as compensation for the injury he sustained in the course of duty and another N10m for unfair dismissal.

In his judgment, Justice Peters held that with the permanent damage done to the leg of the claimant, there was no market where he could purchase a new leg.

The court accordingly, awarded the sum of N10.3m against Lagos Travel Inn, as damages for the permanent injury suffered by Abah.

Source: Jimi Disu Blog

Nigeria’s criminal justice system in need of overhaul, lawyers say

For an effective criminal justice system in the country, some eminent constitutional lawyers on Monday canvassed the revision and harmonisation of the various criminal laws.

The lawyers, who spoke with the News Agency of Nigeria (NAN) in Lagos, said a review of the criminal laws would give fillip to effective prosecution of cases and also add value to the nation’s administration of criminal justice system.

Mr Michael Dugeri, a human rights campaigner, urged that attention should be paid to issues bordering on speedy disposal of cases in a bid to decongest the nation’s prisons.

“There must be close attention to issues of decongesting the prisons which I think is fast becoming a national embarrassment.

“This should begin with a thorough reformation of the manner of administration of criminal justice in our courts.

“There are provisions under the Administration of Criminal Justice Act (ACJA) 2015 on speedy criminal trials; however, the impact of the provisions of that law is yet to be felt as our prisons are still overflowing with inmates.

“More work needs to be done in ensuring compliance with laws that encourage speedy trials; there should also be partnership with the various state governments on initiatives that are necessary to bring about these desired reforms,” he told NAN.

Also, a crusader for indigent prisoners, Mr Anthony Makolo, harped on an effective application of the Administration of Criminal Justice Act to promote speedy trials and rid the prisons of overcrowding filled with thousands of awaiting trials and underage.

He urged judicial officers to shun frivolous applications aimed at delaying trial of criminal cases and strictly comply with the provisions of the Act for speedy disposal of cases.

According to Makolo, judges must be inclined to giving meaning to criminal laws by granting favourable bail conditions to accused particularly where the law allows them to do so.

In the same vein, Mr Justine Eliagwu, called for a comprehensive review of the criminal laws.

According to him, the doctrine of plea bargain should be discarded from the criminal justice system to make accused persons to face trial.

“There is need to promote and enhance the laws as they relate to the criminal justice system in the country.

“For instance, the issue of plea bargain, in my view, should be discarded. From a lay man’s view point, it means to plead guilty to a lesser charge and one pertinent question here is why?

“This is simply because the sentence of a full trial is far more severe than the lesser one he opted for. This again, in my view, does not serve the purpose of justice.

“It is my submission that the doctrine be discarded as it encourages corruption; it is an escapist machinery to dodge the sledge hammer of the law put in place to punish such an offender.

“Hence, Section 179 of the Criminal Procedure Act lends its support,” he said.

On his part, another lawyer and social critic, Mr Aondonenge Akaa, also wants a total overhauling of the criminal justice system.

Akaa said: “A total overhaul of the criminal justice system is required for the anti-corruption drive of the present administration to succeed.“The doctrine of presumption of innocence should be made inapplicable in all corruption cases, especially high profile cases involving public funds.

“With the congestion of our regular courts and the strict constitutional rule of trial within a reasonable time coupled with the presumption of innocence principle, the ACJA is merely fanciful.’’

He said constitutional amendment would also ensure a more proactive legal framework in the country.

Source: The Guardian

Effective Contract Management

Contract management, sometimes referred to as contract administration, refers to the processes and procedures that companies may implement in order to manage the negotiation, execution, performance, modification and termination of contracts with various parties including customers, vendors, distributors, contractors and employees. While businesspeople often dismiss contract preparation as “lawyer’s work” that has little or nothing to do with the important aspects of the working relationship between the contractual parties, contracting is actually one of the crucial activities in determining the success of any business arrangement.

We assume that one of your roles as in-house counsel will be assisting your internal clients with contract preparations and it is absolutely essential that you work closely with your clients to establish well in advance your mutual expectations regarding the role that you will be expected to play in the negotiation, drafting, finalization and monitoring of a particular contract. In most cases, you should expect to be responsible for drafting the contract and all related documents as well as spotting and resolving specific legal issues. Managers inside your company will typically be responsible for identifying and resolving all of the business and risk management issues associated with the contract and the underlying relationship between the parties. However, in-house counsel do sometimes become heavily involved in negotiation of business issues and to have a great deal of input into the strategy goals and objectives of a particular contractual arrangement.

For each proposed contractual arrangement you should get in the habit of going through a checklist of the actions that you might be expect to take in order to assist the company. You’ll eventually develop your own checklist that you can refer to as time goes by; however, when you are first starting out we recommend that you consider each of the following “Top 10 Steps for Effective Contract Management”:

  1. Make sure that you begin with a thorough investigation of both the business and legal background for the contract and the proposed transaction and business relationship in which the contract is to be used. Appropriate representatives of the company should be interviewed to determine how the relationship has evolved and what, if any, commitments may have already been made by the parties. This is also the time to give special consideration to the actual and potential impact on the company’s existing obligations and business relationships.
  2. Working with the appropriate representatives of the company, you should identify the steps that need to be taken in order to comply with the requirements of any contract review and signature authority policies and procedures that have been established by the company. For example, does the contract need to be reviewed and approved by senior management and/or the board of directors and, if so, what needs to be done in order to expedite review and consideration.
  3. Once you have a good understanding the scope of the proposed business relationship you should identify the contracts and related documents required to document the relationship and complete any immediate transaction and then proceed with collecting and reviewing examples of the necessary contracts to expedite the drafting process and isolate specific questions that the company will need to answer in order for the contract to be complete and accurate.
  4. If warranted by the complexity of the proposed transaction, you should prepare a time and responsibility schedule for drafting, review, discussion, revision and completion of all required items and activities. For example, a time and responsibility schedule is often useful for a financing transaction that must pass through several stages over an extended period of time including preparation of a business plan, presentations to potential capital providers, preparation of financing documents and satisfaction of closing conditions.
  5. Taking into account discussions with company representatives regarding your role, you should participate in the negotiation of the essential terms of each contract and, if appropriate and useful, prepare a term sheet or letter of understanding to be sure that the parties are in agreement regarding the essential terms before time and effort is spent on contract preparation. If you are not to be directly involved in negotiations you should, at a minimum, provide company representatives with a list of questions that will need to be answered in order for the contracts to be completed so that the representatives can discuss them with their counterparts from the opposite party.
  6. Once background information has been collected and preliminary agreement has been reached on the essential terms, you should prepare the initial draft of each of the required contracts and related documents or, in cases where the opposite party is responsible for drafting, review the initial draft of such items prepared by the opposite party; discuss and negotiate necessary changes in the initial drafts and make sure that revised drafts are circulated for review and finalization. The timing of the drafting and revision process is crucial since delays can push the relationship off track and jeopardize realization of the business opportunities anticipated by both parties.
  7. Once the documentation is finalized you should prepare for the closing of the transaction, including pre-closing meetings and preparation of closing checklists and memoranda. If certificates and/or consents from outside parties are required in order for the contracts to be finalized and become effective they must be planned for well in advance and may themselves require time-consuming negotiations.
  8. Once all conditions to consummation of the proposed business relationship have been satisfied or waived, you should oversee completion of the closing of the transaction at which time all contracts and related documents are executed and exchanged and any required performance at the closing (e.g., cash payments) is completed.
  9. Once the closing is completed you should make sure that all of the closing documents are organized and that copies are delivered to all interested parties. This is also the time for you to make sure that the files relating to the transaction that have been opened during the process described above are organized so that they can be easily accessed in the future should questions arise.
  10. Working with company representatives, you should establish a plan for ongoing review of the performance of each of the parties under the terms of the contract, at least in those cases where the contract is long-term and calls for continuous performance over an extended period of time. As part of the plan you should calendar any dates identified in the contracts that may require follow up action, such as performance milestones and option elections.

We cannot overemphasize the importance of determining your role in the contracting process and the level of active involvement that you may have in negotiations relating to the contract. In-house counsel’s role can vary from active negotiator to behind-the-scenes scrivener. In all situations where you are empowered to take some actions without managers being present, you should make sure that procedures are in place to promptly communicate any new development to the appropriate businesspersons within the company. Absent this type of communication, and a clear delineation of responsibility between you and other company participants, you may find that responsible managers within the company are unhappy with the way the company is being represented. Moreover, lack of coordination increases the risk of embarrassing conflicts and misunderstanding that send the wrong message to the parties on the other side of the transaction.

Even if you are not expected to play a primary role in negotiating the terms of the contract, you should make every effort to encourage managers to notify you as soon as possible that the transaction is contemplated. While businesspersons do not always do the best job of informing their lawyers in advance, even in the best of circumstances, you should always attempt to sensitize managers and other involved parties within the company to the possibility that unforeseen legal issues may emerge from a particular business decision. With that knowledge and understanding, businesspersons can be trained to always discuss business points with the caveat that a final decision will ultimately depend on review by “legal”. This Top Ten helps in-house counsel define the important considerations in the contract management process, regardless of their role.

Culled from Association of Corporate Counsel