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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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.

Safeguards against Breach of the Lawyer’s Duty of Confidentiality

By Michael Dugeri

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It is commonly understood by lawyers that they are under a duty to protect confidential information relating to their relationship with clients. The law imposes on lawyers a strict obligation to safeguard client’s confidential information.

Section 19 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 (“the Rules”) is explicit that “all oral or written communications made by a client to his lawyer in the normal course of professional employment are privileged”. Sub-section (2) goes on to provide that a lawyer shall not knowingly:

  1. reveal a confidence or secret of his client;
  2. use a confidence or secret of his client to the disadvantage of the client; or
  3. Use a confidence or secret of his client for the advantage of himself or of a third person unless the client consents after full disclosure.

 It is to be noted that, like all rules of law, there are also exceptions to this rule. For instance, disclosure is permissible when required by law or a court order, or with the client’s consent. See section 19 (3) of the Rules.

The lawyer’s duty of confidentiality has broad application. It continues after the representation ends and applies to information received about prospective clients as well. The duty not only forbids revealing information, but also proscribes a lawyer’s use of confidential information about a client to the disadvantage of that client. With regard to former or prospective clients, a lawyer may not use confidential information to the disadvantage of a former or prospective client unless that information has become “generally known.”

Generally, both the duty of confidentiality and the lawyer-client privilege encourage clients to trust their lawyers. The lawyer-client privilege, especially, encourages clients to tell his or her lawyers everything, though the duty of confidentiality does this as well. With complete information, lawyers can provide the best and most appropriate advice.

Notwithstanding its importance, few lawyers and law firms have put in place safeguards against the breach of this fundamental duty. It is often taken for granted by most lawyers and law firms that this duty would enforce itself, which is hardly the case.

As a lawyer or law firm, it is necessary to do a self-appraisal of the systems you have in place for managing clients’ confidential information and consider how you might improve them to create greater confidence from your clients and insulate yourself against potential liability for breach of the duty of confidentiality.

The following are some pointers to remember about client confidentiality:

  1. Don’t discuss business outside the office.
  2. Never discuss one client’s business with another client.
  3. Beware of water cooler conversations. Can your chatter with the client at court premises be overheard by other clients or lawyers?
  4. Don’t talk to the press about your client’s business. Decline to answer if a reporter or blogger calls to ask if your firm is representing a particular person. Decisions about what to say to the press should be made by the client.
  5. Remember the law is a profession, not merely a business. Clients pay good money for help with their problems. They deserve respect for their privacy.
  6. Be especially cautious in office sharing arrangements. Beware “gossip” with employees of other firms. Keep case files segregated.
  7. Remember that your duty of confidentiality continues even after the case is closed. It also continues after you leave the law firm.
  8. Be wary when non-staff members want to use your office for ‘short meetings’ or ‘quick research’. Make sure no client files or documents are lying about carelessly or visible.
  9. Never release information to callers such as a client’s accountant or business associates or partners without authorization.
  10. Be careful when disposing of confidential papers, including rough drafts or duplicates. Use shredders or other secure disposal methods for sensitive materials.
  11. Never forget that the attorney-client relationship is built on mutual trust and confidence. Clients come to you expecting a form of sanctuary. You must honour that.
  12. Put in place secured means of storage of clients’ files and communication with clients.

The law office is an exciting place. The lawyers and support staff are privy to information others don’t have. You learn interesting things about prominent people. Resist the temptation to share this information with outsiders, including friends and family. The duties of client confidentiality are broad. It is not limited to merely what the clients tell you. It also precludes unauthorized discussions of case strategy or evidence.

Loose lips sink ships – and might well lead to ethical and malpractice problems. Every member of a law firm, from senior partner to the litigation clerk, is under a strict obligation to protect the privacy and secrets of clients. Rule 19 (4) provides that:

“A lawyer shall exercise reasonable care to prevent his employees, associates and others whose services are utilized by him from disclosing or using confidences or secrets of a client, but a lawyer may reveal the information allowed by sub-rule (3) through his employee.

A good idea is for firms to require all employees to sign confidentiality forms, which are placed in their personnel files. A blank copy of the form should be included in the office manual. It should be very clear to every member of staff that disclosure of a client confidence is a serious offence punishable with termination/dismissal. Breach of client’s confidentiality may prove very costly to the lawyer’s business and reputable, and leave him open to liability from the client and other third parties. It is better to be safe than sorry.

 

 

 

 

 

No-Work-No-Pay Policy V. Right Of Workers To Industrial Action

To begin with, is it reasonable to refuse a worker his pay simply because of the decision of a union of his class of employees, who never sought his individual opinion? But then, seeing that this said decision invariably affects the business of his employer, does it also make sense for an employer to pay his employee unearned wages for simply sitting at home? Admittedly, it is very tasking to strike a balance between these two conflicting rights.

The Federal Government of Nigeria on October 11, 2017 announced its resolution to enforce a “No Work No Pay Policy”. This resolution, though couched in the shape of a government policy, is in fact already contained in an existing law as encapsulated in Section 43 of the Trade Disputes Act, which empowers an employer to withhold the employee’s wages for the said duration.

Internationally, strikes are in fact recognised as almost sacred, inalienable rights of workers. Part 111, Paragraph 7 of the International Labour Organisation Convention (No 151) of 1957 provides that “No provision of this convention may be interpreted as limiting in any way whatsoever, the right to strike”. Article 3 and 10 of ILO Freedom of Association and Protection of Right to Organised Convention 1948 (No 87) recognise the rights of workers to organize activities for the furtherance and defence of the interests of the workers. Thankfully, Nigeria is a signatory to the ILO.

In Nigeria though, strike action is highly restricted. For instance, Section 30 of the TDA outlaws strike actions except as in the manner provided for under sub-section 6. Again, a union is required to first comply with the requirement of arbitration under the TDA before embarking on a strike. In what appears to be a stringent clog on the right to industrial action, Section 1 of Trade Disputes (Essential Services) Act Cap 433, LFN 1990 empowers the President to proscribe any Trade Union or Association that embarks on a strike action. Continuous disobedience to the said proscription is an offence punishable by a N10,000 fine or six years imprisonment.

What then is the fate of a Nigerian worker in the event that the Federal Government decides to implement section 43 of TDA? The judicial authorities at the disposal of the writer do not seem to be on the side of the workers. In Adams Oshiomhole and National Labour Congress v Federal Government of Nigeria and Attorney General of the Federation (2007) 8 NWLR (Pt. 1035) at page 58, the Court of Appeal held that the Labour Union as well as other civil society organisations had no right to call out strikes in response to general economic and political decisions of the Federal government as it had nothing to do with the individual contracts of employment these workers had with their various employers as envisaged in the TDA.

On the construction of section 43 of TDA, Justice B.B Kanyip while delivering his judgement in Oyo state Government v Alhaji Bashir Apapa (Chairman Nigeria Labour Congress Oyo state chapter) & Ors in Suit No: NIC/36/2007, held that “section 42(1)(a) of the TDA is self-executory. Its implementation, without more, does not depend on a further enquiry…. A strike, whether legal or not, falls squarely within the ambit of the said section and for which the strikers are disentitled from wages and other benefits envisaged by the section…..” 

From all indications, it appears that implementation of No Work No Pay Policy will be justified by law. Whether same is reasonably justifiable in a democratic state, will be a question for another day.

 

Source: Greymile

Confirmation of employment after probation can be implied by the conduct of the employer.

tumblr_onkbqiRgvE1vdur62o1_1280The Court of Appeal in the recent case of Reliance Telecommunications Limited v. Mr. Olaore Olufemi Adegboyega (reported at (2017) 8 CLRN) held that the employer is deemed to have waived its rights in insisting on issuance of a formal letter of confirmation to its employee if the said employee is allowed to continue in his employment beyond the stipulated probationary period and he is regarded and treated as an ‘several months after the end of the probationary period’. The employment is deemed confirmed by conduct.

This decision is important to check the habit of some employers who, out of negligence or malice, fail or refuse to confirm some deserving employees, only to later turn around and rely on the employee’s probationary status in claiming certain obligations from the employee or denying him some benefits.

Facts of the Case 

In 2004, the respondent entered into a contract of employment with the appellant. The terms of contract indicated that the respondent would be on probation for a period of three months and either party could immediately terminate the employment during the period of probation. Furthermore, the contract of employment stipulated that after three months, the employment of the respondent would be confirmed and that three months’ notice will be required to be given by each party in case of termination of the employment. After the expiration of the three months probationary period, the appellant failed to confirm the employment of the respondent but continued to retain his services, paying him his entitlements and making representations to third parties suggesting that the respondent was in its employment. The relationship between the parties continued until sometime in 2005 when the appellant terminated the employment of the respondent without giving him any notice. The respondent was aggrieved and filed a suit against the appellant at the High Court of Lagos State alleging wrongful dismissal and claiming damages. After the conclusion of trial, the judge gave judgment in favour of the respondent and held that the appellant was liable in damages to the respondent. The trial court however, failed to consider and make pronouncement on the counter-claim incorporated into the statement of defence of the appellant.

The appellant was dissatisfied with the judgment of the trial court and filed a notice of appeal at the Court of Appeal, Lagos Division urging the court to reverse the decision of the trial court. One of the issues formulated for determination was whether the trial court was right in holding that the respondent’s employment was deemed confirmed immediately after the probation period without meeting the other conditions precedent and in the absence of a formal confirmation letter.

Arguing the issue, learned counsel for the appellant submitted that it is trite that parties are bound by the terms of contract freely entered into. Reference was made to a term of the contract of employment stating that the offer of employment is subject to a satisfactory medical examination, satisfactory completion of a three months’ probation period to take effect from date of assumption of duty and that the offer is subject to other terms as set out in the letter of employment and conditions of service as may be determined by the board from time to time. Learned counsel posited that since the employment of the respondent was not confirmed by the appellant before the termination, a condition precedent was not fulfilled and as such the respondent was not entitled to the three months’ notice. Counsel urged the court to resolve the issue in favour of the appellant.

Responding to the argument of the appellant, learned counsel for the respondent relied on the decision in Kablemetal Nigeria Limited v. Gabriel Ativie to submit that in an action for wrongful termination of employment, the claimant is under obligation to plead and prove not only the appointment but also the terms and conditions for it to constitute the foundation of the action. Counsel submitted further that even though the contract of employment stipulated that the employment of the respondent must be confirmed after three months, the fact of non-confirmation was inconsequential and that the trial court was right in holding that the employment of the respondent was deemed confirmed since the appellant allowed the respondent to continue to work beyond the three months’ probationary period stipulated in the contract. Learned counsel relied on Obafemi Awolowo University v. Dr. A.K. Onabanjo and urged the court to discountenance the argument of the appellant and resolve the issue in favour of the respondent.

In resolving the issue, the court held thus:

The Appellant having allowed the Respondent to continue in his employment beyond the three months’ probationary period, paying him all his entitlements and further making representation via Exhibit C5 to third parties affirming that the Respondent is its employee several months after the end of the probationary period must be deemed to have waived its rights in insisting on issuance of a formal letter of confirmation to the Respondent. In such circumstances as obtained in the instant case Estoppel by conduct/representation can readily be invoked.

See: Military Government of Lagos State & Ors v. Adeyiga & Ors (2012) LEPLR 7836 (SC)

Issue is resolved in favour of the respondent.

M.T Odechima with V. I. Okafor for Appellant
TS. Adewuyi with T. O. Shittu Miss for Respondent

This summary is fully reported at (2017) 8 CLRN

The measure of damages in an action for breach of contract

FOXGLOVE NIGERIA LIMITED v. MTN NIGERIA COMMUNICATIONS LIMITED

COURT OF APPEAL LAGOS DIVISION

(SANKEY; OTISI; EKANEM, JJ.CA)

In 2002, the appellant entered into a distribution agreement with the respondent. The agreement stated that the respondent was to distribute and sell the respondent’s products which included starter packs, handsets, recharge vouchers and accessories. By the agreement, the appellant was entitled to be paid a commission known as On-going Revenue Service Commission (ORSC) upon meeting its monthly performance target. Furthermore, the contract between the parties provided that on a monthly basis, the respondent shall calculate and pay a discount of 5% as ORSC on post-paid starter packs which were activated within the month and the discount credited to the appellant’s account at the end of every quarter. It was also included in the contract agreement that the respondent shall pay to the appellant a credit to the value of 1% which was referred to as back end commission, of the total invoiced amount of purchases of the physical and logical recharge vouchers and virtual airtime for every month, which shall be credited into the appellant’s account at the end of each year.

The business relationship between the parties continued until June 16th, 2008 when the respondent informed the appellant that Guaranty Trust Bank Plc had terminated its bank guarantee and there was need for a replacement before June 30th, 2008. The appellant complied with the respondent’s request by delivering another bank guarantee. However, on the same date, the respondent relying on certain clauses of the agreement, sent another letter in which it terminated the distribution agreement with the respondent. The respondent was alleged to have violated the procedure agreed upon by the parties before a termination could be effected. By the said clause, a 14 days’ notice was required to be given by the respondent indicating the nature of the breach where it occurs for the first time and a termination if the breach reoccurred within the preceding 12 months after the initial notice had been given to the appellant. Yet, the respondent in spite of the termination which took effect on July 1, 2008, continued its business relationship with the appellant until mid-July 2008 and accumulated a total sum of N29,000,000.00 (Twenty Nine Million Naira) but refused to pay the agreed ORSC including the back-end commission for the period.

The appellant was aggrieved and filed a claim against the respondent at the High Court of Lagos State claiming among several reliefs, a declaration that the contract termination by the respondent was unlawful having not complied with the procedures laid down in the agreement. However, the appellant also sought damages which were general and special in nature. At the end of trial, the court gave judgment in parts in favour of the appellant and dismissed the reliefs of the appellant which bordered on special damages which, according to the court were not pleaded and proved. The appellant was dissatisfied with the court’s judgment and consequently filed a notice of appeal at the Court of Appeal, Lagos Division.

One of the issues raised for determination was whether the trial court properly evaluated the evidence before dismissing the appellant’s claim for damages.

Arguing the issue, counsel for the appellant submitted that the damages sought but not granted by the lower court were within the contemplation of the parties and that even though what was claimed by the appellant was less than the correct amount, the court ought to have granted it. Counsel posited that the lower court was in error and he urged the court to resolve the issue in favour of the appellant.

Responding to the argument of the appellant, learned counsel for the respondent noted that the items claimed by the appellant are at best special damages which do not arise from any particular or specific loss suffered by the appellant as a result of the breach by the respondent. Counsel further argued that losses which do not directly flow from the breach cannot be pleaded as special damages. He urged the court to discountenance the argument of the appellant and resolve the issue in favour of the respondent.

Resolving the issue, the court held thus:

The position of the law however is that in an action for damages for breach of contract, the terms general and special damages are inappropriate. The dichotomy between special and general damages in an action for contract, unlike in tort, has been described as one without a difference; G.F.K. Investment Nigeria Ltd v. Nigeria Telecommunications Plc (2009) LPELR-1294 (SC). The Supreme Court has made definite pronouncements on the nature of damages that may be considered and granted by a court in an action for breach of contract. Musdapher JSC (as he then was) in G. Chitex Industries Ltd v. Oceanic Bank International (Nig) Ltd (2005) 7 S.C. (Pt. 11) 50; (2005) LPELR-1293 (SC):

“I shall now consider the measure of damages in a case of a breach of contract. Now, generally the amount of damages to be paid to a person for breach of contract is the amount it will entail to put the person in the position he would have been if there had not been any breach of contract… In cases of breach of contract a plaintiff is only entitled to damages naturally flowing or resulting from the breach… The measure of damages, in such cases of breach of contract, is in the terms of the loss which is reasonably within the contemplation of the parties at the time of the contract.”

The Supreme Court therein relied on its earlier decision in Wahabi v. Omonuwa (1976) 4 SC 37 at 41, per Idigbe, JSC thus:

“… In cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach. What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits breach…”

Issue resolved in favour of the respondent.

Olusegun Olaiya, Esq., for the Appellant
Afolabi Kuti, Esq. for the Respondent

This summary is fully reported at (2017) 6 CLRN