When discrimination or breach to a woman’s right to self-dignity occurs at the workplace, the only Court with jurisdiction is the National Industrial Court. Workplaces just like any other should be safe and provide women with a conducive atmosphere for them to operate.
DAPAAH & ANOR. vs. ODEY
(2018)LPELR-46151(CA)

ISSUE: JURISDICTION OF THE NATIONAL INDUSTRIAL COURT-Whether the National Industrial Court has jurisdiction to hear a claim of violation of fundamental right to freedom from discrimination in a workplace by reason of sex

PRINCIPLE:
“Jurisdiction is a threshold issue and very fundamental to every adjudication, it was held in the case of OKORO & ORS. VS. EGBUNOH & ORS. (2006) LPELR-2491 (SC) thus:
“Although jurisdiction is a word of large purport and signification in the judicial process, it is not a subject of speculation or gossip by Counsel as it is a matter of strict and hard law donated by the
Constitution and Statutes. It is a threshold issue, the blood that gives life to the survival of the action, and occupying such an important place in judicial process”. Per TOBI, JSC, (of blessed memory).

It is settled law that it is the Plaintiff or Claimant’s claim that determines the jurisdiction of the Court to entertain a cause or matter. See: INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427 @ 588-589
H-C; ELABANJO VS. DAWODU (2006) 15 NWLR (PT. 1001) 76; ADEYEMI VS. OPEYORI (1976) 9-10 SC 31; TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517. It was held in MADUKOLU
VS. NKEMDILIM (1962) 2 SCNLR 341, (1962) 1 ALL NLR 587 AT 594 that a Court is competent when: a. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other; b. the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
c. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See also: SKENCONSULT (NIG.) LTD. VS. UKEY (1981) 1
SC 6 AT 62; INAKOJU VS. ADELEKE (SUPRA) @ 588. That was Kekere-Ekun, JSC, in EMEKA VS. OKORO (2017) LPELR-41738 (SC).

It is necessary therefore that a Court has jurisdiction over a principal claim in a matter to avoid multiplicity of action between the same parties, otherwise, it will impact negatively on the proceedings and
its outcome. The complaint of the Appellant here is that part of the claim of the Respondent touching on fundamental rights cannot fall within the jurisdiction of the trial Court.

The Respondent submitted that Exhibit D6 makes it clear that she was not given any notification or advice of no performance as required by the agreement and consequently, the conclusion is that she
was victimized due to her refusal to accede to the 1st Appellant’s amorous overtures and who happens to be her line manager contrary to Exhibit D6 – a Cuso International document which prevents workplace harassment as a policy. The agreement has workplace protection clause in favour of the Respondent which was breached.
Workplace issues are strictly under the trial Court’s jurisdiction. And such issues have a wide coverage area. Section 254C (1) (d), (f), (g), (h) of the 1999 Constitution Third Alteration Act conferred on the
trial Court jurisdiction in the following matters, it says:
“Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such jurisdiction as may be conferred upon it by an Act of the National Assembly,
the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters-
(f) relating to or connected with unfair labour practices or international best practices in labour, employment and industrial relation matters;
(g) relating to or connected with any dispute arising from discrimination or sexual harassment in the workplace;
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards; and
Furthermore, Section 254C (2) adds the following:
Notwithstanding anything to the contrary in this constitution, the National Industrial Court shall have jurisdiction and power to deal with any matter connected with or pertaining to the application of any
international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith”.
The Respondent submitted that Exhibit D6 (2) paragraph defines workplace harassment and from the definition the complaint of the Respondent was established by evidence.

Furthermore, it was not denied in the pleadings, referred to pages 94-97 of the record of appeal. She contended that the 1st Appellant abused his position as her manager and finally terminated her employment because she refused his overtures that the trial Court made findings which were not appealed against, so they are deemed admitted, citing UGO VS. UGO (2017) MJSC VOL. 4-5 (PT. 7) 26 and IYOHO VS. EFFIONG
(2007) 4 SC (PT. 111) 90 on specific finding of a Court.

It must be made out in clear terms that the claim before the trial Court was not a fundamental Rights Proceedings brought under the specialized rules applicable to those class of claims. The claim here
was wrongful termination having its root or origin in sextortion (sexual harassment) in the workplace. A woman has inalienable right to her dignity as a woman and cannot be discriminated on the basis of her being a woman. The Respondent rebuffed all the advances of a male superior in the office resulting in the termination of her appointment and therefore it cannot have or reflect a fundamental right
breach as the principal claim. The breach was intricately connected and it led to the wrongful termination. The 1999 Constitution (As Amended) categorically protected the rights of a woman against such activities of weak men in the workplace. Section 31 of the Constitution provides that every individual is entitled to respect for the dignity of his person and Section 42 guarantees the right to freedom from discrimination and it says:

“(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person-
(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or executive or administrative action of the government, to disabilities or restrictions to which citizens of
Nigeria of other communities, ethnic groups, places of origin, sex religions or political opinion are not made subject; or
(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens
of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions.

The trial judge relied on Section 42 and relevant international conventions to which Nigeria is a signatory and which were ratified, they have the force of law and are applicable in this Country. The challenge posed by the Appellant is that the trial Court should not have anything to do with fundamental right, I found an answer in the Constitution and the additional jurisdiction of the trial Court with regards to fundamental right breaches is provided for in Section 254C (1) (d) of the Third Alteration to the 1999 Constitution which says:
“Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters-
d. relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade
unionism, employers association or any other matter which the Court has jurisdiction to hear and determine.”
It is crystal clear that Chapter IV provides for right to human dignity and freedom from discrimination which is both human rights amongst other human rights. The trial Court therefore can within a claim
arising from employment or a claim related to where those rights are intricately connected and to which workplace related issues arise have jurisdiction.

It is settled that once the alleged breach of human rights is not the principal claim, the Court with complete or fuller jurisdiction usually hears the claim, therefore, the trial Court can hear a claim for wrongful termination where a breach of human right is alleged as an ancillary issue. The Supreme Court settled the issue of a principal and ancillary claim where human right is alleged as a subsidiary claim in the case of EMEKA VS. OKORO (2017) LPELR-4173 (SC) which held thus:
“When the main or principal relief or redress cannot be raised or enforced under the FREPR; it is immaterial that in the course of committing the cause of action for the main complaint some ancillary breaches of fundamental rights were committed. See TUKUR VS. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT. 510) 549; UNIVERSITY OF ILORIN & ANOR. VS. OLUWADARE (2006) 6 – 7 SC. 154; JACK VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 1 SC (PT. 2) 100 – all binding decisions of this Court.”

Again, the apex Court in the lead judgment of Kekere-Ekun, JSC, set out a lengthy exposition on the issue because I find it very apt and it addresses the sole issue in this appeal, I shall therefore reproduce it for a better understanding. It says:
“Relying on the authority of SOKOTO LOCAL GOVERNMENT VS. AMALE (2007) 8 NWLR (PT. 714) 224 @ 240-241 G-A, learned senior counsel for the Appellant argued that the procedure of filing different suits emanating from the same facts is permissible and has received judicial endorsement. It is noted that being a decision of the Court of Appeal, it is of persuasive authority only. Be that as it may, it was held in that case that the case before the Court was not for a breach of or threat to the Respondent’s fundamental right but a claim in respect of land. The Court held that the only option open to the
Respondent in the circumstances was to take out a writ of summons. Reference was made to the decision of this Court in TUKUR VS. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (PT. 510) 549 where it was
held that in an application for the enforcement of fundamental rights it is a condition precedent that the enforcement of the fundamental right should be the main claim and not an accessory claim. It was
further held per Ogundare, JSC, at 576 – 577 H – F (supra) that where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court
cannot be properly invoked, as the suit would be incompetent.

Interestingly, in Tukur’s case, the main relief was for an order quashing the Appellant’s deposition as the Emir of Muri by the Taraba State Government. Some of the grounds for seeking reliefs under the Fundamental Rights (Enforcement Procedure) Rules were that his right to fair hearing had been breached because he was not given an opportunity of being heard before the order to depose him was given; that he was not given any notice of misconduct pertaining thereto; that the decision did not comply with the conditions precedent to the exercise of powers of deposition by the Military Governor under Section 6 of the Chiefs (Appointment and Deposition) Law Cap 20 Vol. 1 Laws of Northern Nigeria 1963, applicable to Gongola State and was therefore null and void and of no effect.

The Appellant sought other reliefs including damages. The trial High Court held that it lacked jurisdiction to entertain some of the reliefs including relief 1 seeking to quash his deposition and sub-reliefs (a) to (c) and 2 on the ground that they raised chieftaincy questions, which ought to have been commenced by way of writ of summons. It however granted the relief for damages.

On appeal to the Court of Appeal, the decision of the trial Court was set aside on the ground that having found that it lacked jurisdiction to entertain the principal claims, it ought not to have assumed jurisdiction to entertain the other claims, which were merely accessories to the main claim. Upon a further appeal to this Court, it was held that the Appellant ought to have come by way of Writ of Summons in respect of all the reliefs. It also held that the proceedings were fatally defective, having not been initiated by due process of law. The proceedings were held to be a nullity. See
also: JACK VS. UNIVERSITY OF AGRICULTURE (2004) 1 SC (Reprint) (PT. II) 100 @ 112 LINES 5 – 23. In this case, the appellant instituted an action before the trial Court under the Fundamental Rights
(Enforcement Procedure) Rules seeking various reliefs arising from her alleged wrongful suspension and dismissal by the respondent on grounds of misconduct. Some of the grounds for the reliefs sought
were that she was not afforded the opportunity of a fair hearing and that the procedure for removing staff of the University on grounds of misconduct as provided for in Decree No. 48 of 1992, was not followed.

This Court found and held that the real cause of action in the suit was wrongful dismissal from employment, which belongs to the common law class of claims, while an action for contravention or threatened contravention of a fundamental right belongs to a constitutional class of action specifically provided for and that the proper procedure must be adopted in each class of action.

This Court reiterated its earlier position in TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 @ 548 and TUKUR VS. GOVERNMENT OF TARABA STATE (supra) to the effect that where the main or principal claim is not the enforcement or protection of a fundamental right, the fundamental right procedure is not appropriate. The case of FRN VS. IFEGWU (supra) relied upon by learned senior counsel for the
Appellant in fact supports the position of the Respondent that for the enforcement of Fundamental rights procedure to be applicable, the principal relief must be for the enforcement of a fundamental
right.”

Furthermore, the trial Court relied on OGUDU VS. STATE (1994) 9 NWLR (Pt. 366) 1 in classifying claims in human right breaches, that they are the rights that must be observed whenever the occasion of
their observance has arise. These are intrinsic and cannot be divorced from the occasion under which they arise and mostly procedural. The second class is those rights that are enforceable under Section
42 of the Constitution.

It is settled therefore that the fundamental rights procedure rules enshrined in Section 46(1) of the Constitution can be invoked when the main or principal complaint in an application is the enforcement or securing of the enforcement of a fundamental right, then the Court could exercise jurisdiction to entertain the application under the Fundamental Rights (Enforcement Procedure) Rules. That is not the case here, the principal claim and facts pleaded leading to the claim are for wrongful termination of appointment. The fundamental rights aspect are facts that led to the wrongful termination and
therefore the trial Court was on solid grounds to proceed to determine the claim because it has jurisdiction as provided for by Section 254C(1) (d) of the 1999 Constitution (As Amended) which was
reproduced above. The claim of the Respondent is simply that in the course of her employment her fundamental rights were breached leading to her termination, I agree with the Court below that the Court has jurisdiction.

Furthermore, the trial Court was also empowered by the Constitution to rely and apply international conventions which have close bearing to claims related to workplace, employment and labour matters, the claim here falls within such subject areas, therefore even if the constitution did not provide for the Court’s jurisdiction in human right issues, some conventions do and they also allow Courts in Nigeria to enforce their provisions.

Relevant Conventions here are the United Nations Convention on Elimination of All Forms of Discrimination against Women (CEDAW) & ILO Discrimination
(Employment and Occupation) Convention 1958 No. 111 which has been ratified and is in force in Nigeria, they provide for a platform for construing fundamental rights of women guaranteed under the
Constitution. CEDAW defines discrimination as follows:
“Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their material
status, on the basis equality of men and women, of human right and fundamental freedoms in the political, economic, social, cultural or any other field.”

The Convention went on to define sexual harassment in the following words:
“Such unwelcome sexually determined behavior a physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or action. Such conduct can be
humiliating and may constitute a health and safety problem. It is discrimination when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her
employment, including recruiting or promotion, or when it creates a hostile working environment.”

Going by Section 254C (2) of the 1999 Constitution as Amended, the trial Court is empowered to apply international conventions, it states as follows:
“Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have jurisdiction and power to deal with any matter connected with or pertaining to the application of any
international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, industrial relations or matters connected thereto.”

Undoubtedly, discrimination has a negative effect on the woman by the obvious cancellation of equality or equal opportunities and treatment at the place of work, all because of her gender being a
woman and it becomes discriminatory because such untoward advances can hardly be made to a man, I cannot say it can never be made to a man in view recent developments and issues of transgender.

Therefore, when discrimination or breach to a woman’s right to self-dignity occurs at the workplace, the only Court with jurisdiction is the trial Court. Workplaces just like any other should be safe and
provide women with a conducive atmosphere for them to operate and to be who they are, women.” Per NIMPAR, JCA.(Pp.16-32,Paras.E-F).

The lack of adequate resources in terms of budgetary allocation has been named as one of the major reasons why Sexual and Gender Based Violence (SGBV) has persisted amidst all efforts to bring the menace to a stop in Nigeria. ENE OSHABA writes

Sexual and Gender Based Violence (SGBV) has been a lingering problem in Nigeria for many years now, and it’s further aggravated by the outbreak of the coronavirus in the country as citizens were restricted from movements and victims exposed 24 hours to perpetrators of violence.

According to reports, women and girls suffer more of SGBV, a situation which has been described as “a pandemic within a pandemic.”

Experts have also stated that incidence of GBV is growing astronomical with the activities of the insurgency in the North East. From forced and early marriages to the physical, mental or sexual assault on a woman, nearly 3 in 10 Nigerian women have experienced physical violence by age 15.

Gender-based violence is termed to be one of the most oppressive forms of gender inequality, posing a fundamental barrier to the equal participation of women and men in social, economic, and political spheres.

As noted in Voice and Agency: Empowering Women and Girls for Shared Prosperity, the World Bank’s Inter Agency Standing Committee defines GBV as “an umbrella term for any harmful act that is perpetrated against a person’s will and that is based on socially ascribed (gender) differences between males and females.”

It is to this end that as part of the United Nations Spotlight Initiative (UNSI) project activities, FIDA Abuja organised a one-day training for senior government officials and civil society organisations in the FCT on Gender Responsive Budgeting to enable funding for better implementation of issues around SGBV

The Training

Welcoming participants to the training, the chairperson of FIDA Abuja branch, Rachel Andrew-Adejoh, raised the alarm on the current situation of gender-based violence, saying it “is currently a surge that demands more strategic tackling.”

Andrew-Adejoh said FIDA is beaming a spotlight on SGBV in order to place the matter at the center of a collective drive for gender equality and women’s empowerment in line with the year 2030 sustainability development goals.

She said, “There is currently a surge in SGBV particularly during the pandemic as we saw high rise of violence against women, girls and children so this Initiative seeks to respond to violence against women and girls with particular focus on SGBV and other harmful practices.”

She noted that many causes of harmful practices especially on women and girls such as widowhood practices and female genital mutilation are still ongoing across the country, amidst heightened advocacies condemning the act.

“You will be shocked to know that widowhood practices and female genital mutilation is still on the increase and that is why we are seeking way on how these practices can be eliminated completely.”

She stated further that following the prevalence of SGBV in some states FIDA Nigeria is implementing the spotlight project in six states including Sokoto, Adamawa, Ebonyi, Cross River, Lagos state, and the Federal Capital Territory (FCT)

“Participants were trained on responsive budgeting and impact of poor funding on women while also analysing budget programmes from gender perspectives while adopting an advocacy plan to promote increased budget allocation on gender and to track compliance to gender responsive budgeting.”

“The training aims to enhance and further strengthen the knowledge of honourable ministers and senior government officials including CSOs on need to incorporate gender perspectives at various stages of budget planning, policy and program formulation, assessment of needs of target groups, allocation of resources and the implementation of impact of assessment as they affects women and girls who make up 50 per cent of the population.”

She also emphasised the need to build capacity and understand of gender responsive budgeting as a tool for promoting gender equality and accountability to women’s rights as well as efficiency and transparency in budget policies and processes.

“We are deeply committed to working with stakeholders to generate information, strengthen synergies, cross-collaboration in partnership with the ministers, parastatal, law enforcement agencies and CSOs. We also seek to demand accountability and demand a stop to all forms of violence against women and children in the FCT and Nationwide.”

Benefits

Andrew-Adejoh noted the presence of gender desks at various MDAs including the law enforcement agencies, but expressed concerns on the poor implementation of policies due to lack of budgeting.

According to her, there is the need for gender responsive budgeting, and that it is one thing to have a gender desk but another thing to know there is provisions for this in the budget.

“This is important so that when issues arise and we know there is budget we can demand accountability from those charged with the responsibility.

“There are lots of gender desks but there should also be units under them for effective implementation so we are looking at position where all MDAs will be actively involved because there are many stakeholders in this advocacy but we are taking a step further to ensure the right steps are taken because once a particular issue is not budgetted for you cannot do much.

“In essence there is cost implication would to attend to issues of SGBV for instance, when a woman suffers domestic violence there is need to take her to hospital to get treated, she needs to be attended to and all such require Money and agencies require funds to move around. Our ultimate goal is total elimination of all forms of SGBV including other harmful practices.”

Other strategies

Explaining further strategy to eliminating SGBV, the chairperson disclosed that last week FIDA Abuja branch trained indigenous paralegals who are not lawyers, but were equipped with knowledge on how to handle cases of SGBV.

She stated that this became pertinent as these paralegals are members of the community who holds leadership positions at various levels and so know the people in the community because they live in the same community.

“We drew participants from Jahi and Utako community in the FCT for this training because they know people in the community. When SGBV happen victims don’t know where to run to so you see their perpetrators walking freely but victims can report to the paralegals who are some form of leaders in the community, victims an report them and they in turn report to us or the police for proper investigation to be carried out.”

Participants

One of the ministers who participated in the training is the Minister of Women Affairs, Dame Pauline Tallen, she noted misconceptions about some issues relating to gender explaining that gender responsive budgeting does not refer to women alone but both sexes.

Tallen, who was represented by her special assistant, Princess Jumai Idonije, noted that such budgeting is very complex to execute, due to the misconceptions and misunderstanding of the term gender, stressing that it is not a call for a separate budget or women’s budget.

She said, “In some parts of the country girls are better educated than boys because most of their boys skip school to take up trade. Gender responsive budgeting will look to address issues as it affects both sexes so the budget must be more than an indicator for future direction and migration within society.

“Budget is most comprehensive statement of a government social economic plans and priorities. It should address every issue irrespective of gender by seeking to uplift the standard of living for vulnerable members of the society especially women and children, Persons with Disabilities (PWDs) and the elderly from the four areas of good governance which are equality, accountability, efficiency and transparency.”

She, therefore, called on financial institutions to set up women development funds to reduce the bureaucracy women experience when accessing funds especially with the effects of Covid-19 on women’s businesses.

Earlier, the Minister of Foreign Affairs, Geoffrey Onyema, represented at the event by Nonyelum, said the training was apt as it was being organised when the elimination of GBV is gaining international recognition, urging FIDA to ensure that victims of SGBV gets justice to enable total elimination of the menace from the society.

He said, “There is the need for all hands to be on deck if the Sustainable Development Goals (SDGs) must be achieved in Nigeria and one of such ways is by ensuring a gender responsive budgeting.

“Gender-based violence is underreported due to silence, stigma and shame, I encourage FIDA to continue to sensitize communities on the effects of harmful practices and we must all join hands to work towards total elimination of GBV and ensure that victims get justice to deter other perpetrators.”

Other participants

Also speaking, a participant, Joseph Izibili, who represented the National Orientation Agency (NOA), stressed the need for gender equality and equity from budget perspectives, affirming that the training has opened his eyes to understanding the concept of gender.

“I have learnt that gender is all inclusive and not exclusively women issues, I now see it differently from my understanding in the past. The training relating to gender responsiveness in budgeting is impactful. When it comes to programmes budgeting and planning it is important to ensure equity and inclusiveness to enable national development,” said Edo Ekata, a senior development officer at the Gender Affairs Department of the Ministry of Women Affairs.

Ekata said further that the concept of gender, saying responsive budgeting calls for every project as it affects gender to be considered in implementation process of every ministry.

Meanwhile, the director-general of NAPTIP, represented by an Assistant Chief Intelligent Officer of its SGBV unit described the training as apt and very educative, adding that SGBV is alarming and can only be well addressed with adequate budgeting.

Also, a member of the Federation of Muslim Women and Convener Women Leadership Forum, Dr. Asmau Adamu, also harped on the need for appropriate budgeting saying this will cater to all components in the society.

She stressed that all gender issues needs to be taken care of just as she regretted that women still face discrimination and don’t get to occupy strategic positions due to existence of patriarchy.

“Patriarchy is still very much operational right from our homes to the society that is why we are still battling equal opportunities which makes it difficult for women to occupy strategic positions. Smaller countries are achieving gender equality, but Nigeria has to do more on achieving gender equality and responsiveness and this is making us lag behind.”

By Chidera Nwokeke

The mass media was awash with the video posted on Sahara Reporters on 14^th September, 2020 of a man burning a 1000 thousand Naira. There has been an agitation from some quarters that the man should be prosecuted and charged for treason, disrespect for our national identity and other offences. Howbeit, this article shall examine the position of our laws in line with the action of the man and other offences that a person can be liable for when using Nigeria currency notes.

According to Wikipedia, Money burning or burning money is the purposeful act of destroying money.  Money is usually burned to communicate a message, either for artistic effect, as a form of protest, or as a signal. Publicly burning money can be an act of protest or a kind of artistic statement. Often the point is to emphasize money’s intrinsic worthlessness. In 1984, Serge Gainsbourg burned a 500 French franc note on television to protest against heavy taxation. In 2010, the spokesperson for the Swedish Feminist Initiative, Gudrun Schyman, burned SEK 100,000 during a speech about the inequality in wages for men and women.

For the purposes of macroeconomics, burning money is equivalent to removing the money from circulation, and locking it away forever. In Nigeria, only the Central Bank is permitted by law to burn or destroy currency notes. Section 18(d) of the CBN Act 2007 authorised “The Bank to arrange for the destruction of currency notes and coins withdrawn from circulation under the provision of section 20(3) of the said Act or otherwise found by the Bank to be unfit for use.”

On 10th of February, 2020, the apex bank disclosed that although it destroys about 100 tonnes of bad naira notes weekly through open-air burning at the 12 disposal centres stationed across the country, it will review this practice because of the negative effects of open-air burning on the environment. The CBN said mutilated and withdrawn banknotes in Nigeria will be destroyed under strict security and environmentally sustainable manner. The bank said it has, however, reviewed the current method of banknote wastes disposal through open air burning with the aim of adopting more environmentally sustainable method thereby reducing its carbon foot print.

OFFENCES AGAINST CURRENCY NOTES

The unit of currency in Nigeria shall be the naira which shall be divided into one hundred kobo.[1] The central bank is responsible for the issuance of naira and kobo. In order to stem the abuse that the Naira is constantly subjected to, increase the active life of Naira notes and coins and promote confidence in their usage as medium of exchange, certain actions of the use of currency notes have been criminalized and appropriate sanctions imposed. The criminalization and imposition of sanctions for abuse of currency notes is an offence in many countries like Australia, Singapore, Malaysia, United Kingdom, Nigeria etc.

Section 16 of the Crimes (Currency) Act 1981 prohibits deliberate damage and destruction of Australian money without a relevant legal permit. The law covers both current Australian money and historical coins and notes. Breaking this law can lead to detention or a fine. According to this law, even writing words on a banknote can be punished. Singapore’s Currency Act states that any person who mutilate, destroy, deface or causes any change (to diminish value/utility of) currency note or coin is fined up to $2,000.

Section 20 and 21 of the Nigeria CBN Act, 2007 criminalized certain actions against currency notes and imposed punishment for them. They include:

1. Counterfeiting: The Central Bank in its Clean Note Policy defined a counterfeit currency as an imitation of currency produced without legal sanction of the state or government. Producing or spending of counterfeit currency is a form of fraud or forgery. It is against the law for any individual or establishment outside the central bank of Nigeria, to print money or be in possession of counterfeit money. Section 20 (4) CBN Act 2007 provides that it shall be an offence punishable by a term of imprisonment of not less than 5 years for any person to falsify, make or counterfeit any bank note or coin issued by the bank which is legal tender in Nigeria.
2. Rejection of Naira: A person who refuses to accept the naira as a means of payment is guilty of an offence and liable on conviction to a fine of #50, 000 or 6 months imprisonment: Provided that the bank shall have powers to prescribe the circumstances and conditions under which other currencies may be used as medium of exchange in Nigeria.[2]
3. Mutilation: A person who tampers with a coin or note issued by the bank is guilty of an offence and shall on conviction be liable to imprisonment for a term not less than six months or to a fine not less than #50, 000 or both such fine and imprisonment.[3] A coin or note shall be deemed to have been tampered with if the coin or note has been impaired, diminished or lightened otherwise than by fair wear and tear or has been defaced by stumping, engraving, mutilating, piercing, stapling, writing, tearing, soiling, squeezing or any other form of deliberate and wilful abuse whether the coin or note has or has not been thereby diminished or lightened. [4]

The central bank Clean Notes Policy provides that a currency banknote shall be considered mutilated when it is partially or permanently damaged by fire, flood, soaked, dyed, torn or destroyed by insects and other  natural disasters and is clearly more than one half of the size of the original note. It may or may not require special examination to determine its value.

1. Spraying: For the avoidance of doubt, spraying of, dancing or matching on the naira or any note issued by the bank during social occasions or otherwise howsoever shall constitute an abuse and defacing of the naira or such note and the person shall be liable upon conviction to imprisonment for a term not less than six months or to a fine not less than #50, 000 or both such fine and imprisonment.[5]  Spraying includes adorning, decorating or spraying anything or any person or any part of any person or the person of another with naira notes or coins or sprinkling or sticking of the naira notes or coins in a similar manner regardless of the amount, occasion or the intent.[6]
2. Marching: It is against the law to march on the currency notes.  Marching includes spreading, scattering or littering of any surface with any naira notes or coins and stepping thereon, regardless of the value, volume, occasion or intent.[7] It amounts to an act of defacing of the naira and the person shall be liable upon conviction to imprisonment for a term not less than six months or to a fine not less than #50, 000 or both such fine and imprisonment.
3. Sale: It shall also be an offence for any person to hawk, sell or otherwise trade in the naira notes, coins or any other note issued by the bank. The person upon conviction shall be liable to imprisonment for a term not less than six months or to a fine not less than #50, 000 or both such fine and imprisonment.[8]
4. Burning: It is against the law to burn Nigeria currency notes. A person who tampers with a coin or note issued by the bank is guilty of an offence. A coin or note shall be deemed to have been tampered with if the coin or note has been impaired… or any other form of deliberate and wilful abuse.[9] It is pertinent to state that there was no express mention of burning of currency notes as an offence however from the clear wordings of this above section, it can be said that the act of burning currency note is a form of deliberate and wilful abuse. Therefore, the man caught on the video tape burning our currency note has violated the provisions of section 21 and upon conviction; he shall be liable to imprisonment for a term not less than six months or to a fine not less than #50, 000 or both such fine and imprisonment.

PROSECUTION OF OFFENDERS

A combine reading of Section 31, 32 (2) and 66 (1) of Police Act, 2020, the police are empowered to investigate, arrest and prosecute offenders of our laws. Notwithstanding the powers of the Police Officers who are lawyers to prosecute offenders, the Attorney General of the Federation, those in his ministry and the Central Bank are also empowered to prosecute offenders of the CBN Act.

The Federal High Court shall exercise jurisdiction to try offenders of this Act.  Section 251 (3) provides: “The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section.’’ The rationale behind the federal high court exercising jurisdiction is because the subject matter of the offences bothers on legal tender.

CONCLUSION

The Nigerian currency notes is one of our national identity, any form of defacement of the currency is a form of ridicule on the nation. It erodes the sense of pride and confidence that Nigerians should feel in their country. It is very important that the Central Bank should carry out public sensitization on proper handling and security features of the Naira banknotes. They should promote and maintain public confidence in our currency. Reinforce the campaign on the abuse/counterfeiting of the Naira as a criminal offence. The law is not law if not enforced. So, I submit that the Police should investigate and prosecute the man caught on tape burning our currency note and this will deter others from engaging in such act.

Written by Chidera Nwokeke, [email protected], 08120945787

[1]Section 15 CBN Act, 2007

[2] Section 20 (5) CBN Act, 2007

[3] Section 21 (1) CBN Act, 2007

[4] Section 21 (2) CBN Act, 2007

[5]Section 21 (3) CBN Act, 2007

[6] Section 21 (5) CBN Act, 2007

[7] Section 21 (1) (3) (5) CBN Act, 2007

[8] Section 21 (4) CBN Act, 2007

[9] Section 21 (2) CBN Act, 2007

By S.O. Akobe, Esq. and J.E. Usman, Esq.

Nigeria is a Country built on the altar of faulty foundation and deceit. The geographical expression called “Nigeria” is nothing but an assemblage of a people (without recourse to their wishes, of course) who ought not to be joined together as one in the first place. When a Country is founded on a threshold of unreconcilable differences orchestrated by ethnic delusions, the woes of its citizens are visible from the very beginning.

It is not surprising to yours sincerely that instead of progressing or improving as a Country, Nigeria is regrettably known for its retrogressive acceleration right from the very year of its independence. And this is because, the white man’s (British) idea of creating a soveringn entity called Nigeria was not such that can guarantee progressive realities of an ideal nation. The initial idea of creating Nigeria was obviously a self-serving, temporary strategy aimed at consolidating colonial rule with all needed convenience for as long as it (colonialism) lasted; hence the almagamation of the Northern and Southern Protectorates in 1914. Unfortunately, when the white men (the British) were to hand over to Nigerians, they failed to admit this fundamental truth which goes to the root of the Country’s formation. Had the British admitted the bitter truth behind the facade of Nigeria’s formation, they would have ensured, or at least, advised the almagalmated territories to go their separate ways and become independent sovereign nations. Sadly enough, the British failed, ignored and/or neglected to admit the said truth and obviously feigned ignorance of the very problem they themselves created via the 1914 amalgamation. Perhaps two reasons may be responsible for this. First, the pride of the white men may not have allowed them to concede that the Country they handed over was wrongly conceived and birthed, and secondly, the demand for independence may have seemed to them too early and as such, handing over a wrongly conceived and birthed Country was the best retaliatory gift to bequeath to its ungrateful citizens!

In an article titled, “Why 1914 Amalgamation is Nigeria’s Bane”, published by the Guardian Newspaper of  6th February 2017, a Social Analyst, Ogbo Charles, stated as follows: “Every problem Nigeria has ever faced and will ever face can be traced to that demonic event of 1914 when the British merged the Southern and Northern protectorates into one country that is today known as Nigeria”. He went further to state that, “Britain had only one thing in mind while carrying out the amalgamation: Their administrative and economic convenience. Nothing more. The action of the British can be compared to a man who bought both herbivorous and carnivorous animals from the market and chose to put them in one cage to make it convenient for him to transport them home. This man knew that herbivores feed on herbs and are very harmless and easygoing while carnivores feed on flesh and are most times very aggressive and violent. In other words, the herbivorous animals in that cage might end up as meat for the carnivorous ones even before the man would reach his destination. He knew all these but still chose to put both animals together. Do we need the brain of Albert Einstein to figure out the fact that the welfare of these animals was the last thing on this man’s mind? Rather, all he cared about was getting them all home whether dead or alive without spending extra money for another cage and extra  fare for that new cage”.

Going further, the said Writer concluded that, “Nigeria is many nations forced to remain within an unworkable forced marriage. The amalgamation was borne out of compulsion. That line “one Nation bound in freedom, peace and unity” in our national anthem is one hell of a dirty lie. Where is the freedom? Where is the peace? Where is the unity? I really think we’ve had enough of the rhetoric, the lies, the delusion. It is high time we got down to the real business of paying ourselves the courtesy of being blunt. The “One Nigeria” slogan is one of the biggest organised lies of the century. There is absolutely nothing “One” about Nigeria. If we look at all the happenings in the country since 1914 till date, we will discover that the only thing that binds us together is mutual suspicion of one another”.

We think we agree totally with the above quoted view of the said writer. The 1914 amalgamation is the very foundation of the woes of the entity called “Nigeria”. And because of this, rather than make progress, Nigeria’s voyage as a nation has always been a retrogressive one: one step forward, 99 steps backward! There is no debate that Nigeria fared better in colonial years than it did under military regime. Similarly, there is also no contention that Nigeria fared better under military regime than it does under the current purported civilian or democratic government. That has been the order of the Nigeria story. It is a story of a Country in which its fortunes and potentials diminish year in, year out. A story of a Country in which life becomes meaningless and valueless everyday. A story of political crisis in one breath and communal clashes in another breath. A story of massive blood sheds, kidnapping, religious killings and ethnic animosity, election riggings, corruption and indiscipline. A story of lack of infrastructural development, lack of electricity, lack of portable water supply, lack of good roads, and lack of good healthcare centers. A story of compromised democratic process, absence of rule of law and daily violation of human rights. A story of unemployment, poverty, nepotism, tribalism, and all kinds of vices. That has been the Nigeria story, our story!

Judging from all points of views, we think one would be too modest to certify Nigeria as a “failed State” (you may have to google and know for yourself what a failed State means). If not a failed State, how can we explain the fact that hundreds of people are being killed in Southern Kaduna with little or no responsible intervention by the Country’s security agencies but over forty (40) thousand men of the same security agencies were deployed to Edo State for the recently conducted gubernatorial election (thanks to the people of Edo State who refused to succumb to intimidation)? If not a failed State, how can we explain the fact that the Country’s Chief of Army Staff, Lt. Gen.Tukur Brutai who is from Borno State, a State where Boko Haram’s dastard activities hold sway and reign supreme, reportedly threatened to declare a state of emergency in a relatively peaceful Southeast at a time when several lives are perishing in his own homeland at the behest of the brutish insurgents and nothing is commendably done about it under his watch? If not a failed State, how can we explain the fact that obviously rigged elections are upheld even by the Supreme Court of Nigeria and the citizens now run to foreign governments for palliative remedies of securing travels ban or restrictions against the people in power who orchestrated and/or masterminded the thwarting of the electoral process? The list is endless and it is indeed, a sad commentary!

In all fairness, Nigeria represents a radical opposite of an ideal nation. Everything is obviously wrong with the Country. In terms of leadership, our score is zero. Talk about power, education, security, transparency, infrastructural development, accountability, and respect for the rule of law: our scorecard equals to zero! But, we have 100% score in corruption, election rigging/manipulation, insecurity, bad governance, unreasonable and insensitive borrowings, unemployment, high inflation, high cost of living, poverty, religious hypocrisy, insurgency and terrorism.

Nigeria and Nigerians have always had it wrong, rough and tough, but in the history of the Nation’s sojourn from one gory tale to another, the-2015-till-date episode is the height of it all. A blemished man was well packaged and clothed as unblemished and through deceit, obtained the people’s mandate to unseat an unblemished man in the Nigeria’s Seat of Power. Using the deceptive mantra of “change” and having a Redeemed Christian Church of God Pastor who is also a Senior Advocate of Nigeria as a running mate, Nigerians saw their long-awaited “saviour” in the former military dictator (and 1983 coup leader) from Daura, Katsina State. Of course, they were all wrong in their honest belief as the said “saviour” has turned out to be the very reason for their daily wailings. Between 2015 and now, Nigeria has lost its entire flesh; only its weary bones are left to be bequeathed to the future generation. Naira has depreciated beyond explanation. The Country’s debt profile has risen beyond expression. Our foreign reserve is nothing to write home about. Inflation is very high and this remains unabated. Insecurity and insurgency are gaining momentum day by day. Elections are now won through superior fire power of gun bearers backed up by security agencies at the pleasure of persons who enjoy the cover of incumbency. Human rights abuse and disregard of the principle of law are now the order of the day. Fuel price is arbitrarily hiked. Prices of food and other essential commodities are now above the reach and means of average Nigerians, not to talk of the poor ones. There is hunger in the land and people are suffering everywhere!

This is where we find ourselves right now as a Country at Sixty (60)! But, then, do we have hope? What is the way out? In our humble view, the Nigeria problem cannot be solved except by revolution. We need a peaceful revolution, not war. A revolution that is founded on peace and determination to have an ideal nation with a working system that will be favourable to all. A revolution that would give Nigeria and Nigerians a fresh start for good governance and development. There is the need to change the old order by way of national rebirth. We must rise to bring to reality the change we all earnestly desire. After all, this is our Country and not the property of any individual person.

Finally, as Nigeria clocks 60 on the 1st of October, 2020, we implore the Nigerian Government to take cautious steps to alleviate the sufferings and pains of the Nigerian people. This is not the change they desired for. It is obvious that the current state of things in the Country are very provocative and therefore, capable or having the propensity of stiring the people into unimmaginable action and/or movement. The greatest political mistake any leader could make is to think that he can continue to exercise power and authority over his disgruntled subjects who are already running out of patience. It will surely get to a point when it will become to them a-do-or-die affair, and at that point in time, no degree of intimidation, suppression and/or assault by security agencies including the military, will be able to curtail the people’s resolve for a new order by way of revolution. If it once happened in Lybia, Tunisia, Egypt, Sudan, Mali, to mention but a few, then, it can also happen in Nigeria. A stitch in time, they say, saves nine!

*Solomon Onunoja Akobe is a Lawyer, a Poet, and a renowned Writer/Social Commentator.

*Joshua Enemali Usman is an astute Legal Practitioner, a Political Analyst, and the immediate past National Welfare Secretary of the NBA.

By Edozie Uka

It used to be a hard set principle that except for a very limited exception, a court would not order specific performance of a contract of personal service, a principle having its origin in the abhorrence of any semblance of enforced labour. Section 34 of the constitution which prohibits forced or compulsory labour enshrined this principle. Fry L.J. at the English Court of Appeal explained the reasoning for this rule: “For my own part, I should be very unwilling  to extend decisions the effect of which is to compel persons who are not desirous of maintaining continuous personal relations with one another to continue those personal relations. I have a strong impression and a strong feeling that it is not in the interest of mankind that the rule of specific performance should be extended to such cases… lest they should turn contracts of service into contracts of slavery.” In this, what was good for the goose was good for the gander; if a worker would not be forced to work, an employer would not be forced to employ. The only exception to this principle was where the employment was “clothed with statutory flavor”. But in his verdict in Bello Ibrahim v. Ecobank PLC (Suit No: NICN/ABJ/144/2018 delivered 17^th December 2019), Hon. Justice Sanusi Kado of the industrial court removed the distinction that existed on this point between a simple master-servant contract as so-called and employment clothed with statutory flavor.

The Case

In Ibrahim v. Ecobank, the employee (of non-director cadre) made a case that his many years of dedicated service was terminated abruptly after he had reported misconduct and improprieties discovered within his department. He tendered in evidence emails to prove this act of whistleblowing. In its judgement, the court highlighted the fact that the defendants gave no reason for terminating the claimant’s employment beyond stating that the bank was exercising its legal right to terminate, and rejected as an afterthought, the defendant’s testimony that its reason for terminating Ibrahim’s employment was due to internal reorganization. It was undisputed that he was paid terminal entitlements (although the court opined that it was not paid on time).

Propounding its jurisdiction from the amended 1999 constitution of Nigeria, the establishing Act of the court, and the applicability of international conventions (particularly Article 4 of convention No. 158 of ILO and recommendation 166 of the said convention) the court concluded that it had the power and indeed the duty to maintain international best  practices in labour and employment matters,  and this empowered it to depart from established common law principles which may have become outdated. Relying on recommendation 166 above, the termination was held wrongful for failure to state “justifiable” reason for termination; consequently specific performance by reinstatement of the claimant was ordered.

Implications

Previously, in private sector employment only directors could seek reinstatement by the court because their appointment, tenure and removal is regulated in statute. Deviation from the statutory procedure would invalidate the termination. In Longe v. First Bank (2010) 6 NWLR (1180) 1 SC, Oguntade JSC conveyed the attitude of the court: “Let me say with all the necessary force and emphasis that when the law vests a right on a citizen, a court of law will resolutely resist any attempt and by whatever method to deny the citizen the enjoyment of the right conferred by law”; in that case, that right was a director’s right by statute to prior notice of a meeting where his removal was to be discussed. Thus reinstatement was a privilege unique to such employment clothed with statutory flavor. Can it be justifiable to extend this remedy to servants not currently seen as endowed with such status?

For most workers, the principle that an employer could terminate for good or bad reasons meant just that. That even if the reason was “bad”, i.e., immoral, unconscionable, occasioning distress, hardship or empathy for that employee, that termination or dismissal would not be reversed, though damages may be awarded. Justice Kado has adjudged that that is no longer good law, and an employer dismissing for bad reasons, or even without the courtesy of stating a reason, can be ordered to reinstate the employee.

Unfortunately, with great respect to the court, it missed an opportunity to extensively propound a principle along these lines. The judgement pivoted on the defendant’s lack of a satisfactory reason for terminating Ibrahim’s employment; the court did not base its decision on a finding that the termination was wrongly punitive. But is “no reason given” enough reason for the grave option of reinstatement? The only leg this new rule has to stand on is the ILO recommendation; the court did not weigh for consideration the evidence of whistleblowing which allegedly suggested that the termination was punitive and retaliatory. The court did not build this as a basis for the judgement, or explore the questions arising from the issue. The sole ratio for the judgement was lack of a satisfactory reason for the sacking.

The effect of this decision is that – protected by s.34 of the constitution – an employee is free to work or quit at will, but an employer may no longer “hire and fire at will”; not unless he gives a good reason to fire his worker. But what constitutes a “good” reason? Good enough for whom, the employee or the court? While an unexplained termination may be wrongful (by regard to the ILO recommendation), the remedy that the law gives must be proportional. However if a termination is clearly in malicious disregard of a statutory policy, for example, of whistleblower protection, then adapting the logic of the Supreme Court in Longe, that would have made a solid case for extending the frontiers of the law by an order reinstating the employee.

While it remains to be seen how this decision will hold up to appellate review, one cannot but lament the lost opportunity for a robust judicial interrogation of the emerging policy of whistleblower protection vis-à-vis the once settled doctrine against employee reinstatement.

Written by Edozie Uka, [email protected]

By Timothy Olamide

INTRODUCTION

The importance of Technology in the 21^st century cannot be overemphasized. The whole world has now become a global village through Information Communication Technology. Our traditional methods of doing many things are now digitalized. Today, we have Digital Currency such as Bitcoin, online markets such as Jumia where buying and selling take place without physical presence, banking transactions are not excluded from digitalization as you can now bank safely on your mobile phone from the comfort of your bed room. All it requires is to have an Android phone and Data to experience the above, hence the need for our various Revenue laws to be in tandem with the current situations.

TAXATION OF DIGITAL ACTIVITES IN NIGERIA; A PANACEA FOR GENERATING REVENUE

The Economy of many countries of the world has become Digital Economy and Nigeria is not left out. In 2018, the Nigerian Investment Promotion Commission put it that Nigerian digital economy is expected to generate $88 billion and create three million jobs by the end of 2021[i].

However, it was practically impossible for Nigeria to tax the enormous income that the digital economy was generating, hence the enactment of Finance Act 2019 which amended various tax laws in Nigeria. This has brought the country into group of countries with taxation of digital activities.

Formerly, the general rule under the Nigerian tax laws for taxing income of foreign companies in a given jurisdiction is by establishing that the entity has a taxable presence or has a permanent establishment (PE) in Nigeria. This is based on the provision of the section 13 of the Companies Income Tax Act, 2007.

It has been aptly argued from some quarters, that  the above position is not in tune with the current advancement in Digital Activities and that the reality remains that in Digital Economy, companies can make money without a significant physical presence, and, no significant means or very little tax for the government. It can be humbly submitted that a lot of revenue would be lost without taxing the digital economy.

In view of the challenges faced by the Tax Authorities in taxing foreign enterprises without Permanent Establishment in Nigeria, the Finance Act 2019 amended various sections of the Companies Income Tax Act 2007 to wit: Foreign companies with Significant Economic Presence ( SEP). SEP is a principle initiated by Organisation for Economic Cooperation and Development (OECD) to finding last solution to this tax solution known as Base Erosion and Profit Shifting (BEPS) a form of corporate tax planning strategy used by multinationals to shift profits from higher – tax jurisdiction to lower- tax jurisdictions, thus eroding the tax base of the higher- tax jurisdiction and it is a form of tax avoidance which thrives on the gaps and mismatch between different tax system.

Furthermore, Value Added Tax Act has equally been amended by the Finance Act, 2019 in section 46 to widening the scope of Value Added Tax to include intangible goods such as digital products and services rendered online to persons in Nigeria irrespective of the resident status of the service provider. FIRS Circular on the Implementation of the Value Added Tax Provisions in the Finance Act 2019 issued out on the 29^th April 2020 has clarifies the definition of goods and services in the Act. As it relates to goods, the Circular provides that VAT is chargeable on goods which include property (tangible or intangible)…while in relation to services, the Circular indicates that VAT is chargeable on services:..is rendered remotely, online, or by other virtual means to Nigerian residents of persons in Nigeria. The Circular equally made it mandatory for Non Residents Companies to register for VAT.

Also, Stamp Duties Act has been amended by the Finance Act in section 89 to include payment of Stamp duties on Electronic Documents. To this writer, this is in tune with the provision of Evidence Act, 2011 on admissibility of Electronic in court.

CONCLUSION

The taxation of Digital Activities in Nigeria through the enactment of Finance Act, 2019 is a right step taken in the right time. Revenue generation for the government has increased tremendously and this would the government the leeway to provide social amenities for the betterment of the citizens.

[i] Ogochukwu Isiadinso and Emmanuel Omoju, ‘’Nigerian: Taxation of Nigeria’s Digital Economy: Challenges and Prospects” Mondaq(30 May 2019)< www.mondaq.com/nigeria/tax-authorities/810276/taxation-of-nigeria39s-digital-economy-challenges-and-prospects >  accessed  Tuesday, September 22, 2020.

ii International Collaboration to End Tax  Avoidance< www.oecd.org/tax/beps/>

iii OLANIWUN AJAYI  MAY 2020|NEWS LETTER. FIRS CIRCULAR ON THE IMPLEMENTATION OF THE VALUE ADDED TAX PROVISIONS IN THE FINANCE ACT 2O19. Available at www.olaniwunajayi.net

Timothy Olamide writes from the Faculty of Law and can be reached via [email protected]