The Executive’s Emergency Powers Bill. Really?

Omolulu Ogunmade reports in ThisDay that President Muhammadu Buhari and the Executive branch of Government seek to secure emergency powers aimed at addressing Nigeria’s economic crisis.

The Bill entitled, ‘Emergency Economy Stabilization Bill, 2016’, according to the report, will be sent to the National Assembly after resumption by the National Assembly from its summer vacation.

The objectives of the Bill include shoring up the value of the Naira; job creation; boosting foreign exchange reserves; reviving the manufacturing sector and improving power supply.

According to the report, the Bill is the initiative of the economic team, headed by the vice-president, which has the responsibility of reviewing various policies in the country and their effect on the recovery of the economy.

Apparently, the rationale behind the Bill is to ensure that the Executive arm of government be enthroned with the powers to take some drastic decisions not currently provided for by extant laws.

The Bill, inter alia, seeks to give the president sweeping powers to set aside extant laws and use executive orders to roll out an economic recovery package within the next year to:

  • abridge the procurement process with a view to guaranteeing stimulus spending on critical sectors of the economy;

  • make orders to favour local contractors/suppliers in the award of contracts;

  • abridge the process of sale and lease of government assets to generate revenue and allow virement of budgetary allocations to projects that are urgent without recourse to the National Assembly;

  • amend certain laws such as the Universal Basic Education Commission (UBEC) Act so that states that cannot access their cash trapped in the account of the UBEC as a result of their failure to meet a counterpart funding, can do;

  • reform visa issuance at Nigeria’s consular offices and on entry into Nigeria and to compel some agencies of government, like the Corporate Affairs Commission, the National Agency for Food Administration and Control (NAFDAC) and others to improve on their turn around operation time for the benefit of business.

The extant procurement laws in Nigeria allows the award of a contract six months after the decision. This is because of the requirement for mandatory advertisement of the contract for six weeks.

The draft Bill also intends to ease the cumbersome and long procedure for the sale or lease of government assets to raise cash.

About N58 Billion is trapped in the UBEC’s coffers. Consequently, states cannot access the funds as a result of the requirement that the states provide 50% counterpart funding. The Executive is seeking an amendment to the law so that states will pay only 10% as counterpart funding. The Bill also seeks to increase the mobilization fee to contracts from a minimum of 15% to 50% of the contract sum.

In addition to the above, the consular offices will be expected to make visas available within 48hours and visitors, especially tourists, who intend to pick up visas at the entry point, will be able to do so. The Bill also seeks to eliminate the duplication of agencies screening incoming passengers into Nigeria.

Undoubtedly, the challenges identified and sought to be resolved by the Bill are real and worrisome. While the intent behind the Bill is commendable, the Bill itself undermines the very basis of our alleged democratic government. Hence, the public outcry of the members of the National Assembly can, on this occasion, be understandable.

The better approach would be to achieve the object of the Bill by either amending the various laws (such as the Immigration Act, Appropriation Act etc)  responsible for the red-tape and bureaucracy  or pass an Executive Order within the limits of the law or adopt some of the measures suggested in Proshare to wit:

  • Laws and measures dealing with the bureaucracy and red tape as seen in Bill Clinton’s government adoption of the National Partnership for Reinventing Government and more recently, India.

  • Changes in laws and trade/procurement agreements;

  • Changes in use of budgeted funds, .i.e appropriation amendments;

  • Policy changes done via trade, tariff and tax adjustment.


Protecting your ideas from Imposters and Competition: An Eaz(s)yhire Case Study


Its being a long time…i will try to post more regularly here…..

Here is a post published in TechPoint…for your reading pleasure. Enjoy!

According to the original article, the founder of Eazyhire alleged that Easyhire adopted his idea (i.e. to provide a platform that allows anyone to rent, lease or hire anything as long as the object of the rent, lease or hire is legal), employed a similar colour scheme in the design of its website, motto, Facebook and Twitter tagline. Apparently, the only difference between both brands is the replacement of the word, ‘z’ with the word ‘s’ in the name of both brands. The above scenario demonstrates the need for companies, particularly startups seeking to build a brand in their chosen industry, to take the necessary legal steps to protect their intellectual property and consequently, their brand.

Without dwelling on the legal ramifications or moral repercussions of the allegations of the founder of Eazyhire, the article attempts to explore the legal issues that could arise from the above scenario.


FG reserves N5billion contracts to wholly owned Nigerian companies

The Federal Government, in line with the Nigerian Content Act,2010, will now award, to only wholly owned Nigerian companies, contracts for projects within the range of N5 billion.

Against this backdrop, 15 wholly owned Nigerian companies were recently awarded the contracts for 21 Category C projects that range from N5 billion and below.

The Minister of Works, Mr Mike Onolememen, made this pledge when he received members of Nigerian Society of Engineers, NSE, led by its president, Engr.  Ademola Olorunfemi.

For More Here


CPC lists guidelines to protect telecom subscribers

To improve consumer education and protect subscribers’ from the exploitative activities of some telecommunications operators, the Consumer Protection Council has inaugurated a Compendium of the Rights of Telecommunication Subscribers in Nigeria.

The Minister of Communications Technology inaugurated the compendium in Abuja on Monday at the Consumer Roundtable on Phone Rights put together by the CPC.

She called for the NCC to strengthen its collaboration with the CPC to address subscribers’ complaints bordering on poor telecoms service delivery.

The Director-General, CPC, Mrs. Dupe Atoki, noted that users of telecoms services in Nigeria have not asserted their rights against telecoms operators due to ignorance of these rights and lack of an avenue to complain. Therefore, the CPC has codified the rights of telecommunications subscribers so that they can access, read and understand these rights.

These rights include poor network, unsolicited services, unlawful deductions/non-transparent billing, exploitative automated services, unauthorised SIM swaps/line disconnection, poor internet services and poor customer service.

The Compendium was launched as part of the commemoration of the World Consumer Rights Day.


Sexual harassment: NIC awards N40m against employer

Many employees in Nigeria have to contend with sexual harassment on a daily basis but few have the courage to take a stance against same. Thus, the case of Mrs. Ejieke Maduka, a former Enterprise marketing Manager of Microsoft Nigeria, is indeed, a landmark case.

Following complaints of sexual harassment and her eventual sack by Microsoft Nigeria Limited, Mrs. Maduka, who was also the Diversity Champion for Women Rights in West, East and Central Africa, WECA, for Microsoft Worldwide, took her case to the National Industrial Court. The Court awarded N39.6 million ($248,000) in damages for the termination of her employment for refusing the sexual advances of former Country Manager, Emmanuel Onyeje, who took over the reins at Zinox Technologies as Chief Operating Officer, in July last year.

The first respondent, Microsoft Nigeria Limited, told the court it retained the right to hire and fire the applicant and prayed for the dismissal of the suit adding that Mrs Maduka’s termination was part of a “restructuring and downsizing” plan, as she was not the only employee laid off, and it had nothing to do with her alleged refusal to succumb to the sexual advances of Onyeje. It also denied that Onyeje sexually harassed the applicant.

The second respondent, Microsoft Corporation, on its part, prayed the court to strike its name out from the suit, as it neither employed nor sacked the applicant, adding that it owed her no duty of care.

The third respondent, Onyeje on his part, denied ever sexually harassing the applicant.  During trial, Onyeje’s only witness, Awawu Olumide Sojinrin, a Microsoft employee, testified that she never saw him sexually harass any female staff. However, on cross-examination, she admitted that while on an official trip to Atlanta, USA, Onyeje did not tickle her, but “touched” and “poked” her. She also admitted that she saw him touch and poke some of her colleagues.

The fourth respondent, Majekodunmi asked the court to strike out his name from the suit, as he merely carried out a lawful order of his employer, by issuing the termination letter on the applicant. The court struck off his name from the suit, holding that he is not a proper party in the suit.

The trial judge, Justice O. Obaseki-Osaghae, in her judgment, found that

  • The first respondent had not implemented its sexual harassment policy;
  • By their inaction and silence, the first and second respondent both tolerated and ratified the third respondent’s conduct contrary to their policy of prohibition and non-tolerance of sexual harassment, gender discrimination and retaliatory action. Thus, they are both in breach of their duty of care and protection to the applicant and are vicariously liable for the acts of sexual harassment carried out by the third respondent within the apparent scope of authority they entrusted to him.
  • On the sack of the applicant, the court noted that neither the evidence of the downsizing or restructuring nor the names of the other employees affected by the exercise were placed before the court. The court further stated that the sudden replacement of the applicant with Peter Evbota is evidence of gender discrimination.

“The applicant has given evidence that she notified the Human Resources Manager and her immediate boss Mr Majekodunnmi of sexual harassment by the third respondent, but they did nothing about it”.

Mrs. Ejieke asked the court for an award of general damages and exemplary and aggravated damages. The court in awarding general damages stated;

“The applicant’s fundamental rights have been violated. Her pride, dignity and sense or self-worth have (sic) been injured by the actions of the respondents. I think an award of general damages which she is entitled to will meet the justice of this case. She has deposed to the fact that her annual base pay is NI3. 225million.This has not been denied by the respondents. Consequently, and on the authority of section 19 (d) of the National Industrial Court act, 2006, I make an award of general damages in favour of the applicant”

The court made the following orders;

  • That  the termination of the applicant’s employment by the first  and second respondents through their agent, the third respondent, simply because she refused to succumb to the sexual harassment from the third  respondent, the ratification of same by  first, second, third respondents and the subsequent conduct of the respondents constitute a violation of the applicant’s fundamental right to human dignity and freedom from discrimination as guaranteed by Section 34 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 2, 5, 14, I5 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, CAPA9, Laws of the Federation, 2004.
  • The acts of the third respondent, an agent of the first and second respondents, in incessantly handling the applicant’s waist against her will and without her consent, constitutes assault and trespass on the person of the applicant.
  • Each of the respondents (Ist, 2nd and 3rd) are to pay to the applicant the sum of N13, 225million as general damages for the violation of the applicant’s rights as guaranteed under Sections 34 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 2, 5, 14, 15 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation, 2004.
  • The first and second respondents are to immediately implement the sexual harassment policy to prevent a recurrence of a hostile working environment, sexual harassment in the first respondent. The sums are to be paid within 30 days.

Obviously, the respondents have the right to appeal and the Appeal courts may question the quantum of damage awarded. However, the case, to my mind, is a clarion call for employees and the courts to stamp out the cankerworm that is sexual harassment in Nigeria. A former employee of Cormart Nigeria Limited, Peace Gabriel, seems to have taken the bull by the horn by raising an alarm over an alleged attempt by her former supervisor, Mr. Patrick Ovie, to frame her for fraud. Gabriel added that the development arose because she rejected Ovie’s alleged sexual advances. see  Former employee of Cormart alleges sexual harassment

Microsoft calls for cross border solution to Software piracy

Microsoft, has recommended an enhanced enforcement mechanism using dedicated specialised Intellectual Property enforcement; investigating and prosecuting resources and cross border cooperation among law enforcement agencies (LEAs) across West Africa to check software piracy in Nigeria.

Speaking at the Anti-Counterfeiting Collaboration (ACC) of Nigeria’s fifth roundtable held in Lagos, Microsoft officials said the war against piracy would not be successful unless all stakeholders put in place certain measures.

Microsoft stressed the need for increased public education and awareness to change the current public attitude toward software and IP, while calling for a leader-led model by the government through the promotion and use of legal software in state-owned enterprises and by its contractors and suppliers as a precondition for contract.

The company also called for implementing software asset management (SAM) programmes in Nigeria and the West African region .

The Head, Corporate Affairs, Microsoft Anglophone West Africa, Ms. Ijeoma Abazie, at the roundtable to review the IPR Bill gave tips on how to address software piracy, its various forms, how it undermines the industry’s ability to innovate, limits economic growth in economies around the world and puts consumers’ data and security at risk, as well as the use of anti-piracy technology to checkmate it.

Disclosing some findings of the Business Software Alliance/INSEAD study, Abazie, said that increasing the use of genuine software by 1% contributes $73billion to the global economy as opposed to $20billion from pirated software, a whopping gap of $53billion.

She highlighted the benefits of curbing software piracy to include job creation, higher tax revenues and safety. Abazie said there was an urgent need to draft and enact an internet protocol bill for Nigeria to align the country with international best practice and technological developments.

The ACC is the umbrella body for intellectual Property Rights legalisation and related issues in Nigeria with membership spanning across all sectors including the Intellectual Property Lawyers Association of Nigeria.


NNPC urges FHC to review TAT’s ruling

The Nigerian National Petroleum Corporation (NNPC) has urged the Federal High Court to review a ruling by the Tax Appeal Tribunal (TAT), Lagos Zone, on a dispute over oil mining lease (OML) 118 Production Sharing Contract (PSC) in the case of Shell Nigeria Exploration & Production Company Limited and others V. FIRS and another, Suit No. TAT/LZ/001/2012.

Parties involved are the Federal Inland Revenue Service (FIRS), Shell Nigeria Exploration and Production Company Limited (SNEPCo), Esso Exploration and Production Nigeria (Deep Water) Limited, Nigerian Agip Exploration Limited and Total E & P Nigeria Limited, joined as second to sixth respondents.

NNPC sought a declaration that TAT, Lagos Zone (the first respondent) lacks the jurisdiction to adjudicate over rights and obligations conferred on parties to the Bonga PSC.

It said the TAT cannot determine contractual disputes arising from the interpretation of the contract.

Shell, Esso, Agip and Total had sought declaratory reliefs at the tribunal over the determination of tax incidences of parties in PSC involving NNPC.

The tribunal, in its July 3 ruling, assumed jurisdiction in the case. It held: “The tax assessment challenged in this appeal is within the remit of the Tax Appeal Tribunal.”

But NNPC urged the Federal High Court per Justice Mohammed Idris, to declare the tribunal’s decision “ultra vires, illegal, wrongful, null and void and of no effect whatsoever.”

It sought an order of certiorari urging the High court to take over the tribunal’s proceedings and to quash the ruling and an order prohibiting the TAT from further hearing and making any decision in the matter.

NNPC said the tribunal erred when it assumed the powers conferred by Section 251 of the 1999 Constitution on the Federal High Court to entertain and determine matters relating to government revenue.

It claimed that by the provisions of the PSC, the third, fourth, fifth and sixth respondents are not tax payers known to the FIRS and as such are unable to successfully maintain an action before the TAT against FIRS.

NNPC added that the reliefs before the TAT is such that when determined, will have direct impact on the Federal Government’s revenue and the contractual relationship in the Bonga contract.

NNPC, the concession owner and holder of Oil Prospecting Licence (OPL) 212, executed the Bonga PSC dated April 19, 1993, with Shell as contractor to the operations of OPL 212.

Shell, Esso, Agip and Total constitute the “contractor” through a joint venture in the Bonga contract.

By the PSC’s provisions, NNPC files Petroleum Profit Tax (PPT) returns for itself and the contractor.

According to NNPC, the contractor was to prepare accurate PPT returns and submit to NNPC and NNPC in turn files the returns to FIRS.

The applicant said in 2010, the contractors prepared “incorrect” PPT returns for the 2009 assessment in respect of the Bonga license and forwarded same to the NNPC.

NNPC alleged that the returns it received from the contractor were “inaccurate, incorrect and non-compliant with contractual terms of the PSC.”

It claimed it was compelled to file accurate tax returns with the FIRS, which resulted in a disagreement with the contractor.

Subsequently, the oil firms instituted an appeal at the tribunal.

They sought “a declaration that although chargeable tax for the year is USD2, 042, 706, 851, however, by virtue of the overpayment of PPT in previous years of assessment, the PPT for the Bonga Contract Area in the 2010 year of assessment is nil.”