EMPLOYER’S LIABILITY TO HID EMPLOYEE UNDER THE NIGERIAN CONTRACT OF EMPLOYMENT

CHAPTER ONE

INTRODUCTION-MEANING AND SCOPE, FORMATION, HISTORICAL BACKGROUND AND BASIS OF LIABILITY.

1.1 Meaning and Scope of Contract of Employment

The contract of employment is a specie of contract, and is Therefore governed by general principles of the law of contract, consensusad item, Being a kind of simple contract, contract of employment must also satisfy the elements of a valid contract. The vitiating factors are also applicable to it. What distinguishes a contract of employment from a simple contract, which chitty defines as a promise or a set of promises which the law will enforce1, is the degree of control that one party has over the other party2. Also, a contract of employment relates to a relationship that exists between two or more persons for the performance of services, while one person is employed by the other. Where as, a contract relates to a relationship that exist between two or more persons in any transaction, generally.

Traditional statements of what constitute a contract of employment, place most emphasis on the power of the employer to control the work of the employee in contrast to a contract with an independent contractor.In Chadwick v. pioneer private telephone Ltd, contract of employment was defined thus: contract of services implies an obligation to serve and it comprises some degree of control by the master”3. It must however be noted that there is no comprehensive definition, only conflicting criteria’s. A contract of employment can be defined as a contract entered in to by two parties whereby one party submits himself to the service of the other for some considerations in most cases salary and wages. An attempt has, however been made in the sphere of labour Legislations in Nigeria4 at defining a contract of employment as;

’’Any agreement whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.”

It is a contract of service and not for service, what differentiates them is the fact that in a contract of service, a man (employee), places his labor at the disposal of another, resulting in a relationship between the to parties. Where as, a contract for services involve a situation where a man who operates an independent business agrees to do labor or carry out a task or tasks for the person of another. In past times, the contract of employment was known as and called a relationship of ‘’ master and servant”.

Since employment relationship strictly represents subordination of an individual as a worker to an employer, which relationship could be described as a dependent labor relationship, Mr. Y’s house keeper, gate keeper, driver or chauffeur is his employee, that a laundry man or a t-axi driver is an independent contractor5.

Thus, for a contract of employment to be distinguished from a contract for service, the parties involved must avail themselves of the statutory rights under it. That is, it must be shown that a relationship of employer and employee or master and servant exists between them. Thus, there must be terms agreed by both parties for this will be the sole principle which will guide their acts and conducts during the subsistence of the employment. As held by the court in SMITH V. GENERAL MOTOR CAB. CO6, where the claim for the existence of such relationship between the parties fails.

As must have been noted, a contract of service involves two separate legal categories of persons namely – an Employer, master, hirer, or recruiter, and an Employee. WHO IS AN EMPLOYER ?: Although this has no précise meaning in law;

’’An employer is any person who has entered in to contract of employment to employ any other person as a worker her for himself or for the services of any other person and includes the agents, manager, or factor of that first mentioned person and the personal representatives of a deceased employer.”7

An employer can also be defined as; ’’The entrepreneur who engages a worker under a dependent labor relationship and has control over that worker to the extent that such worker could be referred to as an employee’’. Also, an employer is ’’Any person who employs or engages labour or the service of another person under contract of service’’.Theemployer could be an individual, a partner, a corporate body or even a state (the Government).8

WHO IS AN EMPLOYEE?

Any person who has entered in to or works under a contract with an employer whether the contract is for manual labor or clerical work or express or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labor but does not include…………… persons exercising administrative, executive, technical or professional functions as public officer or otherwise.”9

To identify an employer or servant then, the essential question is ’’ was his contract a contract of service within the meaning which an ordinary person would give to the word?”. In CASSIDY v. MINISTER OF HEALTH10Bomerell,l.jgave the view that, if the answer is YES, then such a person will be regarded as an employee. In ADEYEMO v. OYO STATE PUBLIC SERVICE COMMISION,11 the plaintiff who was a deputy accountant Generalloyo state public service was held to be a servant or employee. Employee and servant have been used interchangeably by authors also, various Nigerian statutes have defined who a servant is by using words like workers, employee or workman.

1.2 Formation of Contract of Employment

The existence of binding relationship between the employer and the employee arises out of contract, as essential elements for the formation of  a contract of employment or service between an employer and employee upon which their rights and obligations depends are generally same as conditions in ordinary or simple contact. This legal relationship therefore presupposes the voluntary consent of the parties to its creation expressed through the process of hiring within limitation imposed only by the general law of contract or statutory regulation. The terms are often not negotiable by the individual employee except in some cases where remuneration is negotiable, depending on the professional skills required by the employer. As such,  the rights and dutiesof the master and servant are essentially the products of free bargaining  between the parties,  as they have liberty to decide  the terms and conditions of  service.

Beside the element of voluntariness, there is also the presumption of equality between the parties but professor Odumosu has described this presumption of equality between the parties as a ’’Fiction’’.12 Also, AdeogunA.A commented on the presumption of equality and voluntariness of bargaining power between the master and the servant, as he noted that, ’’… the so-called bargaining power of the individual worker is of little importance in practice……”13

The basic conceptual frame work for the individual employment relationship is provided by contract, and as such, the employment relationship created must of necessity satisfy all the essential features of a valid contract. There must be offer, acceptance, requisite capacity of parties, consideration, intention to give the agreement legal efficacy and no element vitiate the contract. With regard to capacity, the parties must have requisite legal capacity to enter the employment relationship, Generally, the capacity of infants, women, and persons of unsound mind are limited in some ways.

TERMS OF A CONTRACT OF EMPLOYMENT

The terms of the contract of employment can be derived from the individual contract itself, collective agreement and legislations.Besides this, the terms of a contract also depends largely on the intention of the parties, as they are free to agree upon the contents or terms of their employment relationship. The terms of contract relates to those statements, express or implied, by which the employer and the employee intend to guide their employment relationship. The term defines the rights and duties of obligations and liabilities arising from the relationship. As stated above, there are express or implied terms . The express terms include: Hours of work14 travel to work,15wages and control of wages. The Implied obligation of employer include: To pay wages,16To treat employee with due respect; provision of work for the employee; Safety of the employee at work; Provision of references; To indenify the employee.17.

Some implied duties of the employee include: The duty of obedience; 18 Dutyto exercise skills and reasonable care;19  duty to render honest and faithful service; Avoid secret profit and personal gain; competition.Avoid misuse of confidential information.20

The contractual terms may be oral or written, but important contents of a contract ofemployment are as a matter of practice and prudence, made in writing and the terms documented properly.

1.4  Historical Background of Employer’s Liability 

Munkman21asserts that a recorded history of an employer’s liability started in 1837, when it started by effecting a denial of the workman a remedy for his damage through the application of the Doctrine of Common Employment. This doctrine operated as a defence under Common Law. It depends on the theory that the contract of employment between an employer and an employee contains an implied term that the employee will not hold his employer liable for an injury due to negligence of a fellow employeeengaged in Common employment with him. Thus, a master was only liable to his servant when there was a want of care in selecting his servant or personal negligence or omission to take reasonable precautions to ensure his worker’ safety. The employer was therefore absolved of any vicarious liability for any tort committed by one fellow employee against another.22 This was the principle introduced into the common law by Lord Abinger CB in PRIESTLEY v. FOWLER,23 where he held that:“the mere relation of the master and the servant can never imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself”.   By this, Lord Abinger almost excluded the employer totally from any liability to his employee.

This remained the common law position until the English House of Lords WILSON and CLYDE COAL Co Ltd. V. ENGLISH,24 Maintained that the employer is under the duty to take reasonable care for the safety of his employee in the course of his employment. This doctrine of common employment continued to limit the remedy available to employees until the Wilson’s case: In the case, an employee was killed due to an accident caused by co-workers. The employee argued that the company was not liable on the grounds that the decreased employee contributed to his own death by not taking an alternative route on the grounds that the decreased employee contributed to his colleagues aware of his location. The court held that the employer-company is liable for negligence in the performance of the duty to exercise reasonable care and to ]provide a reasonably safe system of work. That the implied duty of care was personal to the employer –company and it could not be devolved upon one of its employees, as the employer had argued that the duty of provide a safe system of work had been delegated to the colleagues of the deceased who caused the accident, that the employer has a delegable duty to create a safe system of work. The defence of common employment has also been statutorily abolished in Nigeria, in the then Federal territory of Lagos, in 1961. Eastern Region, 1962, Western Region, 1963, and for the whole country in 1988.25

The Labour Act provides;

(1)   It shall not be a defence to an employee who is used in respect of personal injuries caused by the negligence of a person employed by him, that, that person was, at the time the injuries were caused, in common employment with the person injured.

2)    Any provisions contained in a contract of service or apprenticeship or in an agreement collateral thereto (including a contract or agreement entered into before the commencement of this section) shall be void in so far as it would have the effect of excluding or limiting any liability of the employee in respect of personal injuries caused to the person employed or apprenticed by the negligence of persons in common employment with him.

In NIGERIAN TOBACCO CO. LTD. V. ALLOYSIUS OLUMBA AGUNANNE,27 the Supreme Court opined that the doctrine does not exist to all.

1.5  BASIS OF THE EMPLOYER’S LIABILITY

The employee’s safety at work is generally guaranteed by the imposition of certain duties on the employer, duties either fixed by the contract itself expressly, or implied by and or imposed by statutes as the case may be. The breach of these duties may involve the employer in one form of liability of another.28 But one is baffled at the reason why the employer should be liable to the employee he has employed, as it is the employer who makes an offer of the existence of such employment to the employee and to pay him wages.

As stated above, certain duties are imposed on the employer, as fixed by the contract itself. That is, certain termsexpressly agreed on and fixed by both the employer and the employee as the sole principle which will guide their acts and conducts during the substance of the employment. In a situation where parties were free to go back on their promises without incurring any liability, employment relations would be unbearable and it would be impossible to carry on trade and commerce. In the case of a contract of employment, the employer’s liability to his employee should be breach any term of the contract arises because both –parties genuinely intended and consented their legal relations, to be bound by it.

The general rule is that the employer at common law has the implied duty to take reasonable care of his employee. This duty is concerned with those protection given by the common law, to guarantee the safety of the employee at work or save the employer from damages in case of any injury to the employee in the course of the employment.29

The legal duties and responsibilities of the employer in course of his relationships with the employee can arise in two ways namely; personal or vicarious (Liability).

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AN APPRAISAL OF THE ROLE OF CORPORATE AFFAIRS COMMISSION AS A REGULATORY BODY UNDER NIGERIAN COMPANY LAW

CHAPTER ONE

 GENERAL INTRODUCTION
1.1    Introduction

The Corporate Affairs Commission hereinafter referred to as “the Commission” or CAC for short, is one of the major regulatory bodies of companies in Nigeria. The body is a creation that came into being by virtue of the Companies and Allied Matters Act(hereinafter referred to as CAMA) Cap 50, Laws of the

Federation of Nigeria, now Cap C20 of the Laws of the Federation, 2004.

Principally, the Commission is one of the innovations of CAMA that gives the Commission the responsibility of incorporation of companies, registration of Business Names, Incorporation of Trustee of certain committees, bodies, associations and other regulations. CAMA also introduced Corporate audit Committee, insider trading, codified the duties of directors, the fundamental principles emanated in the rules of Fossal Foss V Harbottle, the rule in Royal British Bank V Turguard.

Before the advent of CAC, the Companies Act of 1968 was the Act that regulated the activities of companies in Nigeria. The present CAMA was borne out of draft documents prepared by the Nigerian Law Reform Commission in an effort to reform and improve on the Companies Act of 1968, which could no longer address the various challenges associated with the regulation and supervision of Companies in Nigeria.

In the pre-oil boom era of the Nigerian Economy (1970-1979), the then company legislation was severally criticized. “…One of the major criticism of the Act is that, it is little more than the putting together of some Sections of the repealed Companies Act Cap 37 and some Sections of the U.K Companies Act 1948, instead of taking the bold step of codifying both the statutory and case law on companies[1] The preparation of such a code would have provided the opportunity for reviewing and modifying some of the more inconvenient common law rules.

In its Report on the reform of Nigeria Company Law 1988, the Nigerian Law Reform Commission commentary on the above inadequacy and some others observed that “with paucity of Nigerian cases on Company Law and the present heavy cost of obtaining English Law reports and textbooks, that difficulty in finding the law in this country can be well imagined…”[2]

As a result of these numerous problems in our company laws as hitherto mentioned, the Nigerian Law Reform Commission was set up among other reasons “to evolve a comprehensive body of Legal Principles and Rules governing Companies and suitable for the circumstances of the country. These rules was to facilitate business activities in the country and protect the interest of the investors, the public and of the nation as a whole”[3]

After extensive consideration and submissions of papers by various stakeholders, the Commission came out with a draft copy which was forwarded to the then Attorney General of the Federation and Ministry of Justice, who set up a Consultative Assembly which further deliberated on the draft between 1988-1989 and submitted a reviewed copy to the AG and Minister of Justice who made further alterations before it was promulgated into law as the Company and Allied Matters Decrees 1990 (No 1 of 1990) now referred to as the Companies and Allied Matter

Act, Cap 59 Laws of the Federation of Nigeria. The Act came into effect on 1st of January, LFN, 2004. It is this Act that now created the CAC and made it the Apex regulator of corporate Affairs in Nigeria.

Prior to the promulgation of CAMA 2004, the hitherto Companies Act of 1968 was under the control of Federal Ministry of Trade, through its Corporate Affairs Division. Then it had a central Companies Registry in Lagos which was later moved to Abuja in 1988. It was in charge of incorporation of Companies, filling of annual returns and other statutory documents required to be submitted to the Registry. The Registrar of Companies was in charge of the Company Registry. The Company Registry was saddled with plethora of problems, viz:-

  1. It was not self accounting, its budget depended on the budget of the Federal Ministry of Trade.
  2. The Registrar was a staff of the Ministry i.e a lawyer who was deployed from the

Federal Ministry of Justice.

  1. It was grossly under funded inspite of the huge money being made by the Company Registry from incorporation of Companies, Business Name

Registration, filing of Annual Returns and other statutory documents.

  1. The accommodation for staff was unsuitable and staff welfare was at its lowest ebb that affected their productivity.
  2. The normal civil service bureaucracy affected the administration to effectively and effectually carry out their functions.

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TRUE FEDERALISM: A PANACEA FOR RAPID GROWTH IN NIGERIA

CHAPTER ONE
INTRODUCTION
Background of the Study
Nigeria claims to be practicing Federalism but the type of Federalism it is practicing is not Federalism in the real sense of its meaning.
Federalism in Nigeria roots back to the amalgamation of the southern and northern protectorates of Nigeria in 1914 by Lord Lugard; though it was the Leyttleton’s constitution of 1954 that brought a ray of what Federalism is all about and by extension the provisions of the 1999 constitution describes expressively the tenets of the Federal system of government; with Nigeria having three tiers: the federal, state and local government.
Federalism is one form of government that supports the sharing of power between the central and state governments with no interference of either of them in their affairs. True Federalism is not about the central government being more powerful than the state government even down to the distribution of wealth This is because the powers of both the central and state governments stem from the constitution, where their autonomies are clearly spelt out.
Federalism is a form of government that is best practiced in a heterogeneous ethnic society like Nigeria; Federalism is about unity in diversity.
Nigeria consisting of people with diverse languages, different religion, different climate, different culture, etc need to practice True Federalism to aid socio-economic development.
The Federal government not exercising more power than the state government; rather allowed to control the affairs of the state to its advantage and for the betterment of the country at large.
However, for Nigeria to have sustainable development, national integration and equitable distribution of its resources, True Federalism must be adopted. The state governments must take their eyes off the central government, and vice versa so they can effectively discharge their duties (Kenneth Wheare, 1963).
Meanwhile, for Nigeria to experience rapid growth in all its sectors ‘True Federalism’ is the way out.
Statement of the Problem
It is obvious on how states in Nigeria are not allowed to control their affairs without the interference of the central government. There are not allowed to maximize their resources for the good of the state; rather they are made to rely on the allocation from the Federal government which is not sufficient to meet the needs of the state.
However, the Federal government has failed to offer good governance through equitable distribution of wealth. Some states are given certain privileges than the other. A good example is the people of Niger Delta who contribute immensely to revenue generation of Nigeria through the supply of crude oil; yet they have poor roads, unstable power supply, poor health services, degraded environment etc.
In addition, the northern part of the government seems to enjoy much allocation than other states, even down to political appointments (Muhammed, 2008: p44). The purpose of the federal character is forfeited, thus bridging the law of True Federalism.
Another major problem of True Federalism is corruption. Corruption is a factor that has eaten deep into the Nigeria system. When a power is controlled someone from a particular ethnic group or community, the persons tend to accumulate wealth just for members of this community neglecting other communities.
1.2 Objectives of the Study
The major objective of this research is to discover how True Federalism can be a panacea for rapid growth in Nigeria.

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NIGERIA AND CHILD MARRIAGE LEGAL ISSUES COMPLICATIONS IMPLICATIONS PROSPECTS AND SOLUTIONS

Abstract
Child marriage is often deployed as a response to crisis, considered by families and communities to be the best possible means of protecting children. Fear of rape and sexual violence, of unwanted pregnancies outside marriage, of family shame and dishonour, of homelessness and hunger or starvation were all reported by parents and children as legitimate reasons for child marriage in some localities.Poverty, weak legislative frameworks and enforcement, harmful traditional practices, gender discrimination and lack of alternative opportunities for girls (especially education) are all major drivers of child marriage. However this researchers finds in addition to the above mentioned that lack of political will coupled with multiplicities of laws accounts for non-apprehension and prosecution of offenders thereby allowing them to hide under religion and continue to perpetrate crime against humanity. This study is an attempt to fill the void and chart the way out into a brighter and not bleak future for the girl child using data in our content analysis. We hope that stakeholders most especially government and the National Assembly can rise to the challenge and harmonise all laws necessary to deter child marriage in Nigeria

References

Adebambo Adeyinka Veronica (2010): Cultural Influence on Child Marriage Focus on Northern Nigerians
Resident in Ogun State, Nigeria, A Project Submitted to The Department of Home Science and Management
(Child Development And Family Studies) College of Food Science and Human Ecology, University of
Agriculture, Abeokuta.
Aduradola, A. M.: Child Marriage: Issues, Problems and Challenges, A Paper presented at a One Day Seminar
organised by National Open University of Nigeria, Lagos on the 4th September (Unpublished).
Alexandra Hervish and Charlotte Feldman-Jacobs (2011): Who Speaks for Me? Ending Child Marriage
Alexandra Hervish and Charlotte Feldman-Jacobs, (2011): Who Speaks for Me? Ending Child Marriage
Bem Angwe:Child Marriage in Nigeria; Issues, Problems and Challenges, A Paper presented at a One Day
Seminar organised by National Open University of Nigeria, Lagos on the 4th September (Unpublished).
Davis, A., Postles, C. and Rosa, G. (2013): A girl’s right to say no to marriage: Working to end child marriage
and keep girls in school. Woking: Plan International.
Ebun-Olu Adegboruwa: Child Marriage in Nigeria; Issues, Problems and Challenges,A Paper presented at a One Day Seminar organised by National Open University of Nigeria, Lagos on the 4th September (Unpublished).
International Center for Research on Women (ICRW), (2011): Solutions to End Child Marriage, What the
Evidence Shows
International Planned Parenthood Federation and the Forum on Marriage and the Rights of Women and
Girls,(IPPF): Ending child marriage , A guide for global policy action
Nawal M. Nour: Health Consequences of Child Marriage in Africa
OMCT in partnership with The Centre For Law Enforcement Education (2005): Rights of the Child in Nigeria,
A Report on the implementation of the Convention on the Rights of the Child by Nigeria.
Pathfinder International/Ethiopia, (2006): Report on Causes and Consequences of Early Marriage in Amhara
Region.
The Evolution of Families and Marriages; Families: A Social Class Perspective
Theodore W. Schultz, ed.(1974): Economics of the Family: Marriage, Children, and Human Capital,
http://papers.nber.org/books/schu74-1.
United Nations Children’s Fund (UNICEF), New York, (2008): Child Marriage and the Law, Legislative Reform
Initiative Paper Series, Global Policy Section.
United Nations Fund for Population Activities.
USAID, (2009): Fact Sheet on Youth Reproductive Health Policy; Early Marriage and Youth Reproductive
Health.
World Vision UK (2013): Untying The Knot; Exploring Early Marriage in Fragile States.

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APPRAISAL OF CHILD’S RIGHT LEGISLATION’S IN DEVELOPING WORLD: FAILURES PROBLEM PROSPECT

There are various legislations under the Nigerian legal system that seeks to protect the rights of the child. Majorly, the 1999 Constitution of the Federal Republic of Nigeria provided for human rights, Nigerian Children’s Trust Fund Act, Penal Code, Criminal Code, Children and Young Persons Act, Child Rights Act, which all have provisions for the protection of a child. The guiding principle on the issue of child protection is in the best interest of the child, the Child Rights Act 2003 and Niger State Child Rights Law 2010 affirmed this principle and provided various rights for the child and the mechanism for the enforcement of these rights. However, despite the existence of these various law that provided for the protection of the rights of a child, the children’s rights are been abused on daily basis, therefore, the dissertation appraised the protection of the rights of a child in Niger State by considering the Niger State Child Rights Law, and other related legislations. The Doctrinal and Empirical research methodology were used to source for information relied upon for this dissertation. It is the findings of this dissertation that there are inconsistencies in Niger State Child Rights Law 2010, and lack of commitment on the part of government to adequately enforce the laws that protect the child. It makes recommendations to the area of the inconsistency or defect in the law and also commitment on the part of the government constituted authorities in charge of the implementation of the Child Rights Law.

CHAPTER ONE GENERAL INTRODUCTION

1.1    Background of the Research 

The general frameworks within which human rights are protected in Nigeria include the rights of a child which are in Chapter IV of the 1999 CFRN. The Rights to fair hearing and the right to life, the rights to personal liberty and the right to freedom of movement among others, Section 421 prohibits unjustifiable discrimination on basis of ethnic group, place of origin, sex, religion or political opinion2.

We have other legislations that seek to protect the rights of a child, like, Children and Young Persons Act, Criminal Code, Penal Code, Child Rights Act 2003.

In 1996, Nigeria submitted its first report on the implementation of the Child

Rights Convention to the United Nation Committee on the Rights of the Child. One of the major recommendations made by the Committee was to finally ensure the domestication of the Child Rights Convention, as this is necessary for its full implementation in Nigeria3.

1 1999 Constitution of the Federal Republic of Nigeria

2 http://scholarship.law.cornell.edu/ijl; 2nd April, 2015 3 Ibid

The United Nation Convention on the Rights of the Child came into force on 2nd September, 1990[1] and The African Charter on the Rights and Welfare of the Child came into force in 1999, while Nigeria domesticated the United Nation Convention on the Right of the Child and African Charter on the Rights and Welfare of a Child in 2003. Subsequent upon the domestication of Child Rights Act 2003, the

following states passed their Child Rights Law: 

Anambra State 2004[2], Taraba State 2005[3], Imo State 2004[4], Kwara State 2005[5],

Nasarawa State 2005[6], Plateau State 2005[7], Abia State 2006[8], Ekiti State 2006[9], Oyo 2006[10], Osun State 2007[11], Ogun State 2006[12], Ondo State 2007[13], River State 2009[14], Kogi State 2007[15], Jigawa State 2007[16], Lagos State 2007[17], Edo State 2007[18], Akwa Ibom State 2008[19], Delta State 2008[20], Benue State 2009[21], Cross River 2009[22] and Ebonyi State 201026 and Niger State being the focus of this research passed the Child Rights Law in 2010. 

Although Niger State has passed the Child Rights Law since 2010 but the prevalence level of child abuse within the state is alarming, which shows that either there are fundamental defect in the law or the lack of commitment from those having the responsibility of implementing the law.

The Child Rights Law principally seek to protect the child from all forms of abuses and create an enabling environment for the proper growth of a child. Niger State Child Rights Law provided that “every government, person, institution, service, agency, organization and body responsible for the care and welfare of a child shall, at all times, ensure adequate opportunities for the child in the enjoyment of the rights provided for the child27.

Moreover, Niger State Child Rights Law provides that every child is entitled to enjoy the best attainable state of physical, mental and spiritual health[23].

It is interesting to know that the law provides that every child has the right to free and compulsory universal basic education and it shall be the duty of the government to provide such education29.

Too many children are considered to be the property of adults[24], and are subjected to various forms of abuse and exploitation. We cannot claim that we live in a world where children‟s best interests are the primary consideration in all decision affecting them. In fact, the contrary is evidenced by the way human kind allocates its resources, the limited attention given in ensuring that it is in the best interest of the children and the way it conduct its war[25].

The survival and continuity of the human society depends upon the protection, preservation, nurture and development of the child. Providing the child with a good start in life and ensuring that their material and emotional needs are adequately met is very important. 

The Child Right Act 2003[26] and Child Right Law 201032 define a child to mean: “A person under the age of eighteen (18) years”.

However Children and Young Persons Act section 2 provide that a “child means a person under the age of fourteen years.”[27] Also Children and Young Persons Law of Niger State define a child in section 2 to mean “any person who has not yet attained the age of fourteen years”.[28]

Furthermore, Article 1 of Convention on the Right of the Child defines the holder of Rights under the child Convention as “every human being below the age of 18 years unless under the law applicable to the child, Majority is attained earlier”[29]. The convention clearly specified the upper age limit for childhood as eighteen (18) years, but recognizes that majority may be obtained at an earlier age under laws applicable to the child. The Article thus accommodates the concept of an advancement of majority at earlier age either according to the federal or laws within that country.

Another definition of a child by Oxford dictionary is “A young human being below the age of puberty or below the legal age of majority”[30]. The Nigerian Children‟s Trust Fund Act defines “A child as the person who has not attained the age of sixteen years”.[31]

Furthermore, Ayua and Okagbue in their book define a child under the customary definition that it “varies from ethnic group to ethnic group due to the lack of a uniform system of customary law in Nigeria”. 

In some ethnic groups a boy remains a child until initiated into an age grade society or until he is old enough to contribute financially to community development. In others, childhood terminates at puberty”[32].

Black‟s Law Dictionary defines a child to mean “a person under the age of maturity”.39

In Okon vs. The State it was held that “under section 2 (1) of the Criminal Procedure Act, a „child‟ means any person who has not attained the age of fourteen years and this definition is exhaustive”.[33]

Also in Solola and Anor vs. State[34] “A child is defined by section 2 (1) of the Criminal Procedure Law[35] as a person who has not attained the age of 14 years”.

Similarly, in the case of R. vs Carton, it was held that the meaning of the word child “must in every case depend on the content in which it appears”.[36]

These definitions clearly show the contradiction in the definition of a child under various laws in Nigeria. But for the purpose of this research, the Child is a person under the age of 18 years. The reason being that the Child Right Act 2003 and

Niger State Child Right Law 2010 definition is the same which also tally with the United Nation Convention on the Right of the Child and African Charter on the Right and Welfare of the Child meaning it is an acceptable international definition.

1.2    Statement of the Research Problem  

Nigeria has enacted various laws for the protection of the right of a child. Niger State in particular has also promulgated the child right law in the state for the protection of the right of a child. Similarly, there are various institutions like the courts, Ministry of Women Affairs, Borstal and Orphanage homes for enforcement of the right of a child. Also successive government in Nigeria has at various times initiated and established programmes, schemes and initiative for the progressive realization of children rights. 

Despite these arrays of laws, policies and institutions realization and enforcement of child rights in Nigeria and more particularly in Niger State here been very low.

Consequently, the research examines the following questions.

1.     How has the law protected the right of a child in Niger State?

2.     What is the efficacy of the implementation mechanisms for the protection of child rights in Niger State?

3.     What are the challenges in the protection of child rights?

1.3    Aim and Objectives of the Research

The aim of this research is to appraise the protection of the rights of a child in Niger State, in order to achieve the following objectives.

i.             To analyze the protection of the right of a child.

ii.           To examine the efficacy of implementation. Mechanisms for the protection of the right of a child.

iii.        To identify the challenges in the protection of the rights of a child. iv. To provide recommendations to the challenges. 

1.4    Scope of the Research

The scope of the research is confined to the examination of following:

(i)          The protection of the Rights of the Child in Niger State with reference to the

Niger State Child Rights Law.

(ii)       Identifying possible problems that maybe encountered in the course of implementing the Child Rights Law 2010 to protect the rights of the child.

(iii)     Providing viable options in terms of general and specific recommendation on how to protect the rights of the child in Niger State in particular and

Nigeria at large.

1.5    Significance of the Research 

This research is to locate the extent to which the implementation of the Niger State Child Rights Law 2010 addresses the issue of protection of the rights of the child in Nigeria and Niger State. It will serve as an additional literature to the existing one and when people read it, it will create awareness for the protection of the rights of the child and prevention of child abuses, by so doing the public will be better informed and it will in turn contribute to guaranteeing lasting respect for and the enforcement of child rights in Niger State and Niger at large. This research will be useful as a source of material to legislators, executives, the judiciary, lawyers, student engaging in related studies and the general public.

1.6 Research Methodology 

The research methodologies adopted here are doctrinal and empirical research methodology.

Doctrinal method means “theorizing without considering the practical consequences. It is called a visualized research, imaginative research,   unpractical research, a visionary research or conceptual research”[37]. The researcher went through volumes of books, statutes, and cases in the area of the law this research covers.

Empirical Method “involves the collection of fact and data through interviews, questionnaires from target groups. The fact and data are later analyzed or experimented upon, from which result are obtained. It is also called field-oriented method of research”[38]. It include visit to Governmental and non- Governmental organizations based in Niger State relevant on the general issue of child protection and implementation of Child Rights Law 2010, of Niger State to interview individuals and administer questionnaire. 

1.7     Literature Review 

This involves review of some authors who have written on this topic. Authors have discussed extensively on the child rights law but only few articles have been written on the Child Rights Law, 2010 of Niger State, which was enacted by Niger State House of Assembly in March 2010.

Bainham wrote on the children – The Modern Law, which he considered the United Nations Convention on the Rights of the child, the author emphasis on the important of the implementation of the rights contain in the UN convention, which is one of the most important international instrument which was domesticated in Nigeria as Child Rights Act 2003. However, the analysis in the book was based on the United Nation Convention on the Rights of the child which to some extent does not bring the peculiarities of Niger State Child Rights Law 2010.[39]

Aliyu wrote on Shariah and the Child Rights Act 2003; A case of incompatibility, the author brought the inconsistencies with the religion belief of some Nigerians which the law did not put into consideration. The analysis of the author was based on the Child Rights Act 2003, which the Child Rights Law 2010 has taken care of some issues raised by the author which of course could not probably have not come to the notice of the writer as the law was passed the year the book was published.[40]

Meron wrote on Human Rights in international Law; legal and policy issues, the author dwell on the international protocols which addresses the human rights, children inclusive, which although relevant to this dissertation do not bring the rights and responsibilities of children as contain in Niger State Child Rights Law 2010.[41]

Alemika, etal, in their report on Rights of the Child in Nigeria[42]discussed the Children and Young People‟s Law, although this have been over taking by event but it helps in the understanding of the rights of the child before the enactment of Child Rights Act 2003 and Niger State Child Rights Law 2010.

Another distinguished author that has written on the child right in Nigeria is Oshio.

The author discussed the Legal Rights of the Child in Nigeria under the Constitution[43]. The author did a good job by outlining the rights Nigerian child possess under the constitution. However, the rights in the constitution are not exhaustive as it relate to the child, which the Child Rights Act 2003 and Child Rights Law 2010 provide an additional rights to the child.

Bekink in his book titled „A Child Divorce‟, “A break from parental

responsibilities and rights due to the traditional socio-cultural practices and belief of the parents. Work on the parental responsibilities and duties, which should be exercised in the interest of the children”.[44] The emphasis of the author on the interest of a child is essential as the Child Rights Act 2003 and Child Rights Law 2010 are guided under the principle of best interest of the child which the research work considered important, although the rights of the children were not spelt out by the authors.

Fredrick in first star‟s National report card on legal representation for children titled “A Child‟s Right to Counsel”.

APPRAISAL OF CHILD’S RIGHT LEGISLATION’S IN DEVELOPING WORLD: FAILURES PROBLEM PROSPECT

VALIDITY OF CUSTOMARY LAW IN NIGERIA

ABSTRACT

Customary law is an important source of Nigerian law. Its influence on the Nigeria Legal System is enormous. It is indigenous and reflects the customs and culture of the people. But it is not uniform and harmonious. It is fluid and diversified. Besides, it is not necessary in full conformity with the fast pace of Western civilization being forced on the entire mankind by globalization. It is inundated with multiplicity of customs complicated by superstitions. Hence it is difficult to take judicial notice of it without conditionality.

Although the issue of subjecting these customary laws to the validity test if they must be relied on as a source of law in Nigeria, emanates from the biased view of our colonial masters of the Nigerian customs as barbaric, sewage and superstitious, it is still worthy to note that the nature of customary law demands that it be so tested so as do remove some of the superstitious elements and harsh nature.

The question has been: why subject our customary laws to a test of validity? Could it be to remove superstitious and harsh elements inherent in them? Or could it be that they lack exactness because of non-codification? Why do courts have difficulty of taking judicial notice of them? This is the crux of this work: the validity of customary law as a source of Nigerian law.

CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

Before the introduction of English Laws in Nigeria, there were already made laws which governed the relationship, agreement and interactions between the people. This law emerged from the existing customs binding the people in agreement. These laws regulated the affairs of local life. These laws are called customary laws. Customary law, or native law and custom and its enforcement system was the only legal system that existed among the indigenous peoples and communities, long ago, before the colonialists, and other religions and systems of law came and took root in the area known today as Nigeria and elsewhere in Black Africa. In the communal legal system, which obtained before the advent of modern legal system, customary law was the law and it enjoyed respect.

The communal courts cited on the basis of customary law and their sanctions which were backed by coercion all derived from custom. However, today customs, do not enjoy the privilege of automatic enforcement in the modern courts systems as was the case in the days when communal and village courts held sway, applying customary law backed with the necessary coercive machinery of the community. Today, for customs to be applied as a customary law in our modern and integrated court system, the custom must satisfy or pass the validity tests, which is a prerequisite for its application.

VALIDITY OF CUSTOMARY LAW IN NIGERIA

WOMEN RIGHT IN AFRCIA CONSTITUTION

CHAPTER ONE

INTRODUCTION

1.1.      National Human Rights Institutions (NHRIs)

Marginalized and vulnerable groups have always existed in societies. Such groups have always needed protectors of their rights. In democratic countries institutions have had to be established to ensure that the rights of these groups are protected. National Human Rights Institutions (NHRIs) are part of these institutions. NHRIs are important and vital as they ‗serve as independent bodies for the protection and promotion of human rights‘.1

The United Nations (UN) describes NHRIs as ‗a body established by a government through the constitution, or the law or decree, with the specific functions of promotion and protection of human rights‘.2 It is universally accepted that the benchmark of standards which all NHRIs ought to comply with are the Paris Principles3, adopted by the UN General Assembly in 1993.

The Paris Principles are a set of guidelines outlining minimum standards for NHRIs. These standards relate to the competence and responsibilities of the NHRIs; their composition; guarantees of their independence and pluralism; and the methods of their operation. The Paris Principles reinforce the principle that NHRIs play a significant role at national level ‗in promoting and protecting human rights and fundamental freedoms and in developing and enhancing public awareness of those rights and freedoms‘.4 It is universally accepted that unless an NHRI adheres with the Paris Principles it cannot be accredited as an NHRI and its effectiveness is brought into question. Of particular significance for this paper is the minimum standard impacting on the mandate and powers of NHRIs. It is important that NHRIs have a broad mandate and that its powers in relation to the promotion and protection of human rights are not limited. This is relevant when addressing the issue of the protection of women‘s rights.

1  J Matshekga ‘Toothless bulldogs? The human rights commissions of Uganda and South Africa: A comparative study of their independence’ (2002) 2 African Human Right Law Journal 68.

2  R Murray The role of National Human Rights Institutions at the international and regional levels: an Africanexperience (2007) 3.

3  The Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights (Paris Principles), Resolution 18/134 of 20 December 1993.

4  Paris Principles (n 3 above).

1

As institutions that have recognition at national, regional and international level, NHRIs are in the best position to protect and promote women‘s rights in accordance with their overall purpose to protect human rights. NHRIs as semi-official institutions have the advantage of being able to have a relationship with government and non-governmental institutions (NGOs). Murray captures this as follows:

NHRIs are different from NGOs because they are presumed to occupy some semi-official position. On the other hand, an NHRI is presumed to be the watchdog of government and in order to do so, must not be in the pocket of government; it must ideally have integrity to step back and make decisions alone which may conflict with the views of the government.5

An NHRI is ‗an official body working on the protection of human rights…and are in a unique position to influence politicians and civil servants‘ and thus ‗guarantee a certain expertise…free from any politically partisan approach‘.6 If this component of an NHRI is handled well there can be optimum results for the protection of women‘s rights throughout Africa. NHRIs can influence greater and speedier implementation of legislation protecting women‘s rights through state agencies and work with non-state actors as well. Although this balancing act is not an easy task, it is one that NHRIs need to undertake with care and diligence. In carrying out this task NHRIs should be aware of ‗succumbing to the pressure‘7 of other actors in order to ensure that it is effective in its promotion and protection of human rights. Though NHRIs cannot attend to all social ills and there must be realistic expectations placed on them viewed in light of the political, economic and social context in which they were created,8 the importance in women‘s rights protection cannot be downplayed.

5  Murray (n 2 above) 6.

6  N 2 above.

7  N 2 above.

8  R Murray ‘National human rights institutions: criteria and factors for assessing their effectiveness’ (2007) 25/2

Netherlands Quarterly of Human Rights 191.

2

1.2       Protection of women’s rights

Human rights by their nature include the rights of women. Women have been marginalized for many years throughout the world based on their being women and through discrimination based on culture, patriarchal supremacy and at times religious traditions. Therefore there has been a need to try and eliminate every form of discrimination of women and to protect and promote women‘s rights. The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) defines discrimination against women as:

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 marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.9

On a regional level in Africa, the Protocol on the Rights of Women10 adopts a similar definition of discrimination against women as does CEDAW, save that the definition includes that discrimination against women includes ‗differential treatment based on sex‘.11

Despite progress and success in the protection women‘s rights, women still face issues which negatively impact on their human rights. Work that has been done by NHRIs and NGOs has led to many states enacting legislation and policies for the protection of women‘s rights. For example both Ghana and the Republic of South Africa (RSA) have legislation that criminalizes domestic violence against women, something that was once unheard of in Africa because domestic matters were considered private and not involving the state.

Due to the issues that still face African women in Ghana and RSA there should be no false sense of complacency in the protection of women‘s rights because of the progress made. Some of the issues facing women are those that have been in existence and have either gotten worse or evolved. As a result of these existing issues the protection of women‘s rights continues to be an area of great importance. The fact that there are still bodies set up at international,

9  Adopted by the UN General Assembly in Resolution 34/180 of December 1979.

10 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Protocol on the

Rights of Women), adopted 11 July 2003.

11 Art 1(h) Protocol on the Rights of Women.

3

regional and national levels to try and address issues facing women is testament of the fact that there is still a need to protect women‘s rights. The UN Secretary-General confirms that:

Violence against women and girls continues unabated in every continent, country and culture. It takes a devastating toll on women‘s lives, on their families, and on society as a whole. Most societies prohibit such violence — yet the reality is that too often, it is covered up or tacitly condoned.12

Sadly despite positive achievements for the protection of the rights of African women they still face violations of their civil and political, and socio-economic rights.

Protection of women‘s civil and political rights in Ghana and RSA are still a challenge due to violations of the rights to life,13 human dignity14, equality15 and protection from slavery and forced labour.16 The protection of socio-economic rights is also a concern due to issues relating to land, poverty, lack of access to basic health care and education. Furthermore there is the challenge of HIV/AIDS in Africa17 where women are most vulnerable to infections due to rapes, unfaithfulness of their partners and/or the inability, in certain situations, to negotiate for safe sex.

A recent conference attended by the author in Ghana at the Women‘s Human Rights Policy Advocacy Forum Series (Ghana‘s Women Conference)18 an official from the Ghanaian NHRI – Commission on Human Rights and Administrative Justice (CHRAJ) confirmed that although work had been done, there was still a greater role for each stakeholder to play in the protection of women‘s rights in Ghana. These practices include female genital mutilation (FGM) and trokosi.

12  United Nations Development Fund for Women ‘Violence against women – facts and figures’ www.unifem.org/…/violence_against_women/facts_figures_violence_against_women_2007.pdf (accessed 16 August 2010).

13 Sec 11 of the Constitution of the Republic of South Africa Act 108 of 1996 (South African Constitution) and art 13 of the Constitution of the Republic of Ghana (Amendment) Act 1992 (Ghanaian Constitution).

14 Sec 11 South African Constitution and art 15 Ghanaian Constitution.

15 Sec 9 South African Constitution and art 17 Ghanaian Constitution.

16 Art 16 Ghanaian Constitution.

17  Houda Mejri ‘Major Gains and Challenges for Women in Africa’, 8 March 2005

(accessed 16 August 2010).

18 Held by the Ark Foundation of Ghana on 9 September 2010.

The challenges that continue to face women should not cause discouragement but should lead to a vigorous protection of women‘s rights. It is in this role that NHRIs are of grave importance. As promoters and protectors of human rights, NHRIs play a pivotal role in ensuring that a culture of human rights is practiced in a country.

1.3       Problem statement

Harmful cultural practices, GBV, rape, HIV/AIDS, stigmatization/discrimination are just some of the issues that women in Ghana and RSA continue to face. These practices and incidents continue to violate their rights and raise the concern that there should be greater protection of women‘s rights. Unfortunately, women continue to be vulnerable and marginalized and are ‗most often the ones whose human rights are violated‘.19 Women‘s rights require special attention, promotion and protection due to their vulnerability and marginalization. The effect of continued degradation and discrimination of women has an adverse affect on society at large.

Though it would be unrealistic to expect a complete eradication of the violation of women‘s rights, it is important to ascertain the relationship between the protection of these rights and the existence of NHRIs. The problem therefore is the fact that violations of women‘s rights continue in Ghana and RSA and need to be addressed.

1.4       Research questions

The main question that this paper seeks to answer is whether the NHRIs have fulfilled their mandates by the protection of the rights of women in Africa and the impact made. In order to get an answer to this question the following areas will be examined:

·      What are NHRIs and what the overall challenges faced by women in Africa and in particular women in Ghana and RSA?

·      What are the mandates, powers and functions of CHRAJ and South African Human Rights Commission (SAHRC)? Do the mandates equip them to protect women‘s rights? What is their responsiveness to gender within their own structures? .

WOMEN RIGHT IN AFRCIA CONSTITUTION

A CRITICAL APPRAISAL OF THE RIGHTS OF AN ACCUSED UNDER THE CRIMINAL JUSTICE SYSTEM

ABSTRACT

Under the Nigerian criminal justice the constitutional right of an accused person is enshrined in Section 35 and 36 of the Constitution of the Federal Republic of  Nigeria 1999 such rights include, the right to be informed promptly in the language that he understands, the details and nature of the offence of the accused, the right to be given adequate time to prepare his defence, the right to defend himself in person or by legal practitioner of his own choice, the right to have an interpreter free of charge if he does not understand the language of the court, the right to have record of the proceeding kept and the right to have copies of this within seven days of the conclusion of the case, the right to remain silent during the trial, the right not to be tried and convicted twice for the same offence, the right to be presumed innocent until he is proved guilty and the right not to be charged for an unwritten offence. All these rights aimed at ensuring that an accused person is not unjustly dealt with.

Also the relevant provisions in CRIMINAL PROCEDURE CODE, CRIMINAL PROCEDURE ACT and the CHILD RIGHT ACT shed more light on the rights of an accused person in criminal trials. The thesis in its totality is channelled toward making sure that Nigerians are fully informed/aware of their rights especially the accused person and how it could be enforced. This project will not seek to look at the rights generally but most importantly the right of an accused person vis-a-vis the relevant provisions.

CHAPTER I

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

When a suspect is described as having right, he is acknowledged to be entitled to something to which he has just claim under the law. By virtue of man’s creation, he has certain rights which are common to those of all other men. Most of the fundamental rights are in a sense natural right vested in every individual and to which he is entitled without any obligation or duty on the part of the government to provide facilities for their enjoyment. Moreover, all fundamental rights are in the final analysis rights, which impose limitations on executive, legislative or judicial powers of the government and are accordingly easily justifiable. Fundamental Human Right entails universal humanity which men enjoys and shares with his fellow men whether he is a suspect or a freeman. This in its totality has informed the writing of this project.

1.1.0: BACKGROUND TO THE STUDY

Based on the adoption of universal declaration of Human Rights and the incorporation of fundamental human rights in our constitution, basic fundamental human rights have been created and which should be respected by all men in the Nigeria society. Unfortunately however, many people in our society face untold hardship day in day out because they are denied their basic rights, which normally

the Constitution of Nigeria would enforce even though they are suspects but because they are unaware of these rights they rarely or never claim them. However, those who are saddled with these responsibilities fail to do their work properly. In this respect, this project will discuss some of the rights and the major rights of the suspects and how it could be known, respected and enforced properly by those concerned.

1.2.0: STATEMENT OF THE PROBLEM

Even though there is a universal declaration of Fundamental Human Rights and Chapter IV of the Nigerian constitution in Fundamental Human Rights, the practicality has not been perfect because of the prevailing situation of unlawful treatment of suspects in the country.

It is unlawful to treat suspect any how simply because they are being regarded as suspects. This clearly shows that the judiciary is aware of the right of an accused person and that it is sacrosanct and cannot be taken away unlawfully in this country. The violations of these rights have been so rampant in Nigeria.

1.3.0: OBJECTIVE OF THE STUDY

i. To study the relevance of the rule of law as a vital instrument for the protection and enjoyment of Fundamental Human Right by the people most especially an accused person, who is the main centre of this work.

ii. To know the principle of the rule of law, through which the rights of theaccused can be respected and recognized by everyone.

iii. To enable the people know the best way to seek redress in the court of law whenever their rights are being infringed upon.

1.4.0: PURPOSE OF THE STUDY

Ignorance as we all know is a disease, and has been earlier said, Nigerians generally are not well abreast of their legal rights even though it has been boldly written and spelt out in the Constitution of the country. But because every disease has a cure, the cure for the lack of awareness of these rights is the major purpose of this work particularly the right of an accused as stipulated in section 36 of the Constitution of the Federal Republic of Nigeria. Which are: Right to silence, Right to be presumed innocent until proved guilty, Right to an interpreter, Right to informed properly the nature and detail of the charge among others.

1.5.0: METHODOLOGY

The method that will be used to carry out this work is descriptive and not analytical.

Major primary and secondary sources of law would be considered for the proper appraisal of this topic. The primary sources include the Constitution of the Federal

Republic of Nigeria, mainly Chapter IV and Section 35 and 36; the Criminal Procedure Code; the Criminal Procedure Act; and the Child Rights Act. The secondary source includes the International Articles on pro-bono services.

1.6.0: DEFINITION OF TERMS

ACCUSED: One charged with an offence AUDI ALTERAM PARTEM: The other party must be heard LEGAL AID: Free or inexpensive legal services provided to those who cannot afford to pay full price. Legal Aid is usually administered locally by a specially established organization.

NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA: No one can be a judge in his own case PRO BONO: Being or involving uncompensated legal services especially for the public good PUBLIC DEFENDER: A lawyer or staff of lawyers, usually publicly appointed and paid, whose duty is to represent indigent criminal defendants SUSPECT: A person believed to have committed a crime or offence. To consider wrong doing without certain truth UBI JUS IBI REMEDIUM: Where there is a right there is a remedy.

1.7.0: LITERATURE REVIEW

Jide Bodede1 opined that the right of fair hearing within a reasonable time is the fundamental right of every accused person guaranteed in the constitution. He emphasizes the importance of the right to fair hearing as entitled to everyone especially an accused person.

Adesiyan G.O2 on the right of an accused person to silence limiting his work to Nigeria says that while the police have a legal right to interrogate a suspect, any use of force made to make him answer a question is illegal and judges rule was introduce as a result of discuss.

THE IMPACT OF ALTERNATIVE DISPUTE RESOLUTION IN THE COURSE OF JUSTICE (THE NIGERIA PERSPECTIVE)

ABSTRACT

Man lives in a society with a view to lead a harmonious life. As far as human interaction is concerned, there is bound to be conflict along the line due to competition and/or indifferences. With the increasing number of cases coupled with the inadequate personnel in our Courts, Justice Delivery suffers unimaginably. Consequently, alternative dispute resolution processes since introduced in Nigeria, has produced reasonable access to justice with minimal cost and time. Although, it cannot be substituted with judicial system, Alternative Dispute Resolution can serve as a blessing to modern legal system. It discourages litigation at the expense of disputants. This work therefore, examines the Alternative Dispute Resolution mechanisms using historical results of some conflicts resolved through Alternative Dispute Resolution in Nigeria. The process proved cost effective, saves time and quick disposal of justice without infringing on the rights and privacy of parties involved. It negates the belief that justice is always delayed in Nigeria. Alternative Dispute Resolution has profoundly impacted positively to the quick delivery of justice in Nigeria.

TABLE OF CONTENTS

                                                                                                Pages

Title Page    –        –        –        –        –        –        –         –        i        

Certification                   –        –        –        –        –        –        –        ii

Dedication –        –        –        –        –        –        –        –        iii

Acknowledgement                   –        –        –        –        –        –        iv

Abstract      –        –        –        –        –        –        –        –        v

Table of Content  –        –        –        –        –        –        –        vi

Table of Cases      –        –        –        –        –        –        –        x

Table of Statutes  –        –        –        –        –        –        –        xi

List of Abbreviation      –        –        –        –        –        –        xii

CHAPTER ONE – GENERAL INTRODUCTION

1.1     Background of the Study        –        –        –        –        –        1

1.2     Statement of the Problem        –        –        –        –        –        2

1.3     Research Questions       –        –        –        –        –        3

1.4     Aims and Objectives of the Study     –        –        –        3

1.5     Research Methodology  –        –        –        –        –        4

1.6     Significance of the Study         –        –        –        –        –        4

1.7     Scope and Limitation of the Study   –        –        –        4

1.8     Definition of Key Terms          –        –        –        –        –        5

CHAPTER TWO – LITERATURE REVIEW

2.1     Historical Evolution      –        –        –        –        –        10

2.2     Conceptual Framework –        –        –        –        –        12

2.3     Theoretical framework   –        –        –        –        –        16

2.4     Concept of Justice         –        –        –        –        –        –        23

2.5     Quest for Justice through ADR         –        –        –        –        26

2.6     Alternative Dispute Resolution and Justice         –        –        30

CHAPTER THREE – ANALYSIS OF METHODS BY ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA

3.1     Mediation   –        –        –        –        –        –        –        38

3.1.1 Reasons Why Parties Mediate –        –        –        –        41

3.2     Arbitration –        –        –        –        –        –        –        43

3.2.1  General Principles of Arbitration      –        –        –        44

3.2.2  Advantages of Arbitration      –        –        –        –        45

3.2.3  Classification of Arbitration    –        –        –        –        46

3.3     Conciliation          –        –        –        –        –        –        –        48

3.4     Mini-Trial   –        –        –        –        –        –        –        50

3.5     Mediation-arbitration    –        –        –        –        –        51

3.6     The Multi-Door Courthouse    –        –        –        –        52

3.6.1  Court Annexed Alternative Dispute Resolution   –        54     

3.6.2  Justice through Alternative Dispute Resolution Mechanism –  54

3.6.3  Justice by Customary Court through mediation  –        56

3.6.4  Magistrate Court and Justice Delivery                 –        –        57

3.6.5  High Court and Justice Delivery through Alternative Dispute Resolution –        –        –        –        –        59

3.7     Plea bargaining as Alternative Dispute Resolution Mechanism in the Course of  Justice –        –        –        61

3.7.1  Advantages of Plea Bargaining         –        –        –        –        63

CHAPTER FOUR

5.1     Summary    –        –        –        –        –        –        –        66

5.5     Conclusion –        –        –        –        –        –        –        68

5.3     Recommendation –        –        –        –        –        –        69

Bibliography        –        –        –        –        –        –        71

TABLES OF CASES

Content                                                                                   Pages

Wilson Bolaji Olaleye V. NNPC (Unreported)     –        –        35

Eperokun V. University of Lagos 1986 4 NWLR 152   –        35

Maja V. Samouis: R/81/95 Part: 98 QR 9NSQR 546 at 567   36

Obasohan V.Omorodion (Unreported)       –        –        –        –        36

Ekpe V. Oke: NLR 3 (PLR)     –        –        –        –        –        36

Onagoruwa V. Akinremi: Case No. 11 S. 74 (p. 93)     –        36

Njoku v Ikechukwu (1992) 2 ECSLR 199  –        –        –        40

TABLE OF STATUTES

Content                                                                                   Pages

Arbitration Law 1993    –        –        –        –        –        –        60

Arbitration and Conciliation Act Cap a 18 LFN 2004  –        60

Constitution of the Federal Republic of Nigeria, 1999 (as Amended) 2011    –        –        –        –        –        –        –        32

LIST OF ABBREVIATIONS

ADR                     Alternative Dispute Resolution

CFRN                   Constitution of the Federal Republic of Nigeria

LFN                      Laws of the Federation of Nigeria

ARB                     Arbitration

L.R                       Law Report

ANLR                  All Nigerian Law Report

LMDC                  Lagos Multi-Door Courthouse

NWLR                  Nigeria Weekly Law Report

CHAPTER ONE

GENERAL INTRODUCTION

1.1     Background to the Study

Justice is a value that individuals, groups and nations struggle to attain the highest of its level, since human justice is proportional, there is no absolute justice on the earth, but we can talk about humanitarian ideal justice.[1] The Impact of alternative dispute resolution in the course of justice especially in Nigeria becomes increasingly crucial to the adjudication of justice.  Prior to introduction of alternative dispute resolution process known as the Multi-Door Court House in Nigeria, civil cases were unnecessarily delayed for years due to adjournments which sometimes degenerate to de novo.  Most times, people doubt the value of delayed judgment that stayed for so long when some of the parties would have died.  Justice delayed is said to be justice denied, therefore it becomes paramount to enable right owner obtain his right through nearest and easiest ways by giving everyone what he deserves through the use of alternative dispute resolution process.  Investments and business disputes should not wait unnecessarily for years before it is resolved to enable efficient and meaningful resolution hence the important of Alternative Resolution in addressing conflicts with the urgency they deserve.

Emerging developments have indicated that litigation as a mechanism for dispute resolution is old fashioned, party unfriendly and incapable of coping with challenges of contemporary dispute resolutions.  As posited by justice Akinsanya, the world is moving at a pace that demands our Justice System succumbing to change to be relevant in today’s global village because access to justice means more than access to the Court[2].  Also providing access justice means providing access and opportunity for a just and timely result. 

1.2     Statement of the Problem

Human beings are unpredictable and human factor is deemed as drive and magnifier of factors providing its effectiveness.  It then becomes obvious that justice which is deemed as means for creation of social realities could be achieved through the use of alternative dispute resolution mechanism.

1.3     Research Questions

The following research questions tend to address the objectives:

1.       What relationship exists between Alternative Dispute Resolution mechanism and Justice?

2.       Does Alternative Dispute Resolution have any impact?

1.4     Aims and Objectives of the Study

The main aim and objective of this study is to investigate the impact of alternative Dispute Resolution to the course of justice while the specific objective is:

i.        To explore the correlation between two variables: Alternative Dispute resolution and Justice.

ii.       Measure the relative impact of Alternative Dispute Resolution on justice.

THE IMPACT OF ALTERNATIVE DISPUTE RESOLUTION IN THE COURSE OF JUSTICE (THE NIGERIA PERSPECTIVE)

THE RULE OF NATURAL JUSTICE

ABSTRACT

The rule of natural justice are the rule laid down by the court for the propose of protecting the right of an individual against adoption of arbitrary and as well as miscarriage of justice in determining questions affecting the right of an individual by a judicial authority. The nature of the principle of natural justice is flexible they tend to change with the exigencies of time and circumstance of each case. However, natural justice is express by the twin pillar principles; Audi Alteram Partem (hear both sides in dispute), and Nemo Judex in Casua Sua (no one should be a judge in his own cause). So therefore, the decision maker or deciding authority should act in good faith and give a fair hearing to both parties in dispute, he should not act in favour of one party. If he knows that he cannot be impartial, he should politely decline sit in judgment over the matter, this is because the rule of natural justice prohibits interest and bias in the case of a judge. In the cause of the primary and secondary source of this research work, I will discuss on the following, the history of the rule of natural justice, the origin and development of the rule of natural justice, the application of the rule of natural justice both in united states Britain and Nigeria, the rule of natural justice in the administrative bodies, violation of the rule of natural justice, legal consequence and implications if the rule of natural justice is not followed and the exclusion of the rule of natural justice etc. 

TABLE OF CASES

A.K. Kraipak v. Union of Indian A.I.R  S.C 150 (1970)

Adedeji v. Police Service Commission NMLR 102(1968)

Adigun v. A.G of Oyo State & 18 ors 2 All ER (1987) 

Adigun v. AG Lagos State 1NWLR pt. 53 p.678 at 72 (1987)

Aiyetan v. Nigerian Institute for Oil palm Research (NIFOR) 6 SCNJ 36(1987)

Baba v. Nigerian Civil Aviation Training Centre 7 SCNJ15 (1987)    

Baker v. Canada Minister of Citizenship and Immigration 2 ER 1817 (1999)

Bamigboye v. University of Illorine & ors CA/K/26370 Delivered on 14, 05, 91 pg 44-45

Board of Education v. Rice A.C 179 (1911)

Board of High School v. Ghanshyam AIR SC 1110 (1962)

Capel v. Child 2 cromp & Jer. 558 (1832)

Cooper v. Wandsworth Board of Works 14 CBNS 180 (1863)

Cottle v. Cottle 129 W.Va. 344 (W. Va. 1946) (1939)

Denloye v. Medical and Dental Practitioner Disciplinary Tribunal 1 All NLR 306 (1968)

Dimes v. Grand Junction Canal Proprietors 3 H.L. cas.759, 10 ER 301 (1852)

Ex p. Parker (  1953) 2 All ER Franklin v. mi; of town & country planning (1948) AC 87

Furnal v. Whangaral High School 2 WLR 92 (1973)

Garga & ors v. The University of Maiduguri 1 NWLR 550 (1986)

Gullapavi Neges War Rao v. APSRTC 29 August Indian kannon (1959)

Jaco Geri & Ors V. Hadejia Native Authority 4 FSC 44 (1959)

Jeejeebhoy v. Asst Collector, Theina AIR SC 1096 (1965)

Kanu Native Authority v. Obiora Ademola 13 WACA 270 at 274 (1951)

Knight v. Indian Head School Division No. 9 1 S.C.R. 653 SS. Canada (1990)

LNM Institution of Economic Development v. State of Bihar AIR SC 1136 (1988)

Maneka v. Gardhis AIR SC 597 at 681 (1978)

Metropolitan Properties Co Ltd v. Lannan 3 All BR 304 (1998)  

Nakkuda A. H. V. Jayaratne AC.66 (9531)

Nawabkhan v. State of Gujarai AIR SC 147 (1974)

Nicholson v. Haldimond Norfolk Regional Municipality 1 SCR 311 (1979)

Punton v. Ministry of Pension 1 All ER 448 (1964)

 Queens v. Smith Ex parte and Harris 16 QBD 614

R. V. Director of Audit (Western Region) & Ors v Ex Parte Oputa & Ors All NLR 659 (1961)

R. v. Electricity commissioners Ex Parte Electricity joint committee 1 KB 171(1924)

R. v. Frankland Prison Visitors Ex Parte Lewis 1 All ER 272 (1986)    

R. v. Legislative Committee of Church Assembly Ex Parte Hynes-Smith (1928)

R. v. Manchester Metropolitan University Ex Parte Nolan 14 (1993)

R. v. Sussex Justice, Ex Parte Mc Carthy 1 KB 256 All ER Rep. 233 (1924)

Re Pergamon Press Ltd p.205 (1920)

Re. v. Hk (1967) 2 QB 617 (1967) 1 All ER 226, (1967) 2 WLR 962

Ridge v. Baldwin All ER 63 (1963)

Shiri Sitaram Sugar Company v. Union of India (1990) 3 SCC 223

State of U.P v. Muhammad Nooh AIR SC 86 (1958)

Surest Koshy George v. University of Kerala AIR SC 198 (1969)

Udekwe Okakpu v. Resident of Plateau Province  NRNLR 5 (1958)

Union of India v. Cyanamida of India Ltd 2 SCC 720 & 735(1987)

Union of India v. J.N Sinha AIR SC 40(1971)

Union of Indian v. Tulsiram Petal AIR SC 1416 (1985)

Voinett v. Barrett 55 IJOB 39 at 41(1885)

Ward v. Bradford (1971) 70 LGR. 27

TABLE OF STATUTES

Bomby police Act 1951

The 1999 constitution of the Federal Republic of Nigeria (C.F.R.N) (as amended)

The Indian Administrative procedure Act 1946

The Constitution of India 1968

The National Insurance Act 1946

LIST OF ABBREVIATION

A. C – Appeal Case

A. E. R – All English Report

A. I. R. – All India Report

A.P.S.R.T – Andhra Pradesh State Road Transport

All B. R – All Bankruptcy

All N. L. R – All Nigerian Law Report

C.F.R.N – Constitution of the Federal

C.L.R – Common Wealth Law Report

C.R – Criminal Report

E R – English Report

F. S. C. Selected Judgment of the Federal Supreme Court

H. C (K.B). – High Court of Kings Bench

I.S.L.N – International Standard Lawyer Number

K. B. – Law Report Kings Bench

L.G.R. – Local Government Region

N. M. L. R – Nigerian Monthly Law Report

N. R. N. L. R. – Northern Region of Nigeria Law Report

N. W. L. R – Nigerian Weekly Law Report

N.I.F.O.R – Nigerian Institute for Oil palm Research

N.S.C.C.R – Nigerian Supreme Court Cases Report

Q. B – Queens Bench

Q. B. D – Queens Bench Division

R – Respondent

S C R – Supreme Court Reports

S. C. – Judgment of Supreme Court

S. C. C. – Supreme Court of Canada

S. C. N. J. – Supreme Court of Nigeria Judgment

W L R – Weekly Law Report

W. A. C.A – West African Court of Appeal

W. Va. Code – West Virginia code

CHAPTER ONE:

INTRODUCTION

1.1.            Background of the Study

The concept of natural justice is as old as man; it is the universal principle of fairness that was arrived at by the observation of nature. It is the name of the divine law as God would have us understand it; which is the Golden rule. Thus, the principle of natural justice is also seen to be as old as God’s judgments. When Adam and Eve disobeyed God by eating of the fruit of knowledge, God himself who created all things, has all powers, knows everything gave Adam and Eve the opportunity to state their defence. God asked, “Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat”? Adam replied, “the woman whom thou gavest to be with me gave me of the tree and I did eat”, God asked the woman, what is this that thou hast done? And Eve replied, the serpent beguiled me and I did eat”. Having heard both Adam and Eve and their defences, the Almighty God proceeded to pass judgment.1

However, natural justice is classified in two components – the hearing rule and the bias rule. It has been developed in the early seventeenth, eighteenth and twentieth century through many historical decisions. In our democratic country today, the principle of natural justice has been enshrined in Nigeria

1.    Genesis 3 vs. 11b – 13

constitution 1999 (as amended). Similarly same is recognised is Australia, United Kingdom and many other countries.  Natural justice is the term that states the specific procedural rule in the English legal system2 and other nation based on it. It is similar to the American concept of fair hearing procedure and procedural due process. The later has the roots to some process, degree parallels the origins of natural justice3. Moreover, natural justice is said to impress the close relationship between common law and moral principle4. The use of the terms today is not to be confusing with the natural law of the canonist, the medieval philosophers, and natural right philosophy of the eighteenth century5. The term natural justice is often retained as a general concept in Australia6 and the United Kingdom7, it has been largely been placed and extended which is the duty to act fairly.

Natural justice is identified with two Latin maxims which are: Nemo Judex in causa sua (no one should be a judge in his own cause), and Audi Altreram Partem (hear both sides in dispute). The requirement of natural justice

2.             Fredrick F. Shaver (1976), English Natural Justice and American Due Process: An Analytical Comparison William and Law Review, 18(1):47- 72 @ 47.

3.             See generally Bernard Schwartz (1953) administrative procedure and natural law, Notre dame lawyer28 (2): 169, cited in Shauer English natural justice and American due process. p. 51, n. 24

4.             Arthur l. Good hart (1953) English law and the moral law (PDF) London: Stevens P 65. Cited in De smiths judicial Review P. 321.

5.             J.R.S Forbs (2006) natural justice: General, justice in tribunals (2nd Ed.) Sydney: the federation press, pp. 100 – 118 @ 103, ISBN 9781-86287 – 610.

6.             See, for instance kioa v. west (1985) 159 CLR 550@ 583, high court Australia.

7.             De smith judicial review, P.320.

or a duty to act fairly depends on these contexts 8.

In Baker v. Canada minister of citizenship and immigration,9 the supreme court of Canada set out the list of non-exhaustive factors that would influence the content of the duty of fairness including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision maker operates and the importance of the decision to the person challenging it. The persons legitimate expectation and the choice of procedure maybe the decision maker10. Earlier, in knight v. Indian head school division,11 the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out the acts of administrative and specific nature do.

Furthermore, preliminary decisions generally will not trigger the duty to act fairly but decisions of a more financial nature may have such an effect.12 In addition, whether the duty to act fairly applies, depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of both master and servant or where the individual holds

8.             De smith judicial review, p.322.

9.             1999.2 S.C.R.817. supreme court of (Canada)

10.          Kioa PP. 585; “what is appropriation terms of natural justice depends the circumstance of the case and they will include inter alia, the nature of inquiry, the subject matter and the rules under which a decision maker is acting.

11.          No.9 (1990) 1 S.C.R. 653, S.S (Canada).

12.          Baker pares. 23-28.

office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause.13 Finally a right to a procedural fairness only exist when authorities’ decision is significant and has an important impact on the individual.14

THE RULE OF NATURAL JUSTICE

ASSESSMENT OF PATIENT’S RIGHT IN NIGERIA (COMPARATIVE STUDY WITH SOUTH AFRICA)

INTRODUCTION

The term “human rights” has become one of the most fashionable buzzwords of our contemporary world. The “era of human rights” is fast becoming the preferred term for describing the current times, and this makes any dis-cussion on human rights so apt and relevant in this age. With the passing of the Universal Declaration of Human Rights, 1948 and signing of the International Covenants on Civil and Political Rights, 1966 and the Economic, Social and Cultural Rights, 1966, there has been a global emphasis on human rights.1 The issue of patients’ rights has also been brought to prominence with the advent of modern technology and the availability (and use) of artificial measures to prolong life; the evolution of legal rights and duties of patients, an increased concern for the rights of the patients, the increase in number of people affected by HIV/Aids, and a growing population

1 The Universal Declaration of Human Rights (UDHR) 1948, the International Covenants on Civil and Political Rights (ICCPR) 1966 and the International Covenants on Economic, Social and Cultural Rights (ICESCR) 1966, constitute the International Bill of Rights population of elderly patients.2

However, apart from those international instruments setting out human rights, most national Constitutions have equally set out fundamental rights of individual. In this category is the Constitution of the Federal Republic of Nigeria, 1999 which sets out fundamental human rights enjoyable by everyone (any patient inclusive) within the territory of the country.3 The larger group of rights as pro-vided for in the Constitution and the International Bill of Rights will not be discussed in this paper. The discussion in this article is, however limited to those rights that centre on the relationship of a patient and his/her health care providers, specifically, the rights of a surgical patient in relation to his/her medical doctors, nurses, other health personnel and health institutions. The relationship of a patient with her health care providers is contractual and is to some extent governed by the contract law, and in many more respects, also by the law of torts and criminal law. Bearing in mind the topic of this paper which bothers on legal rights; those other areas of law are therefore out-side the scope of the paper but shall receive attention as they become relevant.

2 See Slabbert and Van der Westhuizen when submitting in a similar respect on the issue of euthanasia. See Slabbert, M & Van der Westhuizen, C “Death with Dignity in lieu of Euthanasia” 2007 22(2) SAPR/Public Law366; see also, Straus “The ‘Right to die’ or ‘Passive euthanasia’: two important decisions, one American and the other South African” 1993 (6) SACJ 196-208.

3 See Chapter IV of the Constitution which provides for the various rights

The point of departure in this article is the Constitution being the supreme law; everything and everybody is sub-ject to the Constitution.4 The Constitution is the source of the citizens’ rights and sets out catalogue of rights. However, those rights relevant to this topic are: the right to life;5 the right to human dignity;6 the right to freedom from discrimination;7 the right to personal liberty;8 the right to freedom of thought, conscience and religion.9 Apart from the Constitution, other sources of a patient’s rights in Nigeria include the Common Law, International Convention and Professional Code of conduct, in particular medical profession code of conduct. In as much as the article does not pretend to lay claim to an exhaustive discussion on all legal issues and rights of a patient vis-à-vis his/her health care providers, this paper shall, however, endeavour to provide a catalogue of a patient’s rights under the Nigerian laws. The article shall also attempt providing guidance to the health care providers in order not to run fowl of the law of the land or breach the fundamental rights of their patients.

This article is divided into five parts. Following this introduction, the article consists of the following parts: Part two discusses the meanings of the major terms used in this article. Part three examines the legal rights of patients in Nigeria. In this part, the right to life, the right to human dignity, the right to personal liberty, the right of a patient to give an informed consent to treatment and the rights to privacy and self-determination are discussed. In part four, the article discusses the vexed question of whether the rights of a surgical patient include the right to die while conclusion forms the fifth part.

ASSESSMENT OF PATIENT’S RIGHT IN NIGERIA (COMPARATIVE STUDY WITH SOUTH AFRICA)

AN APPRAISAL OF THE DERIVATION PRINCIPLE IN REVENUE ALLOCATION UNDER THE NIGERIAN FEDERALISM

ABSTRACT

The companies and Allied Matters Act was enacted in 1990 and before this time, both the statute and the common law did not accord to the status of the company secretary the recognition and proper position which it deserves in corporate matters. The common law treated the position as a humble one. The company secretary was recorded as a mere management clerk, typist or servant whose position can be dispensed with like any other management staff. His position was contemptibly as was seen as an ‘errand boy’ of the company who was only seen to do and who only did what he was told to do, without an independent mind of his own to take decision regarding the company. But in 1971, Lord Denning MR. in a revolutionary judgement declared that times have changed a company secretary is much more important person nowadays that he was in 1887. He is no longer a mere clerk. This brought about the improved status for the company secretary which was strengthened in the 1990 CAMA. This research will examine the Appraisal of the duties and liabilities of the company secretary under the Nigerian Corporate Law. This research will also examine who the company secretary was and who he is, and what are his qualifications, powers, duties and liabilities under the Nigerian corporate law. It will also consider the importance of a company secretary in a company. Based on the findings drawn from this study, conclusion and recommendations will be made.  

CHAPTER ONE

1.0              INTRODUCTION

            The duties and Liabilities of the company secretary have been matter of concern to many writers, researchers, managers and administrators of diverse organizations. It is the vital life wire of corporate organizations. This is so because in Nigeria, every company is compelled to have a company secretary[1]. The company secretary is normally appointed by the Directors of a company as opposed to the General Meeting of Such company.

            However, the Directors are duty bound to take reasonable steps to ensure that their appointee is a person who has the requisite knowledge and experience to discharge the functions of a company secretary[2]. The appointee must fall into one of the categories specified in section 295 of Companies and Allied Matters Act (CAMA). The first of these categories consists of person with experience as company secretary who has held the office of secretary of a public company for at least 3 of the 5 years immediately preceding his appointment. The second category consists of members of various professions such as Accountants, Chartered Secretaries, Legal practitioners within the meaning of the Legal Practitioners Act, 1975)[3]. The third category is a body corporate or firm of qualified persons under the first two categories mentioned above. The above requirements exemplify the important role, which a company secretary occupies in corporate organizations, as well as the liabilities he incures for failure to perform these roles.

            In addition to the above, within the management circle of incorporate companies, there are certain persons referred to as principal officers. From the 19th Century, the limited liability companies have become more popular and this has brought about increasing complications in modern corporate management. Arising there from has been a need for renewed searchlight on these principal officers of a company. This need is not just necessary but imminent in view of the increase in the volume and size of commercial activities of these by the fact that the company being an artificial person could only act through its human agents, officers and organs, as was aptly summarized by Aniagolu (JSC) as follows:

            “A company although having a corporate personality is deemed to have human personality through its officers and agents[4]. Section 37 CAMA

            Moreover, every incorporate company operates under the principle of corporate personality and within this officers and organs for effective corporate management. In the corporate executive outside of the managing director and now the executive directors, there is a company secretary; similarly, between the board of directors and the shareholders, there should be an appointment of a competent, neutral and resourceful officer known as the company secretary. The status of this officer before now had always been treated with contempt and was not accorded the recognition and respect it demands and deserves. There was perhaps no other functionary in the corporate set-up who had suffered such a high degree of non recognition by common law as the company secretary even if his influence was felt in the boardroom. This status has however been improved and is now a very important officer because section 293 (1) CAMA[5]provides that, every company shall have a secretary and the qualification and duties of this officer is also clearly recognized by statutory enactment. It is arguable therefore that the company secretary occupies such important and influential position has in recent times graduated as an organ of the company. Professor Gower is of the view that he is an officer of the company with substantial authority in the administrative sphere with power and duties derived from the Articles and the companies Act[6].

            It is deducible from the above assertion that the company secretary has evolved from his hitherto position as a mere clerical officer or an “errand boy” of the company to an accomplished administrator in a corporate setting[7]. It is now established that the company secretary occupies an important and very influential position in this vehicle of economic endeavour and he is indispensable in public companies.

            Hence, this work aims at uncovering and appraising the rationale for the duties and liabilities of the company secretary and whether these duties and liabilities are of any beneficial and altruistic importance to the company as well as assessing the value worth of the company secretary in corporate government. In order to achieve these objectives, this work shall discuss the nature, the appointment, status, roles and responsibilities of the company secretary in a bid to appraising these duties and liabilities under the Nigerian corporate law.

1.1 Statement of the Problems  

It is generally believed that the duties and liabilities of the company secretary are very crucial and indispensable under the Nigerian corporate law. The CAMA has appropriately provided in section 293 for the office of a company secretary which is made mandatory by the use of the word ‘shall’[8].

            In most cases, despite the provision of the Act in respect of this office, some people have always been confused on what is the true worth or what is really the essential value attached to this and who should be the person to hold this office. One of the greatest challenges litigants are facing currently is what are the duties of the company secretary? And in what sort of act would the secretary be held liable and whether the secretary has authority than the directors[9]

1.2 Research Questions 

The following research questions were raised to guide the study.

·         Who is a company secretary?

·         How was the position of the company secretary before the enactment of CAMA?

·         How is the position of the company secretary after enactment of CAMA?

·         What are the qualifications which a company secretary must possesss?

·         What are the duties and liabilities of the company secretary?

·         Why is the company secretary liable in corporate governance?

·         Is there any altruistic importance attached to the position of the company secretary?

1.3 Justification of the Study

This research work seeks to appraise the duties and liabilities of company secretary under the Nigerian corporate law and to uncover the rationale why the position of the company secretary has been changed against what it was in 1887. Although there is an honest belief that this is not the first research work done in this direction, this work is significant in that it would act as a reference point to researchers in this feel and of great benefit to both students and company secretaries alike by contributing to and expanding their scope of knowledge not only as an academic work but also as a real life situation.

            Furthermore, as a reservoir of intellectual noesis it is hoped that this study will be of immense benefit to mankind in general.

1.4       Methodology

The approach and methodology to be adopted in this research work is historical and analytical. It is historical because of the position of the company secretary as an errand boy under the common law and the provisions of Pre-1990 CAMA.

            The account is also analytical in its critical examination as well as appraisal of the emerging issues and trends as to the true position of the company secretary. The materials for this research work are obtained from primary and secondary sources. Deductions are also gotten from works of scholars, case books, journals, internet etc.

1.5       Scope and Limitation  

Since this work is focused on a particular office in corporate governance, the scope of this work is within the duties and liabilities of the company secretary as it relates to the importance that is accorded to the office. This work had also limited its scope to the chapters out line as follows:

            Chapter one would attempt an introduction of this work, as well as a review of related literature. Chapter two would uncover who is a company secretary and the status of the company secretary under Pre-CAMA statute. Chapter three would consider the status of the company secretary under the CAMA while chapter four would look at the roles/Duties of the company secretary as well as an appraisal of the liabilities, then chapter five would consider the conclusion of the work and some recommendations.

Review of Related Literature

The focus of this work is on the appraisal of the duties and liabilities of the company secretary under the Nigerian corporate law. There are a number of literature on this work in Nigeria and abroad. It should be noted that most of these works on this subject have concentrated majorly on the changed position of the company secretary compared to the status of the company secretary before the CAMA. However, very few works have gone beyond this enhanced position consider the altruistic importance of this position of the company secretary. Hence, the major focus of the work is to consider whether this position as well as its duties and liabilities under the Nigerian corporate law are of immense value to the companies they serve. N. Danjuma[10]being an erudite scholar has made an excellent and brilliant contribution to this subject. Nkiru, noted that prior to the enactment of companies and Allied Matters Act (CAMA) 1990, both statute and common law principles did not accord to the status of the company secretary the recognition and proper position it deserves. The company secretary was regarded as a mere management clerk or servant whose position can be dispensed with like any other management staff. Both the common law and the established statutory stance[11]were not realistic and out of tune with current judicial legislative and corporate developments. In modern company practice, the secretary is an important officer, a principal officer of the company occupying a strategic position in corporate administration with extensive duties and liabilities.[12]The corporate status of the company secretary was thus enhanced by the 1948 Companies Act. This Act was the first Nigerian legislation which attempted to provide exhaustive provision for roles, duties and liabilities of the company secretary in corporate Affairs and management.

            Besides, there was no obligation on a limited liability company to have a secretary in Nigeria until 1968 when company Act was enacted.

In paper presentation by Nkiru, the learned Author, the enhanced corporate status of the secretary was put beyond doubts by the companies and Allied Matters Act 1990. This Act which commenced effectively on the 31st December 1990, even though the commencement date 2nd January 1990, replaced the twenty-two year old companies Act of 1968.

            This Act (CAMA) did not only enhance the corporate image of the secretary, but has brought some certainty into the status, duties and responsibilities of the secretary. Again, unlike the 1968 Act, a qualification standard has been stipulated for the position of a company secretary. It is compulsory for every company (especially public) to have as its secretary, a Chartered Secretary and Administrator. Legal Practitioner or Chartered Accountant, or a firm comprising persons who are so qualified. This is a striking and further re-cognition of the rising professional status of the company secretary.

            The growing scope of the secretary corporate responsibilities have made it proper and imperative that the position should not just be for any body. This is a healthy development. Also, the new Act boosted the image of the secretaries institutionally.

He Nkiru concludes thus:

“A company secretary’s position is a senior position in a private or public company organization, normally in the form of managerial position or above in some other jurisdiction, it is known as the corporate secretary. Despite the name. It is neither clerical nor a secretarial one in the usual sense”.

Hence, having a critical perusal of this work, it reveals that the Author has not clearly shown how this enhanced position has benefited the company compared to its former status and this is the focus of this work.

            J. Orojo in his book, Company Law and Practice in Nigeria stated that the status and authority of the secretary has developed with the company practice. In the early English company statutes, no provisions were made for the appointment of secretary. It was only in 1948 that the appointment of a secretary became mandatory by virtue of section 177(1), of the Company Act 1948. Accordingly, it was only in 1968 Company Act, under section 169 that the appointment of a secretary became mandatory under the Nigerian company law. Even then, neither the English Act nor the Nigerian Act spelt out the general duties of the secretary. These were left to the directors, the general meetings and sometimes, the court to determine as circumstances required. Before 1971, the attitude of the English courts was to regard the secretary as a mere servant, whose functions were prime facie “clerical and ministerial only”[13]and that his duties were of a limited and somewhat humble character. He went further to state that Lord Denning MR. had stated thus. 

“But times have changed. A company secretary is a much more important person nowadays than he was in 1887. He is an officer of the company with extensive duties and responsibilities…[14]

            He further observed that the company secretary has also been described as the administrative officer of the company and as an officer of the company with important duties and responsibilities. He concluded by stating that a new phenomenon in modern company practice arising from the growing complexities of corporate practice is the need to protect shareholders and outsider against directors who may use their position as insiders to benefit themselves at the expense of the former. It is for these reasons that views have been expressed both in United Kingdom and in Nigeria that the role of the secretary especially of a public company should be considerably strengthened as to the functions and tenure of office.

            Hence, a critical look at the above reviewed work reveals an incisive effort work commendation with regards to this subject in question. This is so because he has justified the need for the improved status but this has not been sufficiently treated and has also omitted to state these extensive duties and responsibilities of the secretary and my work expects to cover this area.

            E. Steagbade[15] remarks that within the management circle of incorporate of companies, outside of managing director and the now common, executive directors, the company secretary occupies an important and influential position in these vehicle of economic endeavours. Even though the position of the secretary had not always been regarded with sufficient respect by both the courts and law[16]. It was the courts, rather than statue that first came to reality, at the possible cost of inadequate recognition and proclaimed the true position of the modern company secretary and upheld it. Then statute finally therefore endorses the more progressive and realistic position of the courts and public in relation to the secretary and goes as far as specifying down the qualifications, duties and limitations for the office of the secretary. This was an indication of recognition of its importance. Stating further, he said, up to the not distance past, the humility with which the office of the secretary was viewed, is perhaps, not better pointed than in the often quoted dictum of Esher, MR,[17] where he said.

“A secretary is a mere servant…nor can anyone assume that statements made by him are necessary to be accepted as trustworthy without further inquiry”.

            However, he concluded that a company secretary is much more important person nowadays than he was in 1887. Hence, a careful look at this work shows that the author has not shown the changed position and what is now the value worth of a company secretary in corporate management. E. Kachikwu[18] also noted as follows:

“As to status, the incumbent has grown and developed longer and faster then the position. As to functions, the cursory attempts of embellishment have been merely cosmetic and the functions remain largely the same as they have been historically. And as duties, the position is dogged by confusion.”

He added that a review of and reflection on the historical perception and roles of secretaries inform that these classes of corporate officers have come long way. Lord Esher M.R stated the historical perception of company secretaries in Barnett Hoarse’s and Co. V. South London Tramways Co[19] Inter-alia that a secretary is a mere servant, his position is that he is to do what he is told to do and no person can assume that he has any authority to represent anything at all. Furthermore, Lord Denning[20] stated that times have changed. A company secretary is much more important person nowadays. The author also added that more specifically the recent provision in Section 295 of company and Allied Matters Decree 1990 (now Act) setting out detailed minimum qualification for company secretaries has two effects;

It ensures that secretaries are seen to be and indeed qualification of their own right.

 (b) It recognizes that the enlarged status which the company secretary has acquired over decades now compels that a company should not appoint persons where qualifications cannot match the job.

Furthermore, the Author has noted that section 295 of CAMD (now CAMA provides that only people belonging to certain professional bodies or who though not belonging to such bodies have had some minimal experience can be appointed company secretaries. Similarly, one Cursory provision which expands the status of company secretary is that contained in section 296(1) of CAMA, which removes the power of the appointment of company secretaries from the management and placed it on the board, although practical reality would favour a continuity of the old practice which was for the management to appoint a secretary and have the board confirmed it. The latest provision in the mode of appointment implies that company secretary can no longer be seen as an ordinary employee who can be dismissed by management without reference to the board. The section set out detailed provisions on the manner of removal of the incumbent. Thus although this work has shown some effect of this changed position but just like the preceding ones changed position is of benefit to the company an this is what the researcher sets out to do in this paper.

L. Grower[21] sees the company secretary as an important officer in the company. He stated that the secretary’s functions are purely ministerial and administrative. Quoting Pennincuick V.C[22] he states, so far as the position of a secretary as such is concerned it is established beyond all questions. Secretary, while performing the duties appropriate to the office of a secretary is not concerned in the management of the company…”

He also noted that the secretary was charged with the primary responsibility of ensuring that the documentation of the company is in order and despite his recognition and the statutory provision by 1948 Act,[23]the court until recently continued to treat him as a subordinate servant without ostensible authority to commit the company by his actions. Furthermore, he writes that Lord Denning Mr. stated that times have changed. A company secretary is much more important person nowadays than he was in 1887[24]. He concluded by saying that it is arguable that the secretary has also graduated as an organ of the company. Though appointed by the directors, he is not their servant but an officer of the company with substantial authority in the administrative sphere and with power and duties derived from the article and companies Act.

It should be noted from the above that the learned writer has not clearly shown the duties and functions of company secretary and how CAMA has affected this hallowed position as well as the impacts, this changed position has on the company. This author might have been affected by his locality being that the he is not a Nigerian and as such did not show the change of position as it relates to CAMA.

E. Asomugha[25] noted that a secretary maybe anything from a clerk to a supreme administrator or a secretary of state and even in junior grades. The fallacy is fast disappearing that anyone will do for the job. In upper grades, those charged with the making of secretarial appointments know that they will be lax in selective at their peril. He also painted a picture of the secretary before the CAMA 1990 as that of a mere record keeper saying that his role was equally contemptible and his duties and responsibilities were ill defined. However, he stated thus;

AN APPRAISAL OF THE DERIVATION PRINCIPLE IN REVENUE ALLOCATION UNDER THE NIGERIAN FEDERALISM

WOMEN AND PROPERTY INHERITANCE IN NIGERIA

CHAPTER ONE

1.1.  Background to the Study

       Property inheritance including the rights of women to property, receives very little degree of attention in different parts of the world.

The girl – child in most traditions of the world according to Ogbuagu in his reviews of gender studies in Nigeria, (2002). Is made to internalize the notion that, the girl is subordinate to male authority and subsequently cannot and should not claim rights with the boy-child. Ogbuagu, further states that, the girl-child is taught to be a good wife and mother in future. In addition the girl child is also perceived and actually made to believe that, she is a tool, an object or a possession to be owned and used to meet the male desires. These discrepancies between the old rules and facts are greater where women are concerned and its most harmful to their interest.

Women’s legal rights to property according to Kenneth (2000) are examined on the background of the law of succession, inheritance and the family its paramount, to point out that no particular attentions has been paid to women in the making of any law in Nigeria (2002). According to her, the constitution of the federal republic of Nigeria 1977, promulgated into law by the military force before they handed over power on the 29th of May 1999 to civilian administration has been generating controversies since its inception. The chief argument against the constitution as argued by Comfort is the imposition of these laws on the Nigerian people by the military. That the constitution does not pass the test of legitimacy and acceptability for it is not a process led participatory and open constitution. She further argues that, the way and manner in which the 1999 constitution. She further argues that, the way and manner in which the 1999 constitution was drafted made it possible especially for women to have any impact whatsoever in it.

This customary law system where the women and her children are denied property and financial provision from the property of her husband’s and father’s upon dissolution of marriage either by divorce or death, exposes them to exploitation and abuse, customary norms are no longer always appropriate and their observation may simply serve to entrap women and children (females) in inferior position.

It is upon this background that the researcher seeks to find out the extent to which women in Kogi state particularly in Ankpa local government area have rights to property inheritance.

1.2.  STATEMENT OF RESEARCH PROBLEM

Traditional beliefs and practices of especially the Ankpa local government area as conditioned by the customary laws have become such serious obstacles militating against the development of women in this area.

A close look at the Ankpa women generally either single, married or divorce reveals that, they have no rights to property when compared to their male counterparts.

A female heir is as good as a property to be inherited and thus, does not argue over her father’s properties with her brothers, a married woman works and owns everything to the husband, she claims no right in the husband’s house. A widow return empty to her parents especially, if she has no male offsprings. These are serious problems militating against women social, economical, political and psychological development and can be conveniently attributed to the sub-servient positions, women tend to accept in the society. This is because a person who is disenfranchised or lacks the right to property to enhance his or her status generally, be it social, political, economical,, educational and so on, remains dependent and often takes the back seat.

These types of situation in which the Igala women in Ankpa local government area face impedes their development processes and greatly affects their quota of contribution to the overall development of the society.

1.3.  RESEARCH QUESTIONS

The research has set to investigate into the above stated problems faced by property inheritance and the position of women in Ankpa local government area as regards property rights.

What defined these rules, its implication on women and the way out, to achieve this, the following questions will guide the research.

i.            How are property inheritance defined in Ankpa local government area.

ii.           What is the position of women with regards to property rights in Ankpa.

iii.         What are the factors responsible for this?

iv.         What are the implications of property inheritance or rights as defined by customary laws for social and economic development of women?

v.          What measures are required to maintain women in the development process of Ankpa local government area?

1.4.  OBJECTIVES OF STUDY

The aims of this study are to find out how property inheritance has been shared and why property inheritance has been shared and why women under the Ankpa tradition and customary laws have no rights to property. How these affect women generally and proffer probable suggestion on the way forward.

The following will be the specific objectives of this work.

To examine the definition of property inheritance in Ankpa local government area.

To determine the position of women with regards to property inheritance or rights in Ankpa

To determine the factors responsible for this

To ascertain how property rights as defined by Igala customary law has affected the socio-economic development of women.

To proffer suggestions on how women could be mainstream in development processes.

1.5.  SIGNIFICANCE OF THE STUDY

This research is aimed at understanding property inheritance as been defined by the igala customary laws in Ankpa local government area.

The research also aimed at determining the position of women with regards to property inheritance in Ankpa. And to provide solutions to the problems of women with regards to inheritance, rights and contribution to national development.

1.6.  DEFINITION OF CONCEPTS

The concepts to the defined in this research includes:

·        Property

·        Inheritance

·        Rights

·        Customary laws

Property: Property is anything, object or rights, that can be owned. It can be said, also to be something of value that is owned, for instance Land.

Inheritance: Inheritance is any object, money or a title that can or has been inherited or is to be inherited.

Rights: rights is said to be entitlements to certain kinds of treatment based on one’s status. Right can also be a justified cliam or entitlement or the freedom to do something.

Customary Laws: Customary laws are usually unwritten and derives from actual practices of a place, society or nation over time.

WOMEN AND PROPERTY INHERITANCE IN NIGERIA

NIGERIAN LABOUR LAW

ABSTRACT

Nigerian labour law relates to the enactment governing the relationship between an employer and his employees in Nigeria; it is otherwise called contract of employment. This branch of our laws looks into the rights, working conditions, minimum wage, termination clauses, and many other rules set by the government of Nigeria. The current version of the Act was put into place in 2004, five years after the current Nigerian constitution was established. The laws which govern employment occupy a position of considerable importance in any modern society. This is so because of the tremendous contributions which workers can make to national growth and development, as well as the general well-being of the nation’s citizenry. Labour law has a vital role to play in the mobilization of the work force for national growth. The major players in employment are essentially-the employer and the employee and whenever there is a contractual relationship between these two parties, the binding contract naturally brings about rights and duties which must be complied with. Their respective rights and duties have to be analyzed wholly in contractual terms. In many civilized countries, a case study of Nigeria, it has been observed from historical antecedents, a structured favour to employers over and above the employee’s liability arose. As much as it is an undisputed fact that employers reserve the right to dismiss alongside other rights, employees also have rights which they can also exercise. But in most circumstances, due to ignorance of many employees, the opportunity to challenge such unlawful acts of the employers eludes them. Efforts has been made in this research project to identify these problems, their causes and also solutions have been suggested in the concluding chapter for a need to reform the whole set up as it affects labour law and practice in Nigeria.

CHAPTER ONE

1.0             GENERAL INTRODUCTION

The constitution of Nigeria itself seeks to ensure that the Nigerian worker is able to participate fully in the economic, social and political development of the nation. It provides that the state must direct its policy towards ensuring, inter alia, that:

(a)    all citizens without discrimination on any ground whatsoever have the opportunity for securing adequate means of livelihood as well as adequate opportunities to secure suitable employment;

(b)   conditions of work are just and humane; 

(c)    the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;

(d)    there is equal pay for equal work without discrimination on account of sex or any other ground whatsoever[1].

It is the duty and responsibility of all organs of government and all authorities and persons exercising legislative, executive or judicial powers to conform to, observe and apply these injunctions[2]. Although these rights, if they may be so-called, are not justiciable rights[3], there can be no doubt that they provide a significant yardstick by which the reasonableness, if not the constitutionality, of our labour laws may be measured.

 The sources of labour law include the constitution, legislation and the common law. The common law includes the decisions of both the Nigerian and the English courts[4]. However, the decisions of the English courts are merely persuasive, although in practice they are accorded the highest respect. Also decisions from other commonwealth, even non-commonwealth common law countries are found helpful. It does not appear that customary law has contributed in any way to our body of labour laws.

In this chapter, I will expose the background of my study, highlight the statement of the problem which this project is intended to settle, bring to light my objective in embarking on this study, define the scope and raise pertinent research questions for my study which shall aid my research methodology. Review of related literature of study will show that the law on the liability of an employer to his employee is gradually receiving attention by our courts which was before now as noted in my abstract to have been in favour of the employers of labour only. Also in this chapter, I will identify the existing statutory framework regulating the relationship between an employer and his employee.

1.1   BACKGROUND OF THE STUDY

In a given situation, if parties were to go back on their promises without incurring any liability; there would be endless complications and it would be almost impossible to carry on trade and commerce.

A modern standard contract of employment is reasonably expected to be a binding transaction between the employer and the employee. The terms need to be in writing, and a copy given to the employee within a reasonable time so that he may know the breach of any terms of the contract for the fixation of liability. Parties to the contract are also expected to observe the terms as they affect them individually. Equally expected to be observed are the implied terms of the contract and termination  of employee’s appointment is expected to follow laid down procedure in labour statutes and rules of natural justice. Is this the position of Labour law and practice in Nigeria? Definitely No.

The master and servant relationship imposes on the employer certain responsibilities which he is obliged to discharge to his employee provided the employee performs his own duties faithfully, honestly and creditably. Should any party breach his own side of the gentleman’s agreement, he becomes liable to the other party. Fixation of liability on the employer has always been given little or no attention to especially when he breaches the terms of the contract or fails perform or negligently performs the duties he owes his employee.

It is this apparent neglect and inertia (idleness) by the authorities of this all important area of law that has prompted research especially now that Nigeria as a developing nation is growing industrially.

1.2     STATEMENT OF THE PROBLEM

It is an investigation of the law in the books with the aim of examining how statutes and regulations have tried in protecting the employee’s interests and how far or the extent to which the courts have safeguarded these interests.

Occasions had arisen when employers had breached the terms of the contract without observing the laid down rules of labour law and practice in Nigeria and rules of natural justice. The employee has been retired, retrenched or dismissed unfairly under any political, social or economic reasons. Today the employee’s services may no longer be required either “due to the company’s inability to obtain import licence for the procurement of raw materials or until the prevailing economic situation in the country improves”. More so, he is dismissed sometimes without adequate compensation and with disregard to the terms of the contract.

1.3    OBJECTIVES OF THE STUDY

This study has the primary objective of revealing and bringing to the fore to any prospective employee and employer respectively, in the first place, that there is a duty imposed by law on all employers to diligently obey the terms of the contract entered into with his employee.

Secondly, as a morale booster for employees, on the need to seek redress once there is/are perception(s) of breach of the terms and obligations, for it will go a long way in making our labour system and employers more responsive and obliged to discharge the duties imposed on them by law to their employees. 

It will also develop and strengthen our current case laws and legislations on labour and employment law, and to provide ready and handy material on what the law had said, is saying and likely to say by precedent on any suit predicated on labour law and practice in Nigeria.

1.4       RESEARCH QUESTIONS

Research questions developed for the purposes of this study are based on some unsettled areas of labour and employment law and directed to civil servants and legal practitioners. Apart from their personal information, my research questions are:

Q1. When actually could an employer be said to have breached his own side of the contract as to give rise to liability?

Q2. Are there any remedies available to the aggrieved employee even in the wake of draconian laws and legislations?

Q3. Could the law still protect such erring employers?

Q4. How far have the law and courts protected and safeguarded these interests of an innocent employee?

The foregoing issues form the basis of this legal research project.

1.5        SIGNIFICANCE OF THE STUDY

It is significant that employers are now becoming weary and more careful in their relationship with their employees, not to flout the terms of their contract and duties imposed by law.

This study also signifies that employees are now going to exercise their legal rights when they are infringed by employers. Legal practitioners, students of law and the entire public are now asking questions and becoming interested to knowing the liabilities of employers upon failure to discharge the duties the owe to the employees.

1.6            SCOPE OF THE STUDY

Within the vast, complex and dissected field of employment law, my scope is limited to the liability of an employer to his employees, the various laws that apply to regulate labour practice in Nigeria; including and importantly case laws on which most tortious claims are founded. Efforts shall be made in this project to critically examine the justification, if any, for such derelictions of duty on the part of the employer while flagrantly flouting the laid down contracted terms and provisions of labour statutes.

Researches on a complex field as this employment law will only demand what I call the “best method” which is the adoption of both the primary and secondary sources of information. The primary source involves the use of questionnaires for employees and with one and one interview with some notable legal practitioners on some rather unsettled and subjective areas of their calling. The results are marvelling. The secondary sources draw from textbooks, journals, newspapers and accredited online materials.

1.8       LITERATURE REVIEW  

This part of my study, will concern itself with the evaluation of relevant and available materials on the liability of employers to the employees in a contract of employment both local and foreign texts. In Nigeria, discussions on this are rare in literature.

According to Godwill A. Umoh in his book Principles of Employer’s Liability, he opined that “employer’s liability refers to the phenomenon whereby an employer is made liable to pay damages for the injuries sustained by his employee in the course of his employment or in respect of injuries sustained by a third party as a result of the negligent act of his employee”.

Sometimes, the employer incurs such liability because the injury was sustained by the employee as a result of default on the part of the employer, for example, where the employer personally refuses to take necessary and reasonable care in the performance of his duties. This is usually referred to as personal liability. Again, an employer could be found liable to his servant who has sustained injury as a result of the negligent act of fellow servant who he happens to work with. Furthermore, an employer may be found liable to a third party who has been injured by the employee of the master in the course of performing the duty wherefore he was employed to perform. This is usually referred to as vicarious liability. In another instance, an employer of labour may be found liable to his employee where he has failed, refused or neglected to take the necessary precautionary measures as prescribed by a statute, as for example, where he fails to fence around a dangerous machine thereby exposing his factory workers to danger or likelihood of danger. This is sometimes referred to as liability for breach of statutory duty.

To Emiola, in his book Nigerian Labour Law; a master may be liable for the acts of his servant either because the acts had been authorized[5]  or subsequently ratified[6], or because they were done in the course of the servant’s employment.

            The liability of the employer rests on the implied term in a contract of service that a master shall indemnify his servant in respect of all legitimate actions in the course of his duty.

Chitty[7] observes:

“The relationship of employment imposes a duty on the employer to indemnify or reimburse the employee against all expenses, losses and liabilities incurred by the employee in the execution of his master’s instructions, or within the authority granted to him by the employer, or during the reasonable performance of his employment … An employer who failed to insure his vehicle in the course of his employment and who was held liable to a third party person injured by his negligent driving.”[8]

Karibi-Whyte, JSC said in Patrick Abusomwan v. Mercantile Bank of Nigeria Ltd[9]. that an obligation towards the contracting parties extends to all such persons as are likely to be injured by the acts or omissions of any of the parties. The obligation of the employer to secure the safety of the worker in the course of his employment must, therefore, by inference, extend to the third party who ought to have been had in contemplation by the parties.

The extensive nature of the employer’s duty will be appreciated if it is remembered that an employer may even be liable for the acts of a person who is not in his employment either because his employee has had his authority or consent to employ that person, or because some statute has placed the duty personally on the employer, or because the dangerous character of the operation imposes on the employer the implied duty to take care[10].

            An employer’s liability to a person outside his business establishment for the act of his servant may arise from the criminal or tortious conduct of the servant or simply from contract. Ogundare, JSC, traced the origin and history of the principle of the employer’s liability “for any wrong, even if it is a criminal offence or a tortious act, committed by his servant while acting in the course of his employment,” citing the earliest cases, particularly the statement of Holt, CJ in Hern v. Nichols[11] wherein  the chief justice said:

“Seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver, should be loser than a stranger,”

He also added that the doctrine is based on master-servant relation. Now christened doctrine of vicarious liability, it is held to be “founded on public policy[12] or … on ‘social convenience and rough justice.”

            But the liability of the master is not primary but only derivative. Thus, it is settled that an employer cannot be vicariously liable unless the liability of the servant is first established. But this does not mean that primary tort feasor must be joined in the suit; he need not be joined. All that the law requires is the need to establish first the liability of the servant before the employer can be made liable.

In Akubuilo’s Industrial labour law and law of Tort P.48, he noted that the relationship of master and servant usually exists when one person employs another to do work for him on terms that he, the servant, is to be subject to the control and direction of his employer in respect of the manner in which the work is to be done. The test is: does the employer control the way in which the work is to be done? If so the relationship of master and servant probably exists.

A master is liable for all the torts committed by his servant in the course of his employment.

Test: Was the servant engaged in substance of the task of doing what the master employed him to do?

Accordingly, if a servant performs his duties negligently, his master will be liable for the servant is merely doing in an improper way what he was employed to do properly. The case is the same if the servant does fraudulently what even if the fraud was entirely for the benefit of the servant. Moreover, even express prohibition by the master of the wrongful act is defence to the master if that act was merely a mode of doing what the servant was employed to do. The principle was later extended to the case where a similar rescue was affected by an ordinary onlooker Morgan v. Aylen (1942)-1 ALL ER 489).

Ball and Rose[13] have posited that the legal relationship between employer and employee and their mutual rights and liabilities on a multitude of issues affecting employment, will often be determined by reference to the express terms negotiated by the parties themselves.

DEFINITION OF TERMS

EMPLOYER: According to the Merriam Webster dictionary, an employer is any person who engages the services of another person, to provide with a job that pays wages or a salary. In Part IX of the EMPLOYEE’S COMPENSATION ACT (2010), which deals with the miscellaneous provisions of the act repealing the Workmen’s compensation Act Cap.W6 LFN, 2004. An employer includes any individual, body corporate, Federal, State, or Local Government or any of the government agencies who has entered into a contract of employment to employ any other person as an employee or apprentice;

EMPLOYEE: Whereas it suffices to say that an employee is any person who works for another person or for a company for wages or salary. Within the meaning of the Act, an employee means a person employed by an employer under oral or written contract of employment whether on a continuous, part-time, temporary apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer including any person employed in the Federal, State, Local Governments, and any of the government agencies and in a formal and informal sectors of the economy;

LIABILITY: In law, liability means “responsible or answerable: Legally obligated”. Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish or prove liability. Claimants can prove liability through myriad of different theories, known as theories of liability. Which theories of liability are available in a given case depends on nature of the law in question. For example, in case involving a contractual dispute, one available theory of liability is breach of contract; or in the tort context, negligence, negligence per se, vicarious liability, strict liability, or intentional conduct are all valid theories of liability.

CONTRACT OF EMPLOYMENT: Section 7 of the Labour Act provides thus;

It is compulsory for every employer to give to the worker not later than 3 months after commencing work a written statement specifying the following:

i. Name of the employer.

ii. Name and address of the worker and when he or she was employed.

iii. Nature of the employment.

iv. The date when the contract is to expire if it is fixed or the period of notice to be given by the party wishing to terminate the contract.

v. Wages and manner of its payment.

vi. Hours of work, holidays and holiday pay.

vii. Incapacity to work due to sickness and Provisions for sick pay.

viii. Any special conditions of the contract.

Therefore, contract of employment connotes the terms and conditions, rights and obligations which shall bind parties to any contract of employment.

NIGERIAN LABOUR LAW

THE DOCTRINE OF ADMINISTRATIVE ADJUDICATION

ABSTRACT

Globally in all jurisdictions, the courts of law are recognized as bodies vested with the authority of interpreting the law and applying the law to disputes between various parties. The primary and near exclusive duty of adjudication is mostly associated with the courts of law usually saddled with the responsibility of adjudicating on disputes between parties. However, the growth of modern day government has necessitated the empowering of various administrative agencies and tribunals outside of the law courts with the exercise of powers which are judicial or quasi-judicial nature. These bodies dispense justice though they are most often majorly constituted of persons who have no legal training or background though expected to be knowledgeable in they are over which it was established. Administrative adjudication is the process by which an administrative agency issues an order, such order being affirmative, negative, injunctive or declaratory in form. Most formal proceedings before an administrative agency follow the process of either rule making or adjudication. Rule making formulates policy by setting rules for the future conduct of persons governed by that agency. Adjudication applies the agency’s policy to the past actions of a particular party, and it results in an order for or against that party. It is a dispute resolution aspect of administrative action. It is pertinent to note that adjudication being the major function of the judicial arm, under the scope of this topic is being the major function of the judicial arm, under the  scope of this topic is being carried out by bodies other than the court due to delay of court processes  during adjudication. Thus, over the years, there has been an evolution of administrative adjudication and, as such it has become expedient for the functioning of modern government. The purpose of writing on this topic is to examine the doctrine of administrative adjudication. Its focus shall be on its importance and development in a legal system with particular reference to Nigeria at large. The control of administrative adjudication shall also be expounded in the course of writing.

THE DOCTRINE OF ADMINISTRATIVE ADJUDICATION

WRONGFUL TERMINATION OF CONTRACTS OF EMPLOYMENT IN NIGERIA: A CASE FOR REINSTATEMENT OF PRIVATE EMPLOYEES

CHAPTER ONE

CONTRACTS OF EMPLOYMENT: MEANING AND NATURE

A contract of employment is an agreement between two or more persons relationship established by contract, creating an obligation to do a particular thing in a contract of employment.

1.2     Meaning and Nature

The nature of contract of employment is the relationship between an employer and his employee comes into existence as a result of a contract between them generally referred to a contract of service, which means any agreement whether oral or written, expressed or implied, where by one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker as contained in Labour Act[1]

Generally, the contract of employment is an off-shoot of our general law of contract where the essential ingredients of the contract must be found present before it’s enforceability.

1.2.1  Offer and Acceptance

In every contract of an employment, there is a meeting of the minds of the parties before the enforceability of the contract. That is to say, an offer must be made by one party called (offeror) as in Callil v. Carbolic Smoke Ball Co.[2] and the acceptance of the offer by the other party called (offeree) as in the case of Afolabi v. Polymera Ind. Nig. Ltd.[3]  This principle of offer and acceptance entails freedom of both parties to offer and accept unconditionally the terms of employment.

1.2.2  Consideration

In a contract of employment, where there is an offer and acceptance by both parties to the contract of services, there must be a consideration to furnished the contract, describing some rights, interest, profit or benefit occurring to one party or some fore-bearance detriment, loss or responsibility given, suffered or undertaking by the other.[4] The above explanation was illustrated in the case of Currie v. Misa[5]  Therefore, consideration in the contract of employment is the salary and other fringe benefits which an employee earns on one part and services which an employer receives on the other part.

1.2.3  Intention to create Legal Relation

The relationship between an employer and employee is established by contract. Where both parties agreed on the terms of the contract of employment, creating a common intention of both parties to enter into a legal obligation that is contained in the employment agreement Rose and Frank v. Crompton[6] 

1.2.4  Capacity

The law is settled that parties to a contract of employment must possess the capacity of contract as recognized by law at common law.  Certain categories of persons namely; infants, mentally infirm and disordered person and drunkards in certain circumstance are incapable of entering into a contract.[7]  This has been specified in our statute Nigeria Labour Act 2004.

In the case of an infant, the law forbids to engage a person (child) below the age of sixteen years from entering into any contract of employment except that of an apprenticeship.  But the Act provides in Section 19(1) of the Labour Act 2004 that a child under twelve years of age can be employed only by a member of his family and even then, subject to his rights, agricultural, horticultural or domestic work approved by the Minister of Labour as stated in Section 91(1) (a) Labour Act.

However, Section 59 of the Act is an exception apparently to enable a youth receive his education in a technical school. In respect of working on a ship in general, Section 61 (3) of the Act provides that even when the non-adult is allowed to be so employed, he can work only on a vessel in which only members of the same class are employed.

Under Section 59 of the Act,the Minister of Labour has power to notify an employer in writing that the kind of work in which a young person is employed is injurious to his health, immoral or otherwise unsuitable.

Finally on mentally infirm and disordered person are persons who are insane, unsound minds incapable of being conscious and rational thinking on the obligation of the terms of the contract of employment.

1.3     Parties to a Contract of Employment

A contract of employment or services is entered into and enforceable by the employers and the employees, which automatically forms or constitute the major parties to a contract of employment in Nigeria Labour Law.

A person who is in a contract of employment with another cannot be transferred to another employer without his consent. This is in conformity with the provision Section 10 (1) of the Act which provides as follows

“The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorised labour officer”.

1.3.1  Employer

An employer is the person by whom the employee is or was employed. Rights can only be acquired against the one employed.  See the case of Harold Fielding Ltd. v. Mansi[8]

A person who exercises sufficient control over employee may be regarded as being the employer for some purposes as illustrated in the case of Road Transport Industry Training Board v. Ongaro[9]

1.3.2    Employee

According to Section 55 of the Trade Union Act 1974 defines an employee or worker as “any member of the public service of the federation or of a state or any individual (other than a member of any such public service) who has entered into or works under a contract with an employer.

In N.A.L.G.O. v. Bolton Corporation,[10] the House of Lords decided that an employee or worker includes manual labourers, clerks, apprentices, and persons in a contract personally to execute work or labour.

1.4     Independent Contractor

An independent contractor is an employee, employed by an employer to carry out a specific contract in the contract of employment.

According to Salmond in Nigeria Law Reform Act 1961, Section 7 (4) (b), that the liability of the independent contractor is not vicarious. A person is not generally liable for the tort of his independent contractor or the servant of such a contractor committed in the discharge of the contractual obligations.

1.5     Why an Employee Needs Protection?

A contract of employment like any other contract comes into existence by an agreement between the parties (i.e.) the employer and employee.

The agreement must be free and voluntary neither party compels the other to accept any terms or conditions in the agreement.

The vouched freedom and volunteerness of the agreement raised the inequality of bargaining power between the two parties. The number of people applying for work is too much for the number of jobs the employer have. Because of these factors, there is a brake down in the negotiation and the employer continues to negotiation until he gets what he considers favourable terms and conditions for the employment.

Technically, he agrees to the terms and conditions of the contract but in realization of this situation, Professor Adeogun made the following observation in line with the legal framework of Industrial relations in Nigeria[11] thus:

The resumption of equality between two parties tends to ignore other social and economic consideration which may make this equality and its underlying freedom, fictitious and hollow.  Indeed, the so-called bargaining power of the individual worker is important in practice, especially in a country like Nigeria where there are more workmen than the jobs available and where the employer can choose freely whom to employ[12]

1.6     Conclusion

          In conclusion of this chapter one, relating to contract of employment involving employers and employees relationship where one party made an offer and the other party accepts the offered, brought no doubt in negotiation where there is inequality bargain.

          Though it is a vouched freedom and volunteerness of the agreement that places the employee as a beggar without choice irrespective of the terms or conditions of the employment under which he accepted the offered. This is as a result of insufficient of availabilities of jobs in our society (Nigeria).

          The situation in Nigeria today as regard employment is such that it is difficult to get an employment and more difficult for wrongfully dismissed employee to secure an alternative employment.  Therefore, since the contracts of employment manifest from volunteers consent, which constitute a contract of service between the parties, the law is then in support of the party that is faithful to its bond under the contract and opposed the other that acts contrary to the provisions or contractual terms of the employment.

[1] Nigeria Labour Act Cap L1 LFN 2004.

[2] (1893) 1 QB 256.

[3] (1967) N.S.C.C. 158.

[4] Sagay, I.E., Nigerian Law of Contract. Ibadan: Spectrum, 1985, 59

[5] (1875) L.R. 10.

[6] (1923) 2 K.B. 261.

[7] Uvieghara, E.E., Labour Law in Nigeria. Lagos, Mathouse Press, 2001, 14-21.

[8] (1974) 1 RLR 79.

[9] (1943) A.C. 166.

[10] (1943) A.C. 166

[11] (1970) 3 NL. 13.

[12] Adeogun A.A., Termination of Contract of employment (A note on Nigeria Case Law) parts 1 and II Nigeria Journal of contemporary law (Vol. II) 1970.

WRONGFUL TERMINATION OF CONTRACTS OF EMPLOYMENT IN NIGERIA: A CASE FOR REINSTATEMENT OF PRIVATE EMPLOYEES

FUNDAMENTAL OBJECTIVE AND DIRECTIVE PRINCIPLES OF STATE POLICY: ITS ENFORCEABILITY

ABSTRACT

The whole of Chapter II of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (made up of 12 sections spanning section 13 to 24) contain the political, economic, social, cultural and developmental rights of the citizens. However, this chapter is non-justiciable by virtue of section 6(6) (c) of the same constitution. Examination of the implications of such non-justiciability show that citizens cannot obtain redress from the courts if denied their socio-economic, developmental and other rights provided for in this chapter of the constitution. It is therefore a formidable impediment to socio-economic development. Furthermore, continuation of non-justiciability of Chapter II CFRN may result to lack of development and non-accountability by the Executive and Legislative arms of government, without any hope of a successful judicial challenge. It is further found that some other African countries and India now have provisions to allow Courts to adjudicate on socio-economic rights relying on the African Charter on Human and Peoples Rights which should be applicable in Nigeria. It is recommended that Nigeria repositions to correct this aberration and allow for justiciability of this chapter of the constitution in order to facilitate socio-economic development.    

CHAPTER ONE

1.1             BACKGROUND OF THE STUDY

The reason for venturing into this topic is based on personal interest in the concept of fundamental objectives and directive principles of state policy and the desire to shed more light on it by critically analyzing it.

This work is therefore based on the analysis of fundamental objectives and directive principles of state policy. It analysis shall include discussion on the nature of fundamental objectives of the government, consideration of the desirability of the objectives among others.

The art of governance that directs government to ensure as a matter of state policy the fulfillment of identified fundamental objectives is a culture that pervades the constitution of most emerging democracies. An examination of the constitution of Nigeria shows arrays fundamental objectives as a common feature. For instance, chapter two of the 1999 constitution of Nigeria contain series of provisions locating on fundamental objectives such as political objectives, economic objectives, social objectives, educational objectives, foreign policy objectives and environmental objectives of the Nigerian government.    

1.2             STATEMENT OF THE PROBLEM

The Nigerian executive arm of government is provided for in the constitution, it is saddled with functions which basically revolve around executing the laws made by the legislature. The constitution of the Federal Republic of Nigeria (1999) made provision for fundamental objectives and directives principles of state policy under its chapter two. These objectives provide a guide to any government in power in Nigeria and contain essential need of the people in Nigeria on political, economic, social, educational, foreign policy, environmental, cultural, media, national ethnic matters and duties of citizens.

This research seeks to ratify the validation of the main aim of fundamental objectives and directive principles of state policy in the 1999 constitution and those laid down policies which are expected to be pursued in the effort of the government to realize the national ideals.

1.3             SIGNIFICANCE OF THE STUDY

Researchers often contribute to existing knowledge and then possibly create channels for further researches. The main intention of this research is to examine the issue which bothers on the justiciability and non-justiciability of chapter two of the 1999 constitution which is the fundamental objectives and directive principles of state policy and those fundamental objectives which is laid down in the constitution for government to follow; however, these objectives and principles if turned into human right will lead to a new Nigeria devoid of problems like unemployment, lack of basic amenities at a significant low level of social welfare and disunity.

1.4             SCOPE AND LIMITATION OF STUDY

This research shall not exceed the content of its title; it shall be within the preview prescribed by the topic. Though fundamental objectives and directive principles of state policy appears to be too cumbersome and complex, it interpretation differs in different situation and circumstance. This research has a main focus on the critical analysis of fundamental objectives and directive principles of state policy under chapter two of the 1999 constitution of Nigeria.

1.5             RESEARCH METHODOLOGY

This research is doctrine didactic and library based. It does not involve the use of questionnaire. Thus, reference materials are derived mainly from the law library, internet, statutes books and recited cases as well as juristic opinion from journals, articles, text book and individuals.  

1.6             DEFINITION OF TERMS

This research is made up of some key terms. Thus, to appreciate and to have a better understanding and discussion on the research topic, it is essential and pertinent to state some definition of terms used in the research work. The key term used in this research is fundamental objectives and directive principles of state policy.

Fundamental: Fundamental is a basic principle, rule, law that serves as the groundwork of a system or being an essential part of a foundation or basis.

Objectives: Objective is a specific result that a person or system aims to achieve within a time frame and with available resources. In general, objectives are more specific and easier to measure than goals. Objectives are basic tools that underlie all planning and strategic activities.  

Directives: Directive is defined as a formal legal act and usually mandatory executive order or official pronouncement on a policy or procedure, or one which encourages or discourages some activity.

Principle: Principle is a fundamental truth or proposition that serves as the foundation for a system of belief or behaviour or for a chain of reasoning, a general scientific theorem or law that has numerous special application across a wide field. A principle is a concept or value that is a guide for behaviour or evaluation. In law, it is a rule that has to be or usually followed.

Constitution: A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. Fundamental and entrenched rules governing the conduct of an organization, nation or state and establishing its concepts, character and structure.

Justiciability: Justiciability can be defined as the limits upon legal issues over which a Court can exercise its judicial authority. It is also the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual adversarial issue exists. Justiciability refers to the type of matters that the courts can adjudicate. If a case is “non-justiciable” a court cannot hear it.

Non-Justiciability: Non-justiciability simply means inability of any court of law to try a matter even where real interest and right are being infringed. This definitely, is against the spirit and objective of any good constitution in a democratic dispensation where the rule of law and separation of powers of the arms of government should prevail. 

FUNDAMENTAL OBJECTIVE AND DIRECTIVE PRINCIPLES OF STATE POLICY: ITS ENFORCEABILITY

THE ROLE OF ALTERNATE DISPUTE RESOLUTION AND ITS IMPORTANCE UNDER THE NIGERIAN LEGAL SYSTEM

CHAPTER ONE

BACKGROUND TO STUDY

INTRODUCTION

Lack of prompt and efficient running justice delivery machinery in the Nigerian courts system is often due to frivolous, pointless and frequent postponements and/or adjournments, of cases or disputes, causing delays in judicial/legal proceedings. This has resulted in crippling effects on the prompt and effective administration and delivery of justice in Nigeria. Legal practitioners in Nigeria are not without fault in the contribution to the apparent mess our judicial system has fallen prey to, as a result of varying contributory factors all working against the systems healthy existence.

The Majority legal practitioners have one time or the other in practice, employed different legal manoeuvres or strategies with the aim of frustrating or causing delays one way or the other, especially in situations where they find they are ill prepared for the particular case, they realise that to continue seamlessly would birth a judgement not favourable to their party/cause. The delays occasioned by the behaviour and practices of lawyers in the country, happens to be one of the varying causes of congestions and delays experienced in our courts today. The dearth of competent and efficient hands in our legal system at the different levels, (from the judge, to the janitor) has also contributed to the present state of decay in the system. The Participants cum victims of the criminal justice system (CJS) appear to be the obvious or noticeable casualties largely affected by the congestion experienced in our courts today, with the flaws there indirectly impinging, impacting and determining, with far reaching effects, the lives, loves and destinies of those concerned; directly or indirectly. Suggestions made by a plethora of experts, observers and ‘friends of the courts’ abound on ways to salvage this present and lingering state of affairs.

The considered embrace and implementation of Alternative Dispute Resolution Processes with its characteristic feature of celerity, its operation and acceptance; a success in predominantly commercial aspects and issues in Law now popular in civil/commercial cases/disputes, has thus triggered a contemplation and proposal in this essay, on the application of ADR processes as a possible panacea to the overwhelming situation of bottlenecks and overcrowding in our court rooms.

It is indeed submitted that the introduction and application though novel, of these processes would not be at a total variance with the law and issues of justice (prosecution, guilt or innocence, sentencing etc.), all integral to criminal justice but will pursue the quality of promptness currently deficient in our courts and impeding justice thus giving strength unfortunately, to the maxim though trite; ‘’justice delayed is justice denied.’’

Alternative Dispute Resolution (ADR)

Alternative dispute resolution (ADR) is a non-adversarial way of resolving disputes that is being progressively more employed in the public and private sectors, especially in developed countries. ADR helps parties resolve their differences without resorting to a more confrontational adjudicative process. It looks at needs, interests, and solutions, and can promote healing. It is voluntary, timely, confidential, and based on mutual agreement. Unlike the conventional courts, it is designed to yield solutions that are adapted to the particular circumstances of individual cases, as it is about solving problems rather than imposing solutions through an adjudicative process.[1]Thus, ADR and its role in the socio economic or political life of nations must be acquired by every maturing or seasoned/ veteran lawyer or practitioner in varied fields of proficiency.[2]This solely for the reality that disputes are a fact of life of which cannot be ignored in any sphere. Therefore acquiring this requisite expertise is desirable, resulting in positive and strategic rewards for the legal practitioner.

Alternative Dispute Resolution. (ADR): Some Definitions.

Alternative Dispute Resolution may be defined as a range of dispute resolution processes or mechanisms designed and available outside of, but supplementary to litigation.[3] The Black’s Law Dictionary [4]defines alternative dispute resolution thus: ‘’a procedure for settling a dispute by means other than litigation, such as arbitration or mediation. ’’ Another definition has said of ADR, to be ’’….range of procedures that serve as alternative to litigation through the courts for the resolution of disputes, generally involving the intercession and assistance of a neutral impartial third party. In some definitions and more commonly, it excludes not only litigation, but all forms of adjudication.’’[5]Stephen J. Ware[6] has defined ADR to be everything but litigation, because litigation as a matter of law is the default process of dispute resolution. A final addition to the above definitions would be incomplete without the input of Professors Olakunle Orojo and Ayodele Ajomo, two ‘leading lights’ on Arbitration in Nigeria: ‘’….ADR is generally used to describe the methods and procedures used to resolve disputes either as

alternatives to the traditional disputes resolution mechanism of the court or in some cases as supplementary to such mechanism.’’[7]

THE Alternative Dispute Resolution Processes.

The varieties or array of these processes include Negotiation, Mediation, Arbitration, Neutral Evaluation, as well as various hybrids such as Med-Arb and Lit-med.[8]Mediation however, has been agreed upon to be the most traditionally or commonly used, being adjudged as easier and cheaper or the most manifest of these mechanisms, than arbitration, which is although, most popular and universally known. Below are brief definitions or descriptions on the concepts aforementioned:

Arbitration

Arbitration may be defined as a simplified version of a trial involving no discovery and simplified rules of evidence. The choice of neutral/arbitrator is that of the parties and the decision (award) of the neutral may be binding or non-binding depending on the prior election of the parties. In arbitration, the parties relinquish their decision-making right to the neutral who makes a decision for them. By pre-agreement, the neutral’s decision is either binding or nonbinding. If binding, the neutral’s decision is final and the winning party may enforce it against the losing party. If nonbinding, the neutral’s decision is advisory in aid of settlement.[9]

Mediation

Mediation, the most commonly utilized of all ADR processes, may be defined as ‘a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference with the parties in ultimate control of the decision to settle and the terms of resolution’ Simply put, mediation is negotiation assisted by a third party. If the disputants are unable to resolve their disputes by negotiation, a third party that is usually referred to as Mediator, Conciliator or Facilitator, may be called upon to help them. The mediator’s sole function is not to decide the issues or determine right or wrong, but to help the disputants resolve their conflict consensually. This is why mediation is often called “turbocharged negotiation” as the primary function of the mediator is to help facilitate negotiations among the parties.

HYBRID PROCESSES [10]

Alternative Dispute Resolution is no longer seen as being valuable except where it can prove to also be Effective Dispute Resolution. The dynamics of a dispute might be such that in order to be effectual, a commingling of ADR processes may be utilised. Examples of hybrid processes include: Lit med and Med-arb.

Lit- Med

Lit-Med is the combination of litigation and mediation as a single process. Parties may agree that in the eventuality that a matter might be part resolved through mediation and issues not resolved would be referred to litigation. Matters of constitutional law and interpretation may also be referred to litigation.

Med-Arb

Med-Arb as the name suggests, is a process in which Mediation is followed by Arbitration where Mediation fails to resolve a dispute or parts of it. This makes possible achieving the best of both worlds. This process gives the parties the opportunity to use mediation to reach a settlement, and then to rely on a decision by the arbitrator on issues on which no agreement has been reached. This process encourages parties to create their own best settlement under the threat of having one imposed by an arbitrator.

THE DISPUTE RESOLUTION SPECTRUM[11]

The Dispute Resolution Spectrum can be viewed graphically as extending from the least formal process on the top of the chart; pure negotiation, to the most formal process on the bottom; litigation. Pure negotiation, a process that ought to be familiar to all advocates, is the only process in the spectrum in which the parties and counsel engage without the assistance of a neutral. Many times, however, it serves as an ancillary dispute resolution mechanism to other processes in the spectrum. In the next process, conciliation, the neutral’s goal is to assist in reducing tensions, clarifying issues, and getting the parties to communicate. In essence, it is the process of “getting the parties to the table” and inducing their active involvement in solving their problem. Moving down the chart, facilitation is the process in which a neutral functions as a process expert to facilitate communication and to help design the process structure for resolving the dispute. Ordinarily, a facilitator deals only with procedures and does not become involved in the substance of the dispute.

OBJECTIVES OF THE STUDY

Lots of controversies and series of opinions and ideas have accompanied the formation, reasons and necessity for a ADR. Many have expressed opinions for the necessity of alternative means of resolving conflicts with its statutory flavour while to some people, it is basically a waste of resources to leave the matters of the court to indivividuals to hande. Therefore, the effort and major objectives of this study will be to examine all the hullabaloos surrounding this means of resolving conflicts. The study will examine therole, limitations and reasons why people engage in alternate dispute resolution. At the end of the exercise, a standing form of model law will be profound by this study based on researcher‟s findings as regards alternate dispute resolution in Nigeria.

SCOPE OF THE STUDY

This study is essentially based on alternate dispute resolution in Nigeria. Emphasis will also be placed on concept of alternate dispute resolution, limitations to alternate dispute resolution and its validity and objective.

METHODOLOGY

The methods of research to be employed are basically analytical and critical, by the use of primary and secondary source of law. The primary sources includes statutory provisions, judicial provisions, textbooks and journals.

Secondary sources like opinions of legal writers, essays, seminar lectures and materials from internet are also employed. The sources are essentially in-exhaustive but the foretasted were the means through which the bulk of information was garnered. The Research findings will be further scrutinized by ascertaining or negating their suitability to the current terrain. More importantly, empirical findings were made through an update of events in the globe.

[1] articles/felix-adewumi/alternative-dispute-resolution-adr-an-antidote-to-court-congestion. Posted on 12-04-2007, 19:00:32 PM. Retrieved 19-02-2012.

[2] ADR and Multi Door Court. Paper delivered by Hon Justice Opeyemi Oke; Chairman Governing Council, The Lagos Multi Door Court House.3rd March 2011.

[3] DISPUTE RESOLUTION GROUP Article by Kehinde Aina Managing Partner; AINA, BLANKSON & CO. Lagos Nigeria. Ninth Edition, Page 91

[4] ADR and Multi Door Court. Paper delivered by Hon Justice Opeyemi Oke; Chairman Governing Council, The Lagos Multi Door Court House.3rd March 2011.

[5] Alternative Dispute Resolution ss 1.5@5-6 (2001)

[6] Orojo J.O, Ajomo M.A: Law and Practice of Arbitration and Conciliation in Nigeria(Mbeyi & Associate Nigeria Limited,1999)Page 4 Ibid….3

[7] Door Court House.3rd March 2011.

[8] Alternative Dispute Resolution ss 1.5@5-6 (2001)

THE ROLE OF ALTERNATE DISPUTE RESOLUTION AND ITS IMPORTANCE UNDER THE NIGERIAN LEGAL SYSTEM

A CRITICAL APPRAISAL ON THE JUDICIARY INDEPENDENCE

ABSTRACT

The fact that the judiciary remains the bastion of hope not just for the common man but also for the high and mighty in a society, makes judicial independence very crucial.  Hence, judicial independence is said to be fundamental to democracy but sad to say, it seems it is only lip-service that is being paid to this crucial concept in most countries; our country Nigeria is not an exception of this fact situation, otherwise how would anybody explain the disillusionment and utter lack of confidence by greater percentage of the populace in the judiciary, considering it a feeble weak arm of government, corrupt and inefficient.  To some, the judiciary is a shadow of itself, adept at protecting others, inept of protecting itself. These remarks derived from observations of the alleged or actual behaviours of some judges themselves and their independence, impartiality and integrity when adjudged by the citizens. Again, the treatment meted on to this important arm of government by the executive arm of government is a cause for worry.  It therefore, raised curiosity and concern as to why any judicial system should be seen in the above light and the extent to which the above issues are justiceable. It calls for urgent examination of whether the independence of the Nigeria judicial system is guaranteed and practicable, and whether it remains a reechoed concept.  Also, to ascertain whether the lofty constitutional provisions with regards to judicial independence has any substance or whether what could have been a constitutional guarantee of judicial emancipation remains only as a  sermon in Nigeria, as such awaiting reforms shall make it justiceable.

TABLE OF CONTENTS

Title Page               –           –           –           –           –           –           –           i          

Certification    Page –  –           –           –           –           –           –           –           –           ii

Dedication      –           –           –           –           –           –           –           –           –           iii

Acknowledgement      –           –           –           –           –           –           –           –           iv

Abstract          –           –           –           –           –           –           –           –           –           vi

Table of Contents       –           –           –           –           –           –           –           –           vii       

Table of Cases   –           –           –           –           –           –           –           –           xi        

List of Statutes           –           –           –           –           –           –           –           –           xiii

List of Abbreviations  –           –           –           –           –           –           –           –           xv

CHAPTER ONE:  GENERAL INTRODUCTION

1.1       Background of the Study       –           –           –           –           –           –           1

1.2       Statement of the Problem –           –           –           –           –           5

1.3       Objectives of the Study          –           –           –           –           –           –           6

1.4       Research Methodology           –           –           –           –           –           –           6

1.5       Significance of the Study       –           –           –           –           –           –           7

1.6       Scope of the Study     –           –           –           –           –           –           –           7

1.7       Definition of Terms    –           –           –           –           –           –           –           7

CHAPTER TWO

2.1       The Nigerian Judiciary        –           –           –           –           –           12

2.2       The Criticism of National Judicial Council –           –           –           13

2.3       The Nigerian Bar     –           –           –           –           –           –           16

2.4       The Nigerian Bench           –           –           –           –           –           18

2.5       Bar-Bench Relationship in Nigeria  –           –           –           –           18

CHAPTER THREE

3.1       The Analytical Perspective of the Judiciary           –           –           20

3.2       The Judiciary and Judicial Power         –           –           –           24

3.3       Judicial Power –           –           –           –           –           –           –           –           25

3.4       Limitations on the Exercise of Judicial Powers    –           –           27

3.5       The Judiciary   –           –           –           –           –           –           –           –           27

3.6       Instances of Executives Abuses of Judicial Independence   –           30

CHAPTER FOUR

4.1       The History and Hierarchy of Courts in Nigeria        –   –           36

4.2       Appointment of Judges          –           –           –           –           –           –           43

4.3       Supreme Court            –           –           –           –           –           –           –           43

4.4       Qualification for Justices of the Supreme Court and the Chief Justice of Nigeria  –      –           –           –           –           –           44

4.5       Court of Appeal          –           –           –           –           –           –           –           44

4.6       Qualification for Justices of the Court of Appeal and its President 45

4.7       Federal High Court     –           –           –           –           –           –           –           45

4.8       Other Judicial Officers         –           –           –           –           –           45

4.9       Qualifications for other Judicial Officers         –           –           –           45

4.10     High Court Judges      –           –           –           –           –           –           –           46

4.11     Sharia Court of Appeal, Khadis and Grand Khadis   –     –           46

4.12     President and Judges of Customary Court of Appeal            –           47

CHAPTER FIVE: CRITICAL APPRAISAL OF JUDICIARY INDEPENDENCE

5.1       Inability           –           –           –           –           –           –           –           –           48

5.2       Misconduct     –           –           –           –           –           –           –           –           48

5.3       Code of Conduct        –           –           –           –           –           –           –           48

5.4       Salary of Judicial Officers      –                     –           –           –           51

5.5       Pensions          –           –           –           –           –           –           –           –           52

5.6       Immunity from Criminal Prosecution and Civil Suit  –        –           52

5.7       Factors Inhibiting Judicial Independence –    –           –           –  –           54

5.7.1    Life after Retirement  –           –           –           –           –         –           54

5.7.2    Lack of Machinery to Enforce its Judgement         –           –           56

5.7.3    Removal from Office/Composition of National Judicial Council      57

5.8       Ouster Clause  –           –           –           –           –           –           –           –           59

5.9       Lack of Funds/Budgetary Provisions –        –           –           –           59

5.10     Executive Lawlessness                  –           –           –           –           60

5.11     Prerogative of Mercy  –       –           –           –           –           –           60

5.12     Action of Some Judges           –           –           –           –           –           –           60

5.13     Factors Enhancing Judiciary Independence   –      –           –           62

CHAPTER SIX: SUMMARY, RECOMMENDATIONS AND CONCLUSION

6.1       Summary         –           –           –           –           –           –           –           –           66

6.2       Recommendation                  –           –           –           –           –           67

6.3       Conclusion      –           –           –           –           –           –           –           –           69

Bibliography   –           –           –           –           –           –           –           –           –           71

Journals           –           –           –           –           –           –           –           –           –           72

E- Resources   –           –           –           –           –           –           –           –           –           72

A CRITICAL APPRAISAL ON THE JUDICIARY INDEPENDENCE

THE APPLICATION OF CUSTOMARY LAW IN NIGERIA

ABSTRACT

Customary law is an important source of Nigerian law. Its influence on the Nigerian legal system is enormous. It is indigenous and reflects on the customs and cultures of the people. But it is not uniform and harmonious, it is fluid and diversified. Besides, it is not necessarily in full conformity with the fast pace of Western civilization being forced on the entire mankind by globalization. It is inundated with multiplicity of customs complicated by superstitions. Hence, it is difficult to take judicial notice of it without conditionality. Although the issue of subjecting these customary laws to the validity test if they must be relied on as a source of law in Nigeria emanates from the biased views of our colonial masters of the Nigerian customs being barbaric, and superstitious. It is still worthy to note that the nature of customary law demands that it is been so tested so as to remove some of the superstitious elements and harsh nature. The question has been why subject our Customary Law to a test of validity? Could it be to remove superstitious and harsh elements inherent in them? Or could it be that they lack exactness because of non-codification? Why do courts have difficulty in taking judicial notice of them? This is the crux of our discourse: the validity of customary law as a source of Nigerian law. The validity test which stems from the received English Laws is used as a parameter for which customary law would be declared null and void. The reality of the applicability of customary law within the Nigerian legal landscape shall be the major preoccupation of this work. This research adopted both the doctrinal and empirical methods. The doctrinal method was analytical cum socio legal whereas the empirical method was library based both the primary and secondary sources of law were employed. The primary sources were drawn from statutes, legislative enactments and case law. The secondary sources were drawn from textbooks, journals, scholarly writings and opinions of legal authors. The research proffered recommendations which shall be viable if adopted and/or entrenched.      

                                                TABLE OF CONTENTS

CHAPTER                                                                                                            PAGE

Cover Page                  –                       –                       i

Title Page                    –                       –                        ii                    

Declaration                  –                       –                         iii                 

Certification                –                       –                       iv                 

Dedication                  –                       –                        v

Acknowledgements    –                       –                        vi

Abstract                      –                       –                        viii

Table of Contents       –                       –                       ix

Table of Cases             –                      –                        xii

Table of Statutes         –                       –                        xv

Abbreviations              –                       –                        xvii

CHAPTER ONE: INTRODUCTION

1.1       Background of the Study       –                       –                       –                        1

1.2       Statement of the Problem       –                       –                       –                        3

1.3       Research Questions                 –                       –                       –                        6

1.4       Objectives of the Study          –                       –                       –                        6

1.5       Significance of the Study       –                       –                       –                        6

1.6       Research Methodology           –                       –                       –                        7

1.7       Scope of the Study                 –                       –                       –                        7

1.8       Organization of the Study      –                       –                       –                        7

1.9       Definition of Key Concepts   –                       –                       –                        8

1.9.1    Customary Law                      –                       –                       –                       8

1.9.2    Law                 –                       –                       –                       –                       8

1.9.3    Application     –                       –                       –                       –                       8

1.9.4    Nigeria                        –                       –                       ­-                       –                       9

1.10    Review of Related Literature  –        –                       –                       9

CHAPTER TWO: AN EXAMINATION OF PROOF OF CUSTOMARY LAW IN NIGERIA

2.1       Nature of Customary Law      –     –       –                       11

2.2       Judicial Notices as Proof of Customary Law    –                       14

2.3       Evidence of Customs as Proof of Customary Law –                       14

2.4       Relevance of Proof of Customary Law         –                      18

CHAPTER THREE:   VALIDITY TESTS AND THE APPLICATION OF CUSTOMARY LAW IN NIGERIA: AN APPRAISAL.

3.1       The Repugnancy Test             –                       –                       –                       21

3.2       The Incompatibility Test         –                       –                            22

3.3       The Public Policy Test            –                       –                       –                       23

3.4       A Critique of the Validity Test                       –                       –        24

CHAPTER FOUR:   ATTITUDE OF THE COURTS TOWARDS THE APPLICATION OF CUSTOMARY LAW IN NIGERIA: AN EXAMINATION OF SOME RECENT JUDICIAL AUTHORITIES.

4.1        Isaac Jitte v Dickson Okpulor (2016) 2 NWLR

CHAPTER FIVE: SUMMARY,CONCLUSION AND RECOMMENDATIONS

5.1       Summary         –                      –                       –                       –                       36

5.2       Conclusion      –                       –                       –                       –                       36

5.3       Recommendations                  –                       –                       –                       37

            REFERENCES

 
TABLE OF CASES

CASES                                                                                               PAGE

Ababio v Nsemfoo (1947) 12 WACA 127   –           –           –         –             11   

Adedibu v Adewoyin (1951) 13 NWCA 191       –           –           –           –           17

Adeseye v Taiwo (1956) 1 FSC 84     –          –           –           –           –           –           17

Adesobemi v Yinusa (1971) NWLR 77      –           –           –           –           26

Adesunbokan v Yinusa (1971) ALL WLR 227      –           –           –           23

Adewonyin v Adeyeye (1963) 1 ALL NLR 52     –           –           –           17

Agbai v Okogbue (1991) 7 NWLR p.391  –           –           –           –           3,23, 24

Aku v Nenku (1991) 8 NWLR (pt. 209) p. 280 at 29        –           –           24           Arabe v Asanlu (1980) 5-7 SC 78         –           –           –           –           –           35 Alake v Pratt (1955) 15 WACA 20           –           –           –           –           –           24

Asogbon v Odutan (1935) 12 NLR 7           –           –           –           –           22

Angu v Attah (1921) P C 1874 1928    –        –           –           –           –           –           16

Augustine Nwafor Mojekwu v Theresa Iwuchukwu (2004) NWLR (pt883) 32

Cole v Akinyele (1960) 5 FSC 84      –           –           –           –           –           –           15

Danmole v Dawodu (1958) 3 FSC 46  –           –           –           –           –           22

Edet v Essien (1931) 11 NLR 47      –           –           –           –           22, 25

Effiong Okon Ata (1930) 10 NLR 65         –           –           –           –           –           22

Egba Native Administration v Adeyanju (1936) NLR 77CC –           –           21

Ehigie v Ehigie (1961) 1 ALL NWL 871       –           –           –           –           –           11

Ekpenga v Ozogula (1962) 1 SC NLR 423               –           –           –           16

Eshugbayi v Office Administering the Government of Nigeria(1981) AC 662 Pg. 673           –           –           –           –           –           –           –           26

Esuagbayi Eleko v Government of Nigeria (1931) AC 622 at 677  12       

THE APPLICATION OF CUSTOMARY LAW IN NIGERIA