The Nation Newspaper

Author: The Nation

  • Much ado about VAT increase

    By Eunice Oghogho

    The amount of the tax that a country’s revenue body can collect depends on a fine balancing act: applying bitter drugs with fine coating. The success of any tax will depend on how convinced the citizens on its equity and how salutary the government can make it. For instance, many people never see anything good in paying of taxes.

    Even in far more developed country like America where the institutions are stronger and system of benefits is working, many would still not pay if they can help it. Such disposition flows either from the natural human instinct to game the system or the mindset that the government is evil and can never do anything right even in the face of glaring examples of the positive use of their taxes in NASA, the FAA, and the military.

    Thus, the job of a taxman requires a lot is creativity, tenacity and improvisation. Taxes on citizens and on businesses are usually of various forms. For instance, there is citizenship-based taxation. It is the most draconian form of all and is only used by the African country of Eritrea and the United States.

    Recently, France experienced a wave of fierce national protests as many citizens took to the streets to protest perceived unfair taxes. It resulted in the Giles Jaunes, the Yellow Vest protest movement. The range of slogans in the protests against gasoline-price increases demonstrated the anger directed at taxation.

    In August 2015, President Muhammadu Buhari named Mr. Babatunde Fowler as the acting executive chairman of the Federal Inland Revenue Service (FIRS) to drive his administration’s policy of increasing non-oil export revenue for the country. To achieve results in good time, Fowler first set up a new department called FEETTS (the Federal Engagement Enlightenment Tax Teams) to help drive public enlightenment on the importance of paying tax. They soon began to mount roadshow, speaking to different publics. They also placed adverts in all major languages.

    Fowler never tires to preach that expectation of efficient public services should be contingent on the discharge of civic responsibility of tax payment. His words: “In a situation where majority of the people and corporate organisations were not paying taxes, or not paying the correct amount of tax, then of course it becomes difficult for them to question the government, especially when you have a situation whereby on a monthly basis, based on oil sales, there would be a division of revenue.

    “When you pay tax this year for example, you might not see the impact until after a year. It takes a while for a road to be constructed, a school or hospital to be renovated. As the revenue continues to improve, government would be in the position both at the federal and state level to provide all these services and also put in place the required infrastructure.”

     

    ‘To spend half of ones’ life savings erecting high fences round ones’ own property and paying tons of armed guards for protection is certainly not desirable. Security is better provided and guaranteed by the government. But then, the government can only do this is there is adequate resources’

     

    On the proposed increase in Value Added Tax (VAT), he educated Nigerians in simple terms: “VAT is a consumption tax, meaning that you only pay if you want to consume. What that means is that, for instance, if Mr. A wants to impress Ms. B, and takes Ms. B to eat at the Transcorp Hilton, Mr. A ought to pay for that value, a VAT. This is because of the environment. The cost of the Coca Cola they will drink at Transcorp Hilton at N1,000 could have been bought at N100 in any supermarket without paying any VAT. Mr. A can buy chicken, with all the ingredients in the market, cook it and eat without paying any VAT.

    “But, instead of spending N5,000 for that meal, Mr. A decided to go to the Transcorp Hilton and spend N50,000, then Mr. A should pay VAT to help the nation. It is a choice that Mr. A has to make. The other example is on items that everybody requires. There is no VAT on those. Items like education, medical etc. These are things that, regardless of choice, one is expected to have. But, if one decides to buy a brand new car, one will be expected to pay VAT.

    Read Also: Anxiety over 7.2% VAT increase

     

    “The next question is: what is VAT used for? About 85 percent of VAT goes to state governments and local councils and it helps them towards paying salaries or providing good roads or primary healthcare. If they do not have the funding, either through the pay-as-you-earn (PAYE), personal income tax, or VAT, then they can’t do it. VAT is a personal choice. Nigerians go to Ghana, South Africa, England and pay VAT thrice the amount they pay in Nigeria. Or they go to Dubai and pay the same amount collected in Nigeria. The question is: Why are people making so much fuss about VAT when in reality VAT is subject to choice for those who can afford it?”

    Taxes create a society that is actually nice to live in. In Norway, the professor’s children and the children of the person cleaning his office attend the same school. The country’s tax system has created this equality. A fairly typical upper-middle-class Norwegian family pays about 30% in income tax. On top of that, they pay VAT ranging from 0% to 25% on most of the products and services purchased. While this ordinarily would appear excessive, but a look at what the citizens get for their high taxes changes the picture.

    For every new child, a couple receives over a year of parental leave, and are paid at 80% normal salary; education at all levels up to universities and Masters is tuition free, no need to save a cent for university education. Childcare is subsidized and is of high-quality. Heavily subsidized kindergarten/daycare for kids from 1-6 years has enabled both parents to work, and also gives single parents the possibility to pursue a career.

    There is universal healthcare-coverage for everyone as this is included in taxes paid as there is no such thing as separate healthcare-insurance that you need to purchase and pay for. If any of one’s kids falls ill and a parent needs to skip work to be at home and take care of him or her, they can do this and still get full salary.

    If one of the parents fall ill, he/she can stay at home at full salary; no doctors confirmation of illness is needed for shorter illnesses up to three working-days; while if sick for longer you need to have a doctor confirm it. Meaning case you can be at home ill and get full salary for up to 12 months! Retirement-insurance, unemployment-insurance, disability-insurance and so on are also included in taxes.

    At some point, Norway’s wealthy business magnate, John Fredriksen, decided to emigrate from the country. The general reaction to this was indifference or “Don’t let the door hit you on the way out”, as Norway’s economic structure does not depend on a small number of very rich employers and investors. All of the populace are involved through their own taxes. How much you pay in taxes is a matter of public record in Norway. The Tax Directorate has a database open to the public where a citizen can check how much another citizen pays in taxes.

    Back home, perhaps people will be more willing to pay high taxes when made to understand that the services that the government finances with their taxes benefit them in the long run. They know that healthcare leads to a more productive population. They know that education realizes the full potential of their population and creates tremendous amounts of wealth that otherwise would have been lost. They know that everybody benefits from better government services and infrastructure.

    To spend half of ones’ life savings erecting high fences round ones’ own property and paying tons of armed guards for protection is certainly not desirable. Security is better provided and guaranteed by the government. But then, the government can only do this is there is adequate resources.

    Fowler is right. In the final analysis, it is more cost-effective to pay our taxes and empower the government to deliver infrastructure and provide service than the citizens undertaking such in their individual capacity.

     

    • Ms. Oghogho is a researcher based in Benin. 

  • Road; Language; Plastic; Bill

    Don’t laugh. Six hours is a lot. It is a diabolical professional ‘engineering and political will’ disgrace of inhuman dimensions dangerously disrupting the daily duties and lives of many millions of citizens, families, businesses and casual travellers -an economic disaster. It makes rubbish of any tourist agenda. It is true that it took six hours on Sunday November 10, Ibadan to Lagos on the former and now desperately dysfunctional defunct on the 120km Lagos-Ibadan Expressway. Still not fit for purpose and postponed till 2020. In that time, the plane passing us in stuck traffic had arrived in London-4000+km. We only wanted to go 120km.

    When it was built in the mid-70s, we travelled the Lagos-Ibadan Expressway, when it was an ‘expressway’, in 45 minutes sometimes two or three times a day. Then the potholes came from overweight trailers and poor and no maintenance.  Yes,  we can blame the collapse of the L-I-E on ‘permanent  maintenance failures’ by civil servants and their political and military handlers and the nonsense called ‘tolling’ which was ‘extortion/stealing in disguise’ from travellers money and also overweight, above axle capacity articulated trailers and a 50-year deliberate northern power block rejection of railways. Add to this the apparently inhuman, certainly callous and of course the Eighth National Assembly (NASS-8) which refused to release an allocated N150billion in 2018 Works budget for completion. If allocated for 2018, this N150billion would have saved every one of the over one million suffering citizens- on the road sometimes two to six hours of their lives/day wasted throughout 2019. Instead the NASS-8 diverted the N150b to constitution projects. EFCC is making some of NASS-8 members sweat as they ‘account’ for the money. But we have lost forever, those wasted millions of hours in 2018 and now millions of hours every single day x 365 days of 2019. Amazingly the last three months were not enough to finish the job and so the road, a common 120km road is to be finished in 2020 -perhaps????

     

    There are many new areas of study opportunity if only universities open their eyes on behalf of the students to fulfill the projected needs of the nation. Set up departments of drone development, robotics, artificial intelligence, virtual reality, plant chemistry and pharmacology, renewable energy studies in partnership with foreign universities and corporate body support

     

    The word ‘maintenance’ should be compulsorily introduced into our government contracts and lexicon. And government officials and political parties must ‘hands off gratification from contracts’ believed to be 30-70% of the contract sum.  Now the Minister of Works tells us the roads are ‘Not as bad as road users claim’. He should sit for six hours on the Lagos-Ibadan Expressway. ‘Mr President -Give Us Our Road Back’.

    University Foreign Language: Yes, universities mean universal education opportunity and acquisition. But how can a university make foreign languages compulsory for all its courses i.e. every student must learn a foreign language?  Is that really the next great thing for university students in Nigeria -another unnecessary burden – being forced to study a language they mostly do not want or need? Presumably university students already have at least one foreign language, English, which is the language of communication. Certainly create new and refreshingly different courses in railway engineering with Chinese support but remember that technology is not the preserve of China alone and many English-speaking countries in the developed world also run high speed railways. If I were a vice chancellor or chairman of council, I would recognize that certainly our university Department of ‘Future Research and Development’ needs to Google and study the 1000 different and overlapping courses and curriculum available in the top 100-150 universities and polytechnics worldwide and synthesise them into some new courses that can be offered locally, with help from abroad if necessary- and preferably in English. It is a pity that too many students in Nigeria are trapped, even before any clear thought, into studying the same old courses and course content.

     

    Read Also: Fashola to appear before Reps over state of Nigerian roads

     

    How many of Nigeria’s over 120 universities themselves ‘Study the courses and curriculum content of the top 50 universities worldwide’? A comparison with local universities will surely enrich their own courses and content. There are many new areas of study opportunity if only universities open their eyes on behalf of the students to fulfill the projected needs of the nation. Set up departments of drone development, robotics, artificial intelligence, virtual reality, plant chemistry and pharmacology, renewable energy studies in partnership with foreign universities and corporate body support. To this end Dangote, NNPC, Glo, Zenith and other top players in the stock exchange must look beyond their ETF and TEF contribution to tertiary education. They should take lessons from their counterpart corporate bodies abroad who invest in and request universities to develop strategies to investigate and solve problems encountered in their business, service and manufacturing environment. This they can do by sponsoring conferences but, much better, by actually providing grants international cutting-edge high technology science equipment to get cutting edge research done in the core areas of growth.

    Ban Plastic bags etc.: Nasarawa has established a ‘Solid Waste Management Plant’ targeted at reducing ‘plastic and polythene material’ pollution to make the state clean and reduce floods. All state governments should take note and implement similar projects before plastic strangles Nigeria. When will Nigeria ban plastic already banned in 10 African countries?

    The ‘Amended Deep Offshore Act’ or Bill signed by vacationing president in UK: Will Nigeria really get $1.5b per annum instead of the current $250m? Who will pay for governments which ignored this revenue until the president was in the winter UK environment? Government staff must be made more accountable and prosecutable for the consequences of their actions and inactions.

  • David-West: Nigeria lost a great soul

    Dr. Dakuku Peterside, Lagos. 

     

    SIR: The death of renowned virologist and social critic, Professor Tamunoemi David-West, is a huge loss to Nigeria and humanity.

    Professor David-West was such a colossus, who contributed immensely to the growth and development of Nigeria.

    Our dear Professor David-West was such a giant in academics, administration, education, public discourse, and an excellent statesman.

    For all of his 83 years on earth, he fought for a better society through his intellect, resources, connection, and sweat. He spoke boldly to power and stood by his conviction,” he stressed.

    The support the late David-West offered me during his 2015 gubernatorial campaign in Rivers State, and his words of wisdom proved very relevant.

    Read aLSO: Wike: Rivers’ll continue to invest in infrastructure

     

    Rivers State has lost one of her illustrious sons, who brought glory and honour to the state through appointments, service, and research.

    As Commissioner for Education in Rivers State, the late David-West contributed immensely to building of schools in several communities, in addition to Rivers indigenes getting scholarship to go to school.

    He was a forthright man, his words were his bond. Once he believes in a cause, he stays by it, he never wavered. He was such a principled man that could not be swayed by riches or money.

    His legacies are sufficient demonstration of how he impacted on humanity. He helped produce generations of leaders at the University of Ibadan, where he taught for several years until he retired.

    Despite his age, he continued to add his voice to progressive causes and contributed immensely to the victory of President Muhammad Buhari in 2015 and 2019.

     

     

  • Ikeja Electric’s unlawful disconnection of Ifesowapo

    Ogundeji Ayobami, Lagos

     

    Sir: We the residents of eleven Community Development Associations (CDAs) group three under Temidire Olomowewe Gasoline in Ifo Local Government Area of Ogun State are calling on the minister of power, Presidency, Inspector General of police, Ogun state Governor, Managing Director, Ikeja Electric and eminent citizens of this great country to please come to our aids as the officials of Ikeja Electric under Adiyan /Opeilu undertaking subjected millions of innocent Nigeria citizens into total black out since Thursday,7th November,2019 claiming that huge of amount of debt is on the transformer.

    These questions need to be answered by IE. What happens to those using pre-paid meter from this same disconnected transformer? What about those that received bills and faithfully paid to the organisation, what is their faith?

    However, our constitutional rights and the right of consumers have been violated by Ikeja Electric officials.

    Read Also: IKEDC’s impunity on Layiode residents

     

    We believe as a corporate organisation, there should be a corporate measure to deal with the defaulters rather than punishing the innocent citizens. This is action is barbaric and very uncivilised in the 21st century to the ears. All economic activities of our community have been paralysed. This war Ikeja Electric is waging with us is as worst as xenophobia in South Africa.

    The most painful things is that we acquired this transformer, poles, cables and did the networking through community efforts without any impact from the government and Ikeja Electric.

    We therefore, urged the government to give order for immediate restoration of our transformer, arrest and prosecute the culprits. Also, we demand an apology and compensation from Ikeja Electric.

    On the final note, we still remain law abiding citizens, we would rather seek our constitutional rights through legal means rather than violence

  • Import medical equipment, not foreign doctors

    Dr Paul John, Port Harcourt

    Sir: I recently came across the blazing headline – ‘’Nigeria to import doctors from Europe, United States” in one of our major newspapers attributed to Health Minister Osagie Ehanire. What we currently have is export of Nigerian doctors to Europe through (IELTS, OET and PLAB) and to the United states (through USMLE). It may also interest our minister of health to know that we are also exporting our medical doctors through Prometric examinations to Oman and other Asian countries.

    The first question to ask is which hospital in Nigeria will the expatriate doctors work? Is it Aso Rock clinic which our outspoken first lady once told Nigerians, in 2017, had no syringes let alone an X-ray machine? Or our tertiary hospitals that cannot boast of 24 hours of power supply daily?

    How many times has the minister paid an unscheduled visit to our tertiary hospitals after 2pm during week days to ascertain the states of laboratory and radiological investigations? I need not talk of what happens there during the weekends.

    And who will provide security for the expatriate doctors?  Maybe the minister has not heard that a doctor on call in one of the tertiary hospitals was once kidnapped right inside the hospital.  Her colleagues continued work the next day. Thank God she was later released and as usual, her family opted to remain silent on whether ransom was paid or not.

    And how much will the expatriate doctors will be paid? Is it the so-called CONMESS (Consolidated Medical Salary Scheme) which does not reflect the current socioeconomic realities?

    The minister needs to inform Nigerians how many radiotherapy machines that are working in this country before importing his expatriate doctors. If one does not have a cancer patient, one will not know what cancer patients are suffering in this country. Imagine a cancer patient travelling all the way from Cross River state to Ibadan for radiotherapy and after surviving deaths on our death-traps called federal highways, the cancer patient would be told that the machine was faulty hence he has to wait for the repair or move to Zaria or National Hospital Abuja for another marathon race.

    Read Also: ‘How to achieve better healthcare’

     

    No wonder a foreign journalist once described Nigerians as people that import what they have and export what they do not have.

    What our health sector needs is a complete overhaul and restructuring. Where is the motivation for the young doctors in Nigeria? Is the minister aware that most young doctors after university stay at home for close to two years before securing a place to do the mandatory one year internship (housemanship) programme? Is he aware that there are Nigerian doctors with primary results but cannot secure a place for residency programme?

    May be he is not aware that some chief medical doctors of our tertiary hospitals are now using medical officers  to replace resident doctors, a development Nigerians will soon pay dearly for when it will be mandatory for every patient needing specialist care to travel  abroad to meet medical specialists . What happened to the much-touted central placement of house officers proposed and approved by his predecessor or has that been jettisoned as usual?

    I hope our minister will ask the expatriate doctors to come with their medical equipment because it is not exaggeration to say that some of the X-ray machines we have in the country are what Wilhelm Conrad Röntgen, a German mechanical engineer and physicist, used on 8 November 1895 to discover X-rays or Röntgen rays.

    How many tertiary hospitals in this country can boast of functional  diagnostic machines like MRI, CT, PET scan machines just to mention but a few? Will the expatriate doctors agree to work with our current doctor-patient ratio and be expected to perform optimally? Which foreign medical doctor will be ready to consult for more than 100 patients during an outpatient clinic day and will not run back to his country the next day because that is crazy and unimaginable?

    Instead of importing doctors into the country, the government should sponsor our healthcare professionals abroad to learn certain procedures and how to operate certain medical equipment. What percentage of Nigeria’s budget should be appropriated to our health sector according to our National Health Act? Has that percentage been implemented in this country? Even at that there is no effective mechanism to check the diversion of the paltry sum released into these hospitals into private pockets.

    Let the minister look into the health sector holistically instead of playing to the gallery. There is a limit to politicking, and human lives should not be used to score political points.

     

  • Citiview residents decry Propertymart’s nonchalance

    Lai Asade, Lagos.

     

    SIR: Since the flooding of our estate, Citiview Estate built and managed by Propertymart Real Estate Investment Limited, the company has been nonchalant towards our plight.

    The estate was flooded following the rains and opening of two dams in Ogun state which left it partially submerged with residents finding it difficult to access their homes.

    Sandbags erected through communal effort were forcibly removed prompting the residents to embark on a peaceful protest to Propertymart’s Magodo office on Wednesday November 6, 2019 to call attention to the horrible condition in the estate which had received scant attention from management of Propertymart.

    The flooded estate is posing health challenges to residents. The estate is stinking on account of rodents and fishes which have died in the stagnant water as well as human waste which has contaminated the water.

    Propertymart’s management has failed to take any remedial action despite persistent calls by long suffering residents who have been at the mercy of the flood. The road leading to the estate had failed leaving residents stuck inside or outside until emergency action was taken to staunch the flood with sand bags purchased by the communal effort of residents.

    We, the aggrieved residents, also took opportunity of the protest organised under the aegis of Citiview Residents’ Association to convey other grievances that included non-provision of title documents, delays in repair of failed roads within the estate as well as the broken perimeter fencing that is leaving residents vulnerable to attacks by bandits and marauders.

    Read Also: Anambra flood victims seek govt help

     

    Propertymart represented by its managing Director, Deji Fasunwon granted a television interview in the evening following the protest during which claimed that residents had been given their title documents while alluding that water did not get into ground floor apartments. His assertions have been condemned by residents as insensitive and disingenuous. He needs to show evidence of his claim.

    Our estate has been flooded for weeks. The flood was so high people were swimming in it and many animals were killed including a deer and dogs. This happened after the dams were opened in Ogun State

    Propertymart, which built and manages the estate, has refused to do anything. the estate is stinking. We cannot go inside because gate is flooded. We had a peaceful protest on wed and they promised to do something but until now nothing has been done instead they brought men of the Department of State Services (DSS) to harass us for asking them to perform their responsibility.

  • ‘CHIP WHIP’?

    How could the Federal Road Safety Corps (FRSC) have made the grievous mistake of spelling ‘Chip Whip’, displayed on the vehicle number plate of what was initially thought to be the official vehicle of the Kano State Chief Whip? This must have been the question agitating the minds of any literate person who saw the number plate on the vehicle, at least until the FRSC issued a disclaimer that the number plate did not emanate from it. Trust the ubiquitous social media, today’s equivalent of the proverbial tortoise whose imprimatur is seen virtually on everything, especially the bad or evil. Pictures of the number plate which trended on the social platforms attracted criticisms and caustic comments over the spelling error.

    Although it is generally believed that only God is infallible, but then, there are some errors that are unpardonable. This was one such unpardonable error. The FRSC is supposed to be an elite corps, so to say. Its founding father, Prof Wole Soyinka, is a Nobel laureate, his successors, including Olu Agunloye, as well as the incumbent corps marshal, Dr Oyeyemi Boboye, are well educated. It is therefore expected that such an organisation would not joke with quality control, especially with a sensitive item like number plates.

     

    ‘The Kano discovery is worrisome in that we do not know how many such number plates are on the streets. The police and other security and traffic agencies should apprehend others using such number plates with a view to interrogating them for the source of the number plates’

     

    This is why it was a big relief when the corps disowned the now controversial number plate. FRSC spokesman, Bisi Kazeem, calmed frayed nerves when he explained that the FRSC could not have made such an error because it has a rigorous quality assurance procedure in producing and issuing licences.

    The corps said in a statement: “For the avoidance of doubt, FRSC with its international quality management certification (ISO 9001: 2008) has rigorous quality procedures for producing and issuing any of its security documents which makes the possibility of such obvious grammatical errors on any of its licences an impossibility.

    “We are, therefore, making it abundantly clear to members of the public that FRSC as the lead agency in road traffic management and safety administration in the country has nothing to do with the said number plate as some people are insinuating on some social media platforms.”

    Read Also: We didn’t issue Kano ‘Chip Whip’ number plate- FRSC

    Explanation taken.

    But, beyond this is the more serious question of where then the said number plate originated from? Who issued it? The FRSC has to get to the root of the matter, especially as the Chief Whip of Kano State House of Assembly, Ayuba Durum, hitherto thought to own the vehicle with the customised number has also dissociated himself from it. “I was baffled by a torrent of messages drawing my attention to a gaffe on a number plate purported to be mine. To set the records straight, members of the Kano State House of Assembly are yet to be assigned any official vehicles. I use my private vehicle with a regular not customised number plate. My vehicle registration number is Gaya, Kano, and whoever knows me can verify this,” he said. To show the extent of his embarrassment, Mr Durum said he had instructed his lawyers to investigate the matter and take appropriate legal action.

    Obviously the owner of the vehicle has been using the number plate to impersonate the state chief whip, even if he was only clever by half. While there is nothing unusual about certain public officials having customised number plates, there is everything unusual in making it possible for just anyone to produce any number plate of his or her fancy. Number plates have security implications. They facilitate identification of vehicle ownership as well as criminals when crimes are committed with such vehicles.

    The Kano discovery is worrisome in that we do not know how many such number plates are on the streets. The police and other security and traffic agencies should apprehend others using such number plates with a view to interrogating them for the source of the number plates. In addition, such security agencies must insist on searching these vehicles bearing our VIPs because that is the only way to nip this sort of practice in the bud. Those who are doing this would continue to do so for as long as the security agencies and traffic officials on the roads allow such vehicles easy passage without subjecting them to routine searches like other vehicles.

    Meanwhile, whoever owns the vehicle with the fake number plate must be fished out and prosecuted.

  • Interim farce

    An illegality is brewing in the Niger Delta Development Commission (NDDC), and at the centre of it is the minister who has been charged to superintend it. After setting up an interim management to oversee the commission without the backing of any law, the Niger Delta minister, Godswill Akpabio, has not relented in spite of the senate confirmation of the new board.

    The Senate President, Ahmed Lawan, warned that the interim contraption should vacate the Port Harcourt-based commission, and allow the new board under the chairmanship of Pius Odubu and the managing directorship of Bernard Okumagba to take charge according to law.

    But up to the time of writing, the minister and the interim arrangement have defied the senate and allowed impunity override any commitment to the rule of law and even decency. How this is allowed to continue under the Buhari administration has baffled many in the region.

    The reason advanced by the minister and his supporters is that the interim management ought to continue for the next half-year in order for the forensic audit that the president ordered to work like clockwork. They contend that they will be impartial and efficient.

    It is obvious that the minister is hijacking the law. This is worsened by the high-handed way he has started as the minister of the region. He has not answered critical questions concerning actions he has undertaken since he started his stewardship. First, the scandal of the contract award of N1.9 billion for water hyacinth in the region remains unanswered. The news report that 400 contracts were awarded, and the bulk of them involved his cronies in his state has engendered rage among militants. The minister is yet to explain in public why he undertook those actions and has not cancelled them.

    This was perhaps why he quickly withdrew a list of about 300 new staff recruits of similar questionable balancing in the region.

    Again, if the minister’s point is that the management would be partial, a management set up by him does not guarantee  impartiality. He was a governor in the region for eight years and regularly appointed his home state, Akwa Ibom, representatives for appointment on the board in the course of his reign.

    Read Also: Cleaning NDDC Augean stables

     

    The forensic audit, as some of his critics have asserted, would affect those persons and their contracts. So, appointing the management is tantamount to investigating himself. He is a partial member of the activity. As lawyers say, no one is permitted to be a judge in their own cause.

    In fact, the investigation of the water hyacinth contract could not be done with his own board in charge because fairness cannot be guaranteed. The water hyacinth contract is a very serious matter. At a time of dwindling revenues and massive corruption in every facet of national life, N1.9 billion would go a long way in alleviating the pains of the region, especially in infrastructure, education and agriculture.

    It is not clear why the minister would act outside the ambit of the law and still appear to be beating his chest in a democracy. This drama brings into relief the continuing problem running the NDDC. The president’s decision to place it under the Niger Delta minister was designed to simplify administration. Rather, it has added a new twist to a commission that has been accused of not abiding by its high purpose to restore and develop the region that lays the golden egg but has nowhere to roost. Now, calls are in high notes asking for the commission to return to the supervision of the presidency.

    The minister should abide by the law and the president should restrain his minister and let the law play out its course.

     

    ‘But up to the time of writing, the minister and the interim arrangement have defied the senate and allowed impunity override any commitment to the rule of law and even decency. How this is allowed to continue under the Buhari administration has baffled many in the region’

  • Triangular Employment: A misunderstood concept

    In this piece, Oseinoma Okpeku examines how a trademark falls into genericide i.e. the process by which a trademark owner loses its rights of exclusivity to use of the trademark by reason of it having lost its distinctiveness. He also proposes guidelines that may be observed by trademark owners to stem a slide into genericide.

     

    Background

    There is no doubt that the National Industrial Court Act of 2006 and the Third Alteration of the Constitution 2010 (“Third Alteration”), which elevated the National Industrial Court (“NIC”) to a Court of superior record has to a very large extent altered the Employment Law and Industrial Relations jurisprudence in Nigeria.

    Specifically, S254 (C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”) clearly empowers the NIC to apply conventions and treaties in relation to employment law that Nigeria has ratified but not yet domesticated. The Third Alteration also gave express jurisdiction to the NIC in relation to, connected with or pertaining to the application or interpretation of international Labour standards.

    In addition, The NIC Act provides that the NIC in exercising its jurisdiction on any powers conferred on it shall have regard to good and international best practices in labour and what constitutes international best practice is a matter of fact.

    The combined effect of these two pieces of legislation is that the NIC in deciding labour matters can now apply ratified conventions relating to labour. In the event that such relevant conventions have not been ratified by Nigeria, the NIC can equally apply them as international best practice if pleaded. This position is also codified in Order 14A of the NIC (Civil Procedure) Rules, 2017.

    Based on the above, the NIC has in recent times applied the following conventions i.e. convention 158 (termination), convention 111 (discrimination) convention 181 (private employment agencies) either as ratified Conventions or as international best practices.

    As a result of such applications by the NIC, hitherto unknown concepts have now found their way into our employment law jurisprudence and one of such concepts is Triangular Employment.

     

    What is triangular employment?

    Perhaps by far the most miss-understood concept in employment law in Nigeria today is the concept of triangular employment.

    Triangular employment in its simple form is the employment relationship between three parties i.e. employer, employee and an end-user as opposed to the traditional employment relationship between two parties i.e. the employer and the employee.

    Typically, the triangular employment relationship will involve an employer who takes on an employee, who is then in turn seconded to an end –user, most times as an outsourced or contract staff. This triangle of employment relationship between the parties is what is then referred to as a triangular employment relationship.

    The major misconception around this concept is based on the thinking that a finding of triangular employment means that there is automatically a direct employment relationship between the outsourced employee and an end user meaning therefore that triangular employment is itself wrong.

    It would appear that this misconception is not only peculiar to Nigeria because the International Labour Organisation (ILO) in 2003 in a Report titled the “Scope of Employment Relationships”, made at the International Labour Conference, 91st Session, 2003, Disguised, Objectively Ambiguous and Triangular employment relationships were succinctly explained.

     

    ‘A disguised employment relationship is one which is lent an appearance that is different from the underlying reality, with the intention of nullifying or attenuating the protection afforded by the law’

     

    According to the ILO report, an employment relationship normally involves two parties: the employer and the employee. There are, however, more complex situations in which one or more third parties are involved, in what might be termed a “triangular” employment relationship. A Triangular employment relationship occurs when employees of an enterprise (the “provider”) perform work for a third party (the “user enterprise”) to whom their employer provides labour or services. Outsourcing arrangement is therefore a typical example of a triangular employment relationship, which in itself does not make the end-user and the Consultant co-employers.

    What has fueled this misconception in Nigeria is the fact that in instances where the NIC has reached a conclusion that an employment relationship is a one of co-employer, direct employer or disguised employer relationship, most, if not all of them stem from a triangular employment relationship.

    In reality, the triangular employment is legal and acceptable. However, in managing the triangular relationship, it may then become the case that the end user enterprise has over time taken positive steps reserved for the provider or employer. In such a scenario, the Courts will hold that the triangular employment has evolved to a direct employment between the worker and the end user.

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    Also the NIC may come to the conclusion that the triangular relationship is actually a disguised employment. A disguised employment relationship “is one which is lent an appearance that is different from the underlying reality, with the intention of nullifying or attenuating the protection afforded by the law. It is thus an attempt to conceal or distort the employment relationship, either by cloaking it in another legal guise or by giving it another form in which the worker enjoys less protection. Disguised employment relationships may also involve masking the identity of the employer, when the person designated as an employer is an intermediary, with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers.

    As stated earlier, for a court to reach the conclusion that a triangular employment has evolved into a direct employment relationship, the end user must have been taking some positive actions like paying the employees directly, managing the disciplinary process of the employee, training, termination etc. An end user taking positive action that ordinarily should be the preserve of an employer was the basis for the Court’s decision in Diamond Bank Plc. v. National Union of Banks, Insurance and Financial Institutions Employees (NUBIFIE) Suit No. NICN/ABJ/130/2013 decided on 6th February, 2019, wherein the NIC held that the outsourced employees were actually the direct employees of the defunct Diamond Bank Plc.

    The point must be made here that the NIC did not reach its decision because of the triangular relationship in itself, but because that triangular employment relationship based on the positive actions of Diamond Bank has over time evolved into a direct employment relationship based on the principle of primacy of facts.

    On the other hand, in Petroleum and Natural Gas Senior Staff Association (PENGASSAN) v. Mobil Producing Nigeria Unlimited Suit No: NIC/LA/47/2010 delivered on 21 March 2012, the NIC held that there was no direct employment relationship. In this case the Appellant had appealed against the decision of the Industrial Arbitration Panel that there is no employment relationship between the Appellant and Respondent. The decision had been premised on the fact the respondent engaged independent companies (contractors) or MPS, under which category the appellant’s employers fell, to provide various services in the course of normal business. As such, there was no privity of contract between the Appellant and the Respondent. The NIC held that there was a triangular employment relationship amongst the Appellant, the Respondent and the independent contractor. The Court further held that the International Labour Organisation (“ILO”) does not brand as invalid or unlawful or as wrong the triangular employment relationship; neither had it even branded the practice of outsourcing or contracting out as an unfair labour practice as the Appellant made it out in some of its communications with the Ministry of Labour regarding this matter. All the ILO enjoins is that the respective laws of member States on the issue should be respected and applied. Thus, the Court found that there was no material placed before it to come to the conclusion that the Appellant was an employee of the Respondent. The Court therefore dismissed the Appeal on this basis.

    The suit affirms the principle of outsourcing if correctly applied as opposed to a situation where the same is used to mask an employment relationship which further drives home the point that a triangular employment relationship does not necessarily create a co-employment or a direct employment relationship.

     

    Conclusion

    The concept of triangular employment is misunderstood in Nigeria purely because of the wrong implementation of outsourcing agreements.

    We make the point again that outsourcing is legal and so is triangular employment. However, in implementing the outsourcing agreement, employers must adopt the arm’s length approach in dealing with the outsourced employees. The end-user must refrain from taking positive actions with regard to the outsourced employees. Such actions include but are not limited to   determining the terms and conditions of employment of the outsourced staff, disciplining of the outsourced staff or termination of the outsourced employees.

    A practical approach is to limit the tenure of outsourced employees to two years because the longer they stay, the more difficult it is for the end-user to draw a distinction or apply the arm’s length principle.

    In reality therefore, it is possible to have a triangular employment relationship which does not evolve into a direct employment relationship, co-employer relationship or is not a disguised employment relationship.

     

    • Okpeku is a Partner and heads the Immigration and Employment Law practice team at The Law Crest LLP

  • FIDA ends Law Week in Ogun

    By John Austin Unachukwu

     

    The International Federation of Women Lawyers (FIDA), Ogun State branch, has  concluded the events marking her Law Week.

    The week started with an awareness walk along the major streets in Abeokuta, the state capital.

    This was followed by a Charity visit to Asero Remand Home and BOSTRAL Home, Adigbe, in Abeokuta.

    The grand finale was a symposium for  secondary school students at Lisabi Grammar School, Abeokuta, where  over 200 students and 20 teachers were present

    The theme for the law week was: “The female gender and the quest for balance.”

    The chairperson of the chapter, Mrs. Kemi Osisanya, thanked members and audience for gracing the event.

    She said FIDA was ready to fight for the rights of vulnerable groups, especially women and children.

    Osisanya urged participants to avoid vices and practices, which do not promote good citizenship and human dignity.

    The Assistant Director, Civil Litigations, Ogun State Ministry of Justice,  Mrs. Oluwakemi Lawal, who represented the Solicitor-General and Permanent Secretary, Ministry of Justice Ogun State, Mrs.Yetunde Oresanya, urged the students to do their best as good ambassadors of their families and make the female gender proud.

    She urged them to shun social vices but to work hard to attain greater heights in life.

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    Another speaker and Lecturer at Faculty of Law, Olabisi Onabanjo University, Ago Iwoye  Mrs. A. K. A. Kolawole, advised the students to cherish good ideals that uplift the society and dignity of the human person.

    Students wrote out questions which were all discussed together.

    In the end, the students agreed to change their negative perspectives about the female gender, to speak out against such evil vices and say no to vices militating against them.

    The programme was attended by dignitaries from the state and beyond, including the Zonal Education Officer, Abeokuta South Local Government.

    Mrs. Oresanya, who appreciated FIDA for the programme, advised that the the programme be replicated in other state branches, namely Ijebu-Ode, Sagamu, Ilaro and Ota in the furure.