TRADEMARK AND ITS IMPORTANCE TO BUSINESSES (ESPECIALLY STARTUPS) IN NIGERIA

Trademark is one of the most important intangible assets of any business, it permits uniqueness in branding, and also distinguishes businesses from one another. The need to differentiate businesses especially those with similar nature, from time immemorial triggered the emergence of trademark and continues to prompt its evolution.

Trademark is simply any unique and recognizable symbol or sign that differentiates and identifies the products or services of a particular business from another. Trademark can be owned by any legal entity, that is, natural person or a corporate person duly registered under the law. An entity’s trademark can be on their product, label, package, voucher, etc.

Trademark, as a major identification for any brand can be used by others under licensing agreements and any unauthorized usage of such trademark by any other business will amount to brand piracy.

Upon infringement, the registered owner of a trademark can bring a legal action against the infringer. What this means is that an action cannot be brought for the enforcement any right pertaining to an unregistered trademark in Nigeria.

Pursuant to Section 3 of the Trademark Act, “No person shall be entitled to institute any proceeding to prevent, or to recover damages for the infringement of an unregistered trademark; but nothing in this Act shall be taken to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof.” The only remedy available to an unregistered trademark in Nigeria is the common law remedy of passing off which however comes with its risks and uncertainties.

Position of unregistered trademarks

The smooth use of an unregistered trademark can be possible where such trademark has been in long and popular use by the entity in question before being registered by another entity. This was given judicial credence to in the case of American Cyanamid Co. v. Vitality Pharmaceuticals Ltd. 34 NIPJD [SC 1991] 12/1989.

It is however always better to register a trademark regardless of how big or small a brand is because an unregistered trademark owner will have to rely on goodwill and popularity, which are often unreliable, to protect his trademark in case of infringement. When a trademark is duly registered burden of proof becomes easier in litigation, enforcement of rights becomes easier, legal remedies available will be easily accessible.

Considering the case of a Nigerian comedian, Chukwuemeka Emmanuel Ejekwu, popularly known as Mr Funny or Oga Sabinus, who threatened to institute a N1 billion suit against Friesland Foods for using his trademark ‘something hooge’, after the company used the phrase ‘something hooge’ to advertise Peak Milk. He also threatened to sue UAC Foods to the tune of N100 million for the use of his animated image in an advert for the Gala sausage roll.

Sabinus has however been unable to proceed with his threats. We believe the major reason for his inability to institute these suits is that it was revealed that he never trademarked his image and slang ‘Something hooge’, he therefore cannot sustain a suit against these companies. Whether he and these companies were able to reach any form of agreement is however not to public knowledge.

A business that has a trademark is put in a better and legal position when it has a registered trademark. The business enjoys monopoly of use, and such a business has the right to prevent others from using an identical or confusingly similar trademark for the same goods or services or description of goods or services.

Some big brands tend to ignore the trademark of their business because they erroneously believe their established trade names would cover for other unregistered marks which is very dangerous. As an intelligent startup brand, having a trademark strategy is an invaluable asset, which must include duly registering all trademarks to avoid future loss of revenue and confusion for customers.

Mode of registration

In Nigeria, registration of trademark is done at the Trademarks, Patents and Designs Registry of the Federal Ministry of Industry. Registration should be carried out by an appropriate agent to avoid costly errors. Trademark once registered is valid for an initial period of 7 years, after which the registration becomes subject to subsequent renewal every 14years.
The process for registering a trademark in Nigeria includes:

1. Availability search: Your agent must conduct an availability search at the registry to ascertain whether the intended trademark is still available. When such agent ascertains that the intended trademark has not been registered by any existing business, then the agent can go ahead to register.
2. Application & Acknowledgement: Your agent at this stage is to fill an application form detailing the personal information of the owner of the trademark, the name, and specimen of logo or mark intended to be registered. Upon payment of required fees, acknowledgement of the application is granted.
3. Acceptance: The registry thereafter goes through the application and confirms that the intended mark or logo is not in conflict with any marks and logos previously registered, and that said mark is registrable. This constitutes acceptance of the trademark.
4. Publication of the trademark: At this stage, the registry publishes the accepted trademark in her trademark’s journal so that anyone that has objection to it can file same in a period of 2 months with the registry.
5. Certification: Upon publication, if it is the case that there was no objection to the accepted trademark, or where there was an objection, but it was overruled, the applicant will be issued a Certificate of registration by the registry. If however there was an objection that was sustained, the application will be rejected.

Conclusion

In Nigeria, the extent to which a trademark is protected is tantamount to its registration. Although, unregistered trademarks that have been in long use may have some form of protection; but they are usually unable to enforce that they have a right of action and if allowed to institute an action in court, remedy is often inadequate or null in cases of infringement.
Hence, it is of utmost important to have your trademark registered.
To speak to a lawyer about registering your trademark, please click HERE.

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COPYRIGHT LAW IN NIGERIA AND THE CREATIVE

Intellectual property (IP) is the area of law that borders on the protection of the intellectual assets of individuals. IP law consists of the following: copyright, trademark, patent, and industrial design.

In this article, we would be discussing what copyright is all about with a focus on the meaning and nature of the Copyright Act, conditions to fulfil for your work to enjoy copyright protection and other relevant information. The fruit of the intellect of the creative must be protected, and as noted by the court in Oladipo Yemitan v The Daily Times Nigeria [1980] F.H.C.R. 186 at 190, the right of a man to that which he had originally made, must be protected.

Meaning of Copyright

The Black’s Law Dictionary defines copyright as a proprietary right in an original work of authorship (such as literary, musical, artistic etc.) fixed in any tangible medium of expression, giving the holder the exclusive right to display, distribute, adapt, perform, and reproduce the work. It would mean then that a person has infringed on another’s copyright if he uses, copies, or distributes the copyrighted work without the authorization of the owner. The law that governs the administration of copyright in Nigeria is the Copyright Act and on their other hand, the Nigerian Copyright Commission (NCC) regulates and supervises copyrights in Nigeria.

It is a known fact that every country needs the creative ideas of its citizens to develop and grow. However, to avoid manipulation, unauthorized distribution and piracy, these ideas and works must be protected yet made accessible to the society. As emphasized in Article 27 of the Universal Declaration of Human Rights 1948, everyone has a right to the protection of the moral and material interests resulting from scientific, literary or artistic production of which he is the author. Every person has the right to freely take part in the cultural life of the community, enjoy the arts and share in scientific advancement and its benefits. See S. 16 International Covenant on Economic, Social and Cultural Rights 1966. Hence, the law of copyright places a thin line between the protection of the fruits of a person’s intellect and the society’s benefits and access to these works.

Let’s give a vivid and relatable explanation of what the law of copyright is about. Recall the incidence that happened between Poco Lee and Portable where the former was only featured in the Zazu song and he went ahead to upload the song on Audiomack under his name (Poco Lee) thus claiming ownership of the song. This action of Poco Lee infringes the copyright of Portable who is the real owner of the song and if Portable decides to institute an action in court against Poco Lee, the court may award damages to Portable and give an order of injunction against Poco Lee refraining him from claiming ownership of the Zazu song. Also, recall the case between Sabinus and UAC foods where the latter allegedly used the former’s cartooned image in an advert for the Gala sausage. All these cases fall within the purview of copyright.

The Copyright Act

The 2004 Copyright Act is the primary law that governs and protects copyright in Nigeria, as we have earlier stated. The Act seeks to protect the works of creatives, what amounts to infringement and remedies for infringement, and procedure for the transfer of copyright in Nigeria.
Not all works can be copyrighted, however, in the light of S 1(1) Copyright Act, the following works can be copyrighted:

1. Literary works
2. Musical works
3. Artistic works
4. Cinematographic films
5. Sound recordings
6. Broadcast

No “work” will therefore be capable of being copyrighted unless it falls within the above classification.

Conditions for your Work to be Copyrighted as a Creative

As a creative, certain requirements must be met for your work to be copyrighted under the Act. First, it must be one of the works listed in S.1(1) of the Act. Then, there must be originality and fixation.

1. Originality
By virtue of *S. 1(2)(a) of the Copyright Act, for copyright to subsist in a literary, musical, or artistic work, sufficient effort must have been expended to make the work possess an original character. Hence, originality is a fundamental requirement if your work must be copyrighted.
However, originality in this context does not mean your work must be new, in the sense that such work has never been seen before. As posited in University of London Press v. University Tutorial Press [1916] 2 Ch 601, the work must not be copied from another work, but it should originate from the author. As noted in ICIC v. Ekko Delta (1977) FHC.L.R. 346, a copyist does not enjoy copyright.
For instance, if you are a photographer, the originality in your work, is the exercise of your judgement as to what to photograph, how the scene is arranged including lighting, props etc., and other exercise of judgement, skill, or labor. In Peter Obe v Grapevine Communicators Ltd 40 NIPJD [FHC 1997], the plaintiff, a professional photographer was held to have copyright in his photographic works, consisting of the photographs he took during the civil war.
In other words, an original work fulfils the requirement of independent creation and creativity. Whether or not the level of skill, labor or effort expended by the author suffices to qualify the work as an original work which can be protected by copyright is a question of degree which is determined by the facts of each case.

2. Fixation
This simply means that the ideas to be copyrighted must be expressed. S. 1(2)(b) of the Act requires your work to be fixed in a definite medium of expression presently known or to be developed in the future which can be perceived, reproduced, or otherwise communicated either directly or with the aid of any machine or device before it can be copyrighted.
It is settled law that no one can claim exclusive rights to an idea; as long as it remains an idea in your mind, you have no right to claim it as yours. This is because ideas are public and can freely be used for the creation of intellectual assets by members of the public. Copyright, however, protects the definite expression of ideas. In Yeni Anikulapo Kuti &Ors v. T. M. Iseli & Ors [2003-2007] 5 I.P.L.R. 53-73], it was held that the written lyrics, as well as the tapes containing the yet-to-be-published music, satisfactorily reduced the work into a permanent form from which it could be perceived, within the meaning of S.1(2)(b) of the Act.

Why should Creatives Copyright their Works?

1. To Protect your Work
   As a creative, you have put a lot of effort into your work, and it would be very unfair for another person to copy or use your work without your permission. This is the sole aim of copyright. It gives your work legal backing so that unauthorized people would not be able to use your work. Due to this protection, the value of your work is preserved, and you can sell it properly and/or get the credit for it.
2. To Preserve your Rights as a Creative
   As a creative, you have full rights to your work. These rights include your economic and moral rights (as discussed in the previous article). In essence, copyright enables you to enjoy the right to be acknowledged in any use made of your work and prevents derogatory use which may include mutilation, alteration etc. You would also enjoy your right to earn money when your work is commercially used by another.
3. Claim for Damages in Cases of Infringement
   Where someone has infringed your copyright in line with S. 16 of the Copyright Act, you have the right to bring an action in court as the owner of the work. Hence, you are entitled to damages as monetary compensation for the financial losses you have incurred due to the infringement of your copyright. Other remedies for copyright infringement include order of injunction, order of inspection and seizure, order to render account of profit made from the illegal usage of the work, etc.

Conclusion

Under the Nigerian Copyright Act, a work must fall into one of the six categories of eligible works listed in Section 1 of the Act which includes Artistic works, Cinematographic films, Literary works, Musical works, Broadcast, and Sound recordings. However, the conditions that must be fulfilled before a work can be copyrighted are originality and fixation. As a creative, copyrighting your work would ensure that your work is protected by law, your rights are preserved, and you are entitled to relief when infringement arises.
We hope this article has enlightened you on what copyright is about and why you should take a step further to protect your work. Should you require help in copyrighting your work, click here.

AN INTRODUCTION TO INTELLECTUAL PROPERTY LAW IN NIGERIA: WHAT EVERY CREATIVE SHOULD KNOW!

You are an exceptional creative! You have worked tirelessly to create a unique and beautiful work of art. You put it out there for the world to see and after a while, you discover that some persons have stolen and copied your work without giving credit to you. You are so frustrated but then, as usual, you excuse it away —”it’s one of those things”. This is becoming a common thing but if you do not take a solid step to protect your work then history would keep repeating itself.

Fortunately, the law has made provisions for the protection of the fruits of your intellect copyright protection, trademark protection, patent, and industrial design protection. This is the crux of intellectual property (IP). But what is IP? Where does my work fit in this area of law? How does the law protect my work? If these are the questions going through your mind, then it is a good thing you are in this space! This is because, over the next few weeks, our bone of contention would be in this area of law.

However, in this article, we would be discussing what intellectual property is, its branches and how it affects you as a creative.

Meaning of Intellectual Property

As defined by David Bainbridge, intellectual property is an “area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill”. In simple terms, IP is a branch of law that protects the creation of the human mind or intellect which includes literary, artistic, and scientific works and other creative works. The law of IP deters others from copying or taking unfair advantage of the brain work or reputation of another and provides remedies to injured persons where the need arises. Hence, if you have just invented something spectacular, this is the area of law that protects your inventions from imitators and unrepentant clones.

Nature of Rights of an IP owner

1. Moral Rights
   Moral rights relate to the emotional/personal connection between an author and his creation. This is a right that confers on the author paternity of the intellectual creation and preserves the personal and reputational value of a work, as opposed to its financial value.
2. Economic Rights
   This relates to the commercial value of the work, which grants the author a monopoly to exclusively exploit his creation for a certain period. This encourages industrial and commercial connections as well as creativity. Under this monopoly, creatives can prevent third parties from using, reproducing, and selling the creation without authorization. If rights are infringed, the author can take legal action against the unlawful use of his literary, artistic, or industrial creations.

Branches of Intellectual Property in Nigeria

1. Copyright
   Copyright is a branch of IP that covers the rights of creatives in relation to the prevention of unauthorized copying, distribution, or reproduction of the work. It is an exclusive legal right bestowed on an author of a literary, artistic, scientific, or any other creative work for a fixed number of years. This branch of IP is governed by the Copyright Act. The Copyright Act provides for the different types of work that can be protected by copyright. By virtue of S. 1(1) Copyright Act, these include literary works, musical works, artistic works, cinematograph films, sound recordings, and broadcasts.
   The sole purpose of copyright is to protect the author’s intellectual property and to prohibit it from being reproduced and sold by unauthorized individuals.
2. Trademark
   Trademark is a unique symbol, word, words, combination of colors or even name that identifies the owner of goods and services. Using another person’s trademark can confuse the public and so the purpose of this branch of IP is to prevent such confusion in the market. Hence, a registered trademark would be infringed if another person uses it in such a manner as to mislead others. This area of IP is governed by the Trademarks Act.
3. Patent and Industrial Design
   A patent is an exclusive right granted by the law to protect a person’s invention that is new or that improves an existing invention. The law prevents another from developing the patented creation without the authorization of the patentee. Hence, others are deterred from selling, distributing, or manufacturing the patented subject matter. On the other hand, the industrial design includes the decorative or aesthetic part of a beneficial object which may include its form, design, color, etc., and which must be visually appealing. This branch of IP is governed by the Patent and Designs Act

Relationship between the Branches of IP

All the branches of IP are independent however there are situations where they may overlap. For instance, a product may fall under copyright and patent. Let’s use a washing machine as an example.

• A trademark protects the brand name and logo of the washing machine such as Samsung, Haier, etc.

• The parts and processes that wash the clothes can be protected by Patent.

• The form, design, pattern, and style of the washing machine can be protected by Industrial Design.

• The washing machine’s manual for operation, an original written material can be protected by Copyright.

As a creative or a brand, you have put so much into the creation of original content, products, and designs, hence, it is important to protect your intellectual property if your brand is to grow and thrive. The best way to do this is to speak with a lawyer vast in this area of law. This is because IP lawyers can help ensure your work is not infringed upon in any way whatsoever. Also, if someone desires to use your work, IP lawyers would ensure that sufficient royalties are promptly paid to you so you can earn while you sleep.
To speak with a lawyer, click here

LET’S CLEAR SOME AIR AROUND WRITING WILLS!

DOES MAKING A WILL ANTICIPATE DEATH?

Apparently, walking up to an average Nigerian and asking them if they have a will can cause an uproar. The thought of you wishing them death is the next thing that pops up on their minds. Whereas, having a will does not mean you’re increasing your susceptibility towards mortality, it just simply means you love your loved ones enough to administer how your properties should be disposed without them plunging them into a sea of decisions that you could have made for them. 

A person who dies without making a will is said to have died intestate. And this has caused more harm than good in most families, there have been cases where the authenticity of a will was questioned, how much more where there is none. 

This is the very point the need for a will arises. One of the reasons to have a will is that it confers on a person the sole right to determine how they want their property to be administered, or how they want to be buried.

WHAT IS A WILL?

A will is a legal document in which an individual known as the Testator declares how they would like their assets to be distributed after demise. Individuals designated to receive any of the properties of a testator are called Beneficiaries, while individuals designated to administer or execute the desires of the testator as written in the will are called Executors

WHAT IS CONTAINED IN A WILL?

A will helps to determine person(s) who will be executors, persons who will be beneficiaries to the testator’s assets and in cases of minors, invalids or aged; persons who will be guardians for any minor or dependents. 

It also helps to administer some special properties like insurance policies, retirement accounts, shares or stock, etc. 

CAN A WILL BE AMENDED?

A lot of people come up with clauses like: ‘’I am still young, if I make a will now can it be amended in later circumstances’’. Oh Yes! A will can be amended, this can be done either by making a new will or by amending the earlier made. This amendment is what is referred to as CODICIL in law. 

HOW CAN WE DETERMINE THE VALIDITY OF A WILL?

1. It must be written.
2. The testator must have attained the age of 18.
3. The testator must be of sound mind.
4. The signature of the testator must be appended on the will in the presence of witnesses.
5. Such will must not be written or made under duress or undue influence.

CAN A WILL BE UNWRITTEN?

A will does not always have to be in writing, it could be in oral, this is usually referred to as NUNCUPATIVE or DEATH-BED WILL. It is a will that is spoken to witnesses but not written. Such wills are valid only in a few states and only in very limited and unusual circumstances. This is because memories fade and information not written down can easily be forgotten, added to, removed from, or totally changed.

DOES A TESTATOR NECESSARILY HAVE TO ATTAIN THE AGE OF 18 YEARS?

This does not apply in all cases, members of the Armed Forces and Naval Officers do not necessarily have to attain the age of 18 years to make will.

WHO SHOULD BE AN EXECUTOR?

An executor is an individual inferred in law as a person in Fiduciary (trust based) Relationship with the testator. He is to act in good faith in carrying out his duties to the testator and beneficiaries. Such individuals may be trusted friends or relatives, spouse of the testator, a child or any adult whom the testator finds trustworthy and reliable.

However, it is always better to have a lawyer as an executor. An executor must ensure that the testator’s wishes under the will are carried out to the letters. 

WHERE IS MY WILL SAFE?

• At the probates registry of your state.
• With Your lawyer.
• At the bank.
• Safety Deposit box: Never store your will in a safety deposit box unless someone else has access to it.
• In your home: Make sure it’s safe from water and fire.

However, wherever you choose to keep your will should be known and easily accessible to your executors.

The very importance of a will cannot be over emphasized, it doesn’t mean you wish yourself death, it’s just a means of taking charge of your “life” even when you’re no more. Would you like to talk to a lawyer about your will? Click here

ROLE OF LAWYERS IN BUSINESS TO BUSINESS (B2B) TRANSACTIONS OR RELATIONSHIPS

The functions of a lawyer cut across various aspects of the society, varying from social to business to economic and even family Institution. However, the society seems oblivious to this fact. Before delving into the nitty-gritty of this topic, it is important to explain what a Business to Business (B2B) transactions entail.

A B2B transaction is a form of transaction where one business makes a commercial transaction with another such as one involving a manufacturer & a wholesaler or a wholesaler & a retailer. B2B transactions would naturally occur in a supply chain, where one company may purchase raw materials from another to be used in their manufacturing process. This type of transaction is normal in many industries such as auto-mobile, tech, construction, healthcare, food and beverage, real estate, engineering, education, etc.

Some examples might be where an eatery consults with an independent baker for regular supply of cakes for sale in the eatery or where an auto mobile company purchases parts like tires, batteries, and other electronics from various companies and in turn assembles them into a whole car, or even where a hospital consults a drug producing company for regular supply of drugs and other medical equipment needed for their own smooth day-to-day running.

In summary, B2B Transactions are a special kind of Partnership between a company and another in order to satisfy each other’s goal and interests and in arrangements like these, a lawyer’s skills and advice would be of utmost importance in all transactions that transpire between these companies.

For every kind of transaction or contract a business or person engages in, certain documents must be signed as evidence of the transaction, stating all its terms. Lawyers are armed with the knowledge of preparing different types of documents in business transactions and only they, are able to determine the type of documents that must be prepared for a specific business transaction.

A lawyer would put in place a strong functional legal structure that takes care of his client’s rights and obligations. In other words, involving a lawyer in B2B transactions should not be compromised or overlooked, as those documents may at the end of the day be your safety net or what may protect you from losing your investment.

Role of Lawyers in B2B transactions

A lawyer’s role in B2B transactions includes but not limited to: 

1. Preparation of Partnership Deed for the parties, if it is a full-fledged partnership. In preparing this Partnership Deed, the lawyer considers nature of the business, share capital or financial capacity of each company, its shareholders, credit worthiness of the companies, mode of sharing profit and loss, Dispute Resolution Mechanisms that must be employed in case of disputes, etc.
2. Examination and interpretation of clauses and ambiguous words contained in the agreement brought forward by the other party in order to ensure his client’s interest is properly secured and not exploited in any way. Where necessary introduce a lawyer may introduce new clauses in favor of his client into the agreement or he may entirely condemn the agreement as practically impossible for his client to fulfil.
3. Provision of advisory functions.
4. Ensures legal compliance of his client to not only regulations stated out by the law but also maintenance of standard required by the regulatory bodies in charge of the sector.
5. Performs Post Partnership Agreement duties.
6. In instances where disputes arise, a lawyer employs the best Dispute Resolution Mechanism that minimizes damage and not in any way adverse to his client.

Finally, these and many more are the roles of a lawyer in a Business-to-Business transactions and an experienced corporate lawyer will be able to lend his expertise to ensure that all Business transactions are done legitimately and in the interest of parties, especially ensuring that his client’s interest are duly secured.

Do not allow yourself to be exploited. Contact a lawyer today to help you take legal care of all your transactions. If you need to talk to a business lawyer, click here

WILLS: DEFINITION AND EXPLANATION

Aluko Adeyemi & Associates – Wills

Imagine that in an average Nigerian home today, a 40 year old man informs his 35 year old wife that he was going to see his lawyer to write his will, the following conversation will be the likely aftermath of that information.

Wife:  Are you sure you’re okay?

Man: Of course, I am.

Wife: Are you suffering from any ailment you’re not telling me? Do you have another woman or child outside this marriage? Have you started hiding things from me?

Man:  I do really appreciate your concern, but I am hale and hearty. I just believe it’s appropriate one makes a will in the same way one would give their business a structure and register their business with Corporate Affairs Commission.

BRIEF EXPLANATION OF THE PENSION REFORM ACT 2014: FOR SMEs AND MSMEs

The Pension Reform Act 2014, which repealed the Pension Reform Act No. 2 of 2004 (repealed Act) was signed into Law on 1^st day of July, 2014. The Pension Reform Act governs and regulates the administration of the contributory pension scheme for both public and private sectors in Nigeria.

The crux of the Act is to encourage participation in the Contributory Pension Scheme. The Scheme applies to two categories of employees, which are – all employees in the public sector and employees of private organizations in which there are 15 or more employees.

BRIEF BREAKDOWN OF THE NATIONAL HOUSING FUND ACT

National Housing Fund (NHF) established by the NHF Act of 1992 is a Federal Government scheme, which entitles all Nigerians above the age of 21 years in paid employment to a government funded loan with low interest. The National Housing Fund was created by the Federal Government to cater for the housing needs of the Nigerian citizenry.

SHORT ANALYSES OF THE EMPLOYEE COMPENSATION ACT, 2010.

The Employee Compensation Act, 2010 (the Act) is the extant law governing the payment of compensation to all employees both in the public and private sector except members of the armed forces. It mandates all employers to contribute 1% of the total monthly payroll into the compensation fund and entitles all employees to claim compensation for occupational diseases and injuries sustained from an accident at the workplace or during employment.

The law places a primary responsibility on the employer to provide good working conditions for their employees, and this ranges from providing a healthy and safe environment to provision of safety equipment, etc.

To further ensure that such responsibility is met, this Act provides remedies enforceable against the employer for certain injuries or diseases sustained during employment and at the workplace.

It is pertinent to note that an employee has been defined by section 73 of the Employee Compensation Act to be “a person employed by the employer under oral or written contract of employment whether on continuous, part-time, temporary, apprenticeship, or casual basis and also includes domestic servants who is not a member of the family of the employer including persons employed in any federal, state or local government or their agencies or any formal or informal sector of the economy.”

Thus, any person who comes under this definition can claim compensation under the Act.

The crux of this write-up therefore, is to analyze compensation for workplace injury for employees in Nigeria.

REMEDY FOR WORK PLACE INJURY:

Generally, there are two remedies available to an employee for a workplace injury. These are:

1. Application for Compensation under the Employee Compensation Act, 2010
2. Civil action against the employer at the National Industrial Court of Nigeria.

1. Application for Compensation under the Employee Compensation Act, 2010:

Some of the injuries for which an employee may apply for compensation under this Act include;

1. Disabling injuries arising out of or in the course of employment. This also includes injuries that prevent an employee from earning full remuneration at the workplace. Compensation in this situation is payable from the first working day after the injury.
2. Accidents sustained between the place of work and the employee’s primary or secondary residence, where he/she usually takes meals and places where he/she receives remuneration, provided the employer has prior knowledge of such.

3. Injuries or diseases sustained during employment. Unless contrary can be proved, it is presumed to have occurred during employment. This also includes injuries superimposed on an already existing disability.

4. Mental stress which can be an acute reaction to a sudden reaction or unexpected event during the course of employment or a diagnosis of a medical practitioner that it arose from the nature of the work or event related to the work. Such can also arise for changing working conditions that unfairly exceed the working ability and capacity of the employee.  

5. Occupational diseases that disable the employee from earning full remuneration, cause death, arising from the nature of the employment which entitle the employee to compensation and health care benefits.

6. Hearing impairments of non-traumatic origin arising out of or in the course of employment and impairment superimposed on existing hearing impairment. The extent of the hearing impairment determines the compensation to be paid and this is decided by the Board in consultation with the National Council for Occupational Safety and Health (NCOHS).

7. Injury arising outside the normal/usual workplace if the job requires the employee, or the employee has the authority of the employer to work outside the normal workplace. 

Procedure for Applying for Compensation

This is a simple procedure governed by Sections 4, 5 and 6 of the Act. They provide thus:

1. Notification of Injury: The Employee or his dependent in the case of death shall first notify the Employer, manager, supervisor or any other appropriate representative of the employer of the injury or occupational disease within 14 days of the occurrence or receipt of the notification of the occurrence stating the name of the employee, time and place of occurrence, nature and cause of the disease, if known. The employer may further request for particulars of the injury or disease on a form prescribed by the Board.

2. Employer’s Obligation to Report to the Board: The Employer is also required to report to the Board and the nearest NCOHS within 7 days of the occurrence of the injury or death or within 7 days of receiving the notification of injury and shall state the name of the employee, time and place of death, injury or disease, nature of injury or death, name and address of accredited specialist that attended to the employee, and any other information required by the board.

3. Application for Compensation to the Board (Nigeria Social Insurance Trust Fund Management Board): This is made in the form prescribed by the board and signed by either the employee or his dependent and must be made within 1 year of the occurrence of the injury or death. Compensation shall not be made if the application is not made within the time frame unless special circumstances exist, then the time frame can be extended to 3 years. For a person claiming compensation for hearing impairment, his application must be accompanied with:

1. Report of a medical practitioner who specializes in such field accredited by the Board
2. An audiogram and a report by the employer of the working environment of the employee
3. Any other evidence as may be requested by the Board from time to time.

It must be noted that an employee cannot waive his right to compensation to which he or his dependents may become entitled. Furthermore, while an employer is mandated to contribute 1% of the annual payroll to the compensation fund, the employer cannot either directly or indirectly deduct from the remuneration of the employee any sum the employer is liable to pay to the fund. The Act further considers as an offence the contravention of its provisions.

2. Commencing civil action against the employer at the National Industrial Court of Nigeria:

The appropriate court to institute any action that borders on employer/employee relations is the National Industrial Court of Nigeria.

By virtue of Section 254(c) of the 1999 Constitution (as amended), the National Industrial Court has the jurisdiction to entertain matters pertaining to employment, Labour, matters arising from the workplace, conditions of service, the welfare of employees and other related matters. The employee can through a legal practitioner commence an action wherein the facts are pleaded, and damages are claimed in respect of the injury sustained.

There have been several cases such as Registered Trustees of Winners Chapel v. Ikenna (2018) LPELR-45767 (CA) among many others where employees have successfully instituted civil actions for injuries caused during employment against their employers.

In conclusion therefore, it is important for employees on one hand to be aware of the remedies available to them in the event of a workplace injury and employers on the other hand to be aware of the financial liability placed on them by the law in the event of workplace injury so they can strive to provide safe working conditions to avoid liabilities.

TRADE UNIONS IN NIGERIA PART 2 (SERIES)

THE PROPRIETY OR OTHERWISE OF EMPLOYERS PREVENTING THEIR EMPLOYEES FROM FORMING OR JOINING TRADE UNIONS

Aluko Adeyemi & Associates – Trade Unions in Nigeria

Section 40 of the 1999 Constitution of the Federal Republic of Nigeria made provision for citizens’ freedom to assemble and associate with other persons, and in particular to join and form associations for the protection of their rights. Therefore, it is illegal to prevent employees from joining trade unions and other Labour associations. As, no employment contract can prevent workers from joining trade unions.

An employer cannot discriminate against a person either by refusing them employment, treating them unjustly or dismissing them for joining a trade union. Neither do employers have any right to influence or restrict an employee’s choice of trade union. Trade unions serve as the major level playground where workers are able to take part in decisions that concern their welfare, working terms and condition at the work place, thereby getting their interest protected.

Note that: Certain government organizations like the Military/paramilitary bodies and some others are not permitted to form unions. Likewise, young workers under the age of sixteen may not join a union, as they lack the legal capacity to do so.

REGISTRATION OF TRADE UNION

For a trade Union to legally exist, function and be recognized by the law, it must be duly registered with the necessary statutory body through an application to the Registrar of Trade Union, which must be signed by at least fifty (50) members in the case of a trade union of employees, and at least two (2) members in the case of a trade union of employers. They must also have registered rules, which are known as the Union’s Constitution. The constitution should expressly spell out the following information amongst others:

1. The name of the trade union
2. The objectives of the trade union
3. The purpose to which the general funds of the trade union will be applied
4. A list of the members of the trade union and adequate provision for the inspection of said list by the officials and members of the trade union
5. The payment of subscription by members of the trade union
6. The manner in which the rules will be amended, varied and/or repealed
7. The manner in which the members of the executives and the other officials of the trade union will be appointed and removed.
8. The manner in which the funds of the trade union will be kept and audited
9. The manner in which inspection of books of accounts by the officials and members of the trade union will be made
10. The conditions under which any member will be entitled to have benefits under the rules, and under which fine will be imposed on the members
11. The manner in which the trade union will be dissolved.

Aluko Adeyemi & Associates – Trade Unions in Nigeria

Other documents to accompany the application for registration as required by the Registrar are as follows:

1. Two (2) copies of the association’s constitution/registered rules.
2. Minutes of general meeting where the decision to register the union was taken.
3. List of attendants with signatures, address, age and occupation of each of the persons by whom the application is signed.
4. List of the association’s officials with official title, address, age, and occupation of each official.
5. Duly completed form from the registrar of trade unions with the required registration fee.

Furthermore, a recommendation of the application is made to the Honourable minister for his approval, after ensuring that the application and rules of the proposed union have been satisfied. Thereafter, a publication is made in the federal government’s official gazette for a period of three (3) months. Objection can be made in writing to the registrar of trade union during this 3 month period.

Where there is no objection or where the objections are baseless, the trade union is duly registered by the Registrar of trade unions and a certificate of registration is issued to the union, as a duly registered trade union. But, where there is/are credible objection, the registrar will send a notice to the applicants to that effect for necessary actions to be made as the case maybe.

However, in the case of a refusal to register the trade union, the registrar will send a notice to the applicants stating the grounds of refusal, and the period within which the time for appealing against the refusal is to run. The registrar will also publish same in the federal gazette. An appeal against the refusal can be brought by any official or member of the union to the appropriate court within a period of thirty (30) days beginning with the date stated in the notice

After registration, a trade union becomes a corporate body, having perpetual succession and a common seal. It can contract and own properties, sue and be sued in its registered name, and do all such things permissible under our extant laws to be done by a body corporate. The trade union therefore becomes a legal entity distinct from its members.