The 'Worker' in Nigeria, Mexico, India, Bangladesh, Indonesia, Addis Ababa, South Africa suburbs of the United States, Rio De Janeiro, Brazil and Europe has found his situation as 'exploited' persisting over the years, and assuming new and drastic dimensions. The situation of the working class seems to be an unending vicious circle that annually brings many back to the same spot or worse. Respect for the dignity of labour is anything but that, better coined, 'indignity of labour'!
Formal 'Socialism' collapsed and left a free path for the growth and unapologetic expansion of 'Capital' and the Neo-Liberal ideology that underlies it. Deregulation has attained an unprecedented dominance in height and status across the world. Structural Adjustment Programs have left their debilitating effets across the world. It then seems the 'promise of the free market' was a farce and what is more, governments across the world are helpless in facing the situation due to ineptitute, complicity, incapacitation and sometimes brazen irresponsibility or a combination of these.
It would appear that private corporations have a profound control over the destiny of the worker, thanks to deregulation and the absolutely free market. Thus, employers like Zenith Bank determine the terms of employment of its workers in a manner most suited to capital devoid of a human face. Moreso, the prerogative to exert the 'maximum' from its employees as well as alter the terms and conditions of employment arbitrarily seems absolute! How has this come to be? Let us examine the Zenith Bank situation before the 'Solo Storm Revolution' of June to August 2010.
Zenith Bank Plc, a Nigerian Bank which operates in a number of African countries with a branch in London, had the practice (prior to the 'Storm'), of hiring employees on its own terms and observing those terms, to reasonable extents. However, a shocking trend developed from 2008, a trend in which Zenith Bank assumed a 'Deaf and Mute' position to its employees on the contract of employment entered. This was mostly in relation to new employees, often referred to as 'Trainees'. These employees were (are) graduates, and it is usual with many corporations to hire employees as trainees for varying periods of 3 months, 6 months or a year at most. In the case of Zenith Bank, it was a 1-year traineeship period. This 'Deaf and Mute' position of Zenith Bank involved ignoring the terms of employment requiring the trainee to be 'elevated' after a year upon confirmation of employment, which itself was a rigorous task requiring a miminum performance of 'B+' from the trainee's appraisal.
In concrete terms, Zenith Bank had these employees working extensively, often undertaking tasks proper to cadres 3 to 5 steps ahead of the 'Trainee' status while earning the same fixed rate designed for the trainee. Notedly, the trainee was not entitled to benefits accruable to other confirmed/elevated employees such as bonuses and allowances. The trainee was practically a 'Glorified Domestic/Contract' staff. Now, this 'Deaf and Mute' position did not just go on for the month following the completion of the 1 year trainee status, but months and months even exceeding 13 in some instances, (in my case it was 12 months)!
Zenith Bank was 'deaf' in that it will neither listen to the contract signed nor to the 'silent grumbles' of these 'sweatshop-like' workers. I say 'sweatshop-like not for the love of mere diction aggrandisement, but because i was there and i did it. Moreover, no one dared even 'speak' beyond the branch where one worked. It can be quite appalling to note the manner in which even top officers of Zenith Bank will not question these glaring absurdities or draw the attention of management to the situation, even where they were deeply convinced of the injurious nature of the situation. This i think, is testimony to a weird culture that has taken, and is taking further root. Nevertheless, there was stern deafness.
If Zenith Bank was injurious in being deaf, it was even more resolutely so in being 'Mute'! It failed, refused and calculatedly orchestrated conscious silence on the situation of these workers. (Subsequently, i will sketch a picture of the pattern of the daily life of these trainees in the socio-economic/professional context, but not in this post). The bank simply kept silent, but from this silence and general posture, a picture of the 'dignity' and 'honour' in which Zenith Bank held these employees was gradually emerging.
To say the least, the bank valued its counting machines and marketing vehicles far above these employees. They, (we) were effectively commodified in ways beyond the conventional commodification ideal of the capitalist free market system. This was a commodification with scorn! Indeed, even when I wrote as though from a son to a father, the then Managing Director who is now the 2nd defendant in the case filed did not deem it fit to 'clarify' the employment status of trainees 2 years on the job!
What, one will ask, was responsible for this situation where a corporation would exercise so much autonomous and arbitrary control over 'people' in such a degrading manner?. What happened to the Unions, Government, and most importantly, what happened to the people working in the system? Lastly, what happened to these hundreds of trainees, to the extent that they had no longer a 'human' sense- to the extent of just 'mowing on and on' like sheep in perpetual inaudible murmur?
Answers to these are not where they 'on first sight' may seem. They lie in a decryption of what the 'Globalising' pattern of the cosmos reveals. In undertaking this decryption, i will examine primarily, the emergence of what B.S. Chimney calls a 'Transnational Capitalist Class' at the service of global capital and the wheels of imperial globalism. This class as we shall see, is as much a victim as it is an agent (At times overzealous and tyrannical) of a pervasive globalising system...
TBC
Thursday, December 2, 2010
Saturday, October 2, 2010
Friday, September 24, 2010
EMPLOYEE CALLING ON AN EMPLOYER TO ANSWER BEFORE THE LAW FOR BREACH OF CONTRACT AND CONDUCT REFLECTIVE OF CONTEMPT FOR THE DIGNITY OF LABOUR AND DIGNITY OF HUMAN PERSONS
In the developing world, with particular reference to Nigeria, the task mentioned above is one that the average employee would dread doing. The disposition to ask questions of leaders of government and leaders of industry for their actions, inactions and decisions is one that is grossly lacking in Nigeria. Whether in the civil service or in the private sector, the tendency is the same that employees would rather remain hushed on the clear wrongs done to society by their employers. It very well could be that the long years of military rule in the country have helped entrench a culture of victimisation and suppression of employees by employers. It can be even more baffling to know that this tendency has seeped deep into the private sector and worst still, a sector as sensitive as the banking sector. It is on this note that we wish to reflect on the recent treatment of employees by one of the very popular new generation banks, Zenith Bank Plc.
In hiring professional and even non-professional employees, the general practice in most sectors of the economy world over is to hire such employees on probation for a certain period, after which they are ‘confirmed’. This act usually comes with an implication as far as promotion and remuneration is concerned, usually a positive boost and contained in the contract of employment. Starting early 2008, Zenith Bank Plc employed hundreds of people across Nigeria as ‘EXECUTIVE TRAINEES’ who were to be on probation for a period of 12 months and to be confirmed and elevated to ‘EXECUTIVE ASSIATANT’ upon confirmation. It so happened however, that 12 months and more later, and after the employees had met their requirements and were confirmed accordingly, they were left (with few exceptions) as it were, stranded in the same position by Zenith Bank with no word of explanation whatsoever. In the absence of a union through which to channel their grievances, questions and uncertainties, these young men and women were left in utter darkness. It was only after some dramatic occurrences, courtesy one of the ‘EXECUTIVE TRAINEES’ that some action was taken (which though better than the pre existing maltreatment, fell far short of the terms of the contract of employment) by the bank in June 2010 and on 18th August 2010. These ‘dramatic occurrences’ are centred on what has today culminated in the bank filing a statement of defence through its lawyers in a case filed against it by the now former employee against the bank.
In failing to keep to the terms of the contract of employment, Zenith Bank is saying that its management can revise the terms and conditions of the contract of employment in any manner without either recourse to the employee, or even notice to the employee whether before or after such revision. In other words, Zenith Bank is arrogating to itself the powers and rights to arbitrarily alter/vary the terms of a binding contract of employment. In this 21st century world where all dictatorships are giving way to civil ways of conducting government, corporate and general human affairs, it remains to be seen if a judge can or indeed will uphold this position. Kajit Vs. Zenith Bank Plc and Jim Ovia with suit number LD/1515/2010 is the case in view.
TO BE CONTINUED...
In hiring professional and even non-professional employees, the general practice in most sectors of the economy world over is to hire such employees on probation for a certain period, after which they are ‘confirmed’. This act usually comes with an implication as far as promotion and remuneration is concerned, usually a positive boost and contained in the contract of employment. Starting early 2008, Zenith Bank Plc employed hundreds of people across Nigeria as ‘EXECUTIVE TRAINEES’ who were to be on probation for a period of 12 months and to be confirmed and elevated to ‘EXECUTIVE ASSIATANT’ upon confirmation. It so happened however, that 12 months and more later, and after the employees had met their requirements and were confirmed accordingly, they were left (with few exceptions) as it were, stranded in the same position by Zenith Bank with no word of explanation whatsoever. In the absence of a union through which to channel their grievances, questions and uncertainties, these young men and women were left in utter darkness. It was only after some dramatic occurrences, courtesy one of the ‘EXECUTIVE TRAINEES’ that some action was taken (which though better than the pre existing maltreatment, fell far short of the terms of the contract of employment) by the bank in June 2010 and on 18th August 2010. These ‘dramatic occurrences’ are centred on what has today culminated in the bank filing a statement of defence through its lawyers in a case filed against it by the now former employee against the bank.
In failing to keep to the terms of the contract of employment, Zenith Bank is saying that its management can revise the terms and conditions of the contract of employment in any manner without either recourse to the employee, or even notice to the employee whether before or after such revision. In other words, Zenith Bank is arrogating to itself the powers and rights to arbitrarily alter/vary the terms of a binding contract of employment. In this 21st century world where all dictatorships are giving way to civil ways of conducting government, corporate and general human affairs, it remains to be seen if a judge can or indeed will uphold this position. Kajit Vs. Zenith Bank Plc and Jim Ovia with suit number LD/1515/2010 is the case in view.
TO BE CONTINUED...
Tuesday, August 31, 2010
ARTICLES OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 CONTD.
Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.
Article 21
1 . Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
FINIS.
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.
Article 21
1 . Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
FINIS.
Monday, August 30, 2010
ARTICLES OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, therefore,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article I
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
TO BE CONTINUED...
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, therefore,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article I
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
TO BE CONTINUED...
Saturday, July 31, 2010
BREACH OF TRANSPORT CONTRACTS, ‘NON REFUND’ CLAUSES AND THE NIGERIAN CONSTITUTION
A friend (Toluwanimi Fadesere of BKG Exhibitions Limited, Yaba Lagos) requested that i write an article for publication in a magazine at the 6th Lagos Motor Fair at Tafawa Balewa Square, Onikan, Lagos taking place 15-24th October 2010. He captioned the question in the following terms:
"The assignment is what section of the constitution covers breach of contracts and how do we relate it to a case where one pays transport fare from one destination to another and the vehicle broke down and nothing is done by the transporter to complete the journey for the passenger. Meanwhile there is a line in the ticket that reads 'no refund'"
I have decided to reproduce that article here with the above rephrased heading as follows:
INTRODUCTION
The most common and popular legal instrument known to the average Nigerian is the CONSTITUTION! Any reference to the law of the land would impel the common man to ask, ‘where is it in the constitution?’ or to assume that it is ‘clearly stated’ in the constitution! Rightly so, as Dr Mohammed Nuhu Jamo1 would say, the constitution is the ‘mother of other laws’ in Nigeria. Funny to know that the constitution in force (1999) only came into effect as a schedule to Decree 24 (Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999), under the General Abdulsalami Alhaji Abubakar administration on the 29th of may 1999! But as mother of all laws, the constitution that came into force in 1999 ‘gives birth’ to laws that existed even before the birth of ‘Nigeria’, and that is where we comfortably posit the BREACH OF CONTRACTS in our body of laws.
Section 315 of the 1999 Constitution provides for ‘Existing Law’ in the following terms:
(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be-
(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.2
By the above provision, the Common Laws of England, the Doctrines of Equity and the Statutes of General Application that were in force as at 1st January 1900 and have since then been developing with every legislation and adjudication in Nigeria have force and life. Herein fits the law of contract, an aspect of which is the breach of contract which is the subject-matter of this piece.
BREACH OF CONTRACT: DEFINITION, REMEDIES
For there to be a breach of contract, a relationship must exist that qualifies in law as one ‘creating reciprocal legal obligations to do or not to do particular things’, ‘there must be mutuality of purpose and intention’3. In simple terms, two parties must come to a ‘give and take’ understanding and agreement. One party does an act, renders a service or refrains from same for a consideration from the other party which could be tangible or intangible. This is the case whether the contract is a formal one under seal (which in law is enforceable even without consideration), or a simple contract - written or by word of mouth, (parol). It is where there is default by one party to the contract that a breach is said to occur. In the words of the distinguished Court of Appeal Judge of Ibadan Division, Fabiyi JCA in the recently decided case of OBADIMI Vs. ADEDEJI4,
“There is no gain saying that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract, or either performs the obligation defectively or incapacitates himself from performing the contract.”
Elucidating further on the subject, Muhammed JCA in the same case stated: “...in other words, if there was a breach of the agreement to sell the concern, the most important question is ‘who made the sale inconclusive’? The answer is that the person who had stalled the sale stands in breach of the contract”5
Breach of contract usually results in injury to one party or more, and in accordance with the maxim: ‘ubi jus, ibi remedium’6, such a party will be entitled to legal remedy barring any fault on its part. Remedies for breach of contract could come by way of Injunction, Specific performance or Quantum Meruit (much as deserved), but the most common, conducive and readily available remedy for a breach of contract is DAMAGES. The damages usually awarded to the injured party could come under one of several classes: Special (specific items with clear or known monetary values, and which are within the contemplation of the parties at the time of the contract), General (where the court itself has to estimate or assess the damages, and ‘which the law will presume to be direct, natural and probable consequence of the act complained of’7). Damages could also be Nominal (where the injured party has suffered no loss as a result of the breach, entitled to nominal damages due to the violation of his right per se), and Exemplary (awards made with the secondary object of punishing the defendant party in breach for his conduct in inflicting harm on the plaintiff)
THE PASSENGER WHO PAYS TO BE TRANSPORTED
Between a passenger who boards a vehicle to be conveyed to a destination and the transporter who collects money (consideration) from the passenger, there exists a clear contract whose terms are said to be ‘implied’. The terms of every contract could either be express or implied or both. Formal and written contracts are known for their express terms, though many still have myriads of implied terms by virtue of the circumstances of each transaction, as well as statute or case law, while parol (Oral) contracts are usually held by implied terms. This is where the kind of contract between the passenger and the transporter comes in. In the words of the erudite professor8,
“...in the case of implied contracts, terms are not expressly stated. The court in such circumstances, will normally construe the existence of a contract from the conduct of the parties rather than from their words or correspondence. For example, a passenger usually enters a bus without any dialogue between him and the conductor or driver. Yet to all reasonable men, his action implies that he will pay his fare, while the bus owner is obliged to carry him safely to his destination...”
It goes without saying therefore, that the passenger who boards a commercial vehicle, has the obligation to pay for transport services, which ipso facto creates a reciprocal obligation on the part of the transporter to convey such passenger to the agreed destination. The act of soliciting passengers to a particular destination by notices and by verbal pronouncements on the part of the transporter in person or through its agents, and the act of boarding the vehicle with full knowledge of the advertised destination implies an express consensus ad idem that the transporter will convey the passenger to the advertised destination(s), and that the passenger will furnish payment (consideration) for the transport service rendered. This payment by the passenger could be in advance or in arrears of the transport service rendered depending on how the parties agree, and the prevailing lawful and acceptable practice in the area of jurisdiction.
Considering the foregoing, a passenger who neglects or fails to pay for the transport services would be in breach of the contract whose implied terms are that in exchange for his being transported to destination, he will furnish consideration by making payment. Reciprocally, it will be a breach of contract for the transporter to fail in delivering the transport service either completely or partially (devoid of anything that qualifies as frustration by an ‘Act of God’ in law). While a breach by the passenger could entitle the transporter to the remedy of Specific performance (requiring the passenger to pay the agreed fare and any other penalty arising from the passengers’ failure and/or refusal to pay as agreed), failure to convey the passenger to destination by the transporter will entitle the passenger to the remedy of damages in a legal action. Beyond a refund of the sums paid to the transporter, where such breach arises due to the transporter’s fault either through negligence, malice or other reason that a ‘reasonable man’ could avoid, the transporter could additionally be liable to pay the passenger other damages due to injury arising by virtue of the failure of the transporter to meet his obligation in the contract, and the chain of losses caused the passenger as a direct result. As is the general rule in law, each case would be treated according to its merit and based on its facts.
Where therefore the vehicle breaks-down in transit, it follows logically that devoid of any additional fault of the transporter and depending on the facts of the case, the transporter will under common law, be required to refund the entirety of the sum paid him by the passenger. His part in the contract is to convey the passenger to destination, and failure to do that as agreed entitles him to absolutely no consideration or benefit in common law. When the principles of equity are applied however, he may be granted a ‘Quantum Meruit’ remedy, i.e., giving him the equivalent of that part of the journey which he was able to accomplish. Many jurists will however disagree with this position and cling to the standard common law position by which the passenger may not only be entitled to a total refund of paid fares, but also to general damages (since it may not be practicable to return the passenger to the position he was ‘restitutio in integrum’ before the contract, since that will entail time waste and possibly additional loss).
THE CLAUSE ‘NO REFUND’ ON RECEIPT OF PAYMENT
It is not uncommon to see such words on receipts of payment, usually where payment is made in advance of the transport services. It takes little to see that such words can only have effect to the extent that the transporter is not in breach of his own part of the contract. Those words may therefore make sense, where the passenger for instance, decides midway to abort the journey (though even this is contestable depending on each case). Where however, the transporter fails, neglects, decides or is unable to complete the journey, such a clause will have absolutely no meaning or force in that contract. Were the contrary to be the case, then any one could assemble passengers, collect their monies while issuing receipts with such clauses and shortly thereafter decide to abort the journey and keep the monies collected!!! That would be a most skewed reasoning and intolerable situation before any rational beings! Such has never been, is not, and never will be the position of the law, and God save the people from such barbarity!
CONCLUSION
Contracts are a daily occurrence in human society which by virtue of human nature, are bound to see breaches committed. It is the duty of the law (Contract Law as incorporated by section 315 of the 1999 Constitution of the Federal republic of Nigeria) to see that justice is done in each case by proffering solutions to each case of breach. The case of the transporter is no exception as his obligations to the passenger and vice versa must be done or redressed in the most justifiable manner to give satisfaction to each of the contracting parties by way of Specific Performance, Injunction, Quantum Meruit but most commonly and conveniently, by Damages.
It can be stunning to observe the way parties to such contracts, especially motorists and transport companies handle such cases which leaves much to be desired. It is hoped that expositions such as this will help add to the degree of sanity and civility to the society in which we find ourselves.
BM Integrum Legis Partners (08053430524-Kajit, 08037310418-Manava),
Ungwan Rimi Kaduna.
REFERENCES
1. Senior lecturer of Constitutional Law, Faculty of Law, Ahmadu Bello University, Zaria
2. Constitution of the Federal Republic of Nigeria, 1999
3. Orient Bank (Nig) Plc Vs Bilante International Ltd. (1997) 8NWLR (Pt. 515) 37 at 76
4. (2008) 3 NWLR (Pt 1073) pg 16 paragraphs H-B
5. Ibid, pg 21
6. Meaning ‘where there is a right, there is a remedy’
7. The English Lord, Mc Naghten in Bolag Vs Hutchison (1965) 1 All NLR 182
8. I.E. Sagay, Nigerian Law of Contract (ed) 2000, page 5
"The assignment is what section of the constitution covers breach of contracts and how do we relate it to a case where one pays transport fare from one destination to another and the vehicle broke down and nothing is done by the transporter to complete the journey for the passenger. Meanwhile there is a line in the ticket that reads 'no refund'"
I have decided to reproduce that article here with the above rephrased heading as follows:
INTRODUCTION
The most common and popular legal instrument known to the average Nigerian is the CONSTITUTION! Any reference to the law of the land would impel the common man to ask, ‘where is it in the constitution?’ or to assume that it is ‘clearly stated’ in the constitution! Rightly so, as Dr Mohammed Nuhu Jamo1 would say, the constitution is the ‘mother of other laws’ in Nigeria. Funny to know that the constitution in force (1999) only came into effect as a schedule to Decree 24 (Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999), under the General Abdulsalami Alhaji Abubakar administration on the 29th of may 1999! But as mother of all laws, the constitution that came into force in 1999 ‘gives birth’ to laws that existed even before the birth of ‘Nigeria’, and that is where we comfortably posit the BREACH OF CONTRACTS in our body of laws.
Section 315 of the 1999 Constitution provides for ‘Existing Law’ in the following terms:
(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be-
(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) A Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
By the above provision, the Common Laws of England, the Doctrines of Equity and the Statutes of General Application that were in force as at 1st January 1900 and have since then been developing with every legislation and adjudication in Nigeria have force and life. Herein fits the law of contract, an aspect of which is the breach of contract which is the subject-matter of this piece.
BREACH OF CONTRACT: DEFINITION, REMEDIES
For there to be a breach of contract, a relationship must exist that qualifies in law as one ‘creating reciprocal legal obligations to do or not to do particular things’, ‘there must be mutuality of purpose and intention’3. In simple terms, two parties must come to a ‘give and take’ understanding and agreement. One party does an act, renders a service or refrains from same for a consideration from the other party which could be tangible or intangible. This is the case whether the contract is a formal one under seal (which in law is enforceable even without consideration), or a simple contract - written or by word of mouth, (parol). It is where there is default by one party to the contract that a breach is said to occur. In the words of the distinguished Court of Appeal Judge of Ibadan Division, Fabiyi JCA in the recently decided case of OBADIMI Vs. ADEDEJI4,
“There is no gain saying that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract, or either performs the obligation defectively or incapacitates himself from performing the contract.”
Elucidating further on the subject, Muhammed JCA in the same case stated: “...in other words, if there was a breach of the agreement to sell the concern, the most important question is ‘who made the sale inconclusive’? The answer is that the person who had stalled the sale stands in breach of the contract”5
Breach of contract usually results in injury to one party or more, and in accordance with the maxim: ‘ubi jus, ibi remedium’6, such a party will be entitled to legal remedy barring any fault on its part. Remedies for breach of contract could come by way of Injunction, Specific performance or Quantum Meruit (much as deserved), but the most common, conducive and readily available remedy for a breach of contract is DAMAGES. The damages usually awarded to the injured party could come under one of several classes: Special (specific items with clear or known monetary values, and which are within the contemplation of the parties at the time of the contract), General (where the court itself has to estimate or assess the damages, and ‘which the law will presume to be direct, natural and probable consequence of the act complained of’7). Damages could also be Nominal (where the injured party has suffered no loss as a result of the breach, entitled to nominal damages due to the violation of his right per se), and Exemplary (awards made with the secondary object of punishing the defendant party in breach for his conduct in inflicting harm on the plaintiff)
THE PASSENGER WHO PAYS TO BE TRANSPORTED
Between a passenger who boards a vehicle to be conveyed to a destination and the transporter who collects money (consideration) from the passenger, there exists a clear contract whose terms are said to be ‘implied’. The terms of every contract could either be express or implied or both. Formal and written contracts are known for their express terms, though many still have myriads of implied terms by virtue of the circumstances of each transaction, as well as statute or case law, while parol (Oral) contracts are usually held by implied terms. This is where the kind of contract between the passenger and the transporter comes in. In the words of the erudite professor8,
“...in the case of implied contracts, terms are not expressly stated. The court in such circumstances, will normally construe the existence of a contract from the conduct of the parties rather than from their words or correspondence. For example, a passenger usually enters a bus without any dialogue between him and the conductor or driver. Yet to all reasonable men, his action implies that he will pay his fare, while the bus owner is obliged to carry him safely to his destination...”
It goes without saying therefore, that the passenger who boards a commercial vehicle, has the obligation to pay for transport services, which ipso facto creates a reciprocal obligation on the part of the transporter to convey such passenger to the agreed destination. The act of soliciting passengers to a particular destination by notices and by verbal pronouncements on the part of the transporter in person or through its agents, and the act of boarding the vehicle with full knowledge of the advertised destination implies an express consensus ad idem that the transporter will convey the passenger to the advertised destination(s), and that the passenger will furnish payment (consideration) for the transport service rendered. This payment by the passenger could be in advance or in arrears of the transport service rendered depending on how the parties agree, and the prevailing lawful and acceptable practice in the area of jurisdiction.
Considering the foregoing, a passenger who neglects or fails to pay for the transport services would be in breach of the contract whose implied terms are that in exchange for his being transported to destination, he will furnish consideration by making payment. Reciprocally, it will be a breach of contract for the transporter to fail in delivering the transport service either completely or partially (devoid of anything that qualifies as frustration by an ‘Act of God’ in law). While a breach by the passenger could entitle the transporter to the remedy of Specific performance (requiring the passenger to pay the agreed fare and any other penalty arising from the passengers’ failure and/or refusal to pay as agreed), failure to convey the passenger to destination by the transporter will entitle the passenger to the remedy of damages in a legal action. Beyond a refund of the sums paid to the transporter, where such breach arises due to the transporter’s fault either through negligence, malice or other reason that a ‘reasonable man’ could avoid, the transporter could additionally be liable to pay the passenger other damages due to injury arising by virtue of the failure of the transporter to meet his obligation in the contract, and the chain of losses caused the passenger as a direct result. As is the general rule in law, each case would be treated according to its merit and based on its facts.
Where therefore the vehicle breaks-down in transit, it follows logically that devoid of any additional fault of the transporter and depending on the facts of the case, the transporter will under common law, be required to refund the entirety of the sum paid him by the passenger. His part in the contract is to convey the passenger to destination, and failure to do that as agreed entitles him to absolutely no consideration or benefit in common law. When the principles of equity are applied however, he may be granted a ‘Quantum Meruit’ remedy, i.e., giving him the equivalent of that part of the journey which he was able to accomplish. Many jurists will however disagree with this position and cling to the standard common law position by which the passenger may not only be entitled to a total refund of paid fares, but also to general damages (since it may not be practicable to return the passenger to the position he was ‘restitutio in integrum’ before the contract, since that will entail time waste and possibly additional loss).
THE CLAUSE ‘NO REFUND’ ON RECEIPT OF PAYMENT
It is not uncommon to see such words on receipts of payment, usually where payment is made in advance of the transport services. It takes little to see that such words can only have effect to the extent that the transporter is not in breach of his own part of the contract. Those words may therefore make sense, where the passenger for instance, decides midway to abort the journey (though even this is contestable depending on each case). Where however, the transporter fails, neglects, decides or is unable to complete the journey, such a clause will have absolutely no meaning or force in that contract. Were the contrary to be the case, then any one could assemble passengers, collect their monies while issuing receipts with such clauses and shortly thereafter decide to abort the journey and keep the monies collected!!! That would be a most skewed reasoning and intolerable situation before any rational beings! Such has never been, is not, and never will be the position of the law, and God save the people from such barbarity!
CONCLUSION
Contracts are a daily occurrence in human society which by virtue of human nature, are bound to see breaches committed. It is the duty of the law (Contract Law as incorporated by section 315 of the 1999 Constitution of the Federal republic of Nigeria) to see that justice is done in each case by proffering solutions to each case of breach. The case of the transporter is no exception as his obligations to the passenger and vice versa must be done or redressed in the most justifiable manner to give satisfaction to each of the contracting parties by way of Specific Performance, Injunction, Quantum Meruit but most commonly and conveniently, by Damages.
It can be stunning to observe the way parties to such contracts, especially motorists and transport companies handle such cases which leaves much to be desired. It is hoped that expositions such as this will help add to the degree of sanity and civility to the society in which we find ourselves.
BM Integrum Legis Partners (08053430524-Kajit, 08037310418-Manava),
Ungwan Rimi Kaduna.
REFERENCES
1. Senior lecturer of Constitutional Law, Faculty of Law, Ahmadu Bello University, Zaria
2. Constitution of the Federal Republic of Nigeria, 1999
3. Orient Bank (Nig) Plc Vs Bilante International Ltd. (1997) 8NWLR (Pt. 515) 37 at 76
4. (2008) 3 NWLR (Pt 1073) pg 16 paragraphs H-B
5. Ibid, pg 21
6. Meaning ‘where there is a right, there is a remedy’
7. The English Lord, Mc Naghten in Bolag Vs Hutchison (1965) 1 All NLR 182
8. I.E. Sagay, Nigerian Law of Contract (ed) 2000, page 5
Monday, July 19, 2010
ESSENTIALS OF A VALID CONTRACT OF EMPLOYMENT, CONTD
Other essentials of a valid contract of employment are as follows:
4. For the contract of employment (Contract of Service) to be valid, its terms and conditions must be certain just as the parties must be certain and be capable of being identified reasonably. The contract will therefore not be binding where the terms and conditions are too ambiguous and uncertain. The terms and conditions spelling-out the obligations of the employer and those of the employee must be clear enough to give both sides comfort.
5. 'Concensus ad idem' (Mutual consent) is another essential requirement that must be manifest to give the contract of employment validity. The presence of Misrepresentation, Mistake, Fraud, Duress or Undue Interference affects the validity of this contract.
6. To be valid, a contract of employment must be legal and in accordance with the maxim, 'Ex turpi causa non oritur actio', the contract will be void if entered principally with the objective of performing an act prohobited by law. Both in its objective and mode of performance, the proposed contract must be legal, thus a contract for smuggling and procurement of girls for sexual gratification would be null and void as will one intended to defraud tax authorities e.g., by understating salaries in order to pay less Tax.
7. The condition of Contractual Capacity concerns the Insane, Infants and Women. Contracting parties must be of contractual age for them to be vested with Capacity to contract validly. Section 9(3) of the Nigerian Labour Act Cap L1 Laws of the Federation 2004 provides: 'Except in the case of a contract of apprenticeship, no person under the age of sixteen years shall be capable of entering into a contract of employment under this Act' Similarly, sections 55 to 57 of the Act regulates the aspect concerning women. Setion 55(1) provides: 'Subject to this section, no woman shall be employed on night work in a public or private industrial undertaking or in any branch thereof, or in any agricultural undertaking or any branch thereof'
It has been trite under Common Law that a legal infant can only contract for necessaries, and the contract must be beneficial to that infant, otherwise that contract may not stand when put to test, De Francesco v. Barnum (1890). Women would not normally be legally contracted for night duty (Except for Nurses and few other exceptions and situations).
The conditions illustrated in the foregoing must exist in their respective fashions before a valid Contract of Service/ Contract of Employment can exist.
4. For the contract of employment (Contract of Service) to be valid, its terms and conditions must be certain just as the parties must be certain and be capable of being identified reasonably. The contract will therefore not be binding where the terms and conditions are too ambiguous and uncertain. The terms and conditions spelling-out the obligations of the employer and those of the employee must be clear enough to give both sides comfort.
5. 'Concensus ad idem' (Mutual consent) is another essential requirement that must be manifest to give the contract of employment validity. The presence of Misrepresentation, Mistake, Fraud, Duress or Undue Interference affects the validity of this contract.
6. To be valid, a contract of employment must be legal and in accordance with the maxim, 'Ex turpi causa non oritur actio', the contract will be void if entered principally with the objective of performing an act prohobited by law. Both in its objective and mode of performance, the proposed contract must be legal, thus a contract for smuggling and procurement of girls for sexual gratification would be null and void as will one intended to defraud tax authorities e.g., by understating salaries in order to pay less Tax.
7. The condition of Contractual Capacity concerns the Insane, Infants and Women. Contracting parties must be of contractual age for them to be vested with Capacity to contract validly. Section 9(3) of the Nigerian Labour Act Cap L1 Laws of the Federation 2004 provides: 'Except in the case of a contract of apprenticeship, no person under the age of sixteen years shall be capable of entering into a contract of employment under this Act' Similarly, sections 55 to 57 of the Act regulates the aspect concerning women. Setion 55(1) provides: 'Subject to this section, no woman shall be employed on night work in a public or private industrial undertaking or in any branch thereof, or in any agricultural undertaking or any branch thereof'
It has been trite under Common Law that a legal infant can only contract for necessaries, and the contract must be beneficial to that infant, otherwise that contract may not stand when put to test, De Francesco v. Barnum (1890). Women would not normally be legally contracted for night duty (Except for Nurses and few other exceptions and situations).
The conditions illustrated in the foregoing must exist in their respective fashions before a valid Contract of Service/ Contract of Employment can exist.
Tuesday, July 13, 2010
ESSENTIALS OF A VALID CONTRACT OF EMPLOYMENT
1. An offer is a definite undertaking or promise made by the employer with the intention that it shall become binding on him as soon as it is accepted by the party to whom it is addressed. By law, such offer can be made orally, expressly or in writing. This requirement for a valid contract forms the basis and foundation upon which other essentials are built.
2. An acceptance is a final and unqualified expression of assent to the terms of the offer by the employee. The employee indicates acceptance by word, in writing or by conduct. If the employer prescribes a mode of expressing acceptance, then only that means of communication would be valid, otherwise acceptance can be by word or conduct, and in a manner commensurate to the offer.
3. The price paid in exchange for the service rendered or work done is known as Consideration. It is therefore the exchange of wages for work done between the employer and the employee. If the rate is agreed upon, then that will be the binding rate between the parties, but if none is agreed upon, the position of the law is that the rate shall be that which is current in similar trades in the area or what the custom of the trade dictates, Peters of Oron v. Symmons (1924)
...
2. An acceptance is a final and unqualified expression of assent to the terms of the offer by the employee. The employee indicates acceptance by word, in writing or by conduct. If the employer prescribes a mode of expressing acceptance, then only that means of communication would be valid, otherwise acceptance can be by word or conduct, and in a manner commensurate to the offer.
3. The price paid in exchange for the service rendered or work done is known as Consideration. It is therefore the exchange of wages for work done between the employer and the employee. If the rate is agreed upon, then that will be the binding rate between the parties, but if none is agreed upon, the position of the law is that the rate shall be that which is current in similar trades in the area or what the custom of the trade dictates, Peters of Oron v. Symmons (1924)
...
Sunday, July 4, 2010
CONTRACTS OF EMPLOYMENT
Like other contracts, a contract of employment is governed by the general principles of the Law of Contract. The essential constitutive elements of a contract must therefore be present before a valid contract of employment can exist. However, this contract differs from the ordinary contract in certain respects; first, the remedy of Specific Performance is not readily available for the breach of a contract of employment, since it is trite that a willing employee cannot be foisted on an unwilling employer. Also, the relationship borne of this contract is largely affected by statutory regulations.
In Addressing this subject, the following key ingredients will be considered in due course;
1. Offer
2. Acceptance
3. Consideration
4. Certainty
5. Consent
6. Legality and
7. Contractual Capacity
In Addressing this subject, the following key ingredients will be considered in due course;
1. Offer
2. Acceptance
3. Consideration
4. Certainty
5. Consent
6. Legality and
7. Contractual Capacity
Friday, June 25, 2010
NIGERIAN CONSTITUTION AND LABOUR MATTERS
Like many other countries, the fundamental law in Nigeria, the 1999 Constitution of the Federal Republic contains a substantial reflection of the 1948 Universal Declaration of Human Rights. Its second chapter is titled 'Fundamental Objectives and Directive Principles of State Policy'.
Section 17 thereunder provides for a State Social Order that is founded on ideals of Freedom, Equality and Justice. In fostering such a social order, it provides clearly that every citizen shall have equality of rights, obligations and opportunities before the law. It goes further to provide that the sanctity of the Human Person shall be recognized and human dignity shall be maintained and enhanced.
The above is a sufficient expression of solidarity and agreement with the stance of the 1948 declaration on labour matters and the dignity of the human person. We see this clearly when we look a little further down the provisions of subsection 3 of that section. There it states without equivocation that the state shall direct its policy towards ensuring that all citizens without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment. Buttressing this position is the further provision that the state shall ensure that conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life
Employers who normally take their employees' rights for granted, as well as the greater percentage of employees would be amazed to know that the constitution further provides that the state shall ensure that the health, safety and welfare of all persons in employment are safeguarded AND NOT ENDANGERED OR ABUSED. A judge who hears a matter relating to employee welfare disputes/matters would therefore be compelled by these objectives. Additional to the above is the the obligation to ensure that there are adequate medical and health facilities for all persons, and that there is equal pay for equal work without discrimination on account of sex or any ground whatsoever.
This stance of the Nigerian constitution alongside the African Charter on Human and Peoples Rights are an avenue through which the dignity of human labour, and that of the human person can, and will get further reinforcement and protection, and that is the trend across the international community, standards that will not be lightly derogated from for whatever reason, not excluding the financial meltdown.
Section 17 thereunder provides for a State Social Order that is founded on ideals of Freedom, Equality and Justice. In fostering such a social order, it provides clearly that every citizen shall have equality of rights, obligations and opportunities before the law. It goes further to provide that the sanctity of the Human Person shall be recognized and human dignity shall be maintained and enhanced.
The above is a sufficient expression of solidarity and agreement with the stance of the 1948 declaration on labour matters and the dignity of the human person. We see this clearly when we look a little further down the provisions of subsection 3 of that section. There it states without equivocation that the state shall direct its policy towards ensuring that all citizens without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment. Buttressing this position is the further provision that the state shall ensure that conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life
Employers who normally take their employees' rights for granted, as well as the greater percentage of employees would be amazed to know that the constitution further provides that the state shall ensure that the health, safety and welfare of all persons in employment are safeguarded AND NOT ENDANGERED OR ABUSED. A judge who hears a matter relating to employee welfare disputes/matters would therefore be compelled by these objectives. Additional to the above is the the obligation to ensure that there are adequate medical and health facilities for all persons, and that there is equal pay for equal work without discrimination on account of sex or any ground whatsoever.
This stance of the Nigerian constitution alongside the African Charter on Human and Peoples Rights are an avenue through which the dignity of human labour, and that of the human person can, and will get further reinforcement and protection, and that is the trend across the international community, standards that will not be lightly derogated from for whatever reason, not excluding the financial meltdown.
Thursday, June 3, 2010
THE DIGNITY OF HUMAN LABOUR: UNIVERSAL DECLARATION OF HUMAN RIGHTS, G.A. res 217A, 1948
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.
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