A GLANCE AT THE INDIAN HEMP ACT CAP 16 LFN 2004

A GLANCE AT THE INDIAN HEMP ACT CAP 16 LFN 2004

By James Ode Abah Esq

BONAFIDE LEGAL CHAMBERS                                                    

53, Mambolo Street,

Wuse Zone 2, F.C.T Abuja

Tel : 08038673238, 08055045007, 08027518927, 08170388724

The Indian Hemp Act Cap 16 LFN 2004, was enacted to make the planting, cultivation, importation of Indian hemp an offence.

Definition of Indian Hemp

The Act in section 1 defines Indian hemp to mean any plant or part of a plant of the genus cannabis or the separated resin, whether crude or purified, obtained from any plant of the genus cannabis or any preparation containing any such resin.

Offences as created under the Act

  1. Planting or cultivating Indian Hemp

Section 2(1) of the Act, specifically provides that any person who knowingly plants or cultivates any plant of the genus cannabis shall be guilty of an offence and liable on conviction to be sentenced either to death or imprisonment for the term of not less than twenty-one years.

2.Unlawful importation or sale of Indian Hemp

Importation of Indian hemp and the selling of Indian hemp is also an offence under the Act. Any person who imports any Indian hemp or knowingly sells any Indian hemp shall be guilty of an offence and be liable on conviction to be sentenced to imprisonment for a term of not less than twenty-one years.

3. Exportation of Indian Hemp

Exportation of Indian hemp is also an offence and any person who exports any Indian hemp shall be guilty of an offence and liable on conviction to imprisonment for a term of not less than twenty-one years.

4. Smoking or unlawful possession of Indian Hemp

Section 5 of the Act makes it an offence for any person to smoke and knowingly have Indian hemp in his possession. Any person who commits this offence shall be liable on conviction to imprisonment for a term not less than four years without the option of a fine.  However, it must be observed that it is not an offence for the possession of any medical preparation of Indian hemp in the circumstances such that no offence is committed against the Dangerous Drugs Act.

Where a person convicted of an offence is a child or a young person within the meaning of the Children and Young Persons Law of a State or the Children and Young Persons Law of a State or Children and Young Persons Act of the Federal Capital Territory (that is to say a person who is not more than seventeen years of age)   he shall be, in addition to twenty-one strokes of the cane, be sentenced to two years in a borstal, or such similar institution.

5. Possession of utensils for use in smoking Indian hemp

The Act states in section 6 that any person , who knowingly has  in his possession , any pipe or other utensil for use in connection with the smoking of Indian hemp shall be guilty of an offence and liable on conviction to imprisonment for a term of not less than five years.

6. Use of premises for sales and smoking of Indian Hemp.

Section 7 of the Act provides that any person who, being the occupier of any premises, permits those premises to be used for any of the following, that is to say_

a. Selling Indian Hemp.

b. Smoking Indian Hemp or

c. Preparing Indian hemp for smoking shall be guilty of an offence and be liable on conviction to imprisonment for a term of not less than ten years without option of a fine.    However it shall not apply to the use of premises for the sale of any medical preparation of Indian Hemp in circumstances such that no offence against the Dangerous Drugs Act is committed thereby.

OPINION

It is my humble opinion that Section 8 of the Act which gives every magistrate in any part of Nigeria the jurisdiction for summary trial for any offence under sections 4 to 7 of the Act conflicts with Section 251 of the Constitution of the Federal Republic of Nigeria 1999(as amended). It is important to note that the Constitution donates exclusive jurisdiction to the Federal High Court on civil and criminal causes and matters relating to drugs and poisons. By virtue of Section 251(3) thereof: The Federal High Court shall also have and exercise jurisdiction and power in respect of criminal jurisdiction and power in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of the section.

The Supreme Court has given its imprimatur to the fact that Indian hemp is a drug within the meaning of drugs in section 11 of the National Drug Law Enforcement Agency Act. In the case of OKEWU V F.R.N (2012) 9 NWLR (PT 1305) 327 The Court held that the constitution has made clear and copious provisions in allotting jurisdiction to the Federal High Court over criminal causes and matters touching on Indian hemp.Section 8 of the Indian Hemp Act is clearly in conflict with Section 251 0f the Constitution. The law is well settled that the Constitution is supreme, paramount and overshadows all other enactment promulgated by the legislature. Section 1(3) of the Constitution makes it clear that all other laws must not only be consistent with its provisions, but derive their potency and legitimacy from it. See the case of TANKO V STATE (2009) 4 NWLR.

                                                        

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VIOLENCE AGAINST PERSONS (PROHIBITION) ACT 2015: OFFENCES AND PENALTIES UNDER THE ACT: A BRIEF SUM UP

VIOLENCE AGAINST PERSONS (PROHIBITION) ACT 2015:  OFFENCES AND PENALTIES UNDER THE ACT: A BRIEF SUM UP

By James Ode Abah Esq

BONAFIDE LEGAL CHAMBERS

Legal Practitioners and Consultants

No 53 Mambolo Street

Wuse Zone 2 F.C.T Abuja

Tel: 0803867328, 08027518927

E Mail: odeabah@ymail.com Jameodeabah@gmail.com

 

The Violence Against Persons (Prohibition) Act 2015 was passed into law in a bid to eliminate violence in private and public life, prohibit all forms of violence against persons and to provide maximum and effective remedies for victims and punishment of offenders and for related matters connected therewith.

This Act is indeed a welcome development considering the fact that its provisions clearly criminalize various forms of domestic violence which have become an epidemic in Nigerian homes.  The Act however applies only to the Federal Capital Territory Abuja. The National Agency for The Prohibition of Trafficking in Persons and Other related Matters (NAPTIP) is mandated to administer the provisions of this Act and collaborate with the relevant stakeholders including faith based organizations.

Only the High Court of the Federal Capital Territory Abuja empowered by an Act of Parliament shall have the jurisdiction to hear and grant any application brought under the Act.

However it is important for a sustained public awareness on the provisions of this law in order for Nigerians to be familiar with the offences created on the Act so as to serve as a deterrent in the violation of same.

Offences under the Act

 

The offences as stipulated under the Act are as follows to wit:

Rape:

Section 1 of the Act defines Rape to mean when  a person intentionally penetrates the vagina , anus or mouth of another person with any other part of his or her body or anything else and the other person does not consent to the penetration  or the consent is obtained by force or by means of intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act  or the use of any substance or additive capable of taking way  the will of such person. It is important to note that when rape is committed by a group of persons, the offenders are liable jointly to a minimum of 20 years imprisonment without option of fine. In all other cases a minimum of 12 years imprisonment without option of fine.

Inflicting Physical Injury on a Person

A person  who willfully causes and inflicts physical injury on another person by means of any weapon , substance or object comits an offence and is liable on conviction to a term of imprisonment not exceeding 5 years or a fine not exceeding N100,000.00 or both. A person who attempts to commit the act of violence also commits an offence and is liable on conviction to a term of imprisonment not exceeding 3 years or to a fine not exceeding N200,000.00 or both. A person who also incites , aids, abets or counsels another person to commit the act of violence also ccommits an offence and is liable on conviction to a term of imprisonment not exceeding 3 years or to a fine not exceeding N200,000.00 or both.

Willfully Placing a Person in fear of Physical injury

A person who willfully or knowingly places a person in fear of physical injury commits an offence and is commits an offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N200,000.00 or both. . A person who attempts to commit the act of violence also commits an offence and is liable on conviction to a term of imprisonment not exceeding 1 year or to a fine not exceeding N200,000.00 or both.

Offensive Conduct

It is an offence under the Act if a person compels another, by force or threat to engage in any conduct or act, sexual or otherwise, to the detriment of the victim’s physical or psychological wellbeing. Such person upon conviction is liable  liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N500,000.00 or both.

 

Prohibition of Female Circumcision or  Genital Mutilation

 

This provision is indeed a welcome development as it is now a crime within the Federal Capital Territory Abuja to circumcise any girl no matter what of the country one comes from.  Section 6 of the Act clearly stipulates that the circumcision or genital mutilation of the girl child or a woman is prohibited. A Person who performs female circumcision or genital mutilation or engages another to carry out such circumcision or mutilation commits an offence and is liable on  conviction to a term of imprisonment not exceeding 4 years or to a fine not exceeding N200,000.00 or both. A who also attempts to carry out the offence of female circumcision or Genital Mutilation also commits an offence and is liable on  conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N100,000.00 or both. A person who also incites , aids or abets or counsels another to commit the offence of female  circumcision or mutilation commits an offence and is liable on  conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N100,000.00 or both.

Frustrating Investigation

 

The Act makes it an offence for any person to defraud or conceal an offence or frustrate the investigation and prosecution of offenders under the Act or any other enactment which is deemed a felony and is  liable on conviction to a term of imprisonment not exceeding 3 years or to a fine not exceeding N500,000.00 or both.

Willfully Making False Statements

A person who willfully makes false statement, whether oral or documentary in any judicial proceeding under the Act with the aim of initiating investigation or criminal proceedings under the Act against another person commits an offence is liable on conviction to a fine of N200, 000.00 or a term of imprisonment not exceeding 12 months.

Forceful Ejection from Home

The Act also makes it an offence for a person who forcefully evicts his or her spouse from his or her home or refuses him or her access commits an  offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N300,000.00 or both. A person who also attempts to forcefully evict his or her spouse also commits an offence and is liable on conviction to a term of imprisonment not exceeding 1 years or to a fine not exceeding N200,000.00 or both. A person who tries to incites, aides , abets or counsels another to forcefully evict his or her spouse also commits an offence and is liable upon conviction to a term of imprisonment not exceeding 1 year or to a fine not exceeding N200,000.00 or both.

Depriving a Person of his or her liberty

Depriving a person of his or her liberty is also an offence and  attracts is  a term of imprisonment not exceeding 2 year or to a fine not exceeding N500,000.00 or both upon conviction.

 

Damage to Property with Intent to Cause Distress

It is also an offence for a person to cause mischief or destruction or damage to property of another with intent to cause or knowing that it is likely to cause distress or annoyance to the victim. Same carries upon conviction a term of imprisonment not exceeding 2 year or to a fine not exceeding N300,000.00 or both upon conviction.

 

 

Forced Financial Dependence or Economic Abuse

A Person who causes forced financial dependence or economic abuse of another commits an offence under the Act. Upon conviction a term of imprisonment not exceeding 2 years or to a fine not exceeding N500,000.00 or both upon is prescribed for this offence.

 

Forced Isolation or Separation from Family  and Friends

 

 

Isolation of a person or separation of another from family and friends is also deemed an offence. Upon conviction a term of imprisonment not exceeding 6 months or to  fine not exceeding N100,000.00 or both upon is prescribed for this offence.

Emotional, Verbal and Psychological Abuse

Emotional, verbal and psychological abuse on another is also an offence under the Act and Upon conviction a term of imprisonment not exceeding 1 year  or to a fine not exceeding N200,000.00 or both upon is prescribed for this offence.

Harmful Widowhood Practices

 

A Person who subjects a widow to harmful practices commits an offence and is liable upon  conviction a term of imprisonment not exceeding 2years or to  fine not exceeding N500,000.00 or both upon is prescribed for this offence. The Act defines harmful traditional practices to mean all traditional behavior, attitudes or practices which negatively affect the fundamental rights of women , girls or any person and includes harmful widowhood practices, denial of inheritance or succession rights , female genital mutilation or female circumcision , forced marriage and forced isolation from family.

Abandonment of Spouse, Children and Other Dependants without Sustenance

It is now a crime in the Federal Capital Territory for a person to abandon a wife or husband, children or other dependent without means of sustenance. The penalty for this offence attracts a term of 3 years imprisonment or to fine not exceeding N500, 000.00 or both.

 

 

 

 

Stalking

A person who stalks another commits an offence and is liable on conviction a term of 2 years imprisonment or to fine not exceeding N500, 000.00 or both.

Intimidation

A person who intimidates another commits an offence and is liable on conviction a term of 1 year imprisonment or to fine not exceeding N200, 000.00 or both.

 

Spousal Battery

A person who batters his or her souse commits an offence and is liable on conviction to a term of imprisonment not exceeding 3 years or a fine not exceeding N200,000,00 or both.

Harmful Traditional Practices

A Person who carries out harmful and traditional practices on another commits an offence and is liable on conviction to a term of imprisonment not exceeding 4years or a fine not exceeding N500,000,00 or both. As pointed out earlier, the defines harmful traditional practices to mean all traditional behavior, attitudes or practices which negatively affect the fundamental rights of women , girls or any person and includes harmful widowhood practices, denial of inheritance or succession rights , female genital mutilation or female circumcision , forced marriage and forced isolation from family.

Attack with Harmful Substance

The Act stipulates further that a person who uses chemical, biological or any other harmful liquid on another commits and offence and is liable on conviction to a term of life imprisonment without an option of fine. Furthermore a person who attempts to commit the act of violence as regards the using of chemical, biological or any harmful liquid on another also commits an offence   and is liable on conviction to a term of imprisonment not exceeding 25 years without option of fine. However a person who receives or assists another  who, to his knowledge or her knowledge commits the offence described is also liable on conviction to a term of imprisonment not exceeding 25 years without option of fine.

Administering a Substance with Intent

 

A person commits an offence if he intentionally administers a substance to , or causes a substance to be administered to or taken by, another person with the intention of stupefying or overpowering that person so as to enable any person  to engage in a sexual activity with that person. The penalty for this offence attracts a term not exceeding 10 years imprisonment or to fine not exceeding N500, 000.00 or both.

Political Violence.

 

A person who commits political violence is guilty of an offence and liable on conviction on a term of imprisonment not exceeding four years or a fine not exceeding N500, 000.00 or both. The Act defines political violence to mean any act or attempted act of violence perpetrated in the course of political activities, such as elections, and includes the acts of thuggery, mugging, use of force to disrupt meetings or the use of dangerous weapons that may cause bodily harm or injury. Any person who attempts to commit the offence of political violence is also commits an offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N300, 000.00 or both.

Violence By State Actors

The Act defines State Actors as group of persons, structured or organized institutions and agencies. A state actor who commits political violence commits an offence and is liable to a term of conviction to a term of imprisonment not exceeding 4 years or to a fine not exceeding N1,000,000.00 or both.

Incest Schedule

 

Section 25 of the Act provides that a person who knowingly  and willfully have carnal knowledge of another within the prohibited degrees of consanguinity and affinity as contained in the schedule of the Act with or without consent, commits incest and is liable on conviction to a minimum  term of 10  years  without an option of fine. In the case where two parties consent to commit incest, provided that the consent was not obtained by fraud or threat, 5 years imprisonment without an option of fine.

Indecent Exposure

It is important to note that section 26 of the Act makes it an offence for a person who intentionally exposes his or her genitals organs or a substantial part thereof, with the intention of causing distress to the other party, or that another person seeing it may be tempted or induced to commit an offence under the Act , commits an offence termed “ Indecent exposure”. Furthermore the Act states further that a person who intentionally exposes his or her genital organs, or a substantial part thereof, and induce another to either massage or touch with the intention of deriving sexual pleasure from such acts commits an offence. The Penalty for the offence of indecent exposure attracts a term of  one 1 year imprisonment  upon conviction or a fine not exceeding N500,000 or both.

CONCLUSION / OPINION

From the provisions of the Act it can be clearly gleaned that the new law prohibits female circumcision or genital mutilation, forceful ejection from home and harmful widowhood practices. The Law also prohibits indecent exposure of genital parts by persons and  abandonment of spouse, children and other dependents without sustenance, battery and harmful traditional practices.

In actual fact the law has created the legal framework for the prevention of all forms of violence against vulnerable persons, especially women and girls. This is indeed without doubt a welcome development considering the various forms of domestic violence which has become a cancer in the Nigerian society.

By the provisions of this Act, economic abuse, forced isolation and separation from family and friends, substance attack, depriving persons of their liberty, incest, indecent exposure, among others are now criminal offenses. The law if well implemented will go a long way in reducing , suppressing and if possible eliminate violence in private and public life as it provides effective remedies for victims of violence, and punishment of offenders.

 

PRACTISING FEES OF LEGAL PRACTITIONERS IN NIGERIA: WHETHER PAYMENT OF SAME CAN BE WAIVED: THE POSITION OF THE LAW

PRACTISING FEES OF LEGAL PRACTITIONERS IN NIGERIA: WHETHER PAYMENT OF SAME CAN BE WAIVED: THE POSITION OF THE LAW By James Ode Abah Esq

The law is clear without peradventure that generally a legal practitioner has the right of audience in all courts of law sitting in Nigeria. This position has been asserted in a number of decided cases by the Apex Court
In the case of AJAKAIYEV F.R.N (2010) 11 NWLR PT 1206 AT 500 PP PG 523 PARAS F-H the court held that a person who is qualified as a legal practitioner within the meaning of the Legal Practitioners Act is entitled and has absolute right and privilege to appear and be accorded audience in any court of law or tribunal throughout the country.
However one major exception to this general rule of the right of audience of lawyers in all courts in Nigeria is clearly stated in Section 8 (2) The Legal Practitioners Act (Cap L11) Laws of the Federation of Nigeria 2004.
The practice of lawyers paying practicing fee is clearly rooted in the provisions of Section 8 (2) of The Legal Practitioners Act (Cap L11) Laws of the Federation of Nigeria 2004 which clearly states that no legal practitioner shall be accorded the right of audience in any court in Nigeria in any year, unless he has paid to the Registrar in respect of that year , a practicing fee as from time to time prescribed by the Attorney – General of the Federation after consultation with the association ( Nigerian Bar Association).
It is important to note that lawyers are expected to pay the required practicing fee to the Registrar ( The Chief Registrar of the Supreme Court) within the time prescribed by the Attorney General of the Federation after due consideration from the Nigerian Bar Association.
However it is important to note that the provisions of the Legal Practitioners Act are statutory and therefore matters of substantive law which cannot be waived as held in the Supreme Court case of SLB CONSORTIUM LTD V N.N.PC (2011) 9 NWLR PT 1252 AT 317 P PG 332 PARA E.

NOTABLE FEATURES OF THE PENSION REFORM ACT 2014 By James Ode Abah Esq

The Pension Reform Act 2014 was signed into law on the 1st of July 2014. The Act repealed the Pension Reform Act No.2 2004, The Pension Act 1990, The Police and Other Agencies Pensions Offices (Establishment etc) Act 1993 and the Police Pension Rights of Inspector –General of Police Act 1993. See Section 117 of the Act.

The Act creates the legal framework that governs and regulates the administration of uniform contributory pension schemes both in the Private and Public Sector in Nigeria.

Objectives of the Act

The objectives of the Act are clearly spelt out in section 1 of the Act which involves establishing   uniform set of rules, regulations and standards for the administration and payment of retirement benefits for the Public Service of the Federation, the Public Service of the Federal Capital Territory, the Public Service of the State Governments, the public Service of the Local Government Councils and the private sector.

The Act also envisages the making of provision for the smooth operations of the Contributory Pension Scheme and to ensure that every person who worked in either the Public Service of the Federation, Federal Capital territory, States and Local Governments or the Private Sector receives his retirement benefits as and when due and also assisting improvident individuals by ensuring that they save in order to cater for their livelihood during old age.

Applicability of the Act 

The Act applies to any employment in the Public Service of the Federation, the Public service of the F.C.T, the Public Service of the states, the Public Service of the Local Governments and Private Sector.

It is important to note that the Act clearly states in Section 2 (2) the scheme shall apply to employees in the Private sector who are in the employment of an organization in which there are 15 or more employees.

However Section (3) is to the effect that employees of organizations with less than three employees as well as self employed persons shall be entitled to participate under the scheme in accordance with the guidelines issued by the National Pension Commission.

Establishment of a Contributory Pension Scheme

Section 3 of the Act establishes a contributory Pension Scheme for the payment of retirement benefits of employees to the scheme applies under the Act.

Applicability of the Contributory Pension Scheme

The scheme is clearly applicable to employees in the private sector as employees in the employment in the Public Service of the Federation, the Public service of the F.C.T, the Public Service of the states, the Public Service of the Local Governments.

Categories of Persons exempted from the Contributory Pension Scheme

The categories of persons mentioned in section 291 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are exempted from the contributory pension Scheme.

A glance at Section 291 of the Constitution will reveal that same applies strictly to the tenure of office and pension rights of judicial officers.

Also any employee who is entitled to retirement benefits under any pension scheme existing before the 25th day of June 2004, being the Commencement of the Pension Reform Act 2004, but as at that date had 3 or less years to retire is also exempted from the scheme. See Section 5(1) (b) of the Act.

Supervision of retirement benefits of employees exempted from the scheme

The administration of retirement benefits of the categories of employees exempted from the scheme as specified in section 5(1)(b) of the Act is subject to the supervision and regulation of the National pension Commission as established in section 17 of the Act.

Retirement Benefits

The Act also makes provisions for retirement benefits as specified in Section 7 of the Act.

Retirement Savings Account

Every employee which the Act applies to is expected to maintain an account knows as the retirement savings account in his name with any Pension Fund Administrator of his choice.

The employee has a duty to notify his employer of the details of such account.

The employer has a duty to deduct from source the monthly contribution of the employee and not later than 7 days from the day the employee is paid his salary remit an amount comprising the employee’s contribution and the employer’s contribution to the          Pension Fund administrator of the employee.

It is the duty of the Pension Fund Administrator to cause to be credited the retirement savings account of the employee for whom the employer made payment.

An employer who fails to deduct or remit the contributions within the time stipulated is expected to the making the remittance already due and also be liable to a penalty as stipulated by the Commission.

Contributions of the Federal Government and Federal Capital Administration

The Act also makes provisions for the contributions of the Federal government to the retirement benefits of employees of the Public Service of the federation to be in charge on the Consolidated Revenue Fund of the Federation. The Contribution of the Federal Capital territory administration to the retirement benefits of employees of the F.C.T shall be in charge on the Revenue Fund of the F.C.T.

Withdrawals from retirement Savings Account

An employee is not entitled to make withdrawals from his retirement savings account before attaining the age of 50 years.

However any employee who retires , disengages or is disengaged from employment can make withdrawals in accordance with Section 7 of the Act on the advice of a suitably qualified physician or properly constituted medical board certifying that the employee is no longer mentally or physically capable of carrying out the functions of his office or due to the total or permanent disability either of the mind or body or before the age of 50 years in accordance with the terms and conditions of his employment.

The National Pension Commission

Section 17 of the Act establishes the National Pension Commission which is a body corporate with perpetual succession capable of suing and being sued in its corporate name.

The principal objects of the Commission is to enforce and administer the provisions of the Act and co-ordinate and enforce all other laws on pension and retirement benefits and also to regulate , supervise and ensure the effective administration of pension matters and retirement benefits.

Closed Pension Fund Administrator

Closed pension fund administrators licensed by the Commission before the commencement of the Act may continue to exist provided that new employees of sponsor companies join the Contributory Pension Scheme and Open Retirement Savings Account.

The Act clearly provides in Section 52 of the Act that every closed pension fund administrator shall be subject to the supervision and regulation of the Commission and deemed to be a pension fund administrator.

Funds with Nigeria Social Insurance Trust Fund

The Act preserves the right of the Nigeria Social Insurance Trust Fund to continue to maintain the company it established under the Pension Reform Act 2004 to undertake the business of Pension Fund Administrator in accordance with the Act.

Pension Fund Administrators and Pension Fund Custodians

The Act clearly provides that pension funds shall only be managed by Pension Fund Administrators licensed by the Commission while Pension Funds and assets shall only be held by pension Fund Custodians also licensed by the Commission.

A person proposing to operate as a Pension Fund Administrator is expected to apply to the commission for license otherwise operating as a pension fund administrator or pension fund custodian without license is an offence under the Act liable on conviction to a fine not less than N 10,000,000.00 or a term of not less than 10 years imprisonment or both such fine and imprisonment.

Investment of Pension funds

The Act clearly mandates Pension funds administrators to invest contributions made under the Act with the objectives of safety and maintenance for fair returns on amount invested.

Section 86 specifically provides that subject to the guidelines issued by the Commission, Pension funds and assets shall be invested in any of the following:

  • Bonds, bills and other securities issued or guaranteed by the Federal Government and the Central Bank of Nigeria
  • Bonds, bills and other securities issued by the States and Local Government.
  • Bonds, debentures, redeemable preference shares and other debt instruments issued by corporate entitles and listed on a Stock Exchange registered under the Investment and Securities Act.
  • Ordinary shares of Public Limited Companies listed on a securities exchange registered under the Investments and Securities Act.
  • Bank deposits and bank securities
  • Investment certificates of closed –end investment fund or hybrid investment funds listed on a securities exchange registered under the Investment and Securities Act with good track records of earning.
  • Units sold by open-end investment funds or specialist open-end investment funds registered under the Investments and Securities Act
  • Real estate development investments or
  • Specialist investment funds and such other financial instruments as the Commission may from time to time approve.

 Furthermore, a fund administrator may also invest the pension funds in units of any investment outside Nigeria within the categories of investments as set out in section 86 of the Act.

Restricted Investment

A Pension Fund Administrator is restricted under the Act to invest pension funds or assets in shares or other securities issued by the Pension Fund Administrator or its Pension Fund Custodian and also a shareholder of the Pension Fund Administrator or its Pension Fund Custodian

Restrictions on Sale of Pension fund assets

Section 89 of the Act clearly provides that a Pension Fund Administrators shall not sell pension fund assets to itself, any shareholder, director, affiliate, subsidiary, associate, related party or company of the Pension Fund Administrator, any employee of the Pension Fund Administrator, the spouse of any of the persons listed, affiliates of any shareholder of the Pension Fund Administrator or the pension Fund Custodian holding pension fund assets to the order of the Pension Fund Administrator and any related party to the Pension Fund Custodian.

Also a Pension Fund Administrator is prohibited from applying pension fund assets under its management by way of loans and credits or as collateral for any loan taken by a holder of retirement savings account or any person whatsoever.

Additional Restriction on Investments

The Commission has the power to make regulations, or impose additional restrictions on investments by Pension Fund Administrators with the object of protecting the interest of the beneficiaries of the Retirement Savings account.

Offences and Penalties

A person who contravenes who contravenes any provisions of the Act and shall be liable on conviction to a fine of not less than N250,000 or to a term of one year imprisonment or to both fine and imprisonment  when no fine penalty is prescribed.

Furthermore, a pension fund administrator or Pension Fund Custodian or person or body who misappropriates  , Pension funds commits an offence and is liable on conviction to a fine of an amount equal to three times the amount so misappropriated or diverted or to a term of not less than 10 years imprisonment or both fine and imprisonment.

A Pension Fund Custodian who   contravenes section 70 of the Act is liable on conviction to a fine of not less than N10, 000.000 and each of its director or principal officers is liable to a fine of not less than N 5,000,000 or to a term of not less than 5 years imprisonment or to both fine and imprisonment.

NOTABLE FEATURES OF THE PENSION REFORM ACT 2014 By James Ode Abah Esq

The Pension Reform Act 2014 was signed into law on the 1st of July 2009. The Act repealed the Pension Reform Act No.2 2004, The Pension Act 1990, The Police and Other Agencies Pensions Offices (Establishment etc) Act 1993 and the Police Pension Rights of Inspector –General of Police Act 1993. See Section 117 of the Act.

The Act creates the legal framework that governs and regulates the administration of uniform contributory pension schemes both in the Private and Public Sector in Nigeria.

Objectives of the Act

The objectives of the Act are clearly spelt out in section 1 of the Act which involves establishing   uniform set of rules, regulations and standards for the administration and payment of retirement benefits for the Public Service of the Federation, the Public Service of the Federal Capital Territory, the Public Service of the State Governments, the public Service of the Local Government Councils and the private sector.

The Act also envisages the making of provision for the smooth operations of the Contributory Pension Scheme and to ensure that every person who worked in either the Public Service of the Federation, Federal Capital territory, States and Local Governments or the Private Sector receives his retirement benefits as and when due and also assisting improvident individuals by ensuring that they save in order to cater for their livelihood during old age.

Applicability of the Act 

The Act applies to any employment in the Public Service of the Federation, the Public service of the F.C.T, the Public Service of the states, the Public Service of the Local Governments and Private Sector.

It is important to note that the Act clearly states in Section 2 (2) the scheme shall apply to employees in the Private sector who are in the employment of an organization in which there are 15 or more employees.

However Section (3) is to the effect that employees of organizations with less than three employees as well as self employed persons shall be entitled to participate under the scheme in accordance with the guidelines issued by the National Pension Commission.

Establishment of a Contributory Pension Scheme

Section 3 of the Act establishes a contributory Pension Scheme for the payment of retirement benefits of employees to the scheme applies under the Act.

Applicability of the Contributory Pension Scheme

The scheme is clearly applicable to employees in the private sector as employees in the employment in the Public Service of the Federation, the Public service of the F.C.T, the Public Service of the states, the Public Service of the Local Governments.

Categories of Persons exempted from the Contributory Pension Scheme

The categories of persons mentioned in section 291 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are exempted from the contributory pension Scheme.

A glance at Section 291 of the Constitution will reveal that same applies strictly to the tenure of office and pension rights of judicial officers.

Also any employee who is entitled to retirement benefits under any pension scheme existing before the 25th day of June 2004, being the Commencement of the Pension Reform Act 2004, but as at that date had 3 or less years to retire is also exempted from the scheme. See Section 5(1) (b) of the Act.

Supervision of retirement benefits of employees exempted from the scheme

The administration of retirement benefits of the categories of employees exempted from the scheme as specified in section 5(1)(b) of the Act is subject to the supervision and regulation of the National pension Commission as established in section 17 of the Act.

Retirement Benefits

The Act also makes provisions for retirement benefits as specified in Section 7 of the Act.

Retirement Savings Account

Every employee which the Act applies to is expected to maintain an account knows as the retirement savings account in his name with any Pension Fund Administrator of his choice.

The employee has a duty to notify his employer of the details of such account.

The employer has a duty to deduct from source the monthly contribution of the employee and not later than 7 days from the day the employee is paid his salary remit an amount comprising the employee’s contribution and the employer’s contribution to the          Pension Fund administrator of the employee.

It is the duty of the Pension Fund Administrator to cause to be credited the retirement savings account of the employee for whom the employer made payment.

An employer who fails to deduct or remit the contributions within the time stipulated is expected to the making the remittance already due and also be liable to a penalty as stipulated by the Commission.

Contributions of the Federal Government and Federal Capital Administration

The Act also makes provisions for the contributions of the Federal government to the retirement benefits of employees of the Public Service of the federation to be in charge on the Consolidated Revenue Fund of the Federation. The Contribution of the Federal Capital territory administration to the retirement benefits of employees of the F.C.T shall be in charge on the Revenue Fund of the F.C.T.

Withdrawals from retirement Savings Account

An employee is not entitled to make withdrawals from his retirement savings account before attaining the age of 50 years.

However any employee who retires , disengages or is disengaged from employment can make withdrawals in accordance with Section 7 of the Act on the advice of a suitably qualified physician or properly constituted medical board certifying that the employee is no longer mentally or physically capable of carrying out the functions of his office or due to the total or permanent disability either of the mind or body or before the age of 50 years in accordance with the terms and conditions of his employment.

The National Pension Commission

Section 17 of the Act establishes the National Pension Commission which is a body corporate with perpetual succession capable of suing and being sued in its corporate name.

The principal objects of the Commission is to enforce and administer the provisions of the Act and co-ordinate and enforce all other laws on pension and retirement benefits and also to regulate , supervise and ensure the effective administration of pension matters and retirement benefits.

Closed Pension Fund Administrator

Closed pension fund administrators licensed by the Commission before the commencement of the Act may continue to exist provided that new employees of sponsor companies join the Contributory Pension Scheme and Open Retirement Savings Account.

The Act clearly provides in Section 52 of the Act that every closed pension fund administrator shall be subject to the supervision and regulation of the Commission and deemed to be a pension fund administrator.

Funds with Nigeria Social Insurance Trust Fund

The Act preserves the right of the Nigeria Social Insurance Trust Fund to continue to maintain the company it established under the Pension Reform Act 2004 to undertake the business of Pension Fund Administrator in accordance with the Act.

Pension Fund Administrators and Pension Fund Custodians

The Act clearly provides that pension funds shall only be managed by Pension Fund Administrators licensed by the Commission while Pension Funds and assets shall only be held by pension Fund Custodians also licensed by the Commission.

A person proposing to operate as a Pension Fund Administrator is expected to apply to the commission for license otherwise operating as a pension fund administrator or pension fund custodian without license is an offence under the Act liable on conviction to a fine not less than N 10,000,000.00 or a term of not less than 10 years imprisonment or both such fine and imprisonment.

Investment of Pension funds

The Act clearly mandates Pension funds administrators to invest contributions made under the Act with the objectives of safety and maintenance for fair returns on amount invested.

Section 86 specifically provides that subject to the guidelines issued by the Commission, Pension funds and assets shall be invested in any of the following:

  • Bonds, bills and other securities issued or guaranteed by the Federal Government and the Central Bank of Nigeria
  • Bonds, bills and other securities issued by the States and Local Government.
  • Bonds, debentures, redeemable preference shares and other debt instruments issued by corporate entitles and listed on a Stock Exchange registered under the Investment and Securities Act.
  • Ordinary shares of Public Limited Companies listed on a securities exchange registered under the Investments and Securities Act.
  • Bank deposits and bank securities
  • Investment certificates of closed –end investment fund or hybrid investment funds listed on a securities exchange registered under the Investment and Securities Act with good track records of earning.
  • Units sold by open-end investment funds or specialist open-end investment funds registered under the Investments and Securities Act
  • Real estate development investments or
  • Specialist investment funds and such other financial instruments as the Commission may from time to time approve.

 Furthermore, a fund administrator may also invest the pension funds in units of any investment outside Nigeria within the categories of investments as set out in section 86 of the Act.

Restricted Investment

A Pension Fund Administrator is restricted under the Act to invest pension funds or assets in shares or other securities issued by the Pension Fund Administrator or its Pension Fund Custodian and also a shareholder of the Pension Fund Administrator or its Pension Fund Custodian

Restrictions on Sale of Pension fund assets

Section 89 of the Act clearly provides that a Pension Fund Administrators shall not sell pension fund assets to itself, any shareholder, director, affiliate, subsidiary, associate, related party or company of the Pension Fund Administrator, any employee of the Pension Fund Administrator, the spouse of any of the persons listed, affiliates of any shareholder of the Pension Fund Administrator or the pension Fund Custodian holding pension fund assets to the order of the Pension Fund Administrator and any related party to the Pension Fund Custodian.

Also a Pension Fund Administrator is prohibited from applying pension fund assets under its management by way of loans and credits or as collateral for any loan taken by a holder of retirement savings account or any person whatsoever.

Additional Restriction on Investments

The Commission has the power to make regulations, or impose additional restrictions on investments by Pension Fund Administrators with the object of protecting the interest of the beneficiaries of the Retirement Savings account.

Offences and Penalties

A person who contravenes who contravenes any provisions of the Act and shall be liable on conviction to a fine of not less than N250,000 or to a term of one year imprisonment or to both fine and imprisonment  when no fine penalty is prescribed.

Furthermore, a pension fund administrator or Pension Fund Custodian or person or body who misappropriates  , Pension funds commits an offence and is liable on conviction to a fine of an amount equal to three times the amount so misappropriated or diverted or to a term of not less than 10 years imprisonment or both fine and imprisonment.

A Pension Fund Custodian who   contravenes section 70 of the Act is liable on conviction to a fine of not less than N10, 000.000 and each of its director or principal officers is liable to a fine of not less than N 5,000,000 or to a term of not less than 5 years imprisonment or to both fine and imprisonment.

A GLANCE AT THE EMPLOYEES HOUSING SCHEMES (SPECIAL PROVISIONS) ACT CAP E8 LFN 2004

BY James Ode Abah Esq

The Employees Housing Schemes (Special Provisions) Act Cap E8 LFN 2004 was passed into law for the purpose of making it obligatory for employers of labour so designated under the Act to establish, execute and maintain housing scheme for its employees in every state in Nigeria.

It is important to note that the Act is meant to apply to any establishment that has in its employment not less than 500 employees.

Section 1 of the Act makes it obligatory for every designated employer, whether corporate or incorporate to submit for the consideration to the Minister (charged with the responsibility for welfare of labour) proposals for the establishment of a housing scheme for employees in respect of each state in the Federation.

The Act makes it clear that a designated employer means any employer that has not less than 500 persons in the employment in any state in the federation or any employer so designated by the Minister with the approval of the President which may be either by reference to the number of employees (whether or not more than 500) or the turn-over of profits of the trade or business of the employer concerned.

The Act makes it mandatory that the name and other relevant particulars of every such designated employer be published by the Minister in the Federal Gazette. The Act also in Section 1(3) envisage the provision housing scheme to include the provision on a rental basis of separate dwellings or blocks of flats for employees.

By the provisions of Section (2) every housing scheme shall make provision for not less than fifty units of accommodation in respect of each designated employer. The units shall also form part of an integrated development with other similar units and shall be located in a contiguous or near as may be reasonable in the circumstances to the places of work of the employees concerned.

Section 3 of the Act states that the Minister shall within 3 months after receipt of proposals from designated employers convey his approval  with or without modifications and specify the time within which it shall be implanted.

The Minister is also obligated to convey his intention when he rejects any proposals and subsequent to such notice to reject, the designated employer can make necessary adjustments and the minister may still convey the approval of the scheme.

However where a proposal of a designated employer is rejected in its entirety, the Minister shall set out the reasons for the rejection of the proposal. The designated employer concerned is expected to submit fresh proposals to the minister 3 months after the notice of rejection for approval by the minister.

 

Furthermore, the power of a designated employer to provide furniture is also guaranteed in section 4 of the Act. Such employer may fit out, furnish and supply under a hire –purchase agreement, furniture to the occupants of the units provided by the employer concerned.

By the provisions of Section 5 of the Act, The Minister with the prior approval of the president may by order published in the Federal Gazette exempt any person from the provisions of the Act:

where he is satisfied that a provision of a housing scheme or schemes as the case may be has been made by the person concerned as provided in the Act and on terms not less favourable than the like terms which the employees would have been entitled under the Act.

 

The housing needs in the particular locality have been substantially met.

 

The nature of the trade or business of a person is such that the person has or would normally have a usually disproportionate number of seasonal or temporary employees in his employment.

 

Section 6 of the Act established the National Housing Facilitation Council. The council is expected to advice the Minister on the implementation of the provisions of the Act and to discharge any other functions conferred on it by the Act.

The council is constituted by the Minister and shall consist of a public officer as a chairman,  a representative from the Federal Ministry of Employment, Labour and Productivity, the Federal Ministry of Works and Housing, Federal Mortgage Bank of Nigeria; the Federal Housing Authority. The council shall also contain two representatives of the Nigerian Employers’ Consultative Association; the Nigerian Labour Congress and two other persons (not being public officers) to be appointed by the Minister shall be part of the council.

 

Furthermore members of the council who are not public officers shall be expected to hold office for three years and shall also be eligible for re-appointment for one further period of three years.

 

The Act also established a state committee of the National Housing Facilitation Council which shall carry out duties in the state for which the committee was established.

 

 Every State Committee shall consist of a public officer as chairman thereof, to be appointed by the Commissioner responsible for industry and trade from his ministry and the following other members, that is-

 

  1. The representative in the State, of the Federal Ministry of Employment, Labour and Productivity.
  2. A representative of the State Ministry responsible for housing matters.
  3. A representative of any housing corporation established by law in the State.
  4. One person to be appointed by the Commissioner aforesaid to represent the interest of   local governments in the State.
  5. A representative of the Chambers of Commerce and Industry in the State.
  6. A representative of the State branch of the Nigerian Labour Congress,
  7. One person to represent interests not otherwise represented above.

 

The State committee is also expected to consider housing conditions in the State concerned and the needs of that State with respect to the provision of further schemes under the Act, and for that purpose to review the information which has been brought to its notice, either as a result of inspections and surveys carried out by the Committee or otherwise, and as often as occasion arises prepare and submit to the Council proposals for the provision of new schemes.

For the purposes of the Act, the secretary to the Council may by notice in writing addressed to or served on any designated employer, require that the employer furnish in such form as he may direct, information on such matters as may be specified by him. Such information requested is to furnished within 42 days of the notice.

The Act provides that if any designated employer furnishing information under section 10 of the Act fails to do so, such employer shall be guilty of an offence and liable on conviction-

(a)           in the case of an individual, to a fine of N200 or imprisonment for one month or to both such fine and imprisonment; or

(b)           in the case of a body corporate, to a fine of not less than N1,000.

In addition any designated employer who, for the purpose of complying with section 10 of the Act, knowingly or recklessly makes any statement or produces any document which is false in a material particular, shall be guilty of an offence, unless such employer proves that he had taken all reasonable steps to ascertain the truth of the statement made or contained in any document so produced or to satisfy itself as to the genuineness of any such document. Any designated employer found guilty of an offence under  shall be liable on conviction-

(a)           in the case of an individual, to a fine of N1,000 or imprisonment for 12 months or to both such fine and imprisonment; or

(b)           in the case of a body corporate, to a fine of not less than N5,000.

 

 

Where an offence under the Act is committed by a body corporate or firm or other association of individuals-

                (a)           Every director, manager, secretary or other similar officer of the body corporate;

                (b)           Every partner or officer of the firm;

                (c)           Every person concerned in the management of the affairs of the association; or

                (d)           Every person who was purporting to act in any such capacity as aforesaid, shall severally be guilty of that offence and liable to be prosecuted and punished for the offence in like manner as if he had himself committed the offence in an individual capacity, unless he proves that the act or omission constituting the offence took place without his knowledge, consent or connivance.

 The President may make such regulations for provision with respect to-

                (a)           the vesting of any interest in land acquired for or in connection with any housing scheme and of any houses, buildings or any structure whatsoever on, over or through land or          water comprised in any such land;

                (b)           The provision of roads, drainage, electricity, telephones and such similar facilities for housing schemes;

                (c)           Subsidies (if any) to be provided by the Federal Government or any other public authority;

                (d)           The provision of medical facilities, schools, open spaces, playgrounds, common laundry facilities and any other social facilities;

                (e)           The determination of rents payable;

                (f)            Maintenance and upkeep of buildings and surroundings;

                (g)           the appointment of a supervisory authority to ensure that infrastructural, super-structural and other facilities conform with the prescribed standards;  and

                (h)           such other matters as are required to be prescribed by the Act.

 

Finally the Act has interpreted:

the Committeeto  mean any State Committee of the Council established by section 8 of the Act;

 

the Council  to mean the National Housing Facilitation Council established by section 6 of the Act.

 

designated employer has the meaning assigned thereto in section 1 of the Act.

 

employee means any person who has entered into or works under a contract (whether expressed or implied or oral or written) with an employer, whether the contract is for manual labour, clerical work or for the discharge of administrative, executive, technical or professional functions and whether such contract is a contract of service or a contract personally to execute any work or labour, but does not include-

                (a)           any person employed otherwise than for the purposes of the employer’s business;

                (b)           members of the employer’s family;

                (c)           independent representatives, agents and commercial travellers; or

                (d)           any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material.

 “employer means any person who has entered into a contract of employment to employ any person as an employee either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representatives of a deceased employer.

 

Minister means the Minister charged with responsibility for the welfare of labour.