November 29, 2021
KMO LEGAL NEWSLETTER – NOVEMBER 2021
THE PETROLEUM INDUSTRY ACT 2021: REQUIREMENTS FOR INVESTING IN THE NIGERIAN PETROLUEM INDUSTRY
By Ruth Nwankwo (Associate)
INTRODUCTION
The Petroleum Industry Act 2021 (PIA) is now the uniform legal framework in the Petroleum Industry in Nigeria. The PIA provides legal, governance, regulatory and fiscal framework for the Nigerian petroleum industry and the development of host communities. This article highlights salient provisions and steps a potential investor (local or foreign) needs to take into cognizance.
- There are two main regulators in the Nigerian Petroleum Industry: the Nigerian Upstream Regulatory Commission (the Commission) for regulating upstream petroleum operations and the Nigerian Midstream and the Downstream Petroleum Regulatory Authority (the Authority) for regulating midstream and downstream petroleum operations.
- To engage in upstream petroleum operations, in addition to being an incorporated company in Nigeria, the following licenses and lease must be obtained from the Commission:
- Petroleum exploration license: it gives the holder the non-exclusive right to carry out petroleum exploration for 3 years. It is renewable for additional 3 years upon fulfilment of prescribed conditions and does not include the right to win, extract, or carry away any petroleum discovered in the licensed area.
September 30, 2021
GIG ECONOMY WORKERS: EMPLOYEES OR INDEPENDENT CONTRACTORS?
GIG ECONOMY WORKERS: EMPLOYEES OR INDEPENDENT CONTRACTORS?
Gig economy refers to the use of temporary or freelance workers to perform jobs typically in the service sector.[1] It is characterized by flexibility, zero hour contracts, self-employment, workers paid for limited contracts, and people engaging in more than one job.[2] Examples of jobs in the gig economy include ridesharing, delivery driving, selling craft, consulting, freelance writing, photography, coding and programming etc.[3] The terms “gig workers and on-demand companies” are often used to refer to participants in the gig economy.
Although a gig worker is usually engaged under a contract for service and therefore referred to as an independent contractor which is a major attractive feature in the gig economy for employers as an independent contractor is not entitled to benefits provided for typical employees, many gig economy participants exhibit both the features of an employee and an independent contractor. Thus, the question as to whether a person is an independent contractor or an employee often arises because there is a thin line between the two concepts which often overlap.
This issue of classification has raised many concerns and the need to address these concerns is pertinent now more than ever especially in light of the boom in the gig economy post covid-19 in addition to other factors such as technology, decline in traditional manufacturing jobs, shift in the economy, tax/payment issues, unemployment, underemployment etc.
In fact, a study conducted using the online labour index of Oxford University shows that covid-19 has positively affected the gig economy by increasing the number of participants in the gig economy. The index thus suggests that policies should be made to support the gig economy because of its potential to keep the world going.[4] This suggestion re-echoes the call to extend certain benefits to participants in the gig economy which has been on the rise and there is no better time to evaluate the employment relationships obtainable in the gig economy than now.
Globally, the gig economy has been identified as an important and growing issue making it clear that in many countries, it is felt that the traditional model of what constitutes employment needs to be revisited in the light of the growth in gig works to avoid misclassification and also extend certain benefits to participants in the gig economy.
In the United States of America, different positions obtain depending on the State. In California, the policymakers passed a law known as the Assembly Bill 5 (AB 5) law in 2019 which enabled gig workers to enjoy the same benefits as employees but it was extremely challenged. Thus, it is not surprising that in November 2020, another law known as Proposition 22 was passed which reverses AB 5 and allowed gig workers to be classified as independent contractors rather than employees.[5] In Tennessee, there is a similar trend as Tennessee lawmakers are currently considering legislation (HB 1978) that would classify gig workers as contractors and remove protections provided by worker’s compensation law and the Tennessee Employment Security Law.[6] This is a deviation from their present misclassification test that provides more of a balance between the interests of employers and workers. Some States are considering the similar legislation to Tennessee’s in this reclassification. In New Jersey, Governor Murphy signed a legislative package also referred to as “the misclassification package” on 20th January 2020 to curb worker misclassification and control the gig economy.[7] This position still obtains in New Jersey. The Federal government is not left out as it has made efforts to redefine the gig economy while conferring benefits on it through legislation such as the America Rescue Plan and Protecting the Right to Organize Act (PRO) 2021.[8]
In the United Kingdom, a working person can be classified as an “employee”, a “worker” or “self-employed”. A worker is entitled to certain but limited employment rights. The complex employment law issues associated with the gig economy were highlighted by the UK Employment Tribunal [ET] decision in Aslam and others v Uber BV and others ET/2202550/15. The Tribunal decided that the drivers in question were not self-employed independent contractors and were in fact workers within the meaning of the Employment Rights Act 1996 and, were therefore entitled to the benefit of workers’ rights, such as paid annual leave, the national minimum wage, rest breaks and pension contributions. The Tribunal found that the level of control exercised by Uber over its drivers could not be reconciled with a finding that the drivers are independent contractors and that the contractual arrangements between Uber and its drivers did not accord with the reality of the relationship. This decision of the tribunal was upheld by the UK Employment Appeals Tribunal. Upon further appeal all through to the Supreme Court, the decision was also upheld.[9]
In Ireland, the ‘worker’ category does not exist. The individual is either an employee or self-employed. The issue of the employment status of gig economy workers in Ireland was first addressed by the High Court on 20th December 2019 in Karshan (Midlands) Limited trading as Domino’s Pizza v Revenue Commissioners[10] and the court decided against the company operating a Domino’s franchise in respect of its appeal over the employment status of its delivery drivers. Whether the Courts would classify workers operating within the gig economy as employees, thereby according them full employment rights is for the future to tell. Each case will be determined based on its own merits. With the judgment delivered by the UK Supreme Court, there has been clamour for the Irish government to create an employment status for gig workers however, the government has no such plan.[11]
In India, the gig economy is growing massively but it still remains largely informal. Although the government may have provided social security benefits for gig workers under the Code on Social Security 2020, this does not address the challenges faced by gig workers in terms of other employment benefits because there has been no formal classification of participants in the gig economy in India.[12]
| In Australia, the employment status of gig workers are looking up because various sectors of the government are making moves towards providing employment benefits to gig workers which will be portable, that is, benefits which moves with the gig worker. In fact, a Senate Committee set up to lead the inquiry into Australia’s gig economy has raised concerns about the working conditions of gig workers. In addition, the labour sector has planned to start implementing the recommendations made by the Victorian government as part of the State government’s inquiry into the gig economy.[13] |
In Brazil, the issue of the employment status of gig workers has been going on for a while.[14] Lawsuits have been brought against Uber in Brazilian Labour Courts, all seeking for the classification of Uber drivers as employees. Different decisions have been taken by Labour Courts in the first instance in different States of Brazil. However, on appeal, the Superior Court of Justice, Brazil’s second highest Court ruled that Uber drivers were independent Contractors. It was the first time a Brazilian superior court has ruled on the issue, setting an interpretation likely to influence future court decisions related to similar apps.[15]
In France, although a Bill which was intended to create an employment status for participants in the gig economy failed,[16] the Court of Cassation which is one of the courts of last resort in France has ruled that an Uber driver’s relationship with Uber is a subordinating relationship thereby making his contractual relationship with Uber an employment contract. According to the Court, the control that Uber exercises over its drivers by setting fare prices, imposing routes and determining the condition of the transport service offered by the drivers show that they are not independent contractors but employees.[17] This is the second time a decision has been given in favour of a gig economy worker, the first being in favour of a delivery person who was declared an employee of the delivery company.[18] These decisions will no doubt have a positive impact on the gig economy in France.
Nigeria is not left out as the gig economy is steadily growing in the country especially in the light of the unemployment/underemployment rate in the country. Nevertheless, the classification of gig workers in Nigeria remains stagnant. The case of Oladapo Olatunji & Anor (Representing themselves and other Uber and Taxify Drivers in Nigeria in a Class Action) v. Uber Technologies System Nigeria Limited & 2 Ors[19] presented an opportunity for the National Industrial Court of Nigeria; the Court with the exclusive jurisdiction to adjudicate on Labour and Labour related matters, to address the status of Uber drivers under the Labour law. Unfortunately, the Court dismissed the case because the claimants were unable to prove their case as they didn’t furnish sufficient evidence that will aid the resolution of the case. However, the Court recognized that forms of work have changed and the traditional or orthodox distinctions between the worker/employee and the employer no longer exists or have been stretched to absurd limits. But all of these cannot be determined if there are no facts upon which the inquiry can be done as is the case in the instant suit. Therefore, there is need for a judicial pronouncement on this issue or a legislative intervention.
CONCLUSION AND RECOMMENDATION
It is clear from the above analysis that the regulation of the gig economy is imperative; not just as it affects gig economy workers but also on demand companies that make use of them as its impact on the society cannot be overlooked. The key word that resonates in determining the employment status of gig economy workers is “control”. A careful consideration of the terms of engagement of some gig workers especially those in the ride-sharing companies shows that they cannot be ideally called independent contractors but employees. For instance, provision of transportation services using an online platform forms the main business of ride-sharing companies and these companies hold out their drivers as competent drivers as they carry out inspections and require that the drivers meet some set standards. These companies also exert other control such as price fixing, the policy of going cashless etc.
It is trite that Equity looks at the substance and not the form. The form of engagement of some gig economy workers may qualify them to be called independent contractors but the substance of the contract and terms therein shows that they are actually employees and as such they are entitled to benefits accruing to employees.
There is no doubt that there is a need to review the employment law and employment related Laws in Nigeria and an overhaul of the employment system carried out. With the evolution and rapid growth of gig economy, this issue of overhaul becomes very crucial. Globally, the economy is rapidly changing and there is need to keep pace with the challenges such change has introduced otherwise Nigeria will risk being left far behind.
A legal or regulatory framework to control and regulate the gig economy is now pertinent.
Having a regulatory framework governing the gig economy will help immensely in the area of generating revenue through taxation. With such framework, the questions of whom to tax and how to recover the assessed amount can be easily answered. As employees, personal income tax can be deducted at source.
On the other hand, it has been suggested that portable benefits which will move with a freelance worker can be introduced. Employers could pay a certain percentage towards universal benefits for all works that they commission, regardless of the nature of their contract with the worker. This would enable independent workers to accumulate and manage their benefits, and eventually acquire a safety net like that of a full-time contracted employee.
In view of all these, it is imperative that when a person is engaged for a service, the agreement made should be carefully worded to avoid misclassification.
[1] https://www.merriam-webster.com/dictionary/gig%20economy assessed on 21/09/2021.
[2] Tejvan Pettinger, the gig economy available at https://www.economicshelp.org/blog/24205/labour-markets/the-gig-economy/ assessed on 21/09/2021.
[3] Kyriaki Raouna, 16 Best Gig Economy Jobs available at https://www.careeraddict.com/gig-economy-jobs assessed on 21/09/2021.
[4] Muhammad Umar, Yan Xu & Sultan Sikandar Mirza, The impact of covid-19 on the gig economy, available at https://www.tandfonline.com/doi/full/10.1080/1331677X.2020.1862688 assessed on 21/09/2021.
[5] Taylor Hersch, California’s gig economy survives, available at https://chamberbusinessnews.com/2021/02/10/gigeconomy/ assessed on 21/09/2021.
[6] Working in the gig economy? protection may be eliminated in TN, available at https://www.thunder1320.com/news/working-in-the-gig-economy-protections-may-be-eliminated-in-tn/ assessed on 21/09/2021.
[7] Greenbaum, Rowe, Smith & Davis LLP, Governor Murphy signs Legislative Package designed to curb gig economy; omits controversial Bill proposing revision of ABC test available on https://www.lexology.com/library/detail.aspx?g=309e140a-f85d-486a-96a5-d2ef3d0aa4c7&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-02-04&utm_term= assessed on 21/09/2021.
[8] Megan Knowlton Balne and Michael G. Greenfield, independent contractor status: is it a good gig for workers? Available at https://www.law.com/njlawjournal/2021/03/31/independent-contractor-status-is-it-a-good-gig/?slreturn=20210821072603 assessed on 21/09/2021.
[9] https://www.supremecourt.uk/cases/docs/uksc-2019-0029-judgment.pdf assessed on 21/09/2021.
[10] [2019] IEHC 894
[11] Colin Gleeson, Government has no plans to create new employment status for gig workers, available at https://www.irishtimes.com/business/work/government-has-no-plans-to-create-new-employment-status-for-gig-workers-1.4495989 assessed on 21/09/2021.
[12] How gig economy is becoming mainstream in India, available at https://www.tribuneindia.com/news/jobs-careers/how-gig-economy-is-becoming-mainstream-in-india-240369 assessed on 23/09/2021.
[13] Almee Chanthadavong, Not Acceptable says Senate Committee of Australia’s gig economy working conditions, available at https://www.zdnet.com/article/not-acceptable-says-senate-committee-of-australias-gig-economy-working-conditions/ assessed on 23/09/2021.
[14] Renan Bernardi Kalil, Backgrounder: Employment Status of gig workers in Brazil available at https://onlabor.org/guest-post-brazil-and-the-gig-economy/ assessed on 23/09/2021.
[15] Reuters, Brazil Court rules Uber drivers are freelancers, not employees available at https://www.reuters.com/article/us-uber-brazil/brazil-court-rules-uber-drivers-are-freelancers-not-employees-idUSKCN1VP315 assessed on 23/09/2021.
[16] France: Bill intended to create new status for platform economy workers defeated in Senate, available at https://www.loc.gov/item/global-legal-monitor/2020-07-02/france-bill-intended-to-create-new-status-for-platform-economy-workers-defeated-in-senate/ assessed on 23/09/2021.
[17] PYMNTS, France’s Highest Court says Uber Drivers are Employees available on https://www.pymnts.com/gig-economy/2020/france-court-ruling-uber-driver-employee/ assessed on 23/09/2021.
[18] LINEE, in France, is a driver or delivery person paid via a digital platform considered an employee of the company? Available on https://lineenetwork.org/france-driver-delivery-person-employee-uber-take-eat-easy/ assessed on 23/09/2021.
[19] Suit No. NICN/LA/546/2017, judgment delivered on 4 December 2018; per Kanyip J. available at https://judgement.nicnadr.gov.ng/details.php?id=3075 assessed on 23/09/21.
May 24, 2021
KMO LEGAL NEWSLETTER – MAY 2021
OVERVIEW OF THE SEC REGULATIONS ON MICRO-INVESTMENT TECH AND DIGITAL SUB-BROKER PLATFORMS
By Akorede Folarin (Associate)
INTRODUCTION
The increasing popularity and adoption of digital micro-investment Fintech platforms like Chaka, Bamboo, Trove, etc. had been under threat of being proscribed but the recent regulatory amendments by the Securities and Exchange Commission (SEC) has given them a new lease of life.
On April 8 2021, the Securities and Exchange Commission (SEC) issued a statement titled: “Proliferation of Unregistered Online Investment and Trading Platforms Facilitating Access to Trading in Securities Listed in Foreign Markets” by which it effectively proscribed the activities of micro-investment fintech companies like Risevest, Bamboo, Trove, etc. which facilitate access to trading in foreign securities to Nigerian investors for being outside of its regulatory purview and in violation of the applicable laws and regulations in Nigeria.
In the same statement, the SEC warned the investing public to be wary of the proliferation of these platforms and enjoined the capital market operators (CMOs) purportedly operating in partnership with these platforms to desist henceforth. This came on the heels of the Commission earlier obtaining from the Investment and Securities Tribunal (IST) interim orders suspending Chaka from carrying out investment activities outside the regulatory purview of the Commission and without requisite registration.
However, on 22 April 2021, the SEC, in a commendable turn of events, amended its Consolidated Rules and Regulation (“the Amendments”) to make provisions for the incorporation of the activities of these digital micro-investment tech platforms, especially with regards to the definition of sub-broker, the keeping of the records of transactions with clients, and the introduction of a risk management regime for these platforms.
April 7, 2021
KMO LEGAL NEWSLETTER – APRIL 2021
AN OVERVIEW OF THE NEW SEC CROWDFUNDING RULES
By Akorede Folarin (Associate)
INTRODUCTION
Pursuant to the powers conferred on it by Section 313 of the Investment and Securities Act 2007 (ISA), the Securities and Exchange Commission (SEC) released Rules for the Regulation of Crowdfunding in Nigeria on January 21, 2021. The Rules amongst other things seeks to provide a definite regulatory framework for equity crowdfunding activities in Nigeria and to make the crowdfunding market safe, conducive, and reliable for all stakeholders. This newsletter evaluates the imports of the new Rules and their potential impact on Micro-, Small and Medium-sized Enterprises (MSMEs)and their access to capital for growth and expansion going forward.
March 19, 2021
KMO LEGAL NEWSLETTER – MARCH 2021
BOFIA 2020 AND THE NEW REGIME FOR BANKS’ INSOLVENCY AND RESTRUCTURING IN NIGERIA
By Akorede Folarin (Associate)
INTRODUCTION
Nigeria passed the Banks and other Financial Institutions Act 2020 (BOFIA 2020) into law on 13 November 2020, repealing the erstwhile Banks and other Financial Institutions Act 1991 (BOFIA 1991). The new Act (BOFIA 2020) makes provisions for a more modern, more conducive and business-friendly legal framework for the insolvency and restructuring of banks and other financial institutions in Nigeria. This edition of the newsletter highlights some of the provisions.
January 19, 2021
KMO LEGAL NEWSLETTER – JANUARY 2021 (VOL.1)
EXTENT OF LIABILITY IN THE EXECUTION OF BANK REFERENCE FORMS
By Felix Ayem (Associate)
Introduction
One of the criteria for opening a current account in any Bank in Nigeria, is the requirement that at least two referees must recommend the prospective account holder to the Bank. The Referees are expected to execute Reference Forms recommending the persons believed to be well known to them.
Reference Forms of different banks contain some conditions conspicuously written on them. The purpose of executing Reference Forms by Referees however appears to be a mere act of introducing persons whom, in their estimation, are reputable and capable of operating or maintaining current accounts with the Bank without more. However, there is a recent practice on the part of some Banks in Nigeria to attempt to hold referees liable where a customer defaults in the payment of a loan facility obtained in the in the ordinary course of his banking relationship.
In this article, emphasis is on the extent of the liability of Referees in executing Reference Forms. Can a Referee be held liable for all subsequent action of the referenced customer particularly in the event of default in repayment of a loan facility as described above? In other words, does a mere reference of a customer as a fit and proper person to operate a current account with a Bank translate to a guarantee agreement between the Referee and the Bank?
December 21, 2020
KMO LEGAL NEWSLETTER – DECEMBER 2020 (VOL.2)
DISPUTE RESOLUTION UNDER THE AFRICAN CONTINENTAL FREE TRADE AREA (AfCFTA) AGREEMENT
By Ruth Nwankwo (Associate)
Nigeria has ratified the African Continental Free Trade Area (AfCFTA) Agreement which will come into effect on 1st January 2021 following the approval of the Federal Executive Council. This is after more than a year Nigeria became a signatory to the Agreement on 7th July 2019. The reason for the cold feet shown by Nigeria towards the ratification of the Agreement is to ensure the protection of Nigerian Industries.1 There was much deliberations and consultations with trade and industry stakeholders on the threats the operation of the Agreement may present such as the rise in smuggling, import surge arising from trade liberalisation without corresponding growth in export of Nigerian products and the fear of Nigeria turning into a “dumping ground” for non-African goods.2
The AfCFTA Agreement portend a good omen for Africa because of its objectives which include the creation of a single market for goods and services, facilitation of investments, enhancing competitiveness of the economies of State Parties etc.3 The Agreement seeks a progressive elimination of tariffs and non-tariff barriers to trade in goods, liberalisation of trade in services, cooperation on investment, intellectual property rights, competition policy, trade-related areas, custom matters, establishment of a dispute settlement mechanism amongst others.4
An assessment conducted by the Economic Commission for Africa5 reports that AfCFTA will be a game changer for stimulating intra-African trade which is projected to increase by between 15% and 25% depending on liberalization efforts in 2040 compared to a situation with no AfCFTA in place The more ambitious the liberalisation of trade, the greater the expansion. This expansion will be most pronounced in industrial sectors thereby providing great opportunities to industrialize through trade.6
December 15, 2020
KMO LEGAL NEWSLETTER – DECEMBER 2020 (VOL. 1)
AN OVERVIEW OF THE BANKS AND OTHER FINANCIAL INSTITUTIONS ACT 2020
By Akorede Folarin (Associate)
The amendment and replacement of the Banks and Other Financial Institutions Act (BOFIA) 2004, has long been touted to be the next major milestone in the country’s ambitious drive towards creating an enabling business environment in the country and improving the Nigerian investment climate.
The now repealed Act had been in operation for about 16 years without amendment, despite progressive innovations in the banking and finance sector globally and the increasing complexities as a result of disruptive technologies and their associated risks. Also, lax corporate governance under the old Act had given room for insider abuse and corruption, culminating in the humongous increase in non-performing loans (NPLs) in the country’s banking system. Additionally, the erosion of faith in the Nigerian banking system as a result of the 2004 and 2008 financial crises which can be traced to the excessive risk taking, reckless credit facilities, and other unethical practices in the system had resulted in the long and growing public clamour by stakeholders for the review of the regulatory framework for banking and finance in Nigeria.
The enactment of the Banks and Other Financial Institutions Act (BOFIA) 2020 is, therefore, intended to update the existing Act to tackle some of these debilitating challenges in the Nigerian banking and financial services industry occasioned by an Act which has proved to be grossly inadequate in the present ecosystem and to bring it in line with global best practices. The Act seeks to regulate banking and businesses of other financial institutions by prohibiting the carrying on of such businesses in Nigeria except under license and by a company incorporated in Nigeria; update laws governing Banks, Financial Institutions and Financial Services Companies; enhance efficiency in the process of obtaining/granting banking licenses; accurately delineate the regulatory functions of the Central Bank of Nigeria (“the Bank” / “CBN”) in the financial services industry; update and incorporate the laws for enacting, licensing and regulating microfinance banks; regulate the activities of financial technology companies (Fin-Techs); and update commensurate penalties for regulatory breaches in the financial services sector.
The key provisions of the new Act are highlighted as follows:
BANKING BUSINESS
Operating without License
- The Act makes it an offense for any person/body to transact banking business without a valid license issued by the CBN. The Act goes further to provide a stiff penalty of 5 years imprisonment or a fine not less than N50 million or two times the cumulative deposits or other amount collected or both imprisonment and fine for anyone who violates this provision. This we expect will serve as a deterrent to operators of Ponzi schemes who swindle naïve investors through fraudulent means. The Central Bank of Nigeria (CBN) itself has previously iterated that widespread innovation in channels for delivering financial services, emergence of new types of regulated institutions, advancements in supervisory techniques and methodologies are some of the contemporary developments that necessitate the need to upscale the legal framework for banking regulation and supervision in Nigeria.
October 15, 2020
HIGHLIGHTS ON THE EMERGENCY ECONOMIC STIMULUS BILL, 2020**
By Michael Ezeh and Latifat Moradeyo (Associates)
Although, the primary target of the COVID 19 pandemic is public health, its impact on the global economies is quite calamitous and unprecedented. Business process functions across most industries are severely deterred due to the immense pressure resulting from the effects of the Covid-19 pandemic, therefore, many multinationals, complex and business-critical services running a global scale as well as the Micro, Small and Medium Enterprises (MSMEs) must be reassessed to meet the realities of our time. Countries around the world have put in place monetary and fiscal measures to cushion the hardship of the deadly virus on businesses, individuals, and households.
In a bid to cushion the effect of the COVID- 19 pandemic, the House of Representatives on the 24th March, 2020 passed the Emergency Economic Stimulus Bill, 2020 (“the Bill”). According to Section 1 of the Bill, the objectives of the Bill are as follows:
- To provide temporary relief to companies and individuals and alleviate the adverse financial consequences of a slowdown in economic activities as a result of Covid-19;
- To protect the employment status of Nigerians who might otherwise become unemployed;
- To provide a moratorium on mortgage obligations for individuals;
- To eliminate additional fiscal bottleneck on the importation of medical equipment, medicines, personal protection equipment, etc.; and
- To cater to the general wellbeing of Nigerians pending the eradication of the pandemic and a return to economic stability.
The Bill provides for three relief which are; reduction of income tax liability of an employer, waiver of import duty on medicines and medical goods and deferral of mortgage payments to the Federal Mortgage Bank of Nigeria for a fixed term.
September 26, 2020
MEDICO-LEGAL PRACTICE IN NIGERIA: BALANCING THE RIGHTS AND LIABILITIES OF PATIENTS AND MEDICAL PRACTITIONERS. **
By Mercy Agbo (Associate)
Introduction
The COVID 19 pandemic has put the world today on a standstill. Businesses and human activities have been put on hold for the life of mankind to be preserved. It is safe to say that health practitioners especially, medical doctors are at the forefront of this battle and there is need to preserve a continuous and friendly relationship between them and patients. It is established law that doctors owe a sacrosanct medical duty of care to their patients which requires a high degree of skill and competence; otherwise, liability for medical negligence may arise. However, given certain circumstances, it is not easily determinable when negligence is said to have arisen as instanced where due to the COVID 19 pandemic, most doctors may be scared and decide not to attend to sick persons especially those who show symptoms of the virus, where a patient dies in the course of being treated or out of improper diagnosis by the doctor or hospital.
This article, therefore, tends to answer the posers: whether a medical doctor can refuse to treat a patient? Whether the patients have any right? Whether a medical doctor or a hospital can be liable for negligence? by focusing on the duties and responsibilities of medical practitioners vis a vis the rights of patients with a discuss on medical negligence, its elements and remedial actions that can be brought up in the case of a breach.
