July, 2016 - Legalnaija

Decision Of A Court With Competent Jurisdiction – Meaning And Effect Of

by Legalnaija | Jul 26, 2016 | Uncategorized

“In this Constitution
unless it is otherwise expressly provided or the context otherwise requires-
“decision” means, in relation to a court, any determination of that court and
includes judgment; decree, order conviction, sentence or recommendation”.

SECTION 318 (1) OF THE 1999
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).

It is trite that the
decision of a court of competent jurisdiction no matter its nature is absolute
and binding on all and sundry without question until such decision is legally
and legitimately set aside by a competent court of appellate jurisdiction. As
stated in Section 318 (1) above, the decision of a court varies from judgment
to decree, order, conviction, sentence and recommendation. The decision of a
court of competent jurisdiction could be either final or interim in nature.

A final decision of a
court as the name connotes is final and permanent with respect to that suit and
the court becomes functo officio i.e. the court cannot revisit same. The
only option available to any aggrieved party in such instance will be to have
same set aside either in its entirety or in part, by a competent court of appellate
jurisdiction. Examples of final decisions are conviction, sentence and decree.
An interim decision on the other hand is neither final nor permanent. As the
word ‘interim’ connotes, it is made to last for a specific period of time,
usually pending the determination of the suit or a motion on notice. The coming
to an end of an interim order of a court of competent jurisdiction does not
adversely affect whatever such order was meant to achieve or had achieved and
examples of interim decisions are court orders and recommendations.

The fact of a decision
being final or interim does not affect its application and effectiveness. A
decision of a court with competent jurisdiction remains valid and enforceable
and must at all times be obeyed. Whether or not an appellate court will have
come to a different decision compared to that of a trial court, even at that,
appellate courts do not ordinarily intervene as matters of practice in
decisions which border on the exercise of discretion by the lower court. An appellate
court will only interfere/intervene where it considers that the exercise of
discretion by such lower court – was wrongly exercised based on wrong or
erroneous premise; or was perverse; or where there was a violation of some
principles of law or procedure- such as where the lower court took irrelevant
materials into consideration or failed to consider relevant materials in
arriving at its decision; and in all other circumstance where such exercise
would occasion a miscarriage of justice.

When a court makes an
order or give a final judgment, every person against or in respect of whom such
order is made have an obligation to obey it unless and until that order is
discharged. This is because courts are recognized as the hallowed chambers of
justices, where even-handed justice is meted out to all and sundry, without
sentiment, emotion, favoritism or being unnecessarily embroiled in class
legalism.

I hope this write up was
beneficial to you. You are welcomed to leave your questions, comments,
constructive criticism, suggestions, new ideas, contributions etc in the
comment section or my email address which is thelawdenike@gmail.com I look forward
to reading from your comments.

LEGAL AUTHORITIES USED:

KUBOR V DICKSON (2013) 4 NWLR PART
1345 PG. 534
AHMED V COP BAUCHI STATE (2012) 9 NWLR
PART 130-131 Para. E-A, IHUNWO V. IHUNWO (2013) 8 NWLR PART 1357 P. 576
1999 CONSTITUTION (AS AMENDED)

DISCLAIMER NOTICE:
This blog is a free education material, for your general information and
enlightenment purposes ONLY. This write up, by itself does not create a
Client/Attorney relationship between yourself and the author of this blog.
Readers are therefore advised to seek professional legal counseling to their
specific situation when they do arise. This blog is protected by Intellectual
Property Law and Regulations. It may however be shared with others parties or
person provided the writer’s Authorship is always acknowledged and this
disclaimer notice attached.

www.thelawdenike.wordpress.com

Ed’s Note – This article was originally posted here.

Photo Credit – www.hotels.ng

Dunmade Onibokun – Do you have a Contract of Employment?

by Legalnaija | Jul 25, 2016 | Uncategorized

There
are a lot of people reading this post, answering “No” to the above question.
Next is thinking asking why you don’t have one in the first place and wondering
if you are even entitled to one?

Personally,
I have met workers who informed me that though they were engaged in various
forms of employments, they did not have written Contracts of Employment neither
had they been provided one by their employers.

If
you work in Nigeria and most likely any part of the World. Employers are always
required to provide a contract of employment to their workers. Also by virtue
of the Labour Act, every employer should provide a worker with a copy of the
Contract of employment not later than 3 months after the worker has commenced employment.
The law states in Section 7, that –

7. (1) Not later than three months
after the beginning of a worker’s period of employment with an employer, the
employer shall give to the worker a written statement specifying-

(a)
the name of the employer or group of employers, and where appropriate, of the
undertaking by which the worker is employed;

(b)
the name and address of the worker and the place and date of his engagement;

(d)
if the contract is for a fixed term, the date when the contract expires;

(e)
the appropriate period of notice to be given by the party wishing to terminate
the contract, due regard being had to section 11 of this Act;

(f)
the rates of wages and method of calculation thereof and the manner and
periodicity of payment of wages;

(g)
any terms and conditions relating to-

(i)
hours of work, or

(ii)
holidays and holiday pay, or

(iii)
incapacity for work due to sickness or injury, including any provisions for
sick pay; and

(h)
any special conditions of the contract.

Furthermore,
Subsection (2) states that if after the date to which the said statement
relates there is a change in the terms to be included or referred to in the
statement the employer shall, not more than one month after the change, inform
the worker of the nature of the change by a written statement; if he does not
leave a copy of the statement with the worker, shall preserve the statement and
ensure that the worker has reasonable opportunities of reading it in the course
of his employment, or that it is made reasonably accessible to the worker in
some other way.

From the above, it’s
essential that workers are provided with copies of their Contracts of
employment according to the provisions of the law. By virtue of Section 21 of
the Act, any employer who breaches the above mentioned law is guilty of an
offence and liable to payment of a fine.

Dunmade Onibokun

Adedunmade Onibokun &
Co.

www.adedunmadeonibokun.com

Photo Credit – www.constituitionproject.ie

Senate Passes Nigerian Railway Corporation Bill, 2016

by Legalnaija | Jul 22, 2016 | Uncategorized


Senator Gbenga Ashafa (Chairman, Senate Committee on Land Transport)

The Senate on Thursday,
July 21, 2016, passed the Nigerian Railway Corporation Bill 2016 seeking to
replace the 61 year old obsolete Nigerian Railway Corporation Act, 1955. The
Bill sailed through third reading after a very rigorous exercise; and hopes to
revitalize the Railway sector for optimal development and conform to modern
trends and challenges.

The Nigerian Railway
Corporation Repeal and Reenactment Bill 2015, was sponsored by Senator Andy Uba.
The Chairman of the Senate Committee on Land Transport, Senator Gbenga Ashafa and
other members held interactive sessions with the Ministry of Transport and the
Nigerian Railway Corporation to evaluate the challenges facing the rail sector
including a public hearing.

A crucial reform which the
bill is presenting is the necessary inclusion of Public Private Partnership
(PPP) Initiatives in the Nigerian Railway Sector. The bill also separates the
regulator from the operators. It is Hoped that introduction of the Bill will
drive the needed economic reform in the industry and provide private investment
opportunities for the sector.

Ivie Omoregie: When Oil & Gas Companies Start Letting Go of Staff

by Legalnaija | Jul 21, 2016 | Uncategorized

Many people would be aware
of the general crash in the price of a barrel of crude oil (at one point, even
Hennessy cost pass am); although the oil and gas sector has a history of boom
and busts, this would have been the lowest slump since the early 90’s. Unfortunately,
even industry experts did not see it coming.

Companies involved in
upstream activities, especially deep offshore, have been forced to simply stop,
with an estimated two-thirds of all rigs being decommissioned; the implication
of this is that, oil companies who previously enjoyed a booming business have
had to readjust their business operations, with many sustaining substantial
losses. Around the world numerous oil companies have gone bankrupt, resulting
in over 250,000 redundancies.

Nigeria has not been left
out of this ripple effect which has shaken the industry to its core. Many oil
and gas workers involved in upstream activities have been weak at the sight of
industry wide job cuts. The few who have managed to keep their jobs have faced
nonnegotiable pay cuts as an alternative to total job losses.

How Low Can You Go?

A friend of mine was the
general counsel for a reasonably sized oil company, life was good. She had
great company benefits, and could afford to pay for her son’s UK boarding
school fees. When the Oil Glut first started, as a senior member of staff, she
was given ample notice of the imminent changes and was advised to accept the
15% pay cut. Obviously she was upset about it, but she didn’t complain too
much; she knew that even with the 15% pay cut she was still making a lot more
than most people of equivalent years of experience. Life went on as normal.

Things got to melting
point when, after 8 months, the company informed her that there would be
further firm wide pay cuts, resulting in a total of 45% reduction in salaries.
It was made clear to all members of staff that, should they not accept the
further reduction of salaries, their contracts of employment would be
terminated with immediate effect.

Ooh boi… this, coupled
with the fall in the value of the Naira, was simply too much to bear. She
immediately found a job in the UK and took a 1 year sabbatical. The way she
calculated it, rather than work for half of her initially agreed salary, which
had significantly reduced in value when compared to other currencies, she might
as well work in the UK for a year, earning an equivalent of almost 3 years of
the reduced salary. Then, she will decide about her future with that company.

Termination and the Law

Generally the way most
employment contracts are drafted, the employer has the right to amend or even
terminate the contact; as stated in one of my previous articles, they usually
sneak in omnibus clauses under which, to a large extent, they can do what they
like. It is established law that the master servant relationships created by
the employee contract is, in most instances, governed and ultimately determined
by the terms of that agreement.

However, as regards the
Nigerian oil and gas sector, in an attempt to mitigate against prolific cases
of unfair dismissal as well as further support the hiring of Nigerians in the
sector, the Department of Petroleum Resources (“DPR”) on the 5th March 2015
issued the “Guidelines and Procedures for the release of Staff in the Nigerian
Oil and Gas Industry” (the “2015 Guidelines”).

The 2015 Guidelines

The main objective of the
2015 Guidelines is the establishment of procedures for obtaining the prior
consent of the Minister of Petroleum prior to the release of Nigerians working
in the Nigerian oil and gas sector. Ironically, this is not the DPR’s first
attempt at controlling the unfair dismissal of Nigerian content in the sector,
a similar guideline was issued in 1997 (which was mostly disregarded). However,
the 2015 Guidelines provide more comprehensive provisions and processes for
obtaining the consent of the minister before the “release” of workers, as well
as prescribing stringent consequences for disobedience.

The 2015 Guidelines define
“release” of a worker as meaning:-

“the removal of a worker
from the employment in a manner that permanently separates the worker from the
company whether such removal is by “dismissal; retirement ‐ whether voluntary
or forced; termination; redundancy; release on medical grounds; resignation;
death or abandonment of duty post”

Among the stringent
consequences for disobedience are:-

Fines ranging from N5,000,000.00 (Five
Million Naira) to N10,000,000.00 (Ten Million Naira);
The recall of the released worker(s);
and
Suspension or cancellation of the
lease, licence or permit belonging to the employer.

By the provisions of the
2015 Guidelines, it is only where the employee retires voluntarily, resigns,
dies or abandons his duty post that a “mere notification” to the DPR will
suffice, in all other instances consent of the DPR would be required in the
prescribed form.

Is This Gonna Work?

Some people are of the
view that as with many other ingenious ideas, arguably sporadically, developed
by the Government, monitoring and proper policing of the 2015 Guidelines will
be difficult to almost impossible. This leads one to question the number of
instances where these guidelines are being diligently adhered to, and where not
adhered to, how would the DPR ultimately find out anyway? I’m guessing that the
DPR will only find out where a disgruntled employee reports the company for not
following due process in the termination of their employment contract.

Some argue that the DPR
are going beyond the scope of their powers in trying to enforce such guidelines
as, as mentioned above, the master servant relationship created by the employee
contract is governed by that contract and the Government should leave parties
to have freedom to contract as they wish.

Conclusion
When I told my friend of the 2015 Guidelines, she informed me that she was very
aware of them, and confirmed that her company definitely did not have DPR
approval before sacking dozens of employees. She said upon informing the
company of the need to seek DPR approval before releasing staff, the response
was “Abeg, na DPR go pay salaries”; after seeing the MD’s bulging eyes, and
because she knew she was on her way out anyway, she promptly dropped the
matter.

However, most people are
not aware of the 2015 Guidelines and it sounds crazy that such important
information has not been brought to the attention of the general public, I am
sure there are hundreds of Nigerian oil and gas workers who, in light of the
recent issues with the sector, are not aware of the due process required by law
before the termination of their employment contract.

However, in saying that,
the legality of the provisions of these guidelines have not been tested, and
until that day no clear conclusion can really be reached.

Ed’s Note: – This article
was originally posted here.

Tolulope Aderemi – The Niger Delta Crisis: Negotiations Vs. Military Force

by Legalnaija | Jul 21, 2016 | Uncategorized

Over the years, various
agitations have filled the political space on the ‘emancipation of the
Niger- Deltans’; rightly so. The environmental degradation frequently
occasioned by the oil & gas exploration and production activities in the
Delta region has largely birthed this agitation as well as various Groups
making different claims; some to ownership of oil and gas whilst others to, a
need to be compensated for ‘taking their natural resource’. Some others have
advocated the need for government to, appropriately interpret the laws and
enlighten the populace on the state of the true ownership of the ‘black
gold’. Only recently, a former Senator of the Federal Republic of Nigeria
(and a former Minister too) on one of the private television stations,
advocated for complete secession of the oil blocs to the ‘Niger Deltans’ with
government only maintaining a ‘participating’ right. Suffice to say that
all views may be right or wrong. What is important is the consequence of not
taking prompt, strategic and decisive action on the incessant and alarming
damage done by the militants to our oil infrastructure thereby causing Nigeria
as a whole to lose its market share in the global oil space.

The Niger Delta
Militants (the category of which includes the Niger Delta Avengers in
particular) started attacking oil pipelines sometimes in February, 2016. The
reactionary bombings were allegedly not unconnected with the termination of
commercial contracts (for the protection of pipelines) to the militants, the
discontinuance of the amnesty program put in place by former President Goodluck
Ebele Jonathan as well as a reduction in the stipends paid to the militants. It
will be recalled that a similar situation was averted by former President Umaru
Musa Yar’Adua, who, sometimes in 2006 and 2009 provided monthly stipends to
militants who were willing to disarm and maintain peace under an amnesty
program. This, as adjudged by many, relatively stabilized the Nigerian oil
sector.

This paper is not to
chronicle the ‘Whys’ of the Niger Delta agitations but to consider the
commercial consequence of the serial bombings which has hitherto shapened both
the micro and macro Nigeria oil space. Nigeria’s Ministern of State for
Petroleum, Dr. Ibe Kachikwu (and the immediate past Group Managing Director of
NNPC) must be commended for clinically and strategically shoring our daily
output from 1.3mbp to about 1.9mbpd. Nevertheless, his successor, Dr Maikanti
Baru, must grapple this situation with equal diplomatic and aggressive vigor to
avoid situations resulting into a sequence of missed/delayed shipments at the
various export terminals in the region; particularly, the Royal Dutch Shell
Plc’s Forcados and Bonny export terminals, Eni SpA’s Brass River, the Escravos
terminal and Exxon Mobil Corp.’s Qua Iboe terminal. These events have
also led to a declaration of force majeure by Royal Dutch
Shell, Nigeria on exports of Bonny Light crude oil, which was only lifted at on
Thursday, July 7, 2016.

Counting Nigeria’s
losses:

According to NNPC’s
Monthly Financial and Operations Report (Report) for March 2016, Nigeria
produced a total of 59.27 million barrels of crude oil in February 2016 (i.e.,
an average of 2.04 million barrels daily) which is lower than the 66.49 million
barrels produced in January of the same year. This represents a 10.85% decrease
when compared to the level of production in January. In addition, NNPC states
in the April Report, that the oil production level for the month of March 2016
stood at 57.43 million barrels (i.e., an average of 1.85million barrels daily)
which is 3.10% lower than February production levels. This is by far the lowest
oil production levels Nigeria has recorded in over 27 years. Quite apart from
this, the country has lost about 1,500 MW (megawatts) of power supply due to
the damage done to the Forcados pipeline which accounts for about 40-50%
(percent) gas production.

The Nigerian
Petroleum Development Company (NPDC) may also record losses in the region of
about N20billion monthly as a result of the incessant pipeline vandalism. The
country, which formerly maintained the position of Africa’s largest oil
producer with a production level of about 2.5 million barrels per day, has lost
this position to Angola due to the violent attacks on the pipelines. The
estimated growth of the country has also dampened, as the World Bank now
projects in its semi-annual Global Economic Prospects that the Nation’s economy
will grow by an estimate of 0.8% per cent which is down from the initial 4.6%
per cent growth estimate. The reduction of the nation’s oil out-put remains a
major factor for the decline in the growth of the nation’s economy. The
resultant effect of Nigeria’s poor oil production output has also consequently
affected the total monthly crude output of the Organization of the Petroleum
Exporting Countries (OPEC); which fell from 32.83 million barrels a day in
April to 32.71 million barrels in just one month.

Damages done to the
gas pipelines which belong to the Nigerian Gas Company (NGC) affected the flow
of gas to electricity power plants and prevented the flow of crude oil to
refineries in Warri and Kaduna. This damage has led to a daily loss of about
N79 million barrels of crude oil and that it will cost about N120 million to
repair the damaged pipelines before normal power generation can be restored.
The Forcados export pipeline operated by Royal Dutch Shell Plc which was
attacked in February, 2016 was undergoing serious repairs when it suffered a
second attack recently. These disheartening events all impact negatively on our
overall oil & gas earnings as a country.

Force or
Negotiation?

Initially, it was reported
in some media outfits that the government was reluctant to enter into
negotiations with the militants in a bid to curtail the attacks on the
pipelines. It is becoming clear now that diplomatic means, as opposed to
military tactics, might be the way to resolve the menace wrought by the
Niger-Delta militants. This, of course will not take away the true ownership of
the natural resource from the Federal government. Rather, more attention needs
to be paid to cleaning up the havoc wrecked by E&P activities, youth
empowerment in the Delta region, accountability of all relevant State governments
for the additional 13% derivation and other peculiar incentives peculiar to the
Niger Delta community. These are obvious and realistic methods of curbing the
violence from further escalating.

The need to also
re-consider the security of the pipelines (by some of the indigenes) also
commends itself. Making the indigenes stakeholders in the protection of the
pipelines might reduce the spate of incessant bombings of these
infrastructures; as the oil pipelines span through rivers and mangroves and run
for over 27,027 square-mile under water, making it more difficult for military
protection; who in most cases are not as familiar of the areas as the
indigenes. The Federal Government must also increase its engagement with the
relevant State Governors to devise additional methods (particularly, with the
use of smart technology) to reduce infrastructural damage on oil assets.

On a final note and
looking into the future, the welfare, environment and youth empowerment of the
Niger Delta community must be carefully looked into. The Ministry of the Niger
Delta and all other Agencies set up for this purpose must be made more
proactive and operational. The Petroleum Industry Bill must also be clear on
the benefits of being an indigene of a Littoral State whilst acknowledging that
sovereign rights over Nigeria’s oil and gas in situ, unarguably
rests in the government. This is very important.

Tolu Aderemi is a
Partner, Energy & Infrastructure of Perchstone & Graeys; a foremost
commercial Law Firm in Lagos, Nigeria.

Ed’s Note: This article
was originally published here.

Luxury Street – Stylish, Professional Bags for Female Lawyers

by Legalnaija | Jul 18, 2016 | Uncategorized

We are familiar with the
saying…”If the shoe fits…wear it” or “if the shoe fits buy
it in every colour” but you’ll agree with me that we also need our
professional bags to fit and fit well.

Based on research carried
out on female lawyers, a good work bag should;

(a)Hold all necessary
papers and files for court/work and maybe a small laptop.

(b)Still look fashionable
after work.

(c)Be durable.

The challenge lies in
finding a bag that has just the right balance of feminine and fashionable yet
functional. We’ve put together some ideas to solve this dilemma.

Pauls
Boutique Paige: This sturdy yet stylish bag has a handle that gives
It the semblance of a briefcase but it also has straps which allow for
versatility.

Another
Variation

Melissa
Tote; Has more than enough room to fit documents, laptop, maybe some makeup
too etc. It’s perfect for carrying your items from point A to point B with
ease.

La
Fille Des Fleur Kate: This is for the edgy fashionista lawyer. It is an
Italian brand and the bags are made out of neoprene which is a very techy and
durable material. It has no compartments which gives you ample space to fit
stuff into. If you’re not afraid to make a statement, this is the bag!

You could follow the link
below for more bag options www.luxurystreetng.com

Luxury Street

PROFILE – A.B Mahmoud SAN

by Legalnaija | Jul 15, 2016 | Uncategorized

Ed’s Note – The learned silk, A.B Mahmoud SAN is currently
contesting for the Presidency of the Nigerian Bar Association and won our
poll by 71% when we asked our readers who they had rather have lead the
Nigerian Bar.

Mr. Abubakar Balarabe Mahmoud graduated from Ahmadu
Bello University, Zaria in 1979. He holds a master’s degree from the same
university specializing in Company and Labour Relations Law. He worked for 15
years with the Kano State Ministry of Justice rising from pupil state counsel
to the position of the State Attorney General and Commissioner for Justice and
co-founded the law firm of Dikko & Mahmoud in 1993, the same year he was
elected as Chairman of the NBA, Kano Branch.

AB, as he is popularly known has considerable
experience and specialized training in various fields of law and has broad
experience in various aspects of lawyering skills. He has at various times
acted as advocate, a solicitor and also as Arbitrator. He has considerable
experience locally and internationally in dispute resolution and complex
transactions. AB has advised various public sector clients and has at various
times acted on behalf of Federal Ministry of Finance, Federal Ministry of Water
Resources, the Independent National Electoral Commission, the Bureau of Public
Enterprises, the Nigerian National Petroleum Corporation (NNPC), the Nigerian
National Assembly and the Central Bank of Nigeria (CBN) as well as several
other private sector clients.

AB served on various bodies both at Federal and
State levels. He was member of the National Committee on Crime Victims Rights.
He served as a member of the Presidential Committee on Incentives, Waivers and
Concessions (for Investments and Businesses) in Nigeria. He served as member of
the Board of the Institute of Advanced Legal Studies, Centre for Democratic
Research and Training Mambayya House (Bayero University Kano). He has also
served as a member of the National Advisory Council of Nigeria Stability and
Reconciliation Programme NSRP (a DFID supported programme aimed at reducing
violent conflicts in Nigeria). AB also chaired the National Committee on the
review of the Nigeria’s Code of Corporate Governance for public Companies. He
is also a member of the Vision 2020, Business Support Group and was on the
Board of Nigerian Extractive Industries Transparency Initiative (NEITI). He is
currently the pro-Chancellor Kano State University of Science and Technology and
Vice-Chairman of the Council of the Nigerian Stock Exchange.

AB has trained at various times at the
International Development Law Institute in Rome, where he obtained a
certificate in Law and Development in 1987, and in Legal Aspects of
Privatization in 1990. He also holds a Diploma in Sociology of Law from Onati
Institute for the Sociology of Law in Spain (1990) and another certificate in
techniques of privatization from the Institute of international Development at
Harvard University (2000). He was at North Western University Chicago where he
obtained a Certificate in Corporate Law and Business (2002). He also obtained a
Diploma in International Commercial Arbitration of the Chartered Institute
Arbitrators UK from Keble College University of Oxford. He was admitted as a
Fellow of the Chartered Institute of Arbitrators in 2008. He was recently a
participant at the Yale University jointly run leadership programme with
Nigeria Leadership Initiative.

AB has maintained active engagement with Civil
Society Groups, the Academia and public interest organizations. He has appeared
in many cases before the Federal High Court, Court of Appeal and the Nigerian
Supreme Court and has acted as special prosecutor in various high profile cases
including the CBN initiated Banking Prosecution. He has participated and
presented papers in various conferences both in Nigeria and abroad. He was
elevated to the rank of Senior Advocate of Nigeria in 2001. He is a life member
of the Body of Benchers, Nigeria’s highest body for regulating the legal
profession. AB holds the National Honour of the Officer of the Order of the
Niger (OON). He is also a Senior Fellow of the Nigeria Leadership Initiative
(NLI).

AB is married to Hon. Justice Patricia Mahmoud and
they are blessed with five children and a grand-child.

HIS ACTIVITIES AT THE BAR

– Chairman, Kano Branch of NBA 1993 – 1994
– Member, Committee for Chairmen and Secretaries
– Member, Legal Practitioners Privileges Committee (LPPC)
– Chairman, Criminal Justice Reform Conference
– Member, Body of Benchers
– Life Bencher

VISION:

TO REINVENT THE NBA INTO A BRAVE NEW BAR DRIVEN BY
THE KNOWLEDGE AND SKILLS OF ITS MEMBERS AS A VERITABLE AGENT FOR NATIONAL
TRANSFORMATION, WHILST SAFEGUARDING THE INTERESTS OF ITS MEMBERS.

MISSION STATEMENT: (3Rs-P)

REGULATION
REPRESENTATION
RE-ENGINEERING
PUBLIC INTEREST

Olubunmi Abayomi-Olukunle – Nigeria’s Venture Capital Industry: DFIs have a Role to Play

by Legalnaija | Jul 15, 2016 | Uncategorized

By: Olubunmi Abayomi-Olukunle

By many standards, the venture capital
industry in Nigeria is still emergent especially if one considers the size of
the deals, number of funds and sophistication of investors in the market.
Accordingly, the Federal Government must promote venture capital activity in
Nigeria as a strategic policy initiative and in order to promote innovation and
enterprise amongst the most productive segment of its population. As part of
that process, the Federal Government should strategically engage all the
stakeholders in the industry’s value chain. This is particularly important at
this time given the increasing flow and value of foreign investments into the
venture capital space in Nigeria, a trend, which in our view, holds the promise
that Nigerian start-ups can unleash a revolution of wealth creation and rapid
economic growth in a sustainable manner. Our proposition is that local
Development Finance Institutions (DFIs) are critical stakeholders in the value
chain and have a significant role to play in Nigeria’s venture capital
industry.

It is in this context that the decision by
the board of Nigeria’s Bank of Industry (BOI) to be investors in the first-ever
social innovation fund out of Nigeria, is commendable. In a financing mix of
both local and foreign investors, BOI (alongside Venture Garden Group and
Omidyar Network) is committing up to USD230, 000 to a USD 1 Million social
innovation fund promoted by Nigeria’s foremost startup incubator, CCHub.- a
first of its kind for BOI–( I am glad to have advised on this deal!)

It is interesting to note that the fund
will be managed onshore. Also noteworthy, is the fact that the fund aims to
invest in early-stage tech companies that demonstrate an ability to solve a
social problem – Think of a company that converts heaps of refuse to clothing,
shelter or other usable material.

Global
Trends

The decision of the Board of the BOI
accords with trends we see in the international venture capital space, tending
towards an overall increase in the portfolio allocation by international DFIs
to early-stage fund managers and ventures. This July, the board of directors of
the International Finance Corporation (IFC) will be meeting to consider making
a USD 10 million commitment to Algebra Ventures Fund which will target
technology and technology based start-ups in Egypt, the broader middle-east and
the North African Region. Similarly, the European Investment Bank is
considering making a USD 10 million commitment to TLcom’s TIDE Fund, a planned
100 million venture capital fund, which will invest in entrepreneurs and
enterprises that are leveraging technology. Recently, it was announced that IFC
has decided to double its venture capital portfolio to USD 1 Billion to further
spur innovation in emerging markets. One of the companies in IFC’s venture
capital portfolio is Andela, a company co-founded by a Nigerian. The Company
recently received USD 24 Million in a series B funding in a round led by the
Chan Zuckerberg Initiative.

Availability
of Risk Finance

Growing trends in this space should bring
to focus debates around how DFIs in Nigeria can be used to strategically grow
Nigeria’s venture capital industry especially with regard to the risk finance
to the industry. There is, in our view, a shortage of risk finance to high
growth tech/e-commerce start-ups especially when one considers the rapid
increase in the number of Nigerian tech start-ups with scalable business
models. The majority, if not all, of the financing currently available from
local DFIs is debt-linked and sewed with requirements that venture companies
will find hand to fulfil. More of the risk financing available have been
from foreign venture capital, incubators and angel investors who focus on
Africa. On the local scene, the Lagos Angel Network and the African Business
Angels Network, are gathering a more enduring appetite for early-stage risk.
Also, a growing network of solo angels, incubators and corporate venture funds
in Lagos and Abuja hold the promise of soaking up some of the demand that is
available in the market. Nonetheless, we think that a sizeable portion of the
market is underserved in terms of the availability of risk finance.
Nigeria’s venture capital industry will require a sustained injection of
risk capital and local DFIs are in our view better positioned to close this gap
as, by their nature, DFIs have higher risk tolerance and longer investment
horizons and are able to take up investments in sectors where the private
sector finds it difficult to invest.

DFIs:
Which Roles?

The active involvement of local DFIs in the
venture capital space can help grow the industry in a number of ways. First,
there is empirical evidence that lends credence to the theory that increased
portfolio allocations by local DFIs to early-stage ventures or venture capital
fund managers can catalyze and help attract and mobilize other sources of
capital. In addition to helping mobilize other sources of capital, the
involvement of DFIs can also help provide the much needed management support
and hands on experience that can help commercialize entrepreneurial vision.
Secondly, DFIs can help in promoting and entrenching ESG compliance across
board, thereby promoting the adoption of sound business practice, an
imperative, which will further give comfort to potential limited partners.

We think that the current state of play
presents a good opportunity for local DFIs to expand the range of financial
products available to Nigerian start-ups, by increasing allocations to
Nigeria’s venture capital sector either through dedicated venture capital funds
or through participations in privately-managed venture capital funds.

Legal
Restrictions?

Yes and it is important however to situate
the foregoing within the extant legal framework for DFIs in Nigeria, especially
because, there are a number of provisions contained in the CBN Regulatory and
Supervisory Guidelines for Development Finance Institutions in Nigeria ( the
Guidelines) that have a bearing on a DFI’s level of exposure to the venture
capital patch in Nigeria.

For instance, local DFI’s may only invest
in a start-up business up to a limit of 10% of shareholders fund
unimpaired by losses. DFI’s are also subject to a maximum of 25% holding in any
enterprise. Whilst we take the view that the current thresholds are fairly
acceptable given the state of development of the industry, we note that the
Guidelines do not define the term “start-up business”. In our view, it is
important to define that phrase as the meaning of the phrase is not immediately
obvious and also capable of multiple interpretations. Businesses at different
stages can qualify as a “start-up business” depending on the indices
used.

More importantly, the wording of the
Guidelines suggests strongly that DFIs can only take up equity directly in start-up
businesses as opposed to taking up participating interests in third-party
managed venture capital funds, a prospect which we think may hinder the growth
of the venture capital industry in Nigeria.

Going
Forward

Nigeria’s DFIs would also have to do more
in terms of building capacity to complement a possible increased allocation to
early-stage ventures and as part of own value creation strategy.

In addition to building capacity in terms
of evaluating, structuring and negotiating new equity, venture-type
transactions, it will be important to develop venture capital investment
strategies that are not only reflective of commercial realities but can also
help to mitigate possible risks in a downside event.

Although there are usually contractual
remedies available to a portfolio company or to a fund in the event of a time
default, DFIs can make a lot more progress in terms of improving internal
disbursements processes for commitments made.

Overall, allocations to the venture space
will have to be in the form of patient capital, an investment strategy which
has now overtaken the traditional venture capital as a source of investment for
tech start-ups in mature markets

Olubunmi specialises in venture
capital and private equity financing.

This piece was originally published
on http://www.thisdaylive.com/index.php/2016/07/08/the-role-of-dfis-in-venture-capital/
and on https://www.proshareng.com/news/Private%20Equity/The-Venture-Capital-Industry-in-Nigeria-DFIs-have-a-Role-to-Play/31577

Source: Linkedin

Dunmade Onibokun – Scope of Immunity Clause on Nigerian Public Officers

by Legalnaija | Jul 15, 2016 | Uncategorized

President Muhammadu Buhari

By
virtue of the Nigerian 1999 Constitution, certain public officers are granted
immunity. This post will be analyzing the relevant provision of the constitution
providing for immunity and taking a look at the extent of the cover provided by
the immunity clause.

The
8^th edition of the Black’s Law dictionary defines immunity as ‘any
exemption from a duty, liability or service of process; especially such
exemption granted to a public official. L.B Curzon’s, A Dictionary of Law, further
defines immunity as a “freedom or exemption from some obligation or penalty.

The
relevant provision of the constitution which provides for immunity for public
officers is Section 308, of the 1999 Constitution, Laws of the Federal
Republic of Nigeria (2004). The law provides that –

308. (1) Notwithstanding anything to the contrary in
this Constitution, but subject to subsection (2) of this section –

(a) no civil
or criminal proceedings shall be instituted or continued against a person to
whom this section applies during his period of office;

(b) a person
to whom this section applies shall not be arrested or imprisoned during that
period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling
the appearance of a person to whom this section applies, shall be applied for
or issued:

Provided that in ascertaining whether any
period of limitation has expired for the purposes of any proceedings against a
person to whom this section applies, no account shall be taken of his period of
office.

(2) The
provisions of subsection (1) of this section shall not apply to civil
proceedings against a person to whom this section applies in his official
capacity or to civil or criminal proceedings in which such a person is only a
nominal party.

(3) This
section applies to a person holding the office of President or Vice-President,
Governor or Deputy Governor; and the reference in this section to “period
of office” is a reference to the period during which the person holding
such office is required to perform the functions of the office.

From
the provisions of Subsection 3 of the above statute, it is clear that the only
persons granted immunity in the Constitution include; the President,
Vice-President, Governor and Deputy Governor.

Also
from Sub -section 1 of the law, it also states clearly that the above mentioned
people cannot be arrested, charged to court and no court has the power to compel
their appearance during the period in which they hold this office. Except, it’s
a civil proceedings, in which the public official is a party due to his
official capacity. In essence, neither the Police, EFCC nor any other security
agency in the country can arrest any of these public officials.

This
provision has caused a lot of debate, with some calling for the removal of the
shield upon which these public officials are covered by virtue of a
Constitutional review deleting the immunity clause. A strong reason they say is
because no one should be above the law. It
should however be noted that the reason behind imputing the immunity clause in
the first place was the protection of public interest wherein the interest of
the nation in the preservation of its highest offices outweigh the inconvenience
to the individual for the temporary postponement of prosecution and to save
such public office holder from harassment while the person is in office.

What however is the scope
of the immunity?

Questions
have arisen from different quarters as to whether the immunity cause protects
the public officer from investigation? It should be noted that this is not the
case.

In
the case of Fawehinmi V. Inspector
General of Police and 2 Ors (2002) 7 NWLR (Pt. 767) 606, the question
was whether the immunity clause protects a Governor (against whom allegations
of criminal conduct was made) from investigation by the police. The Supreme
Court held in the case that neither the law nor the Constitution protects any
person from being investigated by the Police. The outcome of the investigation
however would not crystalize into a criminal prosecution while the public
officer still holds office. Uwaifo JSC further stated “that a person protected
under Section 308 of the 1999 Constitution, going by its provisions, can be
investigated by the police is, in my view beyond dispute.” The essence of the above
judicial pronouncements is that though a public office holder covered by
Section 308 of the Constitution may be investigated by government security agencies,
they may not be prosecuted until after the expiration of their official tenure.

It is also worthy of note that by virtue of the Diplomatic
Immunities And Privileges Act, every foreign envoy and every foreign consular officer, the members of the
families of those persons, the members of their official or domestic staff, and
the members of the families of their official staff, are accorded immunity from suit and legal process
in Nigeria.

Dunmade
Onibokun Esq.

Principal Partner

Adedunmade Onibokun & Co.

www.adedunmadeonibokun.com

Argyle & Clover – Obtaining Letters Of Administration (Without Will) At The High Court Of Lagos State

by Legalnaija | Jul 15, 2016 | Uncategorized

When
a person dies intestate i.e. without leaving a Will, no person is allowed under
the administration of estate law to administer the estate of the deceased
without obtaining Letters of Administration. To do so will amount to
intermeddling with the Estate of the Deceased.

The
Letter of Administration empowers the persons named therein to administer the
Estate of the Deceased. Prior to obtaining the grant of a Letter of
Administration on an Estate, the properties of the deceased are deemed to vest
in the Chief Judge of the State.[1]

Who
can apply for a grant of Letters of Administration?

The
Administration of Estate Law of Lagos State[2], states in order of priority,
persons who are beneficiaries of a Deceased Estate and thus can apply for a
grant:

1. The Surviving spouse

2. The Children of the deceased or the issues of any
child who predeceased the deceased

3. The Deceased’s Parents

4. Brothers and Sisters of the Deceased

5. Half Brother(s) and sister(s) of the Deceased.

6. Grand Parents

7. Uncles and Aunts.

Procedure
for Obtaining Letters of Administration

STEP
1

Apply for
Grant At the Probates Registry

1. An Application letter shall be submitted at the
Probates Registry. The Application letter shall contain the following
information:

1. Full names of the Deceased

2. Date of Birth of the Deceased

3. Last known address of the Deceased

4. The Profession of the Deceased

5. Marital Status of the Deceased

6. Name of Deceased’ spouse and children (if any)

7. Date and Place of Death

8. Names of 2 Proposed Administrators

9. Relationship between the Deceased and the proposed
Administrators

The
following documents shall be submitted with the Application Letter:

1. Death Certificate of the Deceased

2. Passport photographs and valid means of
identification of the Proposed Administrators

Obtain
Application Form from the Probates Registry

After
submitting the application letter, an applicant shall purchase an Application
Form from the Probates Registry which shall be completed and executed by the
Proposed Administrators. The Application Form is made up of the following
documents:

1. Inventory of moveable and immovable Bounties/Assets
of the Deceased

2. Statutory affidavit of next of Kin. (This is to be
signed by the Next of Kin)

3. Oath of Administration

4. Administration bonds

5. Justification of sureties (2 Sureties one of whom
one must possess real property while the other must own a valid means of
identification shall execute this form). It is also important to ensure that
the sureties are available to appear in person when called upon by the Probate
Registrar.

6. Bank/Share Certificate (Details of the Deceased’s
Bank Account and monies therein and Shareholdings be stated here)

7. Particulars of Freehold/Leasehold property owned by
the Deceased.

8. Schedule of debts owed by the Decease

9. Schedule of funeral expenses.

Submission
of Bank/Share Certificate at the Bank(s)/Registrars of the Companies where
the Deceased owns Accounts/Shares

1. The Bank(s)/Registrars shall state details of monies/shares
and the value thereof.

Return of
Duly Completed & Executed Application Form to the Probates Registry,
Payment of Publication Fee, Assessed Fee and Obtaining Approval of the
Probates Registrar

1. Upon completion and execution of the Application Form,
same will be submitted at the Probates Registry.

2. The Probates Registry will proceed to assess fees
payable on the Estate based on the information contained in the Application
Form.

3. The Proposed Administrators shall proceed to make
payment of Assessed fee and Newspaper publication fee with bank draft at a
pre-designated bank and evidence of payment i.e. Bank teller shall be furnished
to the Probates Registry.

4. The Proposed Administrators may also apply to the
Probate Registry to have the estate assessment fee drawn from the deceased’s
account if there are sufficient funds therein.

5. The Probates Registrar shall meet with the Proposed
Administrators & Sureties to verify that they meet the requirements to be
Administrators & Sureties.

6. The Probates Registrar approves the application and
orders the Proposed Administrators to depose to the Oath of administration.

Publication
of Notice of Application for Letters of Administration

1. The application is published in a newspaper to
notify anyone interested in the estate of the deceased that a grant of letter
of administration has been sought by the Proposed Administrators.

2. Once the publication is done, a period of 21 days
will be given for any-one who wishes to contest the application of the proposed
administrators to present such contest/opposition.

3. At the expiration of the 21 days, if there are no
oppositions, the Probates Registry shall proceed to draft and issue the Letter
of Administration.

The
entire process of obtaining Letters of Administration of an Estate can be
cumbersome and grueling especially for persons not familiar with the process.
Chances of being exploited as a result of ignorance are pretty high. It is
therefore advisable to seek the services of a Legal Practitioner.

[1]
Section 10 of the Administration of Estate Law Cap. 3 Laws of Lagos State 1994

[2]
Section 49 (1)

This
article is written by Betty Tokurah an Associate Counsel with the Law Firm of
Argyle & Clover Attorneys at Law

Ed’s Note- This article was originally published here.

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