August, 2017 - Legalnaija

Star Profile – Nicholas Akintola Ladapo

by Legalnaija | Aug 25, 2017 | Uncategorized

Principal
partner Chief Ladosu Ladapo ( SAN)& CO

Mr. Akintola Ladapo
is an amazing man. Words are not enough to begin to describe him. He likes to
play squash and surprisingly, he is a very good dancer. How do I know? Well, I happened to see him
dance at his wife’s retirement thanksgiving service with his mighty ‘Agbada’
attire. The Reverend at the Methodist church Bodija Ibadan could not hide his
astonishment at what he noticed in Mr. Akintola Ladapo’s skills on the dance
floor.

In a bid to share
very inspiring stories of Lawyers who have made a mark for themselves, I had
the rare opportunity of having a 4 hour sit down discussion with him.

Read on, I am sure
you will enjoy and learn a lot from his story.

He is a lawyer who
has been in practice for about 38 years. Akintola Ladapo is the Principal
partner of Chief Ladosu Ladapo (SAN) & Co. He was the Solicitor- General of
Oyo State.

On the 1^st of October 1955, at
Island maternity hospital Lagos, a baby who has grown into a delectable personality,
a perfect picture of a role model that is very worthy of emulation was born. He
was born into the family of Chief Ladosu Ladapo (SAN) and Lady Olapeju Cecilia
Ladapo nee ADESANYA. He was christened and named Nicholas Akintola Ladapo.

Brief
history

Growing up was fun, we played football, I
used to chase masquerades on my way from school when I was in Primary school.
We learnt vocations like grass cutting, theatre arts etc in school. It was fun
being a kid then, unlike now.

Nigeria was
peaceful, there was no robbery , you could pack your vehicle without locking
it. Stealing was a taboo in those days, if you stole, you will be taken to the
front of your father’s house and you will be disgraced.

I went through
discipline with my dad and in those days, moral standards were maintained and
you were expected to follow to the letter what your elders told you.

Education was taken
very seriously, you must do well in school, go to church on Sundays and we kept
a healthy life style .

At 5years of age,
Mr. Akintola Ladapo attended St. Patrick Primary School Abebi Ibadan. After
which he attended Loyola college in Ibadan for WASSCE and then St. Gregory
college for his HSC Lagos 1973-74 .He was a member of the School football team
and food committe66e. He gained
admission to the prestigious University of Lagos in 1974. He went to law school and was called to the Nigerian Bar in 1979. He
went for National Youth service in the then Bendel State.

I have always known
I would be a lawyer. It is good for parents to know their children so that they
can direct them in the right path. I avoided pressures to go to the judiciary
or to become a traditional Chief because I chose to do the full practice of law.

Work
experience

Aside practicing in
1981, he became legal officer at punch Nigeria Ltd in 1981. He came back to Chief
Ladosu Ladapo (SAN) & Co to practice in 1983. In 1999, he was appointed as
a member of Oyo State pilgrims welfare board (Christian ) and in 2000, he was
appointed a member of the Commission of Enquiry into Ethnic Disturbances in
Lagos State. In 2003, he was appointed as a
Director at the Ministry of Justice Oyo State and rose to become
Solicitor General in 2012. After he retired at the Ministry of Justice he came
back to Chief Ladosu Ladapo (SAN) and Co to resume full private legal practice
in which he is currently engaged.

He had so many inter-ministerial appointments and
headed many departments while at the Ministry of Justice. In 2005, he was
appointed as a member of the Judicial Committee for the Review of Civil Procedure
Rules of Oyo State which resulted in the
current one that is being used. He was appointed by the Chief judge to defend
the him (Chief) Judge for the famous Ladoja case. He was a member of Speedy
Administration of Criminal Justice which was headed by the Chief Judge.

Dami, I would tell
you this,I like defending people, taking care of the oppressed, speaking up for
those people who cannot speak for themselves and those who need justice , I
hate injustice and unfairness . As a Christian I believe in the creed of Proverbs
31 vs 8-9 ‘Open thy mouth for the dumb in the cause of all such as are
appointed to destruction. Open
thy mouth, judge righteously, and plead the cause of the poor and needy’. This
guides me to follow God’s instructions and carry them out.

He refused to apply
for senior advocate of Nigeria because in his opinion the rank is no longer
honourable unlike in the days of his father when people that were seen to be
noble were appointed rather than the method of application as we have today.

Akintola Ladapo’s career principles:

I focused on being
a lawyer and being the best where ever I find myself.

Honesty, discipline
and integrity are my principles.

Discipline from
parents and school, shaped me.

I knew what I
wanted, I resisted every other thing that was not what I wanted

Experience was more
important to me, I was opened to learn different things in the journey. The
different responsibilities at my different work opportunities have helped me. I have all round experience from different
places.

There is no way I
can tell you all that has happened in Mr. Akintola’s life but I would like to
mention that he was once a politician, he contested for the post of Governorship of Oyo State. He was so
disappointed at the mindset of people, he had very good intentions but they
failed to see because they could not think about the future. People would
rather vote for people with empty promises who simply give out money before
they get to the position. He refused to give out money because he was contesting
in order to serve them. He was going to work for them and deliver all his
promises. They rather voted for someone who gave out money and had no second
thought about them after he got the position.

My experience
taught me that people don’t want honest people and people of integrity. Thankfully
we have the current administration who are ready to lead the Country to peace
and justice. I’m hoping and praying they succeed all the pressures from within
and outside.

It is possible to
do honest practice and still get to the top. The current Vice President is an
example.

Let’s hold hands
together to make Nigeria work.

Akintola Ladapo is one man I know who believes
in living the life of truth.

Mentors

Chief Ladosu Ladapo
(SAN)

Details I believe
lawyers should pay attention to;

My dad played a
good role , I was impressed by his profession , he was a perfectionist , hard
working , he had integrity , believed in God he believed law is a tool you use to do good to others and yourself ,he
was a disciplined man a role model to lawyers all over Nigeria. He brought up
lawyers . He was always neat, he was a perfectionist as a lawyer, litigator,
SAN, solicitor, traditional Chief and in the Catholic Church where he was appointed
the knights of Saint Lumuba . He was a leader and member of Nigerian a bar Association, Commonwealth
Lawyers Association and International Bar Association, where he made his mark.

Professor Yemi
Osibajo (Vice president of Nigeria) –

He is a very good
friend, I respect him , he is legal expert , honest, a person of integrity ,
erudite, disciplined, a role model as a husband, leader, lawyer. He mixes his
intellect with humility and morals. If all the office holders could be like him
Nigeria will be a better place to be.

Justice Amina Augie

She is currently a
justice of the Supreme Court, I admire her because she is hardworking and
erudite, she promotes honesty and integrity and she has strong believe in God. She told me ‘I will get to the
supreme Court but it is God that will help me to get there’.

I’m sure you would
like to look like these people or rather you
would like people to say this about you.

Mr.
Akintola Ladapo’s family life

Mr. Akintola Ladapo
and his wife met at the Youth service camp. Immediately Akintola saw her, he knew she was the one. He
told his friend, Prof. Yemi Osinbajo that he has found his wife. He did not
waste time , he went after her immediately.

He got married in 1981. He saw many virtues in
his wife. I promise I can attest to
that, I was there when people came to
give testimonies about her during her retirement thanksgiving . I had to tell
myself at that program; Damilola you still have plenty growing up to do.

Mr. Akintola started dropping so many habits that his parents did not know of after he met his
wife.

She had an
influence on me , she was a born again Christian she was praying for me. I
became born again after marriage. I went to the gold smith fashioned a ring, I
did not want her to go, I put an engagement ring on her finger and also had
engagement party at the camp. Prof. Osinbajo
played a prominent role he held the
baskets of oranges at the engagement.

The bible says he
who finds a wife has found a good thing, Mrs. Modupe Ladapo has indeed been a
good thing to my Boss.

He continued the
chase after youth service. He met her dad and he told him to put his request
and plans in writing. She started working in Lagos at the Federal Ministry of
Agriculture. After youth service he told
his friend Yemi to watch over her for him. What this
taught me is that you should go after
what you want in life and you also
protect it after you have gotten it.

He went to meet her
in Lagos and told her to resign and take up an appointment as a teacher to
train and teach their future children,
because as a full time private legal
practitioner he will not be able to
devote enough time to see to the needs of the children.

I
did not have anything when I married her , did you see
that?!

We rented a place
at challenge in Ibadan it was empty but we started building little by little.
She earned more than I did when we got
married. That did not matter to her.

Together they raised:

1^st born
and 1^st daughter, Olubukola
Cecelia Atuyota, she is a PH.d hopeful
in United States of America.

2^nd born
and 1^st son Lawale Nicholas Ladapo is an International lawyer and he has been called to the bar in four
different countries. Does that not amaze you? I was flabbergasted. I thought I had dreams
but this exceeded my own imagination. He had a first class at University of Lagos. He attended Cambridge
University and Harvard University for
his Masters Degree programs after he was called to the Bar in Nigeria. Wow!
People are achieving great stuff in this life.
My mind was blown, I couldn’t close my mouth when his Dad told me about
him. He works at Cleary Gottlieb Steen & Hamilton LLP in Abudhabi in United
Arab airways. I’m definitely going to
write about him soon.

3^rd
born, 2^nd Son Adekunola Richard Ladapo , is an Engineer and works
with Amazon in United States of America. He had his Masters Degree in
Engineering at Northeastern University, Boston , Massachusetts.

4^th born,
2^nd daughter Bolaji Ladapo is also a lawyer. she worked at Olaniwan
Ajayi & Co. She is currently
pursuing her Masters Degree at Georgetown University, USA.

It gives me great
joy to have two of my children to be lawyers, one is an Academician and one is
an Engineer

Extracurricular
activities

Akintola Ladapo lives a balanced life he plays squash, his father introduced him and
his siblings to the game when they were younger. He plays on Sunday and
Wednesday evenings. He is an ardent supporter of Manchester United . Mr.
Akintola Ladapo still acts like a youth,
if you see him physically you will find it difficult to guess right his
age.

I told you his life
is balanced he also goes for Bible study on Tuesdays and prayer meetings on
Thursdays together with the Sunday
service.

Nugget from a
leader

·
Be a good example to others.

·
Live within your means.

·
You have to read your book and be
disciplined.

·
Go to court and do your case well because
it’s your name that will be in the law reports.

·
As a lawyer if you fail it’s by your own
choice.

·
Have good mentors because that in itself is
hard. Not the ones rigging, paying their way through because those are not
honourable.

·
Don’t ever bend because of anything, you
will walk freely when you are not shady.

·
You can get things done better when you
don’t draw attention to yourself , you will achieve more that way.

·
Don’t ask for anything that you don’t
deserve or else you will get burnt.

·
People ask for things that they don’t need
and it kills them. Don’t use your hand to soil yourself.

·
Thank God for what he has given you and
enjoy it.value your joy and peace because it is priceless.

·
Lawyers are officers in the temple of
justice , you have to assist in pleading the case of your client.

·
I did a pro bono case for a judge the
Accused person told me he did not do it, I believed him later on I realised
that he did it, I withdrew and told him to go and confess. Lawyers should not
shield wolves and those who break the law because of the money, they should
rather help justice , the judge needs the lawyers counsel on both sides to be
truthful.

·
To be a successful lawyer is not a hard and
fast rule, hard work is key.

·
You will have challenges in your journey.

·
You can’t just say you have achieved. Achieving is continuous work.

·
Our
profession needs cleansing just like our country , we can’t do it ourselves , we need God and we also
need to do things we ought to do. Do what is good and preach what is good too.

·
As women help your husband build good homes,
don’t compare what your husband with what your father has.

·
When you do good you are doing it for
yourself when you do bad you are doing it for yourself.

·
Stay clean especially because of the
future, straighten your records because it may come against you soon.

·
If you grow up you will stay up , but if
you jump up you will come down too soon.

·
Lawyers, whether on the ben, prosecution or
defence are all officers in the temple of justice.

·
Law is a vehicle of the society, that is
why our laws must be relevant.

·
Irrelevant laws should be removed.

I hope this
Inspired you because I am inspired and I
just hope someone reading this will be determined to be better because all your
dreams are truly achievable, you only need to work and be true to the right
principles.

Contributed
by;

Damilola
Dawodu

LinkedIn
: Damilola Dawodu

edawodu89@gmail.com

Counsel’s Wig; A Symbol Of Sagacity And Old Age| Damilola Dawodu

by Legalnaija | Aug 25, 2017 | Uncategorized

History of the
wig and gown

The
tradition of wearing wigs and the culture of adorning gowns was borrowed from
the prevailing practice of the time, however, in the case of gowns, it had a
little twist.

History
records that people wore gowns as early as the 17th century and it formed part
of the traditional attire of the ancient English people, however, these gowns
were very colourful gowns. Eventually, the English People wore a black mourning
gown after the death of King Charles II in 1685. Unexpectedly, after the
mourning period, the lawyers decided to keep wearing it, as it begun to
symbolise the sombre and solemn nature of the profession as well as the
attribute of neutrality.

The
black robe worn by lawyers also has a weird piece of triangular cloth attached
to the left shoulder, often described as ‘violin-shaped’, which is cut in two
lengthways. The origin of this is a bit more uncertain; there are two theories
on it:

The first of these theories is that the triangular clothe once
served as a money sack for the payment of a lawyer’s brief fees, more
professional called professional fees.

According to some, it is divided in half to create two segments,
one for gold coins, and the other for silver. The idea being that since lawyers
were initially not openly paid for their work, clients placed ex-gratia payment
into the Triangular-shaped pocket, literally behind their back, to preserve
their dignity. Therefore, because they could not see how much they were being
paid, the quality of their advocacy in court could not be compromised. (we like
this theory, but it’s an unlikely one)

The second theory is that the triangular cloth is a derivative of
the mourning hood introduced following the death of King Charles II, in
consonance with traditional mourning dress of the time.[1]

Subsequently, Lawyers and Judges started adorning the wigs around
1680. For 150 years, the wig worn by lawyers was usually made with powdered
white or grey hair. In 1822, Humphrey Ravenscroft invented a special wig for Lawyers
and Judges, which were made from a
whitish – grey horsehair that did not need frizzing , curling, perfuming or
powdering . Wigs are like hats cone in various sizes and have to be fitted.[2]

Why Nigerian Counsel adopted the Tradition of adorning
the wig and the gown

Our colonial masters, who
still adorn the gown when appearing in courts, introduced the practice of
wearing the wig and gown by lawyers when appearing in court.

Whether the continued adornment of the wig and the gown is still
of any relevance in the Nigerian Legal System has sparked different reactions.
To some, the wig and gown is an inspiration to lawyers, as adorning the wig and
gown gives one a sense of satisfaction. Also, it gives respect to legal practitioners,
and make the clients respect the profession when in court because of the regal
nature of the attire. To others, The wig
and gown distunguishes the legal profession from other professions and from
other members of the society.

Some are of the opinion that the Wig
and gown epitomizes authority, formality, dignity and solemnity of the law. It emphasizes on the
objectivity of the law and deflects personal attention from the judge. It was
also introduced for hygienic reasons.

Instances where it will be compulsory to be adorned in
the wig and gown

A perusal at the Rules of Professional Conduct for Legal
Practitioners (The Rules) 2007 shows more prominently Rules 45 & 36 which
stipulate that:

Except with the permission of the Court , a lawyer appearing
before a High Court , the Court of Appeal or the Supreme Court shall do so in
his robes

(2) A lawyer shall
not wear the Barrister’s or Senior Advocate’s robe

(A) on any occasion other than in Court except as may be
directed or permitted by the Bar Council ;or

( b) when conducting his own case as a party to a legal
proceeding in Court ; or

“When in the court room, a lawyer shall

(A) be attired in a proper and dignified manner and shall not
wear any apparel or ornament calculated to attract attention to himself.

(B) conduct himself with decency and decorum, and observe the
customs, conduct and code of behaviour of the Court and custom of practice at
the bar with respect to appearance, dress, manners and courtesy..”[4]

MEN:

The specified mode of dressing for male lawyers is Black or
dark- blue two piece or three piece suit, white collarless shirt, white wing
collar ( size bigger than shirt neck
size ) white band ( bib) elastic or lawn
, two studs ( one at the back and one in
front of The collar ) to hold collar to shirt ; and black shoes with black
stockings . Alternatively, men would
wear (a)
white shirt with wing collar in lieu of collarless shirt and
detachable wing collar . ( b) Black and
grey stripped trousers in lieu of suit trousers (c) sleeved vest in lieu of coat

WOMEN :

For the women, the specification are as follows:

a. Black or dark- blue suit or straight dress or skirt and
jacket with white blouse if open; white collarette or ladies white band and
black shoes . The dress must have long sleeves and be high to the neck and the
dress or shirt must be knee length , it must also be of a sober appearance and
not worn in a manner as to attract unnecessary attention. The skirt should not be
too tight as to expose the stark figure or contours of the body.

For inferior Courts :

For inferior courts, White shirt and long tie may be worn with
the suit in lieu of wing collar by men . The wig and gown should not be won
in the inferior Courts or outside Court
premises, except with the permission of the General Council of the Bar. See
Rule 45 (2)(a) of the Rules of Professional Conduct 2007. The occasions to this
may include lying in state of a deceased colleague, valedictory sessions,
opening of legal year.[5]Etc.

Also, the Rule as cited above precludes a lawyer from remaining within the Bar while
conducting a case in which he is a party. He should leave the Bar and remove
his wig and gown .[6]

Furthermore, Counsel are
not allowed to wear the wig and Gown in the following Courts;

·
Special
courts like the Court Martials, coroners
court etc.

·
Inferior
Courts which includes the Magistrate Court and Customary Court

·
Sharia
courts

When do counsels get wigs and gown

Wig and gowns are first worn officially during the call to
the Nigerian Bar ceremony of the Aspirant to the Bar. Vendors usually come to
meet students at the Nigerian law school to introduce them to different wigs
right from the first term at the law school. The vendors come to advertise
those wigs and they also mention that there are discounts on each wig. The wigs
are priced according to the quality.
Some of the vendors succeed in convincing the students, Some will tell students to buy it and start praying on
it. Student who are excited about the idea will buy while some others will
calmly wait to buy after the results are out. The ones who calmly wait are
usually the lucky ones because they would get the wigs at a price lower than the supposed discount price. Some other aspirants order
for theirs from abroad.

It is a thing of joy for both the aspirants and the family
to be adorned in this beautiful and honourable attire.

THE Wig as a symbol of seniority at the bar.

I am still very young at the Bar, but from my days at the
law school especially during the externship, I noticed that one can tell the
age of a Counsel at the Bar in Court by the wig.

When you see a white wig , it presuposses that the gentleman
is a new wig. When you see the
not-so-white wig it means the gentleman is advanced in age at the bar.

I can not
deny that it is worrisome that some lawyers attend court with torn wigs and
shabby gowns as an expression of their long years at the bar. This actually
goes to say that they don’t look after themselves because such dressing only
undermines the high standing of the legal profession.

Recommendations

I know the
problem is; the old wigs do not want to be addressed as new wigs and they also want
to be given the respect that they deserve. Hence, I will advice and suggest as
follows:

1.
Counsel should purchase a
strong and durable wig when being called to the Bar.

2.
In the course of the years,
counsel should maintain the wig and the gown well, especially the wig,so that
it does not get torn or tattered

3.
Counsel should endeavour to
buy at least two wigs and use them interchangeably.

If your wig is torn or your gown is battered, buy a new one.
Wearing torn or tattered wig does not bring any sort of honour to you nor the
profession.

Written by;

Damilola Dawodu

LinkedIn :
Damilola Dawodu

edawodu89@gmail.com

[1] Administrator, Why do Nigerian Lawyers wear wigs and black gowns, law
paid.com , administration of justice, http://lawpadi.com/why-do-nigerian-lawyers-wear-wigs-and-black-gowns/

[2] Why do Judges and barristers wear wigs, the Nigerian lawyer.com, life and tech category, Jan 21, 2016, http://thenigerialawyer.com/why-do-judges-and-barristers-wear-wigs/

[3] Rule 45 Rules of Professional Conduct for
Legal Practitioners 2007

[4] Rule 36 Rules of Professional Conduct for Legal Practitioners 2007

[5] A. Obi Okoye ,Law in Practice in Nigeria ( professional
Responsibilities and lawyering skills ) page 228

[6] Rule 36 (f) Rules of
Professional Conduct for Legal Practitioners 2007

The Benefits Of Mediation Over Litigation (II) |DmediationLawyerist

by Legalnaija | Aug 22, 2017 | Uncategorized

The Benefits Of Mediation Over Litigation include –

·
It
gives better results because control remains directly in the hands of the
parties as decision makers.

· Win
or lose, it is comparatively quick and cheap as a self- contained process.

·
It
saves management time.

·
It
is private and confidential.

·
As
a dynamic, it actively promotes renewal and reconciliation because it has been
structured to restore relationships.

·
Litigation
looks to find fault; Mediation does not.

Mediation makes a particularly attractive
route where parties are likely to continue to have dealings and interact in the
future, whether in business, as neighbors or within the confines of some close
personal relationship or physical proximity. This is of particular interest in
Landlord/Tenant, Vendor/Purchaser, Principal/Agent and other neighbor
relationships, as well as trading partners.

Footnotes:*
Standing Conference Of Mediation Advocates (SCMA) *The Lagos Multi- Door
Courthouse Law (LMDC) 2007* The LMDC Practice Direction on Mediation Procedure*
The Multi Door Courthouse Code of Ethics for Mediators* Guidelines For
Enforcement Procedure *Guidelines for Court referrals to Alternative Dispute
Resolution *Principles of Alternative Dispute Resolution by Stephen J.Ware
*Effective Mediation Advocacy by Andrew Goodman *

For more tips on Mediation –

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us on Facebook Page: fb.me/dmediationlawyeristng

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Mediation and the Courts | DmediationLawyerist

by Legalnaija | Aug 22, 2017 | Uncategorized

It should be noted that Mediation and other
forms of ADR can NEVER replace the courts but it is to be seen as part of the
court system and this has been done with the establishment of the Lagos Multi
Door Courthouse (LMDC) which is primarily aimed at resolving disputes.

Mediation and every other form of ADR is
achieving justice by consensus and the aim of our page is that it is hoped that
only cases which should be in the courts get to the court.

THE
BENEFITS OF MEDIATION OVER LITIGATION (I)

· Litigation is formal and looks backward in time at what has occurred.

· Many winners find that in real terms, taking into account, time,
irrecoverable costs and aggravation, they have not won anything at all.

· It imposes a binding solution based on legal liability where
inevitably one party or the other is likely to be dissatisfied, since the
process is designed to attribute blame.

· The expense and costs regime may make even the winner dissatisfied.

· It removes control of the dispute from parties, first by vesting it in
the lawyers and then in the court’s administration and management system.

· It addresses issues in a purely legal context, in the public eye, with
foxed pre-determined remedies that you either obtain or fail to obtain.

· It is slow, expensive and more often than not destroys relationship as
a result of the victor- vanquished mentality.

· In contrast Mediation is an informal, very flexible procedure with no
imposed solutions and looks forward in time from where the parties are at
presently.

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Fighting Tax Evasion & Avoidance | Theophilus Olufemi

by Legalnaija | Aug 22, 2017 | Uncategorized

The Federal
Inland Revenue Service (FIRS) has again taken a step towards containing tax
avoidance and evasion in Nigeria. The agency signed two major multilateral
agreements to join 71 other countries to fight tax evasion.

On behalf of the
FIRS, Mr. Tunde Fowler has signed a multilateral convention to implement Tax
Treaty Related Measures to Prevent Base Erosion and Profit Shifting and the
Common Reporting Standard Multilateral Competent Authority Agreement. This
agreement was signed in Paris with the Head Global Relations and Development
Division of the organisation for Economic Cooperation and Development.

These agreements
would avail the FIRS with the “automatic exchange of tax and financial
information among 101 tax jurisdictions and enhance the ability of countries to
contain tax avoidance and evasion.”

It will also help
the countries to share financial data.

The MLI is a
legal instrument designed to prevent Base Erosion and Profit Shifting by
multinational enterprises.

It allows
jurisdictions to transpose results from the OECD/G20 BEPS project, including
minimum standards to implement in tax treaties to prevent treaty abuse and
“treaty shopping”, into their existing networks of bilateral tax treaties in a
quick and efficient manner.

The CRS MCAA is a
multilateral competent authority agreement based on Article 6 of the
Multilateral Convention on Mutual Administrative Assistance in Tax Matters,
which aims to implement the automatic exchange of financial account information
pursuant to the OECD/G20 Common Reporting Standard and to deliver the automatic
exchange of CRS information between 101 jurisdictions by 2018.

Theophilus
Olufemi

Senior Tax Advisor at TAC Professional
Services

Ed’s Note – This article was first
published here

Photo Credit – Here

The Types Of Cases That Can Be Referred To Mediation

by Legalnaija | Aug 21, 2017 | Uncategorized

Mediation can be utilized in resolving a
wide range of disputes including but not limited to the following;

·
Banking
and Insurance related disputes

·
Commercial
/Local dispute resolution

·
Landlord
and Tenant matters

·
Property
disputes

·
Debt
recoveries

·
Libel
and slander

·
Administration
of Estate

·
Employment
and Trade Disputes

·
Construction
disputes

·
Accident
and tort

·
Medical
negligence

·
Contracts
enforcement

·
Family
disputes including marital disputes, child custody etc

·
Succession
disputes

·
Small
claims etc.

THE LAWYER’S ROLE AND RESPONSIBILITY
IN MEDIATION

The lawyers represent their clients as MEDIATION ADVOCATES and drive the
settlement initiative. He is obligated to assist clients in evaluating and preparing
settlement options. If no settlement is reached, then the cases can either be
referred to Arbitration or taken to court.

For more on mediation

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The Right Choice Between Voluntary Resignation and Termination of Employment | Kayode Omosehin, Esq.

by Legalnaija | Aug 21, 2017 | Uncategorized

One of the easiest ways out of any
confusion created by an irreconcilable difference in the course of an
employment relationship is a voluntary resignation by the affected worker.
Unfortunately, lack of knowledge of employee’s rights and employer’s powers has
resulted in several litigious employment disputes that could have been avoided
with minimal costs to both parties. It all depends on making the right decision
with less stress or none at all.

Employer’s pressure, following a request or
advice to a worker to resign, is a prominent element in the facts of most
judicial decisions reviewed on the questions of voluntary resignation by an
employee. I have addressed below, in a question and answer manner, some of the
legal issues associated with a letter of termination and voluntary resignation,
whether or not the resignation is based on the employer’s advice to resign:

1.
What is the difference between a termination
letter and an employer’s advice to resign?

A termination letter of employment is
simply a document by which an employment relationship is determined. It is a
letter which disengages an employee from any further obligations except those
which he is required by agreement to fulfill before exiting the employment.
However, an employer’s advice to resign is merely a verbal or written request
by an employer urging an employee to voluntarily quit his job rather than a
termination of the employment by the employer. An employer’s advice to a worker
to resign is simply a management strategy to ensure that the company’s record
does not reflect that the worker’s employment was terminated by the company
(even though the worker was urged or pressured to resign).

It is difficult to outline what will
amount to undue pressure from an employer to warrant the inference of a
wrongful termination of employment. It is advised that the facts of each
circumstance ought to be carefully reviewed by an employment lawyer in order to
advise on the best way out of any irreconcilable difference between an employer
and employee. Sometimes, an employer’s advice or request for a worker’s
resignation may be a kind gesture towards the employee whereas at other times,
it may be inappropriate and actionable! The National Industrial Court held that
an employer’s advice or request to an employee to resign has no legal effect
whatsoever and, as such, can be disregarded by a worker. In a case decided on
25th September 2014 by Honourable Justice O. A. Obaseki-Osaghale of the Calabar
Division of the Court, the claims of an aggrieved employee against his employer
were granted in large part when the court held that the claimant’s employment
had not been terminated by a memo issued by the company’s management advising
the claimant to resign.

2. Is
an employee bound to resign when the employer requests for his or her
resignation?

A worker is not bound to resign on the
advice or request of his or her employer. A worker is at liberty to refuse to
resign, even if he is threatened by his employer to do so, especially if there
are no justifiable reasons for which the employer can immediately (and
lawfully) terminate the employment. In other words, if a worker is not culpable
for any misconduct or poor/non-performance, he or she can disregard the
employer’s advice or request for resignation.

It would appear to be a common
practice for a company to request a worker to resign in order to avoid being
fired! The question, however, is how far can the company go in legitimately
requesting or pressuring a worker to tender resignation without violating
international best labour practice? In my view, it is a wrong decision for an
employer to request or advice an employee in writing (including a report of
investigation) to tender resignation unless the employee is found wanting for
misconduct or poor/non-performance. This is because the court may presume that
a worker’s service has been wrongfully terminated if, after his refusal to
tender resignation on the written advice or request of the employer, a notice
of termination is issued to such a worker.

It is useful to mention that a worker
should regard an employer’s advice to resign as a good gesture or favour if,
after a considered review of the circumstances, there are, indeed, justifiable
grounds for immediately terminating the employment by the company.

3. What
are the required contents of a letter of termination or resignation?

A letter of termination or resignation is
required to satisfy certain conditions. These conditions are not provided in
any law but are drawn from my review of some judicial decisions of superior
courts in Nigeria in which letters of termination and resignation were in
contention between employers and their respective employees.

The following conditions are to be
satisfied:

i.
Date of the Letter: A letter of
termination or resignation must be dated. Without being dated, a document is
worthless as a letter of resignation or termination. The date is necessary to
compute the period of notice as agreed in the employment contract.

ii.
Addressed to a Specified Party: A letter of
termination must be addressed to an individual employee and not to a group of
employees; otherwise, this will give rise to a different legal implication. For
instance, where a letter of termination is addressed to a group of employees,
it may give rise to an inference that the employees have been disengaged in a
manner that will entitle them to redundancy benefits. A letter of resignation,
however, may not be invalidated merely because it is not addressed to a
specific authority in the company, it is sufficient if it is addressed to the
company or any official in the management.

iii.
Clear Wording of the Termination Phrase: A letter of
termination must clearly state that the employee’s services are no longer
required by the employer or that his/her employment is terminated effective
from a specified date. Equally, a resignation letter must state clearly that
the employee wishes to bring the working relationship to an end by using any of
these or similar expressions; “I hereby resign from my employment as
director/manager/accountant/Head, Human Resources etc. of the
company” or “Please accept my resignation as
director/manager/accountant/Head, Human Resources etc. of the company”.

iv.
Reason for Termination: According to recent
judicial decisions, every letter of termination of employment must state a good
reason for terminating the service of a worker. Liability may arise to the
employer if the termination letter does not state any ground (and of course, a
good ground) for the termination.

v.
Notice Period or Salary in lieu of
Notice: A
letter of termination or resignation must state whether a notice period is
given to the addressed party or that the party issuing the letter will pay/has
paid the salary payable in lieu of the notice period,
depending on the employment agreement. Where the party issuing the notice
intends to pay a salary in lieu of notice, the letter of
termination or resignation may state the amount payable or simply enclose a
banker’s cheque in the said sum. The payment should not be delayed. Where a
notice period is given, the employee is expected to resume work as usual unless
the employer prefers to pay the worker off and dispense with his or her service
for the notice period. It is, however, unclear and, therefore, arguable
whether, in the course of a notice period, a worker may decide to convert his
service for the reminder of the notice period to payment of salary in
lieu of notice. Where an employee accepts payment after termination of
employment, he cannot complain later of unlawful termination of employment.

vi.
Date of Disengagement: A letter of
termination or resignation must state when the worker will stop work or whether
he is required to leave the employment immediately. If the worker is required
to leave the employment immediately, his salary in lieu of
notice and other benefits, in appropriate circumstance, should be paid
immediately as well. Even though the Court of Appeal’s case of WAEC v.
Oshionebo [2006] 12 NWLR (pt. 994) 258 has been interpreted by the
National Industrial Court to imply that the tendering of resignation by an
employee carries with it the “right” to leave the service automatically without
any benefit, it is my view, however, that a thorough review of an employment
contract is sacrosanct in determining if the employee will be entitled to any
terminal benefits at the time of voluntary resignation. Please note that the
parties may enter into a new agreement on how to satisfy, at a future date, any
outstanding obligations under the employment contract which the parties cannot
fulfil at the time of resignation or termination of the employment.

vii.
Authorized Signature: Except where
delegation of authority is otherwise permitted, a letter of termination must be
signed by the authorized staff of the employer in accordance with the
employment contract. Please note that the authorized staff of the employer is
the official who signed the employment contract on behalf of the company or the
staff who has the power to terminate the employment. If there is any question
as to whether the staff who signs a letter of termination has a delegated
authority to do so, the answer will depend on the facts of each case, the
employment contract, internal structure of a company and the court’s evaluation
of evidence.

viii. Evidence of
Delivery: A
letter of termination or resignation must be delivered to the addressed party
in the manner agreed in the employment contract or any other manner which may
justify reasonable notice. It is acceptable to forward a letter of resignation
or termination under the cover of an email to the official email of the
addressed party provided that nothing is done to prevent its receipt. In such
case, both the letter and the cover email must be tendered in any litigation
regarding the employment.

ix.
Evidence of Receipt: A letter of
termination or resignation must be received by the addressed party. The
addressed party has no right or discretion to reject the letter. A letter
of resignation or termination takes effect from the date on which the letter is
received by the addressed party. Proof of receipt is important in order to
answer any question on whether an employment relationship has been brought to
an end either by termination or resignation.

4. What
are the Remedies for terminating an employment by a defective or no letter of
termination

Whenever an employee’s engagement is
brought to an end by a defective letter of termination or resignation or no
letter at all, damages is the only available remedy to the aggrieved party. The
employee cannot be reinstated to the employment as the Court does not force a
willing servant on an unwilling master and vice versa. In the case referred to
under No. 1 above, the employer, by a memo dated 17th December
2009, advised the claimant to resign but he refused to resign and, instead,
brought an action against the company three (3) years after (on 18th December
2012). After holding that the claimant was right to have disregarded the
employer’s memo advising him to resign, the court held that the worker remained
in the company’s employment and therefore entitled to salaries for the period
from June 2009 till judgement date, 25th September 2014, and thereafter until
his employment was properly terminated by the employer!

Kayode Omosehin, Esq.

Associate at Udo Udoma & Belo-Osagie

Ed’s Note – This article was first published here

What is mediation?

by Legalnaija | Aug 21, 2017 | Uncategorized

Mediation is a
voluntary, non-binding and private dispute resolution process in which a
trained neutral person helps the parties to reach a negotiated settlement.

It has also been
defined as an opportunity to resolve a dispute without resorting to formal
procedure.

A Mediation
Advocate is a lawyer and other professional advocate who represents clients at
mediation.

In most cases,
mediation cannot take place unless the parties agree to enter the process,
although this may only be after a strong judicial recommendation, with an
associated risk of cost sanctions against a party who refuses to mediate and
indeed where the process is justiciable before the Lagos Multi-Door Courthouse
or other MDC, a fine for parties who do not attend the hearing before the ADR
judge to determine the appropriate route.

Mediation is not
possible without the participation of all parties, and will cease if one party
walks out, which they are free to do at any time.

Although refusing
to mediate can have adverse cost consequences, the mediation process is both
“without prejudice” and absolutely confidential to the extent the law permits.

FEATURES OF MEDIATION

a.
It is a flexible process.

b.
It is conducted confidentially.

c.
The Mediator is a neutral person.

d.
The Mediator actively assists parties in working towards a negotiated
agreement.

e.
The parties are in ultimate control of the decision to settle and the
terms of settlement.

f.
It is a voluntary process.

Footnotes:* Standing
Conference Of Mediation Advocates (SCMA) *The Lagos Multi- Door Courthouse Law
(LMDC) 2007* The LMDC Practice Direction on Mediation Procedure* The Multi Door
Courthouse Code of Ethics for Mediators* Guidelines For Enforcement Procedure
*Guidelines for Court referrals to Alternative Dispute Resolution *Principles
of Alternative Dispute Resolution by Stephen J.Ware *Effective Mediation
Advocacy by Andrew Goodman.*

For more on mediation

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Star Profile – Mr. Femi Falana SAN, LL.B, B.L, FCI, Arb.

by Legalnaija | Aug 18, 2017 | Uncategorized

Femi Falana, a native of Ilawe , Ekiti State,
Nigeria was born on May 20, 1958. Femi Falana’s primary education began at St.
Michael’s Primary School, Ilawe, between 1963 and 1968. After which, Femi
attended Sacred Heart Catholic Seminary between 1971 and 1975.

Upon gaining admission into the University
of Ife (Obafemi Awolowo University), he studied law between 1977 and 1981 and was
called to the bar a year after. He worked with the Public Complaints
Commission between 1982 and 1983 and practiced
as a lawyer under the firm of Alao Aka –Bashorun & CO. between1983 and 1991.
In 1991, Femi Falana began his own
Chambers which is now known as Falana and Falana Chambers, having his wife
Funmi as a partner a partner.

Femi Falana, popularly known as a human
right activist, has championed legal causes in support of human rights all through
his legal career. He is renowned for providing free legal services to the poor
and disadvantaged and had suffered long spells in detention under Nigeria’s
past military dictators. Femi also contested and lost the governorship election
of Ekiti State in 2007 on the platform of National Conscience Party,
a party he served as National Chairman in 2011.

For his legal prowess, he was conferred with
the rank, Senior Advocate of Nigeria in 2012. Femi has published may articles,
papers and books including –

·
Fundamental
Rights Enforcement, Legaltext Publishing Company 2005 (251 pages)

·
Legal
and Policy Framework of Occupational Health and Safety in Nigeria in Idowu
Awopetu et al (eds) (1998)

·
WORKING
IN DANGER, P. 52, a CDHR Publication, Editor-in-Chief, Weekly Report of Nigeria;

Femi Falana
belongs to many Professional Memberships and held various leadership positions
such as President,
West African Bar Association, Member, Nigerian Bar Association and Member, West
African Bar Association, Member, Pan African Lawyers Union and Member,
International Bar Association. Mr Femi Falana ia a recipient of National and
International Awards / Honour. some of which are: “Defender of the year Award”
from the international league for Human Rights in 2000; The Ogoni merit award –
2002; Dr Kwame Nkrumah leadership award 2003; and Bernard Simon memorial award
for the advancement of human rights- 2003.

Falana & Falana’s Chambers is a leading
law firm in constitutional law and human rights services. His firm has
also represented many victims of human rights violation in Nigerian Courts and
the ECOWAS Community Court.

Nigerian Startup Registration in 2017: a Necessity or Luxury? | Adejorin D. Abiona

by Legalnaija | Aug 18, 2017 | Uncategorized

When starting a business, one of the major considerations on the minds of
the owners/ promoters is whether or not registration is needed at that material
time. This of course may be borne of the desire to justify every expense to be
incurred by a newly formed startup i.e. every penny has to provide a return on
the investment. Registration of a startup may seem unnecessary at the beginning
stage of a business to the owner but this should not be the case. This article
will look into registration of startups in Nigeria with focus on the major
reasons for registration and drawing a conclusion on whether registration is a
necessity or not.

Business structures

The legal structure chosen for a business has major implications. In
choosing a structure for a business, factors such as the potential risks and
liabilities of the business, the objects of the business, the costs involved in
establishing and maintaining the business structure and tax implications should
be taken into consideration. The promoters/owners of a business must decide on
the legal structure that best meets their needs, as this will determine the
type of registration procedures that will be followed.

There are three commons ways to structure a startup in Nigeria:

Sole trader: This consists of an individual trading on his own. He controls and
manages the business. It is the simplest business structure and easy to set up
with minimal costs. A sole trader is solely responsible for the liabilities of
the business and also solely enjoys the profits. The main disadvantage of this
structure is that there is no protection for the personal assets of the
Proprietor in the event that the business fails as his assets become available
to pay off creditors.

Partnership: This involves an agreement between two or more
people to go into business together. Each of the partners will be jointly and
severally liable for the debt of the partnership. It is not necessary for all
the partners to be fully involved in the management of the business but they
all share the profits or loss as the case may be.

Limited Liability
Company: This is a
legal entity separate from its shareholders, directors and employees. Liability
here is limited to the amount invested in the company as shares. Hence, the
shareholders enjoy a form of protection on their personal assets in the event
that the company goes into liquidation.

The body generally responsible for registration of businesses in Nigeria
is the Corporate Affairs Commission (CAC)[1].

Why register a startup?

Compliance with the
law

The Law makes it mandatory for every individual, firm or corporation
operating under a business name to register their business within 28 days of
commencement[2]. Also a limited
liability company can only be formed in the manner set out by the law[3]. Hence, in order to comply with
the provisions of the Law, a startup must be registered.

The law that primarily provides for registration of business
organizations in Nigeria is the Companies and Allied Matters Act (CAMA) 1990[4].

Brand reputation
and public perception

Building a reputation with new clients and customers may seem very
difficult. Registration enhances the public perception of a startup and gives
potential clients the confidence that they are dealing with a reputable
business. Also, there are many businesses who will not engage with an
unregistered startup because of their status and reputation.

Registration gives the assurance that the business is legitimate and
reputable.

Bank Account

To open a business bank account for a startup, proof of registration is
always a necessary requirement. Banks will not open a business account for an
unregistered startup. Having a business account gives a startup more
credibility and trust from the customers, bank, other associated businesses and
the public. The account also ensures that business funds are not diverted for
personal use.

Loan Facilities

Most Financial Institutions give business loans only to registered
businesses. The Institutions in order to protect their interest and to ensure
repayment of loan facilities would naturally need an assurance that a business
is legitimate and the facilities would be put into proper use. This assurance
is easily seen in a registered startup and this is why registration is a
non-negotiable requirement to qualify for such loans.

Brand identity
Protection

Registration gives a unique identity to a startup and such is also
protected under the law. By the provision of law, no two businesses should have
the same name or names so identical as to confuse the public. Once a business
name is registered, such name is recorded and recognized by the government and
as such, no other business can register with that same name.

A registered business name enjoys the advantage of protection against
competitive usage within the country.

Liability
Protection

When a startup is registered as a limited liability company, the business
becomes a different entity for its owners. The owners can not be personally
held liable for the debt of the company. This means that no one can legally go
after the personal properties of the business owners in case the business goes
into liquidation or to enforce any claim against the Company.

Registration as a limited liability company protects the personal assets
of the business owners.

Continuity

A registered startup has the ability to live longer than its owners. This
means that even if the business owners become incapacitated or dead, the
business will not close down especially when a proper structure is in place.

A registered startup is an asset transferrable to the next generations.

How to register a Startup

Registration of a startup in Nigeria involves some processes including
filling of forms and filing of some documents. It is advisable to engage the
services of persons with experience in this field who can streamline the
process and get the business registered within a very short period of time.

Conclusion

Registration of a startup may seem to be an investment without direct
return but similar to insurance. It will definitely cost money, time and
effort. However, this is a necessary price to pay for the protection of the
business, business owners and associated businesses. It is always advisable to
register a startup in order to enjoy the benefits stated above which are indeed
necessary for the smooth running and the image of the startup. Hence, it is not
a luxury to register a startup but a necessity.

[1] Section 1,
Companies and Allied Matters Act (CAMA) 1990, CAP C20, LFN 2004

[2] Section 574,
Companies and Allied Matters Act (CAMA) 1990, CAP C20, LFN 2004.

(Exceptions to this provision is contained in Section 573 CAMA)

[3] Section 35,
Companies and Allied Matters Act (CAMA) 1990, CAP C20, LFN 2004.

[4] CAP C20, LFN
2004.

Adejorin D. Abiona

Associate Attorney | Writer | Public Speaker

Ed’s Note – Article was first
published here

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