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Just Before Heading To Court | Adejorin d. Abiona

Just Before Heading To Court | Adejorin d. Abiona

by | Sep 8, 2017 | Uncategorized

Many cases get dismissed or struck out of Court upon objections and
applications which border on technical and preliminary considerations. Such
considerations include existence of cause of action, locus standi, jurisdiction, legal personality, properly prepared processes
among others. A litigation attorney must have a good knowledge of these
considerations and always bear them in mind before heading to court in order
not to waste the time and resources of the litigants, the other counsel and the
court. A counsel may also incur some liabilities for failure to observe these
preliminary or technical matters before instituting an action in court. This
article provides a checklist of these technical and preliminary matters a
litigation counsel should consider before filing processes in court.


q Cause of Action
There must be a cause of action before an intending litigant can
initiate an action in court. A cause of action refers to any fact or series of
facts which when proved will entitle one person to damage or relief against
another person[i].
A cause of action must clearly appear on the face of the originating
processes; otherwise the proceeding will not be sustainable. Hence, counsel
must ensure that there is in existence a cause of action known to law before
commencing an action in court.
q Locus Standi
A person who
intends to institute a suit must possess the ability to so do. Locus standi is
the legal capacity to institute proceedings in a court of law[ii].
When a claimant lacks locus
in respect of a claim, such claim will be struck out. Therefore, a counsel must
make sure his client has the legal capacity to maintain an action before
initiating such in court.
q Parties
A counsel must ask himself this very important question while making
the decision to institute an action: “Who
is the appropriate person to sue and be sued?” He must ensure both the
plaintiff and the defendant in a case are legal persons capable of suing and
being sued either as the proper party, desirable party, necessary party or
nominal party[iii].
In addition, he must ensure the parties are legal persons capable of
suing and being sued (natural or artificial persons)[iv].
Also, in deciding who to sue, the counsel must have in mind the possibility of
enforcing the judgment if made against the defendant[v]. 
q Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR) mechanisms must be well explored
before instituting an action in Court. With ADR, parties may reach an amicable
resolution of the dispute without the need to resort to Court or litigation.
Moreover, Counsel has a duty to inform his client of the available alternative
dispute resolution mechanisms[vi].
q Limitation period
This has to do with whether an action is statute barred or not. Where
there is a lapse of time as regards the sustenance of the action, proceedings
will be statute barred and the party will be denied the right to proceed to
court for redress.[vii]
The time begins to run when the cause of action accrues. The limitation
period is determined by comparing the date the writ of summons was filed with
the date the alleged wrong was committed as contained in the statement of claim
or as adjudged in the eyes of the law. If the date on the writ is beyond the
period allowed by limitation law, then the action is statute barred[viii].
Counsel must always note the provisions of limitation laws in order not
to initiate a suit that is already statute barred.
q Conditions precedent/Pre-action Notices
All the necessary conditions precedent to the filing of suit in Court
must have been complied with before the commencement of an action. Conditions
such as pre-action notices, statutory notices, letters of demand, pre action
counseling etc. must be fulfilled before instituting an action in court when
required by law[ix]. For instance, to
institute an action against some government establishments, a counsel must
first serve the establishment a written notice of intention to commence the
suit. Failure to observe this will be fatal to the competence of the suit.
It is the duty of the counsel to make sure all required conditions
precedent to trial are fulfilled before initiating an action in court.
q Jurisdiction
The counsel has to always consider which court has jurisdiction to
entertain the client‘s action. Jurisdiction is the legal capacity of a court to
hear and determine judicial proceedings. It is fundamental in any proceeding
and lack of it is fatal to such proceedings[x].
q Venue
Counsel has to always decide the appropriate Judicial Division or Magisterial
District to commence an action. In making such decision, the counsel has to
look into the rules of the court guiding commencement of suits.  
An action should be commenced at the right division or district to
avoid incurring the unnecessary cost of transferring the case if commenced
elsewhere. For instance, an action commenced at the Lagos State High Court will
definitely be struck out where the defendant does not reside nor carry on
business in Lagos, and the cause of action likewise did not arise in Lagos[xi].
However, in matrimonial causes, all States High Courts are competent to hear
matrimonial proceedings even if the marriage was neither celebrated in their jurisdiction
nor parties live there. The suit may only be transferred from one jurisdiction
to another for the sake of convenience.
q Mode of Commencement
The rules of the court and some other special rules of procedure
prescribe the various modes of commencing actions in Court. These modes vary
depending on the court and the cause of action. For example, the following are
the four (4) different modes for commencing actions in the High Court: writ of
summons, originating summons, petition and originating motion/application.[xii]
It is very important for counsel to have good knowledge of these modes
of commencement in order not to employ a wrong mode in commencing an action in
Court.
q Well drafted, signed and sealed processes
Counsel must make sure all the processes to be filed in court are well
drafted, duly signed and sealed. Counsel must be very careful when making use
of precedents in drafting the processes so as not to make grievous mistakes.
Documents must be signed in the name of the counsel and not that of the firm[xiii].
The NBA seal (or necessary documents in lieu) must also be duly attached to the
processes before filing[xiv].
Conclusion
Matters to be considered before proceeding to file an action in Court
are always of paramount importance. Failure to consider these matters may lead
to premature termination or dismissal at the end of the action. If the above
checklist is well utilized, it would be of great assistance to counsel and
aggrieved persons intending to institute an action in a court of law.  


[i]
Letang v. Cooper (1965) 1 QB
222, 
Mobil v. LASEPA (2003) 104 LRCN 240
[ii] Ag Kaduna v. Hassan
(1985) 2 NWLR 453; Adesanya v. President FRN & Anor. (1981) 5 SC      112; Fawehinmi v. President FRN (2007) 14
NWLR (pt.1054) 275. Kayode Bakare & Ors v. Ajose- Adeogun & Ors 2014
Legalpedia SC 33M5
[iii] Green v. Green
(1987) 3 NWLR (Pt. 61) p. 480.
[iv] Okechukwu &
Sons v. Ndah (1967) NMLR 366; Ataguba and Company v. Gura Nigeria Limited 2005
Legalpedia SC 9AWD
[v] Prince Joel Olowode
Amos &Ors v. Oba Israel Adewale Okoya & Ors 2014 legalpedia CA PEUC
[vi] Rule 15(3) (d) Rules
of Professional Conduct
[vii] Ajayi v. Military
Administrator of Ondo State (1997) 5 NWLR (Pt. 504) 237; Dr. Charles Oladeinde Williams
v. Madam Olaitan Williams (2008) Legalpedia (SC) TOJB
[viii] Egbe v. Adefarasin
(1987) 1 NWLR (Pt. 47) 1.
[ix] Gambari v. Gambari
(1990) 5 NWLR (Pt. 152) 572. Ugwuanyi v. NICON Plc (2004) 15 NWLR (Pt. 897) 612
[x] Madukolu v.
Nkemdilim (1962) 1 All NLR (Pt. 4) 587. 
Mobil v. LASEPA (2003) 104 LRCN 240; Ndayako v. Dantoro (2004) 13 NWLR
(Pt 889) 187
[xi] Order 2 , High Court
of Lagos State (Civil Procedure) Rules, 2012
[xii] D.I Efevwerhan
(2013): Principles of Civil Procedure in
Nigeria (Second Edition) pg 145; Snaap Press Ltd, Enugu, Nigeria.
[xiii] Okafor v. Nweke
(2007) 10 NWLR (pt. 1043) 521
[xiv] Today’s Cars Ltd v.
Lasaco Assurance PLC & Anor (2016) LPELR-41260 (CA)
Adejorin D. Abiona
is a young resourceful legal practitioner, writer and public speaker with keen 
interest in dispute resolution and corporate law practice. He has to his credit
various law-related 
articles published on different platforms.   

 Adejorin d. Abiona

Associate Attorney |
Writer | Public Speaker 
Legal Arrangements For Children Without Parents Or Guardians In Nigeria| Temitayo Ogunmokun

Legal Arrangements For Children Without Parents Or Guardians In Nigeria| Temitayo Ogunmokun

by | Sep 6, 2017 | Uncategorized

The care, custody and welfare of children (under the age
of 18) in Nigeria are strict functions of an intricate regulatory framework
comprising institutions and laws; beginning quite naturally with the Constitution
of the Federal Republic of Nigeria 1999, as amended. Section 17(3) (f) of the
law particularly imposes a non-actionable obligation on the Nigerian Government
to ensure that children and young persons are adequately shielded from
exploitation, moral and material neglect.

This protection is also deemed an inherent responsibility
of parents and therefore, it is not uncommon to see our substantive criminal
laws impose an obligation on parents to avail their children or wards with
basic life needs as well as prescribe punishments for failure to intentionally
make such provisions (See sections 300 –
305 of the Criminal Code Act). In the absence of parents or guardians on
which to foist these obligations, the law provides for a number of alternative
measures to protect children that would otherwise be deprived. The same basic
principles generally apply in all Nigerian states with minimal disparities. For
the purpose of contextual streamlining however, the relevant operational
framework in Lagos State will be examined.
When a child is without a parent or guardian, the
Lagos state government is expected to take custody of the child and facilitate
his/her placement in one of the select orphanages in Lagos state. Consequently,
the child becomes a ward of the State, subject to the supervision of the
Ministry of Youth, Sports and Social Development. The existing legal and regulatory
framework is further structured to provide a number of ways by which the
average Nigerian citizen or a foreigner can formally seek to be vested with the
capacity to take optimum care and responsibility of such children, pursuant to an
order of a court of competent jurisdiction. Thus, it is an offence punishable
by law for any person to exercise certain rights, powers and obligations over a
child within contemplation prior to applying for and obtaining the requisite approval
from the relevant authorities. These legal arrangements are identified and
discussed below:
1.     Fostering:
A
person or couple may appropriately make an application for a “Fostering Order”
in respect of a child that is orphaned, abandoned, deserted by relatives,
abused, found wandering or destitute (See
Section 92 Child Rights Law of Lagos State 2015). The application may be
made by a sole applicant or jointly by a couple. The Court may however require
the consent of a relative i.e. a grandparent or other persons related to the
child before it makes the grant.
                         
Upon
the grant of the Fostering Order, the child will stand to the foster parents in
the same position as the children born to the foster parents in a lawful
marriage. The Fostering Order may subsequently be revoked by the court if it
deems it appropriate.
Note
the following additional details about fostering:-
i.
Once an application for fostering is made, the Adoption Unit of the Lagos State Ministry of Youths,
Sports and Social Development (The Unit) must
also be notified. If the child is not already in the custody of the Unit, it is
the Unit’s practice to immediately take custody of the child and place it in an
approved orphanage pending the ruling of the court.
ii. If the order
is granted, the custody of the child may be released to the foster parents but
the Unit must be constantly apprised of the child’s status at all times and a
designated social worker may periodically visit the home of the parents to
conduct this assessment.
iii. If the child
is to be taken out of the country by the foster parents, the court must be
notified before and after the child returns.
iv.  Giving possession of the fostered child to another
person for fostering outside Lagos or Nigeria attracts prison terms of 10 and
15 years respectively. See section 108 (2) & (3) of the CRL
respectively.

Execution Timeline:         2
– 4 months from date of application

2. Guardianship:
This
is perhaps the most flexible and quickest legal arrangement for taking care and
custody of the children in contemplation. The parents of a child are his/her
default guardians. However, in the absence of the parents or any other family
member of the child or appropriate authority, an unrelated party may apply to
be appointed a guardian and vested with the capacity to exercise parental
responsibilities over such a child. (See sections 75 & 76 of the
CRL of Lagos State 2015. If unconditionally granted, a guardian will have
all parental and incidental responsibilities over the child to the full extent
permissible by law. A guardianship Order can subsequently be revoked or
substituted by the guardian, a natural parent or an appropriate authority.
Otherwise, the order will subsist until the child attains the age of majority.
                                
Note
that unlike a fostering order which can only be granted solely to an applicant
or jointly to a couple, a guardianship order can be granted to the parents of
the child and an unrelated person, appointing them all as joint guardians of
the child. In addition, the supervision of guardianship applications is within
the ambit of the court and not the Lagos State Ministry of Youth, Sports and
Social Development (MYSD). Hence the MYSD need not be involved in a
guardianship application as long as the child is not yet a ward of the
government and resident in an orphanage.  Note that a guardian is
also empowered to appoint by deed in his or her lifetime, another guardian of
the child in the event of such guardian’s death.
Execution
Timeline:   1 – 3 months
from date of application
3.     Adoption:
The
law also permits the adoption of children without parents or guardians, subject
to a number of clearly expressed rules outlined in the Child’s Rights Law and
Adoption Laws of Lagos as well as other subsidiary adoption regulations.  Before
an adoption order can be made, the applicant must have informed the MYSD of
his/her intention to undertake the proposed adoption, at least one year prior
to making an application, and obtained the requisite approval to apply for the
contemplated adoption. The prospective adopter must also show evidence of
having bonded with the child and must have undergone certain adoption training
sessions organised by the Lagos State Ministry of Youth, Sports and Social
Development.
While
International/cross country adoptions are not prohibited, a prospective foreign
adopter must first provide evidence showing that that  requisite approvals to adopt internationally
have been granted by the relevant authority of the foreign country where the
adopted child is sought to be subsequently taken e.g. (in the United States,
the USICS Form I-600 must have been appropriately filed and approved) and the
contemplated adoption must be effected through an approved Adoption Agency in Lagos
State e.g. the Literacy Integration and Formal Education (LIFE) Foundation in
Victoria Island, Lagos. If one spouse is Nigerian, the adoption may be
undertaken as a local adoption. It should however be clearly stated that a
combined reading of sections 145(1) and 131(1)(b), (c) and (d) of the Child
Rights Act would reveal that inter country adoptions may not be allowed in
Nigerian States that are yet to domesticate the Child Rights Act into state
laws.
Upon the making of
an adoption order, all legal connection between the child and his/her
biological parents (including but not limited to the use of surname,
maintenance, education, religion, discipline, welfare, travelling and marriage
approval) is completely severed and all parental rights and responsibilities in
respect of the child are vested on the adoptive parent(s). The implication of
this accounts for the length and complexity of the process. Also, in the event
of the death of the adoptive parent(s), the child will be treated as their
biological child for the purpose of devolution of property. See section 13 of the Adoption Law of Lagos.
 Execution Timeline:   12 – 18 months from date of
application (beginning from when a specific child has already been identified
and marked for adoption)
                  
CONCLUSION
As outlined above, a number of options are available
to formally cater for the welfare, care and custody of children, all of which are
administered and supervised by a functional legal framework. These options are
mutually exclusive as they cannot all be obtained in respect of one child at
the same time, the court will also refuse to grant any of these orders unless
all requisite steps have been complied with and all documents submitted,
properly vetted and deemed satisfactory enough to warrant a grant of the
requisite approval. If adoption is contemplated in the long run, either of the
other options highlighted above can temporarily be applied for because of their
relative flexibility and because they vest similar parental rights and
obligations on the applicant, pending when an approval for adoption has been
obtained and the process commenced. Note that the Guardianship or Foster Order must
be revoked by the court before an Adoption Order can be made.
Conclusively, it is imperative that that every action
by an individual, public or private body, institution, court of law,
administrative or legislative authority in respect of a child must be
undertaken with the child’s best interest as the primary consideration (See section 1 of the CRL of Lagos State,
Odogwu v. Odogwu (1992) 2NLWR (Pt 225 @ 539). Hence, the grant of a
relevant order is ultimately at the discretion of the court (a factor that is
usually guided by the overall impact of the contemplated arrangement on the
child in question) and thus, a proper application for any of these options does
not guarantee an automatic approval, the full satisfaction of all condition
precedents notwithstanding.
Temitayo
Ogunmokun is a legal practitioner at a Commercial Law Firm in Victoria Island,
Lagos. His areas of practice include Corporate, Immigration, Taxation and
Family Law. He is a volunteer legal adviser to the Literacy Integration and Formal
Education (LIFE) Foundation (a Non-Profit organization, specially approved to
facilitate cross country adoptions by the Lagos State Government) and a published
poet and writer.

Doing Business In Nigeria – Immigration Visas And Their Tax Implications (Part 1)

Doing Business In Nigeria – Immigration Visas And Their Tax Implications (Part 1)

by | Sep 4, 2017 | Uncategorized

INTRODUCTION

The
mobility of foreigners in and out of Nigeria for whatever purpose is generally
subject to visa and permit requirements. The only category of persons exempted
from visa and permit requirements are nationals of Member States of the
Economic Community of West African States (“ECOWAS”). By section
37(13) of the Immigration Act, 2015(“the Act”) and Regulation 5(9)
of the Immigration Regulations, 2017 (“the Regulations”) made by the
Minister of Interior pursuant to section 112(1) of the Act, such nationals
of Member States of ECOWAS are exempted from not only obtaining entry
visas/permits but are also allowed to reside, work and undertake commercial and
industrial activities within Nigeria provided however that they register with
the Nigerian Immigration Service (“the NIS”) and obtain residence
cards from the NIS.


However,
the types of visas or permits which foreigners wishing to visit Nigeria for
whatever purpose are required to obtain together with the tax implications of
these visas and permits will now be considered in details.

TYPES
OF NIGERIAN VISAS/PERMITS AND THEIR FEATURES 
By
the combined provisions of the Act, the Regulations and the guidelines issued
by the NIS from time to time, one of the following visas/permits (generally
available to foreign nationals of non ECOWAS countries) shall be obtained by
any foreigner seeking to enter Nigeria for whatever purpose:

(1)   Transit
Visa: This visa is available to foreign travellers wishing to enter
Nigeria for onward destination to another country. The visa is issued for a
period not exceeding 7 days and may be extended in the case of certain persons
or in special circumstances –Regulation 7 of the Regulations.
(2)   Short
Visit Visa or Visiting Visa: This visa is required in the case of
foreigners wishing to visit Nigeria for the purpose of tourism or to visit
family members and friends – Regulation 6 of the Regulations.
(3)   Business
Visa: This visa is to be obtained by foreigners wishing to visit Nigeria
for the purpose of attending meetings, seminars, conferences, contract
negotiations, marketing, sales, purchase or distribution of merchandise, trade
fairs, job interviews, training of Nigerians, emergency/relief work. It is also
available to foreign crew members, staff of Non-Governmental
Organisations (“NGOs”), researchers and entertainers.
(4)   Visa
on Arrival: This visa is available to frequently travelled business
persons of international repute and high net worth individuals such as
executives of multinational companies etc. – Regulation 9 of the
Regulations. It is also issued to intending visitors who may be unable to
obtain visas at the Nigerian Missions in their countries of residence due to
the absence of a Nigerian Mission in those countries or exigencies of urgent
business travels. However, this writer is also aware that babies born to
Nigerian parents aboard whose parents are unable to obtain Nigerian passports
for them at the Nigerian Missions abroad also do come in on this visa.
The
visa is issued to such a qualifying person above upon his/her arrival at a
chosen or designated port of entry in Nigeria.
(5)   Temporary
Work Permit (TWP): This permit is available to foreigners invited by
corporate entities to provide specialised skilled services, such as maintenance
or repairs of equipment and machinery, after sales installation, commissioning,
upgrading, training, capacity building for Nigerian staff and audits.
Typically,
this permit is issued to a foreigner who is not on the expatriate quota
position of the corporate entity inviting him/her for a short term work in
Nigeria. The permit is issued for a period usually not exceeding 3 months in
the first instance and may be renewed – section 37(8) of the Act,
Regulation 8 of the Regulations.
(6)   Diplomatic
Visa: This visa is available to visiting Heads of States and their family
members, top officials of government and their families, accredited diplomats
and their family members, holders of United Nations and international agencies
diplomatic passport and laisser passez.
(7)   Subject
to Regularization (STR) Visa: This visa is available to a number of
foreigners who include: foreign employees that are in Nigerian
companies/entities’ expatriate quota positions and their dependants, expatriate
technical officials of Missions, foreign students and research fellows,
missionaries/clerics and their dependants, expatriate staff of international
NGOs and their dependants, government officials and their dependants. This visa
is issued for a period not exceeding 90 days within which period, the foreigner
is expected to regularise his stay in Nigeria by applying and obtaining a
Residency Permit otherwise called Combined Expatriate Resident Permit
and Aliens Card (“CERPAC”) – section 37(8) of the
Immigration Act, Regulation 8 of the Immigration Regulations.
(8)   Residency
Permit/CERPAC: This permit is available to some category of persons who
include: foreigners on STR visas mentioned in 7 above who have regularised
their immigration positions upon resuming work in Nigeria as well as their
dependants, nationals of Member States of ECOWAS, foreign nationals who are
married to Nigerians as well as investors that have imported an annual minimum
threshold of capital over a period of time as may be specified from time to
time in the National Visa Policy or any other such policy. The permit in the
case of foreign employees on expatriate quota positions is issued for a period
not exceeding 2 years subject to renewal. However, in the case of nationals of
Member States of ECOWAS, foreigners married to Nigerians or investors that have
imported an annual minimum threshold of capital, the visa is issued on a
permanent basis unless where the foreigner ceases to enjoy that marital status
or where the investor’s investment in Nigeria falls below the minimum required
threshold –section 37(2) and (11) of the Act, Regulation 5 of the Immigration
Regulations.

The
tax implications of these visas and permits would be considered in details in
my concluding part of this article (Part 2). 

DISCLAIMER
This
article is intended to provide general information on the legal issues
addressed. It does not constitute legal or professional advice and should not
be relied upon as such. Where legal advice is needed, please consult a tax
advisor or solicitor.

Anthony
Ezeamama is a corporate commercial lawyer and a tax specialist. 

Federal Ministry of Finance (FMF) whistleblowing programme

Federal Ministry of Finance (FMF) whistleblowing programme

by | Aug 31, 2017 | Uncategorized


The Federal Ministry of Finance (FMF)
whistleblowing programme is designed to encourage anyone with information about
a violation of financial regulations, mismanagement of public funds and assets,
financial malpractice, fraud and theft to report it. The Federal Government of
Nigeria, has thus established a portal via which information bordering on
violation of financial regulations, mismanagement of public funds and assets,
financial malpractice or fraud and theft that is deemed to be in the interest
of the public can be disclosed.

A whistleblower is a person who voluntarily
discloses to the Federal Government of Nigeria, through the Federal Ministry of
Finance, a possible misconduct or violation that has occurred, is ongoing, or is
about to occur with specific concerns which are in the public interest.
Some of this offences include; Information
on stolen public funds; Information on concealed public funds; Financial malpractice
or fraud; Theft; Collecting / soliciting bribes; Corruption, among others.
One may submit information through the
FMF-Whistle online portal or in writing to the Federal Ministry of Finance,
Presidential Initiative on Continuous Audit Unit or by calling 09098067946.
Download the FAQ here.

To visit the Whistle Blowing portal, click here
Perspectives on Probation, Confirmation and Promotion in Employment Contract | Kayode Omosehin, Esq.

Perspectives on Probation, Confirmation and Promotion in Employment Contract | Kayode Omosehin, Esq.

by | Aug 29, 2017 | Uncategorized

Probation
is simply an agreed trial period for a worker to prove his worth on a job to
his employer and assess the worth of the job to himself. Promotion is an
elevation of a worker in status within a company based on performance or other
considerations as may be agreed in an employment contract or determined by the
employer. Confirmation is the intermediate act of endorsement of a new worker’s
performance by a company sometimes between the periods of probation and
promotion; it is a testament that an employer is satisfied with the performance
of a new employee.


Probation
and promotion of a worker are, generally, matters which are based on each
worker’s contract. As such, an employment lawyer needs to review the employment
contract before an opinion can be formed on the ramifications of an employee’s
probation or promotion. Where the terms of employment are contained in various
documents, it is important to read all the various documents together to
decipher the intention of the parties regarding probation or promotion. From
experience, the offer letter of employment, the appointment letter (if it is
different from the offer letter), the terms and conditions of employment, staff
hand book, policy on review of rank/grade level, disciplinary procedures rules
as well as official circulars and notices circulated internally are all
relevant in determining the respective rights and powers of workers and
employers on probation and promotion.

The
rights of a worker under probation
A
person does not cease to be an employee of a company merely because he is on
probation. As such, in my view, a worker on probation is entitled to all
express benefits in an employment contract or those implied by the labour law.
Interestingly, however, Justice J. D. Peters of the National Industrial Court
held in Ogbonna v. Neptune Software Limited [2016] 64 N.L.L.R. (Pt. 228)
511 that an employer is not under any obligation to give notice of
termination of the service of an employee who is on probation until the
employment is confirmed. In other words, according to Honourable Justice J. D.
Peters, the employment relationship between a worker and a company in thatOgbonna case
was inchoate and that the need to give a notice for termination for one
calendar month stated in the claimant’s letter of employment would only arise
after the confirmation of his employment.

It
is difficult to agree with the reasoning of the judge in the foregoing case
given that an employment relationship is founded on contract following offer
and acceptance, with consideration taking the form of the employee’s resumption
and performance of a designated job. There are many judicial decisions of a
superior court to the effect that a contract of employment comes into existence
when a clear offer made by a company is unequivocally accepted by a job
applicant provided that there is no outstanding condition precedent to
assumption of work which must be fulfilled by the applicant. In fact, and law,
if such outstanding conditions are in the form of medical clearance, provision of
referees, verification of credentials etc. (as they usually are), the employer
can neither unilaterally revoke the offer after the applicant’s acceptance of
same before the deadline for fulfilling the other outstanding conditions, nor
prevent the applicant from fulfilling the rest of the conditions. So, upon
fulfilling the conditions for acceptance of an employment offer and resumption
of duty with a company, it will be inconsistent with judicial precedent to hold
that the employment contract between the worker and the company, in the
circumstances, is inchoate, as Justice J. D. Peters did in the Ogbonna’scase,
merely because the employment relationship commenced with probation. Employment
contracts are not sui generis as they are governed by common law rules
on general contract making which entail offer, acceptance and consideration,
including part-performance. See Federal Government of Nigeria v. Zebra
Energy (2002) 18 NWLR (Pt. 798) 162.

In
my view, a worker on probation is entitled to all the benefits stated in a
contract of employment which are enjoyable on probation and those implied by
law in deserving circumstances. A worker on probation is entitled to be paid
the agreed salaries for the probationary period. He is also entitled to pension
contribution from the employer. An employer of a worker on probation cannot
deny liability for remitting personal income tax of the employee on the ground
that the worker’s employment was probationary. If probation lasts longer than a
year, in my view, the worker is entitled to an annual leave. Both the employer
and employee are entitled to terminate the working relationship during
probation as agreed in the employment contract. It is necessary to repeat here,
only for emphasis, that in addition to the foregoing benefits, a worker on
probation is entitled to all other benefits or rights provided in his contract
of employment which are enjoyable during probation.

The
effect of confirmation of employment
Confirmation
is an attestation of an employer that a worker’s performance is satisfactory in
a period of probation for the purpose of extending the employment in accordance
with agreement. The length of probation before confirmation is a matter of
agreement. Most employment contracts provide for power of the employer to extend
a period of probation if the worker’s performance is unsatisfactory. Whenever
confirmation is due, it is advised to be in writing (in a letter or memo of
confirmation) with all necessary incidental terms clearly spelt out to avoid
the incidence of legal presumptions. Upon confirmation, a worker stands to
enjoy all the benefits which are attached to his employment.

Confirmation
of employment may be express such that an employer writes a letter or memo to
the employee or circulates same within the company to confirm a worker’s
employment at the end of probation. However, where probationary period has
ended but the employer neither expressly extends it nor terminates the
employment, the law presumes that the employment has been confirmed impliedly.
Under Nigerian employment law, at least from the various cases reviewed in the
course of this work, there is no implied extension of probation by the employer
and no such presumption is made in favour of an employer where such employer
fails to expressly extends a probationary period or terminates an
unsatisfactory service of a worker which extended after the expiration of an
agreed probation.

In
line with international best practice and labour standard, a Nigerian court
held in a case that the continuation of services after expiry of the probation
period without a new contract being drawn up means that the employment has been
impliedly confirmed and that a contract of indeterminate duration has taken
effect from the date when the offer for probationary service began. In the said
case, the claimant was engaged for a probationary period of two (2) years but
he was made to work for six (6) years without confirmation. The employment was
eventually terminated without notice or salary in lieu of notice. The
argument advanced by the employer was that the employment was never confirmed.
The court rejected the argument of the company and upheld the claims of the
employee in part. According to Honourable Justice P. O. Lifu (JP), such
termination amounted to unfair labour practice contrary to section254C (1) (f)
of the Constitution as same was incompatible with international best labour
practice.

There
is no specific legislation regulating confirmation of employment in Nigeria.
However, whenever there is any employment dispute regarding probationary
service, the employment contract is usually the proper guide to understanding
the rights of a worker under probation and after confirmation. The employer
must follow whatever procedure that is agreed in the employment contract. Where
confirmation of employment is subject to satisfactory performance by the
worker, a performance appraisal is essential, in my opinion, to evidence a
transparent process by which an employer arrives at a decision not to confirm
an employee’s service after probation.
Promotion
as a right or privilege

Promotion
of staff is a most controversial aspect of employment relationship largely
because of its perception or misconception as a right or privilege. Promotion
or lack of it can turn out to be ugly, leaving an unsavoury feeling in a work
environment, depending on the procedures adopted by a company to arrive at a
decision to promote or not to promote. Generally, under Nigerian employment
law, promotion is not a right but a privilege; it is usually expected to be
earned. Though the foregoing principle of law has its exceptions. In a case
decided by Honourable Justice Shogbola of the National Industrial Court on 9th
April 2014, the court found for a claimant who has been unlawfully terminated
from employment as a police officer but refused to grant the reliefs on
promotion on the ground that promotion of staff is not a right. Interestingly,
however, about a year after, Honourable Justice J. D. Peters of the same court,
in another case, held on 5th March 2015 that where promotion is based on agreed
conditions which the employee has fulfilled, it would be a breach of agreement
if the employer fails to approve his promotion.

What
is clear from a review of cases on promotion is that where a company’s staff
handbook or terms and conditions of employment provide for clear procedure for
promotion, failure of an employer to comply with the procedures may give rise
to liability for breach of contract in an action against the company by an
aggrieved staff. There is no laid down rule or guide for determining a right or
wrong promotion decision. Every employment contract will have its own
peculiarities on which, upon a proper review, an employment lawyer can provide
independent advice regarding the rights of either party. Perhaps I should add
that it is an onerous task for an aggrieved employee to successfully challenge
his employer’s decision on promotion, however unfavourable. There is a
presumption that every employee understands the terms of his or her engagement
at the time of accepting an offer of employment; and the onus to prove any
allegation of fraud or inducement rests on him. Malice and discrimination are
not enough in themselves to impute liability to a company unless there is a
clear evidence to support such allegations. Where a decision on promotion has
been wrongfully exercised, the court has power to entertain the complaints of
an aggrieved employee who has been affected by such decision.

How
to determine “satisfactory performance” of worker in matters of promotion

In
the discussion of promotion in employment law, the requirement of “satisfactory
performance” is the most subjective condition a worker is required to meet.
This is because the management of company determines what amounts to
satisfactory performance of a worker. Hence, the court usually adopts a strict
rule of interpretation of any promotion policy and will readily resolve any
ambiguity in the policy in favour of a worker. In a case decided against Zenith
Bank Plc, the employment contract stated that the claimant would be promoted
upon confirmation and subject to an above average performance rating (minimum
of B+). The claimant’s employment was confirmed at the end of probation
but he was not promoted despite his “A” performance rating. The court,
relying on the last performance appraisal, found for the claimant on the ground
that his performance was satisfactory to merit promotion. Consequently, the
court awarded damages in the sum of money representing the difference in
salaries of the claimant as the time of the suit and those which he would have
earned in (as well as bonuses and benefits accruable to) the higher office to
which he ought to have been promoted.

Review
of Promotion procedures
The
management of a company reserves the right to review the terms and conditions
of an employment contract, including those pertaining to promotion of staff.
However, when such review takes place, every affected staff ought to be
promptly informed about the details of the new promotion policy. It is
advisable to ensure that such management decision is not perverse as such that
will give the impression that an employee is obviously prejudiced or denied of
an entitlement which has become due. Where promotion is due to a worker, any
unilateral decision by a company to review a promotion policy to prejudice or
deny the worker may be deemed as a breach of agreement. Such affected worker
may be entitled to compensation in damages in any action challenging the
company’s decision during or after his resignation from the employment. It only
needs to be added that when a prejudicial decision is taken on promotion, a
right of action is deemed have accrued to an affected staff and he or she is
entitled to resign immediately and seek redress against the company.
Associate
at Udo Udoma & Belo-Osagie

What You Need To Know about Expatriate Employment In Nigeria | Busayo Adedeji

What You Need To Know about Expatriate Employment In Nigeria | Busayo Adedeji

by | Aug 29, 2017 | Uncategorized

  


With approximately 188 million
inhabitants, Nigeria is the most populous country in Africa and the seventh
most populous country in the world. The country has one of the largest
population of youth in the world. In 2014, Nigeria overtook South Africa
to become Africa’s largest economy and in 2015, Nigeria was said to be the
world’s 20th largest economy, worth more than $500 billion and $1 trillion in
terms of nominal GDP and purchasing power parity respectively.

With the stats detailed above, it
is no wonder the country has become a first port of call for Foreign Direct
Investors looking to invest in Africa. This article seeks to examine and point
out some salient facts every employer of Expatriate Employee must know while
operating in Nigeria. These industry practices and regulations apply to both
local and foreign companies.
Permits and Licences
Every company desirous of
employing Foreign Nationals (“FN”) in Nigeria must
have first obtained an Expatriate Quota (“EQ”) from the
Federal Ministry of Interior (“FMI”). The EQ is a
condition precedent that must be fulfilled by any company (local or foreign)
employing FNs in Nigeria. The document details out the positions in the company
approved by FMI to be filled by FNs. It is important to state that the position
to be occupied by every FN must correspond with his qualifications. A concise
illustration of this point is that, it is very likely that The Nigeria
Immigration Service (“NIS”) would reject an application
for the resident/work permit of a FN who is an accountant and who is expected
to occupy the position of “lead engineer” in a company.
It is also expedient to note
that, flowing from a recently issued directive, companies operating in specific
sectors are required to join certain professional bodies before employing FNs.
E.g., companies operating in the engineering sector are required to register
with Council for The Regulation of Engineering in Nigeria.
STR and CERPAC.
For any FN to enter into Nigeria
for employment related purposes, particularly on a long-term basis, the said FN
must have obtained a Subject to Regularization (“STR”) visa from his
country of residence abroad. Upon arrival in Nigeria the FN is expected to
apply for a Combined Expatriate Resident Permit and Aliens Card (“CERPAC”) within 90 days of arrival. The application for
STR visa and CERPAC is to be made by the employer on behalf of the FN. The
employer must also undertake to bear full immigration responsibility on behalf
of the FN.
Taxation of Expatriates
Pursuant to the Personal Income
Act, an employee is said to be resident in Nigeria if he is domiciled in
Nigeria for a period of 183 days or more in any 12-month period. Expatriates
who have obtained resident permit in Nigeria are liable to personal income tax.
In instances where the relevant
Inland Revenue Service (“IRS”) is of the view
that no or insufficient tax has been paid, the IRS has the power to assess
individual FNs on Deemed Income Assessment basis. When this happens, the onus
is on the employer to prove that the tax paid is sufficient by providing:
     Contract
of Employment of the Expatriate;
     Travel
passport of the Expatriate;
     Expatriate
Quota Position granted to the company; and
     Monthly
quota returns for the company.
Expatriate Pensions
Though section 2(1) of the
Pensions Reform Act 2014 provides that the act shall apply to every employment
in Nigeria, the Guidelines for Cross Border Arrangements under the Pension
Reform Act provides that “any foreign employee of a company registered in Nigeria
shall, at his/her discretion, join the contributory
pension scheme, without considering whether he/she has a pension arrangement in
his/her home country.” This means that the FN may maintain a
Pension Fund Administrator (“PFA”) in his home country or elect to join a
Nigerian PFA.
Change of Employment
The immigration regime in Nigeria
allows for change of employment of FNs already employed in Nigeria by a
previous company to another company. In instances of such, the consent of the
comptroller of immigration must be sought and obtained prior to changing such
employment. The previous employer is also required to issue a letter of no
objection to the employment of the FN by the new company.
End of Expatriate Employment
Upon completion or termination of
an FN employment in Nigeria, the employer is expected to formally inform the
Comptroller General of the NIS of this fact. The reason of the aforesaid stems
from the need for NIS to be able to ascertain at any given time the number of
 FN’s employed in the country, to keep records and also release the
employer from immigration responsibility as it concerns the exited FN.

Busayo Adedeji is an associate at
Bloomfield Law Practice. He has experience assisting clients on regulatory
compliance and general commercial law issues.

How to spot growth and value stocks in the Nigerian stock market | Nairametrics

How to spot growth and value stocks in the Nigerian stock market | Nairametrics

by | Aug 28, 2017 | Uncategorized


For those new to investing, the terms value
stocks and growth stocks are what you will hear every other day as you decide
what stock to buy, sell or hold.
Stocks, just like most investments are
thrown into buckets to enable investors understand the peculiarity of each
asset and decide where one’s risk appetite lies.

In this article, we shall explain the
difference between Growth Stocks and Value Stocks as it pertains to investing
in the Nigerian Stock Market.
Growth stocks
These are stocks of quoted companies that
are in the early stages of their business cycles, characterized by phenomenal
growth in revenues. Growth stocks typically post double digit revenue growth
periodically (annually in Nigeria) and it doesn’t matter if they report profits
or not.  In fact, most growth stocks are expected to report losses because
it is expected that they spend a lot more on marketing, advertising and
anything that is required to scale up their operations.
Due to this, growth stocks always attract
expensive valuations and are often priced at over 50 times their earnings (if
they have one). They also do not necessarily pay dividends as investors bet
against their ability to grow top line revenue exponentially and reward this
expectation with high valuation. Bottom line, they feel these stocks will come
through some day.

It is hard to find growth stocks in the
Nigerian Stock Exchange because growth stocks are mostly found in the tech
space. Investors also often misconstrue growth stocks with stocks that are
considered bull traps. Stocks that attract high valuation despite not posting
any results or have any inkling of a solid business operation.
However, a stock that may have been
considered as a growth stock a few years ago was Forte
Oil. Between 2013 and 2015, investors bet that the new management will turn
the company around rapidly and valued the stock as high as 90 times its
earnings at some point. The company tried to match these expectations
by churning double digit profitabilitygrowth before the economy got
into trouble, slowing down its growth.

A stock like Dangote Flour Mills can
also be considered a growth stock. Ever since Dangote Group took it
back from Tiger Branded, they have embarked on a massive turnaround that
has seen the company report back to back profits for the first time in years.
Investors have rewarded the company with higher valuation multiples. More so,
the stock is still trading at very low valuation multiples, perhaps as
investors wait to see if it can generate enough growth to clear out its
accumulated losses of about N6 billion.
Growth stocks generally have high Price-to-earnings
(P/E) ratios and high Price-to-book ratios, and are sometimes seen as expensive
and overvalued.
Value Stocks
These are stocks that have attained a
considerable level of maturity in their business life cycle. They are stable,
less risky and post moderate but steady revenue growth, profits and always pay
dividends. These attributes are often referred to as strong fundamentals
for any company who possesses them.
Value Stocks tend to trade at a lower price
relative to their fundamentals (including dividends, earnings, and sales). Due
to their low price to earnings ratio, investors often see them as bargain
stocks and acquire them in the hope that the market will soon realise that they
are undervalued. When this happens, the share price of these stocks start to
rise relative to new information pertaining to its profits and/or dividend
announcements.

For example, in the last two years since
Nigeria faced economic crisis, banking stocks, particularly the FUGAZ,
have traded at price earnings ratio of below 3x their earnings. Investors
feared that they might post losses on the back of a poor economy and as such
assigned low earning multiples to their valuation. However, as results poured
out showing record profits instead of declines, investors now realised indeed
that these stocks are worth more than they currently are. Value investors are
expected have acquired shares in the stock because they know that their
fundamentals are sound and will be rewarded when the time comes.

Sometimes, Value Stocks may have prices
that are below the stocks historic levels or may be associated with new companies
that aren’t recognized by investors. They may also have been affected by a
problem that raises some concerns about their long-term prospects – such as
recently poor operating results and negative outlook.

Another example, is just before the
investor/exporter window was introduced, the stock market assigned very low
price earning multiples to Nigerian Stocks. This is despite signs that the
economy was turning around. Eagle eyed value investors always see these signs
and quickly buy the stocks.  Value Stocks usually have low P/E ratios and
low Price/book ratios.
Summary of the differences between
Growth and Value Stocks
A Value Stock is cheap relative to some
measure of its intrinsic value. Value Stocks are companies that are
undervalued, and are out of favour with the market due to poor operating
results and or slowing growth. Due to the gloomy nature and negative outlook of
these stocks, investors overreact and Value them lower than they should be.
Growth stocks are overvalued with recently
great operating results and fast rising growth. Investors overreact to these
stocks and Value them higher than they should be. 
Note: Growth and Value Stocks are
styles of investing in stocks. Neither approach is guaranteed to provide
appreciation in stock market value as both carry investment risk.
@Nairametrics

Persuading The Client And The Other Side To Engage In Mediation | DmediationLawyerist

Persuading The Client And The Other Side To Engage In Mediation | DmediationLawyerist

by | Aug 28, 2017 | Uncategorized

To make the decision whether or not to have
a case or dispute proceed to mediation requires;
An
understanding of the process; what mediation actually entails and its different
forms.

An
appreciation of possible outcomes to the dispute outside a negotiated
agreement.
Sufficient
knowledge of the strength of the legal case or of the client’s  position.
An understanding of the true value of the
case to the client in terms of;
·       
Cost-
efficiency
·       
Time
– efficiency
·       
What
the client really wants to achieve if he can
·       
Whether
the remedy available from the court (even if achievable) can provide what is
actually needed.
·       
Adequate
knowledge.
Without this information, you will not be
able to assess whether the decision to permit the client to mediate is correct.
A Mediation Advocate is tasked with the
responsibility of tactical decisions in managing a claim or its defence and to
also answer two basic questions;
·       
Is
the case suitable for mediation?
·       
Is
the case ripe for mediation?
To ascertain precisely when to call for
Alternative Dispute Resolution (ADR), there are a number of questions a
Mediation Advocate must consider and they are as follows;
·       
Does
he have enough information about the claim, its defence, any cross claim or
third party entanglement?
·       
Do
the parties know and understand the issues being raised by each other?
·       
Does
each party at least know its own version of the facts?
·       
Does
the Mediation Advocate have a proper understanding of the client’s needs?
·       
Is
the potential cost saving such that mediation should be attempted as early as
possible- even before proceedings have been issued?
As mediation processes become more
sophisticated, the Mediation Advocate must consider whether mediation is a better
vehicle for settlement of issues than early neutral assessment or expert
determination or the executive mini-trial and the awareness must be there that
a reference to ADR by the court does not mean mediation or bust.
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.*
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more info –
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