How to make your wealth run in perpetuity

by Legalnaija | Sep 26, 2017 | Uncategorized

Many people are worried about what to do with their
accumulated wealth. There are several cases of wasteful dependents squandering
the wealth of their benefactors once they come into possession of their
inheritance. Because of this, a lot of people are worried about how their
wealth will be spent after their deaths; they know that after they make their
Wills and those same Wills are read after their demise, they cease to have
control over the way their money will be spent after their death.

However, there are ways for a person to retain control
of his estate/legacy even after death. Create a Dynasty Trust.

What is a Dynasty Trust?

A Dynasty Trust is a long-term Trust that is created
by someone planning his/her estate specifically designed so that it can benefit
multiple generations of beneficiaries. This way, the wealth can practically run
in perpetuity. If and where created, the beneficiaries have no control over the
Trust property/investment; they are only entitled to shares of profits in line
with the instructions in the created Trust instrument.

Pertinent Facts to note about Estate Dynasty Trusts

1. Multiple generations of beneficiaries can benefit from
the proceeds of such a Trust as long as there are provisions about the line of
beneficiaries who will keep on inheriting.

2. They can outlive even the original
beneficiaries/descendants of a testator and pass onto even third generation
descendants, depending on the instructions enclosed in the  Trust instrument.

3. Trust properties can be excluded from the reach of
creditors since such Trust wealth is not the particular property of a
debtor/beneficiary. Thus, once a Dynasty Trust is created, the wealth infused
into such Trust automatically spills out of the estate of the Trust creator and
becomes a separate entity on its own. In other words, he can benefit from the
Trust but he does not own the property/wealth from which he enjoys.

4. Wealth can be protected from spendthrift beneficiaries
who may want to sell or mismanage the Trust property. After all, they can only
sell or mismanage something which is directly under their control.
Unfortunately, Dynasty Trust property is not under the control of any
beneficiary.

5. Dynasty Trusts can be funded with any assets which the
Trust owner has at his disposal as at the time of creating the Trust. However,
it is worthy to note that assets which can grow over time in value are the best
assets to be used for planning Dynasty Trusts. Eg: Landed property; up-growing
investments, etc.

6. Since Estate Dynasty Trusts are multi-generational, it
is always better to get a corporate Trustee to manage the Trust on behalf of
the beneficiaries. The reason is simply because corporations, unlike humans,
have no expiry date. In other words, corporations exist in perpetuity and even
if the original persons who had received the Dynasty Trust deed on behalf of
the corporation dies, others will automatically take over and continue with the
administration of the Trust estate.

Preservation of Family Wealth through Dynasty Trusts

If, when, and where such a Trust is created, it will
automatically serve to preserve the wealth which a person has accumulated in
his lifetime. To this effect, no particular child or beneficiary of the creator
of the Trust can lay hold of any property designated as part of the Dynasty
Trust as his own personal property. So, even if a beneficiary wants to sell,
use, or otherwise want to give out property which is the subject of an estate
Dynasty Trust, they can’t. The property will remain tied up for however long
the Trust creator wants it to be (this will be done subject to the laws against
perpetuity in the state of the Trust creator because no Trust can really run in
perpetuity; the Common Law rule against perpetuity). so, if a person wants to
preserve wealth for multiple generations, then Dynasty Trusts would be the
ideal answer to achieve this.

How Long Can An Estate Legacy Trust last?

Generally, such a Trust, if and where created in the
course of the estate planning by a person, cannot last forever. The reason is
because of the Common Law Rule against Perpetuity. Nothing created under the
Common (English) Law (for Common Law practitioners), can last forever. It must
have a specific duration, and this may be influenced by the applicable laws of
the jurisdiction where the Trust is being created.

Generally, where this Trust is created, it will end
twenty years after the death of the last beneficiary of the original Trust. Or,
it can be any other term, the point being that the properties must become disposable
after the passage of a certain period of time. But, depending on jurisdiction
and relaxation of policies, a Trust can last for a period of up to three
hundred years after the death of the creator of the Trust instrument. Terms of
the Trust will be instrumental in making this so.

Should I consider such a Trust?

If you want to leave a legacy for your future
generations, not just properties, then the answer is yes. The reason is because
of its long-term applicability as against properties bequeathed to
beneficiaries in a Will instrument of which ownership passes to the
beneficiaries who can then use the properties in the way they deem fit.

Who can create an Estate Dynasty Trust for me?

In order to get such a Trust, it is pertinent to hire
an estate attorney who has the legal and technical know-how to handle the
crafting of a Dynasty Trust that will encompass the vision of the settlor
leaving the legacy for his family.

Things to Note in Dynasty Trust
creation

Ø  A seasoned estate attorney

Ø  A knowledge of applicable laws

Ø  The Trust itself

Ø  Terms of the Trust couched in such a way as to
maximize the time for the enjoyment of the Trust interests before they become
alienable.

Ø  The Trustee to be appointed (in most cases this is
usually assets management companies or perhaps any firm with expertise in
handling wealth). As aforementioned, it is better to appoint a corporate
trustee over a individual person.

Ø  Trust manager

Ø  The beneficiaries and the chain to be followed after
the death of the original beneficiaries to the Trust.

End Note

If you want to expand your legacy, then a Dynasty
Trust may be just the right instrument that can bring that plan to light. It is
one of the major factors a wealthy estate owner can easily consider when
planning the dissolution of his estate subsequently.

© by Kingsley
Ugochukwu Ani L.P. All Rights Reserved. This article is meant for
personal/academic purposes, not commercial use by the readers.

About the Author:

Kingsley
Ugochukwu Ani Esq. Is a corporate lawyer with particular emphasis on real
estate, IP & IT areas of law. He is also a content writer and a business
development strategist. He can be reached on aniugochukwu@gmail.com and
+2347035074930.

Passage Of The Chief Imam Of Lagos State, Late Sheikh Garuba Ibrahim Akinola | Gbenga Ashafa

by Legalnaija | Sep 26, 2017 | Uncategorized

It is with a heavy heart but in total
submission to the will of Almighty Allah that I received the news of the
passage of the Chief Imam of Lagos State, late Sheikh Garuba Ibrahim Akinola
who passed away on Sunday, the 24^th of September, 2017 at the
age of 79.

The Late Sheikh was a good man who lived an
exemplary life in service of Almighty Allah and our dear Lagos State. He was
not only a religious leader but also a spiritual father and role model to many
Nigerians. His courageous sermons which revealed an in-depth knowledge of Islam
would remain a lasting legacy for generations to come. 

I enjoyed the benefit of having a
relationship with him since the period I served at the Lands bureau Lagos State
where his constant prayers and wise counsel until the time of his death
remained a source of support and encouragement to me.

Considering the positive impact he has made
in many lives, I am confident to state that his death is not just a loss to the
people of Lagos State but to the Muslim Umah as a whole and as such he would be
dearly missed.

While my heart and prayers remain with his
family members at this time of grief, it is my prayer that Almighty Allah grant
the gentle soul Aljannah Firdaus. Amin.

The Lagos Multi-door Courthouse II – Referrals

by Legalnaija | Sep 25, 2017 | Uncategorized

There are three ways through which matters
can be referred to the Lagos Multi-Door Courthouse. They are;

WALK-IN:
any
party to a dispute may initiate Mediation, Arbitration, Early Neutral
Evaluation or any other ADR services by visiting the LMDC or writing to its
Director. Matters from other reputable ADR organizations may be filed at the
LMDC for settlement.

COURT
REFERRAL: disputes
are referred by Judges of the High Court or Magistrate Court to the LMDC in
appropriate circumstances. Apart from the High Court and Magistrate Court of
Lagos State, matters may be referred to the LMDC from the Federal High Court or
Courts of other jurisdictions outside Lagos.

DIRECT
INTERVENTION: the
LMDC through the Director may in circumstances where the public interest or the
interest of the disputing parties so demand, approach the parties with a view
to assisting in the resolution of their dispute.

IMPORTANT
POINTS TO NOTE ABOUT THE LAGOS MULTI-DOOR COURTHOUSE (LMDC) ESPECIALLY FOR
LAWYERS AND MEDIATION ADVOCATES

Section
16 of the LAGOS MULTI-DOOR COURTHOUSE (LMDC) 2007 specifies amongst
others that it is the responsibility of the Judge of the High Court of Lagos to
control and manage effectively proceedings in court and issue orders which
would encourage the adoption of ADR methods in dispute resolution, including
the mandatory referral of parties to explore settlement at the LMDC whenever
one of the parties to an action is
willing to do so.

In a similar vein, Section 32 of the TENANCY LAW 2012 provides that in proceedings
under the Law, the court shall promote reconciliation, mediation and amicable
settlement between parties. By virtue of this provision, the High Court or
Magistrate Court may refer tenancy proceedings or any part of it to mediation
at the Lagos Multi-Door Courthouse (LMDC) or to the Citizen Mediation Centre
(CMC).

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.*The Lagos Multi-Door Courthouse Neutrals’
Handbook.

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us on;

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Twitter: mediationlawng

Essentials of a Contract of Employment | Kingsley Ugochukwu Ani

by Legalnaija | Sep 25, 2017 | Uncategorized

A contract of
employment is necessary whenever a person wants to undertake a position with an
employer. But before signing the contract, the employee should endeavor to
understand the ramifications of what he is setting his signature to. If
possible, such employee should try and understand all the clauses in the
contract of employment before signing same. If there are gray areas in the
contract of employment, then he should forward same to a lawyer to go through
the contract for him with a fine-tooth comb before appending his signature.

A contract of
employment is a contract in and of itself, one governing the relationship
between the employer and the employee in their dealings with each other.

Ingredients
present in contracts of employment

There are
certain clauses that should be contained in a contract of employment. There are
certain industry-wide essentials that encompass contracts across all spheres of
work, and there are certain clauses that are industry-specific, taking into
cognizance the nature of Industry, the work expected of the employee, the
confidentiality involved alongside the technical expertise, among a host of
other considerations.

Example:

Mr A is
employed as a teacher in a community secondary school. In his contract of
employment (if any), the employer cannot just insert a Non-Disclosure clause or
prepare a separate Non-Disclosure Agreement. The reason is because of the fact
that there is probably no confidential information Mr. A is going to be
handling during the duration of his employment. He is teaching students, right?

However, the
same will not be applicable in an employment where the employee handles high
stakes business for his employer, with attendant secrets which the employer
might be worried about.

Clauses in a
contract of employment

1. Name of parties
and designation: the parties’ names and their designation, whether as
employer and employee should be clearly stated.

2. Address of the
business: this is the address where the employer carries on
business and where the (prospective) employee will work.

3. Commencement
date: the date the parties are entering into the contract of
employment should be stated too for avoidance of doubt. There might be need too
for a termination date if the contract is time-specific.

4. Salary: the
remuneration, mode of payment, and regularity, plus other factors regulating
the payment of the employee should be set down.

5. Hours of work: this could be
stated as 8 AM to 5 PM, etc, depending on the working billable hours of the
firm.

6. Non compete
clause: this clause is usually inserted for the protection of
the interest of the employer in the deal. It can state that within a stated
period (which should definitely not be unreasonable) from the date of the
termination of the employment of the employee, that he shall not set up a
similar business within a particular physical radius from the address of the
employer’s business.

7. Copyright: During the
duration of the employment of a particular employee, an employee might produce
a copyright-able work. This clause might serve to transfer copyright in any
work-related, industry-specific work created by the employee, especially if
said work was produced using the materials of the employer, on the employer. Or
it can serve to share the copyright between both parties. (Employees should be
careful of this and try to consult with an intellectual property law expert
before agreeing to this).

8. Course of
disciplinary action against employee: This will serve
to showcase the mode of conducting disciplinary actions against an employee
should the employee go against the rules of the employer’s workplace.

9. Overtime: if in the
contract of employment, the work periods of the employee is clearly stated,
then this will serve to show how the employee can be remunerated for work done
by him outside his work periods for the employer’s business.

10. Employee
performance review: many employers can insert this clause in the contract
of employment of the employee for periodic review of the work performance of
the employee. This becomes necessary in a firm which has a hierarchical upward
promotion system so as to check whether an employee is due for upward promotion
in his work.

11. Ethics: This basically
will serve as the code of conduct that the employee is expected to abide by in
his work for the employer.

12. Termination of
employment; notice of termination: under this
particular clause, a lot can go in, including the intention of either party to
terminate the contract between them, the notice to be given, remuneration
during the period of notice, etc. NB: employers should take particular care
in this clause because of the strong laws that exist to protect the interest of
the employee against wrongful termination of employment.

13. Vacation: the employer
might insert this clause to give employee periods within which he can take
leaves from the workplace and still be paid for it; duration, etc.

14. Study Leave: mostly applies
to employees working in institutions of higher education.

15. Sick leave

16. Insurance
coverage: some employers might be considerate enough to include
such clauses that make for mandatory insurance schemes for incoming employees
who are not yet covered under any insurance scheme. It can deal with: amount to
be remitted from employee’s salary, amount the employer will add, etc.

17. Health coverage

18. Work-related
travel: some employers might provide for this, mostly to the
effect that they will shoulder the entire expenses to be accrued by the
employee.

19. Salary scale

20. Non disclosure
clause: will apply to keep the lips of the employee sealed
against revealing any confidential information that the employer considers
important enough, or what they consider their trade secrets from being revealed
by the employees after the employee has left the service of the
employer.

The list is
basically endless.

There are a lot
of clauses that can go into an employee’s contract of employment and these
depend on the nature of the work, and in some cases, on the industry the
employee is getting into. It can also depend on what the parties want covered.

Point to Note: The employee
should be careful so as not to agree to terms that would be considered by an
expert as onerous and detrimental to his interests.

Finally, the
parties will sign and date the contract, and it will have a binding force of
the Law should either of the parties try to renege on the terms of said
contract.

About the
Author:

Kingsley
Ugochukwu Ani is a corporate lawyer with particular emphasis on Real Estate, IT
& IP areas of the law. He can be reached on aniugochukwu@gmail.com

Acts considered domestic violence in Lagos | Adesuwa Omozusi

by Legalnaija | Sep 25, 2017 | Uncategorized

Acts characterized as Domestic Violence
under the Domestic Violence Law of Lagos, 2007. 

The
occurrence of domestic violence in Lagos is on the increase, initially it was somewhat
considered a subtle issue, but with the rate of publications made daily; it
will interest you to know the actions that constitute Domestic Violence in
Lagos State.

The
Domestic Violence law of Lagos was enacted in 2007. Section 18(1) (g) provides
a list of actions that can be characterised as Domestic Violence in the state.
They are as follows:

Ø Physical
abuse; any act or threatened act of physical violence towards the person.

Ø Sexual
abuse exploitation including but not limited to rape, incest and sexual
assault; any conduct that abuses, humiliates, degrades or otherwise violates
the sexual integrity, or dignity of the victim.

Ø Starvation;

Ø Emotional,
verbal and psychological abuse; means 
a  pattern   of    
                             degrading
or humiliating conduct towards a complainant, including––

i.                  repeated insults, ridicule
or name calling as to  cause  emotional pain;

ii.               
repeated threats to cause
emotional pain; or

iii. repeated exhibition of
obsessive possessiveness or 
jealousy                                                      
which  constitute  a 
serious   invasion   of    the   complainant’s                                                          
privacy, liberty, integrity or security;

Ø Economic
abuse and exploitation; refers to:

i.                  
the unreasonable
deprivation of economic or financial resources to which a complainant is entitled  under the Law 
or  which  the complainant  requires 
out  of  necessity,  
including   household  necessities for the complainant, and mortgage
bond  repayments or payment of rent in
respect of the shared residence; or

ii.               
the unreasonably  disposal or 
seizure  of  household  
effects  or  other 
property  in   which  
the   complainant   has  
an   interest   including any equitable; or legal interest;

Ø Denial
of basic education;

Ø Intimidation;
means  uttering  or 
conveying  a  threat, 
or  causing  a   complainant to receive a threat, which
induces fear, anxiety;  

Ø Harassment;
means engaging in a pattern of conduct that induces  the fear of harm to a complainant including;

i.                 repeatedly watching, or
loitering outside of or near the building or place where the complainant
resides,   works,   carries  
on     business, studies and place
of recreation after studies.

ii.           repeatedly making
telephone calls or inducing another person to 
make  telephone  calls 
to  the  complainant,  
whether   or   not 
conversation ensues;

iii.   repeatedly sending,
delivering or causing the delivery of letters,                                                       
telegrams,   packages,   facsimiles, 
electronic   mail   or  
other                                                      
 objects to the complainant;

Ø Stalking;
means  repeatedly  following,  
pursuing,  or  accosting 
the  victim;

Ø Hazardous
attack including acid both with offensive or 
Poisonous substance;

Ø Damage
to property; means the  wilful  damaging 
or  destruction  of                                   property
belonging to a complainant or in which the complainant  has a                                      vested
interest, whether legal or equitable;    

Ø Entry
into the complainant’s  residence  without 
consent   where   the parties do not share the same residence;
or

Ø  Any  
other   controlling    or   
abusive    behaviour    towards   
a                                                 
complainant, where such conduct harms or may cause imminent                                                      
harm to the safety, health or well-being of the complainant; 

Ø Deprivation.

The
law is not gender specific as it relates to man, woman and child. There must be
a domestic relationship between the parties for it to suffice.

A
Domestic relationship such as marriage, cohabitation, dating or customary
relationship, family member or domestic staff is sufficient.

Adesuwa Omozusi is an Associate at Cowrie Partners

The Lagos Multi-Door Courthouse (1) | Dmediationlawyeristng

by Legalnaija | Sep 18, 2017 | Uncategorized

The Lagos Multi-Door Courthouse (LMDC)
concept was initiated by the Negotiation and Conflict Management Group (NCMG)
and presented to the Judiciary and the Legal community nationwide.

The LMDC was launched as the first
court-connected Alternative Dispute Resolution (ADR) center in Africa in 2002.

Inspired by the “Multi-door” concept
enunciated by Harvard Law Professor , Frank Sander at the Pound Conference in
1976, the LMDC founder in the person of Kehinde Aina, a partner in the law firm
of Aina, Blankson & Co, established the Negotiation & Conflict
Management Group(NCMG) in 1996 as a Non-governmental organization engaged in
ADR advocacy in Nigeria.

The high point in the existence of the LMDC
came in May, 2007 when the Lagos Multi-Door Courthouse Law was enacted. The
Legislation encapsulates all the ideals of the organization and provides a
legal framework for its operations.

By the provisions of the law, the LMDC is
established to serve as a focal point for the promotion of ADR in Lagos state
and to support the growth and effective functioning of the justice system
through ADR methods.

The LMDC maintains a Panel of Neutrals
(Mediators and Arbitrators) which consist of reputable professionals who are
familiar with ADR proceedings. It is instructive to note that the composition
of the panel is not limited to lawyers but rather a rich blend of personalities
who have distinguished themselves in various fields of endeavor, most of whom
have been accredited by the Centre for Effective Dispute Resolution (CEDR).

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.*The Lagos Multi-Door Courthouse
Neutrals’ Handbook.

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us on;

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Page: fb.me/dmediationlawyeristng

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http://www.instagram.com/DmediationLawyerist

Twitter:
mediationlawng

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10 Things some police officers don’t want you to know | Legalnaija

by Legalnaija | Sep 16, 2017 | Uncategorized

This is a list of laws that some police
officers do not want you to know. Ignorance of these laws allows unscrupulous
officers to take advantage of citizens. It is important that you learn the
following provisions and share them with your friends and family members.

1.     Bail is free

Police Bail is free, the Inspector – General of Police
has stated same over time and recently launched the bail is free campaign educating
Nigerians to stop paying bail and to report any officer who demands bail.

2.     Upon arrest, you
are liable to remain silent

Person
arrested has a right to remain silent and to refrain from making a statement
until consultation with a lawyer as stated further in Section 6 of the ACJA Act 2015; Section 35(2) 1999 Constitution

3.     When been
questioned, you must have your lawyer present

A police officer or person making an arrest shall
inform the suspect of his rights to remain silent or avoid answering any
question until after consultation with a legal practitioner or any other person
of his own choice. Section 6(2)(a) Administration
of Criminal Justice Act (2015)

4.     No one should be
subject to torture or unlawful treatment

A suspect shall be accorded humane treatment, having
regard to his right to the dignity of his person; and not subjected to any form
of torture, cruel, inhuman or degrading treatment. Section
8, Administration of Criminal Justice Act (2015); Section 34, 1999
Constitution.

5.     Upon arrest, suspect
must be charged to court immediately

Where a suspect taken into custody in respect of a
non-capital offence is not released on bail after 24hours, a court having
jurisdiction with respect to the offence may be notified by application on
behalf of the suspect. Section 32 of the
Administration of Criminal Justice Act (2015)

6.     Police officer making
an arrest must state reason

“Except when the
suspect is in the actual course of the commission of an offence or is pursued
immediately after the commission of an offence has escaped from lawful custody,
the police officer or other persons making the arrest shall inform the suspect
immediately of the reason for the arrest”. Section 6, Administration of
Criminal Justice Act, 2015.

7.     Suspect is innocent
until proven guilty

Every suspect is entitled to a fair hearing and is
deemed innocent until proven guilty by a court of law. Section 36(5) of the 1999 Constitution.

8.     No one can be
arrested in lieu of another person

The law provides
that a person shall not be arrested in place of a suspect. Meaning only the
suspect can be arrested and not his parents, siblings, relatives or friends.

9.     Police cannot unlawfully
search your phones

It is wrong for a police officer to stop you and demand
to search your phones unlawfully.

10.                       
 Anyone
unlawfully arrested is entitled to compensation

Any person who is unlawfully arrested or detained shall
be entitled to compensation and public apology from the appropriate authority
or person; specified by law. Section
35(6) 1999 Constitution   

If your rights have been breached in
relation to any of the laws mentioned above, you can make a formal complaint to
the Police Complaint Commission via @PoliceNG_PCRRU npf.gov.ng/complaint or contact
your lawyer.

@Legalnaija

Can a police officer make an arrest without stating the reason? |Legalnaija

by Legalnaija | Sep 13, 2017 | Uncategorized

There have been various scenes in Nollywood
movies, where a police officer makes an attempt to arrest a citizen. Such
citizen will often inquire about the reason for his arrest and the officer will
respond that ‘when you get to the police station, you will find out the reason
for your arrest”. I have always wondered if these scenes were solely fictitious
or whether they stemmed out of the actual practice of the Nigerian Police Force.
 If the latter is the answer, this will
come as no surprise as the Nigerian Police is not popular for imbibing international
best policing practices. It is no secret that the Nigerian Police is still
heavily into torture and extortion. Moreso, the average police officer is not
educated on basic forensic protocols in crime investigations and rely usually
on forced confessions and crude methods in solving crimes.

However, this piece seeks not to criticize the
police but to enlighten members of the Nigerian public on the question – Can a police officer make an arrest without
stating the reason?. The relevant provision of the law which addresses this
question is the Administration of Criminal Justice Act, 2015.

Section 6 of the ACJA provides that –

“Except
when the suspect is in the actual course of the commission of an offence or is
pursued immediately after the commission of an offence has escaped from lawful custody,
the police officer or other persons making the arrest shall inform the suspect immediately
of the reason for the arrest”.  

From the above, it is clear that the answer
to the question – Can a police officer
make an arrest without stating the reason? Is “NO”. The ACJA provides that
any such officer must tell you the reason for your arrest.

Furthermore, a Nigerian police officer will
usually not inform you that upon arrest, the person arrested has a right to
remain silent and to refrain from making a statement until consultation with a
lawyer as stated further in Section 6 of the ACJA Act 2015.

@Legalnaija

Follow @legalnaija on twitter, instagram
and facebook to learn more about your legal rights and obligations as a Nigeria.

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Just Before Heading To Court | Adejorin d. Abiona

by Legalnaija | 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

by Legalnaija | 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.