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Constitutional Review: Bills Passed by Nigerian Senate on 26/7/2017

Constitutional Review: Bills Passed by Nigerian Senate on 26/7/2017

by | Jul 26, 2017 | Uncategorized


The Nigerian Senate on 26th
July, 2017, in a plenary session, with 97 Senators in attendance, deliberated
over 33 Bills seeking to amend the 1999 Constitution of the Federal Republic. The Bills include;

1.     Bill on Members of
the Council of States
Bill on the
composition of members of the council of state
95 Senators voted
Yes to amend
2.     Authorization of
expenditure (Section 62 and 182)  
Bill to reduce the
period of which the Governor of a State may withdraw funds from the consolidated
revenue funds in the absence of an appropriation act from 6 months to 3 months.
Yes: 93 No: 1
Abstain: 1
3.     Devolution of Power
Bill to amend 2nd
schedule, part 1 and 2 of the 1999 Constitution to give more legislative powers
to state by moving some items to the Concurrent List in the Constitution.
Yes: 5 No: 90
Abstain: 0
4.     Financial Autonomy
of State Legislature
Bill to provide for
funding of Houses of Assemblies directly from the consolidated revenue of the
State.
Yes: 90 No: 5
Abstain: 0
5.     Distributable
account for LG’s to have their own special account
Bill to alter Section
162 to empower each local council to maintain its own accounts into which all
allocations due to the local government council shall be paid directly from the
federation account and state allocations.
Yes: 84 No: 8
Abstain: 1
6.     Democratic
Existence funding and tenure of LG council
Bill aims at strengthening
local government administration in Nigeria by guaranteeing the democratic existence
and funding of local government councils.
  
Yes: 88 No: 7
Abstain: 1
7.     State creation and
boundary adjustment
Bill seeks to
ensure that only democratically created local government councils can participate
in state creation and boundary adjustments.  
Yes: 47 No: 48
Abstain: 0
8.     Immunity for
legislators for Acts in Course of Duty
This is a Bill to
alter section 4, 51, 61, 68,93 and 109 of the constitution, to provide immunity
for members of legislature in respect of words spoken or written in plenary.
This means that no member of the Senate can be legally prosecuted for words and
writings made during a plenary session or in committee. And to institutionalize
legislative bureaucracy in the constitution and obligate the president to
address the joint national assembly once a year to give a state of the nation
address.
Yes: 93 No: 1
Abstain: 0
9.     Political Parties
and Electoral Matters : Time to conduct Bye Elections and Power to deregister
parties.
Bill seeks to alter
Section 134 and 179 of the Constitution to provide time for INEC to conduct bye
elections and Section 225 to empower INEC to deregister political parties for
non-fulfillment of certain conditions such as a breach of registration
requirements and for not winning any seat in any election.
Yes: 90 No: 0
Abstain: 0
10.   Presidential Assent
This Bill seeks to
alter Section 58, 59 and 100 of the Constitution to resolve the impasse when a
President or Government fails to give or withdraw accent from a Bill passed by
the Legislature.
Yes: 95 No: 1
Abstain: 0
11.Bill
11: Time frame for submission of names of ministerial or commissioner nominees.
To set a time frame within which a president or governor shall forward names of
nominees for ministerial or commissioner positions along with their intended
portfolios.
a)    Nomination shall be
between 40 days after President has taken oath of office.
Yes: 75 No: 19
Abstain: 0
b)    Submission of Ministerial
Nominees shall be with their Portfolios
       Yes:
78 No: 16 Abstain: 1
c)     35% affirmative
action for women as ministers
       Yes: 49 No: 43 Abstain: 2
d)   Submission of
Commissioners Nominees shall be within 30 days.  
       
        Yes: 84 No: 7 Abstain: 0
e)     Submission of names
of office of commissioners shall be attached with portfolio
Yes: 87 No: 8
Abstain: 0
f)      35% Affirmative
action for women as States Commissioners
Yes: 61 No: 35
Abstain: 0


12. The
Bill seeks to alter section 147 of the Constitution of the Federal Republic of
Nigeria, 1999 to provide for the appointment of a Minister from the FCT, Abuja
to ensure that the FCT is represented in the Executive Council of the
Federation.
Yes    No    Abstain 
13.  Change
of names of some LG councils: Ebonyi, Oyo, Ogun, Pleateau and Rivers.
This Bill seeks to alter the Constitution to provide for change in the
names of some Local Government Councils and the definition of the boundary of
the FCT, Abuja.
Yes: 84 No: 2
Abstain: 2
14.   Independent
Candidacy
This seeks to alter sections 65, 106, 131, and 177 of the Constitution.
This is aimed at expanding the political space and broadening the options for
the electorate by allowing for independent candidacy in all elections.
Yes: 82 No: 5
Abstain: 3
15.    The
Nigeria Police Force to become Nigerian Police
This Bill seeks to alter the Constitution in sections 34, 35, 39, 214,
215, 216 and the Third Schedule to change the name of the Police from “Nigeria
Police Force” to “Nigeria Police” in order to reflect their core mandate.
Yes: 87 No: 2
Abstain: 1
16.  Restriction of the tenure of President and
Governor
The Bill sought
that any vice president who had completed a tenure of a sitting president and
contested a fresh four years mandate shall not be eligible to run for a second
term of office.
Yes: 88 No: 0
Abstain: 1
17.    Separation of Office of the Accountant-General
This Bill seeks to alter section 84 of the Constitution to establish
the office of the Accountant-General of the Federal Government separate from
office of the Accountant-General of the Federation.
Yes: 89 No: 0
Abstain: 0
18.                       
Office
of Auditor General to be included in first line chat of consolidated revenue.
This Bill seeks to make the office of the Auditor-General for the
Federation and for the State financially independent by placing them on
first-line charges in the Consolidated Revenue funds of the Federation and of
the States.
Yes: 95 No: 0
Abstain: 0

19. Separation
of Office of the Attorney General from the Minister/Commissioner of Justice
This Bill seeks to alter sections 150, 174, 195, 211, 318 and the Third
Schedule to the Constitution to separate the office of the Minister or
Commissioner for Justice from that of the Attorney-General of the Federation
and of states soas to create an independent office of the Attorney-General of
the Federation insulated from partisanship. It also seeks to redefine the role
of the Attorney-General, provide a fixed tenure, provide the age and
qualification for appointment and also for a more stringent process for the removal
of the Attorney General.
Yes: 95 No: 1
Abstain: 1
20.      Submissions
from the Judiciary
This bill contains a vast array of alterations with regards to the
Judiciary such as the composition of the National Judicial Council, and
empowering Justices of the Supreme Court and Court of Appeal to hear certain
applications in chambers thereby enhancing the speedy dispensation of justice.
Yes: 95 No: 2
Abstain: 1
21. Determination
of pre-election matters.
This Bill seeks to among other things make provisions for timelines for
the determination of pre-election disputes.
Yes: 97 No: 0
Abstain: 0
22.  Consequential Amendment on Civil Defence
This Bill seeks to reflect the establishment and core functions of the
Nigeria Security and Civil Defence Corps. It is a consequential amendment
because of the inclusion of the national security and civil defence as an item
in the Exclusive Legislative List under the Second Schedule to the
Constitution.

Yes: 97 No: 0
Abstain: 0
23.  Citizenship
and indigeneship
This Bills seeks to alter section 25 of the Constitution to guarantee a
married woman’s right to choosing either her indigeneship by birth or by
marriage for the purposes of appointment or election.
Yes: 49 No: 46
Abstain: 0
24.Procedure
for Overriding Presidential Veto in Constitutional Alteration
This Bill seeks to among other things provide the procedure for passing
a Constitution Alteration Bill where the President withholds assent.
Yes: 92 No: 4
Abstain: 0
25. Removal
of law making power from Executive Arm.
This Bill seeks to alter section 315 of the Constitution of the Federal
Republic of Nigeria, 1999 to remove the law-making powers of the Executive Arm
of Government.
Yes: 89 No: 3
Abstain: 0
26. Investment
and Securities Tribunal
This bill seeks to establish the Investments and Securities Tribunal
under the Constitution.
Yes: 76 No: 14
Abstain: 5
27.  Reduction
of Age for Election
This Bill seeks to alter the Sections 65, 106, 131, 177 of the
Constitution to reduce the age qualification for the offices of the President
and Governor and membership of the Senate, House of Representatives, and the
State Houses of Assembly.The bill now proposes 35 as the minimum age
for the office of the President and being elected to the Senate; and 25 for the
House of Representatives.

Yes: 86 No: 10
Abstain: 1
28. Authorization
of expenditure time frame for laying Appropriation bill, Passage etc
This Bill seeks to provide for the time within which the President or
Governor shall lay the Appropriation Bill before the National Assembly or House
of Assembly to encourage the early presentation and passage of Appropriation
Bills.
Yes: 94 No: 0
Abstain:0
29.   Deletion
of NYSC decree from CFRN
The Bill seeks to alter the Constitution of the Federal Republic of
Nigeria, 1999 to delete the National Youth Service Corps Decree from the Constitution
so that it can be subject to the regular process of amendment.
Yes: 88 No: 3
Abstain: 0
30.    Deletion of Public Complain Act from CFRN.
The Bill seeks to alter the Constitution of the Federal Republic of
Nigeria, 1999 to delete the Public Complaints Commission Act from the
Constitution so that it can be subject to the regular process of amendment.
Yes: 90 No: 1
Abstain: 2
31.   Deletion
of National Security Agencies from the CFRN
The Bill seeks to alter the Constitution of the Federal Republic of
Nigeria, 1999 to delete the National Securities Act from the Constitution so
that it can be subject to the regular process of amendment.
Yes: 92 No: 2
Abstain: 0
32.   Deletion of land Use Act from CFRN
The Bill seeks to
alter the Constitution of the Federal Republic of Nigeria, 1999 to delete the
Land Use Act from the Constitution so that it can be subject to the regular
process of amendment.
Yes: 46 No: 44
Abstain: 0
33. Deletion
of State Electoral Commission from
CFRN
Yes: 73 No: 19
Abstain: 2

Adedunmade Onibokun, Esq.
dunmadeo@yahoo.com

 Photo Credit 1  – premiumtimes.com 
2 – youtube.com. 3 – Twitter.com/@NGRsenate
Sexual Harassment in the Work Place | Busayo Adedeji

Sexual Harassment in the Work Place | Busayo Adedeji

by | Jul 26, 2017 | Uncategorized


Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or
inappropriate promise of rewards in exchange for sexual favours. In
most modern legal contexts, sexual harassment is illegal.[1]
Although the concept of sexual harassment in the work place is not alien to
Nigeria, there is a dearth of reported cases on the subject. Reasons that might
be attributed to this include:


1.     No precise provision in Employment
Relation laws bordering on sexual harassment in the work place;
2.     Victims of sexual harassment
not coming out to report the infringement.

The International Labour
Organization (“ILO”) in its publication on Declaration on Fundamental Principles and
Rights at Work[2] defined
sexual harassment as:
“a sex-based
behaviour that is unwelcome and offensive
to its recipient.”

For sexual harassment to exist these two
conditions must be present.

Sexual harassment may take two forms:
1) Quid Pro Quo, when a job benefit – such as
a pay rise, a promotion, or even continued employment – is made conditional on
the victim acceding to demands to engage in some form of sexual behaviour; or;

2) hostile working environment in which the
conduct creates conditions that are intimidating or humiliating for the victim.

Behaviours that qualifies as sexual
harassment include:

PHYSICAL Physical violence, touching, unnecessary proximity.

VERBAL Comments and questions about appearance,
life-style, sexual orientation, offensive phone calls.

NON -VERBAL Whistling, sexually-suggestive gestures,
display of sexual materials.

The effects of Sexual harassment are both
societal and personal. Some common effects include:

·       
Psychological suffering including humiliation, reduced motivation, loss
of self-esteem.
·       
Victims foregoing career opportunities, leaving employment or committing
suicide;
·       
Women’s undermined access to high-status and well-paid jobs,
traditionally male-dominated.

The Way
Forward

·       
Legal Framework against Sexual Harassment must be put
in place and clear institutions to enforce the regulations must also be defined
and set up.

·       
Efforts must be made to create awareness amongst the
workforce on issues bordering on sexual harassment.

·       
Companies should endeavour to have standing sexual
harassment policies that will be known to all employees.

In conclusion, it is
pertinent to state that the sexual harassment phenomenon is one that keeps
spreading like a wild fire leaving is ashes behind and it is high time our
lawmakers step up and pass laws to regulate this menace in the work place.

[1] https://en.wikipedia.org/wiki/Sexual_harassment
[2] http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_decl_fs_96_en.pdf


Busayo Adedeji

Regulatory Compliance & Commercial law
advisor
Busayo advises clients on corporate immigration issues, advising clients on employment and labour law issues, ensuring that clients are in line with regulatory compliance rules, civil litigation etc
What Nigerian entrepreneurs should expect from Foreign Investors | Boma Braide

What Nigerian entrepreneurs should expect from Foreign Investors | Boma Braide

by | Jul 23, 2017 | Uncategorized


Nigerian Entrepreneurs who start out on
their fundraising journey think they will be showered with funding offers but
are quickly awakened to the rude shock that they are not able to pick and
choose from investors as they would have liked.

Based on experience, you might think that
we saw something special in your venture and that was why we approached you.
Yes we did but not what you are thinking. We saw an opportunity to add value
and make you a truly global business coming out of Nigeria.
Our vision is to see a Nigeria of
Entrepreneurs and leaders solving meaningful problems on a global scale.
And in order to achieve this we have set
out on a tall mission which is:
To impact 1,000,000 Nigerian
Entrepreneurs to DOMINATE their market by the year 2035.
In order to achieve this, we need to state
the key things that entrepreneurs should expect from an investor and then do to
bring their expectations to life to be able to scale their business to
domination.
1.     It is best to keep
expectations to a minimum and be spot on about the amount of investment that
you require.
2.     A lot of investors
are looking for somewhere to sweat their money but not themselves. Isn’t this
obvious, they are usually very busy people already – otherwise how would they
have the wealth to take such huge risks with businesses. You need to keep these
investors updated – a consistently timed monthly update of a page or so and a
full update with accounts each year.
3.     More usefully there
are a small number of investors that are willing to help. This might be as an
interested and encouraging observer, at least responding to your updates and
occasionally offering some unsolicited help. They are likely to respond well
when asked for help.

4.     We find our help is
particularly useful at the start of a relationship – helping to challenge and
strengthen the brand and product proposition, the strategy and to prioritize
action plans.
5.     Having someone with
an understanding but more dispassionate about the business helps to create
different options and make effective choices for how to grow the business.
6.     An Investor
Director should bring an investor’s perspective, so helping make decisions, not
only for revenue and profitability growth but to make a business attractive to
future investors or exits. They should be a huge help in creating the story to
attract investors in the lead up to the next raise.
7.     When setting out on
the funding route, think about what you want from your investors. For example,
what expertise is most important, what contacts in your industry are you
lacking, where are the big risks facing the business? Then have it as part of
the conversation with potential investors.
8.     Be prepared to pay
fees which can consist of connection and investors fees. Connection being the
broker that connected you to the investors and the investors themselves. These
fees do not make anyone rich, it is a fraction of the fee that the facilitators
of the investment charge for their time out to large corporate organisations,
but because a transaction creates a contract and clear expectations of both
parties it holds the facilitators to account.
9.     Watch out for some
investors that will demand a paid non-executive seat even if they are only
investing a small amount. You need to judge everyone on their merits but there
is usually a co-relation between the size of the demand and how little help
they will be.
If someone is offering something you’d
value then try and formalize that commitment as much as possible. It is easier
to agree expectations before completing an investment and guards against two
parties having a different view of what has been promised.

Are you seeking investment?
Forterun.com is working with several investment partners that would like to
talk with you and know where you are with regards fund raising for your
business. To find out more send an email to info@forterun.com or call Omo on
+234 903 915 1191.
Boma Braide

This article was first published here
International’ Commercial Arbitration Moot Competition by LCA-YAN

International’ Commercial Arbitration Moot Competition by LCA-YAN

by | Jul 21, 2017 | Uncategorized


“The Lagos Court of Arbitration Young
Arbitators Network is organising the first ‘International’ Commercial
Arbitration Moot Competition in Nigeria. The LCA-YAN Moot will provide a unique
opportunity for young and aspiring practitioners to gain exposure to various
aspects of international commercial arbitration including interlocutory matters
such as the conduct of emergency arbitration and joinder of parties.
Participants will 
also have the opportunity to explore the
principle of piercing the veil in international commerce and other cutting edge
issues in international commercial arbitration.


The participating teams are from top tier law firms and students from selected
universities. The Moot will hold as follows:

Date: 28 July 2017
Time: 9 am
Venue: Lagos Court of Arbitration, 1A, Remi Olowude Street, 2nd Roundabout,
Lekki-Epe 

Expressway, Lagos, Nigeria
The Moot boasts the participation of some
of Nigeria’s finest and most experienced arbitrators some of who include:
Chief Bayo Ojo, SAN
Mr Yemi Candide – Johnson, SAN 
Mr Etigwe Uwa, SAN 
Mr Tunde Fagbohunlu, SAN 
About 20 law firms were invited to
participate in the moot, but only 12 made it through to the Oral Hearing at the
Lagos Court of Arbitration. Below are the qualified firms and their tribunals:


Arbitrators
Groups
Co-Arbitrator
Presiding Arbitrator
Co-Arbitrator
Moot Final Tribunal
Yemi Candide-Johnson, SAN
Chief Bayo Ojo, SAN
Obosa Akpata
One
Abiodun Anibaba
Greg Nwakogo
Aaron Onyebuchi
Two
Diane Okoko
Babatunde Fagbohunlu SAN
Jokpa Utake
Three
Laura Alakija
Etigwe Uwa SAN
Faruq Abbas
Four
Shehu Mustapha
Adedapo Tunde-Olowu
Ronke Alex-Adedipe
Five
Folahan Ajayi
Isaiah Bozimo
Hamid Abdulkareem
Six
Shola Abiloye
Kolawole Mayomi
Aliyu Zubair


Claimant 
Respondent 
Tribunal
Hearing Room
One
AELEX Partners
Babalakin & Co
Abiodun Anibaba
Greg Nwakogo
Aaron Onyebuchi
 One
Two
Banwo & Ighodalo
Dikko & Mahmoud
Diane Okoko
Babatunde Fagbohunlu SAN
Jokpa Utake
 Four
Three
Moshood Shehu & Associates
Punuka
Laura Alakija
Etigwe Uwa SAN
Faruq Abbas
 Nine
Four
Sofunde, Osakwe, Ogundipe & Belgore
S.P.A Ajibade & Co
Shehu Mustapha
Adedapo Tunde-Olowu
Ronke Alex-Adedipe
 Ten
Five
Sterling Partnership
Strachan Partners
Folahan Ajayi
Isaiaha Bozimo
Hamid Abdulkareem
 Two
Six
Streamsowers & Kohn
Wole Olanipekun & Co
Shola Abiloye
Kolawole Mayomi
Aliyu Zubair
Eleven
Qualification to Moot Final:
The two highest scoring teams by points
total will advance to Final Round. 
Prizes
1. Winning Team prizes
2. Best Memorial prize 
3. Best Advocate prizes
4. Best Student Advocate prizes
Sponsors
The Moot is sponsored by: AELEX Partners,
White & Case, Paris, Babalakin & Co, Broderick Bozimo & Co,
Stephenson Harwood, London, Olisa Agbakogba Legal, Ukiri & Lijadu and
StreamSowers  & Kohn.
To sponsor any of
the prizes or the Moot, or for other enquiry, contact:
Prince-Alex Iwu
piwu@aelex.com
+2348050688079
Or
Jokpa Utake
autake@babalakinandco.com
+234 805 604
4634″

Provisions of the Whistle Blower Protection Bill | Adedunmade Onibokun

Provisions of the Whistle Blower Protection Bill | Adedunmade Onibokun

by | Jul 19, 2017 | Uncategorized


The Whistle Blower Protection Bill, 2017, on
19th July, 2017, was passed by the Nigerian Senate. The Bill seeks
to encourage and facilitate the disclosures of improper conduct by public
officers and public bodies and to ensure that persons who make disclosures and
persons who may suffer reprisals in relation to such disclosures are protected
under the law.

The Bill aims to provide for the manner in
which individuals may in the public interest disclose information that relates
to unlawful or other illegal conduct or corrupt practices of others.
The Bill in Section 1 begins by stating the
class of persons who may be Whistle blowers. It provides that –
1.—(1) A person may make a disclosure of
information where that person has reasonable cause to believe that the
information tends to show—
(a)  
an economic crime
has been committed, is about to be committed or is likely to be committed;
(b)  another person has not complied with a law or is in the
process of breaking a law or is likely to break a law which imposes an
obligation on that person;
(c)  
a miscarriage of
justice has occurred, is occurring or is likely to occur;
(d)  in a public institution there has been, there is or
there is likely to be waste, misappropriation or mismanagement of public
resources;
(e)  
the environment has
been degraded, is being degraded or is likely to be degraded; or
 (j)
the health or safety of an individual or a community is endangered, has been
endangered or is likely to be endangered
It however is not everyone that brings
forward information that is a Whistle Blower, such person must be making the
disclosure in good faith, believing the information to be true and same must be
made to any of the following persons in line with Section 2 and 3 of the Bill
including; an employer of the whistle blower; the Inspector General of police; the
Attorney-General; the Auditor-General; a staff of the Independence Corrupt Practices
Commission; a member of the National Assembly; the Economic and Financial
Crimes Commission; the Human Rights Commission; the print and Electronic media;
the National Drug Law Enforcement Agency; a chief; the head or an elder of the
family of the whistleblower; a head of a recognised religious body; a Minister;
the Office of the President; the Federal Inland Revenue Service; or the Public
Complaint Commission.
It is important to note that a disclosure
can be either oral or written. The procedure for making a disclosure is
contained in Section 4 of the Bill and states that such disclosure must contain
as far as possible the following –
(a)  
the full name,
address and occupation of the whistleblower;
(b)  the nature of the impropriety in respect of which the
disclosure is made;
(c)  
the person alleged
to have committed, who is committing or is about to commit the impropriety;
(d)  the time and place where the alleged impropriety is
taking place, took place or is likely to take place;
(e)  
the full name,
address and description of a person who witnessed the commission of the
impropriety if there is such a person;
(f)   
whether the
whistleblower has made a disclosure of the same or of some other impropriety on
a previous occasion and if so, about whom and to whom the disclosure was made;
and
 
(g) if the person is an employee making a disclosure about
that person’s employer or a fellow employee, whether the whistleblower remains
in the same employment.
Where a disclosure is made to a person
other than the Attorney-General, the person shall submit a copy of the written disclosure
to the Attorney-General within seven working days after receipt of the
disclosure. It is important to note that when a disclosure is made, any investigation
into the matter by the authority to whom it was reported must be completed
within 60 days and if such person does not have the authority or capacity to
investigate the disclosure, such must be reported to the Attorney – General’s
office.
Also, if the investigator believes that the
evidence in the disclosure will be tampered, an application can be made to court
to preserve the evidence.
The Bill
specifically in Section 12 provides that a whistleblower shall not be subjected
to victimisation by the employer of the whistleblower or by a fellow employee
or by another person and victimisation will be inferred if  the whistleblower, being an employee, is
dismissed, suspended, declared redundant, denied promotion, transferred against
the whistleblower’s will, harassed, intimidated or threatened. If the Whistle
blower is not an employee, victimization will be inferred with such person is
subject to discrimination, intimidation or harassment by a person or an
institution.
A whistleblower is
not liable to civil or criminal proceedings in respect of the disclosure unless
it is proved that whistleblower knew that the information contained in the
disclosure is false and the disclosure was made with malicious intent. Also,
any contract of employment which seeks to prevent a disclosure is void.
A whistleblower who
has been subjected to victimisation may bring an action in the High Court to
claim damages for breach of contract or for another relief or remedy to which
the whistleblower may be entitled, except that an action shall not be commenced
in a court unless the complaint has first been submitted to the Commission on
Human Rights and Administrative Justice.
One major flaw
however of the Bill is that it does not specifically make provisions for the reward
of a Whistle Blower. Many Whistle blowers will be willing to make disclosures
most importantly because of the possibility of a reward. The Bill however
provides in Section 14(4) that the Commission may, where it considers it just
in the circumstances of the case, make an order for payment of reward from the
Fund established under section 20 of the Bill. Section 20 thus further provides
that the Attorney _General or Minister of Justice may make regulation for or
with respect to any matter required or permitted by this Act to be prescribed
to give effect to this Act. The above seems very vague and puts the onus on the
Minister to make policy in regard to the rewards for Whistle Blowers.
This single flaw
will in no small way limit the success of the Bill.
Adedunmade Onibokun
www.adedunmadeonibokun.com
dunmadeo@yahoo.com

Photo Credit – www.nationaldaily.com 
Can A Director Be Sued Personally for an Alleged libelous letter written by Him? |Rosemond Phil-Othihiwa

Can A Director Be Sued Personally for an Alleged libelous letter written by Him? |Rosemond Phil-Othihiwa

by | Jul 17, 2017 | Uncategorized


It is worthy of note that upon
incorporation a company assumes a separate legal entity different from the
promoters, shareholders, directors, secretaries, auditors and other members of
the company. Section 37 CAMA. This provision enacts the
fundamental principle of corporate personality. This concept was laid down
under the common law in the celebrated case of Salomon Vs Salomon and
Co Ltd(1897) AC 22 where the House of Lords per Lord McNaughten
stated the position as follows;


“I cannot understand how a body corporate
such as this made capable by statute can lose individuality by issuing the bulk
of its capital to one person, whether he be a subscriber to the memorandum or
not. The Company is at law a different person altogether from the subscriber…
Nor are the members (subscribers) liable…”
The meaning of directors is defined under section
244(1) of the Companies and Allied Matters Act, Cap C20, LFN 2004 as
persons duly appointed by the company to direct and manage the business of the
company.
However, it is merely an artificial person.
Therefore it can only act under the instrumentality of human beings, operating
as its agents, either as members in a general meeting, directors or officers.
The law generally will attribute the conducts of such individuals to the
company and this is the basis of the company’s liability in tort, contract and
even crime.
In Bolton (Engineering) Co. Ltd
v. Graham & Sons (1957) 1 Q. B 159, Lord Denning stated that:
“A company may in many ways be
likened to a human body. It has a brain and nerve centre which controls what it
does. It also had hands which hold the tools and act in accordance with
directions from the centre. Some of the people in the company are mere servants
and agents who are nothing more than hands to do the work and cannot be said to
represent the mind or will. Others are directors and managers who represent the
directing mind and will of the company, and control what it does…”
This ratio is on all fours with the
decision earlier considered in Lee v Lee Air Farming Ltd (1960)
3 ALL E.R 420  where the court held that Lee is a mere agent of
the Company. In Okolo v Union Bank of Nigeria , 2004) 3 NWLR (PT 859)SC
87 , the Supreme court held that a director of the company is in the
eye of the law and agent of the company, such that when a Director enters into
a contract for a company, the principal which is liable on it not the
directors. However, a person will be personally liable for a Contract made in his
own name without disclosing either the name of or the existence of a principal
to the other Contracting party even though he may in fact be acting on a
principal’s behalf. Directors and officers are nevertheless the agents of the
company and, under the principles of agency law, are jointly and severally
liable with a company for torts committed.
There is no legal reason therefore why a
claimant should not sue the directors if they also have assets (which may
include a Directors and Officers insurance policy). However, in the light of
the House of Lords’ decision in Williams v Natural Life Foods
Limited [1998]2 All ER 577 a director is only likely to be
found liable if there has been a voluntary assumption of responsibility towards
a third party. It is only in exceptional circumstances that directors can face
personal liability to third parties, such as in the case of fraud and the well-known
doctrine of ‘lifting the veil.’ In the House of Lords case of Standard
Chartered Bank v Pakistan National Shipping Corporation (No
2) [2002] 1 All ER 173 a director knowingly and deliberately
made a false statement in order to obtain payment on a letter of credit. The
House of Lords held that a director cannot escape liability for deceit on the
ground that he acted on behalf of and for the benefit of the company. case of Nathaniel
Adeniji v State (1992) 4 NWLR (PT 248) 1 the court held
that any business which appears to have been handled recklessly or with intent
to defraud, the court may declare that any person who were knowingly parties to
the carrying on of the business in the manner aforesaid shall be personally
liable for all or any of the debts or other liabilities of the Company. It is
submitted that the work of the Court have been made easier by Section 506(1) of
the CAMA which provides that if in the course of winding up of a company, the
act has been carried on in a reckless manner or with intent to defraud, the
creditors of the Company or creditors of any person for any other purpose, the
receiver or liquidator or contributory of the company may, if it thinks proper
to do so, declare that any person who were knowingly parties to the aforesaid
be made personally liable.

The court went further in Yesufu v
Kupper International N.V53 (1996) 5 NWLR (PT 248) 1 that
where a director is in the eyes of the law, an agent of the Company, for which
he acts, the general principle of agency will apply. The Supreme Court held
that where a director enters into a contract in the name of or purporting to
bind the company, it is the Company, the principal, which is liable on it, not
the director. The director is not personally liable unless it appears that he
undertook personal liability. For instance, a Company’s director cannot be held
liable for the loan granted to the Company in good faith.
The fact that a corporation is liable for a
tortuous act is not necessarily a bar to concurrent liability of the company’s
directors or officers. However, for a claim to proceed against a director or
officer, the claim will have to include allegations of their personal tortuous
conduct.
Recent case law suggests that the
specificity of the pleading is the most crucial factor in determining whether a
claim can be made out against a director or officer.
In the case of MR. EMMANUEL
AGBANELO V. UNION BANK OF NIGERIA LTD (2000)4iLAW/SC.20/1997 This
action was brought by the plaintiff/appellant, against the defendant/respondent
in the Warri High Court, claiming general and special damages for dishonoured
cheque and damages for libel. The salient aspects of the facts which resulted
in plaintiff bringing this action are not really in dispute. Plaintiff, a
businessman, and a sole distributor of a biscuit manufacturing Company (i.e.
Temitope Bakeries and Catering Services Ltd.) was a Customer of the defendant
bank. Defendant bank was at all times material to the facts of this case,
carrying on the business of banking. They had branches at No.8 Warri/Sapele
Road. Warri, where plaintiff opened and operated a current account in his trade
name of EPACO (Nigeria) Marketing Company. Plaintiff applied to the defendant
sometime in April, 1986 for the issuance of a Bank Draft in favour of the
Biscuit Manufacturing Company, payable at the defendants branch in Surulere.
The defendant bank in compliance with plaintiff’s instructions issued the bank
draft to Temitope Bakeries and Catering Services Ltd. Upon presentation by
Temitope Bakeries and Catering Services Ltd. for payment, the bank draft was
returned to the Company with the endorsement “1st signature irregular.”
The defendant bank did not honour payment of the draft. Plaintiff thereupon has
brought this action claiming damages that the words endorsed on the draft were
defamatory of him and that the draft was negligently issued by the defendant.
In the High Court, the trial judge dismissed the claims in their entirety
because, he held the claim for libel and for negligence were not proved.
It is important to observe that the Learned
trial judge did not give reasons for dismissing the claim for libel. With
respect to the claim for negligence his reasoning was concisely that-
“The defendant was the Union
Bank of Nigeria Limited, (Warri Branch)and not Warri Bank Nigeria Limited
(Surulere Branch) nor the Union Bank Nigeria Limited.”
The matter went to the supreme court the
court held… “and here is no doubt that on the basis of this theory, so in the
instant case. The act of a branch is the act of the company. Hence the act of
the employee of the company, done in the course of his employment renders the
company vicariously liable irrespective of the branch from which the action
emanated. The error of the Learned trial Judge and the Court below arose from
the reasoning that the branch of the Defendant Bank was different and a
separate entity from the parent body. This is a fu0ndamental error which
permeated the entire reasoning and faulted it.” The court further stated, In
establishing liability in an action for defamation, it is the established
principle of law that the question whether a statement is defamatory or not is
to consider what the meaning of the words would convey to the ordinary person.Okolo
v. Mid-West News paper Corporarion. (1977)NSCC 11 and Dumbo v. Idugboe (1983) 1
SCNLR 29.
With the above case law the correct
position where a director writes an allegedly defamatory content on behalf of
his company ,the libeled party’s right of action will lie against the company
,owing to the fact that that they are not personally liable since their act is
the corporate act. This is because of the concept of a corporate act, not
because of limited liability which applies to shareholders, not directors.
Their act is the act of the corporation.
Rosemond
Phil-Othihiwa

Associate Counsel at
OLATUNDE ADEJUYIGBE & CO. SAN


Ed’s Note – This article was first published here.
Photo Credit –  tab.ie

Emotional Wellbeing Of An Accused Person |Tunrayo Mutairu

Emotional Wellbeing Of An Accused Person |Tunrayo Mutairu

by | Jul 14, 2017 | Uncategorized

I watched an episode of a
legal series on TV called “the good wife”. On this particular episode, an
accused person is charged with the offence of murder and was looking at a life
imprisonment sentence. He had the option of taking a plea deal of 8 years but
refused because he affirmed he was innocent and was willing to take his chances
with the jury. While the matter was ongoing in court, counsel on the
prosecution and defense side were conferring with the judge on whether a
witness should be allowed to testify in the matter. In the usual rapport of
lawyers and judges, they argued and eventually turned this into a joke and were
seen laughing heartily while the accused person looked on, confused as to what
could be really funny while his life hangs in the balance. 


He looked at the
jury and members of the gallery with tears in his eyes, no one looked at him
more than a criminal charged for killing a person. I guess it was at this point
he decided there was no way the case was going to go his way. He looked around
and saw the gun of the officer in court exposed. He managed to get it and ended
up shooting a number of people in the court room, his lawyer and tried killing
himself but he was out of bullet. Suffice to say this is a sad outcome but not
totally shocking given the psychological state of mind of an accused person
especially an innocent one.
My job as a first-year
state counsel at the department of public prosecution exposes me to a lot of
criminal prosecution. I get to see accused robbers, murderers, child-molesters
and the likes of them in the prosecution of offenders in pursuit of the
administration of criminal justice. I observe that the usual countenance of the
officers of the state, the police, the warders that keep these accused persons
in custody is usually one of guilt and indifference; and this is before they
have been convicted by the court.
I have observed lawyers in
court converse with their colleagues, Judges, Investigating Police Officers
(IPO), families of the accused person in a way that is very indifferent to the
course of the accused while the latter looks on sadly often times physically
and emotionally drained from his place at the dock. For some reasons, his
lawyer after arguing sternly about the unfairness of not responding to an application
by the opposing party leading to a further delay in his incarceration and
count-down to his acquittal still manages to share a hearty laugh with his
colleague just shortly after been upset. I would often look at the dock to see
how they feel. Does this person feel like his lawyer or the judge doesn’t care
enough for his situation to find humour in his very saddening situation?
I know that as lawyers we
are taught in school and in the course of early practice to learn to distance
our personal feelings from our jobs. I think however that we need to do more.
We need to care more. A person living in a deplorable state in incarceration
while his life hangs in the balance doesn’t understand that you do this every
day and it is usual to see criminals now and then hence your immunity. If we
are to even consider a state where opposing party doesn’t care whether an
accused person is innocent or guilty I think it is the duty of his own lawyer
to do more. It is absolutely unfair and cruel to laugh at silly things in court
while your client is unsure of his future survival.
The job of a lawyer is not
only to ensure exoneration of his client, he also owes him a duty of care; a
humane feeling towards his plight when the latter is going through the process.
This I believe will to a large extent reduce depression and suicidal thoughts
from the state of mind of an accused person.


Ed’s Note – This article
was originally posted here

Photo Credit – websitetemplate.info 
Resolving Artist-Record Label Disputes: Why Arbitration Is Quite Desirable | Adejorin D. Abiona

Resolving Artist-Record Label Disputes: Why Arbitration Is Quite Desirable | Adejorin D. Abiona

by | Jul 14, 2017 | Uncategorized

The entertainment
industry encompasses diverse relationships. With the adoption of ever-changing
developing technology, novel problems are emerging which require creative
solutions. For example, the abundance of contractual relationships creates the
likelihood of disputes. This article will look into the contracts between
record labels and artists with a focus on the peculiarities in the relationship
with creatives that has made arbitration desirable for dispute resolution.
In the
entertainment industry, timeliness of decisions and transactions, limited
resources for protracted litigation, and the need to secure relationships are
key considerations. Disputing parties are increasingly intolerant of the cost,
delays and risks of litigation, paucity of jurisprudence and industry expertise
of judges, possibility of appeal, loss of privacy and confidentiality, and the
emotional toll which characterize litigation as a method of resolving disputes[1]. Thus, Arbitration is gradually
gaining ground as a better option for parties to employ in resolving their
disputes.
WHAT IS ARBITRATION?
Arbitration is an
Alternative Dispute Resolution mechanism where parties appoint independent
arbitrator(s) to resolve their disputes by granting an award which is legally
binding on the parties and final. The parties may in their contract commit to
arbitration in the event of a future dispute by inserting an arbitration clause
in the contract.
A typical example
of an arbitration clause is modeled in this manner:
“In the event of any dispute or difference arising between the parties
to this agreement from or in connection with this agreement or its performance,
construction or interpretation, such dispute shall be referred to arbitration
by a single arbitrator in accordance with the provisions of the Arbitration and
Conciliation Act CAP 18 Laws of the Federation of Nigeria 2004 or any
amendments thereto, whose decision in relation to any such dispute or
difference shall be final and binding on all parties hereto.”[2]
DISPUTES ARISING
FROM ARTIST-RECORD LABEL CONTRACTS
There are many
sources of disputes in artist-label relationships. Many disputes arise out of
artist complaints focusing on several concerns, including inequitable recording
contracts, poor royalty schemes, injurious accounting policies and
content-ownership issues.[3]
Some other
disputes arise from the breach of the contract by an act or omission of any of
the parties. Also, there might be some form of ambiguity in the terms of the
contract which might give rise to dispute between the parties and thus, such
terms should be properly interpreted.
Another area of
the artist-label relationship in which disputes arise frequently is
infringement and ownership issues after the determination of the artist -record
label contract.
THE NEED TO INSERT AN ARBITRATION
CLAUSE IN AN ARTIST-RECORD LABEL CONTRACT
The artist-record
label contractual relationship in entertainment industry is a very peculiar one
with characteristics which has made arbitration very desirable as a method of
resolving disputes arising from this relationship. The need to always insert an
arbitration clause in the artist-record label contract cannot be
over-emphasized as disputes must always be envisaged while drafting a contract
and the means to resolve such when it arises must be properly provided for.
WHY IS ARBITRATION DESIRABLE?
Due to the nature
of the Artist–Record label contracts, arbitration is well suited as the method
for resolving disputes arising thereof for the following reasons:
Expense/cost
The financial
implication of every action is always very important in business. The
Record labels and the artists are in the music industry for business and as
such, should naturally go for a less expensive but effective option of
resolving disputes when they arise. It is also common for an artist or even a
record label to lack the financial strength needed to carry through with a lengthy
lawsuit.
Arbitration costs
generally are significantly low and predictable if compared with that of
litigation. Trial-related matters which consume time and money such as
extensive evidentiary issues, proposed findings of fact, endless authentication
of documents, qualification of experts, cumulative witnesses are more limited
in arbitration than in litigation. Hence, Attorneys’ fees and other expenses
are minimized in arbitration.
Technical
expertise
Entertainment
matters often involve complex legal issues and technical industry concepts,
which may be difficult for a Judge to understand. Arbitration provides the
parties with the option to select ADR professionals with substantial experience
in entertainment and intellectual property matters.
By selecting
neutrals with unique practice area-specific experience, the parties can save
time by not having to educate Judges and jurors with little to no knowledge of
the industry and the law[4].
Confidentiality
and Public Perception
Publicity of
ongoing disputes between labels and artists may contribute negatively to the
public’s perception of the music industry. The consumers may have less respect
for record companies or the artists.
Confidentiality
is usually maintained during arbitration proceedings and the award is always
being delivered only to the parties, counsel and any applicable organization.
Arbitration guarantees the privacy of the disputes which in turn prevents any
form of negative publicity that may be generated if such were publicized.
Preserving
the Relationship
Since so many of
the disputes between artist and their record labels arise during the actual
contractual relationship, it is important to have an effective means of
resolving those disputes, while still maintaining a good relationship[5].
Properly
conducted arbitration provides a means to work out any issue while still
permitting the parties to preserve, build or re-establish good working and
personal relationship.
Time
In the music
industry, there are always deadlines and public expectations to meet. Hence,
time is always of essence and also very critical. Whenever a dispute arises
from the contractual relationship between an artist and a record label, a less
time consuming method of resolution should be employed as time is always very
crucial.
Arbitration
offers a quick process of resolving disputes. Several reasons explain the
saving of time associated with arbitration: it is always governed by few and
less stringent rules of evidence; the parties have greater control over the
speed and length of the proceedings; it is less susceptible to multiple
proceedings; and an arbitral award is generally not subject to subsequent
judicial review. In a nutshell, Arbitration provides a fast method of obtaining
a final and binding resolution of a dispute.
CONCLUSION
It is worthy of
note that arbitration’s objective is to provide a fair, faster, lower-cost,
party-structured method for the full and final disposition of disputes by a commercially
experienced neutral person, in a private and more relaxed atmosphere, with
confidentiality of the process and the award, which may preserve or enhance the
parties’ relationship despite the dispute[6].
Hence,
Arbitration preserves the artist-label good working relationship, improves the
music business and subsequently, the quality of music produced. This is
beneficial for record labels, artists as well as the consuming public and as
such, arbitration is well-suited to resolve artist-label disputes and
therefore, quite desirable.
REFERENCES
2 Sander H.
Gibson C.ARB, MCI ARB (2015): Advantages and Disadvantages of
Commercial Arbitration: Arbitration In The Canadian Film & Tv Industryretrieved
from http//www.sanderhgibson.com/englishsite/arbitrator assessed on 29th June,
2017.
3 Bello Adesina
Temitayo (2014): Why Arbitration Triumphs Litigation: Pros Of Arbitration;
Singaporean Journal Of Business Economics, And Management Studies Vol.3, No.2,
2014
[3] Kaleena Scamman (2008):
ADR In The Music Industry: Tailoring Dispute Resolution To The Different Stages
Of The Artist-Label Relationship; Cardozo Journal of Conflict Resolution, 10
(fall) 269-304 retrieved from http://cardozojcr.com/vol10no1 assessed on 29th June,
2017
[4] Jeffrey Grubman (2013):
Taking advantage of ADR in the entertainment industry: IP cases in the
entertainment industry are great candidates for mediation and arbitration;
INSIDECOUNSEL.COM: Business Insights For Law Department Leaders (April 16,
2013)
[5] Kaleena Scamman (2008):
ADR In The Music Industry: Tailoring Dispute Resolution To The Different Stages
Of The Artist-Label Relationship; Cardozo Journal of Conflict Resolution, 10
(fall) 269-304 retrieved from http://cardozojcr.com/vol10no1 assessed on 29th June,
2017
[6] Sander H. Gibson C.ARB,
MCI ARB (2015): Advantages and Disadvantages of Commercial Arbitration:
Arbitration In The Canadian Film & Tv Industryretrieved from http//www.sanderhgibson.com/englishsite/arbitrator assessed
on 29th June, 2017

Adejorin D. Abiona

Associate Attorney |
Writer | Public Speaker 


Ed’s Note – This article was first published here


Photo Credit – www.musiclawupdates.com  
Senator Ashafa Decries Jungle Justice While Commending Ikorodu Residents For Resisting Badoo Cult Group

Senator Ashafa Decries Jungle Justice While Commending Ikorodu Residents For Resisting Badoo Cult Group

by | Jul 7, 2017 | Uncategorized

The Senator representing Lagos East in the
Senate, Senator Gbenga Ashafa has through a press statement he released via his
social media feeds decried the rising incidents of jungle justice in the
Ikorodu area of Lagos East Senatorial District.

News of reported incidents of lynching and
in some cases outright killing of suspected members of the Badoo Cult group,
terrorizing the community hit the airwaves in the past few days. With some of
the victims identified as innocent law abiding members of the society.
In the statement, Senator Gbenga Ashafa
commended the people of Ikorodu for saying no to the existence of the group
within their community. In his words, “I must I commend the resilience of the
Ikorodu people who have unequivocally said NO to the presence of such a
nefarious group within the Ikorodu community. Also, I commend the efforts of
the Government of Lagos State ably led by Governor Akinwunmi Ambode, in
conjunction with Commissioner of Police, Lagos State, various vigilante groups
including the Oodua Peoples Congress and the Onyabo who have mobilized with the
police to flush out, neutralize and prosecute as many of such criminals as
exist within the Ikorodu environment.”
Ashafa however condemned the incidents of
jungle justice, stating that, “Unfortunately, I have also received the news
that in the process of resisting the members of the Badoo Cult group, the
residents of Ikorodu have taken the laws into their hands and resorted to
jungle justice. In some instances as reported, people have been arrested and
lynched to the extent of being burnt to death. This is absolutely unacceptable;
it is against the tenets of humanity and justce.”
He concluded by urging the people of
tIkorodu and its environs to remain law abiding wile staying vigilant and alert
in the face of rising insecurity, stating that “As the people of Lagos East, we
must continue to be civil and law abiding in all we do. While our disposition
in the face of rising insecurity must be that of vigilance and alertness, I
strongly believe that we must channel all our suspicions through the
appropriate channels for arrest, rather than taking the laws into our hands.”
“Lagos East boasts of the most noble,
enlightened, industrious, intellectually advanced and law abiding people. We
cannot in 2017 allow ourselves to be returned to the primitive days of jungle
justice because most often than not mob actions result in wrongful punishment
for innocent citizens like you and I.

TRAINING – Finance Skills For Lawyers via @oaco_accounting

TRAINING – Finance Skills For Lawyers via @oaco_accounting

by | Jul 6, 2017 | Uncategorized


Lawyers play a very important role in the
financial world, but often have little or no knowledge in finance. This
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KEY BENEFITS:
By attending this program, you will
·        
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Be
able to ask the right questions from your client, and from other financial
advisors – accountant and investment advisors etc…
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Improve
your understanding of current financial market development and trends.
COURSE OUTLINE
Financial Basics
·        
Financial
Accounts
·        
Balance
Sheet, classification and ratios
·        
Profit
and loss Account, classification and ratios
·        
Statement
of Cash Flow
·        
Working
Capital
Understanding Cash flow
·        
Introduction
to cash flow
·        
Computation
of ratios
Valuation and Cost of Capital
·        
Introduction
to valuation methods
·        
Discounted
Cash Flow valuation
·        
Cost
of Capital
Time Value of Money
·        
Time
value of money and implication in the corporate world
·        
Discounting
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Annuities
TRAINING
INFORMATION
DATE: 10th -11th August,
2017.
TIME: 9am to 5pm Daily
DURATION:  2 Days
VENUE:  Lagos Chamber of
Commerce and Industry-Conference and Exhibition Centre, Alausa, Ikeja,
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FEE:    30,000.00
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closes July 30, 2017. Registration before July 13, 2017 attracts 10% discount.
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Make Payment or Transfer into OACO PROFESSIONAL
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Street, Off Salvation Road, Opebi, Ikeja, Lagos.