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Why Draft A Shareholders Agreement? – Busayo Adedeji

Why Draft A Shareholders Agreement? – Busayo Adedeji

by | Jan 19, 2017 | Uncategorized


The whole essence of a Shareholders Agreement (“SHA”) is to govern the relationship
between shareholders and to serve as reference point in the running of a
business, should a dispute arise.

While drafting, a SHA is not a statutory
requirement for companies, its importance cannot be overemphasized as the
existence of an SHA can save the company a couple of millions in legal fees in
case of disputes, as it is easier to prove the contents of a written executed
agreement than verbally agreed terms.
“Generally, a Shareholders’ Agreement will set out matters such as the
way the shares are allocated, what remuneration the shareholders will receive,
what power the directors have in respect of replacing or appointing new
directors, transfer or sale of shares, sale of the company, how new
shareholders are appointed etc. There is no real checklist as to what should be
contained in the Shareholders’ Agreement but it is advisable that anything
agreed between the shareholders’ is documented in the Shareholders’ Agreement.”[1]
Format of a SHA
There is no prescribed format an
SHA should take, but individuals are advised to consult legal practitioners to
draft the SHA which will be tailored to meet the needs of the shareholders as
well as their business needs.
Contents of a SHA
While the following is not an
exhaustive list of contents of a SHA, a SHA should contain provisions as to the
following:
1.    
The steps and
action to be taken in the case of death or incapacity of a shareholder;
2.    
Stipulate the
means of dispute resolution amongst the shareholders;
3.    
Set out mode of transferring
shares. What share transfer are allowed? Are shareholders to have first right
of purchase?and
4.    
Protection for
minority shareholders.
Finally, while business may incorporate and put on
hold the drafting/execution of a SHA, the ease the SHA brings to the running of
the business and its evidential value cannot be overemphasized.

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

Photo Credit – www.quora.com

[1]http://www.lawplainandsimple.com/legal-guides/article/what-is-a-shareholder-agreement
BVN, Telecoms and Common Sense by Ahudiya Ukiwe

BVN, Telecoms and Common Sense by Ahudiya Ukiwe

by | Jan 9, 2017 | Uncategorized


The Biometric Verification Number
(BVN) was conceived by the Central Bank of Nigeria (CBN) for the purpose of
curtailing fraud, identification of individuals etc. Basically, what the Social
Security Number is in the USA (and its variant in other advanced climes) is
what the BVN was intended to be.

Upon its introduction, the religious fanatics
likened it to the biblical number of the beast, aka 666, masked to deceive
“God’s children” and made to reject it. The Federal Government
(genuinely or otherwise), convinced that this was the key to eradicate all
shades of corruption made it mandatory for all persons to register for same.
Even though the BVN apparently is
another version of other biometric exercises previously concluded, the Banks
spearheaded the implementation of the BVN directive. Especially given that
without it, persons cannot operate accounts, existing customers cannot access
their funds or obtain (loans and other) financial services. Next came the
adoption of same by the telecoms providers. Even with previous concluded biometric
registrations, users were made to re-register and include their BVNs or risk
being shut out of calls, messages, data and all other services related to the
cyber-world. Repeated messages were sent to customers of the need to register,
both those that had re-registered and those yet to. Personal experience, I was
cut off from the “world” a day after I had successfully re-registered
my BVN with the telecoms that seems to be battling “persistent ill-health”. The
only good fortune that came out of the “accident” was a gift
of over N7,500 worth of airtime. Of
course, that greatly assisted to soothe my aggrieved emotions.
Sometimes, bad things happen to good
people. This was the case of this hitherto telecoms provider of mine. A time
came (recently too) when I was falsely debited for a service I did not request.
Repeated complaints were made (via contact centre, mails, calls) and yours
sincerely was tossed from one unit to the other with no resolution. It took the
fear of the wrath of the Nigerian Communications Commission (NCC), Consumer
Protection Council (CPC) and another agency I fail to recall. Whether or not
the email addresses (which I got online) were valid, they sure produced results
because I was refunded the money deducted from my airtime and even got a bonus!
But we should know when to “pack well” after “fighting the good
fight”. After 12years of fidelity to that network, I ensured I exhausted
the last kobo of my bonus and made the decision to port to the choice network
of the Nigerian youths.
So I walk into one of the customer
centres of this snazzy, effizy
network. I inform one of the staff of what I propose to do and I am told that a
means of identification is required. “What about my BVN?”, I enquire,
“it identifies me”. And therein lies the shocker, “it does not
suffice”, I am politely but firmly informed. I proceeded to ask the staff
what then is the purpose of the BVN registration but he obviously lacked a
cogent response. It probably is not at fault for being unable to assist with an
explanation but the point remains that the repeated biometric exercises
conducted by different government organizations appear to be needless. I fail
to understand why adoption of existing collected data cannot be achieved.
Nigerians have undergone the same processes namely (the very least, twice) at:
the Independent National Electoral Commission (INEC), the Federal Road Safety
Commission (FRSC), Nigerian Communication Commission (NCC). A repeat of a
previous process confirms that the former exercise (and possibly the repeat
exercise) is a waste of energy, human and financial resources.
Following the recent backpedalling of
the Government in the proposed increased data charges billed by the telecom
companies, we should be able empowered and emboldened to question the sense (or otherwise) in the policies
rolled out by the Government and its agencies. Especially when at great
inconvenience.

BY – Ahudiya Ukiwe

Photo – Central Bank of Nigeria
Photo Credit – www.sunnewsonline.com

Ivie Omoregie: Death is Certain! This is Why It Is Important to Have a Valid Will

Ivie Omoregie: Death is Certain! This is Why It Is Important to Have a Valid Will

by | Jan 6, 2017 | Uncategorized


A wise man once said “everybody
wants to go to heaven, but nobody wants to die”. I often find that the way
many people deal with the subject of death ironic; many children find it
difficult to discuss the topic with their parents, and the same sometimes
applies to spouses.


I cannot stress enough the
importance of estate planning, and its role in reducing the stress associated
with the death of a loved one. There are several estate planning techniques.
These include: life insurance policies, trusts, gifts, retirement pension plans
and wills.

This article shall focus
on the importance of making a valid will.

Whose Will Is It
Anyway?
A person is said to have
died ‘intestate’ where he has failed to make a valid will during his
lifetime – as well as also failing to use any other legal means to transfer his
property to his heirs or next of kin. Where this is the case, the applicable
state laws will determine what happens to the estate of the deceased. This may
be either customary or statutory laws.

Customary practices vary
from region to region. I am sure everyone has watched that Nollywood movie
where the husband dies and family members immediately come in to take
possession of all the guys properties, kicking out his wife and infant children
in the process.

A friend of mine is from a
very wealthy and very large Nigerian family. His father has many children with
several women. On day we were chatting and I randomly enquired if he had ever
asked his father about having a will, his reply was “so that he can insult
me and say I am the greedy child that is trying to kill him because of property
abi…. please I cannot ask him that kind of question”.

I found it quite strange.
The need to have such a conversation was glaring in light of the fact that it
was a polygamous home; yet, most people would rather not have the conversation
because it made them feel “uncomfortable”.

The blunt truth is, even
the most united siblings are likely to bicker as a result of a wealthy parent
dying intestate. This is then amplified where there are many children from many
women, all of whom have presumably equal rights to the estate.

A will is a very important
estate planning tool, as it determines who inherits assets and valuable
properties upon death. Aside from this, and more importantly, it caters for who
will take care of orphaned children, if any, and exactly how the burial is to
be arranged. Many people do not appreciate the damaging effect on the family if
a loved one dies intestate; aside from discrepancies as to the distribution of
the deceased’s personal estate, I have witnessed an instance where the family
of the deceased disagreed as to where they should bury their loved one, country
of origin or country where all of the children and grandchildren resided.

Requirements for A
Valid Will
The following are key
elements to a valid will: –

1. The person making the
will must be of the legal age to do so, various state laws prescribe the
applicable ages, for lagos state this is 18 years. However, exceptions are
applicable to seamen, soldiers and mariners;

2. The will must be in
writing, however oral wills for seamen, soldiers and marines are valid;

3. The testator must be of
sound mind, both at the time of giving the initial instructions and at the time
of executing the will;

4. The testator must have
acted of his own free will in making the will, evidence to the contrary, will
render the will invalid;

5. The document must be
signed by the testator personally, or may be signed by another party in the
presence of the testator and under the testators direction, rules applicable to
illiterates and severely disabled persons will apply here; and

6. The testators signature
must be acknowledged by 2 witnesses, who in turn must also sign the document in
the presence of the testator.

Grant of Probate Vs
Letter of Administration
An administrator of an
estate derives his/her power form the Letter of Administration which is
obtained by an application to the court. Letters of Administration are granted
in instances where the deceased died intestate.

Where the deceased had a
valid will at the time of his/her demise an executor would have been identified
in the will. The grant of probate ratifies the functions and the powers of the
executor, usually by reaffirming the contents of the will, and clarifying grey
areas, if any.

Although an executor of a
will may deal with the estate immediately upon the death of the testator, the
ability of an executor to continue to act, is dependent on the grant of
probate; he/she may not perform certain acts without same. This is not the same
in the case of administrators. By law, an administrator derives his/her powers
from the Letter of Administration and thus may only act upon the grant of same.
The exception to this general principle is where these actions are for the
interest and benefit of the estate – in which case they will be correlated back
to the date upon which the deceased died, and validated by the courts.
Key Points to Note
a. When deciding on
possible custodians for minors, the chosen guardians should be informed of the
decision beforehand to determine if he/she is willing and suitable for the role;
b. The legal spouse of a
person who dies intestate is entitled to one third of the entirety of the
estate, after the deduction of funeral expenses, with the remainder two thirds
being shared equally amongst the children of the deceased;
c. There is no legal
distinction between children born in wedlock and outside of wedlock. Children
born out of wedlock are legal beneficiaries of the estate of their late father,
and thus entitled to a share equal to that of children born under any legal or
customary marriage, whether or not the marriage was subsisting at the time of
the child’s birth;

d. All persons with an
interest in the intestate estate of a deceased person may apply for letters of
administration in regards to that estate, inclusive of siblings, uncles/aunts,
cousins and children born out of wedlock; however, the statutory maximum is 4
persons. On the basis of the evidence submitted and with due regard to the
rights of all persons interested in the estate, the courts will have discretion
as to who these letters of administration are granted to; and

e. Where children born in
wedlock fail to acknowledge the rights of children born out of wedlock, this
may lead to the nullification of any Letters of Administration which might have
been obtained without their input, knowledge or participation.

Conclusion
Death is the only
certainty in life and so it is a subject which should be addressed and well
catered for; many people have allowed their fear of death to hinder their
ability to plan appropriately for it.

Please note…… the making
of a will does not lead to death.

I must stress the
importance of updating one’s will periodically, especially in instances where
there might have been substantial changes such as a divorce, a marriage, a new
birth or fluctuations to the initial financial disposition of the testator.

There is no point having a
will if the majority of your newly acquired “Buhari Wealth” is not
reflected in the document.

Ivie Omoregie 

Ivie is a commercial
lawyer, with experience and keen interest in projects and transactions work
within the Sub Saharan African region. She is called to practice in England and
Wales and Nigeria. Her core practice areas: include – all aspects Corporate
Commercial; Corporate Governance, Risk and Compliance; Financial services and
Banking; Infrastructure and Projects; Venture Capital, Private Equity and
Alternative Investment (including Fund Formation and Administration) ; Public
Procurement; Natural Resources; Telecoms, Technology and Media; Agribusiness;
Manufacturing and Construction.
A Review Of The Maritime Sector In 2016 | Osinuga Damilola

A Review Of The Maritime Sector In 2016 | Osinuga Damilola

by | Jan 6, 2017 | Uncategorized

The
year 2016 was indeed a very tough year for the Maritime Sector. There has not
been a more tumultuous year than the year 2016 for the maritime sector,
especially the container shipping sector. Even the infamous recession and
depression of the year 2008 fades in comparison to the challenges faced in the
maritime sector for the year 2016.

 


The
year 2016 was quite unpredictable in relation to the shipping industry. There
were a lot of activities (both negative and positive) within the Top 10
Container Lines. 

It
has also been a year that has witnessed a lot of spectacular and unprecedented
events such as the collapse of Hanjin Shipping. This grabbed the headlines for
many reasons and caused momentary wide-spread panic in the container shipping
sector. It also increased speculation that other lines may suffer the same fate
and go bust. However, quite fortunately, the panic and speculation appears to
have settled with confidence regained in the sector. 

2016
was also a year of consolidation. During the year in question, we witnessed
mergers of the following companies: 
  • The merger
    of China Shipping Container Lines and Cosco Container Lines which is envisaged
    will bring the total vessel to be owned by China Cosco Shipping Corporation
    to Eight Hundred and Thirty-Two (832) vessels, almost three times those
    owned by Maersk Line. 
  • The merger
    of Hapag-Lloyd AG (Hapag–Lloyd) and United Arab Shipping Company S.A.G.
    (UASC). 
  • The
    announcement of an impending merger by three (3) major Japanese carriers –
    Mitsui O.S.K. Lines (MOL), Nippon Yusen K.K. (NYK Line) and Kawasaki Kisen
    Kaisha (“K”Line).
We
also witnessed the acquisition of:
  • CMA CGM
    acquired Singapore-based Neptune Orient Lines, parent of APL;
  • Whilst
    Maersk Line have also announced that it has reached an agreement to
    acquire Hamburg Sud.
The
year 2016 also saw most shipping segments, except maybe for tankers bottoming
out, with historically low levels of freight rates and weak earnings. On the
one hand, the tanker market remained strong mainly due to the consistent drop
in oil prices. whereas on the other hand, in the container segment, there was a
steady decline in freight rates notwithstanding the short lived increase in
freight rates following the collapse of Hanjin Shipping.

The
container market continues to struggle with weak demand due to many of the
behemoth container vessels coming in to the service throughout the year.

Measures
like idling, slow steaming, consolidation, restructuring of alliances,
integration etc have not slowed down the falling market.

The
Nigerian Market
Just
like the international market, 2016 is a year stakeholders would want to forget
in a hurry.

The
year started off with the nagging foreign exchange crisis. All stakeholders
such as importers, shipping companies and other operators waited endlessly for
a lasting solution to be found with the inconsistency and unpredictability of
government policies being the order of the day.

The
industry also suffered as a result of the Central Bank of Nigeria (CBN)
directive in relation to the restriction placed in accessing the official
exchange for foreign currency for the importation of 41 identified items. Cargo
movement also dropped from about 6.3. million metric tonnes in January to about
5 million metric tonnes in November.

There
has been loss in revenue as a result of the reduction in cargo volume. Many
experts have blamed this on anti-trade policies of the federal government. The
current hike in import duty is also not helping matters. It is estimated that
Nigerian ports have lost about 80 percent of their vehicle cargo as a result of
the import duty hike- this has done more harm than good.

The
maritime industry also witnessed some positive developments. The appointment of
Ms Hadiza Bala Usman as the Managing Director of the Nigerian Ports Authority
has brought some long needed reforms to the industry but her efforts has been
unable to totally change the long list of bad trade policies – we hope to see
more changes in 2016. 

2016
is a year every stakeholder in the world wants to forget as soon as possible.
With the economic prediction of 2017 not looking too favorable, stakeholders
can only be optimistic for a better year in 2017. 

Damilola
Osinuga is an Associate in the Shipping and Oil Services practice group of Bloomfield
Law Practice, Nigeria
Ed’s Note – This article was originally published here.

Photo Credit – www.mot.gov.sg

Defences to Defamation | by Simileoluwa Owotomo

Defences to Defamation | by Simileoluwa Owotomo

by | Jan 6, 2017 | Uncategorized


1.     INTRODUCTION
According to the Black’s
Law Dictionary, “Defamation” means “Holding up of a person to
ridicule, scorn or contempt in a respectable and considerable part of the
community; may be criminal as well as civil”. It states further that Defamation is the
unprivileged publication of false statements which naturally and proximately
result in injury to another.


A communication is
defamatory if it tends so to harm the reputation of another as to lower him in
the estimation of the community or to deter third persons from associating or
dealing with him. The meaning of a communication is that which the recipient
correctly, or mistakenly but reasonably understands that it was intended to
express.

It is important to note
that Libel and Slander are both methods of Defamation, the former being
expressed by print, written pictures or signs: the latter by oral expressions
or transitory gestures Defamatory Statements may consist of libel (written
publication) and slander.

From the following, it is
important to note the integrals of libel and the integrals of slander. There
are three constituents of libel, namely:

(a) Publication
(b) Whether the words
complained of were published by the defendant; and
(c) Whether the words
referred to the plaintiff. See AFRICAN NEWSPAPER LTD. V. CIROMA (1996) 1 NWLR
(PT. 423) 156 AND UGO V. OKAFOR (1996) 3 NWLR (PT. 438) 542.

 The apex court held
in NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) 285, 297-298 PER OBASEKI, JSC that, “By
publication is meant the making known of the defamatory matter to some persons
other than the person of whom it is written ….It is the reduction of libelous
matter to writing and its delivery to any person other than the person
injuriously affected thereby that is publication. The name of the person to
whom delivery of the libelous document was made must be pleaded”.

The constituents of
Slander, on the other hand are;
a)     a
false and defamatory statement concerning another;
b)    an
unprivileged communication;
c)     fault
amounting at least to negligence on the part of the publisher and;
d)    either
actionability of the statement irrespective of harm or the existence of special
harm.
In AYUBA v. SULE (2016)
LPELR-40263(CA) it was held that “The first requirement that is
essential in slander is malice. To succeed in a case of
slander, the plaintiff must prove-the words spoken, communication of the words
to a third person, falsity of the communication against the plaintiff, damage
must be proved except the slander is actionable per se, the actual words spoken
should be reproduced in the language spoken with an English translation. See
AMAHAGWU V. NGWOKOR (2004) ALL FWLR (PT.219) 1091 AT 1098, YESUFU V. GBADAMOSI
(1993) 6 NWLR (PT.299) 363.

 In THE SKETCH
PUBLISHING CO. LTD. AND ANOR. V. ALHAJI AZEEZ A. AJAGBEMOKEREF(1989) 1 NWLR
(PT. 100) 678I , the word defamation is defined as “a
statement which if published of and concerning a person, is calculated to lower
him in the estimation of right thinking men or cause him to be shunned or
avoided or to expose him to hatred, contempt, or ridicule or to convey an
imputation on him disparaging or injurious to him in his office, profession,
calling, trade or business.”

According to a plethora of
decided cases, it has been held that in order to succeed in an action for
defamation, a plaintiff must prove that the libel or slander has been
published, that is communicated to some other person or persons other than the
plaintiff himself. See UGO V. OKAFOR (1996) 3 NWLR (PT. 438) 542 AT 560.. SEE
ALSO OKPARA V. UMEH (1997) 7 NWLR (PT.511) 95 AT 98

2.     DEFENCES
TO DEFAMATION
In BEKEE & ORS V.
BEKEE (2012) LPELR-21270(CA) Per ONYEMENAM, J.C.A. P. 20, paras. D), it was
held that the defences which can be raised by anyone who is sued for
defamation;
“Beyond what I have
stated above, libel and slander share common defenses. Accordingly, anyone who
is sued for defamation can raise any of the following defenses:
-That the alleged wrong
doer was not the publisher of the statement;
-That the statement did
not refer to the alleged victim;
-That the statement’s
meaning was not defamatory;
-That the statement was
true;
That the statement was fair
comment on a matter of public interest.
-That the statement was
made in the heat of an argument.”

In ONWURAH & ORS v.
NWUMEH & ANOR(2016) LPELR-40304(CA) Per OGUNWUMIJU, J.C.A. (P. 16, Para.
C), the defences to the tort of defamation were succinctly stated as follows:

“There are a
number of defences available to a claim of defamation which includejustification, fair
comment, privilege which may be either absolute or qualified.“
From the above, one can
deduce that the defences to defamation are the following;

1)     JUSTIFICATION
2)     FAIR
COMMENT
3)     PRIVILEGE
I shall discuss these
defences below

1)     JUSTIFICATION
According to the Black’s
Law Dictionary, “Justification’ is defined “explanation with
supporting data. A maintaining or showing a sufficient reason in court why the
defendant did what he is called upon to answer, particularly in an action of
libel…”

In ANYAH V. A.N.N. LTD.
(1992) NWLR (PT. 247)319 (1992) 7 SCNJ 47.it was held that;
“”Under a plea of
justification, the onus is on the defendant to show that the alleged libel is
true; in fair comment the onus is on him to show that the facts commented on
are acknowledged to exist or are true. If the defendant brings evidence to
prove the facts commented upon to be true or acknowledged to exist, the
plaintiff should be entitled to produce evidence that they are neither
acknowledged nor true. But he cannot divide his proof, bringing forward part of
his evidence in the first instance and more in reply.

However, it is important
to note that the defence of justification is only relevant only were
publication is proved and libel is established. SEE AYENI V ADESINA (2007) ALL
FWLR (PT. 370) 1451 AT 1476 – 1477 PARAS. H – A (CA).

A defence of justification
is therefore a complete bar to any relief sought by a party who complains of
defamation. It is appropriately described in the Latin maxim:damnum absque
injuria“. Until it is clearly established that an alleged libel is
untrue, it will not be clear that any right at all has been infringed: See
REGISTERED TRUSTEES OF AMORC V. AWONIYI (1991) 3 NWLR (PT. 178) 245 AT 257.

It is important to note
that whenever a defence of justification or qualified privilege is raised in a
case of libel, the party raising the defence is understood to be admitting that
he published the words complained of but contends that the words published are
true and he is therefore not guilty of defamation. At common law, under a plea
of justification, the defendant must prove the truth of all the material
statements in the libel. There must be a substantial justification of the
libel. See: DUMBO & ORS. V. IGBUGBOE (1983) ALL NLR 37; (1983) 2 SC 14; AYENI
V. ADESINA (2007) ALL FWLR (370) 1451 @ 1471 E.” Per KEKERE-EKUN, J.C.A
(Pp. 48-49, paras. G-C).

2)     FAIR
COMMENT
According to the Black’s
Law Dictionary, Fair comment is “ a term used in the
law of libel applying to statements made by a writer in an honest belief of
their truth, relating to official acts, even though the statements are not true
in fact”. Defense of fair comment is not destroyed by circumstance that jury
may believe that the comment is logically unsound but it suffices that a
reasonable man may honestly entertain such opinion, on facts found.”

Fair Comment must
be based on facts truly stated, must not contain imputations of corrupt or
dishonourable motives except as warranted by the fact, and must be honest
expression of writer’s real opinion.

In OKOLIE V MARINHO (2006)
15 NWLR (PT. 1002) PG.338 PARAS. A-B, it was held that “Fair comment is
available only in respect of expressions of opinions which are based on facts
which are proved true and on statements of fact not proved true but which were
made on a privileged occasion.”

In G. CAPPA LTD v. DAILY
TIMES OF NIGERIA LTD (2013) LPELR-22028(CA), it was held that “…..when
a Defendant avers as his defence that the comment is a fair one, he is saying
no more than that the story was based upon true facts, which were in existence
when the comment was made – see Basorun v. Ogunlewe (2000) 1 NWLR (Pt.640) 235,
wherein it was further explained that-

“This is so because
before a comment can be said to be fair the truth of the facts upon which it is
predicated must first be established – – – For the law does not permit a person
to invent untrue facts or stories about a man and then comment upon them. In
other words, the defence of fair comment will avail the Defendants if they can
show that they had only, in good faith expressed their opinion based on facts
truly stated on a matter of public interest”.

In MAKINDE & ORS. V.
OMAGHOMI (2010) LPELR-4461(CA), it was held that “In order that a
Defendant will be availed of defence of fair comment, the following conditions
must be present:-
(1) It must be based on
facts truly stated;
(2) It must be honest
expression of the writer’s real opinion;
(3) It must not contain
insinuations of corrupt or dishonourable motives on the person whose conduct or
work is criticized save in so far as such imputation warranted by facts. See:-
DAVIS VS. SHIPSTONE (1886) 11 APPEAL CASES PAGE 29.” PER BAGE, J.C.A.(P.
21, PARAS. C-G)

Thus, it is important to
state that a plea of fair comment succeeds as defence if the facts relied on by
the defendant are sufficient to justify the statement or publication that the
plaintiff finds to be libelous. The facts must be the truth. See AKOMOLAFE
& ANOR. V. GUARDIAN PRESS LTD & 3 ORS. (2010) 1 SC (PT. I) P.58

3)     PRIVILEGE
According to the Black’s
Law Dictionary, Privilege is an exemption from
liability for the speaking or publishing of defamatory words concerning
another, based on the fact that the statement was made in performance of a
political, judicial social or personal duty.

Privilege is either
absolute or conditional. The former protects the speaker or publisher without
reference to his motives or the truth or falsity of the statement. This may be
claimed in respect, for instance, to statements made in legislative debates, in
reports of military officers to their superiors in the line of their duty, and
statements made in legislative debates, in statements made by judges,
witnesses, and jurors in trials in Court.

Conditional or Qualified
Privilege will protect the speaker or publisher unless actual malice and
knowledge of the falsity of the statement is shown. This may be claimed where
the communication related to a matter of public interest or where it was
necessary to protect one’s private interest and was made to a person having an
interest in the same matter.

In NIGERIA TELEVISION
AUTHORITY V. EBENEZER BABATOPE (1996) 4 NWLR (PT. 440) 75 AT P. 6 UWAIFO, JCA
(as he then was) said
“Qualified
privilege is a defence to an untrue publication. It can only be claimed however
when the occasion of the publication is shown to be privileged.”
In PULLMAN V. HILL LTD.
(1891) 1 QB, it was held that “An occasion is privileged when the
person who makes the documentation has a moral duty to make it to the person to
whom he does make it and the person who receives it has an interest in hearing
it. Both these conditions must exist in order that the occasion may be
privileged.” See also ILOABACHIE V. ILOABACHIE (2005) 13 NWLR (PT.943)
69 (2005) 5 S.C (PT II) 149

In FBN PLC & ANOR V.
ABOKO(2005) LPELR-7494(CA) Per ADEREMI, J.C.A. P. 19, Paras. B-F) it was stated
as follows;

From the above discourse,
it seems to me that three elements of qualified privilege emerge and they are:
“(1) The occasion for
making it must be fit.
(2) The matter must bear
reference to the occasion, and
(3) The words complained
of must be published from right and honest motives.”See Horrocks v. Lowe
(1975) AC 135. I pause to say that any privilege that attaches to an occasion
on which defamatory words are published by one person to another is the
privilege of the publisher alone. The person to whom it is published needs no
privilege, as he commits no tort. It follows that, a defence of qualified
privilege, if it is not characterised by gross and unreasoning prejudice, is a
complete defence. “
In bringing an action for
defamation where such statement was made on an occasion of qualified privilege,
there must exist defamation where such statement was made on an occasion of
qualified privilege. Where the defence of qualified privilege or fair comment
is pleaded, and the plaintiff has served a reply alleging express malice, the
condition of mind of the defendant when he published the words is a matter
directly in issue See ATOYEBI V. ODUDU (1990) NWLR (PT.157) 384(1990) 9-10
S.C 150 PER OLATAWURA, J.S.C. (P. 21, PARAS. D-E).

It is pertinent to note
that where defamatory words are published more extensively than the occasion
requires, or maliciously published, the defence of privilege or fair comment
are forfeited. See Saraki v Soleye (1972) 2 UILR 271; Oweh v Amalgamated Press
of Nigeria Ltd (1957); Aruna v Taylor( 1977); Okon v The C.O.R Advocate Ltd
(1961)
3.     CONCLUSION
From all that has been
stated above, one must note that in order to succeed in action against
defamation, the essential elements of the defence must be strictly adhered.
Simileoluwa Owotomo.

Simileoluwa is an Associate at Ayodele, Olugbenga & Co.


sowotomo@yahoo.com   


 Posts and
comments by the publisher of this legal article do not constitute legal advice
or create an attorney-client relationship.

Ed’s Note – This article was originally published here. 
Five New Year Resolutions For Nigeria | By Ayo Sogunro

Five New Year Resolutions For Nigeria | By Ayo Sogunro

by | Jan 3, 2017 | Uncategorized

January 1, 2017. Some
things will not change. For example, the president will give his New Year
speech. In this episode, he will likely congratulate his administration for a
successful war on corruption and the big savings made from recovered loot and
plugging leakages in 2016. He will congratulate Nigerians and the army for a
successful war on terror: rescuing some of the Chibok Girls and capturing the
Sambisa forest. With typical optimism, he will encourage Nigerians to be
resilient in the face of economic recession (which—he will reassure us—will
definitely, definitely end this year). In short, New Year or not, some things
remain unchanged.


On the other hand, some
things ought to change. By general consensus, 2016 was a terrible year
globally. It was also a bad year for a lot of individuals too. But, whatever
metaphysics may surround the horrible nature of 2016, our disposition
compounded the social effects for us in Nigeria. If Nigeria is going to have a
better 2017, we need to take a long and hard look at ourselves and adjust
attitudes that hinder our social growth. This is not for the government—the
government, as structured, is inherently useless—but for us as a society, even
if only in name.

And so, I have compiled a
list of 2017 Resolutions for Nigeria.

1.    
Start giving more value to Nigerian
lives: Personally, I am unmoved by geographical
nationalism. Misguided patriotism plays into the hands of those who seek to
limit human movement and progress by geography. I believe, instead, that all
life is valuable, irrespective of nationality. Unfortunately, we live under an
international law that prefers to deal with individuals through their national
identities. As some 180 million of us are stuck with the Nigerian identity, no
other country is going to protect our lives. Rather, the value of our lives
will be determined by how we ourselves treat it. And so, if soldiers kill
citizens and we simply move past it, then that indifference is the value of our
lives. But we cannot expect the best from citizens when their lives have no
value. Forget the “Change Begins With Me” jingoism and its ersatz patriotism:
there is no value to being a Nigerian if being a Nigerian is not a protection
against anything.

2.    
Start developing the people, and not
just the cities: Our Nigerian governments spend money. We
spend money on infrastructure, on vehicles, on computers, on building a
website. We just don’t struggle as much to spend money on people. We build
schools, but we disregard teachers. We buy police cars, but we pay police
officers in peanuts. We build hospitals, but we ignore doctors. We build
shopping malls, but we ban hawkers. We spend on “things”, but we care little
for people. Our government controls all resources by law and licenses major sectors
of the economy, but our budget has no provision for healthcare, disability, and
unemployment funding. We admire cities in Europe and, instead of studying the
process of social development, we simply want to copy and paste the end
product. No. Build the people, and the people will build the cities.

3.    
Start respecting women and children:
It is a man’s world only because men have been writing the rules of ownership
for a very long time. Africa has never been perfect, but it had many
pre-colonial societies where men, women and children were accorded their
dignity as humans. In these societies, everyone—irrespective of age and
gender—had roles to play in society and government. Unfortunately, political
and religious colonialism has replaced this history with a false culture where
men are alleged to be superior, and women and children are required to be
submissive. Today, women and children have little or no roles in society and
governance. We justify this under “our” colonially developed culture. We need
to introspect. We need to rediscover the African society of tolerance, equal
opportunities, and respect for all. Yoruba ideology calls this Omoluabi. In
South Africa, they call it Ubuntu.

4.    
Stop treating democracy as a tyranny
of the majority: Because our politicians only care about
elections, they have only taught us the “numbers” aspect of democracy. That is,
majority wins. But democracy is more than vote counting. This is why we do not
call a mob action a democratic decision even though it involves a majority. The
difference between democracy and mobbing is the protection of minorities. In a
democracy, numbers only matter in issues of public opinion (example: should we
build schools or buy aircraft). Numbers do not matter in issues of individual
rights (example: should some people be allowed to speak freely). If you find
yourself voting against the rights of a minority, you are doing democracy
wrong. 
5.    
Start treating religion as an opinion:
Religion continues to be a problem in Nigeria only because we cannot stop
ourselves from externalising our religious beliefs. There is nothing bad with
having a religion and observing it. Religion only becomes odious when it is
rubbed in other people’s faces. This externalisation can be done directly
through legally approved or illegal force, or indirectly through social norms
and practices. When the head of an agency puts out a dress code for women,
religion is being externalised. When a man is arrested for blasphemy, religion
is being externalised. When a church service routinely spills into highway
traffic, religion is being externalised. We have to start treating religion as
a matter of individual preference and opinion. Also, our two major religions
were imported: the one through the sea and the other through the desert. Barring
individual and cultural variants, the religion most of us practice is dependent
on our proximity to either sea or desert. If we can draw the conclusion that
imported productivity is capable of destroying the local economy, then we
should be able to see how imported religious philosophies—when externalised—can
damage local cohesion.

Follow @ayosogunro on
twitter for more engagement, buy his books, and—if you really like stimulating, if
sometimes annoying thoughts on socio-legal philosophy—enter your email in the
right sidebar to get notifications of fresh talk on this fine blog.

Ed’s Note – This article
was originally published here
Life of a Lagos Lawyer – Episode 6

Life of a Lagos Lawyer – Episode 6

by | Dec 29, 2016 | Uncategorized


After a quick briefing
with my client, I am about to get in my car when I hear someone calling out “Dlaw,
Dlaw” from behind, I turn around and my heart skips a bit, guess who is pacing
towards me? Omalichanwa, the Ibo girl that broke my heart in the University. We
hug for a few seconds and immediately I get a whiff of her beautiful smell, I
am transported to what I would always remember as one of the most beautiful
times of my life.

I had met Oma at the Food
Market on campus and she was the most beautiful girl I had ever seen. The most
beautiful flower paled to the sight of her. Her body was specially forged by
her maker and her smile seemed to shine like the sun. I had chased this girl
all over campus, trying every chivalrous move I knew but all my efforts were
futile. I was however rewarded one day she had come to eat and forgotten her
wallet. I overhead her mention it to one of our mutual friends and immediately
offered her the sole and only 500 Naira note in my wallet.
That single deed turned
out to be magic, as later in the evening Oma would return my calls for the
first time and also accept my BBM Invite. That was the beginning of a beautiful
relationship or so I thought. Spending time with her or just hearing her talk
was my favourite past time and I would always make time to have her be a part
of my day. But all that changed when Oma decided I wasn’t good enough for her
anymore and called it quits. 
According to her, we were
just friends and she never had the intention of dating me. Just friends! I had
screamed. After having married you and had great grand children in my dreams.
After fantasizing about our life together and looking forward to hearing your
voice every morning. How many of your friends send you a good morning message every
morning and chats with you all day? How many of your friends wants to hold and cuddle
you all day? How many of your friends concern themselves with your happiness every
day? Friends! 
It had taken two weeks of
binge drinking to get over her and a promise not to allow myself fall in love
again. Coupled with days of my heart feeling heavy and countless debates with
myself on whether to call her or not.  Last I heard of her, she was dating an old
school mate of mine and somehow hating her had helped me get over her quickly.
All that was however about to be undone. 
“Hi Dlaw, been a while”.
Yes Oma, I responded. Almost stuttering and bringing myself back to reality.
Compliments of the season, I manage to add. How have you been? “I am great and
it’s s nice to see you”, she adds. “Especially as I am sort of in a fix, My
Landlord has sued me and my lawyer is a no-show, I don’t know what to do and
the matter will be mentioned very soon”.
“Oma, don’t worry, I will
offer my services to you pro bono, which court is it” I am quick to add. If I
can’t represent Omalichanwa, then why did I go to law school or even become a
lawyer for that matter. What would be the purpose of my law degree if I could
not use it in a sacrifice of love.  
So I grab my garb and head
back into court, thinking more of Omalichanwa’s waist and the beads that used
to be there than the facts of her matter which she is trying to bring me up to
speed on. Apparently, Oma’s Landlord had served her a 6 month’s notice 3 months
before the expiry of her rent. However, the Landlord had backdated the letter
to accommodate the mandatory 6 month’s period of notice and had tendered the
back- dated letter in court. Luckily, she had written back to the Landlord
informing him of the date she had received the letter and stating she would
consider the Notice to begin to count from the date it was served on her. 
Unfortunately for the
Landlord, his lawyer had also commenced the suit against Oma before the expiry
of the valid 6 month’s Notice. Piece of cake I figured, I could do this with my
eyes closed. Oma’s matter is called and her landlord’s lawyer goes into a
rendition of his case. After his submissions, the judge looks at me and asks if
I have counter arguments. 
“My Lord” I begin. “It is
the position of the Defendant that this matter was improperly instituted as the
Defendant was not served with a valid Notice to Quit…………Due to this position My
Lord, we will be applying that the suit be struck out for lack of jurisdiction
”. I make my submissions and to our luck the judge decided to write a bench
ruling. “Suit struck out” the judge says and I am pleased to chorus “As the
court pleases”. 
Oma jumps into my arms as
we come out of court. Could it be I am now back to being her hero. “Dlaw, you
are so nice, you were awesome in court, I am so proud of you”, Oma goes on and
on. Just hearing her call my name is music to my ears and all my hate for this
girl who broke my heart just seems to thaw, like Her Volcano just erupted in my
Artic region and all the ice was melting away. She was the Tinashe to my Davido,
the Annie to my Tuface, the Bee to my hive. 
Maybe it was the taste of
victory that encouraged me to jump or walk ahead of my time but I felt this
would be a good time to ask Oma out again. “So Oma dear, would you like to have
dinner with me”. The look in her eyes already showed it was a bad idea. “Oh,
Dlaw, I am so sorry but I have to be at my boyfriend’s place in Maryland for
7.30”. What about tomorrow I say. “Oh sorry again Dlaw, I would still be at his
place”. And next week, I try one last time. “I am sorry Dlaw, but I don’t think
I would be free”. That’s the last thing I heard as she got into her car and
drove off. 
Chai, once again,
Omalichanwa just walked over my heart and turned me to mumu. OMG, I should have
charged her a professional fee I think to myself as I prepare to check into
heart break motel once again. I am driving on the 3rd Mainland Bridge
thinking of the favourite Ibo girl I hate to hate when a car runs into me from behind.
I jump out about to rain fire and brimstone on the culprit, when I see three policemen
alighting from the vehicle and one of them saying “Oga why you jam us, or are you
blind?” Me, jam you! How could I have hit you when I was driving forward and you
hit me from behind. “Oga, let’s go, you will explain it at the station…………
Join us next weekend
for another episode of “Life of a Lagos Lawyer”. An exclusive Legalnaija
series. 
PLESE NOTE: This is
a work of fiction. Names, characters, places and incidents either are products
of the author’s imagination or are used fictitiously. Any resemblance to actual
events or locales or persons, living or dead, is entirely coincidental.
Challenges with taxation system in Nigeria

Challenges with taxation system in Nigeria

by | Dec 29, 2016 | Uncategorized



Introduction
The Nigerian tax system has undergone several
reforms geared at enhancing tax collection and administration with minimal
enforcement cost. The recent reforms include the introduction of TIN, (unique
Taxpayer’s Identification Number), automated tax system that facilitates
tracking of tax positions and issues by individual taxpayers, e-payment system
which enhances smooth payment procedure and reduces the incidence of tax
touts.
The tax authority now has autonomy to assess,
collect and record tax.

This enabling environment which came into being on the
strength of the Act[1][1]
has led to an improvement in tax administration in the country.

However, there are still subsisting challenges in
the Nigerian taxation system, which this brief article seeks to highlight and
recommend possible solutions.
Meaning
of Tax
According to business dictionary, taxation is the
means by which governments finance their expenditure by imposing charges on
citizens and corporate entities[2][2].
Taxation is also the legal demand made by the Federal government or State
government for its citizens to pay money on income, goods and services.
Challenges
Facing Taxation and Possible Solutions
There are so many challenges facing the Nigerian
taxation system, but this paper will be restricted to few of those challenges.
1. Multiplicity
of taxes: This means paying similar taxes on the same or substantially
similar tax base. Examples of multiple taxes include Companies Income Tax,
Information Technology Tax, Education Tax, Nigerian Content Development Levy,
all of which are based on income or profits. Also, Value Added Tax, Sales Tax
and Hotel Consumption Tax all based on sales. Multiple taxes should be
distinguished from numerous taxes which mean many but different taxes on
different tax bases. To address multiple and numerous taxation, approved list
of taxes should be streamlined and adhered to by all tiers of government.
2.     Separate source of income: Section 25(1) of Companies Income Tax Act (CITA)
states that the profits of any company for each year of assessment from such
sources of profits shall be the profits of the year immediately preceding the
year of assessment from each such source[3][3].
Section 27(2) of the same Act
goes further to restrict the losses that may be relieved in any year to the
assessable profits from the trade or business in which the loss was incurred[4][4].
The combined effect of these sections could be interpreted to mean ring fencing
of different sources of income to the effect that losses from one line of
business cannot be used to offset profits from other lines of business by the
same company.
This practice is not equitable
and it seems to punish genuine businesses for incurring real losses. The
separate taxation of income should be abolished in line with global best
practice as many countries have even gone beyond this level to permit group
consolidated tax returns.
3.     Tax refunds:
Although there are specific provisions in the tax laws especially under the FIRS
Establishment Act, 2007 for tax refunds this is yet to be fully functional.
There should be appropriate funds allocated or retained out of tax collection
to cater for tax refunds both at the federal and state levels[5][5].
The FIRS Act requires the tax
authorities to pay a tax payer’s refund claim within 90 days of the application
subject to appropriate audit. These audits are usually slow and time consuming
sometimes running into several years. Fairness and equity requires that cash
refunds be made promptly to deserving tax payers. Failure to pay refund within
the stipulated timeframe should attract commercial interest.
4.     Tax clearance certificate: Taxpayers are required to obtain a tax clearance
certificate (TCC) annually which is often needed to conduct many business
transactions. Tax officials often use this as a tool to harass taxpayers by
bringing up issues outside the period covered or contrary to the provisions of
the law regarding TCC. For instance, the CITA requires that TCC must be issued
within 2 weeks of application otherwise the tax authority must explain. TCC
should be issued automatically within 2 weeks of every new calendar year
provided a taxpayer has no outstanding undisputed tax liability on the last day
of the previous year of assessment.
Conclusion
Taxation
affects investment decisions but the risk is not whether tax would be paid, it
is the uncertainty of what, when, how and how much. Ironically, what businesses
and investors need, as a matter of priority, is not tax incentives; it is the removal of tax
disincentives.
Although
Nigeria has made some improvements to the tax system in the recent past, there
is still a long way to go and the status quo is not an option. If taxes are to
be collected effectively and fairly, both in monetary and equitable terms, for
the benefit of all Nigerians, our desired development will appear achievable;
especially with good leaders.

Osiri Ndukwe
Lagos based legal
practitioner

[1] Section 8(q) of FIRS Establishment Act, 2007
[2]http://www.businessdictionary.com/definition/taxation.html accessed on Thursday, December 29, 2016
[3] Section 25(1) of CITA
[4] Section 27(2) of CITA
[5] Section 23 of the FIRS Establishment Act, 2007
Photo Credit – www.savingadvice.com   
Economic Impact of Migration: Benefit or Burden? BY Osiri Ndukwe

Economic Impact of Migration: Benefit or Burden? BY Osiri Ndukwe

by | Dec 26, 2016 | Uncategorized

Introduction
Migration is a feature of social and economic life across many countries, but the profile of migrant populations varies considerably. In part this is because of the variety of sources of migration. In much of Europe, for example, citizens enjoy extensive rights to free movement. 

In this brief article, I will be looking at the impacts of migration on the economy of a nation. 
Economic Impact of Migration
Migration; benefit or burden, what is the reality? To answer this question, it will be helpful to look at migration’s impact in three areas – the labour market, economic growth and the public purse:
1. Labour markets: Migrants accounted for 47% of the increase in the workforce in the United States and 70% in Europe over the past ten years. They also fill important niches both in fast-growing and declining sectors of the economy. Like the native-born, young migrants are most likely to be better educated than those nearing retirement. Since 2000, immigrants have represented 31% of the increase in the highly educated labour force in Canada, 21% in the United States and 14% in Europe. In Europe, they contribute significantly to labour-market flexibility .
2. Economic growth: Migration boosts the working-age population. Migrants arrive with skills and contribute to human capital development of receiving countries. Migrants also contribute to technological progress . International migration has both direct and indirect effects on economic growth. There is little doubt that where migration expands the workforce, aggregate GDP can be expected to grow. However, the situation is less clear when it comes to per capita GDP growth. First, migration has a demographic impact, not only by increasing the size of the population but also by changing the age pyramid of receiving countries. Migrants tend to be more concentrated in the younger and economically active age groups compared with natives and therefore contribute to reduce dependency ratios .
Second, migrants arrive with skills and abilities, and so supplement the stock of human capital of the host country. More specifically, evidence from the United States suggests that skilled immigrants contribute to boosting research and innovation, as well as technological progress .
3. The public purse: Recent work on the fiscal impact of migration for all Organization for Economic Cooperation and Development (OECD) countries, as well as Australia, Canada and the United States, has provided new and internationally comparative evidence. The study suggests the impact of the cumulative waves of migration that arrived over the past 50 years in OECD countries is on average close to zero, rarely exceeding 0.5% of Gross Domestic Products (GDP) in either positive or negative terms. The impact is highest in Switzerland and Luxembourg, where immigrants provide an estimated net benefit of about 2% of GDP to the public purse. 
Immigrants are thus neither a burden to the public purse nor are they a panacea for addressing fiscal challenges. In most countries, except in those with a large share of older migrants, migrants contribute more in taxes and social contributions than they receive in individual benefits.
This means that they contribute to the financing of public infrastructure, although admittedly to a lesser extent than the native-born. Contrary to widespread public belief, low-educated immigrants have a better fiscal position – the difference between their contributions and the benefits they receive – than their native-born peers. And where immigrants have a less favourable fiscal position, this is not driven by a greater dependence on social benefits but rather by the fact that they often have lower wages and thus tend to contribute less .
Conclusion
It is the belief of many that high-skill emigration causes labour shortages in the country of origin. This however remains unsupported in the academic literature. According to economist Michael Clemens, it has not been shown that restrictions on high-skill emigration reduce shortages in the countries of origin .
Osiri Ndukwe
Lagos based legal practitioner
Photo credit – http://www.caritas.org