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Busayo Adedeji – Corporate and Individual Liability Under The Immigration Act (2015)

by Legalnaija | Aug 29, 2016 | Uncategorized

The immigration act was
recently reviewed/amended and same was signed into law by former president
Goodluck Jonathan before leaving office in 2015. The law (upon signing by the
then president) immediately became effective as the principal law regulating
immigration in Nigeria.

Some of the sections
detailing corporate and individual offences/punishments under the act are
highlighted below:

The act expressly prohibits persons’ order
than citizens of Nigeria from accepting employment anywhere in Nigeria (except
same is offered by the government) without the consent of the Comptroller
General of Immigrations (CGI) being first sought and obtained.[1]

The act
goes further to state “no person other
than a citizen of Nigeria shall on his own account or in partnership with any
other person, practice a profession or establish or take over any trade or
business whatsoever or register or take over any company with limited liability
for any such purpose, with the consent in writing of the Minister”.[2]

The
act states that any person desirous of entering Nigeria shall produce to an
immigration officer consent of the CGI failure of which attracts a fine of One
Million Naira (N1,000,000) or deportation
or both as a prohibited immigrant.[3]

Where a person formerly exempted from the
foregoing provisions of the act ceases to be so exempted, he shall be deemed as
a person seeking entry in to Nigeria for the first time and the foregoing shall
apply to such a person.

The CGI may revoke a permit or reissue it on
such terms and conditions as he deems fit, failure to comply with the
directives of the CGI attracts imprisonment for a term of 5 years or a fine of
Two Million Naira (N2,000, 000) or
both.

Any expatriate
person who fails or neglects to apply for the:

1. Regularization of his stay in Nigeria
within the stipulated period;

2. Renewal of his business visa, transit,
visitors pass, or Temporary Work Permit (TWP); or

3. Renewal of his residence permit after thirty
(30) days of the expiration of same is guilty of an offence and is liable to
imprisonment for a term of three years or a fine of Five Hundred Thousand Naira
or both.[4]

The act expressly prohibits the discharge,
re-designation and change of employment of an expatriate employee without the
consent and approval of the CGI first sought and obtained. The implication of
this is the employer, employee and their dependents (if not Nigerian citizens)
being deported and business wound up.[5]

It is an offence under the act to alter,
produce or reproduce a travel document.

The act also makes provisions for punishments
for offences that have not been captured by the act, the punishment in such
cases are imprisonment for a year or a fine of One Hundred Thousand Naira (N100,000), in the case of the offender
being an agent the punishment shall be imprisonment for ten years or a fine of
Two Million Naira (N2,000,000).

It is pertinent to state
that the new immigration regime under the new CGI has shown zero tolerance for
issues relating non-compliance, has investigations and invitations of erring
corporations are the order of the day. Despite the foregoing corporations and
individuals alike should always seek the assistance of an immigration lawyer
when immigration issues arise.

Busayo Adedeji is an Associate in the
corporate and commercial, corporate immigration, employment and labour, banking
and corporate finance practice group of Bloomfield Law Practice; and advises multinational
and local clients on matters such as regulatory compliance, trade unions,
labour and employment, dispute resolution etc.

Email: busayo_adedeji@outlook.com

Image
credits: https://tarrantgreenparty.wordpress.com

[1]
Section 36(1)(a)

[2]
Section 36(1)(b)

[3]
Section 36(2)

[4]
Section 57 (5)

[5]
Section 58

Chukwudi Ofili – Perfection of Security Documents and the Practice of Upstamping in Nigeria

by Legalnaija | Aug 29, 2016 | Uncategorized

In Nigeria, debts are typically secured
through the use of guarantees, mortgages, fixed and floating charges and
pledges of real, personal, tangible and intangible property belonging to the
debtor or a guarantor of the debtor. Security created in favour of a lender for
providing debt financing is documented using different forms of security
documents.

In order to perfect security documents,
such documents must be stamped at the stamp duties office and registered at the
Corporate Affairs Commission (CAC). For certain assets such as real property
which require the consent of the Executive Governor of the state where the real
property is situate, such consent must be obtained to perfect the security
created under such document. The statutory obligation to stamp documents that
transfer or create a proprietary interest in assets is provided for under the
Stamp Duties Act (SDA) with specific emphasis on sections 3, 23 (1) and (4) of
the SDA. In addition, a charge created by a company to provide security to a
lender is void against a liquidator and such lender (as a creditor of the
company) unless it is registered with the CAC within 90 days of creation.

However, in large financing
transactions, the stamp duty payable in respect of a security document could be
very high (and in certain cases, prohibitively so). It is not uncommon
for lenders to a financing to agree that the borrower may pay stamp duty on
only a portion of the secured amount rather than the whole secured amount, with
a further assurance from the borrower that the full stamp duty will be paid on
a future date or upon the occurrence of certain events. This practice is
known as “upstamping”. Until the security document is upstamped, any such
lender is only protected up to the amount expressed to be secured and a lender
may lose priority to any subsequent security granted on the charged assets
during the period between the initial stamping and the full upstamping of the
security document.

The Implication of Upstamping on
Lenders

Neither the SDA nor the Companies and
Allied Matters Act (CAMA), stipulate that a security document that secures a
credit facility must be stamped and registered for the exact amount extended to
a company or person. However, where a security document is stamped for an
amount lower than the facility amount, the lenders will only be permitted to
prove for and realise the security for the secured amount i.e. the amount
for which that lenders has stamped and registered his security. CAMA
recognises the right of parties to commercially structure their transactions
such that the security documents can be stamped for an initial amount and then
subsequently up stamped for an additional amount.

Pursuant to section 202 of CAMA, any
additional amount for which a security document is up stamped will be valid and
effective to the extent of such increased amount. The lenders would only be
permitted to prove and realize the security for the full facility amount or a
higher amount only upon the security document being up stamped (i.e. payment of
additional stamp duty) to cover the facility amount or the higher amount being
sought to be recovered.

Potential Risk to Lenders in Enforcing
Security

There is a risk that prior to the
lenders up stamping the security document for the full facility amount,
intervening third party interests might have arisen (i.e. under other third
party security), thus raising pertinent priority issues where another creditor
has acquired an intervening proprietary interest. If prior to an up stamping to
secure additional amounts, another creditor advances money to the borrower, and
perfects its security interest over the same assets that form the
subject-matter of the lenders’ security, that creditor will rank ahead of the
lenders’ interest as it relates to the subsequent up stamped additional amount
to be secured but lenders will still have priority in respect of original
amounts for which the security was perfected.

Hardening Period

Another risk lenders face in an
upstamping scenario is that an agreement to upstamp to secure additional
amounts, might be viewed as a fraudulent preference in the event of insolvency
of the borrower. See section 495 of CAMA. This “hardening period” rule,
and the resultant effect is that the additional / up stamped security interest
would be void against the liquidator of the borrower and enable the liquidator
claw-back any such payments or cancel such acts. Arguments can be made whilst
referring to decisions of English courts on the fact that a preference is not
fraudulent by essentially showing that the dominant motive for such preference
is not to prefer certain creditors to the detriment of others. It should
however be noted that such arguments are only persuasive to Nigerian courts as
Nigerian courts are not bound by the decision of English courts; they are only
of persuasive authority.

On the flip side, where the dominant
motive was to carry out a pre-existing obligation, or to keep on good terms
with a creditor, it is likely that Nigerian courts will follow English courts
in holding that in such circumstances the preference is a fraudulent
preference. It is important to note that there are no Nigerian law decisions on
this point, however, Nigerian courts are likely to follow English courts on
this point.

Addressing the Residual Risks of
Upstamping

The risks identified above, while
adopting the upstamping regime, can be mitigated by:

1. Establishing an
upstamping regime in the relevant loan documentation;

2. Using a negative
pledge clause restricting the borrower from creating any additional security
over its assets;

3. Using automatic
crystallization provisions in the security documents for floating charges to
crystalise into a fixed charge when there is an attempt to create security over
the assets in favour of a third party; and

4. Establishing a stamp
duty escrow account to hold the balance of the perfection costs to enable
lenders upstamp at will.

The options highlighted in (1) to (4)
above are by no means exhaustive as other options have not been discussed in
this paper.

Chukwudi Ofili is
a Senior Associate in the corporate and commercial, banking and corporate
finance practice group of Bloomfield Law Practice; and advises on matters such
as local and foreign currency syndicated lending, leases
transaction/structured/project finance, structured trade finance, energy and
natural resources, due diligence issues and advisory services, foreign
investment advisory services, taxation and real estate.

Ed”s Note – This article was originally published by the author here.

Supreme Court Rules Igbo girls can inherit property

by Legalnaija | Aug 23, 2016 | Uncategorized

The Supreme Court recently delivered a landmark judgment that will alter the domination, subjugation, discrimination and humiliation suffered by women in Igboland from time immemorial. In the judgment, the apex court voided the Igbo law and custom, which forbids daughters from inheriting their late fathers’ estate. The Court declared that the tradition is discriminatory and conflicts with the provisions of the Nigerian Constitution.

The court held that the practice conflicted with Sections 42(1)(a) and (2) of the 1999 Constitution of the Federal Republic of Nigeria on the fundamental freedom from discrimination granted every Nigerian. The judgment was on appeal marked: SC.22/2014 filed by Mrs. Lois Chituru Ukeje (the wife of the late Lazarus Ogbonna Ukeji) and their son, Enyinnaya Lazarus Ukeje, against Mrs. Gladys Ada Ukeje, the deceased’s daughter.

Gladys had sued the deceased’s wife and son before the Lagos High Court, claiming to be one of the deceased’s children and sought to be included among those to administer their deceased father’s estate. The Supreme Court found that she was a daughter of the deceased and that she was qualified to benefit from the estate of their father who died in Lagos in 1981 without writing a will on how his estate should be shared among his descendants. The Court of Appeal in Lagos to which Mrs. Lois Ukeje and Enyinnaya Ukeje appealed, upheld the decision of the trial court, prompting them to appeal further to the Supreme Court.

In its judgment on Friday, June 1, 2016, the Supreme Court held that the Court of Appeal, Lagos was right to have voided the Igbo Native Law and Custom that disinherited female children.

Justice Bode Rhodes-Vivour who read the final judgment held that “no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from the late father’s estate. Consequently, the Igbo customary law, which disentitles a female child from partaking in the sharing of her deceased father’s estate, is a breach of section 42(1) and (2) of the constitution, a fundamental rights provision guaranteed to every Nigerian.” The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the constitution.

The Anambra State Women Association in Lagos (ASWAL), a socio-cultural organization, comprising women representatives of 177 communities in Anambra State residing in Lagos State, has commended the Supreme Court for the judgment. The Anambra State House of Assembly Speaker Rita Maduagwu, told the ASWAL President Dr. (Mrs.) Nkiru Ifekwem, who led other members of the group to the House that they had already domesticated it.

We commend the Supreme Court for its bold decision, because it is a judgment that is long overdue. Over the years, women have contributed to the development of the society, in some cases more than the men, but when it comes to inheritance they are sidelined. This, naturally, makes them feel inferior to men, which is very unfair and inhuman.

Though a judgment can only give what is sought, we hope a similar judgment on wives’ rights to inherit their husbands’ estate is on the way. Dr. Ifekwem said the verdict meant that every female child in the South-East shall henceforth get a share of their fathers’ and/or husbands’ property, if the deceased had no male child.

We hope that even where the deceased had a male child, a female child would still be entitled to a part of his estate as her inheritance. A wife should get a portion of her husband’s estate as her inheritance as well.

The issue of denying female children inheritance is not peculiar to Igboland. It is practised in many parts of the country. We, therefore, encourage civil society organisations to do more and pressurize State Houses of Assembly to domesticate this judgment and pass it as an edict in every part of Nigeria.

Source- www.dailytrust.com.ng

Osinuga Damilola – Lease as an Alternative Financing Vehicle in Ship Acquisition

by Legalnaija | Aug 18, 2016 | Uncategorized

Acquisition of ships is
fundamental to the shipping business. Notwithstanding the mode of acquisition,
i.e. whether by an outright purchase, construction of a new ship or otherwise,
ship financing continues to be an integral part of ship acquisition. Financing
ship acquisitions can be effected through the provision of debt or equity.

The most common means is
to obtain a loan for part or all of the purchase price otherwise known as debt
financing. However, due to the nature of the marine business, many financing
institutions are reluctant to finance the acquisition of ships without adequate
security or a good credit rating with such financial institution.

With the advent of “lease
structured financing” debt and equity, as the most common ways of financing
ship acquisitions appear to have found a competitor. Lease structured financing
is a popular and well-tested concept among airlines and other aircraft
operators.

Ship Lease Operation

The lease is perhaps best
described in general terms as a conveyancing method where the possession of
property passes but ownership or title in the asset does not pass to the
purchaser. A somewhat more precise legal definition of a lease is that it is a
contract through which the owner of property (the lessor) conveys to another
person (the lessee), in consideration of payment as agreed, the right to
possession and use of the property for an agreed period.

There are basically two
types of lease:

1.
Operating Lease; and

2.
Finance Lease

Operating Lease

Operating lease is a lease
in the real sense. Outside of shipping it is widely used for rental (or hiring)
of equipment and durable consumer items. The risk usually remains with the
lessor who maintains the asset and the lessee normally has the discretion to
terminate the lease, at the end of which the property reverts back to the
lessor. However, if so provided in the contract, either party may have the
right to cancel the lease. A typical example of the operating lease is the leasing
of containers in the shipping industry, where container lines lease containers
from container leasing companies.

As far as ships are
concerned, where an operating lease is in place, it is usually in the form of a
short or mid-term bareboat charter after which the lessee will return the ship
to the lessor. The lessor assumes such risks as the technological obsolescence
of the ship and the re-employment of the ship after the lease period. During
the charter period, the lessee acts as if he owns the ship and the lease
payments do not involve an amortization of the leased property; nor is there an
option to purchase in favour of the lessee. Recently, there has been an
increase in the use of short-term bareboat charters with an increasing number
of financial institutions willing to provide ships for this market. Although it
is not a financing vehicle in strict terms, it is referred to as an alternative
source of finance.

It is notable that there
is another quasi-operating lease where the lessor may provide the manpower and
services required to operate the equipment. In aviation this is referred to as
“wet lease” while in shipping it is referred to as time charter. Time
chartering is not pure equipment leasing because the provider of the ship, i.e.
the owner, provides the crew and is responsible for the navigational
operation of the ship. The charterer is thus not in full possession of the
ship. However, it is also an important and convenient way for a shipowner to
expand his fleet in peak trading conditions because he can completely control
the commercial operation of the ship. In this sense, time charter is very much
akin to an operating lease.

It is pertinent to note
that in recent times time-charter periods especially for big container ships
have increased. This, together with the shortening of bareboat charter period,
denotes that operating leases are playing an increasingly important role in the
supply of tonnage for shipping companies.

Finance Lease

Finance lease transfers
all the risks and rewards incident to ownership of an asset. This type of lease
is typically used for long –term finance of ships and covers a substantial part
of the ship’s economic life. The ship is usually fully amortized (including the
lessor’s returns on his investment). The lessor, whose main role is as
financier gets most of his pay-out in respect of the ship because the total of
the hire amount and payments are calculated to cover the cost or purchase price
of the ship, the additional expenses which the lessor might incur as well as
part of the lessor’s profit. The lessor also has little involvement with the
asset beyond owning it, and all operating responsibilities including
procurement of insurance fall on the lessee who, in the event of early
termination, must fully compensate the lessor (usually the lessee anticipates a
substantial down payment. This binds the lessor to the sale. If the lessee
defaults, he loses his down payment as well).

Although the finance lease
generally appears on the lessee’s balance sheet, its main attraction to
shipping companies is that it brings tax benefit by depreciating the ship’s
value against profits and by assisting companies with high profits but no
suitable investment of their own to obtain tax relief by purchasing a ship.
Under a finance lease scenario, the ship, built to the lessee’s specification
(if a newbuilding), or chosen by the lessee (if it is a second hand), is
purchased by the company providing the finance (the lessor) and leased under a
long-term agreement (usually a bareboat charter) to the shipping company
(lessee) which may purchase the property at a nominal price after the primary
leasing period.

The advantages of ship
leasing, as argued by practitioners, are similar to those claimed by the
classical economists. These advantages are focused on the two major categories,
tax benefit and financial position improvement.

Tax Benefit

The tax advantage argument
is perhaps the strongest justification for using lease as a financing vehicle
in shipping. Experts have pointed out that the tax benefits accruing out of
leasing are of predominant interest. With leasing, the most significant tax
benefit is the deferral of tax liability on capital allowance. The rate of hire
will reflect the immediate use of the tax allowance by the lessor. Capital allowances
can be used as set offs against taxable profits. The lessee would favour
leasing as a financing vehicle in shipping because the lessee is usually keen
on ‘disguising’ a finance lease in the form of an operating lease to derive the
off-balance sheet benefit.

Financial Position
Improvement

The scarcity of financing
from financial institutions or other financing options for shipping lines has
created a space which is now filled by leasing companies which have easier
access to capital funds. In such cases, it is of great value for the carriers
to have access to diverse sources of capital that will assist them with their
fleet expansion and renewal plans by acquiring larger, modern and
fuel-efficient vessels and achieving the necessary economies of scale to remain
competitive. In a cyclical and very capital intensive industry, such as
shipping, the lease can preserve the lessee’s working capital and its financial
position through long-term repayment structure (often longer than the one
offered from banks) and effective cash management through matching the rental
profiles with income streams (cashflow). Moreover, the lease structure permits
the lessor to lock in carriers to long-term charter arrangements and fixed
rates that are oblivious to the volatility of the spot charter market and thus
achieve a secure revenue base and higher financial leverage than other
investors in the ship financing market.

Furthermore, in comparison
with the traditional debt financing from financial institutions, lease
financing differs in the sense that the lessor retains legal title/ownership of
the ship during the lease period which provides the lessor with a built-in
security that offsets the absence of a loan agreement and ship mortgage in the
lease financing ‘equation’. Despite being the owner, the lessor does not have
possession of the ship since such right is retained by the lessee.

Conclusion

Despite the current
downturn in the shipping market, there are good grounds to believe that there
is still overflow of available finance in the market. In the last few years,
there has been significant growth and expansion in the leasing business.
Similarly, there has been an upsurge inleasing transactions, particularly
amongst the Chinese commercial banks, the subsidiary leasing companies of
banks, hedge funds and financial institutions fueling this growth and becoming
major capital providers to the shipping industry with an intention to further
expand and diversify their portfolio of ships and establish their presence in
Europe, America and Africa.

It can be argued that the
lease structure highlights the polarisation of the shipping business. As a
result, the pure asset players, such as the lessors have strengthened their
financial position while the carriers have become weaker. This has changed the
traditional notion of the ‘shipowner’ as we know it, in the sense that the
leasing companies are now the large shipowners.

Being a sophisticated
structure, whether or not the purchaser will qualify for a the ship lease will
depend on the parties’ intentions, credit ratings, operational decisions and
market status. Despite its restrictions, the prospects of the finance lease
seems promising given the increasingly popular trend of outsourcing the asset
management services of shipping companies. As a relatively new alternative in
the international financial arena, ship lease is still developing and
undergoing tests.

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 posted here.

Tanimola Anjorin – An exposè on the Arbitration procedural stages

by Legalnaija | Aug 15, 2016 | Uncategorized

Arbitration as a better alternative to litigation: An
exposè on the procedural stages[1]

ABSTRACT

Alternative Dispute Resolution (“ADR”) simply refers to any means of
dispute resolution excluding litigation in a courtroom. It is a form of
facilitated settlement, which is confidential and without prejudice.
Consequently, the details of the process are not usually disclosed to the
public except where it snowballs into a court action.

The laws governing arbitration in
Nigeria include the Arbitration and Conciliation Act (“the Act”)[2],
which is a federal law, Lagos State Arbitration Law 2009 (“the Lagos Law”) and
some other states’ arbitration laws. This paper seeks to examinethe procedural stages in arbitration,one of
the most common ADR mechanisms, and the reasons which
make arbitration a better alternative to litigation.

I INTRODUCTION

Arbitration
provides a forum for participants to present arguments and evidence in support
of their case, to a third party neutral who makes a binding decision called an
award. It is a process controlled by a single arbitrator or a panel of
arbitrators appointed by the parties.

Any
of the parties to a contract may adopt arbitration where an arbitration clause
is contained in the agreement, and a dispute arises in relation to it.Where
there is noarbitration clause and the parties desire is to proceed to
arbitration, a consent to arbitration via submission agreement may be entered
by the parties.

The
expeditious disposal of cases in arbitration stems from the less formal
procedure adopted in arbitral proceedings.The procedure for initiating and
conducting arbitration are spelt out in the arbitration rules to be found in
the First Schedule to the Act.

One
of the advantages of arbitration is that the disputants have consensually
chosen their own private “judge” called the arbitrator(s)[3].
The arbitral tribunal determines the venue of the hearings after due
consultation with the parties. Where there are three or more arbitrators,
decision is by majority. Therefore, an odd number of arbitrators is advised.

Arbitration
commences with a notice to commence arbitration being sent by an aggrieved
party to the other party.In the course of arbitration proceedings, request for
more information, discovery of documents and visits to relevant location may be
done. However, to ensure expeditious disposal of the matter, all of these
issues would most likely be narrowed down during pre-hearing review.

The
tribunal listens to the oral statements and questioning of the witnesses of
both parties(cross examination)as examination-in-chief may be in form of
witness statements on oath. Also, expert witnesses may be called by the parties
to render their opinions on issues in dispute.This may be pruned down during
pre-hearing review as the parties are likely to distill witness of facts and
expert witnesses.

Arbitration
proceedings are not however regulated by formal rules of evidence as stipulated
in the Evidence Act thereby resulting in less formal and flexible proceedings.

II PROCEDURE
IN ARBITRATION

In
ensuring an expeditious process in arbitration, some basic procedures are adopted
which endears the business world to arbitration instead of litigation:

JURISDICTION

The
first step in any arbitral proceedings is to constitute the arbitral panel.This
can either be provided in the arbitration agreement or conducted in accordance
with the Act[4]. In any
case, there can be no arbitration without an arbitrator and an arbitrator must
be appointed to conduct the reference. Once the arbitrator is appointed he must
be clothed with jurisdiction.Jurisdiction is the authority to arbitrate
upon the dispute between the parties.

The arbitrator is only authorised to
exercise the jurisdiction and powers conferred on him by the parties.His
jurisdiction is derived from the agreement of the parties i.e. the issues
submitted to him for determination or from Statute. The arbitral tribunal is
competent to rule on its jurisdiction[5].

PRELIMINARY MEETINGS

The
mainpurpose of a preliminary meeting is to plan the expeditious and efficient
conduct of the arbitration. Arbitration is a broad spectrum where innovations
and variety are not only encouraged but lauded:

“…the
arbitral tribunal may, subject to this Act, conduct the arbitral proceeding in
such a manner as it considers appropriate so as to ensure a fair hearing”[6].

The
overriding procedural obligations of an arbitration tribunal in conducting a
reference include:

(i) complying with the express mandate, if any,
laid down by the parties;

(ii) conducting the process fairly and even-handedly;
and

(iii) using all reasonable dispatch in entering on, proceeding
with the reference and making an award.

Preliminary
meeting therefore cannot be held until:

(i) The tribunal has been appointed;

(ii) The tribunal has been provided with the
information as to the principal issues between the parties although this can
sometimes be dealt with at the preliminary meeting;

(iii) Administrative fees, where applicable, have
been paid; and

(iv) The impartiality of the arbitrators have been
checked, where necessary, and the result made available to all.

It
is imperative that adequate preparations be made well ahead by the arbitrators,
the parties and their advisers before the preliminary meeting. Issues like the (i)
venue[7],
(ii) time[8],
(iii) transportation arrangements for the arbitrators and other sundry issues must
be addressed in order to have a successful meeting and most importantly, a well-drawn
up agenda.

In
advance of the preliminary meeting, the parties should also try to identify the
matters to be dealt with and, if possible, agree on the procedure and any
directions to be sought from the tribunal. If agreement is reached, this will
save time and costs at the preliminary meeting itself and may even render such
meeting unnecessary.

PRE-HEARING REVIEW

It
is preferable except in very simple cases to hold a pre-hearing review before
the hearing and after all the preliminary meetings. This helps to save time and
costs at the hearing because the pre-hearing review helps the arbitrator and
the parties clarify all outstanding issues so that by the time they go into the
hearing they can go through them on a day-to-day basis and finish in a short time.
The matters to be discussed at the pre-hearing review will vary depending on
what has transpired at the preliminary meetings (if any).

PROCEEDINGS AT TRIAL

The choice of proceedings to be adopted depends on
the facts of each case[9]. Where parties do not
choose or agree on any type of hearing, the tribunal chooses the type of
hearing[10].It is better for the parties to agree
on the type of hearing to be adopted where there is a serious dispute over
relevant facts. The proceedingat trial may take the form of:documents only where there are no oral testimonies to support
the claim;documents only with brief oral final submissions; or documents only
with only experts in attendance to give oral testimony before the arbitrators.If
“Documents Only” method is
agreed, then the “issues” need
to be framed with more precision than when any other form of proceedings is
adopted.

Short
Procedure Hearing:

This
is only suitable for “quality”
dispute requiring some summary decision,i.e,“look
and sniff” cases. Each party usually
bears his own costs.

Full
Procedure with Hearing:

This
is for disputes that require examination
or cross-examination of witnesses of fact. This evidence is usually partly oral and partly documentary.
The tribunal must consider whether a Scott Schedule[11]
is desirable.

It must
be noted that the procedure adopted determines the length of the hearing.
However,the
procedure adopted must not contravene the provisions of the applicable law and
procedural rules:

“…the Claimant to state the fact
supporting his Points of Claim, the points at issue and the relief or remedy
sought by him whilst the respondent is to state his Points of Defence in
respect of the particulars unless the parties have otherwise agreed on the
“required elements of the Points of Claim and Defence.[12]”

The
tribunal and parties must consider such factors as the complexity of the matter
and the nature of the dispute in ensuring that they adopt the most suitable
procedure. Disputes with little factual details may be best suited to the
Statement of Case procedure by mere exchange of correspondence; e.g. quality
disputes which are tobe determined on expert evidence only while pleadings may
be best suited to cases involving complex issues of law.

The
tribunal is to determine the time for exchange of written statements. In any
case, the law provides that the time must not exceed 45days except if
justifiable[13].

AGREED BUNDLE

In
arbitration proceedings the parties agree on an “Agreed Bundle” of documents,
which constitutes the documents to be referred to during the hearing. The arbitrator
will direct the parties to meet and agree on the bundle within a specified
time. This also helps to fast track proceedings.

RELEVANCY AND ADMISSIBILITY

The Evidence Act excludes
arbitration from its application[14].
This is not to say however that rules of evidence do not apply to arbitration.
In fact, the rules of evidence are wider than what the Evidence Act provides
and they apply to arbitration to enable the arbitrator come to a reasonable
decision on the evidence before him. It should be noted that Section 15 (3) of
the Actconfers powers on the arbitral tribunal to determine the admissibility,
relevance, materiality and weight of evidence placed before it[15].
The reason for this provision is to play down as much as possible the recurrent
technicalities that surround the rule of relevancy and admissibility under the
Evidence Act.

III ARBITRATION
AS A BETTER ALTERNATIVE

The
numerous advantages of arbitration over litigation include a faster and cheaper
means of dispute resolution, utmost privacy of the issues between the parties[16]amongst
others. While litigation has been shown to give room for frivolous techniques, arbitral
proceedings have been sped up byadmitting written statements in place of
opening and closing speeches, admitting depositions made by
witnesses of fact and inviting such witnesses only for cross-examination. In
addition,admitting reports prepared by experts while they appear only for
cross-examination,using a Scotts Schedule.

Other ways to save time at the
hearing are:

Defining the Issues

The
arbitrator should direct, at the outset, that a list of issues be agreed and
delivered to the arbitrator a reasonable time before the hearing, and that
failing such agreement each side delivers a list of what it considers to be the
issues. The procedure for defining the issues vary according to the nature and
complexity of the dispute.

Exchanging
Proofs in advance

The
arbitrator may require that proofs of all witnesses be exchanged, and copies
delivered to the arbitrator, before the hearing.

Documents
Selected before Hearing

The arbitrator
may require that the documents to be referred to at the hearing be selectedbefore
the hearing, and this should be the responsibility of the advocate who is to
conduct the case. The arbitrator should also
direct that:

(i) The consolidated bundle(s)
of the documents selected should be delivered to the arbitrator by a specified
date before the hearing;

(ii) At the hearing all the
documents so submitted shall be taken as read (because he will in fact have
read them); and

(iii) At an appropriate stage
the arbitrator will specifically consider the question whether a substantial
number of irrelevant documents has been selected, and if so whether a special
order should be made in respect of the additional costs thereby occasioned.

The
frontloading system and the case management conference in the rules of court[17]
can be likened to the preliminary meetings, pre-hearing sessions, defining
issues and exchanging proofs and written statements obtainable in arbitration
proceedings. The introduction of these similar concepts in the rules of court
and a fast track division is to ensure efficient and speedy dispensation of
justice but the bureaucracy in the system has prevented the system from making
any remarkable achievements. Even the motion for summary judgment in the rules
which shouldn’t take more than 2weeks to hear and determine usually suffers the
same fate as the cases on the general cause list.

It
is the duty of the arbitral tribunal to adopt
procedures suitable to the circumstances and to avoid unnecessary delay and
expenses. The parties must also cooperate by doing all things necessary
for the proper and expeditious conduct of the proceedings as cost may be
awarded against any party that foists any sort of delay tactics in the course
of the proceedings.

IV CONCLUSION

The
proceduresin arbitration sessions examined above have proved effective and
efficient in the expeditious disposal of arbitral cases, thereby endearing the business
community and the public in general to the choice of arbitration over
litigation. The adoption of arbitration either by an arbitration clause or
submission agreement has become more popular as people are coming to terms with
the fact that arbitration constitutes a better alternative. It is also an
amicable method of dispute resolution enabling the parties to maintain their
business relationships.

[1]Tanimola Anjorin
holds a bachelor’s degree in History and International Studies from Lagos State
University. He thereafter obtained a Bachelor of Laws degree from Lagos State
University and was called to the Nigerian Bar. He is also an Associate of the
Chartered Institute of Arbitrators (UK) Nigeria Branch.

[2]1988 Cap. A18 LFN 2004.

[3]Where the parties to an arbitration
agreement do not provide for the number of arbitrators to be appointed, section
7 of the Act provides that the number of arbitrators shall be deemed to be
three.

[4]Section 6 of the Act provides for
the number of arbitrators to be appointed in the event that the arbitration
agreement is silent on this issue while Article 6 – 8 of the Arbitration Rules
in the First Schedule gives a detailed procedure to be adopted in the
appointment process.

[5]This is laid down in the popular case ofCOMPETENZ v COMPETENZ. See also section
12 of theAct and Article 21 of the Arbitration Rules in the First Schedule to
the Act.

[6]Section 15(2)of the Act.

[7]Section 16 of the Act.

[8]
Section 17 of the Act.

[9] Section 20(1) of the Act

[10]See Article 15 of the Arbitration
Rules in the First Schedule to the Act.

[11]In arbitration sessions, parties
bring numerous claims and issues which make the arbitral proceedings appear
like litigation. In order to avoid this, the tribunal may resort to the use of
the Scott schedule. The Scott schedule is essentially a table with inputs from
both the claimant and respondent. The claimant sets out hisargument first, and
then the schedule is passed to the respondent to set out his responses. The
main objective of the Scott schedule is for the issues in disputes to be
presented as clearly as possible, thus saving time, reducing cost and
conserving efforts.

[12] Section19 the Act.

[13]See Article 23 of the Arbitration
rules in the First schedule of the Act.

[14] Section 256(1)(a) of the Evidence Act 2011.

[15]See also Article 25(6) of the
Arbitration Rules in the First Schedule of the Act.

[16]Article 25 (4) of the Arbitration
rules provides: “Hearing shall be held in
camera unless the parties agree otherwise”.

[17]Order 3, 5 and 25 of the High Court
of Lagos State (Civil Procedure) Rules 2012.

Photo Credit – www.newtonarbitration.com

Provisions of the Lagos State Properties Protection Law 2016

by Legalnaija | Aug 15, 2016 | Uncategorized

Though not restricted to
the commercial city of Nigeria, Land grabbing has always been a big issue in Lagos
state. Property investors were not protected under the law and were being taking
advantage of by the popularly called “Omo Onile”, meaning in loose terms “Children
of the land” and their sponsors, or privileged individuals who used force,
threats and sometimes violence to unscrupulously take possession of land or
property belonging to other persons. It is common to see or hear of a crowd of
young men gather at the sites of undergoing private construction demanding for
unaccountable levies and fines.

To say, these unlawful actions
have plagued the real estate industry in Lagos and other parts of Nigeria, is
to put it mildly. Sometimes, law enforcement agencies are also powerless to aid
or act in certain situations. The property divisions of the law courts are
filled with claims bothering on forceful and unlawful possession of land or
property and have been in court for quite some time.

Lagosians can however smile
and be relieved, as Governor Ambode on the 15^th of August, 2016,
signed into law, the LAW PROHIBITING FORCEFUL ENTRY AND ILLEGAL OCCUPATION OF
LANDED PROPERTIES IN THE LAGOS STATE. This new Law protects the proprietary
rights of Land and Property owners in Lagos State and also criminalizes actions
of forceful and unlawful entry or occupation of premises.

The law states in Section
2(1), that –

“ As from the commencement
of the law, no one shall use force or self-help to take over any landed
property or engage in any act inconsistent with the proprietary right of the
owner in the State.

Furthermore, subsection
2(two) states that persons who have used force to take over the properties of others
and still do so after 3 months from the date of commencement of the law commit
an offence. Anyone who commits such offence is liable to ten (10) years
imprisonment.

Also, anyone without
lawful authority who applies threats or violence to secure entry into any
landed property for personal use commits an offence. Regardless of if the entry
is lawful, it does not give a right to use threats or violence and anyone who
commits the offence shall be liable to 10 (ten) years imprisonment.

Furthermore, by virtue of
section 3(4), anyone who uses fire arms or offensive weapons or is in any way
armed or wounds anyone while committing the act of forced entry is liable to 4(four)
years imprisonment.

Persons in illegal
occupation of premises who also fail to leave the property commit an offence
and are liable to a fine of N5,000,000
(Five Million Naira) and/or up to five (5) years imprisonment. By virtue of
Section 7, any encroacher who keeps fire arms or dangerous/offensive weapons on
the premises shall be liable to 10 (ten) years imprisonment.

Any encroacher who tries
to sell the property knowing he has no lawful authority to do so commits a
crime and is liable to a fine of N500,000
(Five Hundred Thousand Naira) and/or Six (6) months imprisonment. If the person
is successful in selling the property, he shall be liable to a fine not
exceeding 100% the value of the property and/or 5(five)years imprisonment as
provided in section 8.

It was always common for
purported family agents to unlawfully sell family property without the consent
of the head of the family. However, by virtue of the law, anyone who sells
family property without the authority of the family head or sells government
land without the authority of the relevant government authority shall be liable
to 21 (Twenty – One) years imprisonment.

Due to the fact that many
property/estate agents and sometimes, lawyers, have been known to aid the sale
and unlawful encroachment of private property. Section 9, prohibits
professionals from aiding in conduct that constitute an offence under the law
and such professionals shall be reported to the relevant bodies for misconduct
and appropriate actions.

A popular provision of the
Law is the section that prohibits that harassment of property owners by the omo
onile groups and other hoodlums. Section 10, states that persons who act as
agents and demand a fee in regard to construction on properties shall be
committing an offence and liable to a fine of 1(One) million naira and/or 2 (two)
years imprisonment.

The Law also establishes a
task force to enforce the law and grants jurisdiction to the Special Offences
Court and other courts.

In other to prevent
private persons from taking laws into their hands, no law enforcement agent,
vigilante group, ethnic, cultural or traditional militia shall have the right
to enforce the law except in terms with the Sheriffs and Civil Process Act.

The enactment of this law
brings succor to all lawful property owners in Lagos State and is highly
welcome.

Dunmade Onibokun

Principal Partner

Adedunmade Onibokun &
Co.

info@adedunmadeonibokun.com

dunmadeo@yahoo.com

www.adedunmadeonibokun.com

+2349095635314

Dunmade’s legal practice
focuses on corporate and commercial law, regulatory compliance, due diligence,
corporate advice and commercial transactions.
He is the Principal partner of Adedunmade Onibokun & Co. a law firm
based in Lagos, Nigeria. Dunmade is also a blogger and publishes the Legalnaija
Blawg via www.legalnaija.com

Photo credit – www.Nigerianelitesforum.com

RBN Bloggers – How to draft an Affidavit though you aren’t a lawyer

by Legalnaija | Aug 10, 2016 | Uncategorized

Many people don’t like
lawyers simply because it appears they argue too much, others don’t like them
because they have encountered the ones who charge a lot. A client once told me
“I swallowed all the Paracetamol I could find when I saw your bill.”
All I could do was laugh. Knowing what I had charged, I knew I had undercharged
him just because I wanted him to retain my services and there he was still
insinuating I had overcharged. Like him, many people have the fear that lawyers
overcharge even when they don’t. And yet it’s not so easy to get by without a
lawyer on your side because there will always be a need for one.

However, there are a few
things you might be able to do on your own (if you are smart) that ordinarily
ought to be done by a lawyer. One of them is drafting an affidavit and getting
a police report for your missing or stolen item.

Just Before I tell you how
to go about it, first let me give you a layman definition of an affidavit.

An affidavit is simply a
document of facts made under oath. It is meant to stand as your court
approved oral evidence. So while making an affidavit you are only expected to
state facts that you know to be true. Usually you don’t have to say what others
told you, just state what you know, so let’s assume you have just misplaced
your latest phone or your purse which had your ID card, ATM card and other
documents, and you rushed to the nearest police station to lay a complaint and
the police officer has asked you to bring an affidavit, here is what you should
do:

1.
Find Out Which Court Is Nearest To
You:
All affidavits for stolen or missing items ought to be done at the court
nearest to where the incident happened. In law it is called jurisdiction I.e.
The court must have power over the matter brought before it. For instance, if
your phone was stolen in Ikeja Lagos state, the appropriate police station will
be Area F while the appropriate court to stamp your affidavit will be at the
Ikeja High Court or Ikeja Magistrate Court. You are not expected to go outside
the court nearest to you. (Or rather the court within your jurisdiction)

2.
Get A Laptop:
Sit in front of a laptop and open Microsoft Word or any other word processor.

3.
Type The Heading:
your heading should be in three lines and in the name of the court you will be
going. Here is how affidavits are headed:

First line:

In the Lagos High Court

Second line:

In The Ikeja Judicial Division

Third Line:

Holden At
Ikeja

Make sure the heading is bold, centralised and underlined.

4.
The Subheading:
The subheading is a one line heading which states the purpose of the affidavit.
Examples are Affidavit of Loss of Original Certificate , Affidavit
of Loss of Phone etc.

The sub-heading should be directly above the main content of the affidavit and
should also be bold, centralised and underlined.

5.
The Introduction:
The introduction is where you tell the reader about yourself. It usually
contains basic (but static) details about yourself and here is the format.

I, John Doe, a Christian, male, Adult,
Doctor of No. 19 rbnbloggers street, Ikeja, Lagos, do make oath and state as
follows:

The introduction should
contain all those facts so that anyone reading knows a little about you.

6.
Statements of Facts: This is where you
start saying all the things that led to your making the affidavit. It should be
in sequential order and should be in numbered paragraphs starting from
“1.” Each paragraph should carry a single idea and you can have as
many paragraphs as you want but only necessary facts are needed. You should
begin each paragraph with “that”. See example below:

7.
1.
That on the 15th August 2016 I embarked on a journey to work on a BRT bus at
Ojota Bus Park

2.
That while on the journey, I had in my possession my brand new iPhone Six which
had my 080644456d Mtn sim card installed in it.

3.
That around 2 O’clock in the afternoon, two men carrying firearms approached me
along with other passengers on the bus and demanded our personal belongings.

4.
That my iPhone along with several sums of money amounting to Eight Hundred
Naira was obtained from me.

5.
That since then, I have no knowledge of the whereabout of neither the phone nor
the MTN sim card.

6.
The last Paragraph: The last paragraph comes after you have stated all the
facts and you feel its time to close the affidavit. The paragraph is simply a
static line that affirms your sincerity. This is how it is drafted:

7.
That I make this affidavit in good faith conscientiously believing same to be
true and in accordance with the oath Law of Lagos State.

8.
The
signature:
After the paragraph above, it’s time to indicate where you will append your
signature. This should be on the right-hand side below the statements. Draw a
line that is big enough to contain your signature and under the line type the
word: Deponent. Do not sign the signature after you print it. You are
meant to sign it at the registry in the presence of the commissioner for oaths.

9.
State
The Registry:
the next thing to do is to go down one step below and type the following words
on the extreme left-hand side of the document in this exact manner:

SWORN TO on this …….day of ……., 20….

at
the Ikeja High Court Registry.

10.
The
Commissioner for oaths:

Now its time to draft the commissioner for oaths section. You should go down
now and type the following in capital letters:

BEFORE ME:

Leave some space for signature and draw a line for the signature. Under the
line type the following words in capital letters:

—————————————————-

COMMISSIONER FOR OATHS.

11. Print Out: Before you hit the print button,
go over your draft again and make sure you have eliminated all typographical
and spelling errors. Make sure you have also edited the draft to look like it
was done by a professional lawyer. Once you are satisfied, print out three
copies and run to the court, and ask for the court registry.

You will be asked to pay a
token amount which is not up to N500 (as at the time of publishing this post.)

12. The last step: After you have paid, a
receipt will be issued to you and you will be asked to see the Commissioner for
Oaths. He or she will ask you to sign the documents. Append your signature at
the deponent’s space, then he/she will fill in the date and stamp the documents
and hand them back to you.

Disclaimer:
The opinions expressed in this article should not be taken as a substitute
for legal advice. For all questions and suggestions relating to Law you can
chat with us on our Whatsapp line: 09054551883
or send us an email at law@rbnbloggers.net

Ed’s Note – This article was originally
posted here.

Ivie Omoregie: So You Want to Stand As a Guarantor For LeBoo?

by Legalnaija | Aug 9, 2016 | Uncategorized

Just
the other morning a friend of mine called messsscccrreeeaammmiinnggg;
she said a certain Nigerian bank had deducted N7m from her account. It was a
Saturday morning, so there was no way to contact the bank to ask them for the
exact details of the transaction. She said her account manager’s number was not
going through and that when she checked online she could not see specific
details for the deduction…just a series of transaction codes.

After
calming her down, I asked her to be patient and wait till Monday to get
clarifications. There was actually nothing that could be done before then, so
she had no choice but to relax and sleep. (I can just visualise her in church
the following morning…hehe)

When
she called the bank on Monday, she was given the biggest reality check of her
entire life. Apparently 2 years prior this time, her ex-fiancé had wanted to
expand his business and needed a loan from the bank. He didn’t have any assets
to secure the loan, and had asked her to stand as his guarantor. She has a
flourishing interior design business, and also receives a considerable amount
as rental income from property she inherited from her grandfather. Her boo was
her world and they were about to be married and start a life together. She was
doing well, so accepted to be his guarantor. In all honestly I think she
desperately wanted to personify the perfect “wifey” and so couldn’t say no.

He
kept on stressing that it was just a hypothetical situation and that the
chances of him defaulting were slim. She told herself she knew him inside out
and would be able to police his obligations under the loan agreement. The way
she saw it “at least he wasn’t being a waste man with no ambition. He had big
dreams of growing his business and was not asking her to ‘lend’ him money”.

As
you can imagine, when the relationship scattered because his ex-girlfriend had
just given birth to his first child, “policing his loan obligations” were not
at the forefront of her mind. In all honesty, she had completely and utterly
forgotten about that random document she signed over 2 years ago.

The question now was…how does she get her money back?

Let’s start with the Guarantee Agreement
A Guarantee Agreement is defined as a written undertaking made by one party
(the “Guarantor”)
to a second party (usually the “Creditor”),
consenting to be responsible if a third party (usually the “Principal Debtor”)
fails to perform a certain duty, i.e. payment of a debt.

Halsbury’s
Laws of England defines a Guarantee Agreement to mean an accessory contract by
which the Guarantor undertakes to be answerable to the Creditor for the debt,
default or miscarriage of a Principal Debtor; the primary liability to the
third party must exist or be contemplated before the creation of the Guarantee
Agreement.

I
must stress that in considering the adequacy of a Guarantee Agreement, what is
of importance is the financial position of the Guarantor and not the financial
inadequacy of the Principal Debtor.

The Creditor

This
is the person to whom obligations of the Principal Debtor and the Guarantor are
owed. In the event that the Principal Debtor defaults on his/her obligation to
pay the principal loan, then the Creditor may recover the amount outstanding
from the Guarantor.

The Principal Debtor

This
is the person primarily liable to the Creditor for the obligation guaranteed.
The Principal Debtor is not a party to the Guarantor’s contract with the
Creditor, even though the Guarantor’s contract stems from the dealings of the
Principal Debtor. Thus we often see instances where the Creditor has deemed the
Principal Debtor as incapable of settling the debt and thus focuses all efforts
on retrieving the outstanding monies owed, plus interest, from the Guarantor
(i.e. they no longer bother with the Principal Debtor and “hound” only the
Guarantor).

The Liability of the Guarantor

The
Guarantor’s liability is a secondary obligation that is only triggered upon
default by the Principal Debtor. A Guarantor cannot be held liable for more
than he/she has undertaken to guarantee; in addition, the liability of a
Guarantor cannot exceed that which is owed by the Principal Debtor.

The Guarantor’s Rights on Demand for Payment

The
manner in which the Creditor is able to make a demand against the Guarantee
Agreement is usually dependant on the terms of that agreement as well as the
terms of the agreement between the Principal Debtor and the Creditor.
Generally, the Creditor is only required to issue a demand notice to the
Guarantor upon a default by the Principal Debtor, the Creditor may thereafter
commence legal action for recovery if the Guarantor does not comply with the
terms of the demand notice.

Unless
the Guarantee Agreement itself provides otherwise, generally:
• There must be a clear case of default on the part of the Principal Debtor
before the Creditor can pursue the Guarantor;
• All remedy periods relating to the event of default should have expired with
the default in question not having been remedied;
• The Creditor must not have impliedly or expressly waived the default in
question.

However,
I must stress that the terms of individual Guarantee Agreements are governed on
a case by case basis; we are now seeing instances where as a prerequisite,
Creditors are demanding that the Guarantor issues blank cheques, said cheques
to be presented by the Creditor at the point of default by the Principal Debtor,
without the obligation requiring the Creditor to give the Guarantor prior
notice.

The Guarantor’s Rights After the Settlement of Debt

A
Guarantor has a right to the recovery of money improperly paid to a Creditor,
this would entail money which could have been paid under a mistake of fact as
to the Principal Debtor’s obligations.

The
Guarantor may also be indemnified by the Principal Debtor for the total amount
paid in settlement of the debt, plus interest. However, in reality a Principal
Debtor who was unable to repay its Creditor is unlikely to be able to repay the
Guarantor.

Determination of a Guarantee

I
must stress that unless the agreement to which the Guarantee was given had been
terminated in accordance with the terms of that agreement, whilst the Creditor
is being owed an obligation by the Principal Debtor, the Guarantors obligation
to the Creditor will continue to subsist.

Furthermore,
unless the Guarantee Agreement provides to the contrary, the Guarantee will be
determined if the Principal Debtors obligation is changed without the
Guarantor’s consent.

Conclusion
My friend was able to confirm that the reason why the bank was able to simply
deduct the money from her account was because she had issued an undated cheque
at the time of signing her Guarantee Agreement. It was simply filled in
and presented as final settlement for the debt.

Luckily
for my friend, under the terms of her agreement, the bank was supposed to give
her several demand notices at the point of default to enable her mitigate the situation
with hopes of getting the Principal Debtor to pay the debt being owed to the
Creditor.

The
bank had failed to do this, thus were forced (after stern warnings from my
friend’s lawyer, who happens to be a no-nonsense highly rated Senior Advocate
of Nigeria and who also happens to be my friend’s father) to reverse the
transaction and follow due process.

The
concept of guarantor is something which is now a part and parcel of modern day
banking, yet what intrigues me is the fact that many people do not seem to
appreciate the full implication of standing as someone’s guarantor. Maybe this
stems from the fact that it is to a large extent a worst case scenario.

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.

Ed’ s Note – This article was
originally published here

Busayo Adedeji – A Review of the Cybercrimes Act

by Legalnaija | Aug 9, 2016 | Uncategorized

·
Introduction

The
cybercrime act was signed into law on the 15^th of May, by President
Goodluck Jonathan before leaving office.
The objectives of the act are to provide an effective and unified legal
regulatory and institutional framework for the prohibition, prevention,
detection, prosecution and punishment of cybercrime in Nigeria; ensure the
protection of critical national information infrastructure and promote cyber
security and computer systems and networks electronic communications, data and
computer programs intellectual property and privacy rights.

Some salient provisions of
the act include:

· Designation of certain computer
systems or networks’ as Critical National Information Infrastructure.

The act provides that “The President may on the recommendation of
the National Security Adviser, by Order published in the Federal Gazette,
designate certain computer systems, and/or networks, whether physical or
virtual, and/or the computer programs, computer data and/or traffic data vital
to this country that the incapacity or destruction of or interference with such
system and assets would have a debilitating impact on security, national or
economic security, national public health and safety, or any combination of those
matters as constituting Critical National Information Infrastructure.”[i]

Further
to the above power vested in the president, he may make orders for the
preservation, storage etc of the critical national information infrastructure and
offenses against infrastructure are punishable by imprisonment for as long as
10 to 15 years.

·
Registration of Cybercafés

The
act provides that from the commencement of the act all operators of cybercafé
shall register as a business concern with Computer Professionals’ Registration
Council in addition to a business name registration with the Corporate Affairs
Commission. Cybercafés shall maintain a register of users through a sign-in
register. This register shall be available to law enforcement personnel
whenever needed.[ii]

The
act does not however prescribe any penalty for cybercafé operators that do not
comply with the above provision. It however prescribes an imprisonment of 3
years or fine of one million naira (or both) for any person who perpetrates
electronic fraud or online fraud in cybercafé.
In the event of proven connivance on the part of the owners of the cybercafés,
such owners shall be liable to imprisonment for 3 years or a fine of 2 million
naira. The burden of proving such connivance shall be on the prosecutor.

·
Intercepting electronic messages,
emails and electronic money transfers

The
act provides that any person who unlawfully destroys or aborts any electronic
mails or processes through which money and or valuable information is being
conveyed is guilty of an offence and is liable to imprisonment for 7 years in
the first instance and upon second conviction shall be liable to 14 years’
imprisonment.[iii]

Computer
Related Forgery

A person
who knowingly accesses any computer or network and inputs, alters,

deletes
or suppresses any data resulting in inauthentic data with the intention that
such inauthentic data will be considered or acted upon as if it were authentic
or genuine, regardless of whether or not such data is directly readable or
intelligible, commits an offence and is liable on conviction to imprisonment
for a term of not less than 3 years or to a fine of not less than 7,000,000.00
or both.[iv]

Electronic
Signatures

The act provides that electronic
signature in respect of purchases of goods, and any other

transactions
shall be binding. Whenever the authenticity or otherwise of such signatures is
in question, the burden of proof, that the signature does not belong to the
purported originator of such electronic signatures shall be on the contender.
Any person who with the intent to defraud and or misrepresent, forges through
electronic devices another person’s signature or company mandate commits an
offence and shall be liable on conviction to imprisonment for a term of not
more than 7 years or a fine of not more than N10,000,000.00 or to both
fine and imprisonment.

The
following contractual transactions or declarations are however excluded and may
not be by electronic signature[v]:

Creation
and execution of wills, codicils and or other testamentary documents;
Death
certificate;
Birth
certificate;
Matters
of family law such as marriage, divorce, adoption and other related issues;
Isuance
of court orders, notices, official court documents such as affidavit,
pleadings, motions and other related judicial documents and instruments;
Any
cancellation or termination of utility services;
Any
instrument required to accompany any transportation or handling of dangerous
materials either solid or liquid in nature; and
Any
document ordering withdrawal of drugs, chemicals and any other material either
on the ground that such items are fake, dangerous to the people or the
environment or expired by any authority empowered to issue orders for
withdrawal of such items.

·
Cyber Terrorism

Any person that accesses or causes to be accessed any
computer or computer system or network for purposes of terrorism, commits an
offence and is liable on conviction to life imprisonment.

The act
further stipulates that for the purpose of the provision as stated above,
“terrorism” shall have the same meaning under the Terrorism (Prevention) Act,
2011, as amended.

·
Identity
theft and impersonation

The act provides that any person who is engaged in the
services of any financial institution, and as a result of his special knowledge
commits identity theft of its employer, staff, service providers and
consultants with the intent to defraud is guilty of an offence and upon
conviction shall be sentenced to 7 years imprisonment or N5, 000,000.00
fine or both.

The
act further provides that any person who fraudulently or dishonestly makes use
of the electronic signature, password or any other unique identification
feature of any other person; fraudulently impersonates another entity or
person, living or dead, with intent to –

(a) gain advantage for himself or another
person;

(b) obtain any property or an interest in
any property;

(c)
cause
disadvantage to the entity or person being impersonated or another person; or
avoid arrest or prosecution or to obstruct, pervert or defeat the course of
justice commits an offence and shall be liable on conviction to imprisonment
for a term of not more than 5 years or a fine of not more than N7,
000,000.00 or to both such fine and imprisonment.

·
Manipulation of ATM/POS terminals

Any person who manipulates an ATM machine or Point of
Sales terminals with the intention to defraud shall be guilty of an offence and
upon conviction sentenced to Five Years imprisonment or N5, 000,000.00
fine or both. Furthermore any employee of a financial institution found to have
connived with another person or group of persons to perpetrate fraud using an
ATM of Point of sales device, shall be guilty of an offence and upon conviction
sentenced to Seven Years imprisonment without an option of fine.[vi]

·
Electronic card related fraud

For card related offenses the act stipulates a jail term
of up 5 years and a fine of up to 7 million for offenses ranging from purchase
or sale of card of another, dealing in cards etc. In the case of financial
institutions, there is a fine of 10 million for any in institution that makes
available, lends, donates, or sells any list or portion of a list of
cardholders and their addresses and account numbers to any person without the
prior written permission of the cardholder(s).[vii]

·
Duty of financial institutions

Financial
institutions are required to verify the identity of their customers; as such
they are to request documents that bare their names, address and other relevant
information before issuance of ATM cards, credit cards, debit cards and other
related electronic devices. They are to apply the principle of know your
customer in documentation of customers preceding execution of customers
electronic transfer, payment, debit and issuance orders.

Any official or organization, who fails to obtain proper
identity of customers before executing customer electronic instructions in
whatever way, commits an offence and shall be liable on conviction to a fine of
N5, 000,000.00. It further provides that any financial institution that
makes an unauthorized debit on a customer’s account shall upon written
notification by the customer, provide clear legal authorization for such debit
to the customer or reverse such debit within 72 hours. Any financial
institution that fails to reverse such debit within 72 hours shall be guilty of
an offence and liable on conviction to restitution of the debit and a fine of N
5, 000,000.00.

·
Administration and Enforcement

The
office of the National Security Adviser shall be the coordinating body for
all

security
and enforcement agencies under this Act and shall provide support to all
relevant security, intelligence, law enforcement agencies and military
services to prevent and combat cybercrimes in Nigeria

·
Arrest, search, seizure and
prosecution

The
act provides that a law enforcement officer may apply ex-parte to a
Judge in chambers for the issuance of a warrant for the purpose of obtaining
electronic evidence in related crime investigation. The judge in turn may issue
a warrant authorizing a law enforcement officer to enter and search any
premises or place if within those premises, place or conveyance –

(i) an offence under the act is being
committed; or

(ii) there is evidence of the commission of
an offence under the act; or

(iii) there is an urgent need to prevent the
commission of an offence under the act.

The
judge may also make orders relating to search of persons, computer systems or
networks, vehicles etc.[viii]

·
Jurisdiction

The federal High Court in any location
in Nigeria, regardless of where the offence is committed has exclusive
jurisdiction to try offenses committed under the act.

·
Conclusion

Overall, the Cybercrime Act (2015) is
a boost for the Nigerian legal system as offences that are captured in the act
were in hitherto not provided for in any of our laws. This new act is in my
opinion a welcome development as it attempts to safe guard national security,
corporations and individuals alike.

Busayo Adedeji

Associate

Bloomfield Advocates
& Solicitors

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

Twitter:
@thestreetloya

[i]
Section 3(1) Cybercrime Act

[ii]
Section 7(1) Cybercrime Act

[iii]Section
9 Cybercrime Act

[iv]
Section 13 Cybercrime Act

[v]
Section 17(2) Cybercrime Act

[vi]
Section 30 Cybercrime Act

[vii]
Section 33, 34 & 35

[viii]
Section 45

Penalty for Cyberstalking in Nigeria

by Legalnaija | Aug 9, 2016 | Uncategorized

The Cybercrimes (Prohibition,
Prevention, Etc) Act, 2015 provides for an effective, unified and comprehensive
legal, regulatory and institutional framework for the prohibition, prevention,
detection, prosecution and punishment of cybercrimes in Nigeria. The act also
ensures the protection of critical national information infrastructure, and
promotes cybersecurity and the protection of computer systems and networks,
electronic communications, data and computer programs, intellectual property and
privacy rights.

As Nigeria’s online community
grows daily with the springing of thousands of blogs every week, the
Cybercrimes Act is a piece of legislation that should get the attention of
bloggers and online information marketers. One of the offences prohibited under
the Act is “Cyberstalking” which can be found under Section 24 of the Act. It
provides that –

(1)Any person who knowingly or
intentionally sends a message or other matter by means of computer systems or
network that -‐

(a)
is grossly offensive,
pornographic or of an indecent, obscene or menacing character or causes any
such message or matter to be so sent; or

(b)
he knows to be false, for the
purpose of causing annoyance, inconvenience danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred, ill will or needless anxiety to another
or causes such a message to be sent commits an offence under this Act and shall
be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years
or to both such fine and imprisonment.

By virtue of the above
provisions, it seems a number of people are guilty of this offence. Many
bloggers and online users are guilty of sending messages and articles over the
internet which can be considered to come under the purview of Section 24(1).

The act
further states in Subsection 2 that –

Any person who intentionally
transmits any communication through a computer system to bully, threaten or
harass another person, where such communication places another person in fear
of death, violence or bodily harm or to another person; commits an offence
under the Act and shall be liable on conviction to a term of 10 years and/or a
minimum fine of N25,000,000.00.

The
penalty mentioned above also goes to persons found liable of transmitting
communications which – contain any threat
to kidnap any person or any threat to harm another person, any demand or
request for a ransom for the release of any kidnapped person, to extort from
any person, firm, association or corporation, any money or other thing of
value;

Furthermore,
if the transmission contains any threat to harm the property or reputation of another
or the reputation of a deceased person or any threat to accuse another person
of a crime, or to extort from any person, firm, association, or corporation,
any money or other thing of value: such person commits an offence and shall be
liable on conviction to imprisonment for a term of 5 years and/or a minimum fine
of N15,000,000.00.

It should be noted that the
courts have the power to make an order protecting the victim of a Cyberstalker and
the Act empowers all law enforcement, security and intelligence agencies to
develop requisite institutional capacity for the effective implementation of
the provisions of the Cybercrimes Act.

It is important that every
active online user is familiar with the provisions of the Cybercrimes Act to
ensure they do not run fowl of its provisions.

Dunmade Onibokun

Principal Partner

Adedunmade Onibokun & Co.

www.adedunmadeonibokun.com

2348055424566

dunmadeo@yahoo.com

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[5]This is laid down in the popular case ofCOMPETENZ v COMPETENZ. See also section 12 of theAct and Article 21 of the Arbitration Rules in the First Schedule to the Act.

[5]This is laid down in the popular case ofCOMPETENZ v COMPETENZ. See also section
12 of theAct and Article 21 of the Arbitration Rules in the First Schedule to
the Act.