Why are white people expats when the rest of us are immigrants?

by Legalnaija | Jun 9, 2016 | Uncategorized

Photo Credit – globaleye.com

In
the lexicon of human migration there are still hierarchical words, created with
the purpose of putting white people above everyone else. One of those remnants
is the word “expat”.

What
is an expat? And who is an expat? According to Wikipedia, “an expatriate (often
shortened to expat) is a person temporarily or permanently residing in a
country other than that of the person’s upbringing. The word comes from the
Latin terms ex (‘out of’) and patria (‘country, fatherland’)”.

Defined
that way, you should expect that any person going to work outside of his or her
country for a period of time would be an expat, regardless of his skin colour
or country. But that is not the case in reality; expat is a term reserved
exclusively for western white people going to work abroad.

Africans
are immigrants. Arabs are immigrants. Asians are immigrants. However, Europeans
are expats because they can’t be at the same level as other ethnicities. They
are superior. Immigrants is a term set aside for ‘inferior races’.

Don’t
take my word for it. The Wall Street Journal, the leading financial information
magazine in the world, has a blog dedicated to
the life of expats and recently they featured a story ‘Who is an expat,
anyway?’. Here are the main conclusions: “Some arrivals are described as
expats; others as immigrants; and some simply as migrants. It depends on social
class, country of origin and economic status. It’s strange to hear some people
in Hong Kong described as expats, but not others. Anyone with roots in a
western country is considered an expat … Filipino domestic helpers are just
guests, even if they’ve been here for decades. Mandarin-speaking mainland
Chinese are rarely regarded as expats … It’s a double standard woven into
official policy.”

The
reality is the same in Africa and
Europe. Top African professionals going to work in Europe are not considered
expats. They are immigrants. Period. “I work for multinational organisations
both in the private and public sectors. And being black or coloured doesn’t
gain me the term “expat”. I’m a highly qualified immigrant, as they call me, to
be politically correct,” says an African migrant worker.

Most
white people deny that they enjoy the privileges of a racist system. And why
not? But our responsibility is to point out and to deny them these privileges,
directly related to an outdated supremacist ideology. If you see those “expats”
in Africa, call them immigrants like everyone else. If that hurts their white
superiority, they can jump in the air and stay there. The political
deconstruction of this outdated worldview must continue.

Mawuna Remarque Koutonin is the editor of SiliconAfrica.com, where this blog was first
published. Follow @siliconafrica on
Twitter.

Michael Erdle – The Role of Arbitrator Disclosure in International Arbitration

by Legalnaija | Jun 9, 2016 | Uncategorized

Photo Credit – Blog.oup.com

There is a very natural human tendency to
claim the game is rigged when one loses.

“The
referee was obviously biased against us,” the coach says, explaining the team’s
loss.

Donald
Trump kept complaining that the Republican Party primary rules were rigged
against him, even though he was winning.

So,
too, in arbitration, when the losing party seeks to overturn an unfavourable
award. This is particularly evident in international arbitration, where there
is no right of appeal. Also, in some domestic arbitration cases, where appeals
are increasingly limited.

In
these situations, lack of jurisdiction or arbitrator bias may be the only way
to have an award set aside or block enforcement. But it’s a high-risk strategy
that can backfire on the unhappy loser.

This
was illustrated in a recent Ontario case, which the presiding judge called “a
thinly disguised attempt to avoid the consequences of an adverse decision on
the merits,” and awarded significant costs against the applicant “to deter
losing parties in international commercial arbitrations from launching baseless
ex post facto
challenges to an arbitrator’s impartiality.”

The
issue in Jacob
Securities Inc. v Typhoon Capital B.V., was whether an arbitrator’s failure
to disclose a potential conflict of interest involving his former law firm gave
rise to justifiable doubts as to his independence or impartiality and a
reasonable apprehension of bias.

Thomas
Heintzman, an experienced Toronto litigator and retired partner of McCathy
Tetreault, was appointed sole arbitrator under the arbitration clause in an
Engagement Agreement between Jacob and Typhoon.

Jacob,
a Canadian investment bank, had been engaged to raise financing for energy
projects promoted by Typhoon, a Dutch company. The dispute related to Jacob’s
claim for compensation for financing provided by Northland Power Inc. and
Northland Capital Inc. (“Northland”). A Northland executive was a witness in
the arbitration.

Mr.
Heintzman had confirmed that he was not aware of any conflict relating to the
parties or their principals when he was appointed. The parties also confirmed
they were not aware of any conflict or grounds to object to the appointment.

But
after Mr. Heintzman dismissed Jacob’s claim, Jacob retained new lawyers to
challenge the award. Jacob did some research and found that McCarthy’s had
acted for Northland and its underwriters on several transactions while Mr.
Heintzman was still a partner of the firm.

This
was enough to tempt Jacob to ask the court to throw out the award and order a
new arbitration.

Everyone
agreed that Mr. Heintzman had no actual knowledge of the relationship between
McCarthy’s and Northland when he was appointed or at any point during the
arbitration, but Jacob argued that he should have done a search with his former
firm and disclosed the conflict.

Justice
Greame Mew reviewed the current law and international guidelines relating to
arbitrator disclosure and decided that it was not reasonable to expect an
arbitrator to go to those lengths to discover potential conflicts. It is
reasonable to expect a current partner of a law firm to do such a conflict
check, but not a former partner, he concluded.

In
any event, firms owe a duty to their clients not to disclose confidential
information about their clients to third parties, including former partners.

It
is worth noting that the information about McCarthy’s representation was public
and the parties could have found it out, if they had looked. But no one did,
until after the award was issued.

This
question of arbitrator disclosure keeps surfacing in international arbitration,
because it is an effective way to challenge an award.

Justice
Mew referred to the decision of the Paris Court of Appeal in SA Auto Guadeloupe Investissements v
Colombus Acquisitions Inc, RG 13/13459 (cour d’appel de Paris, 14
October 2014), in which the court declined to enforce an award because Canadian
arbitrator Henri Alvarez did not fully disclose a conflict of interest relating
to his law firm, Fasken Martineau. The arbitrator’s declaration stated that
although his firm had previously represented a parent company of the claimant,
it was no longer doing so. Unknown to the arbitrator, however, the firm had
continued to represent the parent company. The court considered this work as an
important engagement for the firm and therefore its nondisclosure undermined
the arbitrator’s independence and impartiality.

That
decision was recently confirmed by the French Cour de Cassation (Civ. 1, 16 December 2015,
N°D14-26.279), under the Code of Civil Procedure which requires
that:

“Before accepting a mandate, an
arbitrator shall disclose any circumstance that may affect his or her
independence or impartiality. He or she shall also disclose promptly any such
circumstance that may arise after accepting the mandate“. (Article
1456)

Although
this provision came into effect after the arbitration had commenced, the court
found that it simply reflected the existing strict standard of disclosure under
French law. In particular, there is a continuous obligation to disclose both
personal relationships with participants in the arbitration and factual
circumstances involving the arbitrator’s law firm.

Contrast
this strict interpretation with the decision of the English High Court in a
case involving another Canadian arbitrator, David Haigh. W Limited v. M Sdn Bhd
arose from a London Court of International Arbitration proceeding where,
shortly after Mr. Haigh’s appointment, the parent company of the claimant in
the arbitration acquired a company that was a client of Mr. Haigh’s law firm.
He was not aware of the acquisition or the relationship between the two
companies.

The
court acknowledged that this situation fell squarely within the “Non-Waivable
Red List” of the International Bar Association’s Guidelines on Conflicts of
Interest in International Arbitration, which refers to situations where “the
arbitrator or his or her firm regularly advises the party, or an affiliate of
the party, and the arbitrator or his or her firm derives significant financial
income therefrom.” However, the court found that the Guidelines are not binding
under English law and that the proper test was whether the failure to disclose
was “such as to reasonably cause a doubt regarding the independence and
impartiality of the arbitrator”.

It
is interesting that, in finding no such reasonable doubt in this case, the
court relied heavily on an affidavit submitted by Mr. Haigh describing his
relationship with the firm, and the ongoing conflict checks he conducted which
did not disclose the relationship between the firm’s client and the claimant in
the arbitration.

The
court also criticized the IBA’s “Non-Waivable Red List”, questioning why the
parties should not have the discretion to waive a potential conflict if it has
been disclosed.

I
would add a further comment that the idea of a non-waivable list of prohibited
relationships seems particularly draconian when a situation arises – or is
discovered and disclosed – after the arbitration has begun. Why should the
parties be forced to throw away the time and money they have already spent and
start again with another arbitrator?

It
is important to remember that in all of these cases there was no direct
relationship between the arbitrator and the client of their current or former
law firm. And there was no personal knowledge of the relationship or the
potential conflict.

Nevertheless,
they reinforce the critical importance of full and timely disclosure of any
relationship that could be viewed as a conflict, especially in international
arbitration.

And,
as it becomes more difficult to challenge domestic arbitration awards on the
merits, it will be interesting to see whether Canadian courts will follow the
strict rules of the French courts or the more pragmatic approach of the English
courts.

Justice
Mew’s decision in the Jacob
Securities case suggests it may be the latter.

Ed’s Note – This article
was originally posted by the Canadian Online Legal Magazine via Slaw.ca

Ivie Omoregie – Is Your Domestic Staff Paying His Tax?

by Legalnaija | Jun 9, 2016 | Uncategorized

Photo Credit – twitter.com

I was having a conversation on tax with one
of my girlfriends, and she just couldn’t fathom why her driver who is making
N45k a month is expected to also pay taxes – especially in this harsh economy.
Her argument was that “what’s the point in paying tax when “they” don’t use it
to do what they are supposed to do, all they know is how to share money…. Road
we no get, NEPA get spiritual problem, police na to collect money for road side
dem know, if robbers dey my house dem no go show”. Having lived in Nigeria for
some time, I understood her argument. However, I had to stress that this
does not invalidate the law; to be deemed as a law abiding citizen, one has to
behave accordingly.

Nigeria’s Need For An Improved Tax Regime

Economists across the globe are in unison
when conceding this is a very fascinating period in the history of Nigeria; the
wonderful part is the fact that no one seems able to predict what might happen
next.

Recently, after many months of
deliberation, the 2016 “Budget of Change” was finally passed by the President.
Even from a casual look at the budget one thing that is very clear is the fact
that the budget is greatly dependent on increased borrowing. The rationale
behind this is that by pumping money into the system, and using same for the
development of several sectors, we ‘should’ see an immediate alleviation of the
forex pressures the country has been recently facing. ‘Eventually’, these
sectors will yield substantial returns. The tentative plan for the repayment of
this new debt being mostly money generated from taxes.

There have been rigorous efforts to make
the Nigerian tax regime significantly more efficient; historically it has been
weakened by the countries relaxed dependency on revenues being generated from
Oil and Gas activities. However, as we are all probably aware, with the fall in
oil prices and the reoccurring issues clouding that sector generally, the
urgent need to revitalise the country’s tax regime has become increasingly
glaring. Even the layman knows that taxation in this jurisdiction cannot be
compared to that of foreign counterparts – whether comparing the tax rates or
the effectiveness of collection.

There appears to be an intention to
rejuvenate the various streams of income generated from taxes – from Value
Added Tax to Companies Income Tax for smaller companies – we have already seen
the recent introduction of the N50 stamp duty levy for all transfers made into
current accounts. The eventual reality of this new budget is the layman being
obliged to comply with their statutory responsibility to pay taxes, thus
further feeling the squeeze.

Definition of Low Cadre Employee

The term “Low Cadre Employee” refers to
employees offering unskilled manual work, as well as office and administrative
support. Thus the driver, the cook, the nanny and the cleaner are all captured
by this term.

Persons Subject To Tax

An Assessable Person is the person upon whom tax is assessed and collected; the
term captures individuals, sole proprietors, partnerships, communities and
families, as well as trustees and executors. An Assessable Person may be a
nomadic worker who constantly moves around as well as persons working in a
structured stable environment. An Assessable Person, whether artificial or
real, must reside in any part of the country in the particular year of
assessment; however, there is express exemption granted to religious and
charitable organizations, labour organizations and governmental boards, states
and corporations.

As we can see, the definition of Assessable
Person includes all low cadre employees.

With the exception of companies, the
Personal Income Tax Act (PITA) regulates the tax obligations of the above
mentioned persons.

“Pay as You Earn”

This is a method of collecting Personal
Income Tax directly from employees’ salaries and wages; the employer deducts
the requisite amount and then pays the employee the balance, as provided by
S.81, PITA.
Under this section, every employer is required to file a return with the
relevant tax authority for all emoluments paid to its employees, with respect
of all employees in its employment in the preceding tax year.
PITA describes emoluments as being the total wages, salaries, allowances
(including benefits or perquisites that accrue to a person by reason of the
person’s employment), gratuities, pension, superannuation and any other income
derived solely by reason of that employment.

Applicable Tax Rates

The applicable tax rates are the same for
all industries and operate on the basis of prescribed intervals. Thus the tax
rates increase as the income received by the employee for that particular tax
year increases.

The scale is as follows:-

a. The first N300,000 will be charged at 7%;

b. The next N300,000 will be charged at
11%;

c. The next N500,000 will be charged at
15%;

d. The next N500,000 will be charged at
19%;

e. The next N1,600,000 will be charged at
21%; and

f. Then above N3,200,000 will be charged at
24%.

Where an employee’s taxable income is below
the N300,000 threshold, then the appropriate tax rate will be 1%.

Emphasis must be placed on the fact that
this is a graduated scale and so where the employee is making N3.5m a year the
entirety of this amount would not be taxed at the maximum of 24%, but rather
the first N300k of this amount would be taxed at 7%, the next N300k at 11% and
so on until the maximum threshold is reached; the eventual total of these
calculations will be computed as the Assessable Persons tax liability for that
year.

Implications of Breaking the Law

An employer will be deemed to be in
contravention of this Act where they have either failed to charge the correct
rates or where there has been a partial or non-remittance of the PAYE
deductions to the relevant tax authority.

A defaulting employer shall be liable upon conviction to pay a penalty
consisting of the total of the tax withheld or not remitted, as well as 10%
premium; interest on this combined amount shall be charged at the prevailing
Central Bank of Nigeria rate. The employer shall also be liable to imprisonment
for a period not exceeding 3 years.

Conclusion
Many employers of domestic staff do not appreciate the fact that they are
required under the provisions of this Act to make deductions from the salaries
of their employees and pay same to the relevant tax authority.

The ramifications of this is that, they
have left themselves liable to the mercy of a regime that is about to acquire
significant debt and seriously looking for money.

The FIRS has stressed that every citizen
must be in compliance with the provisions of this Act in order to ensure the
availability of funds for sustainable national development.

Ed’s Note- This article was originally published by the author here

Adenike Adetifa – Parties to an action: meaning of- nomenclature of.

by Legalnaija | Jun 8, 2016 | Uncategorized

Credit – uscourts.gov

“The apex court has held in Green v. Green that a
person whose interest is involved or is in issue in an action and who knowingly
choose to stand-by and let others fight his battle for him is equally bound by
the result in the same way as if he was a party”.

HIS
LORDSHIP JOHN INYANG OKORO J.C.A. IN CHIEF OF ARMY STAFF V. LAWAL (2012)
10 NWLR PART 1307 P. 62 @ 74

For
a non-lawyer, law student or person(s) with little to non-legal experience,
stepping into a court room for the very first time might be a bit overwhelming,
especially when such a person begins to witness
the exchange of certain intricate terms & phrases between lawyers and the
Judge(s). To sound less dramatic, such a person would literally feel as if they
just got teleported into a completely different world with people dressed in
flowing black gowns and wigs keep speaking in strange/alien languages. That at
least was how my experience went the first time I witnessed a court proceeding
and believe me when I say Nollywood movie courtroom scenes do not depict the
real thing (No offence meant).

MEANING OF:

The
parties to an action generally speaking, are persons whose names appear on the
record of the court as plaintiffs or defendants. They are other times referred
to as claimants, applicants, respondents, petitioners or appellant. In every
action, there must always be at least two (2) sides. It would either be between
claimant v. defendant, applicant v. respondent, petitioner v. respondent, or
appellant v. respondent. A plaintiff who conceives that he has a cause of
action against a particular defendant is entitled to pursue his remedy against
that defendant. Majorly, the manner in which parties to an action are addressed
will be dependent on factors such as; the cause of action, i.e. whether it is a
civil or criminal action; the type of court, i.e. whether it is before a
Magistrate Court or High Court; and the nature of the action i.e. whether it is
an originating action or an appeal to an appellate court.

A
claimant/plaintiff/petitioner/applicant/appellant is that party that files a
civil or criminal action, an application or petition in a court of law or seeks
to appeal the decision from same and to assert a right or demand while the
defendant/respondent is the party sued for such right or demand. An application
made during the pendency of the substantive suit could proceed from either the
claimant or defendant depending on the circumstances of the case. Where a party
is unsatisfied with the decision of a lower court, be it a final judgment or an
interlocutory ruling, such party can file for an appeal challenging either the
whole or a part of such decision at an appellate court of competent
jurisdiction. The party who files such an appeal is called the appellant while
the other party becomes the respondent.

In
some actions, parties are referred to as judgment creditor, judgment debtor or
garnishee. The judgment creditor is the party that obtained the judgment of a
court of competent jurisdiction in his favour while the judgment debtor is the
party that the decision was made against. The garnishee on the other hand is
party in whose custody the judgment debtor has money or any assets which the
judgment creditor now intends to attach and sell and use to fulfill the
judgment of the court. This sort of action usually occurs when a court of
competent jurisdiction gives a final judgment in respect of an action. Where
such judgment is in respect of monetary reliefs, the winning party can
institute a fresh action (the court becomes functus
officio (this is a Latin word that refers to the court or person having
fulfilled his/her/its function or accomplished the purpose set) upon
pronouncing a judgment and cannot revisit the action) i.e. garnishee
proceedings and make an application to the court to have the assets of the
losing party attached to fulfill the judgment debt.

NOMENCLATURE OF:

Ordinarily,
the main reason for the necessity in making a person a party to an action in
court is so that he would be bound by the result of the action in the judgment
of the court. Where an action is instituted in a court of competent
jurisdiction, the trial judge becomes dominus
litis (the person who makes the decision in a lawsuit) and
assumes under the relevant Civil Procedure Rules the duty and responsibility to
ensure that the proceeding accord with the justice of the case by joining as
plaintiffs or defendants at any stage of the proceedings, all the persons who
may be entitled to, or who may be likely to be affected by the result if they
have not already been made parties.

Parties
to an action can be classified into proper parties; necessary parties; and
desirable parties and the category a party falls into is determined by the
degree of interest of such party in the cause of action. While proper parties
are those who though not interested in the plaintiff’s claim are made parties
for good reason, e.g. where an action is brought to rescind a contract, any
person is a proper party to it who was active or concurred in the matte which
gave the plaintiff the right to rescind, desirable parties are those who have
an interest or who may be affected by the result. Necessary parties on the
other hand are those who are not only interested in the matter in the subject
matter of the proceedings, but who may be bound by the result of the action and
who in their absence the proceedings could not be fairly, effectively and
completely dealt with.

In
conclusion, it should be noted that the principle that guides the court in
joining any person as a party to a suit is whether the entry of such person(s)
as party to the suit will enable the court effectually and completely
adjudicate upon and settle all questions in the suit.

I
hope this write up was beneficial to you. You are welcomed to leave your
questions, comments, constructive criticism, suggestions, new ideas,
contributions etc in the comment section or my email address which is thelawdenike@gmail.com I look forward
to reading from your comments.

LEGAL AUTHORITIES USED:

1. Green v Green
(1987) 3 NWLR PART. 61 P. 480

2. Inyang v. Ebong
(2002) 2 NWLR PART. 751 P. 284 @ P. 340

3. Black’s law
dictionary, 9^thEd West publishing Co.

DISCLAIMER NOTICE: This blog is a
free education material, for your general information and enlightenment
purposes ONLY. This write up, by itself does not create a Client/Attorney
relationship between yourself and the author of this blog. Readers are
therefore advised to seek professional legal counseling to their specific
situation when they do arise. This blog is protected by Intellectual Property
Law and Regulations. It may however be shared with others parties or person
provided the writer’s Authorship is always acknowledged and this disclaimer
notice attached.

Ed’s Note: This article was originally published here

Akorede Omotayo – The UK Immigration Act 2016 and What it means for Nigerians migrating to the UK illegally

by Legalnaija | Jun 3, 2016 | Uncategorized

Photo Credit – Theguardian.com

On
12 May 2016, the Immigration
Act 2016 came into force, making it officially UK law. The importance of
this Act to Nigerians, and particularly Nigerian students, who live or intend
to migrate cum study in the UK cannot be over-emphasised.

The Act is designed to
create an ‘hostile environment’ for those who require immigration permission to
work and live in the UK but who do not have it.

Speaking about the new Act, Immigration Minister,
James Brokenshire said:

“The
message is clear – if you are here illegally, you shouldn’t be entitled to
receive the everyday benefits and services available to hard-working UK
families and people who have come to this country legitimately to contribute.

“Whether it is working,
renting a flat, having a bank account or driving a car, the new immigration act
will help us to take tougher action than ever before on those who flout the
law.

“It will deter illegal
migrants from trying to reach the UK by preventing them from accessing benefits
or services in this country and make it easier for us to remove those with no
right to be here.”

What are the key changes to
the law?

The provisions of the Act
that will affect Nigerians living or intending to live, work and study in the
UK are summarized below.

· Working

Employers who hire illegal migrants
and the workers themselves face criminal sanctions of up to five years’
imprisonment. Those who
have leave and are allowed to work but who undertake prohibited types of work,
for example, Tier 4 (General) students must not be self-employed or work as a
professional sportsperson or as an entertainer.

The
Home office has also
announced that Employers who are Tier 2 sponsors will be charged a £1000 immigration skills charge when they sponsor
individuals under these categories. The
implication of this for those who seek Tier 2 Visa’s for graduate jobs in the
UK is far reaching.

· Residential
tenancies

A tenant who is required to have leave to be in the UK but
who does not have it can be evicted. This will apply to tenancies entered into
before as well as after implementation of this Part of the Bill. A landlord who
has reasonable cause to believe his or her tenants have no ‘right to rent’ but
who takes no action against them can be imprisoned for up to five years and/or
be fined.

· Bank
accounts

Banks and building societies will be required to check the
immigration status of current account holders at a frequency to be set out in
regulations not yet published. They will be charged for doing this, and
presumably that charge can be passed to customers.

Migrants
who are found guilty can have their bank accounts frozen.

· Driving
licences

The Bill creates a new offence of driving when unlawfully in the
UK. The penalty will be imprisonment and/or a fine, as well as immigration
sanctions. People and premises can be searched for a driving licence.

· Power
to cancel s3C leave

If the Home Office considers that a person who has applied
for leave has failed to comply with a condition or used or uses deception in
seeking leave to remain, that person’s leave extended by virtue of section 3C
of the Immigration Act 1971 can be cancelled. This means that the individual
will become an overstayer and will immediately be affected by all the measures
summarised above, as well as usually being prohibited from study.

Also, the Government’s so called ‘deport first, appeal later’
scheme has been extended to all migrants (before it only applied to convicted
criminals with no residency rights). Any migrant can now be remove to their
home country pending the outcome of their appeal against the decision to remove
them.

Furthermore, pregnant women can now only be detained by
immigration authorities for up to 72 hours (and one week with special
permission).

All
in all…

With this huge new law,
the UK government is again trying to clamp down on illegal migrants. Nigerians
who lives in the UK or intend to migrate to the UK should be aware of these
changes. A violation of any immigration rule means that their bank account may
be frozen, driving licence revoked, and all rights to appeal can only be done
after deportation to the home country.

Profile: OMOTAYO Akorede
Samuel

Legal Intern at Atlantic
Solicitors, UK.

BA (Hons) Philosophy,

Graduate LLB (Presently),
Bangor University, UK.

Email:
akoredesammy@gmail.com

TyLegal – Read the contract before signing

by Legalnaija | Jun 2, 2016 | Uncategorized

It
is common knowledge that people hardly read all those ‘terms and conditions’
before clicking ‘I agree’ when buying an app online or something of the sort.
Or sometimes, a person just slips a piece of paper with different write-ups and
asks you to sign it. Many of us go right ahead to sign without reading its
contents…

This
is not very advisable as most contracts contain information or clauses that
should be read and understood before signing.

There
is this story making the rounds about an artiste who entered into an agreement
with a record label, where the record label gets 70% of proceeds while the
artiste is left with 30 %. The first thing that popped into my mind was why any
lawyer would advise his/her client to sign such ridiculous terms. Classic case
of ‘monkey dey work, baboon dey chop.’ It doesn’t matter if that is what
is prevalent in that sector, life is all about negotiations and setting new
precedents.

It
is hardly a good idea to sign any contract without getting a lawyer to read
through, particularly the small prints and legal jargons that may be included
in it. There are different clauses to look out for in a contract to be certain
that it is in your favour or at the very least, that it suits both parties.

Even
when making a gentleman’s agreement, one should remember that not every
self-acclaimed gentleman is actually a gentleman.

My
people, please always read any document before appending your signature. More
importantly, get your lawyer to read it and explain the terms of the contract
to you in clear terms. It is one of the reasons they went to law school,
lawyers are trained to see and interpret things you might omit or not
understand. Many lawyers are trained negotiators and can get you very good
deals without signing away your birthright.

Always
remember this; the words embedded in a contract are not for decoration. They
actually mean something and it is best to know what they mean before signing
it, to avoid stories that touch the heart.

Shouting
it from the rooftops…read that contract before signing!

Ed’s Note – This article was originally published here

House of Representatives sidetracks Nigerians to amend Code of Conduct Act

by Legalnaija | Jun 2, 2016 | Uncategorized

The
Code of Conduct Act has secretly been amended by the House of Representatives;
the secrecy behind the amendment must have been to prevent attracting the
attention of Nigerians who had in the past weeks decried the intention of the
Senate to amend same being that the Senate President is currently undergoing
trial before the CCT.

This
is more reason why Nigerians should pay more attention to the activities of
both chambers with eagle eyes in order to prevent the passing of any Bills
without carrying the public along.

By
virtue of the amendment made by the House, it has become compulsory for the CCB
to invite anyone considered to have violated the provision of the act before
referring to the CCT for trial. The above amendment was made to Section 3 of
the act which now includes a paragraph that reads,

“Upon complaint(s) of any breach or where it
appears to the Bureau that there is a breach of the provision or this Act, the
person concerned shall be given particulars of such non-compliance or breaches
to explain before any reference to the Tribunal”.

Furthermore, Section 4 (2)
was also amended to include the word “President”
and “National Assembly” as the bodies that can appoint and discipline staff
of the Bureau.

The above amendment
however raises a red flag, though in principle the CCB should not have
oversight over itself for the sake of transparency, it should only be the
President that should have such oversight powers over the agency.

What happens if another
member of the Senate is taken before the CCT, won’t the National Assembly try
to use the powers they now hold to act as overlords over the CCT. We saw
similar during the episodes of Saraki’s trial. Especially as we are dealing
with a National Assembly who allegedly pays more attention to issues that
concern their own over the interest of the Nation as a whole.

Nigerians must not forget
that this is a National Assembly that shrouds its finances in secrecy and is
far from transparent in its dealings with the public and with public funds.

Photo Credit – www.nass.gov.ng

Ronke Omorodion – Are you waiving your rights?

by Legalnaija | Jun 2, 2016 | Uncategorized

Welcome
back everyone! Ready for a fresh installment in our series? I sure am!

We
come back to Becky and BeWise Digital Limited (we’ve not forgotten about her,
lol). Business had been good but the fuel scarcity and power supply situation
in the country had started to affect the smooth running of her office. Getting
petrol for the office generator had become a hassle and the generator had
started developing faults. Since diesel seemed to be easier to come by these
days, she decided to acquire a new diesel generator for the office.

She
went to a renowned generator retailer close to her office called Jenkins Power
and purchased a new diesel power generating set for N500,000. Part of
documentation she signed when purchasing the generator was a Contract of Sale
document – which she did not actually read because she was in a hurry.

Jenkins also offered to do the
wiring of the generator for a fee but Becky declined and got her own
electrician to do the job after which they started using the generator.

A
week later, while running the generator, an electrical fire erupted from the
generator wiring. The fire was not quickly detected and two PCs, one printer, a
flat screen TV and a large part of the office wall got burnt before the fire
could be put out. It was a miracle that the generator itself didn’t go up in
flames.

Becky
was furious because she was sure the new generator had caused this. She stormed
over to Jenkins office, met with the service manager and started raising a
storm about how her property had been damaged because the generator sold to her
was sub-standard. She promised to take legal action against them and make them
pay for the loss incurred.

Jenkins
Power sent one of their engineers to investigate what happened and they found
out that the fire had been caused by low grade cables that were used to wire
the generator. Becky was still not satisfied and would have proceeded with
legal action until the Jenkins manager pointed out to her that there was a
waiver clause included in the contract of sale she signed that expressly stated
that Jenkins would not be held liable for any loss or damage of life and
property arising from the use of their equipment if the installation was not
done by them.

Becky
went through her copy of the contract of sale she had signed and found out they
were right. She had effectively waived her right to claim damages by signing
the document. There was nothing she could do. She would have to bear the cost
of her losses alone. She blamed herself for not reading through the Contract of
Sale before signing and for getting someone else to install the generator.

Case
Analysis

In
the scenario above, do you know that if Jenkins Power had not gotten Becky to
execute the Contract of Sale, they may have been held liable for Becky’s losses
or at best been made to bear the inconvenience and cost of legal action brought
about by Becky? Are you a business person, do you supply equipment or products?
You should protect your business from unwarranted claims like Jenkins Power did.

How
can I protect my business?

You
can tactfully include a Waiver of Rights/Liability clause in transaction
documents (e.g. a Contract of Sale) to be executed by your clients to protect
your business from frivolous and unfair claims. A waiver, as the name implies,
is an act of intentionally relinquishing or abandoning a known right, claim, or
privilege. It is usually found in different types of contracts ranging for
suppliers contract to hospitals who use it to protect themselves from
liability.

As
a business owner, make sure your contracts are drafted by a legal practitioner
as the inclusion of these clauses might be the lifeline that would save your
business in the future.

Thanks
for reading to the end. I sincerely hope you learnt something new today.

Ed’s Note: This article was originally posted by the author here

Role of a Lagos State House of Assembly Member

by Legalnaija | Jun 2, 2016 | Uncategorized

Any
eligible voter can run as a candidate for election to the Lagos State House of
Assembly. Members generally serve in government or in opposition and act in
agreement with party policy, although membership in a political party is not an
official requirement of elected office. If a member changes parties or chooses
to sit as an independent, he or she is not required to resign.

Members
are elected to represent the specific interests of their constituents but are
also representatives of the their local government and must consider
their needs as a whole. Whatever their political outlook, and regardless
of which side of the Assembly they sit on, members’ duties and obligations are
considerable.

Responsibilities in the Assembly

The
Lagos State House of Assembly was created to provide certain services for the
good of Lagosians. Each service has various standards that must be met; for
example, whenever the appropriation of a bill is passed on to the house they
must ensure that estimates are critically analysed and resources are
distributed in such a way those in need are put in priority. They must also
ensure that the money budgeted is efficiently utilized judiciously as intended.
When it comes to law making, the House of Assembly must ensure the laws are passed
with the positive interest of Lagosians at heart. The laws must also be
practical and implementable over a long period of time.

In the case of
legitimizing of a political candidate for office the House of Assembly must
pick an individual who is well qualified and possesses the skills needed for
the position. Members of the public are allowed to express their opinions of
this candidate in the House of Assembly form petitions and all these petitions
must be read and put into consideration before appointing the candidate for a
public office. When members of the public send in petitions to the House of
Assembly regarding various issues, the Committee Secretary of the House of
Assembly is given a 48-hour limit to respond to these petitions leaving behind
his name, position and contact information. Formal petitions will receive
responses within two weeks of the day it was issued.

Photo Credit – aislagos.com

The
House of Assembly recognizes that every Lagosian has the right to peacefully
protest, therefore part of the House of Assembly’s responsibility is to ensure
that the citizens’ rights are protected. Furthermore the House of Assembly is
entrusted with the responsibility of overseeing the activities of ministries,
departments and agencies (MDA’s), through committees. These committees conduct
semi-annually and annually inspections on the books of MDA’s in order to ensure
they are complying with the rules and laws that have been put in place; any
defiance of the law is punished accordingly. Lastly, another service they
provide is publication of hanzards, these are word for word reports of the
proceedings in the House of Assembly and they are made available to the general
public for a fixed fee.

Responsibilities in the Constituency

Due
to their knowledge of services offered by various levels of government and
community groups, members are uniquely qualified to help constituents resolve
their problems.

Members
need excellent interpersonal skills to understand and defend their
constituents’ interests. They may need the skills of a social worker to
effectively solve constituents’ pressing personal problems. Members often act
as a mediator to resolve a clash of interests within their constituencies or
between their constituents and other groups. They may have to advocate on
behalf of the community or explain the provisions and effects of proposed
legislation. They are often called upon to play a public role during local
events and ceremonial occasions.

Contacting Members in Their Constituencies

Every
member maintains at least one constituency office that they work from when the
Assembly or its committees are not in session. Contact information for a
member’s constituency office can be found here

Tenure of seat of Members

In
line with Section 105 of the Constitution of Nigeria, the life of an Assembly
is four (4) years commencing from the date of the first sitting of the House. Section
109 (1) however states the conditions that could make a Member vacate his/her
seat in the House as follows:

If
he becomes a Member of another legislative House;
Ceases
to be a citizen of Nigeria;
Becomes
a Member of another political party before the expiration of the period
for which he was elected. However, such member may not vacate his seat in
the House if his/her movement to another is sequel to a division in the
political party which he was previously a member or merging of the party
with another party by one of which he was previously sponsored; and
He
is recalled by his constituents for lack of confidence.