(+234)9029755663 hello@legalnaija.com
Ivie Omoregie – Is Your Domestic Staff Paying His Tax?

Ivie Omoregie – Is Your Domestic Staff Paying His Tax?

by | 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.

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

by | 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, 9thEd 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

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

by | 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

TyLegal – Read the contract before signing

by | 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

House of Representatives sidetracks Nigerians to amend Code of Conduct Act

by | 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?

Ronke Omorodion – Are you waiving your rights?

by | 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

Role of a Lagos State House of Assembly Member

by | 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.
Ed’s Note: This post was originally
published here
Chibueze Ngozi: What Lawyers can do to improve access to Justice for Children in Nigeria

Chibueze Ngozi: What Lawyers can do to improve access to Justice for Children in Nigeria

by | Jun 1, 2016 | Uncategorized



INTRODUCTION
In Nigeria, May 27 of every year
(today) is dedicated to celebrate children. Ironically, children and young
people have been the most vulnerable to the country’s socio-economic challenges
and are constantly exposed to incidents of poverty, exploitation, abuse and
poor health conditions which inhibit their overall development. The
UNICEF recently reported that no fewer than 10.5 million Nigerian children
are out of school. Also, over two years ago, a terrorist group, Boko Haram
abducted over 200 female children, and till date, the government has been
unable to locate them.

These unfortunate circumstances,
among others can be associated with an unmet need for accessible justice for
the Nigerian child. 
  
As a legal concept, access to justice
historically refers to a right of access to a court or tribunal to obtain
remedy for the violation of legal rights. However, over the last few decades,
the term has come to more broadly focus on everyday legal and social problems
that people experience from the viewpoint of the people experiencing them. It
advocates a range of proactive approaches to manage these everyday issues, and
encompasses the availability and effectiveness of the necessary institutions,
resources and services to anticipate and resolve civil and legal problems
fairly and efficiently.
THE CHILD RIGHTS ACT (“CRA”) AND THE
BEST INTERESTS PRINCIPLE
Generally, the CRA constitutes the
definitive legal framework for the administration of justice system for
children in Nigeria, and it defines a child as a person below the age of 18
years. There are also other national laws and applicable international
conventions and regulations which guarantee the rights of the Nigerian child.
However, the CRA attempts to consolidate the laws applicable to children, in
order to create a dedicated justice system, which affords them better
protection than under general law. 
Indeed, in order to realize an effective
access to justice for any group of people, the peculiar needs and circumstances
of that group should be of utmost consideration. To this extent, the CRA
provides that in every action concerning a child, whether undertaken by an
individual, public or private body, institutions or service, court of law, or
administrative or legislative authority the best interest of the child shall
be the primary consideration. 
The implication of this provision is
that in each material case, the best interests of the child become transformed
into enforceable rights, which must be identified and determined by the
relevant authority. Consequently, the best interest principle signifies
an essential prerequisite for the protection and promotion of all other civil,
cultural, economic, political and social rights of the child. And so, in any
action or proceeding involving a child, justice would mean the primary
consideration of his best interests, and access to justice may be construed
accordingly. 
Yet, in reality, this also means that
access to justice would often prove to be a measure of how far the overall
system will go to resolve the daily normative conflicts pitched between the
otherwise legitimate interests of wider society and the best interests
of children. It also raises the fundamental question as to what actually
constitutes the best interests of the child, and a further query as to who has
the competence to make that finding – judge, guardians, experts or the society.
 Lawyers have a huge capacity and
responsibility to facilitate access to justice for children, even beyond the
courtroom. However, in order to achieve this, they need to be deliberate in
their efforts to make the required difference. 
The influence that lawyers can exert in
this regard will be considered as follows:
1.     Lawyers in Private
Practice
2.     Lawyers in Public
Administration
3.     Law Teachers
4.     Judges (Lawyers on
the Bench)
5.     The Nigerian Bar
Association
1.     Lawyers in Private
Practice 
General Ethics and Professional Conduct
Counsel should be aware of and adhere
to applicable professional ethics when dealing with children, especially in
proceedings where they are unrepresented. Counsel should be respectful and, to
the extent possible, avoid the use of complex legal language or procedural
technicalities. Counsel on both sides should act with diligence and promptness
to effectively resolve any judicial or administrative proceedings involving the
child. 
Free Legal Representation
For most children, especially those in
conflict with the law, pro bono services would be their only hope of accessing
legal advice or representation. Legal practitioners can devise strategies
either acting alone or in concert, to provide organized and effective pro bono
representation to children where needed.
 Sensitization of the General
Public
In addition to arguing cases involving
violations of children’s rights, they should be actively engaged in mass
enlightenment and mobilization with a view to sensitizing the generality of the
people towards the realization of justice for children. 
Providing Consultation to NGOS
The efforts of organized group acting
in concert often prove more effective in human rights advocacy than the
isolated exertions of individual actors. There is no doubt that NGOs or volunteer
welfare associations play important roles for access to justice across the
nation. These groups are often active in providing some forms of legal aid,
such as legal assistance, creating legal awareness, legal training and advocacy
work. When contrasted with the legal aid initiatives provided by state agencies
and the legal profession, the support program offered by NGOs are usually much
more accessible for the children, especially the poor and vulnerable living in
rural areas. 
2.     Lawyers in Public
Administration: 
Policy formulation and enforcement of
existing laws
Legal practitioners working in the
civil service or sectors of the public service either as politicians or public
administrators are well positioned to initiate and manage relevant policies
which will promote the best interests of the child. This can be achieved using
legislative or administrative channels. The incorporation of international
principles applicable to the child and a harmonization of national and regional
laws should be given priority in the formulation of legislation touching on
children’s rights and freedoms. 
Legal drafting
Lawyers responsible for drafting laws
and policies which would clearly affect the rights or obligations of children
should ensure that the language used is simple and unambiguous with a focus on
the consistency and certainty of the overall legal framework. 
3.     The Law Teachers
(Lawyers in the Academia):
 The child justice system in
Nigeria is a developing area of law and law teachers should be relied upon by
the justice system to continue to clarify the emerging definitions of access to
justice for children in ways which translate to real meaning in their everyday
lives. This may necessarily involve collaboration with other disciplines of the
social and behavioral sciences to build capacity for access to justice
research. 
4.     The Judge (Lawyers on
the Bench):
 The role of the judge in the
interpretation of what constitutes the best interests of the child in each
given case is very critical to enhancing access to justice for children. 
In order to advance the interests of
the child, judges ought to simplify the applicable rules of proceedings and
give broad and progressive interpretations to applicable legal principles. In
doing so, a judge would do well to take advantage of the guidance offered by
international and comparative law principles applying the same where required
to domestic judicial decision. 
Also, judges should have high
expectations of the attorneys who appear before them in any proceedings
involving the child. 
5.     The Nigerian Bar
Association: 
Although the Nigerian Bar Association
(“NBA”) as a professional association arguably has the most influential
advantage to promote access to justice and the rule of law, it has not been
very effective in this regard. 
Facilitation of Knowledge Sharing 
The NBA can organize periodic continued
legal and judicial education for lawyers and judges respectively; and
specialized trainings for law enforcement, welfare officers and policy leaders
on the current laws and standards applicable to the administration of the child
justice system. This would also be a good opportunity to expose the weaknesses
in the system with a view to managing or eradicating them. 
In addition, the NBA can provide
leadership by working with the education authorities, to ensure that children
are taught their civil rights in a simplified form, as part of their academic
curriculum. 
Engaging National and Regional
Governments 
The critical role of the national and
regional governments in promoting access to justice for the children can be
galvanized and strengthened by the NBA through support efforts and awareness
campaigns to improve the quality of local regulations and consistency with the
international standards. 
 CONCLUSION 
The concept of Access to Justice for
children in Nigeria is broad and encompassing and aims at realizing the best
interests of the child. As the United Nations Sustainable Development Goals
(SDGs) agenda sets about the attainment of new global development goals and
targets, there is greater appreciation and understanding of the role that
access to justice plays in guaranteeing basic rights to education, food and
health, and in supporting other dimensions of sustainable development for
children. 
The lawyer is widely regarded as the
expert in access to justice issues. This expertise provides him with the
leverage and responsibility to promote access to justice for children in
various professional capacities. His role in this regard is undoubtedly
critical and requires the effective deployment of management skills and
resources in order to achieve any success.
Ed’s Note: This article was originally published by the author here. 
Real Estate Blues: Landlord and Tenant Romance by Akinyemi Ayinoluwa

Real Estate Blues: Landlord and Tenant Romance by Akinyemi Ayinoluwa

by | May 31, 2016 | Uncategorized


Emeka
Nwankwo is a legal practitioner with a viable law practice in Lagos. He is a
fine gentleman with his head well screwed to his neck.  Temperate,
unassuming, a charmer and a typical people-person. Little wonder, in his early
30s he has recorded huge milestones in his law career.
Emeka
resides in a peaceful, elitist neighborhood in Lagos, Nigeria. Though of the
eastern extraction, he enjoys a chummy relationship with his landlord, a yoruba
man in his early fifties.

Emeka
is blessed with a landlord he rarely sees, he breaks no sweat and neither has
any agent breathing down his neck on tenancy issues. Whenever hisl andlord
comes around, all they ever discuss – over chilled bottles of beer – is what
the English Premiership table looks like and their re-invigorated faith in
their darling club, Manchester United FC., clinching the premiership trophy.
The
above is rarely the case whenever a tenant settles in a new apartment in Lagos.
While prospecting, his attempts at procuring a befitting place of abode is
subject to different paradigms, and one of such is the indispensable overlord
and solution provider; the Landlord.
Landlords,
like others, are given to certain prejudices and self-conservatory
idiosyncrasies. Understandably none is Santa Claus.
Thoughts
like these always echo silently:
”
what part of the country is he from?”
“Is
he married, and if yes, how large is his family?”
“what
does he do for a living?” , “will he be able to sustain payment of rent as at
when due?”
“will
he keep the property in tenantable state and obey the terms of the agreement
signed ?”
These
notions are stirred-up in the minds of the landlord and often times he consults
his Agent or Lawyer in co-signing his decision after necessary circumspection.
However, this decision-making is solely his prerogative as often times the
agents and lawyers are swayed by their commissions. It is instructive to note
that when flashes of real estate deal-making and closing appear on the horizon
it takes a lot to stay objective and utterly professional. It is also poignant
to state that everyone involved in a real estate transaction is expected to
assume his duty with a deep sense of responsibility.
The
landlord, as proprietor, landowner or landholder has an almost absolute
interest in a defined property. The Tenant is the needy, or better still, he is
in need of a place to live in. In this equation, the landlord is the solution
provider, by virtue of what he owns, possesses or wields control over.
What
is at the very core of the Landlord-Tenant relationship is – satisfying the
need of the tenant; proffering an apartment, wherein the needy(tenant) enjoys
exclusive possession at a cost(rent) for a period of time.
Evidently,
not everyone shares an amorous relationship with their landlords, as is the
case with Emeka Nwankwo. One is often tempted to ask what exactly is
responsible for the prevalent cat-dog relationship of Landlords and Tenants;
why the courts in Lagos are congested with countless suits bothering on
recovery of premises, mesne profit and possession; why tenants see Landlords as
Shylocks; why there are incidents of breach of tenancy agreements etc.
My
experience litigating these issues would have me suggest that the erosion of
the peaceful enjoyment of the property by the tenant, and the failure to pay subsequent
rents/rates/service charges as at when due, are the chief contributory factors
to Landlord and Tenant disenchantment.
Perhaps
a few of such relationships could be salvaged from deterioration when both
parties understand their roles, rights and obligations. Oftentimes these terms
are canonized in the Tenancy Agreements. Numerous state legislations(tenancy
laws) reinforce certain standard form terms and cater to ensuring these
stipulations are enforceable, because everyone is the better for it when peace
and tranquility prevails.
The
under-listed accentuates, side by side, the rights and obligation of the two
parties. If these fundamentals are clearly understood and appreciated same
signposts an excursion to a sizzling romance.
TENANT’S
RIGHTS.
1)
He is entitled to quiet and peaceful enjoyment of the property, i.e, the
parking lots, the electricity, easements, water facility, common utilities etc.
2)
Freedom from unnecessary and unreasonable disturbances from the Landlord. e.g
showing up uninvited on the premises, hosting parties or staging receptions in
the courtyard of the Tenant without prior consent or authorization.
3)
Improvement on property, fixing doors, light fittings, painting walls, fixing
the the tiles in the toilet and bathrooms and the cupboards in the kitchen.
etc. A tenant should enjoy these sort of improvements made on the property,
particularly when he seeks to extend the term of the tenancy.
LANDLORD’S
RIGHTS.
1)
He has a right to inspect the property, in his personal capacity or through his
agents.
2)
He has a right to approve improvements, alterations and structural changes made
to his property.
3)
He has a right to increase rent at a reasonable degree, considering rental
value and the value of the property in question.
OBLIGATIONS
OF THE TENANT
1)
Pay rent, rates and charges as at when stated.
2)
Keep premises in good and tenantable state.
3)
Permit the Landlord or his agent the opportunity to inspect after prior
notification has been received and allow necessary repairs where necessary.
4)
No alteration without prior consent of the Landlord.
5)
No sub-letting or assignment of interest in property without Landlord’s
consent.
6)
To notify Landlord of structural and substantial alterations.
OBLIGATIONS
OF THE LANDLORD
1)
None disturbance of Tenant’s quiet and peaceful enjoyment of premises.
2)
Pay rates and charges as stipulated by law.
3)
Keep premises insured against loss or damage.
4)
Not to terminate or restrict a common facility or service for the use of the
premises.
It
would bode well for both parties, regardless of the side of the divide to
understand that they are obligated to allow each other enjoy certain rights to
forestall any clash of interests.
While
there is always the likelihood of friction in day to day human interaction, it
behooves on parties to treat same in a civil manner, it is advisable that
before a Landlord-Tenant relationship is executed there is a meeting of the
minds and a mutual understanding that civility and maturity will be the
watchword, in addition, parties should endeavor to incorporate terms that
mandates quick dispute resolution mechanisms whenever disputes arise.
LAST
WORDS TO READERS
You
live in Lagos? as a Landlord or Tenant? What is your story? how has the
relationship been? are you faced with litigation? how good is your agent? Does
your Lawyer represent your interest well enough? please do share your thoughts
in the comment section, particularly if this article resonates with your
experience.

Ed’s Note: This article was originally published here