by Legalnaija | Nov 1, 2022 | Blawg
By the nature of business, it is impossible for any business entity to operate like an island. Every business has customers, suppliers, thereby interacting with the larger society in different ways. One very essential part of this interaction are agreements. Agreements for supply, for sale, and for services for instance.
Agreements are terms of defined expectations or guidelines in place to guide the parties in a contract. A well and sound drafted agreement is integral for commercial sustainability and success. Businesses that payed less attention to their agreements have had bitter experiences and most times jeopardized their chances of getting legal redress at the end of the day.
A major feature of agreements is that they help outline the expectations and deliverables of both parties, thereby removing any ambiguity to the intention of the parties. In any business environment, it is critical to have legal documentation in place to establish a system of rules and policies governing the legal enforcement of promises. Whether it be to simply memorialize a common understanding of an organizational relationship or govern future venture needs, the protections afforded by strong contracts are invaluable to operating a successful business.
Protecting your business in the event of a breach of contract is also a major advantage of having an Agreement. A breach of contract means that the party in breach has acted contrary to the terms of the contract by performing a contract negligently and not in accordance with its terms. When there is a breach of contract, the aggrieved party can be awarded damages. Damages are awarded to restore the plaintiff as far as money can to the position he would have been if there had been no breach.
There are other advantages of having an agreement but businesses can only benefit from them, when there is an Agreement. Such Agreement could be written or verbal, however, written agreements are better as they are easier to prove.
If you have any comments, questions or remarks about Agreements, you can simply drop a comment or send us an email.
AOC Solicitors
www.aocsolicitors.com.ng
info@www.aocsolicitors.com.ng
09029755663.
Originally published by AOC Solicitors
by Legalnaija | Nov 1, 2022 | Blawg
Introduction
Nigerian entrepreneurs have long been harmed by adverse regulatory conditions that make it more difficult to launch, build, and scale an innovative enterprise. According to a 2020 report from World Bank[1] on doing business, Nigeria was ranked low in the ease of doing business ranking as it was ranked 131 out of 190 countries that made the list. Nigeria’s low ranking in this report did not come as a surprise because the nation’s business ecosystem with specific emphasis on the tech space contends with frustrating and stifling policies from the government and a number of other challenges. A number of promising tech startups in Nigeria with the potential to immensely drive profit of the Nation’s economy stopped operation because of the government’s approach to policies that relate to tech support. To remedy this situation plaguing the Nation’s business environment, the Nigerian Startup Bill was forwarded to the senate on March 1, 2021. On October 19, 2022, President Muhammadu Buhari signed the Nigerian Startup Bill into law. As such, the nation for the first time has a unifying law to regulate its startup ecosystem; The Nigerian Startup Act (“the Act”).
Prior to the Nigerian Startup Act, the laws that govern Startups and SMEs were found in different legislations, which made for proliferation of taxes to be paid to numerous agencies. These legislations also provide for the payment of tax to different regulatory agencies. Some of these legislations includes The Companies and Allied Matters Act, 2020, The Investment and Securities Act, The Companies Income Tax Act and The Personal Income Tax Act.
The introduction of the Nigerian Startup Act (the “Act”) is an innovative development that aims to improve the business environment for startups in Nigeria. The major objective of the Act is to create an enabling environment for startups by providing a legal and institutional framework for the development of startups, creating incentives for the development and growth of technology related talents, removing regulatory constraints, and positioning Nigeria’s startup ecosystem as the leading digital technology centre in Africa. The bill eradicates the legal uncertainties that have trailed the startup industry in the past. It provides for what qualifies a company to register and obtain startup status. This article aims at giving a brief overview of the salient provisions of the Act which embodies 51 Sections, and one Schedule.
Salient Provisions of the Nigerian Startup Act 2022
Definition of Startups under the Act
Startups are defined under the Act as a company in existence for not more than 10 years, with its objectives being the creation, innovation, production, development, or adoption of a unique digital technology innovative product, service, or process.[2]
According to this definition, the Act will be applicable to tech-enabled startups, which are businesses that use current, cutting-edge technical advancements to address operational problems or enhance consumer experience. Small and medium enterprises (SMEs) that are not tech related would consequently not be covered by it.
Startup Labelling
The Act provides that before a company can be labelled a startup, it must obtain a certificate known as the startup label. This means that only companies with the startup label will be recognized as startups. By virtue of section 13(2) ; a startup will be granted a startup label where it is registered as a limited liability company under the Companies and Allied Matters Act for a period not more than ten years, with its objects being innovation, development, production, improvement and commercialization of a digital technology innovative product or process; to be regarded as a startup by virtue of section 13(2), such company must have at least one Nigerian as a founder or Co-founder of the startup, provided that the Nigerian founder or co-founder will share from profit or revenue from the sale of shares and at least 51% of its shares should be held by Nigerians. Companies whose foreign participation exceeds 49% will still qualify where the ultimate beneficial owners of its foreign corporate shareholders are Nigerian citizens. Companies issued with a startup label are required by the Act to adhere to the requirements stated above and failure to comply with these obligations can revoke their startup label.[3]
The Act mandates that a Startup Support and Engagement Portal should be established to facilitate the issuance of the startup label and also bridge the gap between regulators and startups. The Startup portal shall also be responsible for creating opportunities for startups to participate in challenges and programs that would enhance financing, innovation and provision of incentives among others.[4]
The Startup Consultative Forum
The Act established a Startup Consultative Forum (the “Forum”)[5], which will be made up of industry stakeholders and representatives, to prevent onerous regulatory policies. The Forum provides stakeholders with a constant channel of communication with the Nigerian government for the advancement of the startup ecosystem. The Act also mandates the National Digital Innovation, Entrepreneurship, and Startup Policy’s implementation in order to foster the growth of the startup ecosystem. The introduction of aggressive government measures that impede the ecosystem’s growth is expected to be reduced to a minimum by the execution of the Policy and ongoing engagement with stakeholders.
Establishment of the Council for Digital Innovation and Entrepreneurship
The Act establishes a council known as the national council for digital innovation and entrepreneurship.[6] The council has the duty to ensure the realisation of the objectives of the Bill, harmonise laws that regulate startups and ensure the development of digital technology through grants to persons and institutions involved in research and technology.[7] The council shall also have the power to examine the regulations and directives of Ministries, Departments and Agencies that directly affect the functioning, funding and operations of startups in Nigeria.[8] The National Information Technology Development Agency shall serve as the Secretariat of the Council (“the Secretariat”)[9], and shall be in charge of managing the labelling process of a startup, providing access to information and performing such other duties as required by the bill.
Establishment of Startup Investment Seed Fund
The Act establishes a fund known as Startup Investment Seed Fund to be managed by the Nigeria Sovereign Investment Authority otherwise known as the fund manager.[10] The startup investment seed fund by virtue of section 19 aims to provide special seed funds to startups. The fund will provide finance and tech reliefs to startups. This will undoubtedly increase access to funding for startups and improve the startup ecosystem in Nigeria.
Training, Capacity Building, and Talent Development
The Act introduces a program that will enhance the training[11] and development of talents[12] in the Nigerian startup ecosystem. It provides support for academic research institutions geared towards startup development[13]. The implication of this is that startups and their employees will have access to educational programs that will empower them with the right skills and enhance their competitiveness in the industry.
The Act empowers the secretariat to collaborate with the National Universities Commission, universities, and polytechnics within Nigeria to develop modules, programs and hold workshops aimed at impacting knowledge necessary for the establishment and running of a startup in Nigeria. The Secretariat shall establish centres for the acquisition of digital technology in the six geopolitical zones of Nigeria for the promotion of digital technology utilisation, strengthening of digital technology management capability, and information systems. The Secretariat shall also support the activities of an academic research institution to the development of a startup.
Introduction of Tax and Fiscal Incentives
Companies labelled as startups will benefit from some tax reliefs and incentives under the Act. These labelled startups are eligible for pioneer status incentives and other tax reliefs[14]. Labelled startups with at least ten employees where 60% of the employees have no prior work experience within three years of graduation or any vocational program have access to percentage-based tax relief of 5% on income tax[15]. Labelled Startups under the Act will also be eligible for export incentives and financial assistance from the Export Development Fund, Export Expansion grant and the Export Adjustment Scheme Fund.[16]
The Act further provides for access to government grants, loans and financial support through a credit guarantee scheme.[17]
The Act encourages investment in startups by providing tax incentives and reliefs for investors investing in a labelled startup.[18] Tax incentives are also provided to employees and external service provides for labelled startups.[19] By virtue of section 31, an eligible employee of a labelled Startup shall be entitled to personal income tax exemption of 35% on the income of the employee for a period of two years from the date of engagement by the labelled Startup. The criteria for eligibility of an employee will be determined by the Secretariat and the Joint Tax Board.
Provision of Regulatory Support
The Act enhances regulatory support for startups. It provides for collaboration with regulatory bodies to facilitate seamless processes for labelled startups. The provision for regulatory support applies to bodies like the Corporate Affairs Commission[20], Nigerian Copyright Commission, and Trademarks, Patent and Design Registries,[21] Securities and Exchange Commission,[22] National Office for Technology Acquisition and Promotion,[23] Central Bank of Nigeria,[24] and Nigerian Exchange Limited.[25]
Introduction of Incubation and Accelerator Programs
The Act also provides for the establishment of accelerator and incubator programs that will grow the startup ecosystem. The Act seeks to create a policy that will aid the establishment and development of accelerators and incubators, it also aims to regulate the relationship and promote collaboration between accelerators, incubators and startups.[26]
These incubators will help startups solve operational issues they are bound to encounter in running their business.
Shortcomings of the Act.
Despite the several innovations introduced by the startup act, it is not devoid of certain shortcomings.
One major shortcoming of the Act is the proliferation of laws and regulators, although the act is in line with international standards, it introduces additional bodies and regulations to enterprises that will typically fall within the ambit of CAMA, thus resulting in the proliferation of laws. Similarly the introduction of more administrative bodies would add an extra hurdle in the operation of startup companies.
Conclusion
The introduction of the Act is truly a step in the right direction in creating an enabling environment for Startups to thrive in Nigeria. It seeks to reduce regulatory hurdles currently faced by Startups and relevant regulators including the Corporate Affair Commission and the Securities and Exchange Commission in controlling the startup ecosystem in Nigeria. However, like with previous laws, there is no certainty that the Nigerian government will put the provisions of the Act into practice, but the new law, in the opinion of Oswald Osaretin Guobadia, Senior Special Assistant to the President on Innovation, leaves room for business owners to take the initiative.
The Act seeks to leverage the growing digital economy in the country. A regulatory framework like this will improve the ecosystem for startups as well as encourage investors to invest in startups which will in effect create more employment and improve the economy of the nation.
AOC Solicitors
Adedunmade Onibokun & Co.
info@aocsolicitors.com.ng
www.aocsolicitors.com.ng
[1] World Bank “Doing Business 2020” available at https://openknowledge.worldbank.org/bitstream/handle/10986/32436/9781464814402.pdf?sequence=24&isAllowed=y (Accessed 20 October 2022)
[2] Section 13(2) of the Nigerian Startup Act 2022
[3] Section 17 of the Act, withdrawal of a Startup Label
[4] Section 10(1) and (2) of the Act.
[5] Section 12 0f the Act
[6] Section 3(1) of the Act
[7] Section 7(1) of the Act
[8] Section 7(2) of the Act
[9] Section 9 of the Act
[10] Section 19 of the Act
[11] Section 21 of the Act
[12] Section 22 of the Act
[13] Section 23 of the Act
[14] Section 24 of the Act
[15] Section 26 of the Act
[16] Secton 27 of the Act
[17] Section 29 of the Act
[18] Section 30 of the Act
[19] Section 31 of the Act
[20] Section 33 of the Act
[21] Section 34 of the Act
[22] Section 35 of the Act
[23] Section 36 of the Act
[24] Section 37 of the Act
[25] Section 39 of the Act
[26] Section 41 of the Act
Originally published by AOC.
by Legalnaija | Jul 29, 2022 | Blawg
DIY Legal Agreements!
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Using our smart contract templates is cheaper, faster and easier than any other alternative. Documents available include;
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Bet your friends, colleagues and family members will find this useful.
@legalnaija
www.legalnaija.com
One-stop-shop for legal
09029755663
by Legalnaija | May 10, 2022 | Blawg
What is an art licensing agreement?
An artist licensing agreement allows an artist while retaining full copyright ownership of their work, to grant permission to another party to use their art.
How it works
As an artist, your job is to paint masterpieces and you must have created some amazing pieces of art in your career, which are no doubt collectors’ items. Now imagine, a brand or company wants to use your art in a promotional material, film or commercial. A licensing agreement is the legal document the artist signs with the brand or company wanting to use the art work. In this relationship, the artist is known as the Licensor, while the company or brand is known as the Licensee.
As an artist and the creator of your works of art, you are the sole owner of your work’s copyright, until you sell or transfer the copyright to another entity. Whether you become involved in an artist licensing agreement for a short amount of time, or permanently, you still own the rights to your work. As sole owner, you retain several absolute rights for the works you produce under the Copyright Act.
The Terms Covered in an Artist Licensing Agreement are
* Who the artist is and who the client is
* The duration of time that the licensing agreement will last
* The products that the artist’s images will appear on
* The distribution and the selling of the products that have the artist’s artwork on them
* The artist will have approval in how the client treats the artwork
* How much the client will agree to pay the artist in advance and in royalties
* The frequency that the client will pay the artist for the use of their work
* How the artist can exit the licensing agreement if they no longer want to be apart of it
The benefit of licensing your work can be quite substantial including more financial income.
If you are considering getting a licensing agreement for your images, you can customize and download one in less than 5 minutes to your email. Plus its cheaper, faster and easier.
Simply visit legalnaija.com to get started.
@Legalnaija
www.legalnaija.com
by Legalnaija | May 7, 2022 | Blawg, Book, Directory
Did you know some of the richest lawyers in Nigeria include Wole Olanipekun SAN, Chief Afe Babalola SAN, Wale Babalakin SAN, and Gbenga Oyebode. Also, some of the richest lawyers in the world according to Biglaw Investor, include Wichai Thongtang from Thailand worth $1.8 billion; Charlie Munger worth $1. Billion, and Bill Neukom worth $850 million. You may be familiar with some of these names. Contrary to what some people will have you believe, being a lawyer is still one of the highest paying careers in Nigeria and the world.
However, like every other profession or career, success does not come easy, it takes hard work, dedication, and integrity to become a successful lawyer. Also, Nigerian lawyers have an advantage over certain lawyers in other jurisdictions, being that Nigerian lawyers are called as Barristers and Solicitors, meaning you can earn money either as a Barrister, a Solicitor, or both.
If you will like to become one of the highest paying lawyers, here are a five tips you can include in your everyday schedule that will have on your way;
- Learn, unlearn and relearn every day.
- Be Organized
- Build and maintain a network
- Take advantage of technology
- Be creative and innovative
Interestingly, at Legalnaija, we also have tools that can help advance your law career, increase your income and promote your brand. Some of these include;
- The Lawyers Directory which helps users find you online through your area of practice, location and gender.
- The Blawg on which you can publish your expert opinions, commentaries and law articles for the public to read.
- Our Contract Templates which cut drafting time by over 98% so you can focus on more serious matters.
- The Online Bookstore where you can order some of the most recent legal textbooks and journals in your area of practice.
- A Research Assistant that cuts your research time significantly by providing you with quick answers, and
- Our Online Dispute Resolution platform where you can negotiate, record and resolve your client disputes.
All the tools mentioned above are available on our website www.legalnaija.com and taking advantage of them is what you need to get you on your way to success.
Remember, we are always rooting for you.
Image credit: www.bellanaija.com
by Legalnaija | Mar 8, 2022 | Blawg, Law
“it’s money 2.0, a huge, huge, huge deal” – Chamath Palihapitiya. Venture Capitalist.
Hardly does a week go by, that there is no news about cryptocurrency or Bitcoin. It’s either the urgency to invest in it or its volatile nature. Infact, Nigeria through its Central Bank activated on Monday, 25th October, 2021 it’s digital currency (Central Bank Digital Currency – CBDC) called ‘e-Naira’
Advocate of digital currency see it not just as the future of money but it’s present.
“Bitcoin will do to banks what email did to the postal industry” – Rick Falkvinge (Swedish Pirate Party Leader).
“as the value goes up, heads start to swivel and skeptics begin to soften. Starting a new currency is easy, anyone can do it. The trick is getting people to accept it because it is their use that give the money value” – Adam B. Levine.
There are those who do not see any value in Digital Currency (cryptocurrency). They don’t understand it nor care to, they consider it a fraud/scam.
“What value does cryptocurrency add? No one has been able to answer that question to me” – Stevie Eisman.
“It is a mirage basically, it’s a very effective way of transmitting money and you can do it anonymously and all that. A check is a way of transmitting money too. Are checks worth a whole lot of money just because they can transmit money?… The idea that it has some huge intrinsic value is just a joke in my view – Warren Buffett
Digital currency is any means of payment for goods and services that exists in a purely electronic form, it is not physically tangible like a money note or coin. It is a medium for daily transactions but it is not cash. It is important to state that the money in your online bank account is not digital currency because it takes on a physical form when you withdraw it from an ATM (Automated Teller Machine). In 2020, Warren Buffett had this to say ” cryptocurrency basically has no value and they don’t produce anything. They don’t reproduce, they can’t mail you a check, they can’t do anything and what you hope is that somebody else comes along and pays you more for them later on, but then that person’s got the problem. In terms of value: zero”
Like it or not, there are people who belong to the same school of thought as Warren Buffett.
Before answering the question, If it is possible to buy a property with digital money? Let’s understand what digital money (currency) is and how it works?
The fact that it doesn’t exist in physical form does not mean it isn’t worth anything. The basis for the creation of digital currency was to fix the flaws with the way money is transmitted from one person to another.
There are different types of digital currency:
- Central Bank Digital Currencies (CBDC):- are currencies issued by the Central Bank of a country. It is a virtual form of a country’s fiat currency. It aims to ease monetary policy implementation by removing intermediaries (banks and financial institutions) and establishing a direct connection between the government and the average citizen. It can also be used for financial inclusion. Examples; e-Naira (Nigeria), Sand Dollar (Bahamas), DCash (Antigua and Barbuda). According to Alanticcouncil.org CBDC tracker, 87 countries are now exploring a CBDC. 7 countries have now fully launch a CBDC, Nigeria being the latest country to launch its CBDC.
- Cryptocurrencies:- are digital currencies designed using cryptography (Blockchain technology). Examples; Bitcoin, Ethereum, Binance coin, Cardano, Tether, Solana, Polkadot, Doge coin etc.
- Virtual Currencies: are digital representations of value, its transactions occur solely on online networks or the internet. They are largely unregulated, issued and controlled by its developers. They are used and accepted electronically among members of a specific virtual community i.e. private organizations or groups of developers.
Examples are tokens and cryptocurrencies. They are not used as a payment method in mainstream society, but mostly in gaming communities.
Digital currencies, Virtual currencies, cryptocurrencies all sound and work in a similar way, however they are different. All Virtual currencies and Cryptocurrencies are digital currencies but not all digital currencies are virtual Currencies, for example; CBDCs are not virtual currencies or cryptocurrencies.
Digital currencies can be regulated or unregulated. CBDC is an example of a regulated digital currency and Bitcoin is an example of an unregulated digital currency. Cryptocurrencies uses cryptography to secure their networks while Virtual currencies may or may not use cryptography.
Digital Currency is built through the Blockchain technology, which is a digital ledger where all transactions involving a digital currency are stored. All digital currencies are created, stored and exchanged on their own separate Blockchain networks. A digital currency’s blockchain network is a digital ledger of all transactions on that currency. New transactions are grouped into blocks, each block is confirmed and validated by multiple users through out the network, before being added at the end of the chain. Every user has their copy of the ledger and it is constantly updated.
How do people use digital currency? How can fraud and manipulation be eliminated from a transaction between users? This leads us to a process called ‘ Mining’. Miners confirm all the transactions inside a new block so it can be recorded and sealed on the Blockchain ledger. To regulate the supply of the currency and control inflation, the blockchain software protocol makes it increasingly difficult for miners to generate hashes and confirm new blocks as the network grows in size. This guarantees accountability, transparency and stability for networks and their currencies.
Remember that digital currency does not exist in physical form, then how do I store it?
When digital currency are mined on their blockchain and transferred between users, they must be stored in a digital currency wallet. The wallets are pieces of software which can be used to store digital currencies securely for an indefinite period of time. All digital currency wallets have a public key and at least one private key.
When you send and/or receive digital currency
,the transaction is recorded on the ledger, everyone can see but it documents only your wallet location and none of your personal identifiable information this ensures anonymity. The private key can only be seen by the owner of the wallet. It contains the cryptographic information needed to authorize transfers out of the wallet, this key should never be shared.
WHY IS DIGITAL CURRENCY (CRYPTOCURRENCY) SO POPULAR?
- It is seen by some as the currency of the future therefore there is the urgency to buy them now before they become more valuable.
- There are no intermediaries, no third party financial institution is required to oversee the transactions.
- It is decentralized. There is no single data center where all transactions data is stored. Data from this digital ledger is stored on hard drives and serves all over the world.
- Because there are no intermediaries, transmission of money is faster and cuts back on costs.
- There is no need for a physical storage and safekeeping unlike cash.
- Digital Currency transactions can become censorship resistant and impervious to tracking by government and other authority.
- It ensures the inclusion of groups of people previously excluded from the economy. For instance; the unbanked can still participate in the economy using digital currency in their online wallets or mobile phones.
- It simplifies accounting and recording keeping for transactions through technology.
As with all things, there are upsides and downsides. The disadvantages of digital currency are:
- It is an uncharted and unfamiliar territory for most policy makers thus presenting challenges on the policy framework.
- It is a target for hackers who can steal from digital wallet
- It has its own cost. You need digital wallet to store your digital currencies, system that uses Blockchain also have to pay transaction fees.
The use of digital currency is growing everyday and may take center stage in financial transactions. Buying a property, be it for home ownership or investment purposes is a huge and important decision and security is a critical element in real estate investment. Presently, you can pay for a property using cash, bank transfers and credit card payments. The question is can I buy or sell a property using digital currency?
Nigerians are heavy cryptocurrency users, second to the United States of America. According to paxful platform, in 2020, 1.1 million cryptocurrency trades were recorded per month in Nigeria.
Why is cryptocurrency popular in Nigeria?
Some use it to protect their savings against the Naira depreciation, others as an alternative source of income, as a way to get around foreign currency restrictions etc. Despite, it being a high risk investment, its usage and trading in Nigeria continue to increase.
Back to the question, if one can buy or sell a property using digital currency? Yes, it is possible in some markets though it is a novel concept. For instance, the first property to be sold for Bitcoin was in Austin, Texas in 2017. It is important that you understand cryptocurrencies, digital Currencies, how it works, before using them for real estate assets.
In certain markets and jurisdiction, the Crypto- property market is gradually opening up. There are property sellers and buyers willing to accept cryptocurrencies. There are also Property Lawyers in crypto real estate transactions. In October, 2017, the first Ethereum real estate transaction was conducted, Michael Arrington (Founder of TechCrunch) bought an apartment in the Ukrainian market using an Ethereum smart contract.
Before you buy a property using cryptocurrencies, you must:
- Understand and educate your about digital Currencies and Cryptocurrencies. How it works, the market and the risks involved.
2 .Find a seller willing to accept it as payment. In some markets, there are sellers and agents who list their properties stating their willingness to accept cryptocurrencies, though some use this as a strategy to generate buzz for their properties. Some request for payment split between cryptocurrencies and traditional currency.
- Set the standard. Cryptocurrency is highly volatile therefore when using it to purchase a property, it is best to set the purchase price of the property in fiat currency (government issued currency. Modern paper money e.g. US Dollars, British Pounds, Naira etc). The contract must expressly state how the cryptocurrency will be settled. For instance: if the purchase price for the property is 20 Million Naira and the price/value of the cryptocurrency drops at the close of the purchase transaction, the buyer must make up the difference or where the price/value of the cryptocurrency increases in value and the transfer has been done, the surplus should be returned to the buyer.
- Verify: Always conduct your due diligence because the use of cryptocurrencies in real estate transactions is a novel concept, cryptocurrencies are volatile, susceptible to hacking and can be used for money laundering.
- Find the right people to work with. Because many people still do not understand how it works, others see cryptocurrencies as ‘fake internet money.
CONCLUSION
Despite the advantages in using cryptocurrencies in real estate transactions, it must be understood that it has a high price volatility risk. The value can change in seconds during the course of a sale transaction which may lead to the seller opting out. Further it is a new concept, many are not familiar with it and thus it would be difficult to find a seller willing to accept it over the traditional currency particularly in the Nigerian property market. Where one even finds a willing seller, he/she may be nervous about closing a transaction because of its price volatility.
In the real estate market, cryptocurrencies are considered as very risky or an unknown, therefore there are very few players willing to work with it
REFERENCES
- Investopedia
- com/how digital currency works.
- com Forbes.com Bloomberg.com Thisday.com Rockethq.com Chainalysis
- org/CBDC Tracker Wikipedia
- ng
Ololade O. Soda-Pereira is a Legal practitioner, Writer and Researcher with 15 years experience in legal practice and specialization in the following practice areas; Property Law, Estate Planning and Succession, Commercial Law, Legal Audit for SMEs and financial institutions. She is known for her Law and Me Series currently on her social media handles where she answers questions on the problems and challenges faced in the acquisition and investment in real estate and offers legal tips for SMEs to scale up their businesses and improve their service delivery.
by Legalnaija | Oct 31, 2021 | Blawg, Law
Money is the lifeline of any business, without funding is it practically impossible to expand or even grow your business. Oftentimes Entrepreneurs seek venture capital or external investment from angel investors.
Many times these startups assume that all they need is a disruptive business concept and a clear path to growth. But this isn’t always the case,. Below we explore five of the most important legal issues that professional investors are likely to review in a standard due diligence process before deciding to make an investment in an early-stage company.
- Corporate Governance
Whether your company is a corporation, limited liability company (LLC) or partnership, when seeking investment, you should ensure the following:
- the basic governance structure is finalized and agreed to by all stakeholders;
- the organizational documents are adequate and complete;
- all agreements of the board of directors/managers or shareholder actions are properly reflected in the minutes;
- Additionally, the company should be treated as a separate entity (and not as the alter ego of the founders or of another business);
- and the equity records of the company should be complete.
Upon deciding whether to make a venture investment, an investor will likely request a review of these organizational documents to gain a better perspective of the actions the company has taken in the past. One of the most common mistake startup companies make is that they fail to address properly ownership and measure of equity owned which leads to avoidable problems. This can be avoided by seeking legal counsel at the onset to ensure that it is done correctly.
- Shareholder Agreement
The easiest way to make clear what all of the equity holders’ rights are in a company is to have a shareholders’ agreement. Some of the pivotal provisions of this agreement include:
- Voting arrangements,
- restrictions on share transfer,
- “tag and drag” rights in the event of a sale,
- anti-dilution provisions and
- rights of first offer or refusal.
In my experience, many startups discuss these issues verbally some even prepare drafts but never get to the signing stage and this leads to uncertainty for subsequent investors in the company and what rights all parties involved have. The absence of a final and signed shareholders’ agreement may also allow certain equity holders to block a potential venture investment and to hold the transaction hostage unless they are given preferential rights.
- Intellectual Property
If your company is centered around or built upon its intellectual property, then it is essential that there is no confusion about the ownership of intellectual property associated with the company. An investor will expect to see signed intellectual property assignment agreements, assigning any potential ownership rights or claims to the company. Furthermore, depending on the nature of your intellectual property, it is essential that you conduct proper due diligence to confirm that you are not infringing on third-party intellectual property right.
- Written Contracts
Although an agreement does not have to be in writing to be enforceable, it a good idea to ensure that all of your material agreements are in writing, contain all important terms, and are properly signed by all parties. The kinds of agreements that should be in writing include:
- vendor and supply agreements,
- customer agreements,
- warranty and guaranty terms and
- employment agreements
Prior to making an investment, an investor will likely request to review your material contracts to gain a clearer picture of your business’ obligations.
One key thing you must note is that, when negotiating a written contract, some third parties will include certain provisions within the contract, including indemnification, non-compete, license, and limitation of liability provisions which may impact negatively on your company, so be on the lookout for these provisions because they eventually become an issue during investor due diligence and may adversely affect your company’s value to a potential investor. As always, make it a point of duty to get legal help before you sign a contract.
- Understanding the Regulatory Issues relating to your business
Maneuvering the regulatory landscape relating to your business is a must. For example, if your business is in the tech space, you must ensure it is in tune with data privacy laws of the country of Origin and adheres to regulatory provisions. Before making an investment, investors will want to ensure that your business plan is not endangered due to regulatory concerns. It is essential that you see legal counsel to help you identify any potential regulatory issues and to confirm that such regulatory issues where they exist will not adversely impact your business model.
About the writer:
Omoruyi Edoigiawerie is a Legal Practitioner and Lead Partner at the Law firm of Edoigiawerie and Company LP – a full service law firm with depth of proven experience and expertise in corporate commercial transactions and a strong bias for Startup and Entrepreneurship Law.
He is a member of the Nigerian and American Bar Associations as well as several professional bodies.
Omoruyi is the brain behind the UyiDLaw brand where he shares very insightful Legal nuggets (UyisNuggets) to help businesses grow and thrive. Through his platforms, he provides mentorship and business linkage support.
He can be reached at omoruyi@uyilaw.com.
by Legalnaija | Oct 31, 2021 | Blawg, Justice, Law
INTRODUCTION
With population growth and the attendant civilization, new ways of criminal machinations keep emerging. It would therefore, not be incorrect to say that crimes and criminality are on the increase. Our courts, and in general the criminal administration system are overwhelmed by the plethora of criminal cases that grace their floors on a daily basis. Consequently, our prisons are congested with number of inmates, with many awaiting trial.
Based on a 2016 data, Lagos State has the highest number of prison inmates’ population. The state recorded 7,396 prison inmates population as against a prison capacity of 3,927, closely followed by Rivers and Kano States with 4,424 and 4,183 prison inmates population. It was also reported that the Kirikiri Prisons in Lagos, which was built to accommodate 1,700 inmates, had 3,553 as of June 2017, over-shooting its capacity by 1,853 inmates. The Nigerian Prisons Service (NPS) Controller-General, Ahmed Ja’afaru, bemoaning the situation said that a total of 68,250 people were behind bars in Nigeria. However, only 32 per cent (or 21,903) of the inmates had been convicted. This means 46,351 people (or 68 per cent), who are awaiting trial put the system under avoidable stress.
Recently, Lagos State Government has activated moves to considerably bring down the number of inmates awaiting trial in prisons across the State through the implementation of the plea bargain aspect of the Administration of Criminal Justice Law 2011 (ACJL).The purpose of this paper is to discuss the concept of plea bargaining as a veritable tool in the administration of criminal justice in Nigeria.
MEANING OF PLEA BARGAINING
A plea is the response that a person accused of a crime gives to the court when the offence with which he is charged and which is contained in the charge sheet or information is read to him by the court. In general, the accused person could plead guilty or not guilty to the crimes. Where the court takes his plea and the court after trial is satisfied that the prosecution has proved his case beyond reasonable doubt, the court would proceed to sentence the accused person accordingly. On the other hand, plea bargain means a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of the multiple charges in exchange for some concession by the prosecutor; usually a more lenient sentence or a dismissal of the other charges. Section 494 of the Administration of Criminal Justice Act 2015 defines plea bargain as;
The process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaints or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the Court’s approval.
In simple terms, it is an agreement in criminal trials between the prosecutor and the accused person to settle the case in exchange for concessions. It could take the form of a Charge Bargain, Count Bargain or Sentence Bargain.
PROCEDURE OF PLEA BARGAINING; A CUE FROM LAGOS STATE
Generally, criminal procedure encompasses the laws and rules governing the mechanisms under which crimes are investigated, prosecuted, adjudicated, and punished. In other words, it is a manual of events that apply from the apprehension, trial and punishment of an accused.
The duration of criminal procedure coupled with the poor performance of the institutions in the criminal justice system in Nigeria has led to dawdling of criminal investigations and trials. The effect of this is that many suspects are arrested and detained without trial while some others are incarcerated for a long period of time due to the slow pace of criminal investigation or trial in Nigeria.
The nature of plea bargain can go a long way in decongesting prisons in Nigeria and foster a democratic system. This is because its procedure is quick as it allows parties involved including the victim to reach an agreement without going through the rigors of criminal trial. Commendably in Lagos state, the plea bargaining agreement is provided for under ACJL and has no limitation to any offence or to any person. Thus, a prosecutor can reach an agreement with an accused person wherein he will be given a reduced sentence, count or charge.
Under the ACJL, the prosecutor may only enter into plea bargaining agreement after consultation with the police officer responsible for the investigation of the case and the victim if reasonably feasible; and with due regard to the nature of and circumstances relating to the offence, the defendant and the interest of the community.
When the agreement is in progress, the prosecutor if reasonably feasible shall afford the complainant or his representative the opportunity to make representations to the prosecutor regarding.
- The contents of the agreement; and
- The inclusion in the agreement of a computation or restitution order.
Where a plea agreement is reached, the prosecutor shall inform the court of the agreement and the judge or magistrate shall inquire from the defendant to confirm the correctness of the agreement. If the answer is in the affirmative, the presiding judge or magistrate shall ascertain whether the defendant admits the allegations in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence. The court after satisfying itself on all of the foregoing will do one of the following:
- Convict the defendant on his plea of guilty to the offence as stated in the charge and agreement
- If not satisfied, the court will enter a plea of not guilty and order that the trial proceed.
Significantly, the presiding judge or magistrate before whom criminal proceedings are pending shall not participate in the plea bargaining agreement. However he can give relevant advice to them regarding possible advantages of discussions, possible sentencing options or the acceptability of a proposed agreement.¹³ But in sentencing the defendant after the conviction, the judge or magistrate is to consider the sentences agreed upon in the plea agreement. If the sentence is considered appropriate, then the agreed sentence would be imposed on the defendant. However if the court decides that the defendant deserves a heavier sentence, the defendant shall be informed. Upon the defendant being informed, the defendant has two options. One, the defendant can abide by his plea of guilty as agreed upon and agree that subject to the defendant’s right to lead evidence and to present arguments relevant to sentencing, the presiding judge or magistrate proceed with the sentencing. The second one is that he withdraws from his plea agreement in which event the trial shall proceed de novo before another presiding judge or magistrate. Where the trial proceeds de novo before another presiding judge or magistrate, the following must be observed
- No reference shall be made to the agreement
- No admissions contained therein or statements relating thereto shall be admissible against the defendant; and
- The prosecutor and the defendant may not enter into similar plea and sentence agreement.
ESSENTIAL INGREDIENTS THAT MUST BE PRESENT IN A PLEA BARGAIN AGREEMENT
A plea bargaining agreement must contain the following:
- The agreement must be in writing and contain the following specifics or state
- That the defendant has been informed that he has a right to remain silent;
- Also he has been informed of the consequences of not remaining silent
iii. That he is not obliged to make any confession or admission that could be used in evidence against him
- The full terms of the agreement and any admission made must be stated; and
- The agreement must be signed by the prosecutor, the defendant, the legal practitioner and the interpreter (if used).
CONCLUSION
Plea bargain has over time been recognised as the most useful means of quick disposal of criminal trials in our criminal justice.They include the fact that the accused can avoid the time and cost of defending himself, the risk of a harsher punishment, and partially eliminate the publicity the trial will involve. It also saves the prosecution time and expense of a lengthy trial, and both parties are spared the uncertainty of going to trial. Ultimately, the court is saved the burden of conducting a trial on every crime charged.
Those against the concept have rightly argued that it could be prone to abuse if not well regulated. For instance, in the case of the defunct Oceanic Bank Managing Director, Mrs Cecilia Ibru, who was accused of stealing over N190 billion. She entered a plea bargain with the EFCC. She was convicted on 25 counts of fraud, ordered to refund only N1.29 billion and sentences to six months imprisonment part of which she allegedly spent in a Highbrow Hospital. This has been seen by many as a mere “slap on the wrist”.
It is our view that despite the inherent fears and reservations some people may nurture with the proposal by the Lagos state government to utilize plea bargain, there is no doubt that the desirability of plea bargain in prison decongestion out-ways its undesirability, thus other states in Nigeria should adopt similar approach. However, that is not to play down the need to take necessary stringent measures to prevent abuse of the process by prosecutors.
Finally, the ultimate card lies with the judiciary as the law allows them to consider sentence agreed upon and accept or refuse such sentence where necessary. Thus, judges and Magistrates should be more proactive and take all necessary steps to curb any attempt to abuse plea bargaining.
References:
Prison Statistics: Prison Population by Total Detainees, Prison Capacity and Number of Un-sentenced Detainees by State and Year and Prison Inmate Population by Gender 2011-2016
<https//www.proshareng.com/admin/upload/reports/10669-NBSPRISONFULLREPORT201120 16-proshare.pdf> accessed 14 June 2019.
<https://bscholarly.com/a-day-in-the-life-of-a-lawyer-daily-tasks-lawyers-go-through/> accessed 14 June 2020.
<https://bscholarly.com/why-is-democracy-the-best-form-of-government/> accessed 14 June 2021.
Prison Congestion: Acting on Buhari’ <https://punchng.com/prison-congestion-acting-on-buharis-alarm/> accessed 14 June 2019.
Ibid.
O Olayanju, ‘The Relevance of Plea Bargaining in the Administration of Justice System in Nigeria’ [December 2011/January 2012] (VIII) (2&3) LASU Law Journal 35
<http://www.lasu.edu.ng/publications/law/oluseyi_olayanju_ja_1.pdf> accessed 14 June 2019.
B Garner, Blacks Law Dictionary (8ᵗʰ Edition, USA: West Publishing Company 2004) 1190.
ACJL, s 76(2) (a) & (b).
The prosecutor for the purpose of the foregoing provisions (s. 75 & 76) means a LAW OFFICER; see ACJL, s 76(11).
ACJL, s 76(3).
ACJL, s 76(6).
ACJL, s 76(7).
ACJL, s 76(7) (a) & (b).
ACJL, Section 76(5). ¹⁴ACJL, Section 76(8) (a) . ¹⁵ACJL, Section 76(8) (c).
ACJL Section 76(9) (a) & (b).
ACJL, Section 76 (10) (a)-(c).
ACJL, Section 76(4).
FRN v Lucky Igbinedion [2014] LPELR – 22760 (CA), Justice Helen Ogunwumiju listed the advantages of plea bargains.
ACJL, s 76(8); ACJL, s 367(9).
Edeh Samuel Chukwuemeka
University of Nigeria, Nsukka (400L)
samueledeh04@gmail.com
by Legalnaija | Jun 16, 2021 | Blawg, Law
The recent comment by President Muhammadu Buhari on the existence of grazing reserve gazette in the country and his directive to the Hon. Attorney General of the Federation, Abubakar Malami, SAN to dig out same for possible implementation has expectedly been generating heated reactions mostly negative from Nigerians, the most recent coming from the red chamber spokesperson, Senator Ajibola Bashiru.
Senator Basiru, a lawyer by calling, contends that there is currently no grazing route law at the federal level or in the Laws of the Federation for Mr. President to implement or for Abubakar Malami, SAN, to dig out for implementation.
Senator Bashiru is right. The only grazing law that existed in Nigeria was the Northern Nigerian Grazing Law of 1964/1965 that was enacted by the then Northern Nigeria Legislative Assembly and therefore with the collapse of regionalism or the fall of the first Republic and the coming into effect of the Land Use Act on the 29th day of March 1978, all pre-existing land laws were/are deemed extinguished. In fact, not even the protective provisions of Section 325 of the current 1999 Constitution will save the grazing law of Northern Nigeria for implementation at both regional and federal levels in the face of the existence of the Land Use Act which itself has Constitutional flavor having been specifically mentioned in Section 315(5)(d) of the 1999 Constitution.
By the protective provision of Section 315(1) of the Constitution, an existing law shall have modifications as may be necessary to bring it into conformity with the provisions of this constitution and shall be deemed to be an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by the Constitution to make laws and a law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by the Constitution to make laws. What this means is that assuming that the grazing law of the defunct Northern Nigerian Legislative Assembly still
exists, same must be brought in conformity with the Provisions of the 1999 Constitution and the Land Use Act to be valid and subsisting.
In any event assuming but not conceding that the grazing law of the Northern Nigerian Legislative Assembly of 1964/1965 can be preserved, saved or protected, same cannot be applicable in all states of the Federation, same having been made by only the Legislative Assembly of Northern Nigeria. It lacked the status of a nationwide general application.
Aside from this, with the coming into effect of the Land Use Act which by virtue of section 315(5)(d) is a Constitutional enactment, the 1964/1965 grazing land reserve law automatically becomes a back bencher having been effectively consumed by the provisions of the Land Use Act which by its preamble vests all land comprised in each state (except land vested in the Federal Government or its agencies) in the Governor of the State to hold in trust for the people and henceforth be responsible for allocation of the land in all urban areas to individuals and organizations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on the Local Government.
It is instructive to note that Section 6 of the Land Use Act empowers local government to grant Customary Right of Occupancy to any person or organization for use of the land in the Local Government Area for grazing purposes or other purposes auxiliary to agricultural purposes with a caveat however provided under section 6(2) of the Land Use Act to the effect that no single customary right of occupancy shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural or grazing purposes except with the consent of the Governor.
In other words even if any local government desires to allocate grazing land having been empowered constitutionally to so do, it cannot allocate a land area of 500 hectares without the consent of the Governor for grazing or agricultural purposes.
What this logically means is that even if the 1964 Northern Nigeria grazing Law is preserved by the present Constitution, same must be
brought in conformity with the extant provisions of the 1999 Constitution and the Land Use Act which automatically will require the consent of the Governor if the land area allocated is up to 500 hectares. In further support of the contention that the 1964 Grazing laws of the defunct Northern Nigerian Legislative Assembly are not in existence even in the current 19 states of Northern Nigeria, Section 34 of the Land Use Act settles the debate (especially where the land in question is undeveloped) in that, all pre-existing rights or interests thereto, are deemed extinguished and depending on the size of the land, claimants may be entitled to only one plot or half a hectare.
by Legalnaija | Jun 14, 2021 | Blawg, Law
Photo credit: BBC.com
On Friday, the 4th of June 2021, the Nigerian Government announced the indefinite ban of the operations of Twitter in Nigeria. This was a retaliatory attempt by the government after Twitter deleted a controversial post made by President Mohammed Buhari referencing the civil war of 1996 and threatening those he claims causes trouble “with the language they understand”. The government announced the suspension stating that “the persistent use of the platform for activities that are capable of undermining Nigeria’s corporate existence”.
This caused overwhelming outrage from both local and international communities including the Nigerian Bar Association who gave President Buhari an ultimatum to reverse the ban or face legal actions. As if the ban was not enough, the Attorney-General of the federation, Mr. Abubakar Malami further called for the prosecution of those who still found a way to use Twitter. Amusingly, the Federal Government also made the announcement to ban Twitter using the same platform.
The idea of regulating social media has been a priority of this administration for some years, however they have been faced with strong oppositions from Nigerians as it is believed that the intention to regulate social media was not genuine and hypocritical as social media was a very powerful tool used by this government when campaigning in 2015.
Interestingly, Twitter has been a target of this administration for the role it played during the #EndSars protest. As it was one of the major social media giant used for donations and awareness of police brutality. Twitter’s CEO, Jack Dorsey even tweeted his support for the movement and created an emoji exclusive to the protest. However, deleting the tweet of the president was the last straw. The question craving for answers is whether the federal government suspension of Twitter was within the confines of the law.
As was rightly stated by the president of the Nigerian Bar Association, Mr. Olumide Akpata, the ban of Twitter and the “directive to the NCC to immediately commence the process of licensing all OTT and social media operations in Nigeria is a disguised attempt to regulate social media, restrict freedom of speech and shrink civic space.”
The action of the Federal Government is directly a breach of the constitutional provision of the right to freedom of expression at the press as contained in Section 39 of the 1999 Constitution which the federal government is subject to.
Furthermore, the tweet of President Buhari was in violation of twitter’s rules as the NCC provides for a technical framework for the use of social media in Nigeria which has a policy that every social media platform is required to have a network policy, standards and best practices, guidelines and procedures to ensure that risks and myriad of benefits are balanced comparatively in coherent manner. Deleting a tweet likely to go against such standards is appropriate. Therefore, the president was in breach of Twitter policy which nobody should be above. If twitter can delete former president of the United States of America, Donald Trump’s tweet and ban him, why is President Buhari different?
The ban on Twitter is also in violation of the Article 19 of the United Nations Declaration of Human rights which states that “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. Also it is in violation of Nations United Nations provision on the right to be online and offline. The United Nations recognizes the impact of human rights on freedom of opinion and expression which was adopted in their human rights council in 2009 which Nigeria is a part of.
In conclusion, Nigeria is a democratic country with a constitution modelled after the United States of America which prioritizes freedom of speech and freedom of the press. Banning the use of Twitter is indirectly contravening the provisions of Section 39 of the 1999 Constitution. Also, Attorney- General Malami criminalizing the use of twitter is highly unethical as there is no provisions of law in Nigeria that supports the criminalization of the use of social media. The utterances of Attorney-General Malami are full of illegalities. The reason given by the minister of information is just a mere excuse. Besides, it was reported by the Guardian News that Nigeria lost approximately N7.5 Billion as a result of the ban thereby dwindling the already unstable economy.
Banning a social media platform that was not in violation of section 45 of the 1999 constitution which states reasons in which fundamental rights can be restricted is undemocratic. Now Twitter may not be perfect but it is what the people wants. Freedom to use the internet space is a fundamental right in Nigeria and it should be kept as such.
Freda Odigie is a Legal Practitioner.
You can contact her on flutterfreda@gmail.com
