NATIONAL INDUSTRIAL COURT OF NIGERIA ISSUES INTERIM INJUNCTION AGAINST LABOUR CONGRESS

The President of the National Industrial Court of Nigeria, Justice Babatunde Adeniran Ademjumo today granted an interim order restraining the Nigeria Labor Congress from embarking on indefinite strike slated for tomorrow to protest a hike in the price of petrol.

Abubakar MalamiPresiding over lawsuit No.NICN/ABJ/179/2016 between Federal Government of Nigeria and the Nigeria Labor Congress and Trade Union Congress the judge granted an interim order of injunction restraining the Defendants/Respondents, their agents, privies, employees, workmen, or servants from embarking on industrial action, demonstrating or engaging in any action that may disrupt the economic activities of Nigeria pending the hearing and determination of the motion on notice.

The Federal Government was represented by the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN; Okoi Obono Obla, Special Assistant to the President on Prosecution, and Dayo Apata, Director of Civil Litigation at the Federal Ministry of Justice.

The Attorney General of the Federation submitted that if the reliefs sought in the motion paper is refused, irreparable damage will be done to the country's national economy, security and corporate existence. He further submitted that the defendants having threatened to shut down the country have to be restrained otherwise there will be a breakdown of law and order.

In his ruling, today Justice Adejumo held that he has jurisdiction to hear the application and that having read through the affidavits in support of the application, he is satisfied that a case of urgency has been established by the Federal Government of Nigeria to warrant the grant of an interim order of injunction.

He said the threats of the defendants as contained in the communique issued by the NLC on  May 15 to shut down all banks; airports, seaports, government offices, markets nationwide has proven that there is a res to be protected.

http://saharareporters.com/2016/05/17/industrial-court-restrains-nigeria-labor-congress-going-strike

NEWS!!! NEWS!!! NEWS!!!

This is an appeal against the judgment of the Court of Appeal, Abuja Division wherein the court below upheld the judgment of the Kogi State High Court sitting at Lokoja in  which the appellant was convicted and sentenced to death for the offence f culpable homicide punishable under section 221 (b) of the Penal Code. 
The record of appeal shows that the Appellant was arraigned on a single count charge of culpable homicide punishable with death contrary to section 221 (b) of the Penal Code, Laws pf Northern Nigeria. The prosecution called a total of th1ee witnesses who gave evidence of the death of one Abubakar Mohammed. In the course of the trial, the prosecution witnesses tendered four negatives and four pictures of the deceased’s corpse and same were admitted in evidence as exhibits A1 - A4 and B1 - B4 respectively. A post mortem examination was conducted on the deceased and the result of the autopsy was admitted in evidence as Exhibit BB
The appellant made two confessional statements. Exhibits C and D are the said confessional statements the appellant made at B Division Police Station, Lokoja and State CID Lokoja respectively. Exhibit E is a gun used to commit the offence while Exhibits F and G are a blood stained cap and a pair of scissors respectively.
It is the case of the respondent (Prosecution) that the appellant committed the offence with which he was charged at the trial court. The appellant admitted in both Exhibits C and D that he shot the deceased with a gun which led to his death. Exhibit D as subjected to trial within trial after which the learned trial judge held that it was voluntarily made. There is no a peal against the aforementioned ruling of the learned trial judge.

On the other hand, the appellant simply denied committing the offence in the course of his evidence before the trial High Court. He narrated that he has a farm land where he planted cassava and yam. He said that a Fulani man came to his farm on 27/2/2009. He further stated that he accosted the Fulani man within the vicinity of his farm. About 6pm of the same date, he became aware of the death of the deceased.
As I stated earlier, the trial court convicted and sentenced the appellant to death under section 221(b) of the Penal Code. An appeal to the lower court was dismissed. The Court of Appeal held that the trial was right in convicting the Appellant on the strength of his confessional statements and that the respondent had proved the ingredients of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. Against the decision of the court below, the appellant has further appealed to is court.

On 24th April, 012, the appellant filed his notice of appeal containing for grounds of appeal. Three issues have been formulated from the four grounds of appeal. The issues
are:
Whether the Court of Appeal was correct in holding that the trial courtas right in convicting the Appellant on  the strength of’ his confessional statement.
Whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it is obvious from the evidence b ore the trial court that the Appellant intentionally killed the deceased. 
At this stage, I must state clearly that although it is desirable to have outside an accused person’s confession to the police some evidence, no matter how slight of the circumstances which make it probable that the confession  was true, a voluntary confession of guilt, if true, consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the court can convict. See Ogoala The State (1991) 2 NWLR (pt 175) 509. 
In the instant case, the prosecution, through PW1, PW2 and PW3 succinctly testified before the trial court that the deceased person was dead. It also tendered exhibits Al ­A4, B1 - B4 and B to confirm the death of the deceased person. Apart from that, the prosecution had tendered Exhibits C and D,’ the confessional statements of the appellant which were adequately tested by the learned trial judge in a trial within trial. There is no appeal against the  ruling of the trial court on the trial within trial. Thus, the appellant had accepted the decision of the trial court that the confessional statement was freely and voluntarily made by him. I had earlier stated that a confessional statement tendered in evidence is part of the evidence of the prosecution. See Ikemson v The State (supra). 
In Exhibit D, the appellant states clearly what happened before the deceased died. Hear him:
“I aim him with my dane gun and fired him on the chest. Bu he still pursued me with the bullet wound until he fell down and could not rise again. I ran to the village and reported to the village Head one Solomon Ballo “M” of Oyo - wavillage via, Lokoja LGA. The Chief attached one Garba Mohammed to go and check the farm with me. And he reported the same thing to him and the chief ordered that I should be taken to the police station.
On page 43 of the record of appeal particularly line 28, the appellant testified in court that he went back to the farm with Mohammed. This piece of evidence is consistent with his confessional statement in exhibit D. it is a piece of evidence outside the confessional statement which corroborates same. So, apart from the evidence of PW1, PW2 and PW3 including the exhibits listed earlier in this judgment appellant’s evidence in court which is consistent with his confessional statement clearly strengthens and makes the statement most probable. All the issues raised by the learned counsel for the appellant against the statements are issues which were or ought to have been raised during the trial within trial. 
Although there was no eye witness when the appellant shot the deceased, the prosecution gave evidence through the PWs which gave vent to the confession of the appellant. And in any case, this court held in Mohammed v State (2007) 11 NWLR (pt1045) 303 at 230 paragraph F that where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone. See also Oche v State (2007) 5 NWLR (pt1027) 219.
For all I have said above, I hold a strong view that the court below was on a strong wicket when it upheld the conviction and sentence of the appellant upon reliance on his confessional statements. Accordingly, I resolve this issue against the appellant. 
Although the learned counsel for the appellant in paragraph 5.01 of his brief states that he would argue issues 2 and 3 together, he reneged and argued them separately: The second issues is whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it is obvious from the evidence before the trial court that the appellant intentionally killed the deceased. It is the submission of the learned counsel that the lower court was in error when it held that the appellant intentionally killed the deceased. According to the learned counsel for the appellant the prosecution failed to prove the essential ingredients of the offence of murder a enunciated in the cases of Basil Akpa vs The State (2008) 14 NWLR (pt) 72 at 90, Tunde Adera&anor vs The State (2006) 2 SCN} 255 at 266 - 267, Godwin Idebele vs The State (2006) 2 SCNJ 124 at 133 ­134 and Isah vs The State (2007) 12 NWLR (1049) 582 at 602 - 604. He opined that the evidence of PW1 - PW3 cannot sustain the essential ingredients of the charge against the appellant.
Learned counsel further submitted that contrary to the finding of the two lower courts, there is no oral or documentary evidence proffered by the prosecution pointing irresistibly, conclusively and compellingly that it was the appellant whointentionally killed the deceased. That there was contradiction in the evidence of PW1 and PW2 in relation to the ownership, recovery and use of the gun i.e. Exhibit E. Therefore, it is unsafe to rely on exhibits C and Dto hold that he appellant used exhibit E. It was his view that the only evidence against the appellant is that found in Exhibits C and D which he opines was wrongly relied upon. He urged the court to resolve this issue in favour of the appellant. 
In response, the learned counsel for the respondent submitted that from Exhibits C and D, it is obvious that the appellant intentionally killed the deceased. That when the appellant aimed the gun at the chest of the deceased and shot it, he intended the natural consequence of his action, relying on the cases of Garbav State (2000) 4 SC (pt11) 157 at 163, The State vs Oludamilola(2002) NNLR 582 at 589, Ibikunlevs State (2007) 2 NWLR (pt1019) 555.
On the contention that it was not proved that the appellant used exhibit E - the gun, learned counsel submitted that the answer is found in Exhibit D the confessional statement of the appellant and the gun subsequently recovered from him. Moreso, in view of the fact that the appellant stated that after he shot the deceased, he fell down and did not wake up again, there was no need for medical evidence, referring to Sunday Ihuebekavs State (2000) 4 SC (pt 1) 203 at 212, Oforlete vs State (2000) 7 SC (pt 1) 810 at 96. 
As regards issue of contradiction, learned counsel urged the court to hold that there was no such thing as none exists. Also, an accused person need not personally own a gun before he can use it to commit a crime. On the whole, learned counsel urged the court to resolve this issue against the appellant.
It is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act. And, the consequence of an act may be said to be probable, if a reasonable man would consider its occurrence to be the natural and normal effect of the act. See Shazalivs State (1988) 12 SC (pt 11) 58, (1988) NWLR (pt 931) 164, R v Dim 14 WACA 154 at 155;
, ,
Yakubu vs The State (1980) 3 - 4 SC 84 at 98, Atani vs R (1955) 15 WACA 34. But, what is intention? The Black’s Law Dictionary, Ninth Edition by Bryan A Garner, page 883 defines intention as follows:
“The willingness to bring about something planned or foreseen; the state of being set to do something.” 
Also, John Salmond, if his book Jurisprudence, 378 (Glanville L. Williams ed, 10th edition (1947) reproduced in The Law Dictionary first alluded to above, defines intention thus:
“Intention is the purpose or design with which an act is done. It is the foreknowledge of the act coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch as they fulfill themselves through the operation of the will. An act is intentional if, and in so far as, it exists in idea in the fact because of the desire by which it is accompanied.” 
Another learned author, P. H. Winfield, in his book A Textbook of the Law of Torts P.19 (5th Edition. 1950) also defines intention in the following words. “This signifies full advertence in the mind of the defendant to his conduct, which is in question, and to its consequences, together with a desire for those consequences.” From the above definitions, it seems to me that in an offence of murder, intention, which is not tangible, can be inferred from the instrument used to commit the crime, the force used and the part of the body on which the injury was inflicted. Also, the force with which the accused applied with the instrument on the deceased is also to be taken into consideration. See Orisakwe v The State (2004) 12 NWLR (pt887) 258, Queen v Moses Onoro(1961) 1 All NLR (pt1) 33, Ejelikwe v State (1993) 7 NWLR (pt307) 554, Nwokearu v State (2013) 4 - 5 SC (pt iv) 95 at 122 paras 25 - 30. 
In the instant case, the appellant states emphatically in Exhibit D adjudged to have been freely and voluntarily made that he aimed his gun at the chest of the deceased at close range and shot him. It was his further evidence that the deceased fell down and could not move again. At that point, he ran to the village Head and reported that he had killed a man. In the circumstance, did he intend to kill the man? I had earlier stated in this judgment that a person is taken to intend the natural and probable consequences of his act. So, when the appellant aimed his gun at the chest of the deceased and shot it, did he intend to keep him alive? L do not think so. At least he intended to cause him grievous bodily harm. And in view of the force of a gunshot aimed at the heart, the engine room of a man’s life, it can safely be concluded that the appellant intended to kill the deceased by his action, the report he made to the village head notwithstanding. Had the appellant shot the deceased on the leg, maybe, just maybe, one would have thought otherwise. At the age of the appellant, he ought to have known that the part of the body of the deceased he aimed at (the heart) was the last that could have entered his mind if he had intended the man to stay alive. I agree with the lower court that the appellant intentionally shot and killed the deceased. All the arguments of the learned counsel for the appellant which had nothing to do with whether or not the killing was intentional, are of no moment. They are discountenanced. This issue is accordingly resolved against the appellant. 
Having resolved the two issues against the appellant, all that remains to be said is that this appeal is devoid of any scintilla of merit and deserves an order of dismissal. Appeal is accordingly dismissed. The judgment of the Court of Appeal delivered or 22nd day of March, 2012 which upheld the conviction and sentence of the appellant to death, is hereby affirmed.
Appeal dismissed. 
JOHN INYANG OKORO JUSTICE, SUPREME COURT COUNSEL: 
J. A. Akubo Esq. with G. S Omagbogu Esq. Jacob Ajayi Esq. and Ngozi Okoh (Miss) for the appellant. 
B. A. Alfa (Mrs) - DPP Kogi State, with H. E. Yusufu (Mrs) DDPP and D. E. Abu Esq. Snr. Legal Qfficer, for the respondent.
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VAT rate increase? Matters BY: Posi Olatunbosun

GUARDIAN [NIGERIA] NEWSPAPER

In the effort to keep the wolf from the door, even as the federating states continue to go broke, there have been inferences that the government may increase the VAT rate. No official confirmation to this effect was ever made by the FIRS, and no VAT Act amendment bill has been presented to the federal lawmakers. However, the Vice-President recently let the genie out of the bottle, meaning that a rate hike may be inevitable.

The primary aim of introducing the VAT was to replace the hitherto ineffective sales tax as a means of generating revenues for government. There was an attempt to increase the rate to 10% on the eve of the departure of the Obasanjo regime in 2007, but the subsequent government refused to ratify the increase due to the absence of any legal instrument supporting the rushed increase (precisely the amendment of the Section 4 of the VAT Act of 1993), and so the rate reverted to status quo.

Some public finance economists have argued that if Nigeria had tabled a request for an IMF financial bailout at the beginning of the year, VAT administration reform, not the least an increase in the VAT rate, would have been thrown at us as a sine qua non. But then, is it the right time to increase the VAT rate? What sorts of reforms are necessary to make the VAT administration in Nigeria fit for purpose? Where does Nigeria stand on VAT administration relative to her neighbours? These questions are relevant now.

Normally, the fiscal policy managers are expected to adjust the rates to suit the prevalent economic stabilisation objectives of government. Many European countries increased their standard VAT rates during the economic recession as a means of supplementing lost revenues due to rising unemployment. For instance in 2010, the then UK coalition government increased the standard VAT rate from 17.5% to 20% in order to provide monies for rising unemployment benefits to the jobless citizens occasioned by the economic recession.

Now let’s collocate the rates. Currently, Nigeria, Eritrea and Djibouti have the lowest VAT rates in Africa, and by extension, in the world. Compare these to the average of 15% standard VAT rate obtainable in the African continent, whilst the EU average is 20%. In the West Africa sub-region, the current standard rates of VAT are: Ghana, Sierra Leone and Gambia 15%; Liberia 12%; Franco-phone West Africa 18%; and Cameroon 19.25%. Based on the financial position of the government purse right now, coupled with the comparative indicators listed above, there seems to be a prima facie case for an increase in the standard VAT rate in order to supplement government revenue. On the other hand, the economic indicators are fragile. Increasing the rate now may likely become a bear with a sore head, driving the taxpayers up the wall. Obviously the government will get the flak when inflation gets out of hand as a result.

However, based on comparative knowledge of VAT administration in other jurisdictions, as well as the outcome of hot debate with professional accounting practitioners in Nigeria, it will be expedient for the government to consider implementing the following in order to increase the monthly VAT collections without increasing the VAT rate, thereby averting the incidence of taxpayers getting their knickers in a twist! The tax net needs to be widened without burdening taxpayers with additional taxes. Government should endeavour to link all its vital taxpayers’ records together by ensuring zero duplication of data.

For instance, the BVN, voters record, National ID card, VAT registration numbers, Unique Tax Identification Number, Corporate Affairs Commission registration number, vehicle licensing, drivers licensing, police records, prison records, must all be linked together. Once this is done, revenue leakage through VAT non-compliance by many SMEs would have reduced massively. The level of compliance can then be monitored effectively at minimal costs, and erring tax evaders punished in order to serve as deterrent to others. The result would be an uncharted rise in VAT monthly collections. Electronic systems are capable of absorbing the universal revenues generated by all economic agents, so that no one escapes the tax net. The earlier this is done, the better for the tax authorities.

In addition to the 5% VAT charged by the FIRS, some (not all) State Internal Revenue Service are also levying 5% sales tax on goods and services. If this practice becomes the norm throughout the federation, then it would be better to unify and standardise the procedure so that 5% accrues to the FIRS, and another 5% to the SIRS. This is another valid case for the cessation of any plans to embark on a VAT rate hike. Perhaps, if the FIRS was able to successfully persuade the respective SIRS to eradicate the sales tax, an increase in VAT rate could be justified.

In the OECD environment, the operational VAT structure (a consumption-based model) facilitates full recovery of VAT paid on inputs which ensures that effectively, the total VAT paid on all productions in the whole value chain does not exceed the VAT levied on the final product or service. On the other hand, FIRS operates a gross production model (not too different from sales tax) where VAT paid on services inputs cannot be recovered. The effect of this is that, in a fairly long value chain, the effective VAT borne by the final consumer may rise to anything between 15% and 30%. It is, therefore, expedient that the FIRS grants corporations input reliefs for any planned VAT increase to be justifiable.

There are pressures on the government at all levels to improve the lives of their citizens through capital projects funded from tax receipts. But then many of the federating states are unable to meet their salary obligations, talkless of developing and implementing capital projects. Nonetheless, Nigeria has the advantage of a large population, many of whom are within the active working age. The citizens ought to be continually educated on the need to perform their own role in the governance partnership, which involves paying their own fair share of taxes without which there cannot justifiably be expectation of performance from the government.

The alternative to payment of taxes is that government will borrow, which is equivalent to pushing liabilities to the incoming generations! It would be expedient to enforce the existing rules and ensure a high level of compliance with tax laws through the use of efficient means, rather exploring the easy way out in the form of increasing tax rates. Tax hike at this time is capable of encouraging business taxpayers to manipulate the system for their own benefit and increase non-compliance with the existing laws. It may become a red flag to the bulls who have been driven up to the wall. The possibility of flying off the handle may be expected and this may not be politically expedient after all.
Olatubosun, FCCA, teaches Accounting and Finance at Birkbeck, University of London.

LAGOS STATE JUDICIARY SWEARS IN 29 MAGISTRATES 

Lagos State Chief Judge, Justice Olufumilayo Atilade, yesterday urged the spouses, relations and friends of magistrates not to interfere in their jobs to ensure their success.

Swearing-in 29 new magistrates at the Lagos High Court foyer in Igbosere, Justice Atilade said: “Their work from now on must be a ‘keep-off zone’ for all. This is the only way you can assist them to succeed in their career and protect them from negativity”.

Justice Atilade implored the magistrates to rebuff all entreaties that could put them in trouble.

The inauguration of the magistrates, 22 of whom are women, brings to 148 the number of magistrates in the state.

She advised the magistrates to use their powers wisely as they affect the life and liberty of citizens.

She said: “The powers, as you will find out in due course, are to be wielded with great responsibility and after much thought. These are not powers that are to be abused or used for selfish interests or for the fun of it.

“The job of a magistrate is a difficult job, it is not an easy job at all. It is not for the laid back person or party going socialite. It is for that serious-minded and committed person, given to modesty and who has the interest of justice for all at heart. It is for the selfless person, who wants this state and country to progress. It is for that person who knows the laws of the land and intends to apply it with equity and good conscience for the good of the state and the nation.

“It is for that person who is morally upright, not given to drink, sloth, covetousness and greed but who is content with what little he or she may have.”

The high court’s Chief Registrar, High Court of Lagos, Mr Emmanuel Ogundare, listed to hear courteously, to answer wisely, to consider soberly and to decide impartially as the rules the magistrates must imbibe to succeed.

He advised them against or unscrupulous arguments either during or at the end of proceedings and to refrain losing their temper with either lawyers or litigants.

Ogundare said: “It must be borne in mind that the power of the court to punish for contempt is not retained for the personal aggrandisement of the magistrate or whoever mans the court.

“The powers are created, maintained and retained for the purpose of preserving the honour and dignity of the court and by tradition of his office, he should eschew any type of temperamental outbursts as would let him lose his self-control and his appreciation of the correct method or procedure for contempt proceedings.”

The chief registrar said a substantial number of petitions written against magistrates either to the Chief Judge or Judicial Service Commission bordered on reckless comments and remarks by the magistrates during proceedings.

Lagos State Judicial Service Commission Executive Secretary Mrs Ayodele Odugbesan said the magistrates were the best amongst lawyers who applied for the job. She said they were carefully screened and selected, adding that their appointment was on merit.

CC: http://thenigerialawyer.com/lagos-cj-swears-in-29-new-magistrates/

THE LEGAL EFFECT OF 'TERM CERTAIN' IN AN AGREEMENT

THE LEGAL EFFECT OF “TERM CERTAIN” IN AN AGREEMENT[1]

The phrase ‘Term Certain’ is used mostly in tenancy agreements to stipulate the time frame at which a contractual tenancy lapse.

A tenancy for a fixed term or term certain is that lease with definite beginning and end (e.g. for 2 years or 10 years certain) and may be created for any period of time short of perpetuity.  The tenancy may be created to take effect immediately, from the past or future date or on the occurrence of a future event. Where it is created to take effect at a future date, or on the occurrence of a future event, it shall not be valid unless created by a deed.[2]

Upon the lapse of the time certain i.e. time fixed for the tenancy to run out, the relationship of landlord and tenant automatically terminates and the landlord, if he so wish, may take possession through the due process of law after serving on the tenant Notice of Owners intention to recover possession.

Where upon the expiration of the maximum period fixed under the tenancy, a new tenancy is not created by the parties, the tenant holds over the property and becomes a tenant at will or a tenant at sufferance or a statutory tenant depending on the applicable law. But where the tenant holding over pays rent at the rate reserved under expired tenancy, he shall be deemed to be a tenant from year to year on the same terms as the expired tenancy, provided that these terms are applicable to and not inconsistent with a tenancy from year to year.

The courts have helped to throw judicial light on the legal effect of term certain in tenancy agreements, as it envisages a contractual tenancy. We shall now be looking at the meaning of the following terms and their effect in a tenancy agreement in the light of decided cases.

·         Tenant

The definition of a tenant is very wide, as it includes all persons who occupy premises lawfully. Whether a person pays regular rent, subsidized rent or indeed no rent is immaterial. The qualification for becoming a tenant under the law is lawful occupation. Hence, when the initial occupation of the premises is lawful, he occupier, even if holding over becomes a protected tenant qua the landlord[3]

·         Tenancy

There are two classes of tenancy: Contractual Tenancy and Statutory Tenancy[4]

(a)Contractual Tenant

A tenant who enters a premise by reason of a contract with the landlord is a contractual tenant. Such a tenant holds an estate which is subject to the terms and conditions of the grant. Once that tenancy comes to an end and by efflux ion of time or otherwise and the tenant holds over without the will or agreement of the landlord, he becomes a tenant at sufferance. (This is strictly common law concept).[5]

A Tenant at sufferance is one which the original grant by the landlord to the tenant has expired, usually by effluxion of time, but the tenant holds over the premises. In such a case, the tenants right to occupation of the premises to which he had come in upon a lawful title by grant is at an end but, although he has no more title as such, he continues in possession of the land or premises without any further grant or agreement by the landlord on whom the right to the reversion resides.

(b)Statutory Tenant

A statutory tenant is an occupier who when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He is an anomalous legal entity who holds land of another contrary to the will of that other

person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant. This type of tenancy is created where a contractual tenant holds over at the end of his contractual tenancy, he becomes a statutory tenant even if he does not pay rent, does not pay regular rent or pays only a subsidized rent.

Although a statutory tenant has no estate in the premises he occupies, his status is no less than that of a contractual tenant as far as his right of possession is concerned. This is so because the tenancy of a statutory tenant derives its right and authority from the relevant statute such as the Rent Control and Recovery of Residence Premises Law of Lagos State 1997 (with relevant 2003, 2004 and 2007 amendments)

The Legal Effect

The use of ‘Term Certain’ in an agreement is to the effect that upon the expiration of the of the time stipulated and upon failure to renew such tenancy, the common law rule is that the occupier is at the mercies of the owner, and can be thrown out whenever the owner pleases even without notice to quit or intention to recover possession. Such an occupier is a tenant at sufferance.

However there are exceptions to this seemingly rigid common law rule.  Examples of such exceptions are transactions governed by statute. For example landlord and tenant agreement, rents and recovery of possession agreements, lease etc.

Premises can be recovered from a statutory tenant only in cases where he decides to give up possession voluntarily, or by court order which can only be valid wherein due and adequate notice to quit and for recovery of possession had been given.

The court in the case of CHAKA V. MESSRS AEROBELL (Nig.) LTD (2012) 12 NWLR 303 expatiated on the period of notice required to determine tenancy; “

(a)   In the case of a tenancy at will or a weekly tenancy, a week’s notice

(b) In the case of a monthly tenancy, a month’s notice

(c)  In the case of a quarterly tenancy, a quarter’s notice; and

(d) In the case of a yearly tenancy, half a year notice.”

In conclusion, relying on the above discuss, it is evident that the law protects the tenant but does not also preclude a landlord from exercising his reversionary right ones the due process of law has been followed.  Provisions are however made for claim of RENTS and MESNE PROFIT for possession by the owner against the occupier who holds over at the end of the contractual tenancy.

---

[1] BY: MABAWONKU OLUSEGUN OLANREWAJU (LL.B) HONS

[2] A.O SMITH (Practical Approach To Law of Real Property in Nigeria) 2^nd Edition, Pg. 280

[3] Oduye v, Nigeria Airways Ltd (1987) NWLR (Pt. 55) 126 at 147; Enigbokan v. Akinosho (1957) SCNLR 9 at 11-12

[4] Sule v. Nigerian Cotton Board (1985) 1 NWLR Pt. 5 at 17

[5] African Petroleum v. Owodunni (1991) 8 NWLR (pt 210) 391 at 413https://www.linkedin.com/pulse/article/new?trk=hp-share-poncho-pencil

REQUIREMENTS FOR ESTABLISHING A FOREIGN COMPANY IN NIGERIA

1.      The Requirements For Setting Up A Subsidiary In Nigeria By A Foreign Company

Foreign Company has been defined to mean a company incorporated elsewhere than in Nigeria[1]. It suffices to say that a foreign company is a legal fiction yet to be registered in Nigeria, but already existing in another jurisdiction.

Before a foreign company can function effectively in Nigeria, i.e. be foisted with the powers of a natural person as guaranteed under the Companies and Allied Matters Act hereinafter referred to as CAMA[2], it must be duly incorporated[3]. However, this position is subjected to various exceptions and exemptions provided for under the enabling laws[4].

The Appeal Court in the celebrated case of Protocol & Gamble Co v. G.S & D Ind. Ltd[5]held as follows;

“in order for a conglomerate to carry on business in Nigeria, it must incorporate a company in Nigeria as prescribed under section 54 of Companies and Allied Matters Act”

The following, backed up with statutory provisions are the requirements for setting up a subsidiary by a foreign company in Nigeria;

·         Incorporation/Registration: Section 54(1) CAMA stipulates

“...every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria, and shall not carry on business in Nigeria, or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than receipt of notice and other documents as matters preliminary to incorporation under this Act”.

Moreso, a registered company has been defined as;

“a company incorporated or deemed to be incorporated under this CAMA”[6]

In furtherance, the Companies Regulation 2012[7], provides for other requirements which must be fulfilled by any company (whether foreign or not), seeking incorporation/registration. They include;

“Form of approval for name, Duly completed set of incorporation forms, Duly stamped memorandum and articles of association, Photocopy of information page of international passport or national identity card for each director and subscriber, Evidence of consent letter where applicable Proficiency certificate where applicable, Residence permit in case of resident foreigners, Photocopy of duly verified Particulars of Directors, Statement of Share Capital and Return of Allotment of Shares together with memorandum and articles of association for certification as true copies, An affidavit stating circumstance of cancellation or alteration in the signature on any document or any difference in the name on stamp duty receipt and name on other documents”.

Having stated incorporation/registration as a requirement, it is imperative to state that the president has a discretionary power to grant applications for exemption from incorporation by a foreign company, if in his opinion, the circumstances are such that renders the granting of the application expedient.

For a foreign company to apply for exemptions, it must satisfy the following;

i.                    Foreign companies invited to Nigeria by or with the approval of the Federal Government to execute any specified individual project.

ii.                  Foreign companies which are in Nigeria for the execution of specific individual loan project on behalf of a donor country or international organization

iii.                Foreign government owned companies engaged solely in export promotion activities; and

iv.                Engineering consultants and technical experts engaged on any individual specialist project under contract with any of the governments in the Federation or any of their agencies or with any other body or persons, where such contract has been approved by the Federal Government.

·         Requirement as to Share Capital: The terms ‘share capital’ has not been succinctly defined in our laws. However, it refers to the portion of a company’s equity that has been obtained by trading stock to a shareholder for cash[8]. Share capital can be distinguished into authorised or nominal, issued, paid-up, reserved or equity share capital[9].

The share capital required varies, as it is determined by the type of subsidiary to be incorporated by the foreign (Parent) company. Section 27(2) CAMA, stipulates that the share capital of a Private Company shall not be less than N10,000.00 (ten thousand naira) while that of a public company (PLC) shall not be less than N500,000.00 (five hundred thousand naira). Where the company to be formed is a company limited by Guarantee, share capital shall not be required, the members merely undertake to contribute the subscribed amount (not less than N10,000 00 ) in the event of winding up.

2.      Whether Or Not A Subsidiary Can Be 100% Foreign Owned, Circumstances That Stipulates Such.

It is undisputable that a company can be 100% foreign owned. Section 26(1) of the Company Regulations[10] provides as follows:

“Foreign nationals may hold 100 percent equity in business enterprise and undertake any type of business in Nigeria except the following:

(a) Production of arms, ammunitions, etc

(b) Production of and dealing in narcotic drugs and psychotropic substances

(c) Production of military and Para-military wears and accoutrement, including those of the Police and Customs, Immigration and Prison Services

(d) Such other items as the Federal Executive Council may from time to time determine in the negative list.”

This in essence is res ipsa that a foreign company whether a subsidiary or parent company, can be totally owned by foreigners if its object clause does not fall within those prohibited by the relevant legislations in Nigeria.

3.      Difference Between A Public Limited Liability Company (Plc) And Private Limited Liability Company (Ltd)

This question borders on Sections 21, 22, 24, 27 and 99 of the Companies and Allied Matters Act 2004.

The Distinguishing factors between a private limited liability company (Ltd) and a Public Limited Liability Company (PLC) although not exhaustive, includes the following;

(1.) An Ltd by its Articles of Association restricts the transfer of its share while a PLC can offer its shares and debentures to the public, thereby making access to funds and liquidity of cash readily available.

(2.) An Ltd shall possess a minimum of 2 members and a maximum of 50 members, while a PLC has no restrictions as to the maximum number of members

(3.) An Ltd cannot offer its shares or debentures to the general public. This does not apply to a PLC.

(4.) The name of a Private Limited Liability Company must end with the word (Ltd), while that of a Public Limited Liability Company must end with (PLC).

(5.) An Ltd has no restrictions as to appointment of over aged directors; a PLC has restrictions as to appointment of overage directors above 70years. (Except here, special notice is given to members).

In conclusion, a general overview of the questions asked will reveal that it borders on Modes of Foreign participation in Nigeria. It is therefore apt to delve a bit into these modes which are determined by the interest area of the foreign investor.

The various modes of foreign participation are;

(a)   Foreign Direct Investment (FDI)

They are direct investments by foreigners who invest in Nigeria via registered companies. They may either be subsidiaries of already existing parent companies, or a newly incorporated company.

A foreign company planning on carrying on business in Nigeria through its subsidiary must obtain relevant permits from the relevant agencies such as; Nigeria Immigration Service (NIS), Corporate Affairs Commission (CAC), Nigeria Investment Promotion Commission (NIPC), National Agency for Technology Acquisition & Promotion (NOTA),[11] Central Bank of Nigeria (CBN),[12]Securities and Exchange Commission (SEC) etcetera. 

(b)   Portfolio Investment (PI) and

These relates to investors who intends to purchase shares in existing companies through the capital market.

(c)    Unregistered exempted companies.

These are foreign companies ho carry on their business as unregistered companies in Nigeria having satisfied the exemptions in the relevant legislations[13]

REFERENCES

·         Companies and Allied Matters Act (vol. 3) LFN 2004.

·         Companies Regulation 2012.

·         Nelson C.S. Ogbuanya (Essentials of Corporate Law Practice in Nigeria)

·         Dr. J Olakunle Orojo (Company Law and Practice in Nigeria).

·         Legalpedia, Wikipedia & Google Search Engine.

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[1] Section 567(1) CAMA 2004

[2] See. Section 38(1) CAMA

[3] Section 54(1) CAMA. See also Reptico S.A Geneva v. Afribank Nig (Plc) (2013) 14 NWLR pt. 1373 pg. 172 @ 179

[4] Section 56 CAMA

[5] 2013 NWLR 1 (Pt. 1336) pg.425

[6] Section  567(1) CAMA

[7]Section 23 (enacted pursuant to Sections 16, 585 & 609 of CAMA 2004)

[8] Wikipedia https://en.wikipedia.org/wiki/Share_capital last visited 4-05-16 by 4.32pm

[9] Dr. J Olakunle Orojo company law and practice in Nigeria pg. 115.

[10] Supra

[11] Approval from this agency is paramount in this instant case, as the company to be incorporated (i.e. ABC) intends to render IT solution services.

[12] To grant certificate of importation of capital through authorized dealers.

[13] Section 56 CAMA supra.