Statute Barred Debt And Its Revival | Simileoluwa Owotomo

Statute Barred Debt And Its Revival | Simileoluwa Owotomo


INTRODUCTION
In discussing this
poignant issue, one must discuss debt within the
constraints of the law. 
A debt exists when a
certain sum of money is owed from one person (the debtor) to another (the
creditor). Hence ‘debt’ is properly opposed to unliquidated damages to
liability, when used in the sense of an inchoate or contingent debt; and to
certain obligations not enforceable by ordinary process. ‘Debt’ denotes not
only the obligation of the debtor to pay, but also the right of the creditor to
receive and enforce payment. See
NIPOST v. I. E. Co. Ltd. (2006) 8 NWLR (Pt.
983) Pg.435.


In ARAKA V.
EJEAGWU (2000) 12 S.C. (PART I) 99
, the meaning of what it means for a
subject matter to be statute barred was succinctly stated as follows –

In my interpretation
“statute-barred” simply means barred by a provision of the statute.
It is usually as to time i.e. the bar gives a time limit during which certain
actions or steps should be taken, and one is barred from taking action after
the period specified in the statute. Any action taken after or outside the
specified limit or period is of no avail and has no valid effect. The bar can
be lifted or the limit extended only if the statute allows it to be done. Where
there was no such extension, the action carried out will be invalid, and the
court will treat as such
.”PER KALGO J.S.C. (P.47, Paras.A-C).

According to Section
34(a) of the Limitation Law of Lagos State
, a statute barred debt means
a debt in respect of which the period fixed by this Law for bringing of an
action to recover it has expired.

ISSUES
FOR DETERMINATION
A.   WHEN
IS A DEBT SAID TO BE STATUTE BARRED?
B.   HOW
CAN A DEBT SAID TO BE STATUTE BARRED BE REVIVED?

A.       WHEN
IS A DEBT SAID TO BE STATUTE BARRED?
In discussing whether a
debt is statute-barred, one must understand the provisions of the statute that
gives a time limit within which certain actions or steps should be taken for
debt recovery.

In OKONTA &
ANOR V. EGBUNA (2013) LPELR-21253(CA),
 the issue of whether a debt is
statute barred by virtue of the Limitation of Action Law was discussed as
follows:         

“Let me reproduce the
provisions of S. 12 (c), and 20(1) (a) and S. 18 of the Act for case of
reference and to make the treatment of this issue clearer. S. 12 (c) states
that – “A right of action shall cease to exist in the following
circumstances. …(c) Lapse of time where the time allowed under the law for
bringing action in respect of a particular matter has lapsed.”

S.20 (1) (a) states that-
“The following actions shall not be brought after the expiration of six
years from the date on which the cause of action accrued, that is to say, (a)
actions founded on simple contract or on tort.”

S. 18 states that –
“The provisions as regards limitation of actions provided in this Law
shall have no application where a person bringing an action to recover land, or
the person through whom he claims, derived his title to such land solely under
customary law.”

It is clear from the
express wordings of S. 18 that it excludes only actions for recovery land from
application of the Limitation of Actions Law. A debt recovery action is
not excluded by S. 18 from the application of the Limitation of Action Law.”
It is clear from S.
20 (1) (a) that an action on a simple contract for recovery of debt must be
brought to court within six years from the date the cause of action accrued. S.
12 (c) states the consequences of the failure to comply with S.20 (1) (a) of
Act. It is stated clearly that the right of action shall cease to exist and
therefore not be exercisable after the expiration of the 6 years period
.
It is clear from the writ of summons and statement of claim that the suit at
the trial court was filed over 6 years after the respondent demanded for the
refund and the appellant failed to do so. Clearly the action was statute
barred. Such a claim is not maintainable after the limitation period of 6 years
has expired.” Per AGIM, J.C.A. (Pp. 23-25, paras. F-A

In the case of MERCANTILE
BANK OF NIGERIA PLC V. FETECO NIGERIA LTD (1998) 3 NWLR (PT.540) 143
, the
question for determination in the instant case was whether the claim of
plaintiff for a debt of N5, 791,857.61 being outstanding loan plus interests
thereon was statute-barred or not under the English Limitation Act of 1623,
which required such suits to be commenced within six years from the date of
accrual of cause of action, being debts that arose from a simple contract.

It was held that the
limitation period is six years and by virtue of the provision ofSection 15
of the Interpretation Act Cap. 192, Laws of the Federation of Nigeria 1990
 and
the year on which the particular event occurred is excluded
. See also ANWADIKE
V ADM-GEN OF ANAMBRA STATE (1996) 7 NWLR (Part 460) 315
.

From the above, it is
trite to deduce that the limitation period for debts that arose from a simple
contract is six years excluding the year on which the contract commenced. SeeSection
20 (1) (a) of the Limitation of Action Law
.
Hence, a debt can be said
to be statute barred when the limitation period of six years, after the year of
contract, has lapsed.

B.        HOW
CAN A DEBT SAID TO BE STATUTE BARRED BE REVIVED?
There is indeed a remedy
to revive a debt that is statute barred and same will be discussed as follows;

The principle of
Acknowledgment and Part payment
An acknowledgment of
debt to remove the bar must be made to the proper person by the proper person,
that is, the debtor and the creditor, with the proper formalities when they are
required by statute and must be in terms sufficient to warrant the inference of
a promise to pay the debt.

Part payment of
debt to remove the bar must be made under such circumstances as amount to an
acknowledgment of the debt. It must appear that the payment was made on the
account of the debt for which the action was brought and that it was made as a
part payment of a greater debt.
                                                                             
In THADANI &
ANOR. v. NATIONAL BANK OF NIGERIA LTD. & ANOR. (1972) 1 S.C. (75),
 the
principle of acknowledgment and part payment was further discussed:

“The principle of
acknowledgment or part-payment is founded on the theory that by so doing the
debtor establishes a fresh contractual relationship so that a cause of action
then starts to run from the date of the fresh contractual relationship. In
Stamford Spalding & Boston Banking Co. v. Smith (1892) 1 QB 765, Lord
Herschell at p. 768 stated thus concerning the effect of a document which is
relied upon as an acknowledgement:-

It
cannot be disputed that an acknowledgement, in order to exclude the operation
of the , must be absolute and unconditional, and one from which a promise to
pay the debt can be inferred. But it was argued that if an acknowledgement is
in fact made, it is immaterial to whom it is made. Such appears to have been
considered the law at one time, and there are certainly some dicta to that
effect; but that is not the law now. In my opinion, since the decision in
Tanner v. Smart (1827) 6 B & C 103 it has been abundantly settled that an
acknowledgement to a stranger is not sufficient. It must be to the creditor or
his agent, to someone who was entitled to receive payment of the debt, and to
whom you could presume a promise to pay the debt.”

The position therefore is
that before writing could be described as an acknowledgement to take the case
out of the Statutes of Limitation, the writing by the debtor should recognise
the existence of the debt or the rights against himself. Beyond this whether a
document does this or not is a question of fact depending upon its
contents.” Per COKER, J.S.C. (Pp. 11-12, paras. A-B).

In NIGERIA SOCIAL
INSURANCE TRUST v. KLIFCO NIGERIA LTD (2010) LPELR-2006(SC) (2010) 13 NWLR
(Pt.1211) 307 S.C.
 on whether an acknowledgment of the debt that is
statute barred will revive the right to recover it, it was held as follows:
    

“…Meaning that
there must have been an initial indebtedness which according to the Limitation
law is statute barred arising after a lapse of a period of years from the
accrual of cause of action in the case. The limitation law here is a period of
6 years being a simple debt. However, where there is acknowledgment of the
debt, the right to recover by action is revived and it is the crux of matter in
this case.”PER CHUKWUMAH-ENEH, J.S.C (P. 29, paras. E-F)

Section 45 of the
Limitation Law of Lagos State
 states as follows-

(1) Every acknowledgment
shall be writing and signed by the person making the acknowledgment.
(2) An acknowledgment
under Sections 38,39,40,41,42,43 or 44 of this Law-
(a) may be made by the
agent or the agent of the person by whom it is required to be made under
whichever, of these sections is applicable; and
(b) shall be made to the
persom or the agent of the person whose right or claim is being acknowledged.

Section 46 of the
Limitation Law of Lagos State 
states as follows;
(2) An acknowledgment of a
statute-barred debt shall not bind any successor of the acknowledgor on whom
the liability devolves on the determination of any person’s interest in
property under a settlement taking effect before the date of the acknowledgment”

From the above, it can be
deduced that an acknowledgment as a remedy for a statute barred debt must be in
writing, must be signed by the debtor or his agent and must be made by the
creditor or his agent
As regards part payment, Section
49 of the Limitation Law of Lagos State
 states as follows;

(1) Where
(a) any right of action
has accrued to recover any debt; and
(b) the person liable
therefor makes any payment in respect thereof;
the right of action shall
be deemed to have accrued on and not before the date of such payment.
(2) Payment of interest in
whole or in part shall, for the purposes of this section, be treated as a
payment in respect of the principal debt.

3.     COMMENTS/OBSERVATIONS
AND CONCLUSION
In N.S.I.T.F.M.B.
v. Klifco Nig . Ltd. (2010) 13 NWLR (Pt.1211) 307 S.C., 
it was held
that “… where there is acknowledgment of the debt, the right to
recover by action is revived..”
 
It must however be noted
that what constitutes acknowledgment is a matter of fact depending on each
case. See THADANT AND ANOR V. NATIONAL BANK OF NIGERIA (1967 – 1975) 2 NBLL.
383 per COKER , JSC.
One of the
principles of the statute of limitation is that those who go to sleep on their
claims should not be assisted by the courts in recovering their property. But
another equally important principle is that there shall be an end of these
matters, and that there shall be an end to stale demands.

In conclusion, for a debt
statute barred to be revived, there must be an initial indebtedness; there must
be an acknowledgment of the debt or part payment of the greater debt.
Simileoluwa Owotomo

Associate at Ayodele, Olugbenga & Co. 

Ed’s Note- This article was originally posted here
Personality Profile – Hon. Justice S.M.A Belgore GCON, CJN (RTD)

Personality Profile – Hon. Justice S.M.A Belgore GCON, CJN (RTD)

SALIHU MODIBBO ALFA BELGORE was born on the 17TH
of JANUARY, 1937 to Yusufu Belgore, An Alkali and Aishatu Belgore in Ilorin,
Kwara State.

His early education was at Okesuna Elementary School,
Ilorin between 1945 to 1948; before proceeding to Ilorin Middle School from
1949 to 1951 and ILESHA GRAMMAR SCHOOL between 1952 and 1956.  Honourable Justice Belgore’s professional
training began at the Inns of Court School of Law, London and The Honourable
Society of The Inner Temple after which he was called to the Utter Bar at The
Inner Temple in February, 1964.


Honourable Justice Belgore was first appointed as an
Associate Magistrate in the Judiciary of the Northern Nigeria in July,
1964.  Later on, he served in various
parts of former Northern Nigeria and later in North Central State (now Kaduna
state) variously as Magistrate, Chief Magistrate and Chief Registrar up to
1973. Justice S.M.A. Belgore was further appointed as the Acting Judge of The
High Courts of North Central and Kwara States; Kano and North–Western States,
Benue, Plateau and North–Eastern States in 1974 between February and July.
His other judicial appointments include –
–        Appointed Substantive Judge of The High
Courts of Benue, Plateau and North – Eastern States: 2ND JULY, 1974.
–        Appointed a Judge of Plateau and Kwara
States, 1976 – 1977.
–        Appointed Chief Judge of Plateau State on
1st March, 1977.
–        Appointed Justice of Court of Appeal on 1st
September, 1979 – Vide Official Gazette No 44 Vol. 67 of 18/09/80.
–        Appointed Justice of The Supreme Court of
Nigeria 26TH          JUNE,
1986.
Honourable Justice Belgore has also held other
positions including–
·       
Chairman, Nigerian Institute for Advanced
Legal Studies; highest legal think-tank in Nigeria, established under a Federal
Government Statute. 1999 – 2007
·       
Vice-Chairman, National Judicial Council,
2001-2006
·       
Member of Board of Governors, National
Judicial Institute, 2002-2006
·       
Chairman National Archives
·       
Life Member, Body of Benchers
·       
Member, Legal Practitioners Privileges
Committee, 1998-2002

·   Appointed The Honourable Chief Justice of
Nigeria on The 14TH DAY OF JUNE, 2006
·       
Chairman, National Judicial Council
·       
Chairman, Federal Judicial Service
Commission
·       
Chairman, Legal Practitioner Privileges
Committee
·       
Chairman Board of Governors, National
Judicial Institute
·       
Vice President, Chartered Institute of
Arbitrators
·       
Judge, administrative tribunal of the
African Development Bank
·      Master bencher, honourable society of the
inner temple, London – January, 2007 – for life.

Honourable Justice Belgore
has also been the recipient of many Honorary Awards including;
·      GRAND COMMANDER OF THE ORDER OF THE NIGER
(GCON)
·      COMMANDER OF THE ORDER OF THE NIGER (CON)
·     LLD (HONORIS CAUSA), IGBENEDION UNIVERSITY,
OKADA
·    LLD (HONORIS CAUSA), UNIVERSITY OF ABUJA,
GWAGWALADA
·     D.LITT (HONORIS CAUSA), AL HIKMAH
UNIVERSITY
Honourable Justice S.M.A
Belgore speaks Yoruba, Hausa, English, Arabic, some French and understands
Igbo. His hobbies include; History, Sciences, Physics, Mathematics and to some
extent Medicine.

As a Judicial Officer for
about forty-two years, he served all over the Federal Republic of Nigeria in
various judicial capacities. His duty carried him to the north east and west,
now called geopolitical zones of the country. Therefore he always feels at home
anywhere in Nigeria.

On retirement, he
currently holds the following positions;
·       
Member, National Council of State
·       
Judge, Administrative Tribunal of African
Development Bank
·       
Chairman, Tripartite Committee on Minimum
Wage
·       
Chairman, Central Working Group of Nigeria,
vision 20:2020
·       
Chairman, Nigerian National Honours Award
Committee
·       
Chairman, Tripartite Committee on Minimum
Wage
·       
Member, Presidential Advisory Committee
·   President, Administrative Tribunal, African
Development Bank (AFDB)
·       
Chairman, Institute for Oil & Gas Law
·       
Life Member, Body of Benchers
·       
Life Bencher, Honourable society of the
Inner Temple (where he was called to the English Bar in 1964).

Culled from – Legal Rights and Obligations Under Nigerian Law by Adedunmade Onibokun, published in honour of the Hon. Justice S.M.A Belgore GCON, CJN (RTD) on 17/1/17. 
Why Is It Important To Register Trademarks In Nigeria | HightowerLawyers

Why Is It Important To Register Trademarks In Nigeria | HightowerLawyers

A trademark is defined in
the interpretation section of the Trade Marks Act as a mark,
used or proposed to be used in relation to goods (and services) for the purpose
of indicating a connection in the course of trade between the goods and an
individual having the right to use the mark.


At its core, it identifies
and distinguishes the source of the goods of one party from those of others.

Items that can be
registered as a trademark include a name, invented word, phrase, logo, designs,
symbol, image or any combination thereof.

All industries thrive on
Trademarks. Why register?
One significant reason for
registration is its certification (authentication) function. This means that
the distinguishing mark would become the platform for its customers to identify
and by extension, guarantee the quality of the goods or services provided. The
swoosh sign for instance might be what a customer needs to see to be certain
that he is buying an original Nike footwear.

Another benefit of a
registered trademark is the exclusivity enjoyed by its owner for a defined
period. In Nigeria, a registered trademark is valid for seven years, and
renewable for fourteen years thereafter, this can ensure perpetuity as long as
it is continually renewed.

In another breath, a
registered trademark while ensuring goodwill and reputation, also gives the
exclusive right of usage to the registered proprietor. Thus, where you register
a logo for instance, anyone who makes use of something similar or identical
without your consent would be liable for infringement.

Against the backdrop of
the foregoing, a registered proprietor can always bring an action for
infringement or for passing off under common law, and by virtue of the Merchandise
Marks Act
, a criminal action can be instituted against the offender.

Where a registered
trademark is infringed upon or threatened to be so infringed, reliefs that can
be sought include injunctions, orders for delivery up, damages and orders for
account for profit.

In sum, in Nigeria, a
trade mark can be your most valuable marketing tool and can help you:
1.    
position your products or services in the
marketplace.
2.    
protect your business identity.
3.    
safeguard your reputation.
4.    
prevent others from using the same or
similar mark.
5.    
prove your legal rights for use of the mark
and allow you to use the ® symbol.
6.    
avoid reliance on common law rights (i.e.
passing off) which can be difficult to defend.
7.    
get exclusive rights to
use, licence, and franchise or sell your mark.

Do I have to register a
Trade Mark in Nigeria’s competition-ridden marketplace?

Beyond the advantages
highlighted, if you do not register your trade mark, other businesses may be
able to use it, or register it and prevent you from using it later. Your
competition might employ this in sabotaging your efforts and deliver a sucker
punch.

We can help you register
your Trademark in Nigeria. To begin the process, Get in Touch!

HighTower Lawyers
Ed’s Note – This article
was originally posted here
Photo Credit – NIKE SWOOSH | PIXABAY.COM

The Importance Of Agents In Commercial Transactions| Hightowerlawyers

The Importance Of Agents In Commercial Transactions| Hightowerlawyers

An agent is one who has
express (oral or written) or implied authority to act for another (the
principal) so as to bring the principal into contractual relationships with
other parties. He is under the control (is obligated to) the principal, and
(when acting within the scope of authority delegated by the principal) binds
the principal with his acts.


Agents are best described
as conduit pipes in a commercial transaction between a principal and the third
party. Simply put, he is the ultimate middle man who ensures that interaction
between two or more parties equals an exchange in goods, services or something
of value.

As middleman he never acts
on his own accord, as he does what the principal requires of him or what the
principal would have reasonably done in that transaction. By law, his acts are
binding on the principal. Therefore, it is as though the principal himself was
the one performing the act. Some might think of him as a hired body double, as
seen in the movies.

The legal maxim is qui
facit per alium facit per se, which means, he who acts by another act by
himself.  In the case of Bevan v. Webb, Stirling J stated
that “whatever a man sui juris may do by himself he may do by another”.

The principal refers to
the person on whose behalf another (the agent) acts. While the third party, is
the other person in the transaction who is bound by it.

For a person to be called
an agent in law, he must possess certain characteristics, such as:

1.    
He must have the power to act.
2.    
He must act for and on behalf of the
principal.
3.    
The consequence of such act must be to bind
the principal and the third party.

The importance of an agent
can be examined in a real estate transaction. In this instance, a land owner
employs the services of an agent who helps in getting a tenant or a buyer to
occupy the premises. This tenant or buyer as the case may be is the third party
in the transaction. Once the transaction has being concluded the agent steps
out of the transaction because legal relation has being created between the
land owner and the tenant. Talent-Agency relationships in the entertainment
industry are also shining examples of agency in commercial transactions.
Furthermore, agency relations can also be initiated between professionals and
the clients they represent.

It is pertinent to note
that an agent has rights and duties which he is entitled to and bound by. In
respect of the former, his rights include the right to indemnity, lien and
remuneration, while the latter includes the performance of undertaking,
obedience, care and skill, non-delegation and good faith.

From the foregoing, it is
safe to conclude that the role agents play in transactions ensures that the
wheels of commerce keeps grinding for the benefits of principals and third
parties. In a fast-paced world agents are absolutely necessary.
HighTower
Lawyers

Ed’s Note – This article
was originally posted here
President Buhari’s 10 Day Vacation-The Change Begins With Me! | Tope Atiba

President Buhari’s 10 Day Vacation-The Change Begins With Me! | Tope Atiba

It has been quite a while
since I last wrote a personal article as it relates to our dear Nation;
Nigeria. Infact, since the election of President Muhammad Buhari on the
Platform of the All Progressives Congress (APC), I have not written a
conventional article. Even though, in the intervening period, I have continued
to contribute to National discourse through my social media interactions.


Just so that we are clear
on the message of this post, I have since October, 2015 had the opportunity of
serving with an arm of Government, which has equally given me the opportunity
to learn more about Governance in Nigeria and the dynamics of interaction
between the leadership and the followership. NB: This post does not reflect the
views of either my principal, his office or any political affiliation
whatsoever. I write in my capacity as a citizen and hope to be as objective as
I can.

Also, I do not write this
as a Negative critique of President Muhammad Buhari. No, I
still believe that in more aspects than not, Mr. President has kept faith
with his promises to Nigerians. The fight against terrorism is virtually won,
the fight against corruption is going on, there is better management in
government, the Nigerian economy is gradually diversifying (with
particular focus on Agriculture) etc. The Government has also started the
Social Reinvestment Scheme promised to Nigerians. This includes paying N5,000
to the poorest amongst us and employment opportunities under the N-Power
scheme. The only (major) challenge remains bringing the Nigerian
economy out of recession and I strongly believe that 2017 would be a
better year in this regard and so I urge fellow Nigerians to keep faith.

I write as an active
citizen, conscious of the Change agenda of Mr. President, conscious about the
role of constructive criticism as a panacea for developmental conversations,
and the constitutional duty of the citizen as stated in Section 24(d) of the
Constitution which provides that “It shall be the duty of every citizen to
– make positive and useful contribution to the advancement, progress and
well-being of the community where he resides”. Hence, I write more as a
matter of duty than anything else.

By my account, this would
be the Third time that President Muhammad Buhari would be proceeding on leave
since assuming office in May, 2015. By his letter to the president of the
Senate, Senator Abubakar Bukola Saraki, President Buhari sought to proceed on
an annual vacation from the 23rd of January, 2017 to the 6th of February, 2017.
We all agree that going on vacation is only normal. Every human being, no
matter how strong or fit as a fiddle, must take sometime off work to either relax,
retreat or attend to issues of medical concern. 

However, my concern with
the repeated trips to a United Kingdom Hospital by the President every time he
has to go on a medical vacation is what is on the mind of every Nigerian, to
wit: If you promised us to improve medicare in Nigeria during your presidential
campaign, why not seek medical treatment in Nigeria yourself?

In September, 2016, Mr
President launched the “Change Begins with Me” campaign. This, as we
are aware is supposed to be a complete attitudinal change process for each and
every Nigerian, beginning with the leadership. An excerpt from Mr. Presidents
speech on that occasion read: “This we believe can best be maintained
through attitudinal change, and the change of our mindset in private and public
life.   The campaign we are about to launch today is all about the
need for us to see change not merely in terms of our economic, social progress
but in terms of our personal behaviour on how we conduct ourselves, engage our
neigbhours, friends and generally how we relate with the larger society in a
positive and definitive way and manner that promotes our common good and common
destiny, change at home, change in the work place, change at traffic junction,
change at traffic lights etc.”

I dare say, that the
Change that Nigerians desire to see today, begins with the President. It is
obvious that Nigerians would like to see Mr. President vacation at the various
tourist resorts across Nigeria. This would in no small measure
increase the attractiveness of the Nigerian Tourism landscape. Nigerians and
foreigners alike would automatically be attracted to the possibility of
vacationing in Nigeria. This would reduce the pressure the demand for foreign
exchange and probably earn us more.

Secondly, It is also only
normal for people to fall ill as i said before. However, except in a situation
where the expertise to handle whatever medical condition affects Mr.
President is not available within our boarders, it would have made for more
than a good Photo-op for the President to be seen with his patient card seeking
medical attention in the National Hospital Abuja or better still at
the Aso Rock Clinic. 

I believe strongly
that every time the president of a country has to travel outside his country,
it should be as a result of some official international engagement which
benefits the country or the other. It also should be as a means
of furthering international diplomacy through the entrenchment of the
country’s foreign policy.

If we take the United
States of America for example, you will notice the trend expressed by the
forgoing paragraph. One will easily observe that wit each foreign trip of the
President, he is extending the reach of the American foreign policy.
Strengthening ties with a view to influence global direction through the
American ideology of democracy. Never for rest or health care. This must be our
target as well. More-so, as the most populous black Nation on earth.

Having said the forgoing,
I simply write today to encourage the President to consider the viability of
the foregoing options in subsequent vacations. I remain a supporter of Mr.
Presidents Change agenda and would continue I’m my little capacity to play
my part in ensuring that President Muhammad Buhari succeeds at his task of
rebuilding our dear country.
God bless Nigeria as we
continue to engage and intervene.
Ed’s Comments – This article was first published here

Overview Of The National Industrial Court Of Nigeria (Civil Procedure) Rules, 2017 | Ahmed Adetola-Kazeem

Overview Of The National Industrial Court Of Nigeria (Civil Procedure) Rules, 2017 | Ahmed Adetola-Kazeem

The
National Industrial Court of Nigeria (Civil Procedure) Rules,  2017 (“New
Rules”) which was made on the 6th day of December 2016 but came into effect on
the 5th day of January 2017 is a remarkable improvement of the National
Industrial Court (Civil Procedure) Rules of 2007. The New Rules revokes the
National Industrial Court Rules, 2007 and Practice Direction, 2012.


There
is the need for the President of the Court to clarify the correct citation and
commencement date of the rules before it is fully circulated. Order 1 Rule 2
provides that “these Rules may be cited as the National Industrial Court of
Nigeria (Civil Procedure) Rules, 2016 and shall come into effect on the 5th day
of January, 2017. However, the short title of the Rules as boldly written on
the copy obtained from the court is National Industrial Court of Nigeria (Civil
Procedure) Rules 2017. Likewise, the commencement date indicated before the
Orders is 3th (sic) Day of January 2017.

Whilst
the 2007 rules contained twenty-nine Orders, the New Rules provides for
sixty-seven Orders. The difference in the Orders contained in the two rules is
an indication of the improvement in the latter over the former.
The
New Rules is a reflection of the expanded jurisdiction of the court as provided
for by the Constitution of the Federal Republic of Nigeria (Third Alteration)
Act, 2010. The New Rules is very detailed on a number of issues, some of which
will be discussed shortly. Under the old rules there were a lot of gaps which
left the court with no option than to rely on the provisions of Order of that
rules, which provides that –

Where
no provision is made in these Rules as to practice and procedure or where the
provisions are inadequate, the Court may adopt such procedures as will in its
view do substantial justice to the parties
.”

Order
15 of the 2007 rules gave wide room to judges to adopt different procedures in
many circumstances where the rules do not make provisions, thereby making the
procedures of the court unpredictable and confusing in many circumstances.
Though Order 58 Rule 24 of the New Rules is similar to Order 15 of the 2007
rules, resort to it will be very minimal in view of the robustness of the new
rules.  

Some
of the significant innovations in the New Rules are electronic filing of
processes and documents (Order 6A); entitlement of deceased employee
(Order 10 and 11); Pre-Trial Conference (Order 12);Claims of Sexual Harassment
and Discrimination in the workplace (Order 14); procedure in action for breach
of international protocol, convention and treaties and proof of existence of
international best practice (Order 14 A); enforcement of arbitral award (Order
17 rule 3); reference of disputes to ADR Center (Order 24); fast track matters
(Order 25);prohibition of legal practitioners from granting press interview on
a matter pending before the Court either within the precincts of the Courts or
environs (Order 58 rule 27); appointment of Public Trustee in deserving
cases where there is intra-union or intra-organizational dispute before the
court (Order 59 )etc.

One
of the features of the New Rules is its human face. Order 10 Rule 1 of the New
Rules provides that

filing
of any process related to or connected with outstanding salary, gratuity,
pension, benefits, or any other entitlement of deceased employee in any of the
Registries of the Court shall attract twenty-five (25%) percent only of the
stipulated filing fees
”.

 Order
11 rule 10 provides that
Any
process related to or connected with outstanding salary, benefits, allowances,
gratuity, pension or any other entitlement of a deceased person filed in any of
the Registries of the Court, shall be placed on fast-track”.

Order
25 rule 1 provides for other matters that qualify to be placed on fast track.
Suchmatters include, cases concerning or relating to a
strike, lock-outs or any other form of industrial action that
threatens the peace, stability and economy of the country or any part
thereof; a declaration of trade dispute by essential services providers; a
trade dispute directly referred to the court by the Minister of Labour and
Productivity; any matter relating to entitlements of a deceased employee; and
any other matter the President of the Court may direct to be placed on
fast-track.

Order
14 Rule 1 lays down the procedures for Claims of sexual harassment whilst Order
14 Rule 2 lays down the procedure for Claims of workplace discrimination.

Order
14A provides that
Where
an action involves a breach of or non-compliance with an international
protocol, a convention or treaty on labour, employment and industrial relations
, the Claimant shall in the complaint and witness statement on oath, include
the name date and nomenclature of the protocol, convention or treaty; and proof
of ratification of such protocol, convention or treaty by Nigeria.” 
 

 It
went further to provide that
In
any claim relating to or connected with any matter, the party relying on the
International Best Practice, shall plead and prove the existence of the same in
line with the provisions relating to proof of custom in the extant Evidence
Act.”

Before
now the procedures to be adopted in these matters were unclear.
Order
17 Rule 3(3) of the rules now provides for the enforcement of Arbitral awards
thus- “An award made by an arbitrator may by leave of the Court, be enforced
in the same manner as a judgment or order of Court”. 
This in my view
is a good development for commercial entities and their employees who have
arbitration clauses in their contracts and a development that will encourage
parties and practitioners to adopt arbitration as a means of dispute resolution
in labour and employment matters.

Order
24 provides for Alternative Dispute Resolution by way of Mediation and
Conciliation at the Court-annexed ADR centre. Where parties are able to resolve
their matter by mediation or conciliation, the terms of settlement will be
adopted as the Judgment of the Court. However, if parties are unable to settle,
the Court may set the matter down for hearing and determination on its merits.


One
of the most interesting provisions of the New Rules is the provision of Order
58 rule 27 which provides that:

No
legal practitioner shall be allowed to grant any press interview, make comments
or give any opinion or argument that may touch on a matter which is sub-judice
before the Court either within the precincts of the Court, its appurtenances or
environs
.”

This
provision was made to stem the tide of unethical practices of lawyers making
statement to the press about matters which are pending before the
court. This provision is a reinforcement of the provision of Rule 33 of
the Rules of Professional Conduct 2007 which provides that “A lawyer or
law firm engaged in or associated with the prosecution or defence of a criminal
matter or associated with a civil action shall not, while litigation is
anticipated or pending in the matter, make or participate in making any
extra-judicial statement that is calculated to prejudice or interfere with, or
is reasonably capable of prejudicing or interfering with, the fair trial of the
matter or the judgment or sentence thereon
.” 

Any
legal practitioner who breaches Order 58 Rule 27 of the New Rules is liable to
be committed for contempt of court as provided under Order 63 of the rules.

Order
59 Rule 1 provides that :

“where there is an
intra-union or intra-organizational dispute before the Court, the Court may suo
motu (on its own) or upon a motion on notice by any of the parties make an
order for the appointment of a Public Trustee to manage the administration,
affairs and finances of the trade union, employees’ or employers’ organization
involved in any intra-union or intra-organizational disputes.

Provided that such
application shall be accompanied by an affidavit stating the reasons for the
appointment of the Public Trustee and the CTC of the Process(es) filed in
respect of the intra-union or intra-organizational dispute before the Court.

Provided further that the
Respondent(s) is given the opportunity to file a counter affidavit in response
to the application and in compliance with the rules of the Court”

Order
59 Rule 2 went further to provide for the qualities to be considered in
appointing an individual as a Public Trustee by the Court.

The
court through the new rules maintained its status as a court of substantial
justice. Order 5 Rule 1 provides that failure to comply with any of the rules
of the Court may be treated as an irregularity and the Court may give any
direction as it thinks fit. Order 5 Rule 3 provides that the Court may direct a
departure from these Rules where the interest of justice so requires. Order 5
Rule 6 (1) provides that the Court may apply the rules of common law and rules
of equity in any proceeding before it concurrently, provided that where there
is conflict between the two rules the rules of equity will prevail.

By
Order 5 Rule 6 (2), the rules provides for departure from the provisions of the
Evidence Act in deserving cases. The rules provides that in any proceeding
pending before it , the Court may as a specialized Court regulate its procedure
and proceedings as it thinks fit in the interest of justice and fair play. In
appropriate circumstances, the Court may depart from the evidence act as
provided for in Section 12(2)(b) of the National Industrial Court Act, 2006 in
the interest of justice, fairness, equity and fair-play.

Order
5 rule 6(3) sums up the flexible nature of proceedings of the Court thus,
In
any proceeding before it , the Court shall apply fair and flexible procedure
and shall not allow mere technicalities to becloud doing justice to the parties
based on the law, equity and fairness while also considering the facts of any
matter before it
.”

In
conclusion, the National Industrial Court of Nigeria (Civil Procedure) Rules,
2017 is a watershed in the history of the Court. The Rules will go down as one
of the most comprehensive and most flexible Rules any Court can boast of in
Nigeria. I commend the President of the National Industrial Court of Nigeria
for this milestone and for lifting the Court from oblivion to its present enviable
height.

*Ahmed
Adetola-Kazeem, MCIArb(UK) is a Legal Practitioner and a Counsel in the law
firm of Gani Adetola-Kaseem, SAN LP
 Ed’s Note – This article was first published here
 Photo Credit – www.ofcounsel.com 
Need For Partnership Between all Arms of Government

Need For Partnership Between all Arms of Government



 

There is no doubt that the nation and Nigerians will benefit from a strong partnership between Arms of Government.  The immense benefits of such relationship will certainly come to bear in the lives of the people. Such partnership is evident in many States in Nigeria, most especially, Lagos State.


At the 2017 1st Quarter, Town Hall Meeting of His
Excellency, Governor Akinwunmi Ambode which took place at the Ajelogo Housing
Scheme, Mile 12 Lagos,
on Thursday 19th
January 2017, this collaboration was evident between the Executive and the Legislature. Senator Gbenga Ashafa, the Senator
Representing Lagos East Senatorial District of Lagos State  commended and praised the Governor Of Lagos State, Mr. Akinwunmi
Ambode for his Economic, Infrastructural and Environmental Initiatives in Lagos
State.
At the end of the well-attended event wherein
the Governor had updated Lagosians on his activities in the past quarter as
well as his plans for the year 2017, the Senator stated that “You cannot argue
the fact that everywhere you turn to in Lagos State you can see and feel the
presence of the Government. Our Governor, has continued to set the pace with
his Economic direction, Infrastructural Development as well as environmental
development initiatives.”
 Speaking further, he commended
the Governor for being in touch with Lagosians through his quarterly
interactive sessions through which he gives the people feedbacks on the
activities of the Lagos State Government.
 In conclusion, Senator Gbenga
Ashafa restated his support for the initiatives of the Ambode led Government of
Lagos State and urged all Lagosians to support the government and to play their
part  by being law abiding citizens.
 The Town Hall Meeting was the 6th
in the series that have been organized by His Excellency, Governor Akinwunmi
Ambode since he resumed office in May, 2015.
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Why Draft A Shareholders Agreement? – Busayo Adedeji

Why Draft A Shareholders Agreement? – Busayo Adedeji


The whole essence of a Shareholders Agreement (“SHA”) is to govern the relationship
between shareholders and to serve as reference point in the running of a
business, should a dispute arise.

While drafting, a SHA is not a statutory
requirement for companies, its importance cannot be overemphasized as the
existence of an SHA can save the company a couple of millions in legal fees in
case of disputes, as it is easier to prove the contents of a written executed
agreement than verbally agreed terms.
“Generally, a Shareholders’ Agreement will set out matters such as the
way the shares are allocated, what remuneration the shareholders will receive,
what power the directors have in respect of replacing or appointing new
directors, transfer or sale of shares, sale of the company, how new
shareholders are appointed etc. There is no real checklist as to what should be
contained in the Shareholders’ Agreement but it is advisable that anything
agreed between the shareholders’ is documented in the Shareholders’ Agreement.”
[1]
Format of a SHA
There is no prescribed format an
SHA should take, but individuals are advised to consult legal practitioners to
draft the SHA which will be tailored to meet the needs of the shareholders as
well as their business needs.
Contents of a SHA
While the following is not an
exhaustive list of contents of a SHA, a SHA should contain provisions as to the
following:
1.    
The steps and
action to be taken in the case of death or incapacity of a shareholder;
2.    
Stipulate the
means of dispute resolution amongst the shareholders;
3.    
Set out mode of transferring
shares. What share transfer are allowed? Are shareholders to have first right
of purchase?and
4.    
Protection for
minority shareholders.
Finally, while business may incorporate and put on
hold the drafting/execution of a SHA, the ease the SHA brings to the running of
the business and its evidential value cannot be overemphasized.

Busayo
advises clients on corporate immigration issues, advising clients on employment
and labour law issues, ensuring that clients are in line with regulatory
compliance rules, civil litigation etc

Photo Credit – www.quora.com


[1]http://www.lawplainandsimple.com/legal-guides/article/what-is-a-shareholder-agreement
BVN, Telecoms and Common Sense by Ahudiya Ukiwe

BVN, Telecoms and Common Sense by Ahudiya Ukiwe


The Biometric Verification Number
(BVN) was conceived by the Central Bank of Nigeria (CBN) for the purpose of
curtailing fraud, identification of individuals etc. Basically, what the Social
Security Number is in the USA (and its variant in other advanced climes) is
what the BVN was intended to be.

Upon its introduction, the religious fanatics
likened it to the biblical number of the beast, aka 666, masked to deceive
“God’s children” and made to reject it. The Federal Government
(genuinely or otherwise), convinced that this was the key to eradicate all
shades of corruption made it mandatory for all persons to register for same.
Even though the BVN apparently is
another version of other biometric exercises previously concluded, the Banks
spearheaded the implementation of the BVN directive. Especially given that
without it, persons cannot operate accounts, existing customers cannot access
their funds or obtain (loans and other) financial services. Next came the
adoption of same by the telecoms providers. Even with previous concluded biometric
registrations, users were made to re-register and include their BVNs or risk
being shut out of calls, messages, data and all other services related to the
cyber-world. Repeated messages were sent to customers of the need to register,
both those that had re-registered and those yet to. Personal experience, I was
cut off from the “world” a day after I had successfully re-registered
my BVN with the telecoms that seems to be battling “persistent ill-health”. The
only good fortune that came out of the “accident” was a gift
of over N7,500 worth of airtime. Of
course, that greatly assisted to soothe my aggrieved emotions.
Sometimes, bad things happen to good
people. This was the case of this hitherto telecoms provider of mine. A time
came (recently too) when I was falsely debited for a service I did not request.
Repeated complaints were made (via contact centre, mails, calls) and yours
sincerely was tossed from one unit to the other with no resolution. It took the
fear of the wrath of the Nigerian Communications Commission (NCC), Consumer
Protection Council (CPC) and another agency I fail to recall. Whether or not
the email addresses (which I got online) were valid, they sure produced results
because I was refunded the money deducted from my airtime and even got a bonus!
But we should know when to “pack well” after “fighting the good
fight”. After 12years of fidelity to that network, I ensured I exhausted
the last kobo of my bonus and made the decision to port to the choice network
of the Nigerian youths.
So I walk into one of the customer
centres of this snazzy, effizy
network. I inform one of the staff of what I propose to do and I am told that a
means of identification is required. “What about my BVN?”, I enquire,
“it identifies me”. And therein lies the shocker, “it does not
suffice”, I am politely but firmly informed. I proceeded to ask the staff
what then is the purpose of the BVN registration but he obviously lacked a
cogent response. It probably is not at fault for being unable to assist with an
explanation but the point remains that the repeated biometric exercises
conducted by different government organizations appear to be needless. I fail
to understand why adoption of existing collected data cannot be achieved.
Nigerians have undergone the same processes namely (the very least, twice) at:
the Independent National Electoral Commission (INEC), the Federal Road Safety
Commission (FRSC), Nigerian Communication Commission (NCC). A repeat of a
previous process confirms that the former exercise (and possibly the repeat
exercise) is a waste of energy, human and financial resources.
Following the recent backpedalling of
the Government in the proposed increased data charges billed by the telecom
companies, we should be able empowered and emboldened to question the sense (or otherwise) in the policies
rolled out by the Government and its agencies. Especially when at great
inconvenience.

BY – Ahudiya Ukiwe

Photo – Central Bank of Nigeria
Photo Credit – www.sunnewsonline.com

Ivie Omoregie: Death is Certain! This is Why It Is Important to Have a Valid Will

Ivie Omoregie: Death is Certain! This is Why It Is Important to Have a Valid Will


A wise man once said “everybody
wants to go to heaven, but nobody wants to die
”. I often find that the way
many people deal with the subject of death ironic; many children find it
difficult to discuss the topic with their parents, and the same sometimes
applies to spouses.


I cannot stress enough the
importance of estate planning, and its role in reducing the stress associated
with the death of a loved one. There are several estate planning techniques.
These include: life insurance policies, trusts, gifts, retirement pension plans
and wills.

This article shall focus
on the importance of making a valid will.

Whose Will Is It
Anyway?
A person is said to have
died ‘intestate’ where he has failed to make a valid will during his
lifetime – as well as also failing to use any other legal means to transfer his
property to his heirs or next of kin. Where this is the case, the applicable
state laws will determine what happens to the estate of the deceased. This may
be either customary or statutory laws.

Customary practices vary
from region to region. I am sure everyone has watched that Nollywood movie
where the husband dies and family members immediately come in to take
possession of all the guys properties, kicking out his wife and infant children
in the process.

A friend of mine is from a
very wealthy and very large Nigerian family. His father has many children with
several women. On day we were chatting and I randomly enquired if he had ever
asked his father about having a will, his reply was “so that he can insult
me and say I am the greedy child that is trying to kill him because of property
abi…. please I cannot ask him that kind of question
”.

I found it quite strange.
The need to have such a conversation was glaring in light of the fact that it
was a polygamous home; yet, most people would rather not have the conversation
because it made them feel “uncomfortable”.

The blunt truth is, even
the most united siblings are likely to bicker as a result of a wealthy parent
dying intestate. This is then amplified where there are many children from many
women, all of whom have presumably equal rights to the estate.

A will is a very important
estate planning tool, as it determines who inherits assets and valuable
properties upon death. Aside from this, and more importantly, it caters for who
will take care of orphaned children, if any, and exactly how the burial is to
be arranged. Many people do not appreciate the damaging effect on the family if
a loved one dies intestate; aside from discrepancies as to the distribution of
the deceased’s personal estate, I have witnessed an instance where the family
of the deceased disagreed as to where they should bury their loved one, country
of origin or country where all of the children and grandchildren resided.

Requirements for A
Valid Will
The following are key
elements to a valid will: –

1. The person making the
will must be of the legal age to do so, various state laws prescribe the
applicable ages, for lagos state this is 18 years. However, exceptions are
applicable to seamen, soldiers and mariners;

2. The will must be in
writing, however oral wills for seamen, soldiers and marines are valid;

3. The testator must be of
sound mind, both at the time of giving the initial instructions and at the time
of executing the will;

4. The testator must have
acted of his own free will in making the will, evidence to the contrary, will
render the will invalid;

5. The document must be
signed by the testator personally, or may be signed by another party in the
presence of the testator and under the testators direction, rules applicable to
illiterates and severely disabled persons will apply here; and

6. The testators signature
must be acknowledged by 2 witnesses, who in turn must also sign the document in
the presence of the testator.

Grant of Probate Vs
Letter of Administration
An administrator of an
estate derives his/her power form the Letter of Administration which is
obtained by an application to the court. Letters of Administration are granted
in instances where the deceased died intestate.

Where the deceased had a
valid will at the time of his/her demise a
n executor would have been identified
in the will. The grant of probate ratifies the functions and the powers of the
executor, usually by reaffirming the contents of the will, and clarifying grey
areas, if any.

Although an executor of a
will may deal with the estate immediately upon the death of the testator, the
ability of an executor to continue to act, is dependent on the grant of
probate; he/she may not perform certain acts without same. This is not the same
in the case of administrators. By law, an administrator derives his/her powers
from the Letter of Administration and thus may only act upon the grant of same.
The exception to this general principle is where these actions are for the
interest and benefit of the estate – in which case they will be correlated back
to the date upon which the deceased died, and validated by the courts.
Key Points to Note
a. When deciding on
possible custodians for minors, the chosen guardians should be informed of the
decision beforehand to determine if he/she is willing and suitable for the role;
b. The legal spouse of a
person who dies intestate is entitled to one third of the entirety of the
estate, after the deduction of funeral expenses, with the remainder two thirds
being shared equally amongst the children of the deceased;
c. There is no legal
distinction between children born in wedlock and outside of wedlock. Children
born out of wedlock are legal beneficiaries of the estate of their late father,
and thus entitled to a share equal to that of children born under any legal or
customary marriage, whether or not the marriage was subsisting at the time of
the child’s birth;

d. All persons with an
interest in the intestate estate of a deceased person may apply for letters of
administration in regards to that estate, inclusive of siblings, uncles/aunts,
cousins and children born out of wedlock; however, the statutory maximum is 4
persons. On the basis of the evidence submitted and with due regard to the
rights of all persons interested in the estate, the courts will have discretion
as to who these letters of administration are granted to; and

e. Where children born in
wedlock fail to acknowledge the rights of children born out of wedlock, this
may lead to the nullification of any Letters of Administration which might have
been obtained without their input, knowledge or participation.

Conclusion
Death is the only
certainty in life and so it is a subject which should be addressed and well
catered for; many people have allowed their fear of death to hinder their
ability to plan appropriately for it.

Please note…… the making
of a will does not lead to death.

I must stress the
importance of updating one’s will periodically, especially in instances where
there might have been substantial changes such as a divorce, a marriage, a new
birth or fluctuations to the initial financial disposition of the testator.

There is no point having a
will if the majority of your newly acquired “Buhari Wealth” is not
reflected in the document.

Ivie Omoregie 

Ivie is a commercial
lawyer, with experience and keen interest in projects and transactions work
within the Sub Saharan African region. She is called to practice in England and
Wales and Nigeria. Her core practice areas: include – all aspects Corporate
Commercial; Corporate Governance, Risk and Compliance; Financial services and
Banking; Infrastructure and Projects; Venture Capital, Private Equity and
Alternative Investment (including Fund Formation and Administration) ; Public
Procurement; Natural Resources; Telecoms, Technology and Media; Agribusiness;
Manufacturing and Construction.