THE COMPANIES AND ALLIED MATTERS ACT (CAMA), 2020 AT A GLANCE

a Publication by Path Solicitors…

On the 7^th of August, 2020, President Muhammadu Buhari signed into law, the new amendments to the Companies and Allied Matters Act. This amendment has been long awaited by lawyers, companies, SMEs, business community and generality of the public locally and internationally. This Amendment repeals the relevant Sections of the CAMA, Cap C20, 2004. It is the most significant piece of legislation in three decades and seeks to provide more protection for small businesses and startups.

The 2020 Act extends from Part A to Part F as against Part C under the old Act and has 870 Sections.

Below are the salient provisions of CAMA 2020:

Part A – Corporate Affairs Commission

1. GOVERNING BOARD: Section 2 provides for the governing board which shall be responsible for performing the functions of the Corporate Affairs Commission (Hereinafter referred to as “the Commission” or “CAC”) and makes other incidental provisions for the effective functioning of the Commission.
2. POWERS OF THE CAC: The new CAMA also substantially alters the powers of the Corporate Affairs Commission, giving them more powers to fix fees through regulation and extended powers over the proprietors of Incorporated Trustees under Part C.

Part B – Incorporation of Companies and Incidental Matters

3. SINGLE MEMBERSHIP COMPANY: Section 18 amends the previous provision of Section 18 by providing in Subsection 2, that one person can now become a shareholder of a company, as against the previous requirement for two persons to form a company. In this context, the person cannot be a minor (a person below the age of 18). This provision is different from the previous one which prohibits the forming of a company by less than two persons.
4. SUBSTITUTION OF AUTHORIZED SHARE CAPITAL TO MINIMUM SHARE CAPITAL: Section 27 amends the previous Section 27(2) by replacing the words ‘Authorized Share Capital’ with ‘Minimum Share Capital’. This implies that promoter(s) of a business are not required to pay for or allocate shares that are not needed at the specific time of incorporation.
5. STATEMENT OF COMPLIANCE: Section 40 (1) amends the previous Section 35 by introducing the Statement of Compliance (SOC) signed by an Applicant (or agent), without the need for a Lawyer or Notary Public to attest to Declaration of Compliance (DOC). SOC is a requirement of the law that indicates that the applicant has complied with the registration and requirements. This means that the Statutory Declaration required to be signed by a lawyer has been dispensed with.
6. OPTIONAL USE OF COMMON SEAL: Section 98 amends the previous Section 74 by abolishing the mandatory use of common seal, as its use by companies is now optional, NOT mandatory. This changes the previous position making the use and ownership of a common seal compulsory.
7. PROPER EXECUTION OF DEED BY COMPANIES WITHOUT COMMON SEAL:  Section 102: A document is validly executed by a company as a deed if it is duly executed by the company and it is delivered as a deed. A company may execute a document as a deed without affixing a common seal on the document. A deed is duly executed by the company if signed by: a director and a secretary; or at least two directors; or a director in the presence of at least one witness who shall attest the signature.
8. DISCLOSURE OF BENEFICIAL OWNERSHIP OF SHARE: Section 119 emphasizes transparency in terms of control in a company. It requires that persons with significant control in a company disclose its shareholding to other shareholders. For example, anyone who has person(s) holding shares on their behalf as trustees or proxies, whilst being shareholders themselves in same company, are expected to disclose such relationship for transparency.
9. DEFINITION OF SUBSTANTIAL SHAREHOLDER IN PUBLIC COMPANIES: Section 120 defines a substantial shareholder of a public company as a person that holds by himself or through his nominees 5% of the unrestricted voting rights at general meetings.
10. REDUCTION IN FILING FEES: Section 223 (12) reduces Filing Fees for Registration of Charges to 0.35%, which implies a reduction of cost in fees relating to charges. This is expected to reduce cost of filing charges up to 65%[1]
11. ORDINARY BUSINESS AT AGM: Section 238. Disclosure of the remuneration of managers is now included in the ordinary business of an AG.
12. ELECTRONIC SERVICE OF NOTICE OF MEETING: Section 244(3). As against the old provision where personal service, or service by post is recognized, the Bill provides for service of notice by electronic email in addition to personal service or by post.
13. CHAIRMAN OF PUBLIC COMPANY TO BE SEPARATE FROM CEO: Section 265 (6) provides that Firms cannot appoint one (1) Director to hold the office of Chairman and Chief Executive Officer of a private Limited Liability Company. This enhances minority shareholder protection and prevents hoarding of powers.
14. NUMBERS OF DIRECTORS OF A SMALL COMPANY: Section 271 Small company may have one director.
15. MULTIPLE DIRECTORSHIP: Section 307 (1): One single person cannot be a Director in five (5) different Public Limited Liability Companies at the same time. This will reduce fraud and encourage creation of jobs.
16. COMPANY SECRETARYSHIP: Section 330 exempts Private Limited Liability Companies from compulsorily appointing Company Secretary. The appointment of a Company Secretary is compulsory for public companies and optional for private companies.
17. REDEFINITION OF SMALL COMPANIES AND SMES: Section 394. The definition of a small company was altered to state that a small company is a private company which has:

•         a turnover of not more than One Hundred and Twenty Million Naira

•         net assets of not more than Sixty-Five Million Naira.

18. NON-MANDATORY APPOINTMENT OF AUDITORS BY SMES/SINGLE OWNED COMPANIES: Section 402 provides that Small companies or companies having one shareholder are NOT mandated to appoint auditors at AGMs to audit their financial records. These companies are exempted from presenting audited accounts in respect of a financial year.
19. ADDITIONAL COMPANY RESCUE REGIMES: Section 434 – 549; 718 – 721 form a framework protecting companies in distress and preventing insolvency by providing options other than winding up. Insolvent Companies can now be rescued from distress and liquidation through the following options: Voluntary Arrangements, Administration, and Netting.
20. ELECTRONIC FILING, ELECTRONIC SHARE TRANSFER, E-MEETING(VIRTUAL MEETINGS):  Section 861 provides for electronic filing of documents, electronic share transfer, and electronic meetings for Private Limited Liability Companies (LLC).
    1. Section 176(1) also provides that instruments of transfer of shares shall include electronic instruments of transfer.
    1. The new CAMA also provides for remote or virtual general meetings, provided that such meetings are conducted in accordance with the Articles of Association of the company. This will facilitate participation at such meetings from any location within and outside the shores of the country, at minimal costs. This is especially relevant today given the disruptions caused by the Covid-19 pandemic to company operations around the world.
21. Section 869 (7) of the CAMA 2020 provides that any individual, firm or company registered under the Repealed Act, immediately before the coming into operation of the new legislation, shall be deemed to be registered under and in accordance with the Repealed Act. .

Parts C, D & E

Part C provides for the Limited Liability Partnership; Part D provides for the Limited Partnership; while Part E provides for Business names.

22. ADDITIONAL BUSINESS STRUCTURES: The new Act, introduces Limited Liability Partnerships(LLPs) and Limited Partnerships(LPs) in Sections 746 & 753. This gives startups better protection in the event that they elect to enter a partnership agreement by protecting their rights, assets and defining obligations without saddling them with the responsibilities of incorporating a new company. LLP must have at least two designated partners who would oversee the day-to-day activities of the partnership and the membership is unlimited. The LP, on the other hand, must have at least one limited partner and one general partner; the latter is tasked with the day-to-day management of the partnership. The membership of the LP is maximum of twenty partners. 

Furthermore, the provisions of the Partnership Act 1890 shall govern LP whereas detailed provisions for the operations of LLP are specified under the New Act. Where there is any inconsistency between the provisions of the New Act and the provisions of the Partnership Act, the provisions of the New Act will prevail.

Part F – Incorporated Trustees

23.  MERGERS OF NGOs: section 849 extends merger beyond LLCs to Incorporated Trustees. This implies that two or more NGOs, social entrepreneurs with different registered organizations, with similar goals can merge to form one (1) single organization under such terms and conditions as may be prescribed by the CAC.
24. CONSENT OF ATTORNEY-GENERAL  DISPENSED WITH: Consent of Attorney General before incorporation is not required. However, the application for registration must be advertised in two national newspapers by the Corporate Affairs Commission.
25. LIABILITY OF MEMBERS: The minimum guaranteed liability of members in the event of the company being would up is increased to One Hundred Thousand Naira.
26. CLEARER PROVISIONS AS TO INCORPORATED TRUSTEES: Under the 2004 Act, provision is made on the procedure for removing, replacing or adding a trustee. While the 2020 Act in chapter 4, makes elaborate provision on how the day-to-day affair of an association under part F could be run and further gives the Corporate Affairs Commission the power to appoint interim manager to avoid vacuum in running the affairs of the association. Further more, the power given to CAC under this chapter are regulated and exercise-able in some instances through court intervention. 

In essence, where the commission makes enquiry and discovers that an association is being run in contravention of the Act, particularly where it is proven that there is mismanagement of the association by the governing body of the association, the Commission can wield its wide powers under chapter 4 of the Act which power are wider in the 2020 Act.

27. CRIMINAL OFFENCES UNDER CHAPTER 4: Contravention of any of the provision of chapter 4 attract not just, replacement, removal or suspension, it is a criminal offence which attract 6 months imprisonment upon conviction or fine as the court may deem fit. The Act now gives the court the discretion to fine contraveners or convicts as it deems fit as against the ridiculous fines of 50 or 100 naira provided in the 2004 Act. There is provision for one year imprisonment for undischarged bankrupt or convict; While the old Act provides 50 naira fine per day.
28. POWER TO DECLINE REGISTRATION: The 2020 Act empowers the commission to decline registration of an incorporated trustee where it is evident that such trustee has in the past been involved in fraudulent activities locally or internationally.
29. SUBMISSION OF PURPOSE: Another very important innovation in the 2020 Act are contained in chapter 6 and 7 of the Act. trustees of an association are required to submit for the purpose of accountability; to the commission a bi-annual statement of affairs of the association.
30. STIPULATION OF FINES BY CAC REGULATIONS: As may have been observed earlier, there has been an all round amendment to the Act, particularly those relating to fines by either the Corporate Affairs Commission or the court, the Commission and the court now have the power to stipulate penalty for contravention by trustee(s). The new CAMA also substantially alters the powers of the Corporate Affairs Commission, giving them more powers to fix fees through regulation and extended powers over the proprietors of Incorporated Trustees under Part C.

Part F is made up of 7 Chapters and 28 Sections. Below are the chapters and the relevant innovations:

• Chapter 1 defines incorporated trustees and extensively laid down the requirements and procedure for registration under the Act which is mutatis mutandis with the requirements and procedures under the 2004 Act save for the recently made regulations made by the Commission pursuant to the Act.
• Chapter 2 talks about changes in registered particulars of incorporated trustees.
• Chapter 3 gives a breakdown on Council, Powers, Income and Property.
• Chapter 4 elaborates on suspension of trustees and appointment of interim managers etc.
• Chapter 5 relates to common seal and contracts.
• Chapter 6 relates to account and annual returns.
• Chapter 7 states the procedure for merger and dissolution of a registered .

Conclusion

The provisions explained above are the relevant amendments made to the Companies and Allied Matters Act, Cap C20, 2004. We applaud the National Assembly for this innovation and urge that other obsolete legislations be reviewed and amended to suit changing times. There have been calls from several quarters that other inferior legislations such as Corporate Affairs Regulation, Companies Proceedings Rules and the Companies Winding up Rules would also be given attention to enhance and aid effective and successful implementation of the laudable innovations introduced in the 2020 Act.

[1] HIGHLIGHT OF POSITIVE CHANGES TO THE COMPANIES AND ALLIED MATTERS ACT ( CAMA ) VIA THE PASSAGE OF THE CAMA BILL 2020; Available at¸< https://www.lawyard.ng/wp-content/uploads/2020/08/Info-on-CAMA-2020.pdf> accessed on 11/08/2020

KNOW YOUR RIGHTS: POLICE STOP & SEARCH

Frequently Asked Question: Does the Nigerian Police have the right to stop  and search me?

Simple Given Answer: Yes! But, under certain conditions.

An officer of the Nigerian police possesses the legal power and constitutional authority to stop and frisk you or your property at any point in time, but they must do so on the grounds of reasonable suspicion or with a warrant, duly signed by a magistrate or high court. Section 29 of the Police Act, provides that a police officer;

‘…may detain and search any person whom he reasonably suspects of having in his possession or conveying in any manner anything which he has reason to believe to have been stolen or otherwise unlawfully obtained.’

This gives the uniformed officers of Nigerian Law enforcement, the power to prevent, detect crime, apprehend offenders and preserve law and order. Although, we have had the displeasure of being the witness to a number of cases where this power    is blatantly and recklessly abused, you will agree with me that it is in the best interest of a society not to drift into any form of anarchy or disorder. So this constitutional provision is in good faith.

In carrying out their duty of enforcing laws, keeping the peace, and maintaining order, a police officer can stop and search an individual, in situations where there is reasonable suspicion as to the individual in question, being involved in criminal activity or in possession of illegal or unlawfully-obtained property. If there is not justifiable cause or reasonable grounds to stop and frisk, such an action by a police officer is in contravention to an individual’s right to privacy and dignity of self. However, there is no clear-cut legal definition of what can translate to “reasonable suspicion”. The ambiguity of the term itself makes this particular stratum of legal jurisprudence, a hard nut to crack. So it is advised that you proceed with  extreme caution in this very sensitive situation

To determine whether a stop & search is justifiable or not, you have to carefully examine the surrounding circumstances that has led to a stop & search. Did you  provide appropriate identification? Did you provide satisfactory and honest answers to any inquiries made by the officer at that point in time? Are you engaged in suspicious behavior (e.g moving at odd hours of the day or unnecessarily hyperactive) ? Is there a complaint, petition or warrant against you? etc. If the police officer does not have justifiable reasonable grounds for a search, you are within your rights  to  engage  a legal practitioner to file a complaint on your behalf and seek legal redress for unlawful search and harassment.

An illegal or unlawful search is a direct violation of your right to dignity of person[1] and privacy as guaranteed under the Constitution of the Federal Republic.[2]

In respect to technological gadgets e.g. Laptops, phones and tablets, the Police reserves the right and the authority to search them,  but must do so with a warrant, else such a search is illegal and you should object to  such an action in  a civil manner  or seek legal action if inevitable. You are entitled to compensation and  a  public apology if such a law suit is successful in a court of law.

When stopped by Police Officers, you are advised thus;

1. Provide a valid means of identification, and seek the same from the police officers, in a civil manner.
2. Politely ask the police if there is any criminal report, petition or  warrant against you. Ask the reason you  are  being  stopped  and  searched.  If  the  police  officer  answers in the affirmative as to a  criminal  report  or  warrant  against  you,  asked  to  be  shown  the document.
3. Answer all questions honestly, dutifully, and satisfactorily. Do not embitter or antagonize the officers with your actions or demeanor.
4. If after answering questions to the best of your knowledge and ability, and the officers requests a search, and you believe there is no reasonable suspicion  for  a  search, object in a decorous manner & state that you do  not  believe  there  is reasonable grounds to warrant a search as you have answered questions satisfactorily, acted decently, and provided valid identification.
5. If they insist on a search, please do well to cooperate and comply, howbeit you should inform the officer of your desire to file a formal complaint.
6. According to Nigerian laws, search administered on a female, should and MUST be conducted by a female officer[3]. It is beyond a  legal faus pax,  in fact it is unlawful and illegal for a male to frisk a female. The law frowns against such
7. Do well to seek the services of a legal counselor, if your rights to privacy and dignity of self have been expressly violated and contravened by a police search

We advice you handle a police “stop & frisk” situation with extreme caution, decorum and wisdom.

REFERENCES

https://techcabal.com/2018/04/25/can-the-nigerian-police-stop-and-search-and-look-through-your- email/

https://www.google.com/amp/s/punchng.com/do-policemen-have-right-to-search-peoples-phones- laptops/%3famp=1

[1] Section 34 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

[2] Section 37 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

[3] Section 9(3) Administration of Criminal Justice Act(ACJA) 2015; S 5(2) Administration of Criminal Justice Law Lagos, 2011; Section 44(3)& 82 Criminal Procedure Code Law(CPCL)

RIGHT TO REMAIN SILENT: THE MIRANDA LAW

By Path Solicitors

The Miranda doctrine is a set of universally accepted fundamental rights that by law, must, be recited by an arresting officer to a citizen, before arresting or interrogating that citizen, in lieu of being the suspect of an alleged crime. Also known as the Miranda law / Miranda warning, it is read or recited as follows;

“You have the right to remain silent

Anything you say can, and will be used against you in the court of law

You have the right to an attorney,

If you cannot afford one, an attorney will be provided for you

Do you understand these rights and with these rights in mind do you wish to speak to me?”

The Miranda doctrine was birthed by the criminal justice system of the United States, under the landmark Supreme Court case of Arizona v Miranda. It is named after Ernesto Arturo Miranda, a man arrested and accused of the rape, armed robbery and kidnapping of a young lady, aged 18, in the city of Phoenix, state of Arizona, USA.

Miranda signed a confessional statement, admitting to the alleged charges. During trial, his counsel argued that the statement was not voluntary, and is therefore inadmissible, as Mr. Miranda was at no time informed of his right to keep silent, avoid answering any questions, or his right to an attorney, as provided by the 5th Amendment of the US constitution, which protects against any form of self-incrimination. The Supreme Court, under the leadership of Justice Earl Warren, ruled in favor of the defendant, citing the inadmissibility of the signed confession, as a result of the failure of law enforcement to keep Mr. Miranda abreast with his 5th Amendment rights. The Chief Justice, in his ruling, opined thus;

“…the person in custody must prior to interrogation, be clearly informed that he has a right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has a right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him”

This landmark ruling would go on to revolutionize both the US and International law enforcement agencies for years to come. Contrary to popular belief, an arresting officer, is not required to follow this doctrine in all arrests. In fact, the only time this law is invoked by law enforcement is when the arresting officer intends to question or interrogate the suspect in question.

Some notable exceptions are

1. When an individual is caught red-handed on the scene of a crime

• When an individual flees lawful custody

As provided by the concluding sentence of the warning recital, the suspect also has the privilege to waive the Miranda rights, and must verbally indicate his intention to do so. It is also advised that the suspect verbally invokes his right to remain silent, when he wishes to do so.

MIRANDA RULE IN NIGERIAN LEGAL JURISPRUDENCE

The Miranda Rule and legal protection against self incrimination is explicitly expressed in Sections 35(2) of the 1999 Constitution of the Federal Republic of Nigeria which states thus;

“Any person who is arrested or detained shall have the right to remain silent or avoid answering any question, until consultation with a legal practitioner or any other person of his own choice.”

Further, Section 6(2) of the Administration of Criminal Justice Act, (ACJA) 2015 also maintains an individual’s right to silence when being questioned or interrogated by law enforcement. It provides;

“(2) The Police Officer or the person making the arrest or the police officer in charge of a police station shall inform the suspect of his rights to:

1. remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice;
2. consult a legal practitioner of his choice before making, endorsing or writing any statement or answering any question put to him after arrest; and
3. free legal representation by the Legal Aid Council of Nigeria where applicable:”

Section 17 (2) ACJA on obtaining a confession, provides thus;

‘…such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid council of Nigeria or an official of a civil society organization or a Justice of the peace or any other person of his choice…’

These provisions clearly protect the right of silence of a suspect as enshrined in the Nigerian constitution. So know your right, stay informed.

REFERENCES

http://www.lexadvocatus.com/2017/07/miranda-right-and-application-in-nigeria.html?m=1#:~:text=You%20must%20have%20heard%20this,the%20case%20of%20MIRANDA%20 v

https://www.legalnaija.com/2015/11/the-miranda-rule.html?m=1

LEGAL REQUIREMENTS FOR OPENING A BUSINESS IN NIGERIA

Now, Picture this! You’ve got an idea, you have a product, you’ve set up your business location either physically or claim some digital real estate, you’ve got marketing ready, all is SET and we’re a go for Launch right?? No! You forgot one itty-bitty little fraction of the whole equation. Is your business legally backed?

You are probably asking, “What does that even mean?” Well, you’re probably not alone in asking that question. One major part most entrepreneurs do not consider when getting their ideas off the ground is the legal structure of their infant enterprise. A lot of persons take for granted the seamless regulated process of starting out a business in Nigeria while they run a profitable outfit for years without registering with local or state authorities. In this post, we outline the basic legal requirements for starting a business in Nigeria.

1) SELECT AN APPROPRIATE LEGAL STRUCTURE: This is probably the most important decision you would make at the onset of your business. This decision would affect the modus operandi, strategy, and the direction your business takes for years to come. There are majorly 2 types of business structure in Nigeria.Business Name: Also known as the “Sole Proprietorship or Partnership” business structure. This type of business is usually operated by just one person and is very simple to establish and manage. Business name registration at the Corporate Affairs Commission (CAC) under PART B of the  Companies & Allied Matters (CAMA) , 2004. This type of legal structure is not a legal entity on its own, i.e. it cannot sue or be sued, which invariably means that there is no difference between you and your business. You as a person bear the full brunt of the success or failure of the enterprise. The risks, liabilities, debts, profits and loss is all on you as the business owner.

1) Limited Liability Company: Also known as a Company limited by shares. It is generally held that the LLC is the best for SMEs, especially the ones with long term goals and elaborate plans for scaling / expansion. This structure protects you as a business owner from any kind of liability in relation to the business. Unlike the business name, it takes a minimum of two persons to form a company limited by shares in Nigeria. A LLC is a legal entity in its own right, which means it can sue and be sued in its own name. A company, whether private or public has perpetual succession, that means it can continue in perpetuity, despite resignation of the owner, bankruptcy or death of the directors or shareholders.

Lastly, the crown jewel of the LLC is that it qualifies your business for local and international investment. An LLC can scale up its prospects by selling equity in the business, known as shares, to public investors, because the company has more credibility and trust than that of the sole proprietorship.

2) CHOOSE, RESERVE AND REGISTER YOUR BUSINESS NAME: Whether you’re deciding on a sole proprietorship (Business name) entity or a company, your venture needs a name. What you may refer to as a brand name. You have to take this seriously here as your brand name is as important, if not more important than the product you sell. It’s your corporate identity, so you want to get it right! Needless to say, you can only use a name that isn’t already in use or isn’t identical to one being used by an existing and properly registered organization in Nigeria. Log on to the CAC online registry and conduct a name availability search. If your chosen name is available, you can go ahead and reserve, then proceed with registration. Registration must be done with the CAC, according to the CAMA.

3) REGISTER WITH TAX AUTHORITIES: To avoid legal liability for tax default / evasion, every company or business name must be duly registered with the Federal Inland Revenue Service (FIRS) and State Internal Revenue Board. On getting recognized by these bodies, your venture will receive a Tax Clearance Certificate, a Tax Identification number and a Value Added Tax number. You also want to register with state / local tax authorities so your paid employees can subscribe to the Pay-as-you-earn income tax, if your business operates physical locations. You’re exempted from this local company taxes if your business is fully digital.

4) BANK ACCOUNT OPENING: Unlike the Business name / sole proprietorship, which can decide to use a private bank account or open an official business account, a company limited by shares MUST open an account in the name of the company. The documents required for opening a business account includes; incorporation certificate & adjoining documents, valid mode of identification, account opening package duly completed and signed, company’s board resolution authorizing opening an account, Bank Verification Number and Tax Identification Number.

5) APPOINTMENTS: There are a number of VIP appointments to make when starting out. This is more peculiar to a company than a business name. So two very important appointments to make are; an Auditor, and a Company Secretary. A company secretary must be appointed for LLCs in compliance with the provisions of CAMA. The job description of the Secretary includes, but not limited to; filing of annual returns or revenues to the CAC, keeping properly and accurately the company’s statutory books, writing minutes of each board meeting or AGM, etc. Though not required by CAMA, a business name can as well appoint a Secretary and assign necessary duties if the sole proprietor chooses to.

Auditing is a very crucial administrative and financial task of a company limited by shares. A LLC has to be accountable for every penny received and every penny spent. Discrepancies in an audit report can result in serious legal ramifications, especially when multiple investors are financially knee deep in company affairs. While an auditor can be appointed, the company may just outsource this task to certain consultancy firms with a good track record.

6) REGISTER & OBTAIN LICENSE FROM RELEVANT REGULATORY AGENCIES: If you’re rendering industry based services, it is important to obtain license or permits from their regulators. For instance, if you’re engaged in the sales, distribution, or manufacturing of edible items, be it beverages, food, pharmaceuticals, etc., you are legally obligated to obtain operation license from NAFDAC. If you want to be an actor in the Telecom industry, then the Nigerian Communications Commission must be aware of your intentions. If you’re giving Access bank a run for their money, then the CBN must be in the loop. You should write your name in the book of the NIPC (Nigerian Investment Promotion Commission) if you want to cast out the nest of your LLC in hopes of catching big fleshy local or foreign investors. You must enlist in the Nigerian Stock Exchange, so as to open the flood gates for  Ade and Emeka to buy shares in your company. And if your business is engaged in an operational contract with a foreign counterpart, it is of utmost importance to register those contracts with the National Office for Technology Acquisition and Promotion (NOTAP), the regulatory body for transfer of technology e.g. Software license agreement, Trademark license agreement, consultancy services agreements, management technology agreements, etc.

7) BUSINESS PERMIT & EXPATRIATE QUOTA: A business permit is required for a non-national to start a business in Nigeria. This can be obtained through the Ministry of Interior. In addition, if you’re running a LLC, and you intend on employing foreigners, you must gain the legal go-ahead by obtaining an Expatriate Quota. An Expatriate Quota is the authorization to employ individual expats to work for your company. The EQ, forms the basis of work permits.

8) DON’T EVER FORGET THE “IP“: If your business has any Intellectual Property, it is important to register them, so anyone other than you will be legally barred from using it. Intellectual Property registration can be in the form of copyright, e.g. a creative work (writing); patent (a technology or invention); and Trademark (brand name). Registration of intellectual property is done with the Trademarks, Patents and Designs Registry while Copyrights are registered by the Nigerian Copyright Commission.

Thanks for reading till the end. Except your business is for the short term, or a spur of the moment, you really need to settle the legal aspects of the enterprise by seeking legal expertise in taking these legal steps for your business.

REFERENCES

Samuel Tinubu, 5th of July, 2018

Uchegbu Princewill, September 2nd, 2019

Edoabisi Udo, Jan 16th, 2018

Manoar Molla, February 17th, 2020

Author: Dept of Corporate / Commercial Law, Resolution Law, Nov 26th, 2018

Implications of Abuse of a Patient’s Rights in a Post-Covid 19 Nigeria

By John Demide

Nigeria recognizes the right to health and has committed itself to its protection by assuming obligations under international treaties and domestic legislation mandating specific conduct with respect to the health. Nationally, it is guaranteed under Chapter 2 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the National Health Insurance Scheme Act (1999) etc to mention a few of the legislations that exist to push forward this proposition. Under the International Covenant on Economic, Social & Cultural Rights which Nigeria has adopted under Chapter 2, everyone has the right to “the highest attainable standard of physical and mental health.” Thus, the Nigerian Government is obligated to take effective steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases.”[1].

Sadly, the skirt of the inadequacy of our infrastructure and the gaping holes in the enforcement of our laws was to be raised and our nakedness laid open On March 11, 2020, when the World Health Organization (WHO) declared that an outbreak of the viral disease COVID-19 – first identified in December 2019 in Wuhan, China – had reached the level of a global pandemic. Citing concerns with “the alarming levels of spread and severity,” the WHO called for governments to take urgent and aggressive action to stop the spread of the virus.[2]

Nigeria was not to be left out of the bandwagon of countries prepping themselves for the inevitable arrival of the dreaded virus that had been seen to be bringing greater nations down to their bare knees and knuckle. Struggling to stem the spread of an unseen villain that did not care about laws, regulations or the regulator.

Thus, the right to health as contained in Chapter two of the 1999 constitution under the fundamental objectives and directive principles of State policy was to be put to the test, as its brazen non observance over the years was to have severe socio-economic consequences for Nigeria. As was held in an article published “The right to health which is part of socioeconomic rights is connected to political, economic and social welfare and security for all citizens. Its enforceability is crucial for the sustenance of Nigeria, the lack of which may result in human insecurity, widespread diseases and endemic infections and lack of access to health care, all resulting in deprivation, as well as a retarded economic development and poor standards of living.”[3] Thus, the vilification of a citizen who goes to seek service from a Health institution under the auspice(s) of the facility being put on a lock-down to avert possible infection, can open up such an institution to being sued.

Nigeria’s National Health Act 2014 (NHA 2014) was signed into law on October 31, 2014. It provides a legal framework for the regulation, development, and management of Nigeria’s Health System. The NHA is made up of seven parts divided into various sections.[4] The seven parts of the NHA are Responsibility for health and eligibility for health services and establishment of National Health System, Health Establishments and Technologies, Rights and Obligations of Users and Healthcare Personnel, National Health Research and Information System, Human Resources for Health, Control of Use of Blood, Blood Products, Tissue and Gametes in Humans, and Regulations and Miscellaneous Provisions.

The act under reference states that a user may attend any health establishment for the purpose of receiving health services and where such a user is unable to secure access to such services in a state hospital, such a hospital is to refer such a user to an appropriate health establishment which is capable of providing the necessary treatment or care so needed[5]. International human rights law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it. Human rights law also recognizes that in the context of serious public health threats and public emergencies, restrictions on some rights can be justified when they have a legal basis. However, under the Covid-19 pandemic that we have found ourselves in, we have the possibility of public and private hospitals misdiagnosing persons who have slight of high-temperatures that are symptomatic of the common tropical Malaria/Fever that could be mistaken to be the similar symptoms of Covid-19. Thus, in a situation like this, when a user is denied access to the health services, what are the remedies available to such a user of the National Health services fundamentally enshrined under the 1999 Constitution and the National health Act.

Under the NHA, a user is guaranteed the right to unabated knowledge and all relevant information relating to his/her status and the relevant treatment[6] and the 1999 constitution grants an individual freedom of movement, thus allowing such a user to be able to move to the most appropriate health institution in search of treatment. This position of the law thus, puts the health service provider in a position to ensure that the patient/user is meant to be properly and adequately informed of his/her condition. Where this is not done, the health care provider can be said to have invariably infringed on the user’s right. On the flip side, with the existence of the Covid-19 pandemic and the directive by the Nigerian Centre for Disease Control to quarantine any known/suspected cases of Covid-19, there are bound to be brazen withdrawal of an individual’s rights in a bid to stem the spread of the virus, thus leading to forced detention of person’s suspected to be infected.

The scale and severity of the COVID-19 pandemic clearly rises to the level of a public health threat that could justify restrictions on certain rights, such as those that result from the imposition of quarantine or isolation limiting freedom of movement. At the same time, careful attention to human rights such as non-discrimination and human rights principles such as transparency and respect for human dignity can foster an effective response amidst the turmoil and disruption that inevitably results in times of crisis and limit the harms that can come from the imposition of overly broad measures that do not meet the above criteria.

Thus, the rights of an individual as much as it is provided for under the ground norm of the country[7], can be revoked in times of uncertainty for the greater good. However, the mode in which the right(s) are revoked brings to the fore, the remedies that might be availed an individual who is wrongly diagnosed and subjected to humiliating and inhuman circumstances that could warp the person’s mind or position in the public standing.

The Human Rights Position

Protect freedom of expression and ensure access to critical information

Under international human rights law, governments have an obligation to protect the right to freedom of expression, including the right to seek, receive, and impart information of all kinds, regardless of frontiers. Permissible restrictions on freedom of expression for reasons of public health, may not put in jeopardy the right itself.[8]

Governments are responsible for providing information necessary for the protection and promotion of rights, including the right to health. The Committee on Economic, Social and Cultural Rights regards as a “core obligation” providing “education and access to information concerning the main health problems in the community, including methods of preventing and controlling them.” A rights-respecting response to COVID-19 needs to ensure that accurate and up-to-date information about the virus, access to services, service disruptions, and other aspects of the response to the outbreak is readily available and accessible to all.

To ensure that restrictions are not arbitrary a community reading of the provisions of Chapter 4 and the provisions under International human rights law need to be taken in a wholistic manner. Notably the International Covenant on Civil and Political Rights (ICCPR), requires that restrictions on rights for reasons of public health or national emergency be lawful, necessary and proportionate. Restrictions such as mandatory quarantine or isolation of symptomatic people must, at a minimum, be carried out in accordance with the law. They must be strictly necessary to achieve a legitimate objective, based on scientific evidence, proportionate to achieve that objective, neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, and subject to review.

Broad quarantines and lockdowns of indeterminate length rarely meet these criteria and are often imposed precipitously, without ensuring the protection of those under quarantine – especially at-risk populations. Because such quarantines and lockdowns are difficult to impose and enforce uniformly, they are often arbitrary or discriminatory in application. Thus freedom on movement although provided for under the constitution, it can be revoked. Restrictions on these rights can only be imposed when lawful, for a legitimate purpose, and when the restrictions are proportionate, including in considering their impact. (to be continued)

[1] https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response

[2] Human Rights Dimensions of Covid -19 Response; https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response

[3] “Nigeria: Health as a Human Right by Femi Falana”; https://allafrica.com/stories/201712200373.html

[4]  National Assembly. National Health Act, 2014: Explanatory Memorandum. [Last accessed on 2015 Dec 29]. Available from: http://www.nassnig.org/document/download/7990 

[5] Sections 17(1) & (2) National Health Act, 2014

[6] Section 23(1)

[7] The 1999 Constitution as amended…

[8] Ibid 2

https://encrypted-tbn0.gstatic.com/images?q=tbn%3AANd9GcTGq9se7cxbYuV-VmZgYWkQxf2DnFxGB0brng&usqp=CAU

UN-EXECUTED NIGERIAN LEGISLATION: THE PLACE OF THE CORP LAWYER…

By Omobolaji Oyeniran Esq.

It is a popular saying that most Nigerian laws are yet to be implemented, this I believe to be true. 60% of the provisions of laws made are yet to be implemented hence leaving plethora of untapped goldmines in our laws, just as in reality, the nation still struggles to manage its natural resources. The writer focuses on the rich provision highlighted in the Legal Aid Act in respect of NYSC Lawyers, how this provision has not been utilized, as well as the advantages of utilizing same. The writer concludes with recommendations on how to implement this provision for the good of lawyer Corp members, the Legal Aid Council, indigent citizens, and the nation at large.

STATUTORY PROVISIONS OF FUNCTIONS OF NYSC LAWYERS.

Section 1 of the National Youth Service Corps Act(NYSC ACT)[1] provides for the establishment and objectives of the National Youth Service Corps with the sole aim of inculcating a sense of nation building, egalitarian service and self reliance in the Nigerian youths. Section 1(2) provides:

“(2) The Service Corps shall with a view to:

1. The proper encouragement and development of common ties among the Nigerian Youths
2. The promotion of National unity and;
3. The development of Nigerian youth and Nigeria into a great and dynamic economy.

be charged with the functions as pertain to the objectives of the service Corps set out in subsection (3) of this section.”

The objectives of the Corps listed in Subsection (3) inter alia are:

1. “Inculcate discipline in Nigerian youths by instilling in them a tradition of industry at work, and  of patriotic and loyal service to Nigeria in any situation they may find themselves;
2. Raise the moral tone of the Nigerian youths by giving them the opportunity to learn about  higher ideals of national achievement, social and cultural improvement;
3. Develop in the Nigerian youths the attitudes of mind, acquired through shared experience and suitable training, which will make them more amenable to mobilization in the national interest;
4. Enable the Nigerian youths acquire the spirit of self reliance by encouraging them to develop skills for self employment;
5. Contribute to the accelerated growth of the national economy.”

In order to achieve the objectives  adumbrated above, the Service Corps shall ensure the equitable distribution of members of the service Corps and the effective utilization of their skills in areas of national needs.[2]

The culminating understanding of the above provisions is that Corps members are to be posted to areas where their skills are required to enhance national growth in a bid to develop in them the spirits of patriotism and self reliance. In the light of this, the National Assembly under Section 16 of the Legal Aid Act, LFN 2011[3] enacted as follows:

“Notwithstanding the provisions of any other enactment including rules of court, legal practitioners for the time being serving in the National Youth Service Corps shall, if the Council so directs, act for a person receiving legal aid, in which case no professional fees shall be made by the Council except stipend and travelling allowance”

From the foregoing, it would be safe to infer that Lawyers serving in the National Youth Service Corps are expected to use their lawyering skills in national development by rendering pro bono services to indigent citizens through the joint administration of the Service Corps and the Legal Aid Council.

THE STATUSQUO

The reality of the above provision is that many legal practitioners serving in the NYSC are not posted to the Legal Aid Council. The means adopted to cure this malady is the Community Development Service(CDS) in which Corps members are made to use their skills to help in nation building. However, many lawyers are posted into all sorts of CDS groups that make them redundant throughout their service year, hence frustrating the purpose for the establishment of the Service Corps as well as the Community Development Service whereas the services of legal practitioners are highly needed.

With the continuous swelling of the Nigeria’s population, the demand for legal representation as well as legal services is constantly on the high rise. Many people associate this to an increase in the level of literacy, the emergence of more business enterprises and increase in crime rates. Similarly, the swollen population brings with it a proportional increase in tortfeasors, and numerous infringements of fundamental human rights by law enforcement agencies. Ironically, majority citizens who are victims of this human mal-administrations are indigent and cannot afford legal representation, hence the need for legal aid. The poser is “where then is the free service of a lawyer serving in NYSC needed most, with the Legal Aid Council or Dance and Drama?”

Apart from helping the indigent out of their misery, the free skills of NYSC lawyers can be used in national development especially in the area of prison decongestion. According to a prison audit report of the National Human Right Commission (NHCR) published in 2019,[4] there are over 73, 995 inmates in Nigerian prisons, with 68% of the figure awaiting trial. Meanwhile the total combined inmate capacity of Nigerian Prisons is 50, 153 inmates.[5] During a visit to the Agodi Prison few years ago, the writer learnt that out of 1,031 inmates, 968 inmates were awaiting trial. Apart from the painful fact that many inmates are being held in innocence, their maintenance and feeding are cutting deep into the Federal Government Budget for Prisons, and with the dwindling revenue, a paltry sum of N 222 (Two hundred and twenty two naira) earmarked for the daily feeding of each of the inmates of the various prisons scattered across Nigeria. This leaves family and friends with the burden of catering for their imprisoned loved ones, and for those who were captured without the knowledge of their loved one, or who do not even have loved ones, are left to fend for themselves.

A prominent factor responsible for the problem of overcrowding is the indigence of most accused persons who cannot afford the service of a lawyer to either obtain simple bail, or even represent them in court, most do not even have a case file to their name, hence they end up spending years in prisons.

Even though, Heads of Courts during special national holidays  discharge some inmates as part of their power to grant prerogatives of mercy, it is still not the best measures considering that the Country prides itself in rule of law enshrined in its Constitution which protects the fundamental rights of its citizens. Also, considering the measures put in place by her Law makers contained in the Legal Aid Act and the NYSC Act, the Country should do better in protecting its citizens.

RECOMMENDATIONS

In a bid to achieve a sufficient implementation of the joint provisions of the Legal aid Act and the NYSC Act, the writer recommends as follows:

1. The Legal Aid Council should be tasked with quarterly, biannual, and annual goals which must be implemented to enable it be funded for the succeeding year.
2. All lawyers, or 90% of lawyers in NYSC service should be assigned to the Legal Aid CDS group.
3. Upon assignment, each lawyer should be given a case file to handle before the completion of their service year.
4. Where possible, Lawyers in NYSC service should be assigned interlocutory matters, for instance, Bail Applications, Arraignments.
5. Like officers from the Ministry of Justice, Corp members rendering pro bono services that are not for hearing (especially in Criminal Cases)should be given priority in Court (this will automatically be the case, as officers representing the State being the Prosecution in all criminal matters,  are given priority in court, and thus Corp members from the opposing side will consequently enjoy such benefit of priority as well)
6. Lawyers should work with the legal practitioners at their Primary Place of Assignment(PPA), their Legal Aid Coordinator, and their fellow lawyers that are Corp members in achieving their assignments.
7. The Supervisory authorities over each Cope member should be the Legal Aid Coordinator and the Lawyer’s supervisor at their PPA. This is needful as the average lawyer spends one day of the week at the CDS group but expends the remaining at the service of their PPA, thus the need for the PPA to guide, assist, and ensure that such lawyer achieves his assigned task. During the pendency of their service year. More so, since legal practitioners are expected to render pro bono services, the assistance rendered by the law firm could also fall under their own Corporate Social Responsibility. (CSR)
8. Where a case drags on beyond the one year stay of the Corp member, the PPA should be made to inherit the case, and where they refuse, the case be reassigned to a new Corp member, or another lawyer in the service of the Legal Aid Council.

Inasmuch as the implementation of the above suggestions would aid the indigents in our society, it would also ease the overwhelming financial burden of catering for the welfare of Prisoners from the neck of the Federal Governments, whilst the Legal Aid Council achieves its mandate for each year, and most importantly the whole essence for the establishment of the National Youth Service Corps which is to promote a sense of national patriotism in Nigerian Youths would be achieved. More so, the opportunity given a Lawyer serving in NYSC to represent a client helps to groom and harness their Advocacy Skill, Client Management, as well as Case Management Skills. It is a reality that many lawyers in the service Corps will end up in other areas of law, however the experience garnered during their one year service will definitely leave an indelible mark in their career path, and also inculcate in them the need to render pro bono services, and to ensure the execution of the Corporate Social Responsibility(CSR) of any establishment they work with, hence building a stronger nation founded on egalitarianism, patriotism and altruism.

[1] Chapter N84 Laws of the Federation of Nigeria, 2004.

[2] Subsection (4)(a) NYSC Act.

[3] The Legal Aid Act, 2011 which repealed the Legal aid Act CAP. L9, Laws of the Federation of Nigeria, 2004.

[4] https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.state.gov/wp-content/uploads/2020/02/NIGERIA-2019-HUMAN-RIGHTS-REPORT.pdf&ved=2ahUKEwiL16GMkbHqAhVxDWMBHW76BSgQFjADegQIAxAC&usg=AOvVaw2Lp6_grZYj0zWVeKHJBHb6.

[5] supra

Company Regulations, 2017: An amendment of the Companies and Allied Matters Act, 2004

By ODIGBO UGOCHUKWU SANDRA

INTRODUCTION

According to the Companies and Allied Matters Act[i], one of the requirements for application for registration of a company is the Statutory Declaration of Compliance[ii]. This requirement demands a certificate declaring that the promoters of the company have complied with all the requirements of the law. The Declaration must be deposed to by a Legal Practitioner as defined under the Legal Practitioners Act. This requirement under the law has created a situation whereby promoters of a proposed company must seek the expertise of a Legal Practitioner before an application for registration can be made. Because of this, the lawyer has a duty to ensure that in preparing for registration, the promoters follow the letter of the law in all pre-incorporation transactions[iii]. However, the newest amendment of the Companies Regulation has substantially changed this provision. An examination of this amendment is the focus of this paper.

Legal practitioners, in the Nigerian Context, may also be referred to as Lawyers, Attorneys, Advocates, Solicitors, Barristers, Esquire and a lot of other such terms that denote involvement in legal practice[iv]. He is a person, who through a regular program of study, is learned in legal matters and has been licensed to practice his or her profession. From the inception of the Nigerian Modern Legal practice as it is today, certain roles and rights have been known to belong to Lawyers. These roles include preparation of land documents[v], declaration of statutory compliance in the registration of companies at the Corporate Affairs Commission(CAC)[vi], appointment as Attorneys-General[vii], becoming Judges[viii], and other such rights/roles. These form the functions of Legal Practitioners in addition to Litigation.

THE LAW AS IT WAS

The Presidential Enabling Business Environment Council[ix](PEBEC) was created by the Federal Government to improve the business environment and make Nigeria a progressively easier place for businesses to start and thrive[x]. One of the reforms proposed by PEBEC is the direct registration of companies by first directors and subscribers. The adoption and codification[xi] of this proposal has removed the restriction that only accredited agents could register companies. Part of the documents required for registration under Section 35 Companies and Allied Matters Act is a statutory declaration in the prescribed form by a legal practitioner. In other words, a lawyer’s declaration is a mandatory requirement for the valid registration of a company as this goes to show that the promoters of the company have complied with all the provisions of the Act and other laws.

The requirement of the Section stated above was to the effect that promoters who intended to apply for the registration of a company had to seek the expertise of a lawyer before such application. The lawyer thus, had a duty[xii] to oversee the procedure for application and inspect pre-incorporation contracts to ensure that the application was not in contravention of any laws and that all requirements under all applicable laws had been followed.

THE LAW AS AMENDED

On the 5^th day of April, 2017, the honourable minister of Industry, Trade, and Investment, Dr. Okechukwu E. Enelamah pursuant to the powers vested in him by Section 16, 585 and 609 of CAMA, amended the Companies Regulations, 2012[xiii] to the effect that applications for registration of a company could be brought either physically to the offices provided in the amendment or through electronic means by any of the following:

1. A legal practitioner, Chartered Accountant or Chartered Secretary, duly accredited by the Commission as an agent;
2. A first director or subscriber to the memorandum of association in respect of new registration under Part A of CAMA;
3. A proprietor or partner in respect of application under Part B;
4. A trustee in respect of application under Part C of CAMA;
5. A duly appointed secretary in respect of Post-incorporation application under Parts A and C of CAMA.

In a bid to circumvent the provision of Section 35(3), Regulation 11(b) provides that the sum of 500 naira be paid by any of the persons listed in (2) above to the commission in exchange for deposition by a Legal Practitioner working with the commission of the Statutory Declaration of Compliance. This provision has not sat well with lawyers in Nigeria and outcries have been heard against it.[xiv]

In a matter brought by Ernest Nkwocha Esq. against the Minister of Industry, Trade and Investment, Corporate Affairs Commission and The Attorney General of the Federation[xv] at the Federal High Court, Kano Judicial Division, he contended that Section 585 and 609 of CAMA which the Minister placed reliance on do not in any way grant the Minister the power to make the kind of provision the Minister made in Regulation 11(b) of Companies Regulation 2012 (as amended). He stated that the only valid law the minister relied upon is Section 16 of CAMA, and argued further that the Section does not also grant the Minister such power. He stated also that Sections 16 of CAMA is a general rule while Section 35(3) of CAMA dealing with Statutory Declaration Compliance is a special and particular provision appearing subsequently to the general rule in Section 16. He further canvassed that one does not need to be an astute lawyer to know the legal import and purport of this in our laws; that one of the trite rules of interpretation of statutes is that generalia specialibus non derogant[xvi], stressing that, this in law means that Section 35(3) of CAMA overrides the general provision in section 16 of CAMA.

The Respondents contended that legal practitioners in the employment of the CAC have powers to practice as legal practitioners which include signing pleadings, appearance in court and making declaration of compliance. Furthermore, it was submitted that the regulation does not foreclose the directors or subscribers from engaging the services of legal practitioners in private practice to make such statutory declaration of compliance and that it is only where the directors or subscribers are not able to engage or afford the services of a legal practitioner that Regulation 11(b) can be activated-for ease of doing business in Nigeria. Counsel submitted that it will amount to a negative construction if officers in the service of the CAC are authorized by law to appear in court and can carry out all functions of legal practitioners but are precluded from making a mere statutory declaration of compliance.

The court HELD that Legal practitioners in the employ of the CAC are barred from giving such an opinion to the CAC. Section 35(3) of CAMA is very clear on whom to do such declaration-a legal practitioner. [xvii]

It is my view that the section does not anticipate that legal practitioners in the employ of the CAC will perform the act otherwise the section would not have provided that the statutory declaration ‘shall be produced to the Commission’. As the Legal Practitioners under the employ of the CAC are part of the CAC, it will amount to an abuse of legal interpretation to provide that the CAC can sign the statutory Declaration. This is equivalent to cancelling the requirement for the Declaration totally.

The provision of Regulation 11 (as amended) is an attempt to abuse the literal interpretation of Section 35. The amendment of the Companies Regulation seems to imply that the insertion of the requirement of the Declaration duly signed by a lawyer is useless and unnecessary. It is clear from the wording of CAMA that the Statutory Declaration, already signed by a lawyer who was in the position to oversee the pre-application process should be produced to the commission, not one issued by the commission.

THE AMENDMENT OF THE REGULATION: AN AMENDMENT OF CAMA?

Regulation 11(b) as amended provides thus:

‘’where application for new registration under Part A is presented by any of the persons mentioned in Regulation 11(a)(ii), the Statutory Declaration of Compliance SHALL be deposed to by a Legal Practitioner in the service of the Commission and the presenter shall pay the sum of N500 only to the Commission as cost of notarization.’’[xviii]

In the case of Ernest Nkwocha and 2 ors V the Minister for Industry, Trade and Investment  and 2 ors[xix], The court further held thus:

‘’ the word used in Regulation 11 (b) is ‘shall’ thus expressly excluding other legal practitioners from signing the Declaration of Compliance for people registering a company who fall under Regulation 119b)(ii). It is my view that this is an amendment to section 35(3) of CAMA. The 1^st Respondent has no such powers, and none was conferred to it by the provisions of sections 16, 585 and 609 of CAMA whether expressly or by implication.’’[xx]

By this decision, the court opined that the use of the word ‘shall’ in the amendment was an attempt to amend CAMA, which power the Minister didn’t have. The respondents have filed an appeal at the Court of Appeal, Kaduna Judicial Division. The appeal is yet to be decided.

In legal drafting and interpretation, the word ‘shall’ is used to mean compulsion. Where ‘shall’ is used before an act to be done, it is understood that the law makes that action compulsory upon anyone who wishes to carry out that action. In the case of Corporate Ideals Ins. Ltd. V. Ajaokuta Steel CO. Ltd.[xxi], the court on the import of ‘shall’ when used in a statute stated thus:

‘’where the provision of a statutue is garbed with the word ‘shall’, it connotes that it is imperative that the provision be obeyed. This is so because ‘shall’ is a word of command. It imposes a duty and makes the provision mandatory’[xxii]

From decision of the honourable trial judge, it is clear that ‘shall’ connotes mandatoriness. It therefore follows, that the provision of Regulation 11b is one of compulsion and command.

CONCLUSION

The role of a Legal Practitioner in the registration of a proposed company is one that cannot be over emphasized. Where a lawyer is involved in the pre-registration of a proposed company, he acts as the agent of the law[xxiii]. He keeps an eye out for sharp practices and illegality. He guides the promoters and steers them in the right direction. This involvement of a legal practitioner is what the Corporate Affairs Commission counts on. The purpose of the required Declaration is clear from its name: Statutory Declaration of Compliance. The Declaration serves to assure the Commission that all the details in the forms are correct, that the law has been complied with, and that no uncouth practices have been employed in preparation for the application. This assurance saves the Commission the stress of going through a background check and of attempting to confirm all the details provided by the applicants.

The innovation introduced by PEBEC and signed by the Minister, although thoughtful, should have taken into consideration, the original reason for including the Statutory Declaration of Compliance in the documents required for registration. Although the Amendment sought to cover the lacuna that would have been created if the Declaration had been scrapped totally by providing that lawyers in the employ of the CAC should sign the Declaration instead, that provision trivializes the requirement for the Declaration in the first place.

In addition, the amendment failed to take into consideration, the effect on the business and economic impact on the lives of lawyers. It is obvious that this amendment will greatly affect the financial status of lawyers across Nigeria, some of whom made a living from the charge of registering compamies.

Moreover, the general provision of Section 16, CAMA from which the minister derived the power to amend the regulations is subject to the specific provision of Section 35 as explained in this paper. The result of this is that the general provision in Section 16 cannot be cited as grounds to contravene the provision of Section 35. The rationale behind this is explained extensively in the body of this work.

Furthermore, the use of ‘shall’ in Regulation 11b connotes that where the person seeking to apply for registration is a first director or subscriber to the Memorandum of Association, the Declaration for gthat person’s application can only be deposed to by a lawyer in the employ of the Corporate Affairs Commission. This excludes all other lawyers and puts a restriction on the general provision of CAMA and on the rights of the legal practitioner as we know it. Thus, this amendment seeks to amend CAMA and the Minister for Industry, Trade and Investment definitely doesn’t have power to amend CAMA.

Conclusively, I register my agreement with learned Judge Egwuatu where he held that it is unreasonable to assume that the provision of CAMA can be interpreted to mean a deposition by CAC to be submitted to CAC. That interpretation which the defendants relied on is obviously improbable. Furthermore, the use of ‘shall’ which is known in legal lingo to mean compulsion by the Amendment is interpreted to mean that only lawyers working under the CAC can depose to the Statutory Declaration where the application is brought to the CAC by a first director or a subscriber to the Memorandum. This excludes all other lawyers not employed under the CAC. Thus, it is my opinion, that the Minister for Industry, Trade and Investment has the power to amend the Companies Regulations in line with the powers granted him under CAMA. However, he has exceeded those powers where he attempts to use such amendment to amend or alter or contravene the provisions of CAMA which is the parent law of the Companies Regulations. Hence, the specific provision contained in Section 35, CAMA supersedes the power given to the minister in Section 16 to make amendments to the Regulations and further supersedes the provision of Regulation 11b. Consequently, the provision of Regulation 11b[xxiv] is void and of no effect.

[i] Section 35, Companies and Allied Matters Act, Cap C20, LFN 2004.

[ii] Section 35 Supra.

[iii] Legal Practitioners Act, Cap L11, LFN 2004

[iv]Your Dictionary, Synonyms for Legal Practitioner. Available at < https://thesaurus.yourdictionary.com/lawyer > assessed on 19th March, 2019.

[v] Rule 22(1), The Rules of Professional Conduct for Legal Practitioners, 2007.

[vi] Companies and Allied Matters Act, Cap C20, LFN 2004

[vii] Section 150, Constitution of the Federal Republic of Nigeria, Cap C23, LFN 2004.

[viii] Constitution of the Federal Republic of Nigeria, Cap C23, LFN 2004.

[ix] Hereinafter referred to as PEBEC.

[x]The Presidential Enabling Business Environment Council; available at <  https://easeofdoingbusinessnigeria.com/ > assessed on 19^th March, 2019.

[xi] Companies Regulations, 2012 (as amended)

[xii] Legal Practitioners Act, CAP L11, LFN 2004

[xiii] Regulation 11

[xiv] Ogunfuwa A. (2017, March 7) Lawyers fault CAC on Business Registration Process available at < https://punchng.com > assessed on 19^th March, 2019.

[xv] FHC/KN/CS/86/2018 (unreported)

[xvi] Nobis-Elendu V. I.N.E.C (2015) 16 NWLR (1485) 207 which provided that where a specific provision of a statute is subsequent to a general provision, the specific provision prevails in the event of any conflict between the two.

[xvii] CAC Lawyers Cannot Depose To Statutory Declaration Of Compliance: Recent FHC Decision In Nkwocha V. Min Of Industry; available at < https://thenigerialawyer.com/cac-lawyers-cannot-depose-to-statutory-declaration-of-compliance-recent-fhc-decision-in-nkwocha-v-min-of-industry-download-the-judgement/ >  assessed on 19^th March, 2019.

[xviii] Regulation 11(b), Companies Regulations, 2012 (as amended)

[xix] Ibid., 4

[xx] Per Justice A. O. Egwuatu

[xxi] (2014) 7 NWLR (1405) 1165

[xxii] ibid

[xxiii] Model Rules of Professional Conduct: Preamble & Scope; available at < https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope/ > assessed on 19^th March, 2019

[xxiv] Companies Regulations, 2012 (as amended)

Force Majeure in Employer-Employee Relationship: A Covid-19 Reality.

By John Demide, Esq.

Man has been plunged into a new reality, one where the regular occurrences he is accustomed to is turned over on his head. He has had economic activities halted in a bid to ensure longevity and the assurance of a possibility of living to see another day. The Nation of Nigeria was ushered into a new normal when an initial 14-day lockdown in the FCT and 2 other states in a bid to stem the COVID-19 pandemic was declared, subsequently another 14-day extension led to economic activities being shut down for another reasonable period. This shut down has no doubt wreaked havoc on the larger economy of the country and set in motion a lot of consequential job cuts, pay-cuts, businesses falling into bankruptcy and a whole dystopia of controversies bubbling up.

With these circumstances occurring around us, we are faced with the situational occurrence of an act of God or Force Majeure. The Force Majeure clauses being invoked by some employers who whimsically had the clauses included in their respective contracts without knowing what it entails in some instances now takes the fore in the current situational circumstance we find ourselves in. Can the outbreak of a Pandemic qualify as a circumstance that allows an Employer to declare Force Majeure?

What is Force Majeure?

Force Majeure is a variant of frustration, but it only applies where parties have elected to include it in their executed contract. Although its effect is broadly similar to frustration in that it exculpates the parties from breach if performance is impossible because of certain specific events, it does not necessarily terminate the contract. The contract will continue to subsist until the obligation is eventually fulfilled, in so far as it remains capable of being fulfilled. Unlike frustration, force Majeure cannot be implied or invoked where a contract does not specifically provide for it.[i]

In addition, because there is no generally accepted definition of force majeure, the words used in force majeure contract provisions are crucial, as a party will only be relieved from the performance of the obligations to the extent specifically described in the force majeure provision

In the case of Globe Spinning Mill Nig. Plc vs Reliance Textile Industries Ltd[ii]. It was held that:

“Force majeure is a common clause in contracts which provides that one or both parties can cancel a contract or be excused from either part or complete performance of the contract on the occurrence of a certain specified event or events beyond the parties’ control.”[1]

This definition as secured from case law simply put, sets out the parameters surrounding a party’s choice to withdraw from continuing with a contract. Now it can be clearly inferred from this definition that the Force majeure refers to an event or effect that can neither be anticipated nor controlled. Thus where an employer of labour seeks to rely on this clause to avoid having to pay a member of staff, or down-size his workforce as a result of an unexpected downfall of business, the question that beckons is “can such an employer be said to be going short of the law?”. This poser opens the floor to review of such a scenario on a case-by-case basis.

EVENTS THAT CAN TRIGGER A FORCE MAJEURE

The Courts have over time identified certain events which can trigger a Force Majeure declaration by either or all parties to a Contract. In the reported Nigerian case of Diamond Bank Ltd V Ugochukwu, the court held that for a Force Majeure to occur there must be an event which significantly changes the nature of the contractual rights of the parties, such that it would be unjust to expect the parties to perform those rights, these include

• Where the subject matter of the contract has been destroyed or is no longer available.
• Death or incapacity of a party to a contract
• The contract has become illegal to perform as a result of new legislation.
• A contract can be frustrated by the outbreak of war.
• Where the commercial purpose of the contract has failed.

War, strike, riot, crime, or an event described as an “act of God” (hurricane, flood, earthquake, volcanic eruption, etc.) were also contemplated in the case of Globe Spinning Mill Nig. Plc vs Reliance Textile Industries Ltd[iii], no doubt the COVID-19 Pandemic will come to be viewed under one of such events. Though, looking at the way the law treats every case, we understand that every case will be treated on its own merit, as the surrounding circumstances vary from case to case.

Thus in the context we look at it now, the writer would like to ask, how probable would it be for the principle of Force Majeure to be a likely defence for the Nigerian Employer in the event such an employer decides to unilaterally withhold payment to an employee and disengage same, when there is no malfeasance on such an employee’s part, nor was his inability to work a direct result of his/her malfeasance or negligence as the case maybe?

FORCE MAJEURE & CONTRACTS OF EMPLOYMENT

Under the law, there is the possibility that the contracts of employment may be strictly interpreted within the confines of the clauses indicated within the terms of the contract and in a situation where the contract under reference does not expressly make provision for the occurrence or non-occurrence of a Force Majeure, such an employer stands the possibility of being thrown under the bus for their non-contemplation of such an occurrence. Generally, when the Nigerian Courts are called upon to ascertain whether a Force Majeure event has occurred, the Courts will strictly construe the Force Majeure clause in the subject-matter Contract and will not import any event not specifically mentioned therein.

It is a ground rule at law that Parties are bound by the terms of their Contract and that a Court is not allowed to import words or externalities not specifically mentioned in the Contract. It follows naturally that where the terms of a written contract are clear and unambiguous effect must be given to the contract, and it is not the duty of the Court to rewrite contracts for the parties. Union Bank (Nig.) Ltd. v. Ozigi[iv]states the general rule to be that where the words of any instrument are free from ambiguity in themselves and where the circumstances of the case have not created any doubt or difficulty as to the proper application of the words to claimants under the instrument or the subject matter to which the instrument relates, such an instrument is always to be construed according to its strict, plain and the common meaning of the words themselves.[v]

This rule is such that it protects the parties in a contract from being mischievously rail-roaded into conjectures that could be brought up to give an escape hatch for a recalcitrant party to a contract (which in this case could be the employer of labour).

FORCE MAJEURE AS IT AFFECTS EMPLOYER – EMPLOYEE CONTRACTS

Now for an employer of labour faced with the prevailing economic crunch who has been unable to generate corresponding income to sustain his/her employed labour, the question that stares them in the face, is “can an employer of Labour coming under the Force Majeure Principle, state that the COVID-19 Pandemic qualifies as an occurrence beyond the Employers reasonable control?”

Taking a strict approach to the explanation of what constitutes Force Majeure, case law has stated that a Force Majeure is something that is unexpected and unforeseen happening, making nonsense of the real situation envisaged by parties. Thus, the argument can be advanced that the COVID-19 pandemic has been seen not to be an occurrence that falls within the ambit of an employers’ contemplatable capacities.

However, for an Employer to avail himself expressly of this covering, he is caught up with the rules of contract which does not expressly allow any interpretation to avail any of the parties to the contract outside the letters of the contract. Case law has gone on to state circumstances that preclude an employer from trying to use this as a shield to protect or excuse him from performing his contractual duties. They are:

1. Any result of the negligence or malfeasance of a party, which has a materially adverse effect on the ability of such party to perform its obligations.
   
   
2. Any result of the usual and natural consequences of external forces.

To illuminate this distinction, take the example of an outdoor public event abruptly called off. If the cause for cancellation is ordinary predictable rain, this is most probably not force majeure. If the cause is a flash flood that damages the venue or makes the event hazardous to attend, then this almost certainly is force majeure. Some causes might be arguable borderline cases; these must be assessed considering the circumstances.

Thus in the event that an employer expressly inserts in their employment contract instances contemplated as possible cases of Force Majeure to the exclusion of instances of Pandemics as we are in right now, it does not exclude an employer from availing itself the opportunity of taking cover under the principle of Force Majeure.

CONCLUSION

The doctrine of Force Majeure is a very important clause that must be inserted into any contract, especially a contract of employment. Because the COVID-19 Pandemic has rightly shown that the drafting of a contract of employment needs to as of right contemplate the inclusion of the clause to adequately cover both the Employer and the Employee to insulate their levels of legal exposure at varying levels.

In conclusion, in answer to the poser posed at the beginning of this article asking whether an employer could be said to be going short of the law when they choose to unilaterally cut an employees pay or disengage them without reference to any contemplatable infraction as stated in the terms of contract of employment? The answer is Yes! Such an employer will be held accountable to the full extent of the laws guiding contracts and Force Majeure cannot be availed such an employer, where not expressly stated in the contract of employment.

Please note that this article is a general discussion of law and does not constitute legal advice.

For further information on this article and area of law, please contact John Demide, Esq, mobile (+234.814.698.4343) or email john.demide@pathsolicitors.com

Path Solicitors Abuja Office: Flat 3, Plot 796/9 Oka Akoko Street Off Lagos Street, Garki II, Abuja. (+234 1 472 9890), fax (+234 1 4605092)

[i] COVID-19: An Act of God (Force Majeure or Frustration) in Law?http://www.spaajibade.com/resources/covid-19-an-act-of-god-force-majeure-or-frustration-in-law/

[ii] Globe Spinning Mills (Nig.) Plc v. Reliance Textile Industries Ltd (2017) LPELR-41433(CA)

[iii] Ibid

[iv] (1994) 3 NWLR (Pt. 333) p. 385: 

[v] Ibid; Bookshop House v. Stanley Consultants(1986) 3 NWLR (Pt. 26) p. 87: African Reinsurance Corp. v. Fantaye(1986) 1 NWLR (Pt.14) p. 113 .

AMCON LAWS AND COVID-19: THE CALCULATION OF TIME IN THE CORONA VIRUS ERA

– U. S. Odigbo

INTRODUCTION

Asset Management Corporation of Nigeria (AMCON) was established on the 19th July 2010, when the President of the Federal Republic of Nigeria signed the AMCON Act into Law. AMCON was created to be a key stabilizing and re-vitalizing tool aimed at reviving the financial system by efficiently resolving the non-performing loan assets of the banks in the Nigerian economy.[1] As a result of global financial crisis and domestic events, the federal government of Nigeria through the operation of Central Bank of Nigeria conceptualized the idea for the establishment of a body that will prevent the looming financial crisis in the country.

The pandemic popularly known as COVID-19 has affected economic growth of the whole world by putting a sudden stop to regular day-to-day activities in every sector. The rapid outbreak of the COVID-19 presents an alarming health crisis that the world is grappling with. In addition to the human impact, there is also significant economic, business and commercial impact being felt globally.[2] Thus, it is necessary to analyze the effect of the standstill caused by the Virus vis-à-vis the provisions and powers provided by the AMCON Act. That is the intent of this paper.

1.0 SALIENT PROVISIONS OF THE AMCON LAWS

1.1 AMCON Act (as amended), 2019

Section 42(2 & 3) provides thus:

“(2) An action shall not be brought or commenced against the Corporation until after the expiration of 90 days notice in writing to the Corporation giving the details of the alleged wrong, date and remedy sought.

(3) If after the expiration of 90 days notice stated in subsection (2) of this section, the Corporation has not responded, the party concerned may issue a writ or other originating process against the Corporation…..”

The import of this provision is a requirement of a 90 day notice to be given to the Corporation before the issuance of originating processes. The 90 days begin to run from the date the written notice is delivered to the Corporation.

Section 51, AMCON Act[3]  provides thus:

“Where a debtor fails to comply in full within 90 days with a written demand notice issued by the Corporation requiring the debtor to pay a liquidated sum to the Corporation which the Corporation certifies on the face of the demand notice as being owed by the debtor to the Corporation in connection with an eligible bank asset acquired by the Corporation made by way of originating motion make a receiving order against the debtor……”

This provision means that debtors, after receiving a certified written demand notice to pay a liquidated sum, must comply with said notice within 90 days of receipt otherwise, the debtor shall be declared bankrupt.

Section 52, AMCON Act provides thus:

“Where the debtor that is a body corporate fails to comply in full, within 30 days, with a written demand notice issued by the Corporation requiring the body corporate debtor to pay a liquidated sum to the Corporation which the Corporation certifies on the face of the demand notice as being owed by the body corporate debtor to the Corporation in conection with an eligible bank asset acquired by the Corporation, the court shall , on the application of the Corporation made by way of Originating motion, make a winding-up order against the body corporate debtor…..”

This provision is interpreted to mean that a body corporate debtor, within 30 days of receipt of a certified demand notice from the Corporation, shall pay the demanded liquidated sum otherwise, a winding up order shall be made by the Court on application from the Corporation.

Section 53(3), AMCON Act provides thus:

“Each Court specially designated under subsection (1) shall hear and determine within six months in the case of existing actions, from the date of the coming into effect of this section and in the cased of new actions, within six months from the date of filing of such new action.”

Section 53(5), AMCON Act provides thus:

“The Court of Appeal shall hear and determine all appeals emanating from the courts specifically designated under subsection (1) on an accelerated basis within 60 days and in priority to all other appeals….”

Section 53(6) provides thus:

“The Supreme Court shall hear and determine all appeals emanating from the Court of Appeal in relation to …….within 60 days and in priority to all other appeals…”

1.2 FEDERAL HIGH COURT AMCON Proceedings Rules, 2018

Order 3 Rule 8 of the AMCON Rules provides that an AMCON claim form shall be valid in the first instance for one year from the date of issue. The judge may upon application order a single renewal for a period not exceeding six months. An application for renewal is to be brought before the expiration of the claim form.

Order 3 Rule 11 of the AMCON Rules is to the effect that AMCON originating processes shall be served on the other party within 7 days of its filing, default of which will attract a penalty as prescribed in the schedule to the AMCON Rules. A defendant is entitled to 5 days to reply if any.

Order 3 Rule 13 of AMCON Rules imposes a fine of N5,000 for each day of default in filing memorandum of appearance after 5 days allowed in Order 3 Rule 11(3) of the Rules.

Order 11 rule 1 of the AMCON Rules provides that the court shall, in appropriate cases, grant not more than 21 days to parties within which to explore possibilities of settlement of the dispute.

2.0 THE EFFECT OF COVID-19 ON THE PRACTICABILITY OF THESE PROVISIONS

Force Majeure is defined as an unexpected event such as a war, crime, or an earthquake which prevents someone from doing something that is written in a legal document.[4]

The term ‘force majeure’ has been defined in Black’s Law Dictionary, as ‘an event or effect that can be neither anticipated nor controlled. It is a provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.[5]

In the case of Diamond Bank Ltd v. Ugochukwu[6] the Court held per Rhodes-Vivour, JCA, (as he then was) that for force majeure to occur, there must be an event which significantly changes the nature of the rights of the parties that it would be unjust to expect the parties to perform those rights[7].

The term “act of God” has endured from ancient law and is said to “comprehend all misfortunes and accidents arising from inevitable necessity which human prudence could not foresee or prevent.”[8] An Act of god is an accident or event that cannot be prevented by ordinary human foresight. The occurrence should normally be a natural one, like flood or earthquake. It exempts a party from strict liability in common law and, by definition, from negligence.

These definitions have the following things in common: lack of possible human foresight, natural occurrence, exemption from liability. From these, it is clear that the pandemic falls squarely under the purview of a force majeure/Act of god. The question arises: what is the effect of this occurrence on legal proceedings and time requirements of the law?

There are no authorities guarding the effects of Force Majeure on statutory limitations and obligations. However, from the meaning and nature of force majeure and its effect on contractual obligations, particularly the effect of the Covid-19 pandemic on all the sectors of the world economy, it is safe to conclude that the Virus will serve to excuse fulfilment of obligations during the periods of lockdown.

The outbreak of COVID-19 has caused the Nigerian legal system to pause significantly. Court sittings have been reduced to accommodate emergency cases and a summary court to hear matters related to offenders of the lockdown orders. This has affected all the provisions of different laws specifying time frames within acts are to be done.

The AMCON laws make several provisions as regards time specifications for mandated acts. These requirements do not presuppose the occurrence of a global pandemic like Corona Virus. Thus, there is no express provision excusing debtors from their obligations. However, drawing from the applications of the principles of Force Majeure in contractual obligations, it is clear that the time constraints may not be practicable.

It is impracticable to expect that provisions with time constraints will have continued to read during the time of the lockdown. For example, where the law prescribes 30 days for an action, it may be impossible to complete said act considering that judicial staff were on hiatus for a period exceeding 30 days thus eliminating the possibility of completing the act. Several sectors of the Nigerian economy have come to a standstill and most corporate organizations in the major cities have had to close down. It will be safe to infer that the application of these time-constraining provisions will pause. These facts create a lacuna which must be fixed to encourage a seamless transition into the COVID-19 era.

It is in light of this that several Courts across Nigeria in the affected states have released practice directions specifying that the period of the lockdown be exempted in computing time for purposes of calculation of time.[9] This exemption is quite necessary being that this eliminates the confusion and chaos that would have erupted where the legal system resumed without some direction as to how to regard the period of lockdown.

Perhaps, the provisions relating to the period of the judicial holiday would have been imported to cure the lacuna thereby applying to mean that the period of lockdown be regarded as a period of holiday which is not computed for purposes of calculating time. However, it is a much preferable solution that the Practice Directions have cured the ambiguity.

CONCLUSION

It is a safe conclusion that the principle of Force Majeure has the same effect on statutory obligations as it does on contractual obligations. Specifically, the Covid-19 pandemic, being that it put a pause on the feasibility of meeting contractual obligations, serves to exempt parties from their obligations during the period of lockdown.

The Practice Directions released by leaders of the Judiciary in affected states mostly exempt the period of lockdown from computation in cases of calculating time. This means that where a statute provides a time frame during which an act must be executed, the period of this lockdown will not be calculated. Thus, the same principle that applies during the Courts’ annual vacation will apply here.

The uncertainty that has risen from this pandemic can be avoided for AMCON matters. The silence of the AMCON legislations on acts of god has left them at the mercy of general court rules and practice directions. This can be cured by the insertion of a Force Majeure and unforeseeable circumstances clause in the AMCON Act and AMCON Practice Directions. This clause should cater to the status of AMCON cases in the event of things like pandemics, natural disasters or other such circumstances. A provision that AMCON cases be considered an emergency and given the highest possible priority in an event where only emergency cases are being entertained should also be included.

Many AMCON cases are time conscious and should be treated with the utmost care. An insertion of these clauses will further emphasize the importance of concluding AMCON cases in good time and will cement the assurance that AMCON cases will proceed despite occurrences such as the pandemic.

[1]About us; available at  https://amcon.com.ng/about-us.php accessed on 1st of May, 2020

[2] The KPMG Business Impact Series; available at https://home.kpmg/ng/en/home/insights/2020/04/covid-19–a-business-impact-series.html accessed on 1st May, 2020

[3] Asset Management Corporation of Nigeria (Amendment No. 2) act, 2019

[4]Meaning of Force Majeure; available at  https://dictionary.cambridge.org/dictionary/english/force-majeure accessed on 2^nd May, 2020

[5] Blacks Law Dictionary

[6] (2008) 1 NWLR (Pt. 1067)

[7] Also see the Case of Globe Spinning Mills Nigeria Plc V. Reliance Textile Industries Limited  (2017) LPELR-41433(CA)

[8] COVID-19 Outbreak- An act of god?; available at https://www.alston.com/en/insights/publications/2020/03/is-the-covid-19-outbreak-an-act-of-god/ accessed on 4^th May, 2020

[9] High Court of the Federal Capital Territory, Abuja Practice Directions 2020; The 2020 Practice Direction of the High Court of Lagos.

TIME LIMITATION BY STATUTORY PROVISIONS AND THE COVID-19 CHALLENGE

By OYENIRAN OMOBOLAJI O. Esq.

The COVID-19 pandemic brought with it attendant implications on all sectors of the society. The legal profession, as well as the Judicial Justice System is no exception. One of the primary challenges posed by the emergence and subsistence of the pandemic to the justice system is that all legal proceedings that are not urgent or deemed to be emergent are suspended till further notice. The Federal and State governments have issued various lockdown directives.

 The implication of these orders is that a Clamant is prevented from instituting action in court, where such action is deemed not urgent; and pending actions that are not urgent are suspended. The COVID-19 pandemic, the resultant court closures, and consequent executive lockdown orders bring to fore the questions of whether Statute of Limitation would apply to these causes of action that are suspended for lack of urgency? And how would the statutory limitations on filings, appeal, enforcement be adequately addressed in the light of the pandemic?

STATUTORY LIMITATIONS

In a bid to ensure that justice is not just done, but also seen as done, the law provides some statutory limitations on the institution of actions; and upon their commencement, time frames within which the suits are filed, heard, appealed, and judgment enforced. These statutory provisions are coded in the various Statutes of Limitation of each State, Rules of Courts, Judgment (Enforcement Rules), Sheriffs and Civil Process Act, the Court of Appeal Act, and the Supreme Court Act.

Statute of limitation governs the amount of a time a person has to file a lawsuit. A Statute of Limitation has the effect of barring a claim after a specified period. Its primary purpose is in equity and it is designed to promote justice by preventing surprises through initiation of claims that have been allowed to go stale, and it has been judicially held that no Court shall entertain proceedings for the enforcement of certain rights if such proceedings were not set on foot after the lapse of a definite period of time reckoned as a rule from the date of violation of the right[1]. Hence an action instituted after the expiration of the period prescribed by the relevant statute is said to be statute barred.

For instance, the prescribed period within which a Claimant can institute simple contracts is 6 years[2], and 12 years for contract under seal[3]. The effect of a statute of limitation is that it removes the right of action, the right of enforcement, the right to judicial relief, and leaves the Plaintiffs with a bare and empty cause of action which he cannot enforce[4] and the statute begins to run from the moment the cause of action arose.

Even though certain exceptions to statute of limitation are provided by the Supreme court[5], the situation of a pandemic, like Covid-19 is not envisaged. These exceptions include instances of continuance of damage or injury; situation where the public officer acted outside the bound of his office or outside his statutory or constitutional duty; cases of recovery of land; breaches of contract; claims for work and labour done; and good faith.

Apart from the Limitation Act and the various Limitation Laws of each State, there are several statutory provisions governing the time frame for filing court processes, exercising right of appeal, and enforcement of judgment obtained.

For instance; under Order 6 Rule 6 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018;

            “The lifespan of every originating process shall be 6 months”

The Court may order renewals provided that no originating process shall be in force for longer than a total of 9 months.[6]

Conversely, a defendant served with an originating process shall, within 7 days serve a sealed copy of the Memorandum of Appearance on the Claimant.[7] Where he fails to do so, the Claimant can proceed upon  proof of service of the originating process on him.[8]

With regards to filing of final addresses, Order 32 Rule 14[9] provides;

            “When the party beginning has concluded his evidence… Where the other              party declines to call evidence, the party beginning, shall, within 21 days after       close of evidence file a written address. Upon being served with the written               address, the other party shall within 21 days file a final written address.”

Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended clearly stipulates the time frame within which court decisions are made. It states, inter alia;

            “Every Court established under the Constitution shall deliver its decision in              writing not later than ninety days after the conclusion of evidence and final address…”

Court of Appeal Act, CAP C 37 LFN,2004, its S25(2) specifies the periods for giving of notice of appeal or notice of application for leave to appeal thus;

             “(a) in an appeal in a civil cause or matter, fourteen days where the appeal             is an interlocutory decision, and three months where the appeal is against        a final decision:

                (b) in an appeal in a criminal cause or matter, ninety days from the days of               the decision appealed against.”

Failure to institute the appeal within the stipulated time renders the appeal invalid.

Section 8 (1) of the Sheriffs and Civil Process Act makes provision for enforcement of judgment otherwise as against the person, within 6 years, and if it’s against the person, within 2 years of obtaining the judgment.

COVID-19

Having given a background of the nature and legal implication of Statutory Limitations, the next issue is, “whether at the expiration or containment of COVID-19, the lockdown period will be calculated as constituting part of the time frames set by the Statutes of Limitation, or will it be calculated as holidays? Solutions proffered from various quarters include enactment of Act/Law by the National and States legislative houses giving powers to the President/Governors to suspend the Limitation Act/Laws; raising the defense of equitable tolling of the President’s Directive on lockdown as excuse for not instituting his action.

In as much as this might work, it nevertheless will take several court proceedings to successfully raise that plea, enforce it, and even appeal it- especially in the light of no judicial precedent on the matter. The legal implication of this is that there will be backlogs of cases instituted for the interpretation of the lockdown directive with regards to the peculiar case of each litigant, appeals on such matters, before the substantive case is eventually heard at the trial courts. This, in effect, would cause an astronomical increase in the already over-swollen congestion of actions before the Nigerian courts, especially the appellate courts.

PROVISIONS OF EXTANT LAWS IN NIGERIA.

It is a common saying in the legal profession that where there is a right/law, there is always a remedy. Regardless of the fact that there are no express provisions in our legislations on tolling of statutes of limitations, the provisions under the Rules of Court on computation of time and holiday are the closest remedy proffered. Order 49 Rule 1 & 2 provides:

                “1. Where by any law or any order made by the Court, a time is appointed or           limited for the doing of any act, the period shall be reckoned;

                (a) As excluding the day in which the order was made or on which the         event occurred;

                (b) Where the last day of the period is a holiday, the time shall continue     until the end of the next day following which is not a public holiday;

                (c) Where the act is required to be done within a period which does not     exceed 6 days, holiday shall be left out in the computation of time.

2. In this order “holiday” means a day which is a Sunday or a public               holiday.”

This means that holidays are excluded when calculating the time frames within

which to do an act under the Rules.[10] The question is, can the Stay-at-Home

Directives of the Federal and State governments qualify as public holiday? In

Onyekwuluje v. Benue State Government [2015] 16 NWLR (pt 1484), the Court held that;

            “By virtue of section 1 of the Public Holiday Act, Laws of the Federation of Nigeria, only the days listed in the Schedule to the Act are listed as Public Holiday.”

The 9 days listed under the Schedule are,

1. New Year’s Day;
2. Good Friday;
3. Easter Monday;
4. Workers’ Day;
5. National Day;
6. Christmas Day;
7. Such day as the Minister may declare to be a public Holiday in celebration of the Muslim festival of Id el Fitr;
8. Such day as the Minister may declare to be a public Holiday in celebration of the Muslim festival of Id el Kabir;
9. Such day as the Minister may declare to be a public Holiday in celebration of the birthday of the Prophet Mohammed ( Id el Maulud).[11]

A cursory look at the days listed above doesn’t specify or even infer a period of

pandemic that the country is experiencing at the moment.

LESSONS FROM OTHER CLIMES

The Judicial of western nations appear prepared, and have implemented proactive measures in addressing this challenge posed by the COVID-19 pandemic. The Governors of several States in the United State of American for instance have either made directives tolling their Limitations laws for a specified period[12] or more flexible tolling depending on when the State’s governor lifts the state of emergency. Some States empower the Chief Judge to make such directives, while some left the authority to toll the statutes of limitations or to alter the court calendar to the discretion of the lower courts. For instance, in Massachusetts, all statutes of limitations are tolled from March 17, 2020 until May 3, 2020. In Kansas, the state legislature passed a bill that gave the chief justice of the Kansas Supreme Court the authority to extend or suspend any deadlines or time limitations established by statute, and the Chief Justice has timeously ordered “all statutes of limitations and statutory time standards or deadlines applying to the conduct or processing of judicial proceedings … suspended until further order.”[13]

CONCLUSION

Executive Directives on stay-at-home as a result of Covid-19 are not provided for under the various statutory and judicial authorities cited above as constituting a Public Holiday, neither can it be said that the draftsmen of the Public Holiday Act contemplated including such, otherwise an omnibus clause empowering the ‘Minister to declare any other day as a Public Holiday in the event such arises’ would have been included, but such was not. The provision is clear and unambiguous, and the Supreme Court in Mohammed Abacha Vs Federal Republic of Nigeria LER [2014] SC. 40/2006 held that;

                “In the interpretation of Statutes, the cardinal rule is that where the           provision of a Statute is clear and unambiguous, the duty of the Court is to   simply interpret the clear provision by giving the plain wordings their ordinary            interpretation without more.”

These same heads of the governmental arm charged with the primary responsibility of interpreting the Nigerian Statutes are well abreast of the fact that there are no extant laws on tolling of statutes of limitation, and have issued Practice Directions to include specific provisions excluding the lockdown period in the calculation of time under the various rules of courts.  For instance, Paragraph 5 of the High Court of the Federal Capital Territory, Abuja Practice Direction, 2020 issued on the 11^th of May, 2020, provides;

            “The period beginning from Monday, 23^rd March, 2020 to Monday 4^th May,                2020 (six weeks), being the period for the sit-at-home/lockdown declared       by           the Federal Government of Nigeria by reason of the COVID-19 pandemic        shall be excluded for the purposes of COMPUTATION OF TIME for doing any        act under the Rules of Court.”[14]

It is my humble opinion that citing the combined provisions of Order 49 Rule 1& 2 of the High Court of the Federal Capital Territory, 2018, and the Schedule to the Public Holiday Act in order to deduct the lockdown period from being calculated as part of the time frame within which to institute, file, appeal, or otherwise execute judgment, would amount to a misdirection of facts and law.

[1] EHINMOSAN v. NNPC & ANOR (2019) LPELR-CA/B/401/2010

[2] Sections 8(1)(a) of the Limitation Law of Lagos State.

[3] Sections 12(1)(a) of the Limitation Law of Lagos State.

[4] JEMIBEWON V. KOSOKO & ORS (2010) LPELR CA/A/126M/2006

[5] AG RIVERS STATE v AG BAYELSA STATE & ANOR (2013) 3 NWLR (PT 1340) 123

[6] Order 6 Rule 7

[7] Order 9 Rule 1(3)

[8] Order 10 Rule 2

[9] supra

[10] Similar provision under Order 48 Rule 1& 2 and Order XLVIII Rule 1 & 2 of High Court of Lagos State (Civil Procedure) Rules, 2019, and Federal High Court Civil Procedure Rules 2019 respectively.

[11] Schedule to the Public Holiday Act, CAP 378, LFN, 2004.

[12] hard end dates subject to future revision

[13] Jason Levine, Hilla Shimshoni, Kaelyn Yumul Wietelman, Alston & Bird April 16, 2020“Covid19ImpactsOnStatutesofLimitations”www.jdsupra.com/legalnews/covid-19-impacts-on-statutes-of-83756/https://iclg.com/briefing/11675-covid-19 coronavirus-russia-s-supreme-court-provides-clarification-on-the-impact-of-covid-19-related-measures-on-contract-performance-and-dispute-resolution

[14] Paragraph 5 of the High Court of Anambra State Practice Direction, 2020 issued on the 2^th of May, 2020 contain the same provision.