ABUAD Private and Business Law Journal

Recent Developments in the Nigerian Company Law

2023-08-23T12:19:43+00:00

One of the various modes of doing business is to form a registered company. Prospective business persons and entrepreneurs who are desirous of pursuing commercial ventures in Nigeria would be forming companies limited by shares (that is a company where the liability of the shareholders for the debts of the company is limited to the amount unpaid on their shares). There are other types of company and business entities that can be registered in Nigeria (e.g. the company limited by guarantee and trust companies etc.). The contribution of the Company Law of Nigeria to orderly regulate business and economic affairs need not be overemphasized. The earliest known piece of company legislation of significance in Nigeria was the Company Act of 1912 which at first applied only to the colony of Lagos. It was later extended to the whole of the country. Plainly, students and practitioners will wish to know something of the ways in which the company law of tomorrow is likely to develop if the reforms which are now being planned or proposed receive the blessing of the present government. Thus it has been necessary to discuss some of the innovative changes being proposed in the anticipated Amendment to our Company Legislation. It became apparent that the entire Nigerian corporate landscape was heavily hamstrung by several provisions in the CAMA 2004 which have been described as impeding modern business practices in the light of national and global reforms. It has therefore been determined that the provisions of the current Act are not in tandem with global trends and that same requires extensive amendments to make the Act more contemporary and relevant. This commentary discusses/examines some of these amendments in context.

The Proper Location of Verifying Affidavit, Effects and Reasons in Matrimonial Proceedings in Nigeria

2023-08-23T10:14:11+00:00

The Location of verifying affidavit in a petition for a decree of dissolution of marriage or answer thereof has become a booby trap for many lawyers and judges of trial courts. Verifying Affidavit is the heart and soul of a petition, indeed, a mandatory requirement for every divorce petition or answer. The dislocation of verifying affidavit in defiance of the obligatory injunction of Order V Rule 10 (1) of the Matrimonial Causes Rules of 1983 always attracts severe sanction of outright dismissal of the Petition. The consequence is perpetual multiple preliminary objections, appeals to superior courts and dismissal of petitions, leaving the petitioners in a state of drudgery and marital comatose, since an attempt to remarry without first dissolving a statutory marriage amounts to bigamy. The purpose of this article is to render an accurate interpretation of Order V Rule 10 (1) of the Matrimonial Causes Rules and save legal practitioners the agony of having their petitions dismissed on account of improper placement of verifying affidavit. The article is structured into five segments namely: Introduction, interpretation of Order V Rule 10 (1) of Matrimonial Causes Rules, Case Law analysis of the issue, sample of a petition with verifying affidavit and conclusion. Doctrinal research methodology was applied in arriving at a valid conclusion. Emphases were placed on statutes and case laws as primary sources. Reliance was as well placed on journal articles, textbooks. Internet materials, among others, as secondary sources.

Legal Framework for Corporate Governance in Nigeria: An Appraisal of the 2018 Code of Corporate Governance

2023-08-23T10:15:00+00:00

Corporate Governance deals with the decision-making structures of corporations and organizations and establishes a relationship between shareholders’ interests such as investors and owners of the issued shares of the corporation and other stakeholders’ interests such as employees, customers, suppliers, individuals where the corporation interacts, etc. Great corporate governance is necessary for setting standards required by corporations to establish a distinctive business environment. Over the years there has been no uniform code on corporate governance of general application to regulate and monitor corporate governance in Nigeria. Therefore the study seeks to undertake an examination of the historical background as well as the processes and structure of corporate governance. In particular, the paper will carry out a critical review of the 2018 Nigerian Code of Corporate Governance (NCCG), the latest legal framework on corporate governance unveiled by the Minister for Industry, Trade and Investment on January 15, 2019. The paper will rely on both primary and secondary sources of data. Primary sources are legislations and judicial decisions. Secondary sources are books, journal, online articles and periodicals. The paper concludes that 2018 NCCG is in line with international best practices as it primarily seeksto institutionalize the maximum standard of corporate governance in Nigeria and sensitize the public on the significance of upholding corporate values and principles. The paper recommends that regulatory authorities and all interested parties in the corporate world must collaborate to ensure adequate compliance with the code for the attainment of an effective system of corporate governance in Nigeria.

Legislative Efforts at Curbing Tax Avoidance and Tax Evasion in Nigeria: A Legal Infraction

2023-08-23T10:15:59+00:00

Tax is a potentially powerful instrument for raising government revenue to meet government expenditure in both developed and developing economies, Nigeria is not an exception. However, tax resistance which manifest in form of tax avoidance and evasion constitutes a major impediment to revenue generation in Nigeria. Legislative enactments have therefore been put in place in the country to curb the menance. As palatable as these enactments may appear, this paper has found that they represent a major infraction on the rights of Nigerians. The right to fair hearing, right to own property and right to privacy have been completely eroded in the legislative attempts at curbing the menance of tax resistance. In order to balance the need for the preservation of human rights in Nigeria, on one hand, and the need for efficient revenue generation, on the other, the paper has advocated the enactment of a Tax Payers’ Bill of Rights to address some of the identified abuses. It is further advocated that section 104(2), (3) and (4) of the Personal Income Tax Act and section 44(2)(a) of the Constitution of the Federal Republic of Nigeria which have completely abrogated the rights to own property and fair hearing of Nigerian Tax Payers be repealed in order to give meaning to the rights as granted under the Constitution.

The Practice of One Territorial Jurisdiction of the Federal High Court of Nigeria and the Need for Constitutional Amendments to Decongest the Courts

2023-08-23T12:33:12+00:00

This article reviews the decisions of the Supreme Court in Owners of M.V. Alabera v. NAIC (2008)11 NWLR (pt.1097) 182 which held that a State of Nigeria in relation to one another is outside jurisdiction of the Federal High Court of Nigeria and leave is required to issue, serve and mark as concurrent, one within and the other to be served outside jurisdiction and the recent decision of the Supreme Court that the Federal High Court has one jurisdiction means outside the Federal Republic of Nigeria in the case of Biem v. Social Democratic Party & 2ors unreported SC.341/2019. Even the issue of one jurisdiction portends a greater problem in that the courts will continue to be congested as some Federal causes are also determinable by the State High Courts and all appeals from Magistrate Courts, Customary Courts, High Courts all pass through the Court of Appeal, Customary Court of Appeal and Sharia Courts of Appeal all the way to Supreme Court. This article adopts the doctrinal approach of reviewing the cases and incidences of True Federalisms to recommend Constitutional Amendments to create state courts of Appeal and Supreme Courts to help decongest the courts and concludes that in as much as one jurisdiction problem of the Federal High Court has been clarified by the Supreme Court in Biem’s case, a lot in terms of Constitutional amendment to decongest the Court ought to be embarked upon as done in other countries such as the United States of America.

Convergence in the Nigerian Communications Sector: A Case for Legal and Regulatory Reforms

2023-08-23T10:17:51+00:00

The reform in the communication sectors as a result of liberalization and digital technology in the hitherto analog sector has brought in its wake a new phenomenon called Communication Convergence. Digital technology in the communications sector has converged the distinct communication subsectors into one. This has caused overlap of regulatory functions among the distinct regulators, collision in the regulatory bodies, ineffective or over regulation, inefficient use and allocation of scare resources and making most provisions in the enabling Act obsolete. This poses some legal and regulatory challenges to the regulators. In this regard, the paper using the doctrinal methodology analysed the Nigerian Communications Act 2003, other relevant legislations, policies, case law and literatures on communications. The study finds out that the existing Nigerian Communications Act 2003 is inadequate to engender an efficient and effective regulation of the sector in an ICT convergent era as the Act made provisions for only telecommunications and its specific regulator. It recommended that, the various policies and laws in the communicationsubsectors in Nigeria should be reviewed,harmonised and a converged law enacted. It concludes that the Nigerian Communications law should be reviewed constantly and made more flexible because of the evolving nature of convergence.

Restriction on State Sovereignty and Refocus on International Human Rights as the New Trend of International Concerns

2023-08-23T10:18:44+00:00

This paper briefly discusses the overlapping and often overarching principles of state sovereignty, human rights and international concern whilst drawing on the examples of the Nicaragua Case, The East Pakistan 1971 Massacre, the Australian-run detention centre on Papua New Guineas Manus Island among others to illustrate several tensions between traditional sovereignty versus human rights principles. This paper proceeds on a discourse of the colossal conundrum created when self-assumed intervention of strong countries over the weaker nations become unguarded as a result of deviation from absolute sovereignty. The aim of this paper with doctrinal methodological approach therefore is to decipher the fact that state sovereignty is no longer absolute due to the principle of international concerns, human rights, environmental protection, humanitarian intervention, inter generational equity etc. The paper makes several recommendations and concludes that the prevalence of human rights has led to a change in the nature of traditional Sovereignty to give rooms for both political and economic interventions.

Right of the Child to Land Acquisition in Nigeria: The Capacity Challenge

2023-08-23T12:46:50+00:00

Realizing the indispensable place of the child in the sustainability of the human race, efforts are being intensified by the international and local communities in protectingthe rights of the child. It has been observed that much of these efforts have been centered on the person of the child rather than his property, particularly as a result of the traditional view classifying the child as a property of his parents. This paper examines the right of the Nigerian child to acquire and own land as contained in the principal statutes on land acquisition with a view to determiningthe availability of the right and the extent to which the child can enforce it. The paper found that, like adults, the child possesses a fundamental right to acquisition and ownership of property to be exercised and enforced through his guardian or trustee until he attains age of majority. However, full realization of this right is far-fetched owing to some shortcomings in our laws which include the differences in age limit of the child in the various statutes providing the child’s right to property and the variation in rules of contract applicable to the grant of the different rights of occupancy over land as contained in the Land Use Act. The paper inter alia, recommends a harmonization of both the minimum age of a child and the applicable rules.

The Concept of Interlocking Directorship under Nigerian Corporate Jurisprudence: The Antithesis of the No Conflict Rule and Fair Competition

2023-08-23T12:48:04+00:00

The separation of ownership from control in the widely-held large public companies which tap the Stock Exchange funds is one of the major developments of corporate capitalism. This separation is inherent in the formal structures of company law because the law gives distinctive roles to shareholders who are the theoretical owners of companies and to those who are the managers. There is, therefore, delegated management under a board structure and while ownership of the company vests in the financial proprietors, management is in the hands of directors. This prompts major agency problems as there are conflicts between managers and shareholders. There is potential for abuse of power by directors and to forestall this, the law has imposed the duty of care and the fiduciary duty of loyalty and good faith on directors. However, despite this legal mechanisms put in place to check directors, Nigerian law has endorsed interlocking or multiple directorship of rival companies, with damning consequences, in the absence of an elaborate anti-trust regime to regulate anti-competitive activities between companies. Using the doctrinal method, this article has analysed the concept of interlocking directorships, diagnosed the ills associated with it and brought out its effects on the directors’ duty to avoid conflict of interest and on fair competition. The article then prescribes the jettisoning of the concept from Nigeria’s companies’ statute or elaborate regulation of same, if it is to be retained, to cushion its effects.

The African Continental Free Trade Area (Afcfta): A Bold Attempt at Trade Liberalization in Africa

2023-08-23T10:11:26+00:00

This paper examines the prospects and challenges of the African Continental Free Trade Area (AfCFTA) initiative. Africa is at an extraordinary point in history, one in which a global decline in fertility ratesis being experienced. In Africa, unlike the rest of the world, births outnumber deaths four to one. Within the next 30 years, Africa will be home to the largest population of young people in the world, and by the year 2100, a third of the global labour force will be African. These demographic changes are instructive. Africa must seize the opportunities that come with an increasingly dynamic market space, or its 2063 Agenda of transformation may elude it. The African Continental Free Trade Area (AfCFTA) initiative was formulated as a reaction to this. This paper evaluates the African Continental Free Trade Area and its significance to the broader conversation on the Continent’s development. The paper also examines the ‘development integration model, upon which the AfCFTA initiative is based and appraises the legal agreement creating the it along with its supporting protocols on goods, services and dispute settlement. It goes on to consider the Initiative’s prospects with regards to economic growth and development on the Continent and examines challenges likely to bedevil its operation. In the paper, it is argued that optimizing the benefits of the AfCFTA will require a broad perspective as well as coherent development policies driven by ambitious and transformational leadership.