BAR PART 2: LECTURER EXPLAIN THIS

QUESTION FROM STUDENTS AND ANSWERS FROM MR SYLVESTER UDEMEZUE"

QUESTION ONE

"Sir, good evening sir, while reading, I came in contact with something rather contradictory, and so I please need clarifications on that;

As one of the Essentials/Formalities of a power of Attorney, it was stated in one of the materials that it must be sealed, and I recall u saying in class that it may not be a deed, and it is common knowledge that all deeds must be sealed, so my question is, can a document be sealed without it being a deed? If no, then, how come a power of Attorney at all times must be sealed and at the same time it mustn't necessarily be a deed?"

ANSWER FROM LECTURER

(1). Power of attorney need not be by Deed (need not be under seal), except where the proposed attorney's/donee's instructions/powers include EXECUTION OF A DEED. Accordingly, sealing or affixing of a seal is not a sine-qua-non in a power of attorney. 

(2) Even in those instances where Power of Attorney is required to be by Dead, affixing of actual seal is still not essential to its validity. This is based on the rule that actual sealing is not a condition precedent to the validity of any DEED, except where a Corporate Body is a party to the Deed ( is the Donor)

(3).Generally, sealing is a formality of a Deed, but actual sealing is not indispensable; sealing could be presumed from the circumstances of each case.  Hence, a Deed could be presumed or taken to be under seal, even though no ACTUAL SEAL is affixed to it, where there's other evidence to show that parties intended the Contract or document to pass as a Deed (a contract under seal)

We emphasized all the aforesaid in class during the week 5 interactive session and the remedial classes that followed after.

QUESTION TWO

"Good morning sir.

Please does the decree nisi in foreclosure put all the other remedies of the mortgagee in abeyance?"

ANSWER FROM LECTURER

"Mortgagee's remedies are mutually inclusive, with the result that the mere fact that you've exercised one does not preclude you from adopting any other remedy.

That said, the only reasonable manner of applying this privilege/rule is that, where the mortgagee chooses to pursue any one of the remedies, he ought to finish off completely with that one before initiating or resorting to another.

 In other words, while in court for a foreclosure order, the mortgagee cannot, midway into the case in court (i.e., while the case is still pending), advertise and sell off the mortgage property (purportedly in pursuance of the mortgagee's right to sell). That's awkward. And I doubt any court of justice would sanction such an unjust and illegal, CONTEMPTUOUS, action.

First, in such a scenario, the case is still sub-judice, which means no party to the matter is permitted to take any prejudicial steps in respect of the res (subject matter of the suit), else such lawless party is guilty of contempt of court, a gross disrespect for the court. What's more? The legal practitioner acting for the mortgagee in such a scenario could even be taken before the LPDC for professional misconduct. So it's very risky to try to exercise your power of sale while a foreclosure action is yet pending.

Second, if the mortgagee intends to sell, let him just go ahead and sell if the coast is clear (i.e., the power has ARISEN and has BECOME EXERCISABLE), provided he acts in good faith, and does not sell at a negligible price, nor to himself nor to his privies, agent, servant, officer or anyone related or connected to him, and provided he does not connive or collude nor have other dirty or unconscionable deals with the proposed buyer. Let him in such a case just forgets about foreclosure.

Third, it's even absurd for the mortgagee to contemplate sale while the foreclosure action is still in court. Look at it, the subject of the suit is the mortgage property. If you sell the same property which is the subject of your own foreclosure action, have you not rendered the entire suit nugatory? What, a sane man would then ask, is the point in you having gone to court for foreclosure order when you knew, from the onset you'd not have the patience to allow it ro run its full course? Why, is the big question!

We can now see that the whole idea looks absurd. So it goes back to my earlier statement, which I now present to you, by way of suggestion, as the summary and the way out:

(1)Mortgagee's remedies in a mortgage are not mutually exclusive, meaning that the fact the mortgagee has adopted one does not stop his right to go for another one, if he is through with the first remedy and yet part of the mortgage sum and interest remains unliquidated

(2). However mortgagee may not be allowed to take any steps that is calculated to frustrate the foreclosure while the foreclosure action is still pending. So, if the mortgagee sells the mortgage property at a time a foreclosure action already begun (by the mortgagee himself)  is yet pending, the sale is liable to be set aside, and, two, mortgagee risks contempt proceedings and, three, his lawyer (mortgagee's lawyer) risks being proceeded against on grounds of breach of his professional duties to be respectful to the court and to not advise or assist his client to be lawless by taking the laws into his own hands.

QUESTION THREE

"Good morning sir. Please sir concerning the answer you provided, what is your opinion on section 68 of the MPL that repeals the Conveyancing Act. To what extent is the repeal potent?

ANSWER FROM LECTURER:

"Enactment of a local statute on a subject displaces the application of foreign statutes on  the same subject, except where there is a lacuna.  MPL (2010) repeals CA, but LRL (2015) does not expressly so do. So the repeal affects only mortgages and does not operate with respect to other property law transactions. Accordingly, where where there is a lacuna, CA may still come in, depending on the circumstances. Hence, I used the words "recourse MAY be had to provisions of the CA" in areas of lacuna. Note my use of the word, "MAY."  Not automatic nor mandatory.

QUESTION FOUR

Sir, please can you enlighten me on the difference if any between Equity or redemption and reversionary right.

ANSWER FROM TEACHER

Differences between “equity of redemption” and “reversionary interest”

(1)        Reversionary Interest (RI) is a legal interest/estate whereas the Equity of Redemption (ER) is an equitable interest;

(2)        RI is peculiar to only mortgages created by sub-demise whereas ER is applicable to all mortgages, whatever the mode of creation;

(3)        Each can be used to create a SUCCESSIVE MORTGAGE. However, the RI may be used to create a successive LEGAL mortgage whereas the ER can be to create ONLY an equitable mortgage;

(4)        Where mortgage is by sub-demise, it simply means that only a term of years is transferred to the mortgagee. EXAMPLE:

Assuming Mr. Chamberlain obtained a C of O in 2013 over the property in Ikoyi. He has a term of 99 years, which in 2017 remains only 95 years (his unexpired residue as at 2017 is 95 years). So, if Mr Chamberlain borrows money from a Bank and in 2017 transfers only 94 years to the Mortgagee (Bank), Mr Chamberlain would have only one year left (that is, he retains for himself only one year ), which he did not transfer to the Bank. Since he did not transfer everything to the Bank, it is the remaining part of his unexpired residue (the remaining one year) that is now referred to as the REVERSIONARY INTEREST (RI). There would NOT be any reversionary interest in the mortgagor where the mortgage is created by assignment, because in an assignment, the mortgagor would transfer the entire unexpired residue, leaving nothing (no legal interest) for himself;

(5)        Equity of redemption, on the other hand, applies to every mortgage transaction. It refers to the RIGHT (the equitable right) the mortgagor has to continue to be called “the owner” of the property even when he has transferred his interest in the property to a Bank to secure the repayment of a loan. Being the owner, he is entitled to continue to exercise all his ownership rights over the property, even where the property is a subject of mortgage, provided he does not violate the terms of the mortgage. Part of the benefits of this right (ER) is that the mortgagor can decide at ANY TIME (whether or not the legal due date has come or passed) to redeem (recover) his property from the Bank. All he has to do is to repay the entire loan and interest. Once this is done, he is entitled to have his property (interest in it) transferred back to him (re-conveyance/release). The Bank has no right to stop the mortgagor from redeeming the property anytime the mortgagor decides to. Hence, it is said, the Bank must not clog the wheel of redemption. “Once a mortgage always a mortgage,” meaning that the transaction is not a sale (absolute transfer) and accordingly, it is subject to cesser upon redemption ---- i.e., the interest transferred by the mortgagor to the mortgagee (however long and no matter the nature of it) must cease (die) and revert back to the mortgagor once the mortgagor redeems the loan (repays the loan and interest).

This is why the courts frown at and must declare as void any clause in the mortgagee Deed/Instrument which seeks to DELAY or DENY redemption or to TAKE AWAY the right to redeem or otherwise place any hurdle (except that of repaying the loan and interest) in the way of the mortgagor`s right to redeem. This right (ER) is an estate/interest (equitable interest) in the property, which is like a property/title and is capable of being transferred, subject to the existing mortgage.  It arises immediately a mortgage is created. And it does not go away nor die except and until when the mortgage property is validly sold by the mortgagee or a foreclosure order becomes absolute, upon default of the mortgagor. Hence, the ER and the mortgage transaction are said to be like SIAMESE TWINS; both are inseparable.

QUESTION FIVE

"Good morning sir. I wanted to ask if there is by chance any difference in the sub demise applicable to the CA states and that of the PCL States.

This is because in the slide you made reference to sub demise ( of the unexpired residue less few days with provision of cesser on redemption - with respect to the CA states) however in respect  of the PCL  States you said Sub demise ( of a term absolute less by at least one day than the term of years vested in the mortgagor- you excluded the phrase " with provision of cesser on redemption "). Is there any consequence to this omission. Or should I take sub demise as a literarily for all 3 jurisdictions.

ANSWER FROM TEACHER

Sub-demise is the same everywhere. Procedures and systems for creation of sub-demise take the same or similar forms in CA, PCL and MPL. Sub-demise has the same effect in all the jurisdictions. However, some differences exist between SUB-DEMISE in CA on the one hand and Sub-demise in PCL/MPL, on the other. The major differences:

(1). After a Sub-demise in CA, successive legal mortgage not possible because of the common law doctrine of "interesse termini," which is applicable to CA areas in Nigeria 🇳🇬

(2). Hindrance on mortgagee's right to sell, caused by retention of reversionary interest by mortgagor in a mortgage by sub-demise is still there in CA but is absent in both PCL and MPL jurisdictions because the law (PCL/MPL) has statutorily taken care of the problem, unlike CA.

(3). As a result of (2) above, remedial devises may be required in CA where mortgage is by sub-demise, to enable the mortgagee to have an unhindered power to sell, unlike PCL and MPL where such devises are not necessary. 

QUESTIONS SIX

(1) "Good evening sir. We need more explanation on the difference between the term

"ambulatory " and " testamentary" in the features of a will. Thank you sir"

ANSWER FROM TEACHER

Both terms are used to describe Wills and Codicils. 

(1)        AMBULATORY: A will is said to be ambulatory because it is revocable at any time during the life-time of the maker; it is made subject to change at any time before his death. The Latin expression is “ambulatoria voluntas” which denotes the power which a testator or testatrix possesses of altering or amending his Will at any time during his life-time; a man has the power to alter his will or testament as long as he lives. Thus, a Will moves, roves, and could be changed by the testator as often as the testator wishes. See the case of Hattersley v. Bissett 50 N. J. Eq. 577, 25 Atl. 332

(2)        TESTAMENTARY: A Will is said to be testamentary because it is written or made with the intention that it would not take effect nor become operative until after the death of its maker; this is usually expressed in the clause “a Will speaks form the death of the testator.” In other words, the testator or testatrix retains title and control of the properties subject of his/her during his life. This character distinguishes a Will from a conveyance or other dealings or gifts inter vivos, which have an immediate effect or have effect from a known date in the future.

(3)        The two terms are sometimes used interchangeably. If a Will, being ambulatory, is as such revocable at any time during the lifetime of its maker, it means that the maker would not be able to alter, amend or revoke the document after his death. This in effect means, the Will would take effect immediately its maker dies (testamentary) since no further amendment is possible. On the other hand, if a Will as a testamentary instrument “speaks from the death of the testator,” and so does not take effect until his death, this means in effect that it is liable to revocation, amendment, modification or other change any time for as long as the testator is alive (ambulatory)

                                            TO BE CONTINUED!!!!!!!

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WEEK 7: ETHICAL ISSUES + LAW IN PRACTICE

N.B: FOR THE PURPOSE OF BAR PART 2, WE MUST STUDY ETHICAL ISSUES FOR EVERY COURSE. AND THE RPC MUST BE YOUR ALPHA AND OMEGA……..

So for this week, we have ethical issues on CIVIL and PROPERTY

                       ETHICAL ISSUES ON CIVIL FOR WEEK SEVEN

Bringing Application under Wrong Order or No Order: The ethical issue involved as to bringing application under wrong order or no order amounts to incompetence and lack of dedication and preparation in Rule (14 & 16) of the RPC which amounts to professional negligence on the part of the counsel but it would not affect the substance of the case.

Abuse of Ex parte Injunction: Rule 30 0f the RPC states that a lawyer is an officer of the court and accordingly, he shall not act or conduct himself in any manner that may obstruct, delay, or adversely affect the administration of justice by bringing frivolous applications. RULE 32 RPC a counsel shall not mislead the court. He shall deal candily and fairly with the court.  Rule 36 (3) RPC Counsel should not perform an act which is an abuse of court process or act which is dishonorable-CHIEF E. N. OKONKWO AND ORS.V. AG LEVENTIS

Swearing of Affidavit by Counsel: It is unethical for a counsel to swear an affidavit on behalf of his client. Rule 20(1) of the RPC, a lawyer shall not accept to act in any contemplated or pending litigation if he knows or ought reasonably to know that he will be called as a witness. However, in circumstances mentioned in Rule 20(2), a counsel can depose to an affidavit.

Suppression of Facts in Ex Parte Applications;  A lawyer shall not act in any manner that may obstruct, delay or adversely affect the course of justice- Rule 30 of the RPC.

Delay in Filing Counter Affidavit This would amount to negligence on the part of the respondent’s counsel as the judge would act on the unchallenged or uncontradicted evidence and deem them to be admitted and treated as such.

            ETHICAL ISSUES ON PROPERTY LAW FOR WEEK SEVEN

1)      Rule 23(2) RPC -A Lawyer should keep a separate account. Should not mix his money and clients’ money.

2)      Rule. 47: A Lawyer should not search the land Registry for Defect with view to employment or litigation

3)      Rule. 10: The duty not to frank a document unless seal and stamp of NBA is affixed.

4)      Rule. 3: The duty not to aid unauthorized practice of law.

5)      Rule. 3(2): The duty not to sign a document prepared by a non-lawyer

6)      A lawyer should not under stamp ie reducing the consideration stated on the face of an instrument in order to reduce stamp duty. This comes under a lawyer’s duty to knowingly engage in illegal conduct Rule. 15(2)(j).

7)      Rule. 16: The duty to represent client competently, know the appropriate documents to prepare.

8)      Rule. 14(1) (2) (5)a: The duty to keep client informed of progress of transactions, give warnings and cautions where necessary.

 PROFESSIONAL ETHICS FOR WEEK SEVEN

EXCLUSIVE RIGHTS OF A LEGAL PRACTITIONER IN NIGERIA AND RESTRICTIONS.  

What makes an individual a Legal Practitioner are the privileges and rights he enjoys at law to the exclusion of others.

S. 2 LPA; (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll. (i.e the roll with the Chief-Registrar of the Supreme Court).

NOTE: Not all Legal Practitioner has the same rights. Check further S. 2(a), (b), 3(a),(b) LPA.

                              (1) RIGHTS TO AUDIENCE IN COURT. 

Rule 8(1) LPA, Section 36(6) (C) 1999 CFRN confers on every legal practitioner the right to advocate on behalf of their clients in Nigeria. But an individual also has the choice of opting to represent himself/herself in court. This covers both civil and criminal cases.

Notwithstanding the above provisions, in offences punishable by death, YOU MUST HAVE A LEGAL PRACTITIONER.  Despite the above named provisions, there are some limitations;

1. Senior Advocates of Nigeria are not allowed to appear at inferior courts.
2. A legal practitioner who fails to pay his practicing fees Rule 8(2) RPC. Such payments must be made before 31^st day of March every year. S. 9(1) LPA.
3. Appearing as a counsel in a suit where he is a party. Rule 17(5) RPC.
4. Fails to participate and satisfy the Continuing Development Professional Programme. Rule 11(1) RPC.
5. Fails to have the Annual Practicing Certificate. Rule 12 (3) (a) RPC.
6. A lawyer can’t advocate for a client where he is a party to the proceedings.  Rule 17(5) RPC.
7. Where such lawyer is a party to the proceedings, he can’t be robbed in wig and gown as he is precluded from sitting at the bar. Rule 36(f) RPC.
8. Same rules in (7) above applies where he is also giving evidence.

This right of audience, cannot be taken away by any enactment of a state government.

(2) PREPARATION OF DOCUMENTS RELATING TO PROCEEDINDS.

Lawyers are entitled to prepare on behalf of their clients court processes for the purpose of proceedings, instrument relating to immovable property, or relating to or with a view to the grant of probate or letters of administration, written addresses and others for a fee. An affidavit is exempted from this list because ‘the name and address of the legal practitioner is not written on an affidavit prepared by a lawyer unless he is the deponent’. Private citizens are also entitled to do such but for no expectation of a reward. S. 22 (1) (d) LPA. A lawyer could forfeit such fees due to requisite professional incompetence. Rule 16 RPC and S. 9 LPA

(3) STATUTORY DECLARATION OF COMPLIANCE DURING REGISTRATION OF COMPANIES.   

Pursuant to the provisions of S. 35 (2) (e) of the Companies and Allied Matters Act CAP C20 LFN 2004,  there shall be added to the incorporation documents of a company, a FORM CAC 7: DECLARATION OF COMPLIANCE WITH THE REQUIREMENTS OF CAMA which only a legal practitioner can fill before a company could be duly registered. S. 35 (3) of CAMA. Despite the fulfillment of this requirement and all other requirements, we must be aware that the incorporation of a company is still at the discretion of the Corporate Affairs Commission.

(4) PREPARATION OF DOCUMETS RELATING TO PROBATE OR LETTER OF ADMINISTRATION.

A will is a testamentary instrument that can be prepared by any individual, not necessarily a lawyer. S. 22 (3) (e) LPA. The estate of a deceased will be administered by personal representatives who may either be an executor/executrix [for females] (where a deceased left a will) or an administrator/administratrix [for females] (where a deceased did not leave a will or his/her will was rejected by the courts).

In the advent of a will, you file for ‘Probate’ while in the absence of a will, you file for a ‘letter of administration’. All these filings can only be done by a lawyer on behalf of the personal representatives. S. 22 (1) (d) LPA. Such documents may include the application letter addressed to the probate Registrar, an affidavit giving particulars of the deceased, declaration of personal properties of the deceased and other relevant documents as may be requested by the probate registry.

(5). APPOINTEMENT AS ATTORNEY-GENERAL OF THE FEDERATION OR OF A STATE.

The offices of the Attorney-General of the Federation and Minister of Justice and the Attorney-General of a state and Commissioner for justice shall be occupied by Legal Practitioners only who has been so qualified for a period of not less than 10 years. Once appointed, such legal practitioner becomes the Chief Law Officer of the Federation or of the State as the case may be. S. 150 (1), 195 (1) 1999 CFRN.   

        (6) APPOINTMENT AS A JUDGE OF SUPERIOR COURT OF RECORD  

Judicial officers are the custodians of the Superior Courts of Records (i.e. High court of a State and Federal Capital territory, Federal High Court, National Industrial Court, Sharia Court of Appeal, Customary Court of Appeal, Court of Appeal & Supreme Court) in Nigeria. These Judicial officers are legal practitioners who have practiced in Nigeria for a certain number of years.

Supreme Court = At least 15 years post call, Court of Appeal = At least 12 years post call and for the other courts, at least 10 years post call.

             (7) PREPARATION OF INSTRUMENTS RELATING TO LAND.

Instruments such as deed of lease, assignment, legal mortgage etc are instruments for immovable property. Only a legal practitioner can prepare such instruments for registration as it requires the name and address of the legal practitioner. This is done for a fee. S. 22(1) (d) LPA. However, a person who is a party could prepare such instrument and register it and such registration will be accepted. S. 22(4), (b), (c).

      (8) NOTARY PUBLIC.

A legal practitioner who is adjudged fit and proper and has paid his practicing fee as when due for 7 consecutive years could be made a notary public by the Chief Justice of Nigeria. Note the 7 consecutive year requirement is necessary as if he fails to meet that requirement in a year, he will not be eligible. A notary public shall not exercise powers in any of the matters he has interest. Such powers include notarization of affidavit and other documents and in exercising such providing such services, he should state the place and date in the jurat of attestation.  

 RESTRICTIONS ON THE RIGHTS OF A LEGAL PRACTITIONER TO PRACTISE IN NIGERIA.

Legal Practitioners even though have privileges they enjoy, also have restrictions due to the profession they find themselves. However, the category into which a legal practitioner is grouped will determine the scope of the particular restriction applicable to him.

(1)   Engaging in Business;

This involves two restrictions.

(a)   Combining practice of practice of law with trading on commodities;

S. 24 LPA restricts what a legal practitioner can do. This means somethings are tenable while others are prohibited. A lawyer is prohibited from engaging ‘personally’ in exchange of goods for money. He is free to own such businesses but the day-to-day running of such business has to be handled by someone else. Also he is prohibited from being a commission agent i.e. insurance sales rep and the likes or that such transactions relates to goods or material connected with the legal profession does not make it tenable. However, Rule 7(3) creates exceptions.

Rule 7(2) LPA, also empowers the general council of the bar to declare from time to time any trade or business to be incompatible with the practise of law.

(b)   Simultaneous practice of law with another profession.

Rule 7 (1) LPA prohibits the simultaneous practice of law with another profession. Any of such combination requires the authorization of the General Council of the Bar.

      (2). Former Judicial officers;

(a). Retired Judicial officers; 

In this case, a judicial officer is one as provided for in S. 318 (1) 1999 CFRN. Are all denied right of audience in courts during and after his tenure as a judicial officer. This restrictions includes signing of pleadings in any court or for the purposes of any proceedings. But he can practice as a solicitor either alone or in partnership with other legal practitioners. Rule 6(4) RPC.

A legal practitioner who held a judicial office previously is prohibited from doing any of the things hereunder listed:

1. He should not accept as an advocate any brief the subject matter of which he previously dealt with on the merits while acting in such judicial capacity.
2. He should not after his retirement accept employment in connection with any matter which he had acted on in a judicial capacity or on the merits of which he previously rendered advice on or dealt with while in a public office or employment. Rule 6(1) & (2) RPC.
3. He may however continue to be addressed as or to use the word ‘Justice’ as part of his name. Rule 6(5) RPC.

Such judicial officer can however represent himself in a proceedings. See Hon. Justice Atake v Afejuku, where the court upheld the rule that a retired judicial officer can represent himself in proceedings.

Inferior court judges and Magistrates are only bound by the general restrictions binding on judicial officers.

NOTE: Same rules applies to dismissed judicial officers and those who resigned. S. 292(2) of 1999 CFRN.

      (3). Salaried Employments;

A legal practitioner in a salaried employment of any kind is not allowed to advocate on behalf of his client in court due to conflict of interest that may occur for the legal practitioner. Such Legal Practitioner cannot also prepare, sign or file documents like pleadings, applications, instruments, agreements, letters, deeds, contracts, legal opinions, memorandum or other instruments or processes on behalf of his employer.  Rule 8 (2) LPA. Such legal practitioner can represent the company in any other matter other than litigation and matters connected to it. Such practitioner can only represent the employer as an officer or agent but not a practitioner in his full legal robe.

But there are certain exceptions;

                I.      A legal practitioner in salaried employment may appear in court or judicial tribunals, prepare, sign or file instruments or other legal processes for persons who are not his employers. Rule 8 (1) LPA

             II.      He can also appear and file processes before administrative tribunal on behalf of his employers.

           III.      He can appear and file processes before a court or judicial tribunal on behalf of his employer where he is a legal officer in any government department or agency.

THANK YOU FOR STOPPING BY, READ AND SHARE

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WEEK 7: AN OVERVIEW FOR THE WEEK

CRIMINAL LITIGATION

TOPIC: JURISDICTION: MADUKOLU v. NKEMDILIM (SC) (Conditions for exercising Jurisdiction)

FOCUS: JURISDICTION; TERRITORIAL, SUBSTANTIVE AND PROCEDURAL

COURTS WITH GENERAL JURISDICTION	COURTS WITH SPECIAL JURISDICTION
State High Courts and FCT Abuja	Federal High Court
Magistrate Courts	Courts Martial
Customary Courts	Juvenile Courts
Area Courts	Coroner’s Courts

CASES AND LAWS	USEFULNESS
Section 12 Criminal Code & 4 Penal Code	Territorial Jurisdiction of State High Court
Haruna V State	‘’
Osoba V Queen	‘’
Okoro V A.G	‘’
NJOVENS V STATE	‘’
Section 251(2)	Exclusive Jurisdiction of FHC on Treason…
MANDARA V A.G FED	‘’
ABIOLAV FRN	Territorial Jurisdiction of FHC
IBORI V FRN	‘’
254C	Jurisdiction of NIC
Section 6 CYPL	Jurisdiction of Juvenile
Section 6(2) and Section 8(2)	Exception 1 & 2 to jurisdiction of Juvenile
R V OLATUNJI	Determination of age through a medical expert takes preference over parents evidence
MODUPE VSTATE& S.368CPA	Age of accused is determined at the commission of offence
S. 3 CORONER LAW OF LAGOS	A coroner is always a Magistrate
Section 2 CORONER LAW OF LAGOS	Jurisdiction of Coroner
S. 4&6 CLL	When to hold Coroner
S.21 CLL	Can be done any day including public holiday
ADEPETU  V STATE & S.4(8) &23 CLL	Where a coroner court is informed that criminal proceeding are to be instituted, the inquest must stop until the trial is over
S.130  ARMED FORCES ACT	Jurisdiction of Court Martial (Person subject to Service law)
OLATUNJI V STATE. S.168(1) AFA	After 3 months of retirement, this person still subject to service law
NAF V OBIOSA….s.114(1) AFA	Jurisdiction on both civil offence and military offence over ONLY person subject to service law
S.170(1) AFA	Civil court can still try person subject to service law for CIVIL OFFENCE ONLY
S.170(2)	The civil court must take cognizance of the punishment of the court martial before awarding punishment
s.171(a) AFA. S.36(9) CFRN	Trial first at civil court oust jurisdiction of court martial on civil offence.. Plea of ‘’autrefois acquit’’
S.131 AFA	Who can convene a court martial
NAF V OBIOSA	Power to convene delegable
OLATUNJI V STATE	Delgable power must be issued by appropriate authority and be in a written form, but when made orally, a written order could follow later.
BAKOSHI V CHIEF OF NAVAL STAFF	Improper delegation will make the court martial void
s.129(a)(b), 133(2) AFA	Composition of a court martial
OKORO V NIG ARMY	The composition must be of people of senior rank or in same rank as the accused persons
S.2 ACJA	ACJA NOT APPLICABLE
S.174 CFRN	Nolle prosque not applicable.
Article 5(1) ROMAN STATUE	Jurisdiction of ICC
Article 25	ICC can only try persons not states
Article 15	How ICC jurisdiction is initiated
S.29 Magistarte court Law of Lagos	Jurisdiction to try offences summarily except capital offences
	Maximum punishment to be imposed 14 yrs
S.15-18 CPC	4 grades of magistrate court in the North
6th Column Appendix A to the CPC	Jurisdiction of Magistarte in the North
S.24(2) CPC EMONE V POLICE	Imposing punishment
S.257 CPC	Transfer to higher court to impose stricter sentences

DRAFTING: NIL

CIVIL LITIGATION

TOPIC: INTERLOCUTORY APPLICATION

RULE: ORDER 7 ABUJA AND ORDER 39 LAGOS

N.B PLS Refer to our post on Tuesday for the case reviews and principles.

DRAFTING: (TAKE NOTICE DRAFTING FOR THIS COURSE WILL BE UPLOADED ON OR BEFORE WEEK 20)

MOTION: EX PARTE OR NOTICE

Content:

Ø  The heading of the court

Ø  Suit No.

Ø  Name of parties and their designation

Ø  The type of motion either “motion ex parte or motion on notice

Ø  The title of the application

Ø  Order or rule under which it is brought

Ø  Body: “TAKE NOTICE that - - - -

Ø  The relief sought

Ø  Omnibus prayer

Ø  Date of the application

Ø  Signature: Name and address of Applicant or his counsel

Ø  Address for service where it is Motion on Notice.

PROCESSING AND HEARING OF MOTIONS

Ø  Unless the MOTION IS EX-PARTE, it must be served personally on the party or a service on a party’s counsel is deemed proper service.  O. 7 R.19 & 20 of the High Court of the FCT Rules 2004.

Ø  A motion must be SERVED WITHIN 5 DAYS of filing and there must be 2 CLEAR DAYS from service and hearing of the motion– Order 39 Rule 3 Lagos, Order 7 Rule 18 Abuja.

Ø  A party who wishes to oppose the application SHALL WITHIN 7 DAYS OF SERVICE of such application on him, file his write e.g. address companied with a counter affidavit.

Ø  A motion (i.e. application) must be supported by affidavit accompanied by a written address in support.

Ø  A motion ex-parte for an interim Order of injunction heard unless a motion on notice has been filed -ORDER 7 RULE 7 (3) ABUJA.

Ø  A motion should be supported by an affidavit stating the facts upon which the person bringing the motion relies. ORDER 39 RULE 1(1) LAGOS; ORDER 7 RULE 21 ABUJA.

Ø  Where service of a motion is required, it must be served together with all the affidavits on which the party relies.

STEPS TO TAKE TO MOVE A MOTION

Ø  announce intention to move the application

Ø  after the court ascertains the service of the motion and readiness of the parties, the court grants the application, the approval to move

Ø  moving as per the terms of the motions (when the motion is not contentious)

Ø  moving a contentious motion;

·         identify the application

·         identify the order sought

·         the supporting Affidavit- PLACE RELIANCE

·         Exhibits- PLACE RELIANCE

·         The written Address- ADOPTION

·         Move and urge court to grant the orders sought.

HOW TO MOVE A MOTION IN COURT

Before this honorable court is an application brought by motion on notice for______ with motion no___dated the _____day of ___2013 and filed______ the motion is brought pursuant to ______and under the inherent jurisdiction of this court. My Lord,we seek the following RELIEFS(read out reliefs). My lord, our motion is supported by a10 paragraph affidavit sworn to by ____________We rely on all the paragraphs of the affidavit particularly paragraphs 4-9. Accompanying the affidavit are ___ exhibits marked___.  In compliance with the rules of court, We have also filed a written address dated and filed ____ in support of our application.We wish to adopt same as our oral argument

       We humbly pray this honourable court to grant our application. We hereby move as per the term of this application.

ON COMPETING MOTIONS

The order of hearing of two motions in court was laid down in NALSA & TEAM ASSOCIATES VS. NNPC: the court held that it a settled proposition that where there are two motions, one seeking to terminate the proceedings on grounds of irregularity and the other seeking to regularize the irregularity, the latter shall be heard first. The latter will save the matter before the one. This was affirmed in LONG-JOHN V BLAKK & ORS; the court stated that when motion seekd to dismiss the appeal for failure to file the appellant brief and the other seek for extension with which the brief should be filled, the one seeking for extention of time would be heard first.

However, I believe that we should take note of the decision in DANA IMPEX LTD & ANOR V ADEROTOYE (2005) were the court held that it is trite that whenever the question of jurisdiction of a court is raised, it must be decided and settled first in one way or the other before other questions or issues in the case are treated or determined.

AFFIDAVIT (PLEASE READ YOUR EVIDENCE ACT ON AFFIDAVIT S.107-120)

IN JOSIEN HOLDINGS LIMITED & ORS V LORNAMEAD LTD & ANOR: The court defined an AFFIDAVIT to mean a statement of fact which the maker or deponent swears to be true to the best of his knowledge, information or belief. The court stated that it must contain;

·         Only facts which the deponent has personal knowledge or

·         Information which he believes to be true and in this instance he must state; the grounds of his belief and state the name and full particulars of his informant.

·         No legal arguments, conclusion or other extraneous maters must be included.

The court went further and said that any paragraph of an affidavit which offends against any of the aforementioned may be struck out by the court, but if it is not struck out then the court should not attach any weight on it.

FOR THE PURPOSE OF DRAFTING AN AFFIDAVIT

S. 115 of the Evidence Act 2011

1. Heading of the Court

2. Suit No.

3. Parties

4. Title of the affidavit

5. Introductory part containing the name and particulars of the deponent

6. The body of the affidavit to be in numbered paragraphs. State facts only either of personal knowledge or from information believed to be true. VII .Attach exhibits if need be

7. Oath clause

8. Signature of deponent

9. Attestation by a Commissioner of oaths

Furthermore, an affidavit should not contain;

·         Objection

·         Opinion

·         Prayer

·         Legal Argument

·         Conclusion………OOPLC. SEE SECTION 115 EVIDENC ACT AND BAMAYI V STATE.

COUNTER AFFIDAVIT

This is filed by the Respondent to

1. Controvert or deny the facts deposed to in the Affidavit by the Applicant.

2. Introduce new facts or issue

WHEN A COUNTER AFFIDAVIT NEED NOT BE FILED

However, a Respondent may decide not to file a Counter Affidavit in opposition if:

1. He opposes on points of Law, can only file his Written Address

2. He intends to rely on a document before the Court

3. If there are conflicting averments in the Affidavit

4. When facts deposed by applicant are true

5. The facts stated in the Affidavit are not enough to grant the prayer sought by the Applicant.  

INJUNCTIONS

·         INTERIM

·         INTERLOCUTORY

·         ANTON PILLAR

·         MAREVA.

·         Interpleader Summons

INTERIM INJUNCTION

RULE1: The duration of the order is 7 DAYS in Lagos and 14 DAYS in Abuja.

Order 39 Rule 3 Lagos

Order 7 Rule 12 Abuja.

RULE 2: AN AFFIDAVIT OF URGENCY is to be filed in addition to the affidavit of facts for interim injunction together with written address.

PROCEDURE:

Applied for by Motion Ex parte supported with an affidavit and a written address.

It must be filed along with a motion on Notice for Interlocutory injunction.-

O. 39 R. 3 of the High Court of Lagos Rules 2012

 O. 7 R. 7 of the High Court of the FCT Rules 2004.

INTERLOCUTORY INJUNCTION

PROCEDURE:

It is applied for by Motion on Notice supported with an affidavit and Written address.

CONDITIONS FOR THE GRANT OF INTERIM AND INTERLOCUTORY INJUCTION

 IN OBEYA MEMORIAL V.AGF

Ø  Existence of a Legal Right

Ø  Substantial Issues to be tried

Ø  Balance of Convenience

Ø  Irreparable Damages

Ø  Conduct of the parties

Ø  Existence of Alternative Remedies

Ø  Undertaking As to Damages

Ø  For Interim- URGENCY

MAREVA INJUNCTION

 IN MAREVA COMPANIES NAVIERA SA V INTERNATIONAL BLUKEARARRIERS SA (1980);

            The court laid down the principle that where a Plaintiff can show that a good arguable claim to be entitled to money from a defendant and there is a real risk that the defendant will move assets from the jurisdiction or dispose of them so as to render them unavailable or traceable, the court may grant an injunction to restrain the defendant from the disposing off the assets or removing them from jurisdiction.

PROCEDURE: MOTION ON EX PARTE WITH AN AFFIDAVIT AND WRITTEN ADDRESS.

Your Affidavit in support of the motion should disclose the following facts:

1. The particulars of the property to be attached or removed by the Respondent.

2. The estimation of the assets in monetary terms

3. Full disclosure of the facts giving rise to the application

4. Security or undertaken given for any damages arising from the grant of the application 

5. A real belief that the properties/assets of the Respondent are been dissipated or removed from the jurisdiction of the Court.

In AKINGBOLA V THE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION (2012) LPELR-8404, ATC LTD V NNPC (2005) 1 NWLR (PT.937) 563, the grounds for the grant of an order of Mareva Injunction were stated to be;

• That he has a cause of action against the defendant which is justiciable in the jurisdiction of the state or under common law

• That there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain.

• That the applicant has made a full disclosure of all material facts relevant in the application.

• That he has given full particulars of the defendant’s assets within the court’s jurisdiction.

• That the balance of convenience is on the side of the applicant; and

• That he is prepared to make an undertaking as to damages. SEE ALSO SOTIMINU V OCEAN STEAM SHIPPING NIGERIA LTD

IN R.BENKY(NIG)LTD V CARDBURY: The court held that MAREVA INJUNCTION is a security for judgment. It secures assets for execution of anticipated judgment

ANTON PILLAR

IN ANTON PILAR KG V MANUFACTURING PROCESS LIMITED (1976)

            The court described Anton Pillar to be a specie of Injunction granted where upon application inter parties the party to enter upon the premises owned by another party and inspect property kept there. It is an order commanding the Defendant to accord the Plaintiff permission to inspect his premises breach of which would be contempt.

PROCEDURE: EX PARTE APPLICATION, OBTAINED IN CAMERA.

IN FERODO V UNIBROS STORES THE CONDITION FOR IT GRANT ARE;

Ø  Strong prima facie case that the subject matter is within Defendant possession

Ø  That the defendant will destroy it if put on notice

Ø  Non- granting the order will be detrimental to his case.

N.B • This is mostly frequently applied in copyright actions.- S. 25 of the Copyright Act.

The applicant must be in the company of a police officer not below the rank of Assistant Superintendent of Police Asp to search the premises.

This motion/injunction is to be made in the Federal High Court

ORDER 38 RULE 4 LAGOS,

ORDER 3 RULE 4 ABUJA.

INTERPLEADER SUMMONS

RULE: ORDER 43 LAGOS ORDER 26 ABUJA. SECTION 34 OF THE SHERIFFS AND CIVIL PROCESS ACT

TYPES OF INTERPLEADER SUMMONS ARE:

1. Stakeholder (third party) interpleader claimant to establish their claim: Where the applicant has not yet been sued but suspects to be sued, the expectation must be well founded. DIPLOCK V. HAMMOND

2. Sheriffs interpleader-The essence of this proceeding is to determine whether the property belongs to the judgment debtor or not. Nwekeson v. Onuigbo .

The sheriff protects the third party from possible litigation from the judgment creditor or the rival claimant. HOLMAN BROTHERS NIG. LTD. V. COMPASS TRADING CO.

PROCEDURE FOR ITS APPLICATION:

ABUJA:

It is commenced by an Originating Summons but if it is in a pending suit it will be by a Motion on Notice.  O. 26 R. 3(1) of the High Court of the FCT Rules 2004.

LAGOS:

It is commenced by originating Summons but if it is in a pending suit, it is by an interpleader Summons.

CONDITIONS FOR THE GRANT OF THIS APPLICATION O.26 R.4 (ABJ); ORDER 43 (2&3) LAG (VIP FOR EXAM PURPOSE)

1. The applicant has no interest in the res or subject-matter except the cost for his action

2. The applicant has not colluded with any of the Claimants

3. The applicant is ready to pay into Court the subject-matter of the dispute.

                             PROPERTY LAW PRACTICE

TOPIC: SALE OF LAND 2

N.B: PLS REFER TO OUR POST ON WEDNESDAY.

ROOT OF TITLE

This is a document of title which is sufficient in itself without any extrinsic evidence to establish the title to the land. This shows if the vendor has a valid right to sell the land and if it is unencumbered.

CONDITIONS-S.63 CA;S.88 PCL

 The conditions to be satisfied for a document to be a good root of title are as follows:

1. It must transfer both the legal and equitable interest in the property 

2. It must clearly describe the property and extent of interest being conveyed

3. It must clearly state the owner of the property

4. It must not be subject to any higher interest over the property

5. Nothing on the face of the title should cast doubt on its authenticity AKINDURO V. ALAYA

EXAMPLES OF DOCUMENTS WITH GOOD ROOT

Ø  Conveyance

Ø  A legal mortgage

Ø  Deed of gift

Ø  Registered Title

Ø  Court Vesting Order

BAD ROOT OF TITLE

Ø  A license

Ø  A Lease

Ø  Equitable Mortgage

Ø  Power of Attorney

Ø  Contract of Sale of Land.

POSER: IS THE CERTIFICATE OF OCCUPANCY A GOOD ROOT OF TITLE?

Generally, a Certificate of Occupancy is not a good root of title, pursuant to Section 9(1) Land Use Act a Certificate of Occupancy granted to a holder of a right of occupancy is not a good root of title.

The court in OGENLEYE V ONI describes a Certificate of Occupancy as a prima facie evidence and raises a presumption that the holder has a right of occupancy over the land in dispute, but this presumption is rebuttable because it can be displaced by evidence of a better title than the Certificate of Occupancy.

However, there are instances where it can be a good title;

a. It is granted in respect of a deemed grant under section 34 of the Lands Use Act

b. There is any other thing to prove title e.g. long possession

c. When it is a state grant or a Statutory right of Occupancy

In conclusion, the general rule is that Certificate of Occupancy is not a good root of title, but from the aforementioned exceptions it can assume a good root title.

N.B. The following things usually signify completion;

Ø  Payment of the balance of the purchase price following the initial deposit

Ø  Execution of the formal conveyance by the parties’

Ø  Handling over of the title deeds and other documents by the vendor to the purchaser

Ø  Taking over possession of the property by the purchaser

Ø   Vesting of the legal estate in the purchase

COMPLETION STATEMENT

This will be made by the Vendors solicitor. It content are;

Ø  The exact amount outstanding

Ø  The exact date of taking possession

Ø  A schedule of documents to be delivered to the purchaser

Ø  The solicitor charges

DOCUMENTS TO BE GIVEN TO THE PURCHASER

Ø  Original Title of Document

N.B: Instances where the original documents may not be given are;

a)      Where the documents relates to other property retained by the vendor

b)      Where the documents relates to trust.

Ø  Receipts of payment

Ø  Keys to the property

Ø  3 years tax clearance certificate

Ø  Duly executed deed of assignment. Etc….

POST- COMPLETION STAGE

Ø  Consent of Governor

Ø  Stamping

Ø  Registration……………CSR

CONSNET OF GOVERNOR.. SEE S.22 LUA

DOCUMENTS TO BE SUBMITTED FOR APPLICATION FOR CONSNET

1.      Application for consent in prescribed form-(Land Form 1C (if the land is in Lagos)

2.      Tax clearance certificate of both parties(3 YEARS preceding)

3.      Certified true copy of vendors title documents

4.      6 copies of the executed deed of Assignment containing undertaking to pay GOVT levies

5.      Receipts of payment of;

a)      tenement rate(developed)

b)      ground rent ;stamp duties etc

c)      development levy

d)      inspection; charting and consent fees.

e)      Attach copy of approved building plan(developed property)

6.      If a company is any of the parties, the following documents must be attached: 

a)      A CTC of the Certificate of Incorporation of the company

b)      CTC of the Memorandum of Association

c)      CTC of the Particulars of Directors of the company

d)      Tax clearance certificate of at least two directors

e)      Evidence of PAYEE returns for its staff

f)       A Resolution of the company approving the transaction

THE EFFECTS OF A FAILURE TO OBTAIN GOVERNOR’S CONSENT ON LEGAL TRANSFER OF INTEREST IN LAND ARE AS FOLLOWS:

1. The legal transfer of interest is void but however the entire transaction is not void.- S. 22 of the Land Use Act

2. The Assignee/ Mortgagee only have an equitable interest on the property.

                        STAMPING

After, the governor consent the solicitor must ensure that the stamp duties charged on the transaction is paid. Section 23(iii) STAMP DUTIES ACT provides that a penalty may be charged where the document is not stamped within 30 days of execution. The amount to be paid as stamp duty may be fixed fee or ad valorem charge (i.e. based on the value of the transaction).

THE STEPS TOWARDS STAMPING OF DOCUMENTS :

1.      Original Document is delivered in triplicate to the stamp duties commissioner for assessment.

2.      The assessed duty is paid and receipt is issued

3.      The instrument is impressed with a red-ink(stamp duty paid or duty stamped)

4.      The rate of duty payable is between 2-3 % of the value of the transaction

THE EFFECTS OF A FAILURE TO PAY THE STAMP DUTIES ON DOCUMENTS TO BE STAMPED ARE:

1)      The document will not be acceptable for registration, S. 9 & 10 of the Land Instrument Registration Law of the States.

2)      The document is not admissible in evidence in Court

3)      There will be payment as penalty for late stamping of the document-s.22 SDL (Lagos);OGBATION V.REG.TRUSTEES CCCG

REGISTRATION

A conveyance is a registrable instrument, must be done within 60 DAYS of execution in the states land registry, where the deed is given a registration number.

THE EFFECTS OF A FAILURE TO REGISTER SUCH TRANSFER OF LEGAL INTERESTS IN LAND ARE:

Ø  The instrument cannot be pleaded in evidence to prove title-s.15 LIRL

Ø  It has no priority over subsequent instruments registered over the same legal transfer of interest-S.16 LIRL

Ø  It does not serve as notice to third parties dealing on the same interest

Ø  Renders instrument void-S.5 RTL;S.14 LIRL

SEE ONASHILE V.BARCLAYS BANK LTD

THE PROCEDURE FOR REGISTRATION

1)      Deliver in duplicate,2 duly stamped and executed copies of original deeds to to the deed registrar in the

2)      The Registrar collects the deeds and registers it in the Register of Deeds on a particular volume, on a particular page with a particular number

3)      An endorsed copy of the original deed is given back to the Purchaser, while the Counterpart is kept at the Registry. –AMADI V. ORISAKWE

4)      Two copies of the original Deed dully executed and stamped are to be forwarded to the Deed Registrar in the Lands Registry of the State

Ø  The Registrar receives same

Ø  One of the original Deed will be given back to the party carrying out the registration while the other copy will be kept by the Registrar 

SURVEY PLAN

N.B: The submission of Survey Plan is compulsory in Lagos, but in other jurisdiction it not compulsory. SEE S.9 LIRL/LRA

 IN LAGOS: A survey plan signed by a licensed surveyor must be attached to a conveyance for a proper and sufficient description of the property to be assigned.

EFFECT OF NOT ATTACHING SURVEY PLAN:  The Registrar has the discretion to refuse to accept the Deed for registration for not been attached with a survey plan.

EXCEPTIONS TO THIS RULE:                                                                                         

I. When the Deed of Assignment to be registered referred to an earlier Deed which contained a survey plan that is registered.

II. Where there is a parcel clause or schedule containing the particulars of the survey plan.

CORPORATE LAW PRACTICE

TOPIC: PREPARATION OF INCORPORATION DOCUMENTS.

N.B: PLS REFER TO OUR POST ON SAMPLE DFRAT ON CORPORATE.

N.B There is a need to know the difference between Steps to incorporate a company, Particulars of Information for incorporation and the Documents for incorporation.

N.B: One need to practice the filling of the forms and it is very important to fill everything in the Form in BAR FINAL EXAM.

N.B: We cannot understand this course if we don’t read our CAMA, so let CAMA be your ALPHA and OMEGA while reading CORPORATE

                                                PART A OF CAMA

- DOCUMENTS FOR INCORPORATION SEE SECTION 35 CAMA and REGULATION 23 COMPANIES REGULATIONS 

Ø  Form of approval of name]

Ø  Duly completed sets of incorporation forms

·         FORM CAC 2  -Statement of share capital and Return of Allotment.

·         FORM CAC 3  -Notice of Situation/Change of Registered Address

·         FORM CAC 4  -Declaration of compliance with the requirements of CAMA.  This must be completed by a legal Practitioner and sworn to at the High Court Registry.

·         FORM 2.1 Particulars of Secretary of the company.  This is optional at the stage of incorporation.  It must not be filed at Registration, because it is not among the documents listed in S. 35 CAMA.

·         FORM CAC 7  Particulars of persons who are the First Director.

Ø  Photocopy of information page of international passport or national identity card for each director and subscriber

Ø  Memorandum and Articles of Association (2 printed and signed copies duly stamped at stamp Duties Office – FIRS)

Ø  Original receipts of registration fees, stamp duties and compliance oath.

Ø  Any other Document required by any other law/Regulation e.g. License to operate issued by relevant regulatory bodies or Qualifying Certificate of Directors.-

STEPS TAKEN TO REGISTER A NEW COMPANY

1. Taking instruction and advising on the choice of suitable business or non-business organization to form and register.

2. Conducting search for reservation of name.

3. Preparing registration document or statutory forms and publication of trusties notification for objection for incorporated trusties.

4. Stamping of two copies of incorporation documents i.e. Memorandum and Articles of Association and Statement of authorized share capital (form CAC2) (for LTD, PLC, UNLTD).

5. Applying to obtain consent of Attorney General of the Federation for LTD/GTE.

6. Filing of incorporation or registration document at CAC.

7. Obtaining certificate of incorporation or registration and certified true copies (CTC) of other documents from CAC.

PARTICULARS OF INFORMATION NEEDED FOR INCORPORATION

Ø  Particulars of client-name/address/age/occupation

Ø  Two proposed names of the company, one most preferred name and an alternative name

Ø  Place of the business

Ø  Particulars of subscribers of the shares of the company

Ø  Particulars  and nationality of the proposed Directors and secretary

Ø  Qualification of secretaries

Ø  Objects/ business of the company

Ø  Amount of share capital of the company

Ø  Extent of  liability of its members

Ø  Particulars of information to prepare the Articles of Association of the company

Ø  Sphere of the business

Ø  Type of proposed company

Ø  Classes of shares envisaged

Ø  Share capital distribution ratio

Ø   Number of members

Ø  Ages of the persons forming the company.

Ø  Control and management of the company

Ø  Particulars of any known legal disability

Ø  Would the shares be offered to the public for subscription?

Ø  Details of any pre incorporation contracts

Ø  Filing fees and professional fees

PART B: REGISTRATION OF BUSINESS NAME. SECTION 573, 574 CAMA AND REGULATION 54

DOCUMENTS

1)      FORM CAC/BN/I Application for Registration of Business Name.

2)      FORM CAC 1Availability check and Reservation of Name(60 days)

3)       Two passport photographs of the proprietors/partners

4)      Tax clearance certificate of the proprietors

5)       Evidence of change of name of the proprietor where there was a change of name

6)      Evidence of proficiency

7)      Where corporate partner is involved, certificate of incorporation

SPECIFIC INSTRUCTIONS TO TAKE FOR THE REGISTRATION OF BUSINESS NAME:

1)      Proposed Business Name and Alternative Name to be reserved for 60 days.

2)       Nature of the business.

3)      Full address of the principal place of business and the branches.

4)      Obtain certificate of Proficiency from proprietors in the relevant field if the business is for professional services.

5)      Obtain date of commencement of business (ensure Registration is completed within 28 days of commencing business).

6)      Filing fees

7)      Professional fees

8)      Where client is an individual

Ø  Full particulars of proprietors.(name, former names and  surnames, sex,age,nationality,residentialaddress,city ,state,occupation,signature)

Ø  Obtain two passports from each of the proprietor/partners.

Ø  Obtain evidence of change of name of any proprietor especially if a married woman

9)      Where client is a corporate partner

Ø  Particulars of corporation(corporate name/RC NO/SEAL, Cert. of incorporation)

Ø  Attestation

Ø  Financial statement

Ø  Turnover

Ø  Net asset

10)  Where client is a firm

Ø  Full particulars of partners(age/gender/nationality/address of each partner, etc)

Ø  Two passport photographs from partners

11)  If minor is to be involved as partner, ensure that his signature is counter signed by a Magistrate, Legal Practitioners or Police Officer not below the rank of Assistant Superintendent of Police (ASP).

FOR THE PURPOSE OF BAR FINAL

SPECIFIC INSTRUCTIONS TO TAKE IN PREPARATION OF PARTNERSHIP AGREEMENT.

1.      Parties

2.      Commencement

3.      Place of business

4.      Name of business

5.      Nature of business

6.       Capital Contribution of partners

7.      Profit and Loss sharing

8.      Remuneration /salary of partners

9.      Accounts

10.  Suspension and expulsion of partners

11.  Admission of new partners

12.  Duration

13.  Retirement

14.  Power, rights and duties

15.  Dissolution of the partnership

16.  Dispute resolution mechanisms

PART C: INCORPORATED TRUSTEE SEE SECTION 591-596 CAMA AND REGULATION 65.

PROCEDURE FOR THE INCORPORATION OF INCORPORATED TRUSTEES

1.      Complete application Form CAC/IT/01 to be submitted in triplicate

2.      Formal application letter for registration written and duly signed by either

Ø  The chairman and Secretary

Ø  Solicitor

3.      Attach the following documents to the Form in 1:

Ø  Form CAC I- Availability check and reservation of name with the name stated as “Incorporated Trustees of …”

Ø  Copy of the resolution adopting the special clause into the constitution signed by the chairman and secretary.

Ø  Two printed copies of the Constitution of the organization

Ø  Drawing or Impression of the proposed common seal of the body.

Ø  Evidence of ownership of land or an undertaking in lieu to own a land within two years of incorporation.

Ø  Cuts of the original Newspapers advertisement in three national dailies calling for objections to the registration of the Assoc. within 28 days.

Ø  Two passport photographs each of the Trustees attached to the Trustee’s Declaration Form sworn to at the High Court with receipt attached.

Ø  Copy of the extract of the minutes of the meeting where the Trustees were appointed, having list of members present

Ø  Trustees Declaration Form duly sworn to by each trustees the High Court, conforming that the trustees were not disqualified from acting as Trustees pursuant to S.591 – 592 CAMA.

Ø  Letter authorizing the solicitor to incorporate.

Ø  Payment of filing fee of NGN 20,000

Ø  Any other document of proficiency.

PARTICULARS OF INSTRUCTION NEEDED IN THE INCORPORATION OF AN ASSOCIATION/NGOS UNDER PART C OF CAMA.

Ø  Name of the proposed body or organization.

Ø  Registered office address

Ø  The aims and objectives of the body.

Ø  Full Names, permanent address, occupation, number and ages of the trustees.

Ø  Name of chairman and secretaries with their telephone numbers

Ø  The constitution of the proposed association setting out the following

a.       Governing body

b.      Quorum required

c.       Sources of income

d.      Amendment of the constitution

e.       Powers, duties and tenure of office of Trustees.

f.       Matters relating to meetings i.e. types of meetings and rules of proceedings.

g.       Procedure for disbursement of funds and accounting policies.

h.      Special clause to be inserted in the constitution in respect of distribution of profit in event of dissolution.

Ø  Obtain and enclose the following

a)      Two passport photographs from each trustee and copies of their ID card

b)      Details of current and past affiliation with existing organizations.

c)      Evidence of land ownership or undertaking in lieu.

d)      Evidence of Publication of 28 days notice  in 3 Newspapers calling for objections/reactions from members of the Public.

e)      Impression or drawing of common seal

f)       Affidavit of non -disqualification of trustees under s.592CAMA

g)      Details of current and past affiliation with any existing organization

h)      Extract of the minutes of the meeting where the Trustees were appointed.

i)        Formal letter of authority from the members of the organization to enable CAC receive and accept the processing of the incorporation from the person.

j)        Filing fees

Ø  Professional fees

ARTICLE OF ASSOCIATION: READ SECTION 34 CAMA

MEMORANDUM OF ASSOCIATION: READ SECTION 27 CAMA

CHECK THE 1^ST SCHEDULE OF YOUR CAMA FOR SAMPLE DRAFT.

MASTER ALL THE CLAUSES IN AN ARTICLE OF ASSOCIATION

CONTENTS OF THE ARTICLES OF ASSOCIATION OF A PRIVATE COMPANY LIMITED BY SHARES ’’LTD.’’

        i.            Interpretation

      ii.            Classes of shares in the company

    iii.            Restriction on the transfer of shares of the company

    iv.            Pre-emptive rights of shareholders of the company

      v.            Alteration of capital

    vi.            Meetings

  vii.            Voting and voting rights

viii.            The common seal

    ix.            Subscription box

      x.            Date

    xi.            attestation

CONTENTS OF A MEMORANDUM OF ASSOCIATION

Ø  Name clause

Ø  Registered office clause

Ø  Business /object clause

Ø  Status/type clause

Ø  Liability clause

Ø  Share capital clause

Ø  Subscription clause

Ø  Subscription box

Ø  Attestation clause………….

N.B: WE GOING TO UPLOAD PROFESSIONAL ETHICS WITH THE ETHICAL ISSUES FOR THE WEEK…….

THANK YOU FOR STOPPING BY……..

YOUR SUCCESS IS OUR SATISFACTION……READ AND SHARE!!!!!!!!

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