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Introduction

Allegations of arbitrary, unauthorised and unfair trade practices in the financial services industry continue to be a matter of much contention and acrimony. Also rife are reports of the imposition of charges that are not transparent and communicated in advance to customers. These incidents and the hedged perception of the formal financial services industry have increased the number of people who avoid this industry wherever possible.

To bring some clarity regarding the applicable banking terms, increase transparency and competition, and align the financial services charges with the current economic realities, the Central Bank of Nigeria (“CBN”) in furtherance of its powers under the CBN Act (as amended) and the Banks and Other Financial Institutions Act (as amended) (“BOFIA”), recently on 21 April 2017, published a Circular which serves to guide all Banks and Other Financial Institutions (“BOFI”) on the permissible parameters for imposing charges for the Services that these Institutions render to their customers.

Licenced BOFI that the above Circular applies to include Banks, Micro-finance Banks, Primary Mortgage Institutions, Finance Companies, Mobile Phone Operators, etc.

2017 CBN Guide on Financial Charges

The effective take-off date of the 2017 CBN Guide on Financial Charges is 1st May 2017. The 2017 CBN Guide on the charges approved for financial services rendered is however not exhaustive as all new products and services not covered in the Guide, require the prior written approval of the CBN, before such new charges are introduced and implemented.

Interest rates on deposits – Current Accounts, Term Deposits, Domiciliary Accounts, and Collateral Deposits – and lending rates are now mostly negotiable between the BOFI and their Customers. For Savings Accounts balances, the minimum CBN approved interest rate is 30 M.P.R (Monetary Policy Rate) per annum subject to the Customer not making more than four (4) withdrawals in each month.

For foreign exchange (“Forex”) transaction commissions and charges, regular CBN communication on the applicable rates or charges are to apply. Domiciliary Accounts withdrawals now attract a charge of 0.05% of the transaction value or $10 or whichever of the latter two is lower.

Financial Institutions are also now mandatorily required to notify their Customers, at least ten (10) working days in advance, of any changes to any pre-agreed or existing interest rate and charges. This requirement compliments the existing BOFI display of their daily interest and foreign exchange rates, at all their offices and branches.

Current Account Maintenance Fees (“CAMF”) now only apply to Customers induced debit transactions on current accounts. CAMF does not apply to Savings Account transactions. CAMF are negotiable subject to a maximum of N1 per mille.

Monthly Statements of Account are also now required to be delivered to all Customers of Financial Services, at no charge. Where a Customer however makes a special request for a bank statement, outside of the free mandatory monthly statement, the charge shall not exceed N20 (Twenty Naira) for each page of such Statement of Account.

Monthly Card Maintenance Fee for Naira Denominated Cards is N50 (Fifty Naira). N65 is charged for all ATM withdraws from third party ATMs that are not managed by the Customer’s financial institution.

CBN Consumer Protection Protocol

The CBN has a Consumer Complaints Department where complaints against licenced Financial Institutions, regulated by the CBN, can be lodged. The first line to lodging a formal written complaint against any Financial Institution is with the Financial Institution itself. Most Financial Institutions are required to have a Help Desk for the speedy resolution of all Customers’ complaints.

Where a Customer’s Complaint’s is not resolved after two (2) weeks of the lodgment of such a complaint with the Financial Institution concerned, the Customer can escalate the complaint to the CBN Consumer Protection Department for resolution.

Contractual Relationship – Customers & BOFI

The underlying basis for any Banker/Customer relationship is always contractual in nature. Where any charge or interest rate however contravenes the existing CBN Circular regulating interest rates and or charges, the Courts have consistently held that the CBN Guidelines regulating interest rates and charges shall prevail and be applied.

Where a dispute over charges or interest rates results in a litigation, the onus is always on the Customer to prove that the charge or interest rate imposed on the Customer by the Financial Institution is in contravention of the existing CBN Guideline Circular, applicable at the time the charge or interest rate was imposed. This is especially as charges and interest rates are not static.

N50 Stamp Duty Charge on Deposits

Based on a 2009 Gazette on Financial Regulations, and Circulars issued subsequently by the CBN, Financial Institutions now charge a N50 (Fifty Naira) stamp duties charge on all deposits made to current and savings accounts. This is despite a 2016 Court of Appeal decision in the matter of Standard Chartered Bank Limited v. Kasmal International Services Limited where it was held that based on the provisions of the Stamp Duties Act, there is no provision authorising the deduction and remittance of this N50 stamp duty on deposits. This appeal against the decision of the Federal High Court on the same subject was upheld.

We do not currently have any information about a stay of execution of the above mentioned decision of the Court of Appeal; or of a further appeal to the Supreme Court.

Conclusion

Concerns over Financial Services Charges and Interest Rates, especially those charged by Banks, will remain a global problem for a long time. Customers will need to increase their financial education by ensuring that they diligently review all transaction documents, especially before executing such documents; and ask questions when in doubt from as many qualified sources as possible. Regularly reviewing monthly financial statements, emails and text messages; and contacting your Financial Institution when in doubt is a more proactive preventative measure.

Financial Institutions must also respect and elevate the quality of the Customer Service that they provide to Customers by among other things, training their front-end employees to be more courteous and knowledgeable about the offerings or services rendered by the Financial Institutions.

Compulsory Regulatory financial education of the members of the public, about the benefits of using Financial Institutions, needs to be a continuous exercise. Infractions and fines should be more prominently published to serve as a deterrent to the offending BOFI, and to protecting the general economy.

Disclaimer

This is a free educational material. It does not serve as a source of solicitation, advertisement or the offering of legal services or advice of any kind. No Client/Attorney relationship is therefore created. Readers are strongly advised to always seek from qualified Legal Practitioners, competent legal counselling to their specific factual situation.

Intellectual Property Protected!

This material is protected by International Intellectual Property Laws and Regulations. This material can therefore only be reproduced or re-distributed for non-profit educational purposes under the strict condition that our Authorship of this material is explicitly acknowledged, and our above Disclaimer Notice is prominently displayed.

 

Introduction

To compliment the Federal National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 (“NESREA”), various States have passed their Environmental Laws and Regulations. As these State Laws are later in time, regulatory advancements, though at State level, has impacted on the existing Environmental Laws and Regulations.

Lagos State is one of the States, who in March 2017, passed into Law the Lagos State Environmental Management Protection Law, 2017 (“EMPL 2017”). This Law consolidates all the Laws and Regulations applicable to the management, protection and sustainable development of the environment in Lagos State.

Though the EMPL 2017 has fourteen (14) parts, with 526 Sections, various Schedules and is 239 pages long, this Law considerably attempts to delve into more modern cosmopolitan environmental issues like waste management, litter, dumping of untreated toxic and or radioactive material into public drains; sanitation, street trading and hawking; obstruction to drainage systems, water generation, effluents, noise, signage, advertisement, gardens and parks, etc.

Some EMPL Regulations, Offences and Penalties

It is now mandatory for all waste collection, transportation, recycling, sorting, treatment and disposal businesses to only operate in Lagos State under a Licence issued, renewed, reviewed, suspended or revoked by the Lagos Waste Management Authority (“LAWMA”). Fines and terms of imprisonment apply on conviction, for any contravention of these provisions.

All Residents are now statutorily required to keep their premises and surrounding environment, forty-five (45) metres from all public sidewalks of a street, clean and devoid of litter and waste. As part of this requirement, all refuse are expected to be kept in securely tied and fastened plastic bags or leak proof dustbins, or covered litter bins. Any breach of any of the above provisions, on conviction, attracts various penalties among which are the sealing of the subject premises, fines and terms of imprisonment.

Objectionable loud noises, which are a nuisance and adverse to public health, quality of life and the general environment, is also now statutorily prohibited except where a Licence is obtained prior to the complained event.

It is also now an offence to engage in any form of Street Trading or Hawking of goods, wares, articles or things on any major street, highway or public building. In addition to the forfeiture of the items, both the buyer and the seller risk paying fines and serving terms of imprisonment if found guilty and convicted of this offence.

Any person engaged in any form of commercial activity is required to pay, not later than the 1st day of January of every calendar year, an Environmental Development Levy to the Lagos State Environmental Protection Agency (“LASEPA”).

The dumping and burying of any untreated, injurious gases, toxic or radioactive waste or substances, without a government issued Permit is now expressly prohibited and punishable with fines and terms of imprisonment where any infraction occurs.

Waste Management Facilities, Abattoirs and Livestock establishments, Housing Estates, Hotels, Hospitals and other commercial facilities shall not discharge any trade or industrial waste or effluents into the public drains without first treating such waste and effluent, and retaining possession of a prior issued Permit from LASEPA.

Residents in residential premises are allowed, without a licence from the Lagos State Water Corporation (“LWC”), to construct, dig or extend in their premises, any well, borehole or other works for the supply of water for domestic use only. Such water supply systems must however be sited in hygienically conducive environment, protected from any kind or form of pollution. The quality of the water must also meet the World Health Organisation (“WHO”) recommended standards for water consumed.

Where a borehole or well is for commercial purposes, a Licence for groundwater abstraction must be obtained from LWC. Licences are also required to carry on any kind of wastewater business. Fines and terms of imprisonment also apply on conviction for any water infraction provisions under this Law.

No person shall erect any building or structure over, across or adjacent to any drainage, channel, sewer or sewerage system without first obtaining a Clearance Certificate from the Lagos State Wastewater Management Office (“LSWMO”); for drains and channels, the permit is from the Lagos State Office of Drainage Services.

It is an offence for any person to discharge, cause or permit to be discharge any kind of untreated trade effluent into any public sewer or drain-line without a Permit. Penalties include fines.

Also, any person who intends to develop an Estate, Hotel, Eatery, High Rise Building, Bus Terminal, Abattoir and Lairage, industrial laundry or cash-wash, petrol stations, medical institutions, educational institutions, irrigation project or any structure that will accommodate or serve 50 or more people must also obtain a Wastewater Clearance License from the LSWMO. Stiff Fines and terms of imprisonment apply on conviction for any infraction.

It is unlawful for any person to erect, construct, enlarge or structurally modify an outdoor structure, or operate any structure or signage for advertisement purposes without its owner being first registered and issued a Permit by the Lagos State Signage and Advertisement Agency (“LASAA”). The indiscriminate pasting of handbills, posters, signs and banners on side-walks, side-walls, trees, bridges, streets, highways and other public places is now expressly prohibited. Any contravention of any of these provisions, on conviction, carries fines, the removal of the signage and structure at the cost of the owner, as well as terms of imprisonment.

It is now an offence to fall or trim trees in Lagos State without a prior Permit obtained for such a purpose from the Lagos State Parks and Gardens Agency (“LASPARK”). Other related offences include walking on lawns and gardens, instead of on designated walkways; spitting, urinating or defecating in any area of a Park, Garden or other open public space; failing to control animals or allowing animals to defecate in public places; etc. The penalties on conviction for any of these offences includes (i) replacement of each tree brought down, without a Permit, with five tree seedlings; (ii) fines and or terms of imprisonment for the latter and other offences.

Persons engaged in Horticulture, Flora and Roadside Gardening businesses are also now required to obtain a Permit from LASPARK before they commence business.

Conclusion

As laudable as the provisions of the Lagos State Environmental Management Protection Law, 2017 may be, the enforcement of a majority of its provisions will remain a challenge in an economy still in recession, with high youth unemployment and wanton corruption.

Like with taxation, the few corporate statutory compliant entities will need to more diligently adhere to the provisions of this Law and international best practices regulating the environment; this is in order not to place their businesses at a high risk of infringement, fines, possible imprisonment of Directors, senior management personnel and brand damage.

Disclaimer

This is a free educational material. It does not serve as a source of solicitation, advertisement or the offering of legal services or advice of any kind. No Client/Attorney relationship is therefore created. Readers are strongly advised to always seek from qualified Legal Practitioners, competent legal counselling to their specific factual situation.

Intellectual Property Protected!

This material is protected by International Intellectual Property Laws and Regulations. This material can therefore only be reproduced or re-distributed for non-profit educational purposes under the strict condition that our Authorship of this material is explicitly acknowledged, and our above Disclaimer Notice is prominently displayed.

Introduction

A very important provision in many contracts is the obligation regarding the time within which each component of each contract must be performed. Unfortunately, this important contractual requirement is held more in disobedience, contempt or abeyance, than in strict compliance.

In some instances, a contract could be silent with regard to the exact time within which the obligations in the contract are to be performed.

An examination of the legal implications of both instances described above, will be provided in the following paragraphs.

Time is of the Essence

Time is said to be of the essence in the performance of the terms and conditions of a contract, where the parties to the contract expressly stipulate that time will be of the essence in the performance of their contractual obligations.

Time will also be held to be of the essence in the performance of the terms and conditions of a contract where the circumstance(s) for its performance, or the nature of the subject matter of the contract, reasonably implies and or inputs a strict adherence to its timely performance. An example is the urgent purchase and need for immediate possession of a property due to the expiration or loss of the possession of a previous property.

Where time is stated to be of the essence in a contract, the parties can by mutual consent, vary or extend the time for the performance of the contract.

Courts of Law and Equity will be very reluctant to enforce a time is of the essence provision where such a contractual obligation is punitive in nature.

Contract Silent as to Time

Where a contract is silent regarding the time or period within which its terms and conditions are to be performed, the Law Courts have usually applied the equitable principle that all contractual obligations should be performed within a reasonable period of time.

Also, where a contract is silent as to the time for the performance of its terms and conditions, a party who suffers unreasonable delay can serve notice requiring time to be of the essence in the performance of the contract, especially where the delay persist despite repeated entreaties for performance. This does not however restrain the innocent party from terminating the contract in accordance with the terms of the contract.

Breach of Time Obligations

Any failure to adhere to the performance of a contract, within the period agreed, or within a reasonable period of time if no express time frame is provided for in the contract, can amount to a fundamental breach of the contract from which compensatory damages may be awarded in punishment.

Disclaimer

This is a free educational material. It does not serve as a source of solicitation, advertisement or the offering of legal services or advice of any kind. No Client/Attorney relationship is therefore created. Readers are strongly advised to always seek from qualified Legal Practitioners, competent legal counselling to their specific factual situation.

Intellectual Property Protected!

This material is protected by International Intellectual Property Laws and Regulations. This material can therefore only be reproduced or re-distributed for non-profit educational purposes under the strict condition that our Authorship of this material is explicitly acknowledged, and our above Disclaimer Notice is prominently displayed.

Introduction

Issues bothering on the protection of the environment, delivering qualitative health care services in a fast industrialising and noisy world, has continued to occupy the attention of Environmental Regulators.

The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007 established the National Environmental Standards and Regulations Enforcement Agency (“NESREA”) with the primary responsibility of enforcing environmental standards, regulations, rules, laws, policies and guidelines which protect and enhance the quality of our environment.

In furtherance of the above-mentioned Act of Parliament that created NESREA, and pursuant to the powers vested in the Minister for Environment, the National Environmental (Noise Standards and Control) Regulations was published in 2009; with fines and terms of imprisonment prescribed for any infringement of the Noise Regulations.

NESREA Permissible Noise Regulations

The maximum permissible noise levels emanating from any premises  like residences, mixed-use residential and commercial properties, factories, construction sites, places of entertainment, religious worship centers, etc. are as enumerated in the NESREA Noise Regulations.

The measurement of sound levels, which is also known as decibels or dBA, has with advancements in technology, become more automated and electronic.

The NESREA Noise Regulations requires all Owners or Managers of any premises, from which noise emanates, which noise may be over and above the permissible levels, to undertake the measurement of such noise and to ensure that it is within the Maximum Permissible Noise Limits allowed for such an environment.

Noise Measurements are required to be taken during the day and night times at the fence line of the premises concerned.

Data obtained from the noise measurements, for residential, semi-residential and small scale commercial premises range between 50 to 60 decibels during the daytime, and 30 to 50 decibels during the night time.

Penalties for Violations

Some of the penalties for infringing any of the above Noise Limit Regulations include an initial fine that does not exceed Fifty Thousand Naira (N50,000) and or imprisonment for a term that does not exceed one (1) year.

In addition to the above fine and term of imprisonment, a violator of any of the permissible maximum noise level regulations will also bear on conviction, an additional fine of Five Thousand Naira (N5,000) for every day that the violation persists.

Power to Enter Premises

Officials of NESREA, who properly identify themselves, have the legal authority to enter and search any premises with a warrant issued by a competent Court of Law, for the purpose of conducting, inspecting, searching and taking samples for analysis, where NESREA reasonably believes that activities which contravene the NESREA Act and Regulations are being carried on from such premises.

Obstructing a NESREA official from carrying out his or her duties is an offence which on conviction carries penalties of fines and terms of imprisonment.

Noise Control Zones and Permit.

In consultations with State and Local Government authorities, NESREA may designate some areas as a Noise Control Zone; and place conspicuous signs in such noise control zones.

Owners or Occupiers, whose works may emit noise in excess of the permissible levels, must apply to NESREA for a special permit which usually specifies special conditions for the emission of such noise above the allowed limit.

Noise Violation and Improvement Notices

Any person, who is affected by noise levels which are higher than the noise levels permitted under NESREA Regulations, can lodge a complaint with NESREA for investigation and substantiation after which the noise will be abated or controlled to permitted levels, under NESREA supervision.

A complainant does not need to show or prove personal loss or injury, or discomfort caused by the emission of the alleged noise, before such a complainant can lodge a complaint with NESREA.

Disclaimer

This is a free educational material. It does not serve as a source of solicitation, advertisement or the offering of legal services or advice of any kind. No Client/Attorney relationship is therefore created. Readers are strongly advised to always seek from qualified Legal Practitioners, competent legal counselling to their specific factual situation.

Intellectual Property Protected!

This material is protected by International Intellectual Property Laws and Regulations. This material can therefore only be reproduced or re-distributed for non-profit educational purposes under the strict condition that our Authorship of this material is explicitly acknowledged, and our above Disclaimer Notice is prominently displayed.

Annual Minimum Corporate Compliances – Legal Alert – February 2017

Introduction

The Corporate Affairs Commission (“CAC”), usually, at the beginning of every fiscal year, reminds registered entities of their minimum annual statutory compliance obligations under the Companies and Allied Matters Act (“CAMA”).

Some of these minimum compliance obligations include the filing of Annual Returns with the entity’s audited Accounts attached; affixing the entity’s name and Registration Number (“RC.NO.”) on all its correspondence and on conspicuous parts of every office or branch where the company carries on business; display of its Certificate of Incorporation at its reception area or front desk; informing the Corporate Affairs Commission (“CAC”) of any change to its registered office address; etc.

The enforcement of fines for any breach of the provisions of CAMA has commenced. We provide the following review of some of these statutory provisions, in the hope that you will find the information useful to your enterprise’s compliance efforts.

Publication of Registered Name and Rc. No.

Every registered or incorporated company is required by Law to paint or affix in letters that are easily legible, its registered/incorporated name with its registration number on the outside of every office or place where it has its registered office, and at any other location where it carries on business.           

Every registered company is also required by Law to paint or affix its registered name and registered number, in letters that are easily legible, on all its business correspondence like invoices, receipts, advertisements and other public notices, cheque books, promissory notes, other bills of exchange, etc.

The penalty for infringing any of the above provisions is a fine of N100 (One Hundred Naira) for every day that the infringement persists. Also, every Director and Manager of such an infringing company, who knowing and willfully authorises or permits any of the above default to exist and persist, is liable to bear the N100 per day fine until the infringement is remedied or set right.

Annual Returns

Every company must at least once in a year prepare and file at CAC its Annual Returns for the previous financial year end.

An Annual Return filing usually discloses in a summary form the company’s latest information regarding its Registered Address, Debenture Holders, Directors, Shareholders, Company Secretary, authorised, issued and paid-up share capital, etc. for the period that the return filed, applies to.

Accompanying every Annual Return must be the Certified True Copy (“CTC”) of the company’s Audited Financial Statements (“AFS”), with the Directors and Independent Auditors Report annexed to the AFS.

The practical penalty for any failure to comply with any of the above provisions is a late filing fee fine of N5,000 (Five Thousand Naira) for each year that the default persist; with a fixed filing fee of N3,000 (Three Thousand Naira) for each such year.

Registered and Head Office.

At incorporation, every registered entity must disclose where its Registered office will be; and where its Registered office is different from its Head office, the company must also make such disclosure in its CAC filings.

Any changes to the Registered or Head office of a company must be communicated to CAC within fourteen (14) days of such change or changes been effected.

The failure to comply with the above provision attracts a fine, against the company and against all its Senior Officers, in the amount of N50 (fifty naira) for each person and the company, for every day that the infringement remains unremedied.

Disclaimer

This is a free educational material. It does not serve as a source of solicitation, advertisement or the offering of legal services or advice of any kind. No Client/Attorney relationship is therefore created. Readers are strongly advised to always seek from qualified Legal Practitioners, competent legal counselling to their specific factual situation.

Intellectual Property Protected!

This material is protected by International Intellectual Property Laws and Regulations. This material can therefore only be reproduced or re-distributed for non-profit educational purposes under the strict condition that our Authorship of this material is explicitly acknowledged, and our above Disclaimer Notice is prominently displayed.