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Legal Alert September 2007 Consumer Rights & Consumer Protective Reliefs'
 
In this Issue:
1. Legal Alert for September, 2007 – Consumer Rights & Consumer Protective Reliefs'.
2. Subscriber & Unsubscribe to Legal Alerts.
3. Disclaimer Notice.
Introduction to Consumer Rights & Consumer Protective Reliefs'
The competition to capture the customer's attention to spend his or her income on a particular product or products, or to purchase a particular service is becoming more fervent with manufacturers and producers daily promoting bonanzas, sales shows and making outlandish product claims which most of the time are spurious and sometimes outrightly fraudulent.
Lip service is paid to the protection of the consumer or of his rights. The few attempts aimed at educating consumers on their rights are restricted to the regulatory powers of the Nigerian Consumer Protection Council (NCPC). NCPC is however mostly perceived as a regulator that has no strong enforcement machinery and mechanism due mainly to lack of sufficient funding on the part of the government and also the lack of enlightenment on the part of the consumer about his or her rights.
The majority of the available literature on consumer rights and consumer protection in Nigeria are also concentrated on the regulatory functions of the Nigerian Consumer Protection Council (NCPC). The consumer however has other protective reliefs in contract and or in tort whenever the consumer's rights are infringed. This Alert is our attempt to provide you with a brief and condensed summary of your rights as a consumer under Nigerian Law, i.e. Law of Contract, Law of Tort and Consumer Protection Council Law.
Consumer Protection Under Contract Law
A consumer who is also a purchaser for value can file a civil claim under the law of contract for breach of the express or implied terms of the contract of purchase of a product that turns out to be defective or incomplete in its value.
The three categories of terms implied by our law of contract are:
(a) Terms of contract implied by custom and usage.
(b) Terms of contract implied by statute.
(c) Terms of contract implied by case law, i.e. formulated by our Courts of Law.
The common legal remedies available to a consumer/buyer for breach of a contract of sale are:
(a) Specific performance of the contract.
(b) Repudiation of the entire contract where the seller is in breach of a fundamental term or condition of the contract.
(c) Damages for breach of warranty. In this situation, the consumer/buyer does not repudiate the contract in its entirety but in its stead files a civil suit for damages for the breach of a non fundamental condition or conditions of the contract.
The amount of damages that can be awarded by our Law Courts in any case of a breach of contract is the estimated amount of the loss directly and naturally resulting to the consumer/buyer as a result of the breach.
Note however that only a consumer/buyer that has privity of contact with a seller can maintain an action under contact for breach and loss. A person who is not a party to a contract has no remedy under the Law of Contract. In stead, the Law of Tort may be available to provide remedy if the neighbourliness nexus between the consumer and manufacturer is established.
Law of Tort and Consumer Protection.
The Law of Tort has as its foundation the principle of negligence. Negligence is in fact the legal fulcrum upon which the essence of human co-existence is concretised. Human co-existence require that we all love our neighbour in the same manner as we love ourselves by ensuring that we do or do not do - as appropriate - what would cause injury and loss to our neighbour. See the decision in Odinaka V. Moghalu. Thus everybody including manufacturers have a legal duty under the doctrine of negligence to all persons who come into contact with their product or services.
A duty of care is only legally recognised where a person is presumed to foresee that his actions or inactions may cause injury to his neighbour. The old legal requirement that there must be a subsisting contract before a claim in tort or negligence can be filed in Court is now abolished by case law.
Established by case law is the principle that a manufacturer of a product or service, for gain or profit, owes a duty to take care in the manufacture of the product or service that it delivers to members of the public. Therefore, a manufacturer as in the case of Osemobor V. Niger Biscuit was held liable for injuries resulting from the presence of a decayed tooth in a biscuit bought by the plaintiff.
Apart from the manufacturer or producer, other entities in the distribution chain of products and services like wholesalers, retailers, distributors, sub-dealers, etc could equally be held liable for negligence in the sale and or distribution of defective products.
Lastly on negligence, a claimant must, in addition to establishing that a producer or manufacturer or any other party owes him a duty of care and that this duty of care was breached by the defendant not exercising reasonable care, provide evidence that the direct result of the breach of the duty of care is what resulted in his loss or injury and damage(s). Where there is no damage however, the court of law would not award compensation even if a duty of care and the breach of that duty of care are established by the claimant.
Consumer Protection Under the Consumer Protection Law
The Consumer Protection Council (CPC) unlike other Government Agencies which make indirect provisions on consumer protection, protects the consumer not only against hazardous products but also against attempts to compromise for profit the rights of the Nigerian Consumer. Some of the statutory functions of CPC include:
a. Providing speedy redress to consumers' complaints through negotiation, meditation and conciliation.
b. Seeking ways of removing from the market hazardous products and causing offenders to replace such products with safer alternatives.
c. Publishing from time to time such products whose consumption and sale have been banned, withdrawn, severally restricted or not approved by the Federal Government of Nigeria or by any foreign Government.
d. Causing an offending Company, Firm, Trade Association or Individual to protect, compensate, provide relief and safeguards to injured consumers and communities from the adverse effect of technologies that are inherent, harmful, injurious, violent or highly hazardous.
e. Organise and undertake campaigns and other forms of activities as will lead to increase public consumer awareness.
f. Issue guidelines to manufacturers, importers, dealers and wholesalers in relation to their obligations under the Consumer Protection Act.
The statutory rights of the consumer under CPC include: -
i. The right of the Consumer to receive products and services that are safe.
ii. The right of the consumer to comprehensive information on the qualities, quantity and value of the product. False or misleading information on products that are likely to create a wrong impression as to quality, character, value, composition, merit or safety of the product are not tolerated under the Law.
iii. The right of the consumer to be heard timeously and obtain redress expeditiously.
iv. The right of the Consumer to receive compensation in spite of a successful criminal prosecution of the offending manufacturer or distributor or retailer or wholesaler of the product.
Conclusion
The down side of globalisation - without proper product quality policing - is the undermining of the rights of the Consumer to risks of fraud and in some case grievous bodily harm. The governments on the one hand, consumers on the other and key industry players must enlighten themselves and the consumers on best product standards and practices, and where this falls, penalties and compensation should be imposed without protracted and or prolonged litigation or prosecution.
Consumer protection laws would need to be re-enforced and amended to cater for consumer exposure to trade on the Internet. The existence of up to date data online legislations in Nigeria would also go a long way in remedying this lacuna.
There is the need for case Law to revisit the current practice of only awarding nominal damages for product liability cases that do not result in the death or fatal permanent injury to the consumer. Exemplary damages are an alternative remedy that may serve as a deterrent and warning to all manufacturers to deliver only the best and safest products to members of the public.
Subscribe & Unsubscribe to Legal Alerts
This Alert and others produced by us are provided without any charge to you. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally permitted to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purposes ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm.
Recipients are therefore advised to seek professional legal counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed with many thanks.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached.
Legal Alert July 2007 Entertainment Distribution Framework/Regulations
 
In this Issue:-
1. Business Quote for the Month
2. Legal News
3. Legal Alert for July 2007 – Entertainment Distribution Framework/Regulations
4. Subscribe & Unsubscribe to Legal Alerts.
5. Disclaimer Notice.
Business Quote for the Month
Every new vision is a joke until one man accomplishes the vision.
Legal News
Central Bank of Nigeria (Amendment) Act
Continuing economic and regulatory reforms in Nigeria have led to the enactment of the Central Bank of Nigeria (Amendment) Act, 2007. This new CBN Law among other things have re-enforced the role of the Central Bank of Nigeria (CBN) as the Banker to the Federal Government of Nigeria (FGN), the exclusive Manager of the country's external reserves and also as the government's economic and financial Adviser. Other emphasised role for the CBN under this new legislation include the responsibility of independently formulating and implementing monetary and banking policies for the country.
To guarantee the independence of the CBN, this amended legislation provides that the appointment and removal of the Governor and the Deputy Governors of the CBN can only be effected on the recommendation of the President after the ratification of the recommendation by two third majority votes of the members of the Nigerian National Assembly.
All manner of abuse of any Nigerian currency whether in the form of hawking currency notes, spraying currency notes at social occasions and stepping on them, etc is now prohibited with monetary and penitentiary sanctions for violation.
One of the other very exciting provisions of this Law is the statutory power granted to the CBN to license and regulate the activities of credit bureaus in Nigeria. Although there is presently only one licensed credit bureau in Nigeria, the future of these bureaus is very important to the Nigerian Financial Sector.
Technology Tax
The National Information Technology Development Agency Act (NITDA Law) signed into law in May 2007. This Law primarily imposes a one percent technology tax on the gross income of all Nigerian registered Companies that utilise telecommunication machinery to deliver their products and services and have an annual turnover of over One Hundred Million Naira. Companies that would be affected by this tax include Mobile Telephone Operators, other Telecommunication Companies, Internet Service Providers, Cyber Companies, all Financial Institutions including Banks, Pension Managers, etc.
Learned senior Law lecturer and writer on Tax Law, Abiola Sanni, has rightly criticised this tax which he described as a "Quadruple Tax" that would hamper economic growth. This is in the light of the fact that telecommunication companies in Nigeria are already being made to pay 30% of their net profit as companies income tax, 2% of their accessible profit as education tax, 2½% of gross profit as telecommunication regulator NCC levy/fee/tax; these are in addition to Local Government taxes that are too numerous to enumerate and are mostly unknown to law.
Legal Alert July 2007 Distribution Frame Work For Films and Movies In Nigeria
Humanity continues to enjoy tremendous benefits from the intellectual capital of inventors, entertainers and producers of ideas and products. To encourage the production of more intellectual capital, National and International Laws and conventions protect the Inventors of new and existing ideas, in a world that is now based on knowledge and information.
The non-respect for and the non-protection of intellectual capital or intellectual property rights in many countries of the world have unfortunately led to retrogression and non advancement in private capital investments in intellectual property. This abnormality has led to the failure of a functional legal, institutional and distributional frame work to the disadvantage of all stakeholders and citizens of the world at large.
The attempt in Nigeria to change the attitudes and practices by institutionalising a comprehensive distribution frame work for movies and films by the Nigerian Films and Video Censors Board (Distribution Framework) have met with resistance and litigation by the primary Stakeholders of this industry.
It is alleged that Nigeria has the third largest movie industry after Hollywood in the United States and Bollywood in India. Investments in the Nigerian entertainment industry by Banks and Investors have however been hampered by piracy concerns and the lack of auditable data/statistics on the existing and possible future products and services of the entertainment industry. The Distribution Framework is therefore a comprehensive policy on distribution, exhibition and marketing of films and video works in Nigeria.
This Alert is a succinct summary of what the distribution framework provides for and the benefits that would result from its collective and complete implementation.
Objectives of the Distribution Framework
The Distribution Framework seeks to achieve the following things:-
a. Standardise the Nigerian film and video industry.
b. Compel parties to execute written contracts which guarantee property rights and remuneration to all beneficiaries.
c. Provide data/statistics by ensuring that all practitioners are registered and that only registered Distributors, and not Producers or others, are allowed to submit movies for classification after obtaining copyright notification from the Nigerian Copyright Commission (now under Nigerian Intellectual Property Commission).
d. Enhancement of the culture of data collection through the Distributors. This will effectively neutralise piracy and other illegal activities in the entertainment industry.
e. The framework will also lead to specialisation of practitioners and increase in employment and tax revenues to the government.
Categories and Types of Distributors
All Distributors must apply for registration and be licensed by NFVCB after meeting the registration and licensing requirements.
Distributors of movies and videos in Nigeria are categorised by type and by location. Distributors by location are those that are either national distributors, regional distributors, state distributors, local government distributors or community distributors.
Distributors by type are the majors who are called chain distributors; and the minor players who are called independent distributors or stand-alones.
Classified Distribution Rights Under Distribution Framework
There are three primary distribution rights that a Copyright owner can assign to a licensed Distributor. They are rental rights only which permits the rental of products but forbids the sale and purchase of entertainment products; rental and sale rights, and the comprehensive distributors rights which is the all inclusive right to sell, exhibit, hire and broadcast movies including internet/gsm downloads.
All distribution contracts must be in writing with a minimum duration of 6 months and a maximum duration of 5 years. Evidence of the consideration for the distribution agreement with the copyright owner must be shown by the Distributor.
Distribution Procedures Under Framework
The essence of the Distribution Framework is to bring about discipline and auditable statistics. To guarantee this objective, only licensed national distributors, who have registered the copyright to the film with NCC, can submit a film to NFVCB for censoring and classification. According to the Distribution Framework, "The application to distribute and or exhibit shall be accompanied by a valid distribution agreement with a brief marketing plan".
It is mandatory for all licenced Distributors to submit to NFVCB a statutory distribution report which must capture the films and video products within the licenced distributor's distribution chain for the period of the report.
Anti-Piracy & Other Framework Protection
The following securities for the Framework are provided in the distribution framework:
1. All licensed distributors are given a separate security code which must be reflected in all the films and video works within their distribution chain.
2. All licensed distributors must affix the registration seal or classification symbol for each movie, film and video title approved for distribution.
3. All licensed chain distributors are responsible for the actions or inactions of their subsidiary distribution outlets.
Short comings of Framework
a. No provision for review of the distribution framework after an implementation period of two or three years.
b. The tenure of the distribution licenses and the possible grounds under which they may be revoked are not stated in the framework.
c. The procedures for Lender stakeholders to access the data/statistics collated by NFVCB is not stated. It is recommended that there should be a transparent procedure in order for producers to access necessary funding.
Conclusion
There is no perfect document. All stakeholders should in the interest of the entertainment industry collaborate with the NFVCB in the implementation of the new distribution framework for films and video in Nigeria. This cooperation is required especially in the area of fighting piracy by ensuring that all entertainment products have affixed to them the necessary security seals and unlicensed professionals are barred from the entertainment industry.
Subscribe & Unsubscribe to Legal Alerts
This Alert and others produced by us are provided without any charge to you. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally permitted to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment ONLY. This Alert, by itself, does not create a Client/Attorney relationship.
Recipients are therefore advised to seek professional legal counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is acknowledged always and this Disclaimer Notice is attached.
Legal Alert June 2007 Bills of Sale Law
 
In this Issue:-
1. Business Quote for the Month
2. Legal News
3. Legal Alert for June 2007 – Bills of Sale Law
4. Subscribe & Unsubscribe to Legal Alerts.
5. Disclaimer Notice.
Business Quote for the Month
"Employ your time in improving yourself by other men's writings so that you shall come easily by what others have laboured for" – By Socrates.
Legal News
The Nigerian Extractive Industries Transparency Initiative (NEITI) Bill has been signed into Law in late May 2007. This Law gives legal effect to the quest for probity, accountability and transparency in the management of Nigeria's oil, gas and other mineral/natural resources. You can find more information about this Law and the regulating institution in the web site www.neiti.org
The increase in the VAT rate from 5% to 10% and the further increase in the prices of petroleum products in Nigeria led to strike actions in the middle of June, 2007. The Nigerian government has as a result of the strike actions reverted the VAT rate to 5% with a marginal concession made to the price of fuel which is also known in some countries as petrol. It remains our view that with proper public enlightenment, legislation and efficient restructuring of the tax collecting systems in Nigeria, a graduated increase in indirect taxes like VAT, especially for luxury goods, with an equally graduated reduction in the current direct taxes like Personal Income Tax, would expand equitably and significantly the tax collection base and revenues of the Nigerian government.
Another legal news in this month is the Lagos State Government's recent announcement of the establishment of a Bills of Sale Registry in Lagos, Nigeria. This Alert is an exposition of what the Bills of Sale Law means to you and your business.
Legal Alert – Bills of Sale Law
Introduction
A Bills of Sale Registry now exist in Lagos, Nigeria. This is in furtherance of the provisions of the Bills of Sale Law which makes provision for the execution, registration and effecting of Bills of Sale instruments.
Most business people and legal practitioners are however not very conversant or familiar with the practicalities of the provisions of the Bills of Sale Law. This Legal Alert is meant to be an introduction and a working guide to the provisions of the Bills of Sale Law of Lagos State with the necessity highlighted that you ensure that all Bills of Sale relating to your business are registered if they are to be upheld as applicable and enforceable legal instruments.
What is a Bill of Sale?
A Bill of Sale is a written instrument showing the voluntary transfer of a right or interest or title to personal property, either by way of security or absolutely, from one person to another person or persons without the actual physical possession of the property leaving the owner and being delivered to the other party.
A good example of a Bill of Sale is where a creditor gives a loan and has transferred to himself as collateral or security for the loan, the title of the goods or other personal property of the debtor. A creditor can in the event of a default in receiving payment seize the collaterised goods with the registered Bill of Sale as his authority for seizing the goods.
Applicability of Bills of Sale
The provisions of the Bills of Sale Law are only applicable to debtors who are private individuals. Creditors with debtors who are corporations or limited liability companies can not avail themselves of the protection of this Law.
A Bill of Sale remains a security for creditors against private individual debtors. This is because relief against debtors who are corporations or limited liability companies is already provided for in the Companies and Allied Matters Act which requires that all legal debentures – as opposed to Bills of Sale – must be registered at the Corporate Affairs Commission before they can be recognised as registered collaterals.
Non Applicability of Bill of Sale
Not all legal instruments are registrable under the Bills of Sale Law. Legal instrument that are used in the day-to-day ordinary cause of business are not accorded the status and protection of the Bills of Sale Law. Example of such instruments include marriage settlement instruments, assignment or transfer or lease of any ship or vessel or of any share in this kind of maritime property, bills of sale of goods in foreign countries or at sea, bills of lading, warrants or order for the delivery of goods or any documents used in the ordinary cause of business as proof of possession or control of goods.
Legal Form of Bills of Sale
A Bill of Sale is not necessarily required to be in a particular form although the law requires that it must be in writing and information that title to the described property has been transferred as collateral for credit must be stated in the Bill of Sale. Oral transactions are not accorded the protection of this Law as all Bills Of Sale must be in writing.
Registration of Bills of Sale
To prevent the secret transfer of property, fraud, and to promote confidence in commercial activities, the Bills of Sale Law mandatorily requires that all Bills of Sale must be registered. This is because non registration would amount to the Bill being declared null and void and of no effect.
Instruments recognised for registration under the Bills of Sale Law include all instruments assigning title to personal chattel, all transfers or declaration of trust without an actual transfer of possession, receipt of purchase of goods, power of attorney on chattel as security for a debt, any agreement by which a right in equity to any personal chattel or any charge or security on these chattel is conferred.
Most Bills of Sale are mandatorily required to be in writing, attested and registered with the Bills of Sale Registry within seven days after the execution of the Bill and its arrival in Lagos, where the Bill is posted from outside Lagos. With the exception of Bills of Sale as security for the payment of money, all other Bills of Sale must be attested to by a legal practitioner.
Any person is entitled, at reasonable times of the day, to search the Register at the Bills of Sale Registry on the payment of the prescribed fee for such information as he or she requires. Such a person is equally entitled to obtain an extract of any and every Bill of Sale registered upon the payment of the prescribed fees.
The registration of a Bill of Sale must be renewed at least once every five years.
Enforcement of Bill of Sale
The statutory grounds under which the personal chattel of a debtor covered by a Bill of Sale may be seized include:-
a. Default by the debtor in the payment of the sum owed under the Bill.
b. The debtor is declared bankrupt or insolvent and his assets detained by his creditors or such similar persons.
c. A Judgement is executed against the debtor and his goods.
d. The debtor fraudulently removes or permits the goods to be removed from the premises mentioned in the Bill of Sale without the consent or authority of the creditor.
e. The debtor, without reasonable excuse, fails to produce evidence of his last receipt(s) for rent, rates and taxes of the grounds and or the premises where the goods or chattel are harboured.
Goods that are seized under any of the above mentioned circumstances are not legally allowed to be disposed off for another five days after they are seized. This is to allow the grantor of the Bill of Sale the opportunity to challenge the seizure of its/his/her chattel on good grounds or to otherwise remedy the situation cumulating in the seizure.
Mutual Satisfaction
The application and possible enforcement of a Bill of Sale is extinguished whenever the parties mutually execute and file a memorandum of satisfaction which must be verified by a sworn affidavit attesting to the fact that the parties have discharged the terms and conditions of the Bill. Where however the consent of either party cannot be obtained to the discharge, a summons with proof of service of the summons on the opposite party may be heard by the Registrar of the Bills of Sale Registry, who may grant the relief on the summons and order if satisfied, that the memorandum of satisfaction be entered against the registered Bill of Sale and the encumbrance removed from the Register.
Conclusion
Bills of Sale are still not very familiar legal instruments because of the very long absence of a Bills of Sale Registry in Nigeria and also because of the onerous statutory restrictions and requirement for registration. While other legal forms are being used to secure these kinds of contracts, the risks of non-registration are now highlighted as a Bills of Sale Registry now exists in Lagos State. It is expected that with the existence of a functional registry, more awareness of the procedures would lead parties, their legal counsel and the Courts to look more closely at legal instruments that are Bills of Sale and declare such instruments void where they do not comply with the provisions of the Bills of Sale Law of Lagos State.
It is also expected that in the foreseeable near future, the Bills of Sale Law would be amended to among other things accommodate modern electronic business practices and remove technicalities in language and application.
Subscribe & Unsubscribe to Legal Alerts
This Alert and others produced by us are provided without any charge to you. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally permitted to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment ONLY. This Alert, by itself, does not create a Client/Attorney relationship.
Recipients are therefore advised to seek professional legal counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is acknowledged always and this Disclaimer Notice is attached.
Legal Alert – May, 2007 – The ABC of Contract Law in Nigeria
 
In this Issue:-
1. Business Quote for the Month
2. Legal News
3. Legal Alert for May 2007 – The ABC of Contract Law in Nigeria.
4. Subscribe & Unsubscribe to Legal Alerts.
5. Disclaimer Notice.
Business Quote for the Month
"Take time to deliberate; but when the time for action arrives stop thinking and go in" – By Napoleon Bonaparte
Legal News
There are new developments in the economic and legal reforms of the Federal Government of Nigeria. A good example is the signing into Law of the Minerals and Mining Act, 2007. This Law, among others, gives power to the Regulator of this sector to grant licences, secure the tenure of licenses, and make regulations among other matters, in relation to mineral and mining matters in Nigeria.
Also, the Nigerian Intellectual Property Commission (NIPCOM) has been established in Nigeria. This Commission integrates the Trade Mark and Patent Registry of the Department of Commercial Law of the Federal Ministry of Commerce and Industry, with the Nigerian Copyright Commission, to form NIPCOM. NIPCOM would be under the direct supervision of the Federal Ministry of Justice. It is expected that the establishment of NIPCOM would lead to greater efficiency in the administration and management of all intellectual property matters in Nigeria.
The Nigerian Securities and Exchange Commission (SEC) recently announced an upward review in the minimum paid up capital for various category of operators in the Nigeria Capital Market. All capital market operators are required to meet these new minimum capital requirements on or before December 31st, 2008. You can visit the web site for SEC - www.sec.gov.ng - for more information.
The recapitalisation requirement has equally affected the aviation industry as some of the airline operators lost their operating licences after the deadline to increase their paid-up capital expired on April 30, 2007. The recapitalisation of the insurance operators is still going on as the Banks have not ceased to continue with their efforts to increase both their paid up capital and their sub-regional and global market share.
Legal Alert – The ABC of Contract Law In Nigeria.
Introduction:
Daily, people enter into contracts. While most of these contracts appear simple, disputes continue to arise on the exact rights and obligation of all the parties to the contract. In many cases, a party may be under the impression that there is a contract when there is none recognised and enforceable under the Law.
This Alert is to present to you some of the legal principles guiding contracts in a format that allows you to know whether there is a binding and enforceable contract between you and another party or parties. The concluding part of this Alert recommends that formal contracts or full documentation of contracts, where a formal contract is not possible for whatever reason, is preferred as it is a more secured way of doing business.
What is Contract?
A contract can be described as the legally binding agreement between two or more people which create obligations that when breached can be remedied in damages or by specific performance of the contract. See the Black's Law Dictionary.
A contract only exists when there is an agreement. It is impossible for one or two people to claim that they have a contract when there is no agreement or "mutuality" or the "meeting of the minds" between them.
A contract must have a bargain or benefit in exchange for something else. A gratuitous promise is not a legally binding contract.
Essential Ingredients of a Contract
a. An offer. An offer is a statement that is definite, certain and shows the clear intention to make the offer which when accepted becomes binding on the parties.
b. An Acceptance. This is a final, unequivocal and unqualified expression of assent to an offer.
c. Consideration. Consideration is a benefit or forbearance arising from an offer and an acceptance. Where there is no consideration but there is an offer and an acceptance, there is still no contract.
d. Intention to create legal relationship. The parties must intend that their agreement would be binding on them. Where this intention is absent, there can be no legally binding contract.
Discharge and Remedies for Breach of Contract
A contract can be discharged (a) by the performance of the purpose of the contract itself; or (b) by mutual rescission of the contract; or (c) by renunciation; or (d) by the purpose of the contract been illegal or by an amendment to existing laws which makes the purpose of the contract to be or become illegal; or (d) by voluntary relinquishment of contractual rights; or (e) by accord and satisfaction; or (f) by novation; or (g) by material alteration, etc.
In Law, to every wrong, there is always a remedy or compensation. As a result, there are many remedies for the wrongful repudiation of a contract. The two most common remedies are: -
a. Various types of damages like compensatory damages, punitive damages, exemplary damages etc.
b. Specific performance of the contract could be awarded where monetary compensation would be inappropriate or inadequate.
Conclusion:
Ultimately, formal agreements are preferred when compared with informal contracts. It is therefore recommended that you formalise all your agreements before incurring any forbearance or liability. Where executing a formal contract is not feasible for any reason, a comprehensive exchange of documentation on the various aspects of the contract would be of great assistance in the event of a dispute on any aspect of the contract.
Subscribe & Unsubscribe to Legal Alerts
This Alert and others produced by us are provided without any charge to you. You can always subscribe to it, on behalf of other interested persons from whom you have their permission, by sending to us a one line e-mail with the words "Subscribe – Legal Alerts" followed by the desired email address.
You are equally permitted to terminate your subscription by sending to us a one line email with the words "Unsubscribe - Legal Alerts" and your electronic address would be removed from our list. In the future, you can return to our mailing list by visiting our web site www.oseroghoassociates.com to subscribe for the Legal Alerts.
DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment ONLY. This Alert, by itself, does not create a Client/Attorney relationship.
Recipients are therefore advised to seek professional legal counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed.
This Legal Alert is protected by Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is acknowledged always and this Disclaimer Notice is attached.
Legal Alert April 2007 - Emails' Evidential Value Of In Nigeria
 
In this Issue:-
1. Legal Alert for April 2007 – Electronic Mails & their Evidential Value in Nigeria.
2. Subscribe & Unsubscribe to Legal Alerts.
3. Disclaimer Notice.
Legal Alert – Electronic Mails & Their Evidential Value In Nigeria.
The advent of the internet and the use of electronic mails (e-mails) have been an invaluable tool to humanity in promoting and advancing business and social life. At the same time, the internet and e-mails are also becoming a medium for various criminal activities deserving of your treatment of this medium with wisdom, some caution and circumspect.
It is a fact that many people negotiate their transactions via the internet without been aware that correspondence or communications exchanged via the internet may not on their own alone be conclusive neither are they by themselves alone, admissible in a Court of Law should a dispute arise in relation to them. This is particularly true of Nigeria where there is no specific legislation on the admission of electronic mails in civil or criminal proceedings and where the rigid rules discouraging the admission of secondary and hearsay evidence have not been relaxed.
This Legal Alert is therefore meant to assist you with background information on how to manage and secure the admission of your electronic mails.
Admission of Documents in Evidence in Nigeria
Under the Nigerian Evidence Act, only the original document, in hard copy form, which is relevant to the subject matter of the dispute and which is pleaded by a party, is admissible in evidence. Where the original document is not available or is lost or is part of a larger document that cannot be conveniently moved to Court, a clear and true authenticated copy that is not forged may be admitted if prior convincing oral evidence is given to show that the original document in fact exist or existed and that it is not available for good reason.
Secondary evidence, of which electronic mails arguably belong to, may also be admitted under Nigerian Law where (i) its existence has already been admitted by the opposite party; (ii) notice to produce the original document is given and the original is still not produced; (iii) the original is a public document; (iv) the original is an entry in a Banker's Book; etc.
Evidential Value of Electronic Mails Globally
The challenge with electronic mails is that in the hands of a criminally minded individual or individuals, they can be forged in part or parts or in the whole document. The delivery/transmission of electronic mails can equally be deliberately manipulated or disrupted by unauthorised and or unknown persons.
All electronic mails fortunately leave an electronic digital trail that can be audited by experts in this area. The digital trail usually should contain information about the sender of the mail, the service providers and the server(s) from which the mail originates and terminates, the time zones of the sender and the recipient, among other information. In spite of the availability of digital trails for electronic mails, electronic mails are still open to unauthorised interference from criminally minded persons with the necessary skills.
Some countries already have national legislations - on the treatment of electronic mails – or have adopted the United Nations Electronic Transaction Act (UETA) or the European Union Electronic Signatures Directives or the South African Computer Evidence Act for civil proceedings or the Amended Criminal Procedure Act for criminal proceedings. These various legislations permit the admission of electronic mails in these countries and ascribe to electronic mails the same evidential value that hard copy documents are given.
Conclusiveness of Electronic Mails?
Where however the authenticity of an electronic mail is challenged, most of the above legislations require that the party relying on the electronic mail must provide scientific data which proves beyond all reasonable doubt that the electronic mail was sent and received by the opposite party.
The requirement for proof of delivery of electronic mails beyond all reasonable doubt is an onerous burden, which you can mitigate against by you ensuring that hard copies of your agreements are also exchanged with the opposite party in the transaction.
Conclusion
There is no Law on the direct admission of electronic mails in Nigeria. It is doubtful if electronic mails by themselves alone can be tendered and admitted in evidence under Nigerian Laws or rules of Court on procedure without rigorous objections from the opposite party. Such objection would cause further delays and costs to an already very expensive litigation process.
Other corroborative evidence like the subsequent affirming conduct of the parties, exchange of consideration or value, admission of the transaction in another medium, etc may be provided in order for an electronic mail to be admitted in evidence in a Nigerian Court. In spite of this possibility and the onerous standard of proof, we strongly recommend that all your transactions concluded by means of electronic mail should be followed-up immediately by a hard copy agreement or correspondence duplicating and affirming the electronic agreement.
You may also consider an investment in various software programs which claim to secure the transmission of your mails and provide you with electronic evidence that the mail was sent and delivered and or received by the intended recipient. Some of these software programs are on electronic signatures/digital seals, registered email (RPOST), etc. There is no conclusive evidence however that these softwares' are full-proof from interference of electronic mails by unknown and unauthorised persons.
Ultimately, when doing business in Nigeria, always transcribe your electronic mails to hard copies and always obtain physical acknowledgement on delivery of the hard copy.
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