Articles
(+234-1) 463-7414
(+234) 8033-264-753
This email address is being protected from spambots. You need JavaScript enabled to view it.
Legal Alert - Wills and Survivorships
In this Issue:
1. Legal Alert for May, 2009 – Wills and Survivorships.
2. Subscribe & Unsubscribe to Legal Alerts.
3. Disclaimer Notice.
Legal Alert for May 2009 – Wills and Survivorships.
In our Legal Alert for March 2003, we highlighted various aspects of Inheritance, Succession, Wills and Private Trust Laws in Nigeria. You can find this March 2003 Legal Alert on our website www.oseroghoassociates.com
It is observed that advancements in enlightenment, continues to reinforce the necessity for writing Wills. However, all manner of legal challenges, arising from disputes between the survivors of the beneficiaries of a Will, appear to be outpacing the traditional legal challenges to the authenticity of a Will, which are usually raised by the direct beneficiaries to the Will.
This Alert serves to remind you of what a Will is, the advantages of writing a Will, and the common law rules of survivorship in contrast to the customary law rules on the same subject.
What is a Will?
A working description of a Will is that it is a testamentary declaration contained in a deed, voluntarily made and executed according to Law by a Testator who is of sound mind and body, distributing his assets and giving such directives as he may wish to be carried out upon his death.
The instructions in a Will only take effect after the demise of its maker, i.e. the Testator. A Testator cannot however generally distribute a property which he inherited under native customary law.
What is a Codicil?
A Testator can always effect changes or amendments, or insert additional devises or bequests to his Will, while he is still alive, by making a Codicil. A Codicil is a supplementary deed to a Will which is made for the purpose of adding to or varying or revoking the provisions of an existing Will.
Advantages of a Will
(1) A Will excludes the rules of inheritance under native law and custom.
(2) A Will excludes the statutory rules of inheritance.
(3) A Will affords the Testator the opportunity to choose his executors, administrators and Guardians if the Testator's children are minors on his death.
(4) A Will avoids the extravagant bureaucratic costs, effort and time expended in applying for letters of administration.
(5) A Will allows the last surviving executor to complete the winding up of the administration of the estate without applying to the Probate Registry for the grant of fresh letters of administration.
(6) A Will allows the executors to it, to act as from the death of the Testator pending when final Probate is granted. E.g. follow burial rites instructions, act as Guardian of minor, if any, etc.
Wills and Survivorship
There are two kinds of survivorship. The first and more common one in Nigeria is known as Joint Tenancy. This is where two or more people jointly own a property. In the event of any of the owners pre-deceasing the other owner(s), the deceased owner's share of the property passes to the surviving beneficiaries of such a property to the exclusion of the estate of the deceased co-owner.
The other kind of survivorship is known as Tenancy-in-common. Here, in contrast to joint tenancy, the deceased owner's share of a property forms a part of his estate, to be inherited according to the terms of his or her Will - if there is any - or according to such Law that governed the deceased affairs during his life time.
Whether a devise or a bequest under a Will, to two or more beneficiaries, will be regulated by the rules of Joint Tenancy or Tenancy-in-common will depend on the interpretation of the wording of the Will.
Joint Tenancy and Tenancy-in-common
The rules regulating Joint Tenancies and Tenancies-in-common are common law rules which are not applicable to customary law modes of inheritance.
Where no specific words of severance are used in devolving a property, which words of severance indicate separate partitions or interest of the same property devolving to two or more beneficiaries, or to two or more people, the law assumes that a joint tenancy has been created with the result that the estate of any of the deceased co-owner cannot assume the place of the deceased in the enjoyment of such a property.
A Joint Tenancy is therefore implied where there is a unity of title, unity of interest, unity of time, and unity of possession.
Tenancy-in-common:
The presence of any of the following words in a Will creates a Tenancy-in-common: - "in equal shares"; "share and share alike"; "to be distributed between"; "to be distributed among them in joint and equal proportion"; "equally"; "among"; "respectively".
In the case of Chinweze v. Mazi (1989) 1 SC (part 11) 33 @ 46 for example, the Nigerian Supreme Court held that by operation of Law, Joint Tenancy leads to the doctrine of survivorship by which if one joint tenant dies without having obtained a separate share of the property for him or herself, during his or her life time, his or her interest will not pass to his or her estate but such interest will accrue to the other surviving joint tenants. The Nigerian Supreme Court also held that on the facts in this suit, the legal assignment it considered did not contain words of severance and therefore, the half brothers to the 2nd Defendant's sister could not take any benefit in the contested property due to the applicability of the rules of joint tenancy to the disputed property. The case of Sonekan v. Smith (1964) ANLR 161 is also recommended in the event that you intend to undertake further research on this subject.
Conclusion
In order for the intentions of a Testator or a benefactor to be achieved, it is recommended that utmost care and precision are exercised when drafting a Will or bequeathing a property. This caution or precision will truncate an avoidable litigation or dispute in the future.
Acknowledgements
We acknowledge the assistance of Mr. Babatola Apata, Barrister & Solicitor, and the Nigerian Law School "Course Handbook on Legal Drafting and Conveyancing", in preparing this Alert.
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 Approved List of Taxes & Business Premises Levy
 
In this Issue:
1. Legal News – Lagos State Court of Arbitration
2. Legal Alert for April, 2009 – Approved List of Taxes & Business Premises Levy.
3. Subscribe & Unsubscribe to Legal Alerts.
4. Disclaimer Notice.
Legal News: Lagos State Arbitration Law & Court
The Lagos State Government has signed into Law an Arbitration Law and another legislation establishing an Arbitration Court for Lagos State.
Legal Alert for April 2009 – Approved List of Taxes & Business Premises Levy.
Tax is a charge or form of levy imposed by the government of a country on all kinds of property, persons and transactions, to raise money for various public needs. The generation of additional revenue is a key function of taxation as additional revenues to government enables the government to provide qualitative and quantitative services and utilities to its people.
Nigeria's over dependence on oil revenues has encouraged tax avoidance and inhibited the development of other sectors of the Nigerian economy including an efficient and effective tax administration system. Prior to the global economic melt down, local governments and state governments who have very low internally generated alternative sources of income outside the revenue derived from the federation account have resorted to illegal methods of collecting fictitious taxes which practices have among other things inhibited small and medium scale enterprises. To curb these multiple and unlawful tax practices, the Taxes and Levies (Approved List for Collection) Act 1998 No. 21 was enacted ("Approved List of Taxes Law").
In furtherance of increasing its revenues and acting within the ambit of the Law, some State Governments have recently commenced the issuance of demand notices for the strata of taxes that they are authorised to collect. The Business Premises Levy is one of such levies. This Alert therefore provides you with a summary of what taxes and levies each arm of government is authorised to charge and collect in Nigeria.
Approved List of Taxes for Collection by the Federal Government of Nigeria
Part 1 of the Schedule to the Approved List of Taxes Law enumerates the traditional taxes authorised for collection by the Federal Government of Nigeria to include Companies Income Tax, Petroleum Profit Tax, Value Added Tax, Education Tax, Capital Gains Tax for employees and residents of the Federal Capital Territory, Abuja ("FCT"), with non-residents and corporate bodies included; and withholding tax on the income of companies, residents of FCT and non-resident individuals.
Personal Income Tax in respect of the remuneration of members of the armed forces, the Police, residents of FCT, staff of the ministry of foreign affairs and non resident individuals are authorised to be collected by the Federal Government of Nigeria.
Approved List of Taxes for the State Governments
Part II of the Approved List of Taxes Law authorises State Governments to charge and collect personal income tax on the income of individuals only, withholding tax for individuals only, capital gains tax for individuals only, stamp duties fees on instruments executed by individuals only, pool betting and lotteries tax, gaming and casino taxes, road taxes, business premises registration fees for urban and rural areas, development levy for individuals only, street naming registration fees in the State capital only, right of occupancy fees on land owned by the government in urban areas of a State, market taxes and levies where State finance is involved.
Approved List of Taxes for Collection by Local Government Authorities
Taxes and levies approved for collection by local government areas include shops and kiosks rates, tenement rates, on and off liquor licence fees, slaughter slab fees, marriage, birth and death registration fees, street naming registration fees for non urban area streets, right of occupancy fees on lands in rural areas, market taxes and levies excluding where the State used its finances to construct the market, motor parks levies, domestic animals license fees, religious places permit fees, signboard and advertisement permit fees, wrong parking charges, vehicle radio licence fees to be imposed by the local government where the vehicle in registered, merriment and road closure levy, domestic animal license fees.
Collection & Related Offences
It is a mandatory provision of the Approved List of Taxes Law that no person other than the legally authorised tax authority of either the federal or state or local government area, as applicable, can access and collect any tax except as authorised under the Approved List of Taxes Law.
The unlawful mounting of road blocks on expressways in any part of Nigeria for the purpose of collecting any tax or levy with or without Policemen or other law enforcement agents is forbidden and punishable under this referenced Law.
Any person who collects or levies any tax or levy, or who mounts a road block or causes one to be mounted for the purpose of collecting any tax or levy contravenes Section 2 of the Approved List of Taxes Law and is liable on contravention to a fine of N500,000 or three years imprisonment or to both the fine and the term of imprisonment.
Business Premises Registration/Renewal Fees & Development Levy
Any business premises in an urban area of Nigeria is required to be registered on the payment of a N10,000 registration fee in the first year of registration, and N5,000 per annum as renewal registration fees in the subsequent years.
For rural areas, the business premises registration fees is N2,000 for the first year of registration, and N1,000 per annum as registration renewal fees for the subsequently years.
A development fee of N100 per annum per individual is also liable for payment by each taxable individual in the entire country.
Conclusion
Subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 the Approved List of Taxes Law is the most comprehensive and authoritative legislation on the taxes that can be collected by each level of government – i.e. Federal, State or Local Government - in Nigeria.
Legal challenges on the taxing powers of the various tiers of government especially with respect to which tier of the government has the taxiing authority to charge and collect value added tax ("VAT"), lottery and gaming fees licences, vehicle registration fees, etc are pending in some courts of law.
It is expected that the Supreme Court decision in Attorney General of Ogun State v. Aberuagba & Ors (1997) 1 NRLR 51 on the taxing powers of the Federal and State Government will be revisited and further clarity brought to the subject matter in the light of this Law.
Enforcement of Section 2 of the Approved List of Taxes Law, being the unlawful mounting of road blocks with or without the security agents of the government, need to be strictly enforced as are the other provisions of the Law in order for the level of tax compliance to increase appreciatively.
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 Legality of Estate Agency Regulatory Law
 
In this Issue:
1. Legal Alert for March, 2009 – The Legality of Estate Agency Regulatory Law of Lagos State.
2. Subscribe & Unsubscribe to Legal Alerts.
3. Disclaimer Notice.
Legal Alert for March, 2009 – The Legality of the Estate Agency Regulatory Law of Lagos State.
Estate Agency Regulation
The practice of estate agency in Nigeria was for a long time an all comers affair as it was unregulated. Expatriate estate surveyors and valuers provided the services in this sector during the pre-independence period. In the post independence era, Nigerian trained estate surveyors and valuers provided the services of estate agency in addition to their regularly licenced surveying and valuation services.
However, Continuing increase in population and unemployment while the available housing demand continue to outstrip the housing supply, and wanton criminal abuses became more common in post-independent Nigeria with the result that the housing market is undeveloped due largely to inefficient legislation, short term funding for long term housing investment and gross unprofessional and unregulated estate agency practices.
The Lagos State Government has, in an effort to curb the above mentioned unprofessional practices in the estate agency market, enacted the Lagos State Estate Agency Regulatory Authority Law. This Law came into effect on 18th May 2007.
The quiet reaction to this Law by most real estate practitioners and stakeholders, on becoming aware of the Law, is to question the constitutionality of this Law as some of them have always practiced real estate agency under the belief that their professional training and licence permitted them to undertake estate agency services as an ancillary service.
This Legal Alert is therefore meant to consider the key aspects of the Lagos State Estate Agency Regulatory Authority Law 2007, and to also examine the legality or constitutionality of this Law.
The Estate Agency Regulatory Authority
The Lagos State Estate Agency Regulatory Authority is established by the Lagos State Estate Agency Regulatory Authority Law. Membership of its governing council is required to be drawn from a wide spectrum of experts among whom are: - a registered estate surveyor and valuer, a legal practitioner, a registered Architect, a registered Engineer, a registered Town Planner, a registered Quantity Surveyor, a professional Accountant or economist, a Social Scientist, and a representative from the estate agency community who must be a member of the Estate, Rent & Commission Agents Association.
The Estate Agency Regulatory Authority has amongst its various functions the preparation of rules and regulations for the practice of estate agency in Lagos State, identification of persons eligible to be licenced as estate agents in Lagos State, issuance and renewal of estate agents practicing licences, maintenance of a register for all licenced estate agents, monitoring, investigating and sanctioning of both licenced and unlicensed estate agents in Lagos State, ensuring compliance with all property or property related taxes, fees or charges, organising continuing educational programmes on best estate agency practices in Lagos State, etc.
The Estate Agency Regulatory Authority has the power to make regulations, from time to time, for the purpose of carrying into effect the provisions of the Estate Agency Regulatory Authority Law.
Licensing Requirements for Estate Agents
The conditions precedent that a prospective or existing estate agent must satisfy before he, or her, or it can be granted a licence to practice estate agency business in Lagos State include:-
a. He must be a citizen of Nigeria, either by birth or by naturalisation.
b. Must be at least 18 years old, for an individual.
c. Must have a minimum educational qualification of secondary school leaving certificate or show proof of sufficient experience in estate agency practice.
d. Must show evidence of registration of the estate agency business under the Companies & Allied Matters Act. In the case of a corporate body making the application, evidence that one of its Directors is a Nigerian citizen and a member of a recognised professional body is mandatory.
e. May be a member of the Nigerian Institution of Estate Surveyors & Valuers, or any other professionally recognised body, or any registered association of estate/rent/commission agents.
Estate Agency Registration Fees
The licensing fees for registering an estate agency practice in Lagos State, which also forms a revenue source for the estate agency regulatory authority is/include the sale of estate agency registration application forms at a minimum sum of N5,000 (Five Thousand Naira) for each application form; licensing fees at a minimum of N5,000 (Five Thousand Naira) for each individual or corporate body; renewal of license fees for individuals is the minimum sum of N2,500 (Two Thousand Five Hundred Naira) while for corporate bodies, the renewal licensing fee is a minimum of N5,000 (Five Thousand Naira).
Code of Conduct for Estate Agents
The primary objective of this Law is to provide all estate agents in Lagos State with a regulatory code of conduct that guides and protects the practice of estate agency in Lagos State. The following code of conduct is therefore prescribed under this Law for all estate agents:-
i. An estate agent shall not carry on the business of estate agency in Lagos State unless he or she is licenced by the Lagos State Estate Agency & Property Development Monitoring Authority.
ii. An estate agent must have an ascertainable office or business premises in Lagos State.
iii. An estate agent must be registered with the Corporate Affairs Commission as a legal entity.
iv. An estate agent must maintain a separate and dedicated client account in addition to keeping proper records of all his or her estate business transactions.
v. An estate agent must not act for two principals on opposite sides in the same property transaction.
vi. An estate agent must be paid his professional agency fees by his principal only; the practice of collecting agency fees from both a prospective tenant and Landlord or a prospective purchaser and seller is now unlawful.
vii. An estate agent must remit all income collected by him or her to his or her principal within fourteen (14) days of such a collection unless otherwise formally instructed not to do so by his or her principal.
viii. An estate agent must provide receipts for all moneys collected on behalf of his principal.
ix. An estate agent must declare any personal interest that he or she may have in a property.
x. An estate agent must ensure that the prospective tenant or purchaser takes physical possession of the property in question within ten (10) days of the client making payment for the property.
xi. An estate agent must ensure that his client performs all the client obligations to the government under all existing laws including the deduction and remittance of all real property taxes or charges.
xii. An estate agent must refund the rent paid by any prospective tenant in the event of a failure to deliver up physical possession of the premises within fourteen (14) days of the payment of the rent for the property. Any delay or non refund after the required 14 days shall attract interest at the prevailing bank rates.
Regulated Agency & Legal Fees
Estate agency abuses are presently more prevalent in the areas of arbitrary, exorbitant and extortational fees charged as agency fees or commission. This Law therefore requires that all estate agents in Lagos State must not charge agency or commission fees in excess of 10% of the total rent collected on any tenancy or lease transaction.
In the case of the sale or purchase of land and buildings, the maximum agency or commission fees permitted is 15% of the total proceeds of the sale.
The total authorised fees or commission, as stated above, must not be exceeded by any estate agent irrespective of whether there are more than one agent acting for the party concerned.
Estate agents are barred from preparing legal documents relating to any real estate transaction undertaken by them on behalf of their clients. All real property agreements must be prepared by a Legal Practitioner whose fees must not exceed 12.5% of the total consideration of the transaction.
Registration of Property Developers
All property developers in Lagos State are required by this Law to be licenced by the Estate Agency Regulatory Authority before they can carry on or continue to carry on business in Lagos State as property developers.
Contravention of Estate Agency Regulatory Law
The failure of an estate agent or property developer to obtain a practising licence as required by this Law is an offence, and where the agent is found guilty of this offence, he is liable to a fine of N10,000 (Ten Thousand Naira) in the case of an individual and N50,000 (Fifty Thousand Naira) in the case of a company.
Other failure or non compliance deterrents under this examined Law attract on conviction a fine of N25,000 (Twenty Five Thousand Naira) only or a term of imprisonment of three (3) months. Where the offence continues to be committed, a fine of N10,000 (Ten Thousand Naira) for each day that the offence continues to be committed shall be imposed. For corporate bodies, the fine for contravention is N50,000 (Fifty Thousand Naira) for the initial infringement and N25,000 (Twenty Five Thousand Naira) for each day that the offence continues to be committed.
Institution of Legal Actions Against Estate Agency Authority
The provisions of the statutes of limitation are expressly made applicable to any legal action that may be instituted against the Estate Agency Regulatory Authority.
A one month pre-action written notice of intention to commence legal action against the estate agency regulatory authority is mandatory for an intending claimant or his authorised representative before any legal action can be properly instituted against this regulatory agency. The pre-action notice must state the name and place of abode of the intending claimant or his agent, the grievance or complaint and the relief sought if the action is to be deemed to have been properly instituted when it is.
Legality of the Estate Agency Law
Section 4(7)(a)(b) and (c) and Section 5(2)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria empowers the government of a State to make laws for the peace, order and good governance of such a State in respect of any matter that is not included in the exclusive legislative list, and on all matters included in the concurrent legislative list.
In Part II, item 18 of the Concurrent Legislative List of the 1999 Constitution, a State House of Assembly is empowered to make laws for that State in respect of the industrial, commercial or agricultural development of such a State.
The Estate Agency Regulatory Authority Law is therefore a validly and constitutionally enacted legislation to regulate the practice of estate agency which in turn will advance the commercial development of Lagos State.
Estate Surveyors & Valuers, & Legal Practitioners In Estate Agency Practice
Estate Surveyors & Valuers in Nigeria are regulated by the Estate Surveyors & Valuers Registration Board of Nigeria. Section 2 of the Estate Surveyors & Valuers (Registration) Act, Cap E13, Laws of the Federal Republic of Nigeria, 2004 enumerates the functions of this Board. It is however difficult to interpret the functions of estate agency into that of "... estate surveying and valuation" as described in Section 19 of the Estate Surveyors & Valuers (Registration) Act.
Based on the legal observation in the last preceding paragraph, it is recommended that Estate Surveyors & Valuers, with Legal Practitioners and other related professionals who also practice as estate agents in Lagos State should seek registration under the Lagos State Estate Agency Regulatory Authority Law, if the intend to continue to lawfully practice estate agency business in Lagos State. Should a contrary intention exist to the latter view, judicial interpretation should be urgently sought by these practitioners to remove any ambiguity that they might claim to exist under this Law.
Soft Comments – Estate Agency Law
Membership of the Board of Directors of the Estate Agency Regulatory Authority is unwieldy, and subject to abuse through political patronage by an executive Governor who may not share the philosophy of this legislation with the originators of the legislation.
The requirement of Section 27(5) forbidding an estate agent to act for both sides of a transaction may be unenforceable in an undeveloped and under-supplied real property market. The requirement could be amended to require the estate agent to act in the best fiduciary interest of all persons that it represents where it is difficult for him not to represent all the parties.
Provisions requiring an estate agent to ensure that physical possession of a property is delivered within fourteen days of payment for a property or the provision compelling an estate agent to ensure that his principal tenant/landlord or purchaser/seller comply with his tax obligations negates the time honoured principle that an agent, as a representative of a known principal, cannot be held liable for the actions or omissions of his principal. A review and amendment of these and other similar provisions is therefore strongly recommended.
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 February Rent Control (Amendment) Law
 
In this Issue:
1. Legal News – Repeal of Rent Control & Recovery of Residential Premises Law, 1997 cap. R6, Laws of Lagos State and the Rent Control & Recovery of Residential Premises (Amendment) Law, 2004.
2. Legal Alert for February, 2009 – Lagos State Rent Control Law (With Amendment) 2007.
3. Subscribe & Unsubscribe to Legal Alerts.
4. Disclaimer Notice.
Legal News: "Repeal" of 2003 & 2004 Rent Control & Recovery of Residential Premises Law
Our attention has been drawn to the "repeal" of the Rent Control and Recovery of Residential Premises Law. The recipient(s) who drew our attention to this development also raised the question of whether or not a debtor-tenant whose tenancy had expired by effluxion of time was entitled to receive service of any notice to quit. The Supreme Court decision in ODUTOLA v. PAPERSACK was referred to in this regard.
The Nigerian Supreme Court held in the matter of ODUTOLA v. PAPERSACK & ANOR (2006) 11 -12 S.C 60 @ 66 that a tenant at will – i.e. a tenant without a tenancy or with one with a tenancy that has expired - occupies the estate of the landlord at the pleasure or happiness of the landlord. The tenant at will can however be ejected subject to proper notice to quit emanating from the landlord. It was further held that by Section 15 (1)(a) of the Rent Control and Recovery of Residential Premises Law of Lagos State Cap. 167, Laws of Lagos State, a tenancy at will or a weekly tenant is only entitled to a week's notice to quit.
The Supreme Court finally also held that mesne profit is the sum due to a landlord from the time his tenant ceases to hold the premises as a statutory tenant to the time such a tenant gives up possession. And that from the moment a tenancy comes to an end by effusion of time, the tenant thereupon becomes a tenant at will by continuing or remaining in possession of the property without the consent of the landlord.
Legal Alert: February, 2009 – Lagos State Rent Tribunals (Abolition and Transfer of Functions) Law, 2007
The Rent Tribunals (Abolition and Transfer of Functions) Law ("Rent Tribunals Abolition Law"), which is more commonly referred to as The Rent Control Law (With Amendment) 2007, was enacted to amend the Rent Control & Recovery of Residential Premises Law (the principal Law) by abolishing all Rent Tribunals in Lagos State, and transferring all their functions, powers and jurisdiction to Magistrates Courts or the appropriate High Courts.
The effect of the above abolition and transfer of the functions of Rent Tribunals in Lagos State is that the provisions of the Rent Control and Recovery of Residential Premises Law Cap. R6 2003, and the Rent Control and Recovery of Residential Premises (Amendment) Law, 2004 have been repealed by Section 5 of the 2007 Rent Tribunals Abolition Law.
Sections 1, 2, 3 and 4 of the Rent Tribunals Abolition Law, 2007 are the saving provisions for the Rent Control and Recovery of Residential Premises Law, 1997 which is now the applicable Law in the areas of rent control and the recovery of residential premises in Lagos State.
Section 1 of the Rent Tribunals Abolition Law 2007 is the section that has transferred all the powers, functions and jurisdiction formerly exercised by the Rent Tribunals to the appropriate Magistrates or High Courts in Lagos State.
Sections 2 and 3 of the Rent Tribunals Abolition Law are the sections transferring the employment of judicial officers under the Rent Tribunals regime to that of the appropriate grade of Magistrate in the Judicial Service Commission of Lagos State.
Section 4 of the Rent Tribunals Abolition Law authorises the continued hearing of part–heard matters by the Rent Tribunals provided that such matters are concluded within three months of the commencement of this Law. Part heard matters that are not concluded within three months are required to be transferred to the proper Magistrates or the High Courts for final determination.
Conclusion
It is not the intendment of the Rent Tribunals Abolition Law, 2007 to repeal the entire 1997 Rent Control & Recovery of Residential Premises Law of Lagos State.
It is therefore the current position of the Law that Rent Tribunals in Lagos State have been abolished. Their functions, powers and jurisdictions have been however been transferred to the appropriate Magistrates or High Courts in Lagos State for continuing adjudication. The applicable Law to rent control and recovery of residential premises matters in Lagos State remains the saved sections of the 1997 Rent Control and Recovery of Residential Premises Law.
Special mention must be made of the fact that the Rent Tribunals Abolition Law is not drafted as exhaustively as it should be, to remove the present confusion amongst practitioners and stakeholders as to what Law presently regulates rent control and recovery of residential premises in Lagos State. It is therefore expected that time wasting preliminary objections will be filed at the Courts on this area of the Law. The Lagos State House of Assembly would do well to effect further improvements on this legislation any time the opportunity presents itself in order to save time and cost to the Courts and the parties.
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 Foreign Investments Benefits & Guarantees
 
In this Issue:
1. Legal Alert for January, 2009 – Foreign Investments in Nigeria - Benefits, Guarantees & Regulations.
2. Subscribe & Unsubscribe to Legal Alerts.
3. Disclaimer Notice.
Legal Alert for January, 2009 – Foreign Investments in Nigeria - Benefits, Guarantees & Regulations
Introduction & Regulatory Authority
The Nigerian Investment Promotion Commission ("NIPC") is the primary regulatory agency established by the Nigerian Investment Promotion Commission Act, 1995 (as amended) to serve as a one-stop government approval agency to promote, encourage, co-ordinate, monitor and provide necessary assistance and guidance for the establishment of enterprises in Nigeria.
NIPC is further obligated by the NIPC Law to do away with all previously recognised delays associated with the granting of necessary approvals for the establishment of new businesses by foreign entrepreneurial entities in Nigeria.
Other regulatory agencies that a foreign investor would have to liaise with when making an investment in Nigeria include the Corporate Affairs Commission ("CAC"), the National Office for Technology Acquisition & Transfer ("NOTAP"), the Ministry of Internal Affairs with the Nigerian Immigration Service, the Central Bank of Nigeria and an appointed local Bank for importation of the investment capital and the repatriation of profits, capital, etc; the Securities & Exchange Commission ("SEC") and the Nigerian Stock Exchange ("NSE") for investments in public quoted companies.
A further important function of NIPC is the legal duty to register and keep the records of all enterprises to which the NIPC Law is applicable.
Incentives, Benefits & Guarantees
The Nigerian Government, like other governments in the world, have put in place a number of incentives and guarantees to encourage foreign investments in Nigeria. Some of these incentives include the following: -
1. Liberation of ownership. Foreign investors in Nigeria can now own 100% of the shares of any Nigerian company provided such a company is not engaged in any of the restricted business of producing arms and ammunitions, narcotic and psychotropic substances, military and para-military wears and accoutrement.
2. Free repatriation of profits. All foreign investors are allowed the free repatriation of their profits or dividend income provided that the repatriation is effected through a licenced Nigerian authorised dealer in freely convertible currency.
3. Legal Guarantees against expropriation or nationalisation. The NIPC Law itself guarantees that no enterprise shall be nationalised or expropriated by any government in Nigeria nor shall a business owner be compelled by law or by government to surrender his equity or company to any person. Where however an enterprise is required to be nationalised for overriding public interest, fair and adequate compensation must be paid in respect of such acquisition. This is in marked contrast to the nationalisation exercises of the late 1970s.
4. Investment Promotion & Protection Agreements. In addition to the investment guarantees in the NIPC Law, the Nigerian government continues, as a further guarantee against expropriation or nationalisation or in the event of a war or a revolution, to execute bilateral investment promotion and protection agreements ("IPPAs") with countries whose nationals do business in Nigeria. Some of the countries that have executed IPPAs with the Nigerian government include France, the United Kingdom ("UK"), Netherlands, Romania, Switzerland, Spain and South Africa. Negotiations with the United States of America, Belgium, Sweden and the Russian Federation are at various stages of conclusion.
5. Double Taxation Treaties. Nigeria has signed double taxation agreements, which function in the form of "tax credits", with the UK, France, Netherlands, Belgium, Pakistan, Canada, Czech Republic, Philippines, Romania and South Africa. Negotiations on similar agreements with countries like Turkey, Russia, India and South Korea are at various stages of finalisation. Tax concession by the Nigeria government to her treaty partners is the rate of 7.5% on dividends, interest, rent and royalties earned by foreign companies in Nigeria against their ultimate tax obligation in their country of registration.
6. R & D Tax Relief. There are tax reliefs for research and development activities carried out in Nigeria in connection with the business of every foreign registered entity in Nigeria. 120% of all expenses on research and development ("R & D") are tax deductible. Where the R & D is on local raw materials, 140% of the expenses on R & D are tax deductible. Long term expenses on R & D which are of a capital nature are written off against the profits of the enterprise undertaking the R & D. The results of all R & D in Nigeria are patentable and protected under Nigerian intellectual property law.
7. Pioneer status and tax holiday. Companies with pioneer Status are granted tax holidays of between five to seven years for new, innovative or specialised enterprises, or sometime for locating their industries in economically disadvantaged local areas.
8. Tax concession of 2% for five years for industrial establishments that have in-plant training facilities. There are also tax concessions for industries that have high labour and capital ratio. Industries that encourage local fabrication could be granted 10% tax concession for a period of five years.
9. A 100% tax holiday for seven years for industries that are situated in economically disadvantaged local areas and provide majority of the infrastructure required in such local areas.
10. Industries that attain minimum levels of local raw materials sourcing and utilisation are entitled to a 20% tax credit.
NIPC Registration Checklist
To ensure the utilisation of some or all of the benefits and guarantees mentioned above, it is recommended that a foreign company registers its business activities in Nigeria with NIPC. We are providing you with a working checklist of some of the documentation that should accompany such an application for registration with NIPC: -
i. Formal application letter to the Executive Secretary, NIPC.
ii. Duly completed NIPC registration form.
iii. Copy of Applicant company certificate of incorporation. Applicants are required to have a minimum share capital of N10Million before they can apply for registration.
iv. Certified true copies of the particulars of directors (form CAC 7) and shareholders (form CAC 2).
v. Certified true copies of Memorandum and Articles of Association of the Applicant company.
vi. Copy of the treasury receipt for stamp duties paid on the authorised share capital of the company.
vii. Copy of Applicant's tax clearance certificate.
viii. Copy of Applicant's capital importation certificate.
ix. Copy of joint venture agreement where the company is not owned 100% by the foreign shareholder.
x. Copy of feasibility report and project implementation program of the company for the proposed business.
xi. Copy of Lease of Sub-Lease Agreement evidencing the Applicant's commitment to acquire business premises for the expatriate company's operations in Nigeria.
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.