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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.

Introduction

Any economy, especially a developing economy, requires credible and stable Data Credit Reporting Systems to encourage businesses, lenders and providers of services to more willingly extend Credit and Services to Consumers. This is especially with reoccurring financial crisis, lack of collateral and the erosion of capital in the global world economy.

According to Investorwords.com and Businessdictionary.com, a Credit Bureau is an independent, neutral and privately owned Financial Data Agency that collects, stores, analyses summarises and dispenses reliable and accurate financial information that is considered relevant, about a person or corporation’s Credit History and worthiness. Financial Data collected is not altered by the Credit Bureau in any way or form.

A Credit Bureau, which is also known in some jurisdictions as a Credit Reporting Agency, or a Consumer Reporting Agency, or a Credit Reference Company, does not proffer any expert opinion about whom any credit should be extended. Its report is only a factual valuable tool to a prospective business or creditor in assessing the risks and taking the decision whether or not to extend to a prospective applicant or borrower any credit or services on credit.

Credit Bureau Guidelines in Nigeria

Section 57 of the Central Bank of Nigeria Act, 2007 authorises the Central Bank of Nigeria (“CBN”) to license and regulate all the Credit Bureaus in Nigeria. In pursuance of this statutory responsibility, the CBN issued its latest Guidelines regarding Credit Bureaus in 2013 for the licensing and regulation of Credit Bureaus and Credit Bureau related transactions in Nigeria.

Thus, no individual or corporation can operate or render Credit Bureau services in Nigeria except where licensed by the CBN.

There are presently three (3) privately owned Credit Bureau Agencies licensed to operate in Nigeria. They are XDS Credit Bureau, CR Services Credit Bureau and CRC Credit Bureau.

Core Function of the Credit Bureau

The core function of a Credit Bureau is the collection and dissemination of Financial Information or data for permissible purposes only. This core function according to the CBN encourages reliance on reputational collateral as opposed to the physical collateral.

Some of the permissible purposes mentioned in the CBN Guidelines include applications for credit by Borrowers and their Guarantors; opening of new accounts and KYC related due diligence; tenancy contracts (for identification and payment ability purposes); Insurance transactions; debt collections, etc.

The consent of the data subject is however required where the Credit Report is requested by a non-statutory institution or person. Also, the CBN Credit Bureau Guidelines encourages Credit Bureaus and Financial Institutions to be upfront, in advance, about the information dissemination roles of the Credit Bureaus and these Financial Institutions.

Using a Credit Bureau

Obtaining a Credit Report, Data or Information from a Credit Bureau can be done either by filing the appropriate Request Form or by registered members of the Credit Bureau who undertake large volumes of Credit Checks on regular basis.

A Credit Report is expected to be delivered to an Applicant who has applied for it, paid the Report fee and provided other required paperwork, within 48-72 hours. Corporate Credit Bureau members however are expected to obtain any requested Credit Report in a matter of minutes on any application been made.

A Credit Report is expected to cover a minimum of five (5) years of a subject’s credit history; while the Credit Bureau archived database is expected to be retained for a minimum period of ten (10) years. All credit information are required to be updated on an on-going basis.

CBN Credit Risk Management System

Related to the Credit Bureau regime is the CBN Credit Risk Management System (“CBN CRCMS”) which commenced in 1998. The CBN CRMS is in contrast with the above privately owned Credit Bureaus, a public Credit Registry administered by the CBN to collate on a monthly basis all the credit facilities in excess of One Million Naira (N1,000,000) extended by Nigerian Banks to their Customers.

The CRCMS however only applies to formal Banking Credits; while Credit Bureaus Regulations are applicable to non-banking credit services.

Banks, Other Financial Institutions & Credit Bureaus

All Banks and other Financial Institutions are mandatorily required to enter into Data Exchange Agreements with at least two (2) CBN licensed Credit Bureaus. And these financial institutions must obtain Credit Reports from at least two (2) CBN licensed Credit Bureaus before granting any new Credit Facility, reviewing, renewing or restructuring any existing Credit Facility.

Conclusion

Poor enlightenment and awareness about the core benefits of Credit Bureaus, and the invaluable benefits that Credit Reports and Scores provide on a credit subject, remains very prevalent. Dereliction in the corporate responsibility of Banks and other Financial Institutions to enlighten their customers of their statutory responsibilities to share customers’ financial data with Credit Bureaus has not assisted enlightenment and growth of Credit Bureau practices in Nigeria

Private Sector Corporate Nigeria, especially small and medium scale businesses, must therefore be in the forefront of promoting the best Credit Bureau practices if easy access to credit will become the norm in the nearest future.                                                                                                                                                        

Disclaimer

This is a free educational material, which 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, professional 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 is explicitly acknowledged, and our Disclaimer Notice is prominently displayed.

Introduction

During and upon the completion of the construction of a Hotel, one of the next major concern for the Owner, Manager or Operator of the Hotel is ascertaining definitively what minimum Legal and Regulatory Licenses and Permits such a Hotel will need to validly and effectively operate.

The above concern is especially pertinent as the various Licenses and Permits are derived from multiple government agencies.

Enumerated in the paragraphs following this one are the minimum Federal, State and Local Government Licenses and Permits for Hotels operating in Nigeria. Lagos State is used as a sample for the States and Local Governments Licenses and Permits.

Federal Hotel Licenses and Permits

NTDC Certificate of Registration – for only Hotels in FCT, Abuja

Companies Income Tax (“CIT”) Registration & Withholding Tax

Value Added Tax (“VAT”) Registration

Pension & Group Life Assurance

NSITF/Group Accidents

Industrial Training Fund (“ITF) Registration and Compliance

Music Copyright License obtainable from COSON

EFCC/SCUML Registration – Money Laundering Compliances

CBN – Certificate of Authorised Buyers of Foreign Exchange

NOTAP Certification – Management Agreement/Franchise

Immigration – Business Permit, Expatriate Quota, etc

State Hotel Licenses and Permits

Personal Income Tax & Withholding Tax Compliances

State Hotel Licensing Authority Certificate of Registration

State Consumption and Events Centre Tax Registration

State Land Use Charge (called Ground Rent or Tenement Rate)

Fire Safety Certificate

Water Laboratory Analysis Certification

Advertising and Signages including Flags Registrations

Environmental Remediation and Pollution Management Levy

Correct “No-Smoking” Signs

Local Governments Hotel Licenses and Permits

Pest Control/Fumigation and Waste Management

Sale of Liquour

Television and Radio Licenses

Regulated Food Premises (Food Handlers) License

Parking Permit

Conclusion

Best practice recommends that simultaneous with the conceptualisation and commencement of the construction of a Hotel must be the early filing of the applications for the various Regulatory Licenses and Permits. This is in order to avoid penalties for none compliance, and the likely sealing of the premises from where the Hotel operates.

As most Licenses and Permits require an annual renewal, a robust administrative structure must be put in place by all Hotels to ensure that their operating Licenses and Permits are renewed in advance of their expiration.

Acronyms/Abbreviations

“CBN”        –  Central Bank of Nigeria

“COSON”   –  Copyright Society of Nigeria

“EFCC”      –  Economic and Financial Crimes Commission

“NOTAP”    –  National Off. for Technology Acquisition & Promotion

“NSITF”     –  Nigeria Social Insurance Trust Fund

“NTDC”      –  Nigeria Tourism Development Corporation

“SCUML”   –  Special Control Unit for Money Laundering

Disclaimer

This is a free educational material, which 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, professional 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 is explicitly acknowledged, and our Disclaimer Notice is prominently displayed.