₦airaland Forum

LearnNigerianLaws.Com in 2016 published and circulated for free over 10 law articles on WILLS, MARRIAGE, LAND, NBA STAMP, CONTRACT, TENANCY, BUSINESS, BOUNCED CHEQUE AND TRADEMARKS. They were written in simple English without law jargons, for easy understanding of none-lawyers. Below are links to 10 law articles as published on www.LearnNigerianLaws.com

Please read and be empowered!

Click on each article to read. Feel free to share!



1. HOW TO RECOVER PROPERTY OF THE DEAD IN NIGERIA. (A legal guide on Probate Matters in Nigeria) https://www.learnnigerianlaws.com/index.php/law-articles/family-law/21-how-to-recover-property-of-the-dead


2. HOW TO BE LEGALLY MARRIED IN NIGERIA - Learn Nigerian Laws https://www.learnnigerianlaws.com/index.php/law-articles/family-law/10-how-to-be-legally-married


3. LEGALITY OF GOVERNMENT’S COMPULSORY ACQUISITION OF LAND AND PAYMENT OF COMPENSATION - https://www.learnnigerianlaws.com/index.php/law-articles/land-law/16-legality-of-government-s-compulsory-acquisition-of-land-and-payment-of-compensation


4. PROCEDURE AND REQUIREMENTS FOR OBTAINING NBA LAWYERS'STAMP, INSURANCE POLICY AND OTHERS. https://www.learnnigerianlaws.com/index.php/law-articles/law-in-practise/18-procedure-and-requirements-for-obtaining-nba-lawyers-stamp-insurance-policy-prepaid-cards-lawyers-verification-exercise


5. BOUNCED/DUD CHEQUE AND ITS LEGAL CONSEQUENCES IN NIGERIA- LearnNigerianLaws.com https://www.learnnigerianlaws.com/index.php/law-articles/criminal-law/8-bounced-or-dud-cheque-and-its-legal-consequence


6. RIGHTS OF A TENANT IN NIGERIA. - Learn Nigerian Laws https://www.learnnigerianlaws.com/index.php/law-articles/landlord-and-tenant-law/24-rights-of-a-tenant


7. RIGHTS OF A LANDLORD IN NIGERIA. - Learn Nigerian Laws https://www.learnnigerianlaws.com/index.php/law-articles/landlord-and-tenant-law/23-rights-of-a-landlord


8. HOW TO REGISTER A BUSINESS NAME, A PARTNERSHIP ANDA COMPANY IN NIGERIA - Learn Nigerian Laws https://www.learnnigerianlaws.com/index.php/law-articles/commercial-and-corporate-law/11-how-to-register-a-business-a-partnership-and-a-company


9. REGISTRATION OF TRADEMARKS IN NIGERIA. - Learn Nigerian Laws https://www.learnnigerianlaws.com/index.php/law-articles/commercial-and-corporate-law/22-registration-of-trade-marks


10. HOW TO WRITE AGREEMENTS (CONTRACTS) - Learn Nigerian laws https://www.learnnigerianlaws.com/index.php/law-articles/commercial-and-corporate-law/25-how-to-write-agreements-contracts



Join us every month as we publish for free, easy to understand law articles on areas that affect the ordinary man. Our publications are for the general public; none-lawyers and lawyers. It is our vision to enlighten all Nigerians on Nigerian laws to build a safer, more informed and accountable Nigeria. We wish you a fruitful new year; 2017.

Thank you.



Onyekachi Umah, Esq. ACIArb(UK)
Founder and Senior Contributor
LearnNigerianLaws.Com

www.LearnNigerianLaws.com
info@LearnNigerianLaws.com
learnNigerianLaws@gmail.com
08037665878




Follow us on facebook; https://www.facebook.com/LearnNigerianLaws/

Follow us on Twitter: https://twitter.com/LearnNigeriaLaw

HOW TO RECOVER PROPERTY OF THE DEAD IN NIGERIA. PART 2

By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

LINK TO ORIGINAL TEXT: https://www.learnnigerianlaws.com/index.php/law-articles/family-law/21-how-to-recover-property-of-the-dead?showall=1

Please note that PART 1 dealt on "WHERE THERE IS A WILL" while PART 2 will deal on WHERE THERE IS NO VALID “WILL”.


B. WHERE THERE IS NO VALID “WILL”.

“Many are they that are scared of death hence more are they that depart unprepared” culled from “SMELL OF WISDOM” by –Onyekachi Umah,Esq.

Let me start with you; do you have a “WILL”? Are you ready to make your “WILL” today? Well, I already know your answers! “WILL” writing/making doesn’t indicate or mean an invitation to death rather an expression of love for your possible dependants. WILL is to your dependants what a seat belt is to a driver. A writer once said that after death, one is remembered for either the problems he solved or caused; and I say that as many that will die without WILLS are forever remembered for problems they caused. When you die without a WILL, you have left your lovely family in the hands of your our often repugnant traditions, jealous siblings, deceitful relatives and unrepentant debtors. Due to poor education and our overwhelming religion, many couples are not married under the Marriage Act 1949 of Nigeria rather are married according to their native customs/tradition; “igba-nkwu”, “ibo-oke” or “Igbeyawo”, “Idana” or “church blessings”. This means that upon the death of any of the spouse without a VALID WILL, native/traditional laws and church/canonical laws will prevail instead of our modern and equitable WILLS laws. Although if no person is claiming rights under the traditional laws the bereaved can approach a court for appointment of administrators under the WILLS ACT of 1837 and that of the different 36 states of Nigeria. Marriage celebrated in a church (with a marriage certificate from a pastor or a priest) but without any Certificate from a Registrar of Marriages (Marriage Registry) is not a marriage under the ACT but a colourful church ceremony and at best a customary marriage. It is equal to a traditional marriage. A couple married under the tradition and customs, who does not want to be bound by their often draconic native laws and customs on inheritance and succession matters, should make WILLS. Once you make a WILL over a property that you can give out under a WILL, no tradition or custom will affect you and your beneficiaries (family and others). Please note that a couple married under the marriage Act of Nigeria, whether a WILL is made or not must be bound by the provisions of the WILLS ACT and not under any native custom/tradition; this is one of the numerous benefits of a marriage conducted under our extant Marriage Act. For more on marriage, the work titled HOW TO BE LEGALLY MARRIED IN NIGERIA by Onyekachi Umah, Esq.

Where there is no WILL or there is an invalid WILL it will be said that the dead died intestate(without a WILL), so a court will on its own determine persons to manage and benefit from from the property/estate of such a deceased person. Since the deceased wasn’t smart enough to share his property, our wise courts will help him/her out. Administrators (personal representatives of a deceased) will be empowered by a court through a “LETTER OF ADMINISTRATION”to manage and administer the property of the deceased.



PERSONS ENTITLED TO LETTERS OF ADMINISTRATION.

Where a person dies without a WILL, the court will appoint persons to administer the deceased’s property. Court will consider the interest of the persons capable and willing to administer the property. The immediate family (husband/wife and children of the deceased; next-of-kin) is often appointed as administrators of the estate. In practise, most banks in Nigeria will only allow persons mentioned by a deceased in his account opening documents as his next-of-kin to have access to such deceased’s bank account. Also, note that many pension administrators and insurance companies will only honour the persons whose names were used as next-of-kin by a deceased in his dealing with them. A letter of administration will counter and prevail over person ordinarily appointed a a next of kin by a deceased because appoint of next of kin is not a WILL. Be mindful of persons you appoint as your next-of-kin and never hesitate to change such persons when the going gets tough. The court will consider the age and sanity of persons seeking for appointment as administrators. Below is a list of persons that can be appointed as administrators of estate according to their order of priority and suitability:

1. Husband or wife of deceased

2. Children of the deceased or grand children of deceased whose parent died during the life time of the deceased.

3. Father or mother of the deceased.

4. Brothers or sisters of the deceased of full blood and the children of such brothers or sisters who died during the lifetime of the deceased.

5. Brothers or sisters of half blood of the deceased or the children of any such half brother or sister who died during the lifetime of the deceased.

6. Grandfather or grandmother of the deceased.

7. Uncles and aunts of full blood or their children

8. Creditors of the deceased.

9. Administrator-General

The above list is arranged according to order of priority; meaning that a father/mother cannot be appointed as administrator where there are capable and willing children while children will not be appointed where there is a willing and capable husband/wife. Court will not appoint a person less than 18 years unless there are two (2) other administrators with such a person.



STEP BY STEP GUIDE ON OBTAINING “LETTER OF ADMINISTRATION”.

Where there is no WILL no one can manage or administer the property of a dead person without a letter of administration from a court, except where the deceased was never married under the Marriage Act. Above are the persons that can be issued such letter. Below is a step to step guide on how to obtain such letter of appointment. Please note that, Letter of Administration cannot be applied for until after 14 days from the date of death of the deceased.



1. APPLICATION FOR LETTER OF ADMINISTRATION.

Fourteen (14) days after the death of a person his eligible dependents may apply for grant of letters of administration to enable them manage the deceased’s property. Such persons are to make an application in writing, and attach copies of the “death certificate of the deceased”, “Declaration on oath by executors”, “Oath/justification by sureties of the executors”, “completed administrative bond to cover the assets and liabilities of the deceased”, “inventory of the deceased’s property (movable and immovable)”, passport photographs of the prospective administrators and their two (2) sureties.

2. PUBLICATION OF APPLICATION IN NEWSPAPER.

Unlike in application for a “Probate”, in application for a Letter of Administration the applicants must make a publication of their application in a newspaper that circulates in the area. The publication is to inform the public of the names of the applicants, the estate of the deceased and period of time within which the public can protest against such application. This practise prevents fraud and helps inform the public of the dealings in the estate of a deceased. Any member of the public can protest and enter an objection within eight ( days after a publication is made. Where an objection is received the court will determine such and consequently grant or refuse to grant a Letter of Administration.

3. GRANT OF LETTER OF ADMINISTRATION

Where there is no objection to an application for letters of administration or an objection was decided in favour of the applicants, the court will grant a letter of administration to the applicants. With a letter of administration, the administrators which are often the family members of the deceased can manage, use, sell, sue or be sued over the property of the deceased. By letter of Administration, property and ownership has been vested on them and property/estate of the dead recovered from all possible trespassers.

With any of the above documents from a court; a “Letter of Administration” (for where there is no WILL) or a “Probate” (where there is a WILL), holders of such are automatically vested with the rights over the property of their deceased. Property of the dead can no longer be said to belong to no one or be used by any person other than the certified personal representatives (administrators and executors). Any person that deals with property of the dead without such documents can be prosecuted both in civil and criminal laws. Get a probate or a letter of administration toady, and recover the property of you dead loved ones.


Read the complete article viahttps://www.learnnigerianlaws.com/index.php/law-articles/family-law/21-how-to-recover-property-of-the-dead?showall=1

HOW TO RECOVER PROPERTY OF THE DEAD IN NIGERIA. (A Legal Guide On Probate Matters In Nigeria)

By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

LINK TO ORIGINAL TEXT: https://www.learnnigerianlaws.com/index.php/law-articles/family-law/21-how-to-recover-property-of-the-dead

A righteous man leaves inheritance for his off springs says the holy book. We all must die someday but what we may leave are our off springs, legacies, assets, liabilities, problems we solved and those we created. The death of a person is not the death of his/her property, assets and liabilities. The death of loved ones and breadwinners is not a launch into poverty and misery. No one dies with his assets (anything that adds to wealth) and liabilities (anything that reduces wealth) rather such is left for the good of the living. It is the right of the living to take over ownership and administration of the assets and property even the liability of the dead (deceased). Whether a deceased died leaving a WILL (testate) or without a WILL (intestate) his property must be owned and managed by the living. Now, the question is who should legally manage and benefit from the property of a dead in Nigeria?

When a person dies his property devolves on his/her survivors (in this order; wife/husband, children, father, mother, brothers, sisters, uncles and nephews) except where there is a written WILL. The law has provided a yardstick for determining which of the survivors would benefit first and procedures for taking ownership of the property of a deceased. This protects the interest of the survivors from the greedy claws of relatives and gold diggers. This article is to guide you on how to obtain legal right over the property (lands, shares, houses, stores, parks, cars, jewelleries, businesses, machines, insurance, pension/death benefit and money in bank, etc ) of a deceased (dead parent(s), child, sibling, relatives, friends and debtors etc). Property of a dead person can only be recovered through obtaining a Grant of Probate or a Letter of Administration or a strict adherence to non repugnant customs. This publication is better titled; “A Legal Guide on Probate and Administration of Estates”. To appreciate this publication, please read my earlier publication tiled; “HOW TO WRITE YOUR WILL”.

STEPS TO RECOVERING PROPERTY OF THE DEAD.

Even in hell there is order, so is in taking over the property of a dead; there are laid down procedures. In every death, there must be either of these two; a deceased who died with a WILL (testate) or a deceased who died without a WILL (intestate). In either cases there are laid down steps to recovering property of such a dead person. The steps will be treated below under two different headings; “Where there is a valid WILL” and “Where there is no valid WILL”.






A. WHERE THERE IS A VALID “WILL”.

We all live to leave great memories and inheritance for our dependants. We somehow control what happens in our lives and not afterwards. One dies either “testate” (with a valid will) or intestate (without a valid will). A WILL is a record of the intentions of a deceased made by himself before his death effective from his death. It is the wishes/ intentions of a person that will guide the management and administration of his affairs and property after his death.Once there is a WILL the property of a deceased MUST be executed(shared) among the beneficiaries (people mentioned in the WILL to inherit property) as the WILL says. No man, court, government, lawyer, soldier, police officer, clergy, chief, thief, elders or native custom can change or go contrary to the contents of a valid WILL. It is the last intention of a dead person and MUST be obeyed by all living things!

Note that my adjective “VALID” refers to acquistion of qualities that qualifies a WILL to be respected and honoured. Any thing written by a dead person can be his WILL if only such thing contains certain features/qualities that make a VALID WILL. Some of the features/qualities of a VALID WILL are; a VALID WILL must be made by a SANE PERSON (not by a mentally sick, imbalance, incoherent person),VOLUNTARILY (intentionally, freely, willingly, wilfully, without force, fear, intimidation, enticement, pressure, deceit, forgery, fraud and mistake), signed by the maker in the presence of at least TWO WITNESSES (who need not know the content of the WILL) before the death of such a person. Where any of the above qualities/feature is missing such a WILL is not VALID in the eyes of law. Such WILL can be challenged by any interested party before a law court; for such a WILL to be declared invalid and the dead person be treated as a one who died without a WILL. A Valid WILL will also become INVALID where the maker marries or divorces a spouse after making a VALID WILL or makes another VALID WILL, or destroys, alters, cancels, inserts or defaces his VALID WILL. Under the WILLS Law of Lagos State, any WILL that did not make reasonable financial provision for a Wife/Husband and children can be challenged in court and may be declared INVALID (See, Section 2, WILLS LAW LAGOS STATE Cap. W2 Laws of Lagos State, 2004). Same is applicable in Abia, Oyo and Kaduna States although in such states the list even includes parents and siblings of the deceased (See, Section 4 ABIA STATE WILLS LAW Cap 37, Laws of AbiaState 1999). A WILL made by an under aged person is not VALID. Under the WILLS ACT the legal age for making of WILL is 21 years, although in Lagos, Kaduna, Abia and OYO states among other few states the age is 18 years old. But there is no age limitation/restriction for army officers and civilian mariners, seamen and air crew in action.

After the death of a person who had written and left a WILL, such a WILL is expected to be found among his belongings or where such a WILL had been kept by his lawyer, the lawyer must inform the family of the existence of the WILL or where no WILL is found the family may visit Probate Departments of any of the State High Courts to inquire and carryout a search for a WILL of a deceased. Where the WILL of a deceased is found by any means, the family is expected to be given a date for the unsealing of the WILL. On an agreed day, a sealed WILL will be shown to all present and same will be opened and its content read out before the people present in a court room or in the lawyer’s office or even in the deceased’s residence.

Often times, makers of WILL appoint legal representatives (executors); being persons that will manage and administer the estate (properties) until such property is given/assented to the beneficiaries of the WILL. Legal representatives carry out the wishes of a dead person as stated in his WILL in trust for the beneficiaries. Where a person has been appointed as an executor, such an executor is expected to apply to a State High Court for a Grant of Probate (Letter Of Execution). Probate is the authority from a State High Court that validates the powers and functions of an executor even though such executor was appointed by a WILL. Executors can be of any number; there is no limit. That someone was mentioned in a WILL as an executor does not give such a person a right to start managing the deceased’s property without a grant of Probate by a State High Court except in exceptional situations in the interest of the estate. Steps towards obtaining a grant of Probate cannot be initiated until 7 days after death of a deceased. The procedure for obtaining a grant of probate where a WILL is disputed (contentious) is different from that where a WILL is undisputed (Non contentious); both will be discussed below.



STEP BY STEP GUIDE ON OBTAINING A “PROBATE”.

A WILL may be disputed or undisputed, Non-contentious, common OR disputed, contentious, solemn. A WILL is said to be disputed, contentious and solemn when the people concerned in the WILL are contesting the validity of the entire WILL or parts of it. It may be their claim that a WILL was not signed by the purported maker, or was signed by the purported maker under fear, duress, insanity or without witnesses etc. Often times, an interested person writes and sends a “CAVEAT” (in this context, it is a written notice given to a court or Judge warning it not to admit, hear and accept a particular WILL). Hence, instead of executing such WILL, court will first consider such caveat, contest and verify the protests therein. After a careful evaluation and assessment of evidence, court may hold the WILL as valid or invalid. Where a WILL is held by court as VALID, the executors and beneficiaries will go on to obtain grant of probate. Where court holds that a WILL is invalid, such a WILL can never be used by any person. The property/estate of the deceased will be treated as if there was no WILL at all (deceased died intestate).



1. SEARCH AND REQUEST FOR “WILL”

Where there is a WILL in custody of a deceased’s lawyer, such a lawyer has a duty to intimate the family of the deceased, fix a date, time and venue to unseal and read out such WILL.Where WILL is in the custody of the Probate Department, of a State High Court, the lawyer is expected to write to the Probate Department, announcing the death of the deceased and seeking a date, time and venue for the deceased’s WILL to be read out. Death certificate of the deceased must be attached to the letter. It is advised that lawyers register and safekeep WILLs in Probate Departments/Registeries during the life time of their clients instead of keeping same themselves. Please note that where a person dies in a hospital doctors issue death certificate but a death certificate for any kind of death at any place can be obtained from the National Population Commission (NPC). NPC has desks and staff in major hospitals across the nation. Read my wok on "HOW TO OBTAIN BIRTH AND DEATH CERTIFICATES IN NIGEIRA".

2. PRESENTATION, UNSEALING AND READING OF “WILL”

In an open court by a Probate Registrar or in a law chamber by a lawyer on an agreed date and time, a deceased’s WILL may be presented to all persons present to confirm that such WILL is still sealed before it is unsealed, opened and read out to all. WILL will state property (assets and liabilities) given out, people to receive such property, terms and conditions for receipt such property, if any and people to manage same among other instructions.

In some cases, a lawyer present, unseal and read out WILL in deceased’s house; I detest such practise. It is unprofessional and exposes such a lawyer to an unimaginable occupational hazard.

3. APPLICATION FOR GRANT OF PROBATE.

Firstly, “Probate” is a letter of authority given by a court of law to person(s) mentioned in a WILL to manage property of a WILL-maker(deceased) for themselves and or for others. No person whose name is mentioned in a WILL as an executor (managers of the property of a deceased) or a beneficiary (recipients of property in a WILL) can manage or receive such a property from a WILL without applying and receiving a grant of “Probate” from a law court.

Persons named in a WILL as “Executors” are expected to obtain a grant of probate, by making a written application for probate attached with copies of “WILL”, “death certificate of the deceased”, “Declaration on oath byexecutors”, “Oath/justification by sureties of the executors”, “completed bond by the executor(s) to cover the assets and liabilities of the deceased”, “inventory of the deceased’s property (movable and immovable)” and passport photographs of the executors. Where there is a WILL but no executor was appointed by the maker in the WILL, court will appoint executors; often times court will appoint the beneficiaries as executors to the WILL.

4. GRANT OF PROBATE

Where the executors have complied with the above requirements, a Probate Registrar will grant probate to the applicants. With the PROBATE, the executors can then administer, manage,share, sell, lease, use, sue and be sued the property of the deceased as if they were the deceased himself; because they have stepped into his shoes. Where executors are different from beneficiaries, such executors upon obtaining a grant of probate are equally empowered to share, devolve, vest, transmit and transfer the property of the deceased to his beneficiaries according to the deceased’s WILL. Please note that, on issues of land in Lagos State and most states of the former Western Region of Nigeria, executors can only transfer/vest ownership of land of a deceased to his beneficiaries through a “DEED OF ASSENT”.

Any one that tampers with property of a deceased person without a “Probate” or a “letter of administration” can be sued both in criminal and civil laws.


B. WHERE THERE IS NO VALID “WILL”.

Due to limited space, this part and more are contained in PART 2.


Thank you.

See original text and more via https://www.learnnigerianlaws.com/index.php/law-articles/family-law/21-how-to-recover-property-of-the-dead?showall=1

RIGHTS OF A TENANT IN NIGERIA.

By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

LINK TO ORIGINAL TEXT; https://www.learnnigerianlaws.com/index.php/law-articles/landlord-and-tenant-law/24-rights-of-a-tenant?showall=1

Just as the human fingers vary, so do human status, situations and endeavours vary. At different times, locations and situations in life you are either a tenant or a landlord or even both. You may be the owner of your residence while you are a tenant in your office complex. They can never be a tenant without a landlord. For more on landlords rights and duties, read my article; RIGHTS OF A LANDLORD. Due to the African undue attachment to land and landed property so much attention and superiority is added to the status of “Landlordship”. This makes up for the ill treatment the so called landlords do met out to their often poor tenants.

The Nigerian law is all encompassing and people-welfare oriented. The law went on to provide an avalanche of rights, duties and privileges for tenants. Am set to outline and dwell in the details on the rights, duties, privileges, powers and remedies open to tenants in Nigeria, as a whole.

A tenant is declared a lesser human being against the wishes of the constitution as many times as his/her rights are trampled on. The law will always lean in favour of a tenant and to safeguard him properly while he strives to acquire his own premises. Here are some of the rights open to tenants in Nigeria, today;


♯1: RIGHT TO A WRITTEN AGREEMENT.

Agreements generally can be oral or written. In this century, oral agreements seem awkward especially when it is executory (yet to be executed) and involves huge considerations from the parties to it. It is advised that agreements are written, on that note a Latin maxim says that “Quo scripti scripti”, what is written is written and another adds that, “quo scripti mante”; what is written remains. For the avoidance of doubt, ambiguity and misunderstanding of the intentions of the parties (landlord and tenant) at the time of their agreement, our courts encourage tenancy agreements to be in writing. This will aid both parties to outline their terms and conditions expressly. The law makes the writing of tenancy agreements mandatory for tenancies above three (3) years while tenancy below three can be orally or written. Generally to be on the safe side parties are advised to put their agreements in writing even if it is for a week tenancy.

Tenancy agreements are to contain in details the names of a landlord and his tenant; as parties to the tenancy agreement. The land or house to be rented out ought to be described in details; showing its location and basic features. The duration of the tenancy, the rent payable and the date at which such rent would become payable should be stated. The modalities for reviewing rent price (increment in price) should be included. Above all, the duration for any “Notice to Quit” to be served on the tenant should not be left out. Other terms, conditions, and covenants that can be added are; who makes repairs on the house, how and who pays for accruing bills and expenses (water, electricity and sanitation bills). In making the tenancy agreement between the landlord and the prospective tenant both parties are to execute the agreement by signing and dating it before their respective witnesses (at least one witness for each party). Post office stamp should be affixed to the agreement to enrich its probative value (make it recognised in law and acceptable in court as an evidence).

In reaching a tenancy agreement a tenant ought to be as wise as a serpent since he will extend or shorten his freedom by the contents of the agreement. Nigerian landlords are too busy to enter into contracts with all their prospective tenants and equally too stingy to seek for the services of lawyers. Consequently, most landlords duplicate a single tenancy agreement and use same for all their tenancy agreements irrespective of their varying conditions and terms; thereby leaving some intentions unexpressed. Prospective Tenants like “money borrowers”, are always desperate to obtain tenancy/accommodation irrespective of any draconic conditions attached to such. Many tenants even move into property and live for years before remembering to seek for a written agreement. A tenancy agreement couched by a lawyer for a landlord might often be confusing and a bit unfavourable to a prospective tenant. It might take a lawyer to peruse such and properly advise a prospective tenant on terms and covenants to add or remove from such tenancy agreement.

Prospective tenants are advised to seek the services of their solicitors before signing or agreeing to any unclear terms of any tenancy agreement. Never go into any tenancy agreement orally; even if it is for the least of property or for the shortest of terms. Let the friendliness and joy of today not becloud your sense of reasoning else tomorrow may be sour.


♯2: RIGHT TO ISSUANCE OF RECEIPT OF PAYMENT.

Payment of rent is a vital part of tenancy albeit not proof of existence of a tenancy. It is often one of the covenants of a tenancy agreement. Payment of rent can help a court in calculating the duration for a valid Notice to Quit, where there is no agreement. Prove of payment (receipt) is needed in the calculation of a mesne profit (rent incurred by a tenant after the expiration of a valid “Notice to Quit” served on him) and even arrears of rent (rent incurred by a tenant while in a valid tenancy with his landlord). It can equally clear off any allegation of contravention of a valid rent clause (timely payment of rent). Hence, a tenant is entitled to the receipts of payment of his rent; for it is a proof of payment therein.

The receipt of payment is an acknowledgement from a landlord (or his agent) that he has received rent from a tenant. It must contain the name of the landlord and the tenant, the amount paid and the date of such payment. The property for which such payment is made, the duration that such payment will cover and the signature of the receiver must also be on the receipt.

It is an actionable offence to refuse to issue a receipt for rent paid and received. It is your right as a tenant to be issued a receipt upon payment of rent. Where the payment is only a part of the whole, it should also be receipted and same stated. Remember a written agreement endorsed by the landlord before a witness that he has received a rent from his tenant will suffice. No matter how familiar, friendly, corporative and caring your landlord is, please always demand for receipts of your paid rents to safeguard your tomorrow.


♯3: RIGHT TO PEACEFUL ENJOYMENT OF PROPERTY.

A tenant pays his rent to his landlord for the landlord to grant him a peaceful and serene enjoyment of the landlord’s property within an agreed period to the exclusion of all other persons; the landlord inclusive. No tenant pays to be offered an uninhabitable apartment, dilapidated property, unsecured environment or a contentious accommodation. Once payment is made and tenancy commence the tenant has both legal and equitable rights over the said property. Hence the tenant holds and occupies the property to the exclusion of all other persons and even against the landlord since he holds a better and higher title than the landlord.

Consequently, a tenant has an absolute right over his paid flat, room, apartment or building. He determines entrance, usage, safety and can even sue for trespass against any trespasser; strangers, landlord and his agents. The landlord can supervise and maintain the property generally, but with the knowledge of the tenant and within reasonable hours of the day. Once a landlord rents out his property he has also rented out his supreme powers over the property although he still has reversionary interest (right to take back property at the expiration of tenancy). So why should a tenant upon his rent worship and tremble before his landlord like a semi-god? Why should a tenant tolerate a landlord who breaks and enters without into the tenant’s premises without consent? Why should a tenant be enslaved and turned into a sanitary attendant by his landlord whom he pays rent as at when due? The above happen when and where the tenant is ignorant of his rights as a tenant! Let such a man/woman consult a lawyer and report cases of criminal trespass to the nearest police station.


♯4: RIGHT TO A VALID NOTICE TO QUIT.

Generally, going by the dictates of our law no landlord can evict his tenant whether he is in debt or not by throwing him out of his premises. The legislatures in consideration of our conservative Land Use Act have enacted series of tenants-friendly Acts and laws. A tenant cannot be thrown out of his apartment unless there is a strict compliance by his landlord with of relevant Recovery of Premises Law.

Recovery of Premises Law provides that a valid “Notice to Quit” (Quit Notice) of a landlord’s intention to terminate/quit the tenancy of the tenant must be written and served on the tenant. The law went on to provide durations for “Notice to Quit” for varying tenancies. It provides that a one (1) year or above tenancy will require at least a six (6) months notice. Monthly tenancy requires one (1) month notice while a weekly notice requires one (1) week notice. Note that by tenancy agreements the landlord and tenant can agree on a different duration for Notice to Quit. By the agreement of both parties a yearly tenancy for which the law provides a six (6) months “Notice to Quit” can be reduced to a week or a month notice. Some tenants can even sign to a tenancy to be evicted without a “Notice to Quit”. The law honours and respects the agreements of parties and will implement it to the last of letters.

A diligent tenant before agreeing and signing to a tenancy agreement should carefully read and understand in details the provisions of his agreement documents. Better still, the service of a lawyer can be sought to help in perusing and interpreting the contents of the agreement. Remember the law does not and will not care to know that a tenant did not understand or never knew the law before signing his agreement; “ignorantio legis non excuse” (ignorance of the law is no excuse). When a tenant signs a lawful agreement that limit his rights he will be bound by such same agreement; “violentia non fit injuria”. And such party cannot be allowed to plead that he never signed such agreement (non est factum).

Please, do note that when a tenant owes his landlord for (3) three consecutive months, the landlord can dispense with the issuance of a “Notice to Quit” on such tenant. Where tenancy has expired by time and there is no new and subsisting tenancy, the landlord can also recover his property without issuing a “Notice to Quit”, although he is expected to adhere to other conditions.

A valid “Notice to Quit” must contain the name of the landlord, the name of the tenant, the address of the property occupied by the tenant, date the notice will commence and date it will end. It must not end when a tenancy is still running and valid. Such notice must be calculated in a way that it ends on the eve of the anniversary of a subsisting tenancy, for yearly tenancies. Where it is a monthly tenancy it must expire on day of the anniversary of a subsisting tenancy. A “Notice to Quit” that those not contain all the above necessary information, can be vitiated by a court of competent jurisdiction. A tenant who is not clear on the contents of any Notice served him should see his/her lawyer.


♯5: RIGHT TO A COMPULSORY (7) SEVEN DAYS NOTICE TO RECOVER PREMISES.

“Seven (7) days Notice of Owner’s Intention to Recover Premises” is a notice from a landlord’s lawyer notifying a tenant upon whom a “notice to quit” had been served and same had expired; that the lawyer will after seven (7) days from the date of the service of the Notice proceed to court to recover the over- held premises on behalf of the landlord.

In the light of the Law’s determination to protect the often humiliated tenants in Nigeria, it went on to provide that aside the service of a valid “Notice to Quit” on the tenant, the landlord must go on to serve a “(7) Seven days Notice of Owners Intention to Recover Premises”. The law would not encourage a scene where surprises are sprang upon tenants; hence a tenant must at all times be accorded adequate time to quit possession.

A “(7) Seven days Notice of Owner’s Intention to Recover Premises” can only be served on a tenant after the expiration of a valid “Notice to Quit”. Where a seven (7) Days Notice is served before a “Notice to Quit” or during the life span of a “Notice to Quit”, such is invalid and goes to no issue. A seven (7) days notice is to be calculated from the day after the service of the notice on the tenant and not from the day of service. If the notice is short or less by just a day it is a good ground for the court to reject the legality of such. Let no one threaten you by serving a defective Notice on you or a court order that you should vacate premises without all the above statutory notices. Just speak to you lawyer first.


♯6: RIGHT TO A STATUTORY TENANCY.

A tenant after the expiration of a valid “Notice to Quit” on him and he still maintains possession without the revocation of such notice or paying of rent, he is said to be holding such against the rights of the landlord. Even at this stage the laws will still frown at a landlord who goes on to throw out his tenant without proceeding to court for such an order. The law still allows such a tenant to maintain possession although no longer as a tenant of the landlord rather as a tenant of the law (statutory tenant). As a statutory tenant he is not mandated to pay rent to his landlord although a court can order him to pay up all rent (mesne) he accumulated within such period after determination of a suit on such.


♯7: RIGHT TO FAIR HEARING.

The 1999 Constitution of the federal Republic of Nigeria (as amended in 2011) in its fullness and supremacy has provided all persons in Nigeria with some inalienable Fundamental Human Rights of which one of them is a Right to Fair Hearing. No person (tenant) can be tried in a competent court without his/her own part of the matter being heard before judgement is passed. So no tenant can be evicted by court without hearing from the tenant. Some landlords in their wickedness and criminality do procure strangers to pose as sued tenant to deceive the court and procure judgement. If a tenant suspects that his landlord has gone to deceive the court; let him immediately seek the services of a lawyer.


♯8: RIGHT TO SUE LANDLORD FOR TRESPASS.

A tenant has the right to sue a landlord who pays deaf ears to the provisions of the law and goes on to throw out him out. The above detailed procedures are not mere academic literature rather valid and subsisting procedure for the eviction of tenants in any part of Nigeria. Once a tenant is in occupation of premises then he has all rights over the premises and the law will not allow his landlord to trespass against such.

The court will not hesitate to slam the hammer on a landlord that throws the laws to the winds. Let a tenant seek remedy in court by consulting a lawyer. He should equally complain to the Nigerian Police of such trespass, to investigate such and prosecute the landlord for criminal trespass. All persons are equal before the law and a landlord is not in any degree a master or lord unto his tenant; not a “tenant-lord”. For more on rights ad duties of a landlord, click on "RIGHTS OF A LANDLORD".

Thank you.

SEE ORIGINAL TEXT AND MORE VIA https://www.learnnigerianlaws.com/index.php/law-articles/landlord-and-tenant-law/24-rights-of-a-tenant?showall=1

Procedure And Requirements For Obtaining NBA Lawyers’ Stamp, Insurance Policy, Prepaid Cards, Lawyers Verification Exercise - Plus Downloadable Forms

By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

LINK TO ORIGINAL TEXT: https://www.learnnigerianlaws.com/index.php/law-articles/law-in-practise

Compliments of the season. Wishing us all a more fruitful year.

Hope we all have got NBA stamps. Enforcement has commenced in courts and government agencies. Non adherence will surely be a preliminary objection. Supreme Court holds that documents without NBA stamps are voidable albeit not void. I urge you to endeavour to apply and obtain your own NBA seal. Presently, stamps issued since 2015 expired on 31 March, 2016 birthing the need for new stamps.




Presently, NBA has commenced the issuance of yearly Bar Practicing Certificate. It's no longer bank tellers or receipt, reach you NBA Branch Chairman for yours after paying your Bar practicing fee.

TO GET NBA LAWYERS STAMPS.

YOU NEED TO:

1. complete stamp an application form with your passport photograph &enrollment No.

2. Pay at least N4000 into access bank account number written on the application forms, for a pack of 96 stamps. (Nb. One can pay for more than a pack. Every Stamp expires on the 31st of March each year after production. In 2015, a pack of stamps contained 120 stamps for N4, 000)

3. Complete lawyers data verification/update form with a passport photograph, copies of: call to be certificate, mean of ID, proof of payment of current Bar practice fee, branch dues and proof of payment of N2000.

4. Both the verification form and seal application forms are to submitted to Local Branch Chairman or the NBA National secretariat.

ON INSURANCE

NBA has insurance scheme for lawyers. The only requirement to be eligible is your proof of payment of the current annual practicing fee.
NBA and Lead way Assurance Company Ltd are responsible. Please maxmise your practicing fee by enjoying this consequential package, there are no other charges.

ON NBA PREPAID CARD

It is a custom-made debit card for lawyers through Access bank. You don't need an account with access bank to obtain it. Your eligibility is your being a lawyer. It gives you room to transfer money into the card and use it like you use your ATM cards on Pos, Internet and other platforms.
It offers the holder lots of discounts on hotels, flights, shops, and other NBA partnership institution. It gives you room to avoid using your ATM which can be hacked and your millions affected. The card is tied to no account, so it's only what you transfer into it stays in it.
To obtain it you need to complete it's form with your passport photograph.

Below are copies of all necessary forms.

Thank You.

Download application forms via https://www.learnnigerianlaws.com/index.php/law-articles/law-in-practise/18-procedure-and-requirements-for-obtaining-nba-lawyers-stamp-insurance-policy-prepaid-cards-lawyers-verification-exercise

HOW TO BE LEGALLY MARRIED IN NIGERIA

By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

Courtship is not marriage neither is a loose partnership of opposite sex marriage. Living together and making of babies doesn’t connote marriage. Hear this, going to a church and being declared “man and woman” without an earlier strict observance of legal marriage requirements is no marriage in the eyes of law. A purported union with one who is validly married is not a marriage. No matter how valid a marriage is in the eyes of the couple, clergy, relatives, church and the society, it must equally be valid before the law for it to be legal. The Bible urges us to respect laws and constituted authorities; for a marriage to be legal it must be in accordance with the provisions of the Marriage Act of 1949 except for traditional marriages, irrespective of the religious inclinations of the couples.



Woe betide, a being who lives in a celebrated delusion that seems like a perfect union, believing he/she is in a legal marriage, for he/she isone in an illegal contract that can never be enforced while his/her children of such mirage are on a perpetual unmeritorious regret. The legality of your marriage may not border you now, until issues of rights, privileges, international employment, travel visa, will, inheritance, divorce, child custody, guardianship, annuity, insurance and burial arises. Before it gets dark, this article is to guide you on making and contracting a valid marriage in the eyes of the law.

Marriage is a union between one man and one woman for life to the exclusion of all other persons(that is, English marriage/statutory marriage). It is a sacrosanct union that begets lots of rights, benefits, duties, privileges and responsibility for its couples and offspring of such union. To say the least,couples (husbands and wives) are protected from certain criminal charges and responsibilities, their children enjoy exclusive rights to inheritance while native law and custom cannot bound or limit them. In the Nigerian traditional and customary law system, marriage is not restricted to just a man and a woman rather a man and many wives and vice versa. Such marriage does not enjoy the full rights accorded to English marriage (that is marriage according to the law). In the eyes of the law, marriage is only what the law (Marriage Act) says is marriage. It is obvious, that in our present day Nigeria, many couples perform both English marriage (often referred to as “white wedding” “church wedding” and “court wedding”)and traditional marriage (often referred to as “Igba-nkwu”) to satisfy all interests and pressure. That is okay, and acceptable in law. Same couple (the same husband and wife) can marry each other under the traditional/customary law and subsequently marry eachother under the law. Buta man or a woman married under the traditional/customary law cannot subsequently marry according to the law a different person other than his/her customary wife /husband.Doing such is an offence punishable with five years imprisonment (section 46 of Marriage Act). Hear this, it is an offence for same couple to first marry according to the law “English Marriage” and then subsequently marry themselves according to the traditional/customary law. Such act is punishable with five years imprisonment as prescribed in section 47 of the Marriage Act. Many couples in a bid to maximise time, minimise cost and avoid waste are guilty of the above offence. Hence the trend of “white wedding” in the morning and traditional marriage in the afternoon or anytime later is illegal and a punishable offence.

STEPS TO A LEGAL ENGLISH MARRIAGE?

In our modern contemporary society, many desire and strive for a decent home and a lovely married life but often time don’t get such owing to their ignorance. Many plan and celebrate their marriages without consulting their lawyers to educate and advise them on proper and legal means to marriage; hence they end up living in a web of error.

There are laid down procedures and requirements that must be fulfilled before a marriage can be said to be legal and lawful according to the Nigerian marriage Laws.TheMarriage Act of 1949 governs all valid marriage to be made in Nigeria or outside Nigeria (among two Nigerians in the Nigerian High Commission). Please note that no other way or style or method of English marriage is accepted and legal except that to be explained below. The step is essential and sacrosanct. Whether you want your bishop, archbishop or court to wed you, you must start the process from step 1 and end in step 3. In summary, couple must give notice of their marriage to the Registrar of marriage in their local Government Area. The Registrar would in turn register such notice in the “Marriage Notice Book” and equally cause same notice to be published on his door and notice board at the local government office for twenty-one (21) days. During the twenty-one days people are expected to report any reason why the potential couple should not be wedded. Where there is no protest from the public to such impending union, at the expiration of 21 days, the Registrar of Marriages shall issue a Registrars’ Certificate to the couple. The certificate empowersthe concerned couple to go ahead and celebrate their marriage (exchange of vows) within three months. Such exchange must be done in public, often in a licensed place of worship (church) and before a registered clergy. (At that stage, people refer to such as “church wedding”). Some couple prefer to celebrate their own marriage (exchange vows) not in a church rather in the office of the Registrar of marriages, before the Registrar of marriages and a few witnesses. (At that stage, people refer to such as “Court wedding”). In all the two methods are same, from same origin and with the same legal benefits and responsibilities (it is a matter of convenience).

STEP 1:

Give Notice Of Marriage To The Registrar Of Marriage:

In Local Government Areas there are Registrars of marriages, who register marriages conducted within the Local Government Areas. The Registrars often have offices in Local Government Area headquarters. The first step to a valid marriage is the giving of notice of marriage to the Registrar of marriages by intending couple. The notice is given by filling and signing a form after payment of a prescribed fee in the office of the Registrar. The Registrar of marriages would cause the notice to be entered in the “Marriage Notice Book” and same published on the outer door of his office and the notice board of the Local Government Area.

After the expiration of 21 days from the day of publication of notice, the Registrar shall issue a “Registrar’s certificate” to the couple, where there were no objections from the public against their proposed marriage. The Registrar’s certificate is a proof that notice of such marriage had been given and that couple should go ahead to celebrate their marriage in any church/mosque or the office of the Registrar. Please, note that certificate can only be issued where the couple are not blood relations and one of the couple has been resident within the Local Government Area of the intended marriage for at least 15 days and none of the couple is below 21 years of age or married to another person.

STEP 2:

Celebrate Marriage In licensed Church or Office

Three (3) months after the issuance of a Registrar’s certificate by the Registrar of marriages, the couple are expected to visit a licensed place of worship (licensed church/mosque building) or stay in the Registrar’s office to celebrate their marriage. Every celebration of marriage in a church must be done between the hours of 8.00 am and 6.00 pm in the presence of at least two witnesses apart from the officiating minister. If it is to be celebrated in the office of a Registrar of marriage it must be between the hours of 10.00 am and 4.00 pmwith open doors. If after the expiration of 3 months from the date of issuance of such Registrar’s certificate, the marriage is not celebrated all notices and certificate will become void. And, all processes must start afresh for a valid marriage to emanate again.

Celebration of marriage must be either in a licensed place of worship (church/mosque building) under the supervision of registered clergy of the religious body (church/mosque) or in the office of the Registrar of Marriages. Please, be warned that it is not all churches, ministries, prayer centres and outfits that are licensed places for celebration of marriages. Note further, that where a church is a licensed place for celebration of marriage, it is only the recognised minister of the church that can wed people in the church. Hence, for example, it will be illegal for a catholic priest to wed a couple in an Anglican church.Let it be known to all that all valid marriages starts from step 1 and the certificate obtained in step 1 gives couple power to embark on step 2. No one can jump step 1 and start his/her marriage by mere celebration of marriage in church. Although, it is not out of place to equally give 21 days notice in the church (marriage ban) such can never substitute that to be done through with the Registrar of marriages. Churches and clergies/ministers are advised to desist from wedding couples who have not obtained a Registrar’s Certificate empowering them to celebrate their marriage for it is an offence punishable with five years imprisonment (section 42 Marriage Act). A marriage celebrated in an unlicensed place or by an unrecognised minister of a religious body is null and void, if couple knowingly and wilfully acquiesced to such celebration.

While some people celebrate their marriage in the church, some prefer to do same in the office of the Registrar of marriages. Ignorantly, people refer to such celebration as a “court marriage” and do get unnecessarily scared of such, believing it to have more legal responsibilities and weight. A celebration done either in church or in Registrar’s office after the issuance of Registrars certificate to do so has been issued, are of same legal effect.

STEP 3:

Signing of Marriage Certificate:

Marriage rites do not end with exchange of vows rather with signing of marriage certificate by the couple before their two (2) witnesses and the officiating minister (clergy). Just like any other contract, what had been orally exchanged must be evidenced in writing via a marriage certificate.

The Registrar of marriages sends “books of marriage certificates” in duplicate and with counterfoils to all licensed places of worship. Immediately, after the celebration of marriage, the officiating priest would provide the book, fill its form and have same signed by the couple, their witnesses and himself. The officiating minister must offer deliver to the couple their marriage certificate while he retains a duplicate. The duplicate must be sent to the Registrar of Marriages within seven (7) days after the celebration of marriage. The registrar of marriage upon receiving such certificate files it. Couple are advised to make sure the officiating priest transmits their marriage certificate duplicate to the Registrar of marriages for proper filling.

I must state that in special circumstances, the minister of Internal Affairs may issue a License to Marry to couples which will authorise their celebration of marriage at any place/venue they so desire and without a registrar’s certificate but before a recognised clergy or the Registrar of marriages. It should be noted that a marriage is invalid if, in the knowledge and wilfulness of the couple:

a. It was celebrated under a false name or names or

b. It was celebrated without a Registrar’s certificate or

c. It was celebrated in a place other than a licensed place of worship or the office of the Registrar of marriages or

d. It was officiated by a person other than a recognised minister of some religious denomination.


Thank you!

See original text and more via; https://www.learnnigerianlaws.com/index.php/law-articles/family-law/10-how-to-be-legally-married

REGISTRATION OF TRADEMARKS IN NIGERIA.
By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

WHAT IS TRADEMARK?

Over time in business and life generally, individuals, partnerships, corporations, organisations and companies have developed, designed, created, coined, formed and used certain distinctive names, logos, crests, flags, badges, symbols, signs, patterns, formations, processes and drawings to differentiate themselves from others; owing and using same exclusively. In today’s world, a circled letter “Y” is owned by Mercedes, GMC is owned by General Motors Corporation, LEX10® is owned by Lex10 Law Technologies, HP® is owned by Hewlett-Packard Company , Closeup® is owned by Unilever Nigeria Plc, MR.BIGG’S® and GALA® is owned by UAC foods Plc and Blackberry® is owned by Research in Motion etc. All those are names, logos and products used in business by their respective owners to the exclusion of all other persons and companies in the parts of the world, where they are registered. To retain customers and clients, create a renowned brand and fight piracy, registration of trademarks becomes very necessary.

Trade Mark is a distinctive sign, mark, symbol or indicator which distinguishes goods and services of an enterprise (individual, company) or any legal entity from those of others in a given class. It could be in the form of words, letters, numbers, drawings, shapes, labels, colours, pictures or combination of all or some of the above elements. Trade mark is an intellectual property that is registrable under the law and protected by the law. An unauthorised use of a trademark is actionable in law. In Nigeria, trademarks are protected under the TRADE MARKS ACT, CAP T13, LFN 2004.


DIFFERENCE BETWEEN TRADEMARK REGISTRATION AND COMPANY REGISTRATION.

Please, note that registration of Trademarks is quite different from registration of legal entities (business names, companies, partnerships, churches and other organisations) and equally regulated by different government agencies/bodies. The registration/incorporation of legal entities (business names, companies, partnerships and churches etc) is handled by the Corporate Affairs Commission (CAC) with its headquarters at Plot 420 Tigris Crescent off Aguiyi Ironsi Street, Maitama District, Abuja. The Corporate Affairs Commission (CAC) has offices in all most all the 36 states of the federation. Registration of Trademark is handled by the Registry of Trade Marks, Patents and Designs, under the Commercial Law Department of the Federal Ministry of Commerce and Industry. It is presently at the Old Federal Secretariat, Area 1, Abuja. A name can be register as business name or company or partnership or church in the Corporate Affairs Commission and equally registered in the Registry of Trade Marks, Patents and Designs, Ministry of Commerce and industry as a Trademark too.

Note further, that no registration in any of the two separate government establishments is an automatic registration in the other or a waiver to the other. Registration in either of the government offices does not supersede the other; they are parallel lines. For example, a name “Bezaleel Plastics” registered under Corporate Affairs Commission by “Mr. A” as a business name can also be registered as a Trademark under the Ministry of Commerce as a Trademark by “Mr. B”. Unfortunately, the both government agencies do not liaise and verify from each other before approving and reserving names for customers; it is a “first come, first have” affair. “Mr. A” can operate his plastic industry with such name but may never use such name on his products and services because he is not the owner of the name under trademark law. “Mr. B” can create and produce products, services and brand them with his registered trademark name but can never own a company or business name with such name because he is not the owner of the name under the Company law (Corporate Affairs Commission). Hence it is advisable, to register names under both establishments for an endless business security to avoid passing-off. Business names and Companies should register their names under Corporate Affairs Commission and their several products’ and services’ names, symbols, logos and companies/business name logos under Registry of Trade Marks. Churches, clubs, associations, schools and societies should equally register their logos, symbols, signs and crest as Trademarks to avoid infringement.

Trademark is an essential tool that depicts the authenticity and source of products and services; fights piracy. An owner of a trademark may institute legal action for trademark infringement to prevent unauthorised use of his marks. An owner of a trademark can lease, permit or even sale his trademark to other legal entities; for example people build hotels and petrol stations then pay established and trusted brand names in business for franchise to use such established names. A trademark may be registered or unregistered; when registered the owner has lots of rights and higher protection of the law (he has an exclusive right to use his trademark and can institute action for an infringement on his trademark but for an unregistered trademark the owner can only institute an action for Passing-off under the Common law of Tort.


REGISTRABLE MARKS

The Registrar of Trademarks keeps a Register of all Registered Trademarks, the names, addresses of the owners/proprietors of such trademarks and all necessary dates to such trademarks. For a trademark to be registered it must fall within registrable elements by containing distinctive elements. An element will be held to be DISTINCTIVE if it will distinguish a product or service from others in a particular class. It must contain any of the following which must be DISTINCTIVE;

A name of a company or individual or firm, represented in a special or particular manner. Examples are Mark and Spencer®, Paul Smith®, TOYOTA®, LearnNigerianLaws® and LG® (the marks are names of individuals, firms and companies).
The signature of the applicant for registration or some predecessors in his business. Examples are: the unique signature of Mr. Arthur Guinness is part of the logo of Guinness Nigeria Limited and the signature of a renowned fashion designer Sir Paul Smith is his trademark.
An invented word or invented words. Examples “TEM TEM” by Rev. Fr. Ejike Mbaka (A roman Catholic priest), “Noting DEY HAPPEN” by Tuface Dibia (Nigerian musician), “SO MUCH MORE” by DSTV (a pay to air company) and “LIFE IS GOOD” by LG (an electronics manufacturing company), “PANADOL” by Emzor Pharmaceutical Limited.
A word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification or geographical name or surname. Examples are Nokia®, Lambrusco® and Oando™
Any other distinctive mark. Examples are the logos of Rolls Royce (Spirit of Ecstasy) and Apple Inc. (a Bitten Apple).


STAGES IN REGISTRATION OF TRADEMARKS.

There are basically 3 stages in registration of trademarks in Nigeria. Trademarks registration in Nigeria is governed by the TRADE MARKS ACT, CAP T13, LFN 2003. Registration is done in Registry of Trade Marks, Patents and Designs, under the Commercial Law Department of the Federal Ministry of Commerce and Industry (affiliated to World Intellectual Property Organisation). Legal practitioners and trademarks agents are empowered by the law to act as agents of entities in dealings with the Registry of Trade Marks, Patents and Designs.

Acknowledgement and Acceptance stage.[/b]
Firstly, an entity in need of registration of trademark is expected to make an application for same, attaching its desired trademark to the Registry of Trade Marks, Patents and Designs, under the Commercial Law Department of the Federal Ministry of Commerce and Industry. Note that certain statutory fees must be paid.

[b]Publication Stage
After an application for registration of trademark has been accepted, the Registrar of Trademarks will cause notice of such application to be published in the Trademark Journal. The publication will set out all conditions, terms and limitations upon which the application had been accepted.

Publication in trademark Journal is a notice to the public (like a marriage ban) calling for protests, opposition and objections to an application for trademark. Any entity who feels that a sought trademark may likely deceive, mislead or confuse the public with regards to existing registered trademarks, has the right to protest to the Registrar of Trademarks. Protests and oppositions must be sent to the Registrar of Trademarks within two (2) months of publication of notice in journal. A notice of opposition/protest must contain reasons (grounds) for protest.

The Registrar of Trademarks will upon receipt of a notice of an opposition to an application for a trademark, send such opposition to the applicant. Such an applicant is expected to respond to the oppositions by sending in a “counter-statement” to the Registrar within one (1) month from the date of receipt of the notice of opposition. A counter statement should contain the grounds showing that the applicant has exclusive right to the registration of the trademark or the proposed trademark is radically different from that of the opposition and will not confuse the public. Where an applicant fails to enter his counter-statement, he will be deemed to have abandoned his application and same will be treated as such.

Where the applicant sends in his counter-statement, the Registrar shall constitute a Tribunal to determine the conflict. The applicant and the complainant (opposition) will appear before the tribunal for hearing and determination of their claims. Whatever by the judgment of the Trademark Tribunal parties can appeal same to the Federal High Court.



Certification Stage
Certification stage is the final stage in the process of registration of trademarks. Certificate of registration of trademark is a prima facia evidence of the possession of exclusive right to use a particular trademark. A registered trademark appears with the sign; (a circled capital letter “R”) ®.

Where an application for a trademark was not opposed within the time for opposition or it was opposed but resolved in favour of the applicant, the Registrar of Trademarks will issue a certificate of registration to the applicant.

Where an opposition to an application for registration of trademark is resolved against the applicant, the Registrar of Trademarks will send a Letter of Refusal to the applicant.

No entity can claim the registration of a trademark where there is no certificate; hence stopping at any of the preceding stages of registration is not proof of registration. Please note that the publication of application for registration of trademark on the Trademark journal is not a proof of registration or an assurance of same.

Take Notice that a registered trademark is for a period of seven (7) years, but may be renewed from time to time via an application for renewal made to the Registrar. Renewed registration is valid for fourteen (14) years from the date of expiration of the original registration or of the last renewal of the registration.




SALE, ASSIGNMENT, USE AND NON-USE OF TRADEMARK

Just like any other property, a proprietor (owner) of a registered trademark can sell, transfer and lease out his trademark to another person or entity. Such proprietor upon assigning his trademark to its buyer should issue receipt for the transaction. Upon the death of a proprietor of a trademark, his trademark can be transmitted to his heirs. A person who becomes entitled to a trademark by assignment or transmission is expected to make an application to the Registrar of Trademarks for such assignment and transmission to be registered.

A proprietor of a trademark can allow certain persons/entities to use his trademark with him. Such is referred to as “Permitted Use” and a permitted user is expected to apply to be registered as a “Registered User”. A registered user of a trademark has only the right to use a trademark and not proprietorship/ownership of such trademark. A registered user unlike a trademark owner/proprietor cannot sell, assign or transmit his right to use.

Note that, if after a continuous period of five years or more from the date of registration of a trademark, there is no bonafide use of such registered trademark or the trademark was registered without a bonafide intention to use same or such trademark had been registered by another proprietor earlier, the Registrar will take off such trademark from the register of trademarks. The Registrar will do such on the ground of Non-Use of a registered trademark.

Conclusively, trademark gives you a mark of authenticity, ownership and security in business. A good trademark is an integral part of business goodwill/franchise which are saleable and are equally loud voices in marketing, branding and customer-retainership.

Thank you.

- See more at: http://www.learnnigerianlaws.com/index.php/law-articles/commercial-and-corporate-law/22-registration-of-trade-marks?showall=1#sthash.KzikwwGK.dpuf

Yes, I do. Such can be registered either as a business name or a company. The cost depends on lots of variables. So, it will be determined depending on what you really want to achieve. You can write me personally via my email on the article. Thanks.

Interesting15:
Do you have an idea about registering a tech or an online business?

How much should one budget?

THANKS FOR READING. THERE IS NO STANDARD PRICE LIST FOR THEM. PRICE HAS A LOT TO DO WITH SHARE CAPITAL TO BE REGISTERED, WORK PERIOD, EXPERIENCE AND PRACTISE STANDARD OF THE LAWYER DOING THE WORK. SUCH WILL BE BETTER DISCUSSED OFF HERE, onyekachi.umah@gmail.com or 08037665878. THANKS.

eay:
I really love this piece
Pls...can you give the price list of registering the various business sectors?

THANKS FOR READING. WELL IT CAN BE FRUSTRATING; SEARCHING NAMES. I ADVICE YOU USE UNCOMMON WORDS AND MAY BE NON ENGLISH AND NATIVE. GETTING WORDS WITH LATIN, FRENCH AND ACIENT ORIGIN MAY HELP. ALSO TRY INVENTING WORDS TOO.

geez18:
you won't see people rushing here to read because its not business as usual for them.
OP nice one.

OP is there any advice you can give as to how a prospective company owner should go about choosing a company name? it can be pretty discouraging when one has to repeat the name search several times before finally getting an approval for a company name.

thanks

[quote author=LearnNigeriaLaw post=49210084]LEGALITY OF GOVERNMENT’S COMPULSORY ACQUISITION OF LAND AND PAYMENT OF COMPENSATION PART 2
By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com



COMPENSATION FOR COMPULSORY ACQUISITION OF LAND

If you lend a car to a friend for a specified period of time but you suddenly need the car after your friend had filled its fuel tank; you may pay your friend for his unexhausted petrol. You will not pay for your car but for the petrol. This is what happens in compulsory land acquisition for public interest and payment of compensation. The lands are vested on the governors of states, who sub-lease same to people who in turn pay annual ground rent to them. Where in a governor wants to compulsorily take back (acquire) land, the Governor need not pay anything to any person for the land. Rather the governor MUST pay for the improvements, developments, structures and expenditures on such land. Compensation is for legally acquired lands and not fake or unapproved land tiles; you cannot benefit from your own illegality. So, note that government does not compensate for land rather for the unexhausted improvements/developments on lands legally and duly acquired by its holders/occupiers. Where a compulsorily acquired land is just a bare land no compensation can be paid. Land is and will always be that of government while the improvements on land are yours and entitles you to compensation. Hear me very well, no matter the length, width and largeness of your land, no government will compensate you unless there is an improvement/developmenton your land. (See, Section 29 of the Land Use Act, 1978).Improvements “means anything of any quality permanently attached to the land, directly resulting from the expenditure of capital or labour by an occupier or any person acting on his behalf, and increasing the productive capacity, the utility or the amenity thereof and includes buildings”, (See, Section 51 of the Land Use Act, 1978). Improvement/ expenditures includes;building, installation (mechanical apparatus), amount of the replacement cost of the building, crops on land, plantations of long lived crops or trees, fencing, wells, roads and irrigation or reclamations works, but does not include the result of ordinary cultivation other than growing produce.

Government does not just pay for improvements/development made on land rather for the value of the unexhaustedimprovements. It means that government will consider “Depreciation” (wear and tear) on the improvements while calculating compensation to be paid. So, government will pay you for the unexpired, unfinished, unexhausted part or value of your improvements. Well, government employs professional valuers to access the value/worth of improvements to be paid and interest therein. Government will pay interest on delayed compensation at the prevailing bank rate placed by Central Bank of Nigeria. Documentary evidence (receipts, invoices, bills and quotations) is welcomed to aid in assessment of payable compensation.(See, Section 29 subsection 4 of the Land Use Act, 1978)

Where residential buildings were erected on a compulsorily acquired land, government may offer residential building(s)/settlement in another area as a reasonable alternative accommodation to the affected persons in place of monetary compensation. If the value of the new settlement is higher than the compensation government would have paid, such excess/extra in value will be considered as loan to the persons, which they must pay to government.Anyone who takes government’s settlement/residential building (reasonable alternative accommodation) cannot seek for monetary compensation; his right has been waived, (See, Section 33 of the Land Use Act, 1978). Where compensation is payable as shown above, it shall be paid to the holder of the right of occupancy. Where the land in question is owned by a community, Governor may direct compensation to be paid to the community or to the chief/traditional ruler of the community or into a fund set aside by the Governor for the benefit of the community. (See, Section 29 subsection 3 of the Land Use Act, 1978).

Where one is not paid his compensation at all or has any challenge concerning the rightful persons to be paid compensation, he can seek redress in a State High Court only and not a customary court, area or magistrate court. (See, Section 39 of the Land Use Act, 1978). Please it is very important to note that NO court in Nigeria has powers and jurisdiction to entertain and deliberate over a case concerning the amount or adequacy of any compensation paid or even to be paid. (See, Section 47 subsection 2 of the Land Use Act, 1978). Hence, you cannot approach a court to challenge the amount paid to you by government as a compensation for your improvements on a land but you can approach a court to determine persons entitled to compensation. No matter how harsh it may appear, it is our law until same is amended by the National Assembly.

As seen above, government can compulsorily acquire any land but must do so cautiously within the confines of law and procedure. Government MUST pay compensation or provide an alternative accommodation where there are unexhausted improvements/developments on a compulsorily acquired land. Where government is reluctant or fails to compensate, the persons concerned have legal remedy in the State High Court.

Thank you.

- See more at: http://www.learnnigerianlaws.com/index.php/law-articles/land-law/16-legality-of-government-s-compulsory-acquisition-of-land-and-payment-of-compensation#sthash.F3gDerDU.dpuf

LEGALITY OF GOVERNMENT’S COMPULSORY ACQUISITION OF LAND AND PAYMENT OF COMPENSATION (PART 1)
By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

Can government demolish my house and take my land without compensation? Yes, government can demolish your house and take your land! Albeit, government will compensate you for all your expenditure on the land in certain circumstances. The circumstances and steps therein will be theme of this piece. I advise you to get a copy of the Land Use Act of 1978 from any bookshop to understand and appreciate land contracts and transactions in Nigeria, as a whole. A copy of the Constitution of the Federal Republic of Nigeria 1999 (as amended) will also help.

It is an inalienable fundamental human right of all persons above 21 years old to acquire and own land in any part of Nigeria (See Section 43 of Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 7 of the Land Use Act, 1978). On this, a man from Bayelsa State can acquire and own land in Bauchi State while a woman from Cross Rivers State owns land in Lagos State. Even a foreigner can own and acquire land in any part of Nigeria. Since the law reads “persons” it means both Nigerians and Non-Nigerians,juristic and “juridical” beings, human beings and corporate beings, (companies, association, churches, corporations, societies and incorporated trustees). Our constitution went further to state that no movable or immovable (land and developments on it) can be taken compulsorily in any part of Nigeria except in some specified manners and purposes (See, Section 44 of Constitution of the Federal Republic of Nigeria 1999 (as amended)). The referred “specified manners and purposes” will be explained later. All the lands in Nigeria (the 36 states) are vested on the Governors of each state and that of the Federal Capital Territory or any Federal Government ministry, department or agency in any state is on the President of Nigeria (often delegated to his various Ministers). (See, Section 1 and Section 51 subsection 2 of the Land Use Act, 1978). In simple, whatever a Governor can do on land matters, the President of Nigeria or his ministers can do same for lands under their administration. Land is vested on the Governors to hold the land in trust and administer same, for the use and common good and benefit of all Nigerians. Hence, land is not vested on a governor as an individual rather to the office of the Governor. Most governors delegate their powers to use and administer state land to their Commissioners for Land and Survey. Please note that, Federal Government owns the lands in states being used by federal government agencies, departments, corporation, ministries, quarters, estates, commissions and bodies. Dealings over such federal government lands are being administered by the President of Nigeria through his Ministersof the various ministries and not the states’ governors, (see, Section 51 subsection 2 of the Land Use Act, 1978).

On the foundation of the above, it is safe to reiterate that all lands are vested on the governors who give leases to interested persons (Nigerians and Non-Nigerians, human and corporate beings). So, people don’t own land in Nigeria rather have leases (often for a term of 99 years) from the government. Government is the sole landlord/landowner of all lands in Nigeria and grants “Rights of Occupancy” through a “Certificate of Occupancy” to interested persons (human or corporate) by land allocation. Have you ever wonders why no person in Nigeria has a “Certificate of Ownership” of land? Why do people pay rent (ground rent) to government? Why do people need the consent of a Governor to sell, lease, mortgage or sublet land in a state? They are so because people in Nigeria are tenants to the landlord’s of Nigeria (Federal, state and Local Governments), who issue certificate of occupancy and yearly receipt upon receiving ground rents and equally give consent where necessary in all deals over land.




POWERS OF A GOVERNOR OVER LANDS IN STATE.

Since lands in state are vested on governors, governors have lots of power to exercise in managing and administering the entire land for the benefit of Nigerians. Understanding the powers of a governor over land matters will help us find and identify the limits to their powers (especially as it affects compulsory acquisition and compensation). Below are some of the powers of a governor over land matters:

1. POWER TO GRANT AND REVOKE RIGHTS OF OCCUPANCY AND EASEMENTS.

As a real owner of lands, a governor has the exclusive right to grant statutory right of occupancy to any person over any part of the state (urban and rural areas) for any purpose whatsoever. A Governor also has powers to grant easement appurtenant, (street ways, avenues etc). The grant of right of occupancy must be for a definite term/period on specified terms and conditions. Most states offer grants for a term of 55 or 99 years after which the right of occupancy reverts back on the government while the former certified occupier may seek for a renewal of term. Please not that Local government Chairmen have rights over lands in the rural area although subject to the exclusive right of governors. Hence, a local government has power to grant any person acustomary rights of occupancy for a defined period of time. (See, Section 5, 6 and 8 of Land Use Act, 1978).Most grants of right of occupancy are for a rent; the occupiers are expected to pay yearly rent to government. Please note that the governor has powers to grant right of occupancy free of rent or at a reduced rent where that will be in the interest of the public, (see Section 17 of the Land Use Act, 1978).

A governor equally has powers to revoke grants of rights of occupancy madeby him or his predecessors.Failure to observe terms and condition of a grant,failure to pay rent, or the use of land against its specified purposes or the need of land by government for over-riding public interest are all possible grounds for revocation of grant. (See, Sections 28 and 38 of the Land Use Act, 1978)



2. POWER TO ISSUE CERTIFICATE OF OCCUPANCY

As stated above, governors are land owners while the other persons in a state are “land occupiers” (tenants to government). Land occupiers have exclusive right and possession over their lands against any other person whatsoever. To identify, announce and authenticate, the occupancy of any person (human and corporate) the state government will issue Statutory Right of occupancy over lands both in urban and rural areas. A certificate of occupancy contains a clear description of the land in question, details of the occupier, the details government, duration of the approved occupancy, rent to be paid yearly and the purpose of the land (ie, whether it is for residential or commercial, industrial or agriculture). Hence, it is justifiable to state, that a certificate of occupancy is an abridged lease agreement between government and a person over a specified land. It contains the terms and conditions which any occupier undertakes and must observe to continue his occupation at the pleasure of government. (See, Sections 8 and 10 of the Land Use Act, 1978)

Upon granting of a right of occupancy or an application by an occupier of a customary right of occupancy to his state government, a certificate of occupancy shall be issued to such person upon his payment of appropriate fees. Certificate of occupancy is a prima facia evidence of possession of land. Upon the issuance of a certificate of occupancy to any person, such a person has a better and higher title above and beyond any other person; (See, Section 9 of the Land Use Act, 1978). Apart from government, a certificate of occupancy negates and invalidates the rights, powers and privileges of other persons over a land including the indigenes of such land. (See, Section 5 Sub-Section 2 of the Land Use Act, 1978)



3. POWER TO ENTER AND INSPECT

Just like any true landlord will do, a governor (including any public officer duly authorised by the governor) has the power to enter upon any land in the state. Such inspection is to ensure strict observance of the terms and conditions of the occupation which the tenant undertook to observe at all times. Such inspection ensures that no industrial plant is erected in a residential area or a residential house in a commercial zone and avoids the erection of unapproved structures. It is upon this power and other laws that the agents of Ministries of land, environment and other public office holders rest on to enter and inspect people’s property.

Please note that such entry and inspection must be done during the day time. The occupier of such land is expected by the law to permit and give free access to the governor and the public officers (see Section 11 of the Land Use Act, 1978).



4. POWER TO GRANT AND CANCEL LICENSES

Being the exclusive owner of all lands in a state, a governor has powers to grant licenses to any person(s) to enter upon any land to which no one has a statutory right of occupancy to, or mining lease, to remove/extract stone, clay, sand, gravel and other building materials from such land. A governor cannot grant such license over an area exceeding 400 hectares. A governor issues such license for a specified period of time and upon specified terms and conditions. A governor equally has power to cancel licenses wherein the licensee (person(s) granted license) fails to observe the terms and condition of his license, (see Section 12 of the Land Use Act, 1978).



5. POWER TO CONSENT AND REJECT LAND TRANSACTIONS

In the eyes of law, the landlords of the lands across the 36 states of Nigeria are the respective governors of the states of the federation of Nigeria. They are vested with the lands, to administer and manage them for the good of all, hence they decide who to “lease” such lands to, who further gets a “sub-lease” and “sub-underlease”. A governor of a state is the only person (whether in person or through his commissioners and others agents) that can consent or reject the sale, assignment, sublet, transfer, mortgage and change of ownership of any land in the state. Any of the above transactions ever done without an express and written consent of the governor of the states wherein the land is located is illegal and null. It is expected that, the land agreements/instruments (deed of sale, deed of mortgage, deed of gift, deed of assignments, deed of transfer and registerablePower of Attorney, etc. ) are sent to the concerned Governor (Commissioner for Land) to peruse, consent or reject land transaction. Consent of a governor must be in writing and often on land agreement itself. (See, sections 21, 22, 23 and 26 of the Land Use Act, 1978) Even after payment of money, taking of possession of land and building on same, a land transaction is not complete until governor consents to such land transaction. To be on the safe side, in my law practise I protect the interest of my land purchasing clients by inserting a “Rectification Clause” in their land agreements/instruments. A Rectification Clause is an undertaking by a land seller to a land buyer that he the seller will repay and indemnify the buyer all his money and costs if governor fails to consent to their land transaction.

May I quickly correct a wrong practise I have observed; land agreements (deeds of sale, assignment, purchase, transfer, mortgage, gift and power of attorney etc) do not need or require the stamps and signatures of Court staff (Commissioners of Oath, Court Clerk and Registrars etc). Such stamps and signatures are useless and enrich court officers who don’t remit such fund to government. Do not be deceived the Consent, signature and stamp of a Governor or his Commissioner for lands are not same with those of a mere court staff referred above. Many people have suffered from the above deceit, consult a good lawyer. No doubt, in special cases the name, address and signature of aNotary Public or a Commissioner of Oathwith date are expected on a land agreement ONLY where a party (buyer or seller)is an illiterate, in view of a Jurat. Please, further note that consent of a governor is not needed over land transactions done through court sales (like public auction done by an order of court).



6. POWER TO DEMAND AND SUE FOR RENT

Like every other lease agreement, a Governor being the “LEASOR” (person to grantlease) expect rent from his “LEASEE” (person to whom lease is granted). All persons having rights of occupancy are expected to pay rent as at when due subject to the terms and conditions evidenced on their certificates of occupancy. Right of occupancy can be revoked by a governor where a holder of right of occupancy fails to pay his rent as at when due (See, Sections 28 and 38 of the Land Use Act, 1978).

To recover rent, a Governor through and in the name of his Chief Land officer (Commissioner for land) or any of his appointees can institute a legal action in a magistrate Court of competent jurisdiction, (See, Section 42 of the Land Use Act, 1978). Owing to the immunity of governors from being sued or suing both in civil and criminal proceedings, they cannot sue for such recovery themselves, (See, Section 308 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)).



7. POWER TO COMPULSORILY ACQUIRE LAND, DEMOLISH/CONVERT PROPERTY AND TAKE OVER LAND.

Yes, it is part of our constitutional rights to own and use land and landed property in any part of Nigeria irrespective of our tribes, colour, birth, religion, political parties and height(See Sections 42 and 43 of Constitution of the Federal Republic of Nigeria 1999 (as amended)).The constitution went further to assure all persons that no property shall becompulsorily taken possession of or acquired compulsorily except in the manner and for the purpose prescribed by a law, (See Section 44 of Constitution of the Federal Republic of Nigeria 1999 (as amended). The Land Use Act of 1978 is one of the laws that in line with the constitution, provides “the manner and the purpose” for compulsory acquisition of land and property thereon. Consequently, by the joint provisions of the Constitution and Land Use Act, lands and the property on them can be acquired compulsorily by government provided that certain manner and procedures are adhered to and for certain reasons. Please note that government MUST observe the set down manners and purpose for a compulsory acquisition of land before such acquisition can be valid. We procedures were not observed; such act can be challenged in a court of law, for not even the government is above the law. The set down manner and purpose are explained below.



LEGAL GROUNDS AND MEANS OF COMPULSORY ACQUISITION OF LAND BY GOVERNMENT

As shown above, it is your right to own land in any part of Nigeria and be equally protected from compulsory acquisition of such by government. Although for specific purposes and in given manner government has powers to compulsorily acquire any land. Note that none observance of the legal grounds and means for compulsory acquisition of land by government, invalidates such compulsory acquisition. Below are the special cases under which government can exercise such powers;

1. LEGAL GROUND FOR COMPULSORY ACQUISITION OF LAND

“Overriding public interest” is the sole and only purpose under the Land Use Act 1978 upon which a governor can compulsorily acquire the land of any person. “Overriding public interest” arises where;(1.)a statutory right of occupancy holder sells, mortgages, transfers or alienates his title without a prior consent of governor as demanded by the law or (2.) there is a requirement of land by Federal Government or State Government or even Local Government for a “Public Purposes” in the federation or state respectively (See, Section 28 of the Land Use Act, 1978). With reference to the provisions of Section 51 subsection 1 paragraphs (a) to(h)of the land Use Act, 1978, “Public Purposes” include things that are: forexclusive government use or general use; for use by government companies, corporations, ministries, departments and agencies; for sanitation of environment, urban or rural planning and development; for mining, oil pipelines purposes and extraction of building materials; for economic, industrial or agricultural developments and for construction of railways, road or other public works undertaken or provided by government. Please note that the “extraction of building materials” is a “public purpose” for compulsory acquisition of lands under customary right of occupancy, only. Unfortunately, the interpretation of the words “Public purpose” is too wide that many undemocratic governors have hibernated under them to wind-up businesses of their opponents and enrich their own personal businesses. Under the two vague words, a governor can compulsorily acquire someone’s gigantic cement company and turn it into swimming pool and bar while he turns a privately owned university into his hotel. Note that a governor needs not give any further reasons or report for his compulsory acquisition to any person or thing; once he tags it for “overriding public interest”.

In the light of Section 44 of Constitution of the Federal Republic of Nigeria 1999 (as amended) the other grounds among which land/property can be compulsorily acquired are:a) where there is prompt payment of compensation on such land/property b) where the holder of right of occupancy of such compulsorily acquired property is afforded right of access for determination of his interest and compensation in a court of law c) where land/property is in a dangerous state or injurious to the health of human beings, plants or animals d) where land/property relates to enemy of state e) where it is for execution of court judgement or f) for imposition of tax, rate or duty etc.

2. LEGAL MEANS OF COMPULSORY ACQUISITION OF LAND

Once the need for a compulsory land acquisition is for overriding public interest, the means is simple and easy. Where Governor wants to compulsorily acquire land, the governor (or through his staff) is to issue a “NOTICE” to the holder of the right of occupancy of the desired land. The Notice must declare that the land is required by the government for public purpose. At the issuance of such notice the right of occupancy will be revoked. Once such is done, the governor has compulsorily acquired the land. There cannot be a valid compulsory acquisition of land without a “Notice” to the holder of the right of occupancy, (See, Section 28 sub section 4 of the Land Use Act, 1978).

- See more at: http://www.learnnigerianlaws.com/index.php/law-articles/land-law/16-legality-of-government-s-compulsory-acquisition-of-land-and-payment-of-compensation#sthash.F3gDerDU.dpuf

TO BE CONTINUED IN PART 2.

BOUNCED/DUD CHEQUE AND ITS LEGAL CONSEQUENCES.
By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

In our traditional Nigerian banking system, cheque books are only offered to current account owners who are in turn charged on transaction. The present advancement in banking has invoked the offering of savings account with cheque books and quasi-cheque books with limited features and acceptability.
As one of the most common negotiable instruments in Nigeria, a cheque is a bill of exchange drawn on a banker payable on demand as defined in SECTIONS 73 of the BILL OF EXCHANGE ACT, CAP; B3 LFN 2004, VOL.2. The use of cheques invokes lots of rights and duties on banks/banks, account-holder/owners and payee (person in whose favour cheques are written) which is actionable in both civil and criminal law. This writing will broaden your mind to your rights and duties either as an account holder, payee or a bank/banker.



A cheque by use and convention is an unconditional order in writing addressed by an account holder(an owner and user of a account, also known as the DRAWER) to a bank (the bank that created, manages and administers the account and issued the cheque booklet also known as the DRAWEE) signed by the “drawer”, requiring the banker (the DRAWEE) to pay on demand a sum certain in money or to the order of a specified person or bearer (also known as the PAYEE). This bill of exchange is mostly used in Nigeria as either an OPEN CHEQUE also known as uncrossed cheque or a CROSSED CHEQUE. The open cheque can easily be paid to the bearer over the bank counter while crossed cheques are limited.

The relationship between a bank and an accountholder or owner is, that of a “debtor and creditor” and at times it is also that of a “principal and agent”. When an account holder deposits money with his bank, a “debtor and creditor relationship” has been created. The account-holder is the creditor while the bank is the debtor. The bank is under a duty to pay back what the account-holder has given to it under their existing terms and conditions. Where an accountholder issues a cheque to his bank instructing his bank to pay the bearer/payee, then the relationship between the bank and the accountholder is that of agency “principal and agent”. The accountholder is the principal on whose instructions the agent (bank) would pay whom the accountholder so desires. In every relationship there are rights and duties; which one of them in the prevailing banker-customer relationship is to safeguard deposited money and pay same out on instructions of the owner. One of the major means of payment is by cheques and other bank notes. Bank cheques invoke a web of rights and duties; from the bank to the accountholder and from the accountholder to the payee (person in whose favour cheque has been issued).

PAYMENT OF CHEQUE AND RIGHTFUL DISHONOUR OF CHEQUES.
A cheque is not money until it is presented to a bank and paid to the payee by the bank. When a properly issued cheque is presented before a bank, the bank is obliged to pay the payee according to the mandate of the customer (drawer). But the bank’s obligation can only exist when and where the customer (drawer) has sufficient amount in his account to cover the proposed sum. Where the drawer has no sufficient money in his account but has an understandingwith the bank and has been granted credits or over-draft by the bank, his cheque offering more than he has in his account will be accepted and honoured by the bank. Therefore with sufficient funds in a customer’s account the bank is under an “obligato civilic” (obligation to serve) to honour his cheque and pay the payee so far as there is no legal impediments. Albeit, the said cheque must be regular; it must satisfy all necessary requirements as to date, amount, drawers signature, payees name and timely presented to the concerned bank. A fundamental error in the above required information may cause a dishonour and return of cheque; such is a rightful dishonour of cheque.

A bank’s obligation to honour and pay a validly drawn cheque can be legally revoked by a “Notice of Debt”, “Bankruptcy” or “Mental Incapacitation” of the customer and irregularity in a customer’s mandate and authorities relating to his account. Where there is a regularly and validly drawn cheque with sufficient fund, the banks will still refuse the honour of the cheque on the COUNTERMAND ORDER OF PAYMENT of the drawer of the cheque. Note that the countermand order must come before the presentment and payment of a concerned cheque else it would be useless and not binding on the bank. Where a countermand order comes on time the bank is precluded from paying the cheque, if it acts otherwise, the liability of such payment lies wholly on her. The courts will not hesitate to give justice to the customer, since the bank acted contrary to its principal/master’s instructions. With our technological advancement, banks often confirm through phones or emails before paying cheques and countermands orders can equally be sent to banks through same means.

Note that a customer must draw his cheques with reasonable care and in a way not facilitate forgery since a banker can reject the cheque on the grounds of forgery. A bank that accepts and pays out forged cheque is liable to the last coin of the payment; let bank workers be guided.

WRONGFUL DISHONOUR OF CHEQUES.
Where there is sufficient fund in an account and all requirements to a cheque are present with on countermand order and a bank goes on to dishonour a cheque; such is a wrongful dishonour. Most often the bankers’ inexperience, negligence or laziness often cause their wrongful dishonour of cheques and a resultant breach of their obligation to honour and pay a customer’s cheque. It’s a breach of an agreement between a bank and its accountholder, to honour its cheque at all times when all requirements are met.

On opening of account with a bank, the accountholder legally enters into a legally enforceable contract with a bank; one of its duties of the bank is to be honour valid and regular cheques when there is sufficient fund, inter alia. Note, that all bankers, bank workers and bank staff (by whatever title or appellation) in the bank are also bound by the contract you have with their employer (the bank) and their actions and inactions are considered to be that of the bank. Whatever a bank worker does in discharge of his bank work is deemed to have been done by the bank itself for the workers and staff of a bank is hands and legs of a bank (an incorporated and legal person); because “quic facit per aleum facit per se” (he who acts through another acts through himself). Consequently, when a bank staff breaches a bank-customer relationship by the wrongful dishonour of a cheque, the accountholder can seek for remedy in court for it raises contractual and criminal implications.

The wrongful dishonour of cheque by a bank gives a lot of actions to the account owner (cheque drawer), since he can sue and claim damages for the negligence, breach of contract and for libel in civil. With libel as a criminal offence too, negligence, and criminal breach of trust, banks should be careful and diligent since all available legal options can be assessed by the affected customers. Claims for damages for wrongful dishonour of cheque, are liquidated damages and that consists of the amount of money on the cheque, the interest thereon from the time of presentment for payment and expenses of noting and protest. With the above granted, that the accountholder would have been restore to his position before the wrongful dishonour;restitutio integram.

The dishonour of cheque is the dishonour of trust and a defamation by conduct which communicates to the payee and the drawer’s other business associates, colleagues and partners that the drawer is a liar, bankrupt, fraudster, cheat, common thief and no mean person that reaps where he didn’t sow and should not be associated with. Such a defamatory conduct goes a long way to affect the business and trade of the customer (drawer). Normally in law, defamation is not actionable per se in the prove of special damages; meaning that any one that sues for defamation must prove actual and special damages occasioned by such defamation. But it is now well established in plethora of recent Supreme Court judgements; that an action for a breach of contract against a bank, for wrongful dishonour of a Trader’s cheque, is actionable per se and as such he is entitled to recover substantial and reasonable damages for injury to his commercial credit, without the necessity of alleging and proving actual damage. The term “Trader”has also been held to include a lot of unimaginable professionals, skilled and unskilled labourers, so that this line of damage is a protection and blessing to all banks’ customers and accountholders.

THE CRIME IN “BOUNCED”/ “DUD” CHEQUES.
A DUD (worthless) CHEQUE popularly called bounced cheque is a cheque issued by a bank customer whose account is in debit or whose credit balance is lower than the amount indicated on the cheque. It is an empty cheque that has no monetary value as no money can pass through it. Therefore a dud cheque paid into a bank account is not only an embarrassment to the payee but also to the bank. A bank that is not vigilant can get itself involved in serious accounting and financial problems where it honours dud cheques.

The law cannot be partial, so it has spread protection nets over banks and payee against fraudulent customers (drawers) that offer dud (worthless) cheques. Just the way a bank is obliged to honour valid and regular cheque, so is a drawer duty bound to reasonably draw his cheque with care to avoid aiding forgery. Even an affected payee has a lot of remedies to avoid losing his money and goods for which such dud cheque had been drawn.

The DISHONOURED CHEQUES (OFFENCES) ACT, 1977 has remedied the ugly situation, which even Section 149 of the CRIMINAL CODE couldn’t efficiently cripple, due to the limiting diction of the draftsman contrary to the futuristic nature of cheques. Section 1(a) (b) of Dishonoured Cheques Offences Act, 1977 defines the act of offering dud cheques for credit as an offence. On conviction of such an offence; an individual shall be sentenced to imprisonment for 2 years without an option of fine while in the case of a body corporate (companies) it shall be sentenced to a fine of not less than N5, 000.

Now you can make good of your wrongfully dishonoured cheque; relate with your bankers better and deal severely with cheats that offered you dud (bounced) cheques.

Thank you.

- See more at: http://www.learnnigerianlaws.com/index.php/law-articles/criminal-law/8-bounced-or-dud-cheque-and-its-legal-consequence#sthash.NOBZEfGf.dpuf

HOW TO REGISTER A BUSINESS, A PARTNERSHIP AND A COMPANY IN NIGERIA.
By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com

Do you have dreams of starting up your own company; with a marketable name of your choice? Are you tired of being duped over registration of your company? Do you want to expand your company? Are you losing customers because your business name is being imitated? If your answer to this is YES, then you are good to take this self-help guide. A guide to protecting you and your business outfit, aid your loan and fund accessibility in financial institutions, hype your profile for contract bids, ground your locus standi in litigations and equip you with enormous rights.



Presently in Nigeria, you can carry on a legal business pursuit under: a Business Name, Partnership or a Company among others. In either of the forms, you have varying degrees of rights, obligations and liabilities. With regards to the Companies and Allies Matters Act 1990; the function of registering business outfits is vested on the CORPORATE AFFAIRS COMMISSION (CAC), located at plot 420, Tigris Crescent, off Aguiyi Ironsi Street, Maitama, Abuja. Corporate Affairs Commission has branches in the 36 states of the Federation. CAC equally registers churches, associations, clubs and Non Government Organisations. For a guide on how to register clubs, churches and associations, click on this link ; A GUIDE ON HOW TO REGISTER A CHURCH AND AN ASSOCIATION IN NIGERIA.

Note; you can only be helped in this corporate work by a professional like a lawyer or an accountant who is duly registered with the Corporate Affairs Commission (CAC). Consequently you have to diligently make sure that your professional is duly registered else you might be giving a fisherman money to by gold for you; what a loss!

REGISTRATION OF BUSINESS NAME.

A business name is an appellation being used by an individual or partners in pursuit of their business. It helps you to be easily identified against imitations and prevents the deception of the public. If you register such under the CAC the entire public is precluded from using such or imitating it. You can sue any person that imitates your business name such that the public might be confused; same was held in the Nigerian case of NIGER CHEMIST V. NIGERIAN CHEMIST. Then close names like “nokla”, “nokiya”, “mokia” can not be allowed when “Nokia” is a registered business name. Consequently, with such registration your products, services, customers, property, goodwill and franchise are adequately protected from piracy and undue competition.

To register your business name in the CAC Ebonyi State office,(if its principal place of business will be Ebonyi State) you have to pay N200 to obtain a “FORM CAC 1” for availability check and reservation of name. If your chosen name is not already in use, offensive, deceptive and prohibited it will be reserved for you for 90 days; within which you are expected to finish your registration. On the completion of registration of the name, the registrar will issue a certificate to that effect bearing the business name and its distinguishing state identification letters in bracket at the end of the name. This seems to be the cheapest of all registrations, with a lesser paper works. Note that a business name that is of only the surname, forenames and initial of an individual or partners and may be with words like “& SONS and & CO.” is not obliged to be registered with the CAC. So, with this you can evade a lot of corporate disturbances.

REGISTRATION OF PARTNERSHIP.

Partnership is the relationship that exists between persons with a common goal of carrying on business and making profit therefrom. It is a known fact that no sane man carries on partnership business with an enemy although most often in Nigerian the partnership turns into enmity later. So are you in a partnership without a legally backed agreement or the registration of such; then you are on a wild goose chase. What will be your faith when your partner loots your common fund and property or you want to quit?

To safeguard your investment you ought to have your partnership agreement written and duly registered. Unlike in company, a partnership is easier to form; since its paper work and requirements are not much. A partnership agreement should contain; “the names of the partners and firm; the business or object of the partners and place of the business; capital of firm; the profits and loss sharing ratio; account of the partnership, arbitration clause; date of commencement and duration of partnership”. In partnership the act of one partner is deemed to be the act of the other; since each partner is an agent of the other. Partnership will beget continuity in business, easy access to capital and other factors of production. Partnership can choose a business name and register same to aid its business. Professionals, artisans, merchants and others alike with common business interest are advised to partner and synchronize their resources towards an unquenchable economic success, on a well outlined legal frame work. Partnership shatters the shackles of sole proprietorship where there is no continuity of business, adequate human resources, proper accounting, mega capital and expansion plans; that is corporate slavery!

Note that; a partnership can not be of more than 20 persons unless such a partnership is being formed by professionals only; like lawyers and accountants. Where a partnership, which ought to be registered, is not duly registered, such partnership is illegal.

REGISTRARION OF COMPANY

Most people do believe that their business outfit is a company while in the actual sense it is a mere business name. Not until you understand your outfit you can not ascertain your rights and duties in the corporate world.

Company is the most important unit of a business organisation for modern economic activities. In Nigeria a company can be formed by at least two (2) persons who are not less than 18 years old, not bankrupt, not insane among others and in line with the provision of the Companies and Allied Matters Act, 1990. A company is complex and in turn offers a lot of protections outweighing other forms. Among the benefits of turning your business outfit in to a company are; business continuity, protection of members and creditors, easy transfer of shares, legal personality and right to borrow and quotation on the stock exchange and access to public fund to say but the least.

The formation of a company entails strict requirements like business name check, filing of a memorandum of association, article of association and some other supporting documents. After the formation and registration with the CAC, the Registrar-General will issue a Certificate of Incorporation and same is to be displayed at the place of its business. Henceforth, the company is now a legal corporate personality (a juristic being) that can sue and be sued; and totally different from its owners (promoters and members) with overwhelming rights and duties as seen in the cases of Salomon V. Salomon and Lee V. Lee Farming Ltd. When the owners borrow for the company, there can not be held liable jointly and separately rather the company would be held. The owners (members) stand to function as the eyes, mouth, legs and hands of the company within the powers of the company. A registered company must either be a Private or a Public company that is Unlimited or Limited in Shares or Guarantee.

A Private Company has a membership of not more than fifty members, whose shares can not be easily transferred and it is not open to the public while a Public Company just as the name implies is open to all.

A Company limited by shares has an approved share capital which has been divided into shares of a fixed amount for its members (investors) to hold. The share capital may be paid up and unpaid that is callable. Shares are the unit of holding and ownership of an investor in a given company. The liability of the company can only be paid off by its capital and property and does not extend to the company owners and their own property. A share limited company must be either a public or a private company. The share capital for a private company is N10, 000 while that of a public company is N500, 000 and not less than 25 per cent must be taken by the subscriber (promoters and investors). A private company end with the word LTD while a public ends with PLC.

Company Unlimited by shares has a share capital subscribed but the liability of its members does not end there rather members a personally liable for the debts and liabilities of the company. Such a company ends with the word ULTD.

Company limited by Guarantee has no share capital and it is not formed for profit making and distribution among members rather its for promoting commerce, art, science, religion, sports, culture, education, research, charity or other similar object. The whole liability of its members is based on a guarantee that they each would contribute to the company’s assets which shall never be less than N10, 000 in the event of a winding-up. It can not be registered without the authority of the Attorney-General of the Federation. Such a company ends with the letter GLTD.

Finally a private or public company limited by shares stands to be the best with an avalanche of benefits and protection to keep you in business. So won’t you rather incorporate you business and smile back home; like wise men do?

Thank you.

- See more at: http://www.learnnigerianlaws.com/index.php/law-articles/commercial-and-corporate-law/11-how-to-register-a-business-a-partnership-and-a-company#sthash.ByRoviza.dpuf

HOW TO WRITE AGREEMENTS (CONTRACTS)
By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com

No man is an island, we all need one another to live together and actualize our dreams. At one point or another one has to agree with others to achieve his goals. This brings to mind the need for an agreement. An agreement is an understanding between persons to do or not to do certain things in a given way, time, place or manner. In an agreement there must be a desired result, certain terms and conditions to guide parties to an agreement towards achieving their goals. The human mind is forgetful, deceitful and dynamic; hence the need for agreements cannot be over-emphasised.

A CONTRACT is an AGREEMENT. A contract can be made orally or in writing. A contract is “legal” when it contains the essentials of a contract which makes it enforceable in court and accords it a legal beam. For example, an agreement made by two adults for the supply of cannabis (Indian hemp), human parts and stolen cars cannot be said to be a Legal Contract. It is surely, not a legal contract because the subject-matters (Indian hemp, human parts and stolen cars) are illegal; hence such a contract can never be enforceable (recognisable) in law.




CONTENTS OF AN AGREEMENT (CONTRACT)

Lawyers are trained to draft and couch agreements professionally; but lawyers are not magicians. When you know the basics of writing agreements, then you can do same as a lawyer would do; it isn’t abracadabra. A contract prepared by a layman is as valid as that prepared by a lawyer.

A contract (agreement) may be oral (word-of-mouth) or written. In cases where oral agreement is to be made, the presence of two or more witnesses is highly recommended. The Court will use the evidence/testimony of witnesses to ascertain an oral agreement. A written agreement is often on a long white “A4”paper size, with colourful font sizes and colours; that is nonsense. An agreement can be written on a cartoon, wall, tissue paper, match box, sugar packet or on anything that can accept marks and can be written on. With the new Evidence Act 2011, written agreements can be made through exchange of mobile phone text messages, emails, blackberry pings, yahoo chats, 2go and other electronic devices and platforms. A written agreement is better than an oral agreement because the intention of the parties (i.e., the persons in the contract) is easily known, unambiguous, simple and ascertainable unlike in the case of an oral agreement.

Please, take Notice that there are certain agreements (contracts) that the law has stated that must be in writing. Example 1: any agreement between a tenant and his landlord, allowing the tenant to repair the house on behalf of his landlord MUST be in writing. Any tenant that repairs his landlord’s house without a written agreement to such has just lost his money because no court will hold otherwise. Example 2: Land transaction (sale of land, sale of property, transfer of ownership, a lease for a term more than 3 years,) must be made in writing. An oral agreement on transfer of land is not enforceable in court (i.e., no court will implement such oral agreement). Please note further that, land transactions made over land in villages (Customary Land) need not be in writing because writing is alien to customary law. Oral agreement before witnesses, payment of purchase price and drinking of palm wine etc. are sufficient rites for a customary land transaction. Other agreements that MUST be in writing are; undertakings, contracts of guarantee, hire-purchase and transfer of company shares agreement. Once a contract is to be written, let it contain all the intentions of the parties because only written words in the agreement will be enforceable and honoured in court. Where there is a written agreement, the court will never allow an oral evidence to be given.

A written agreement ought to contain the NAMES, ADDRESSES of the parties (the persons contracting); where there is a guarantor (person standing surety for another) the NAME, ADDRESS and OCCUPATION of the guarantor must be included too; DATE of the agreement, the TERMS and CONDITIONS (the “Dos” and “Don’ts”) of the agreement, SIGNATURES/FINGER THUMB PRINTS of the Parties (the persons contracting), and finally the NAMES, ADDRESSES, OCCUPATION and SIGNATURES of witnesses to the agreement (Persons before whom the agreement was signed by the parties). Where the parties desire their agreement to be by a DEED let them add the phrase; “Signed, Sealed and Delivered” just before they sign. In my legal practise, I personally advise parties to number and sign all pages of their contract papers to avoid insertion or removal of pages of contract by mischievous parties. To prompt admissibility (acceptance) of an agreement in court, parties are to purchase post office stamps and affix them on the copies of the written agreement. The stamp can be affixed on any part of the agreement. A written agreement without a stamp cannot be tendered in court. See Stamp Duties Act 2004.

Where any of the parties to an agreement is an illiterate, he/she must be protected as provided in our laws; Illiterates Protection Laws. Such an agreement must contain a “Jurat”. A Jurat is an undertaking to be signed be person (Interpreter) other than the parties to the agreement, stating that he/she had read and interpreted the agreement to the illiterate in the language of the illiterate, and that the illiterate appears to have understood it all. This is one of the special contracts, which must be made before a Notary Public or a Commission of Oath.




INDICATORS OF A VALID CONTRACT

An agreement may contain all the above and still not be a legal contract with binding powers over its parties. Indicators are the legal flavour that makes an agreement enforceable by a court of law. Indicators are the essentials of a valid contract; which must be present at all times for a contract to be legal. The specialty and complexity of a contract may cause a contract to have more than the enlisted.

Intention To Create A Legal Relation:
We all often enter into agreements with people, with our own different intentions. In some cases we are very serious and will go to court if things go wrong while in some we just hope things go well without an intention to go to court. In the latter, it is a gentleman’s contract; we intend to honour but not drag issues to court or seek any legal damage. Imagine who many times, your parents promised to buy you a toy for swallowing bitter drugs without buying same; nobody meant it to be a legal agreement. Domestic arrangements are never done with an intention to create legal intentions. No legal intention can be perceived in an agreement between a mother and her daughter over washing of dishes.

There can never be a legal contract unless the parties to the contract have an intention to create legal relations (i.e., to be legally bound to the terms and conditions of the contract). In simple, unless they are ready to honour their agreement before the law; having their terms and conditions enforceable by court. Please note that Family members can still make legal contracts where there is an intention to create legal relations. Such must be express and evident in the agreement. It is because of the often lack of intention to create legal relation that people consider family members as good business partners and associates.



Legal Capacity Of Parties:
For every contract there must be at least two willing persons on opposite sides. The party who offers to do or not to do a thing is known as an “Offeror” while an “Offeree” is the party to whom an offer is made. Example 3; a car dealer who offers to sell a Range Rover Sport (Jeep) is an offeror while his prospective purchaser is the offeree. The car dealer offers while the purchaser considers such offers and may make a counter-offer (i.e. vary the terms of the offer and make his own offer) or accept the offer. Example 4: where a purchaser walks into a car shop and offers to the car dealer a 12 months payment option within which to pay, the car purchaser is the Offeror while the car dealer is the offeree. It is the nature of an agreement that determines an offeror and an offeree. A twist in negotiation changes this status until a deal is made. This position is very important because it determines who is bound by what and also when a contract can be said to have been reached (as I will show below).

Legal capacity is the legal ability and right to contract, agree and be bound by such contracts. The law has stipulated the persons (human and legal persons) that can be involved in an agreement; sane adults including a registered business name, partnership, company and incorporated trustees; associations, foundations, clubs and churches. Some people have no legal capacity to contract because of their age and or illness. The law feels they are too naive or have defective brains, poor cognitive process, that can be exploited by others in reaching agreements. By way of special protection, such persons are exempted from contracts. Minors (persons below 18 years old), infants and lunatics are not allowed in law to make contracts. In exceptional cases and for necessities like transport, food, housing, medical attention and clothing a minor can be contracted with. Apart from necessities, anyone that enters into any other agreement with such persons is doing same at his own peril. The law will not allow you to enforce a contract you entered into with any of the above referred persons. If you must contract with such persons, then you have to do so through their legal guardians and parents. Always demand for the consent of a legal guardian of an infant/minor and that of a Committee in Lunacy of a lunatic in contracts. Example 5; a Primary School Principal who wants a twelve “12” years old pupil to sign an undertaking for good conduct is kidding; such agreement can never be enforced in court. Such a principal ought to seek the guardian/parent of the pupil to sign the undertaking. Example 6; by the provisions of our extant Land law (section 7, Land Use Act, 1978) a person below 21 years old Cannot own, hold, transfer, purchase or alienate land. Any person who enters into a land agreement with such a person is dealing with the wrong person!



Offer and Acceptance:
There is never an agreement until one offers and another accepts. Where there is an offer without an absolute “acceptance” of such offer there is no contract. While an offeror makes an offer and offeree accepts an offer.

“ACCEPTANCE” is an unconditional and unequivocal admission of the offer made by an offeror. It is an offeror’s communication of his readiness and willingness to be bound by the terms of the offer. Please, note that once you accept an offer as an offeree that is the commencement point of the contract/agreement. Both the Offeror and Offeree are bound from that point henceforth; each must do his part. Example 7; where on a Monday morning a marketer offers to you a Mikano Generator at the cost of N70, 000 and promises to deliver same at your house and you call him on Wednesday to accept his offer, you both are bound from that Wednesday. If on Thursday morning you get to the marketer’s shop to be told the generator is no longer N70, 000 but N100, 000 it will be a breach of contract. You have a case against such a marketer.

Acceptance must be communicated to the “Offeree”. It must be unconditional; just a clear expression of “yes, I want it” or “Yes, am interested”. If it is conditional; “yes, I want it if you will reduce the price” or “Yes, am interested only if you will sale, deliver and install” then it is no longer an acceptance but a COUNTER-OFFER. A Counter-offer passes a contracting baton to the seller to accept or not. Once an offer is accepted its maker (offeror) cannot stop, retrieve, invalidate, cancel, repudiate or withdraw such an offer; rather he/she is bound to the last letter of the offer. Finally, “Offer and a consequential Acceptance” must be present in all valid agreements/contracts.

Consideration:
“If I give you this, what will I receive in return”; that is “CONSIDERATION”. It is what you will forgo to get another thing in a contract. Consideration is an essential element in a contract. Example 8; a “Lex10 Law software” is sold to a lawyer for N3000. The N3000 is the consideration from the lawyer to the software company while the software itself is the company’s consideration to the lawyer for his money. It is a two-way traffic, running between two contracting parties, each party advancing his to the other. It is the “Price-Paid” and the “good or service” purchased.

Consideration is what gives a party the legal right to sue another party who has not performed his part of an agreement. There can never be a contract where there is no consideration. Where there is no consideration there is no contract, no matter how little a consideration is, it counts. Even if it is N2000 for a plot of land in Maitama, Abuja it is sufficient (adequacy or inadequacy of consideration is not a measure). At best what you will have where there is no consideration is a “Promise”. A promise is not enforceable, both the maker and the person to whom it is made are not bound by it; it is a gratuitous offer. But where a “Promise” is made in writing (by deed) it is binding on the maker. “A DEED” is an agreement that is witnessed and says at its end that it is “Signed, Sealed and Delivered”.

Example 9; As a secondary school student, my rector (principal) was promised a whopping sum of One million Naira (N1, 000, 000) by a politician during one of our inter-house competitions just before elections. My rector complained bitterly when the money was not paid; I wondered why he never went to court to have the politician pay him. Well as a child I thought like a child. Although the Politician’s promise was made in the public (before over 700, 000 people); yes it is a mere promise and not a contract. It is a gratuitous offer which he is not bound in law to keep to, honour or redeem. It is gratuitous because there is nothing he will receive in return for it (no consideration). It would have been a different ball game and good news for my rector if he had signed a “Deed of gift” (i.e., a written agreement transferring a gift) with the politician on the said amount. Such a deed like any other agreement can be drawn up by anybody on anything.



Consent:
A legal contract must have the wilful consent of the parties. Where consent is obtained by fraud, force, duress or any form of misrepresentation, such a contract is not legal and will not be enforceable. Contract must be a wilful agreement of parties. Example 10; if you walk into a shop to buy foreign rice and the shop-keeper brings out a sealed bag of rice written foreign rice and you purchase same, only to find out that it is Abakaliki Rice produced here in Nigeria but packaged in a foreign bag; it is not a contract. That is fraudulent and a reckless misrepresentation of fact which will vitiate the contract. What you signed and agreed does not count where you did such under fear, force, fraud or fake facts.

Legality of Objects:
There are goods and services that the law has restricted or declared illegal; such can never be the object of a legal contract. No legal contract can be based on illegal goods and services, crimes and immoral acts. Arms, stolen property, human parts, hard drugs, wizardry, prostitution, gambling, assassination, cultism, human trafficking, thuggery and kidnapping are some of the illegal goods and services which can never be contracted on. Any contract made on any illegal subject can never be enforced in law. Who will go to court demanding his unpaid fee for kidnapping and assassination? Who will complain that the talisman, concoction and charm a witch-doctor gave him didn’t work?

The legality of whatever business, property, transaction or deal that you are entering with any one determines if you will ever approach a court to recover your money if the contract fails. An illegal object is a wrong foundation upon which nothing (contract) can be placed on; you can’t keep something on nothing and expect it to stand; (ex nihilo, nihi fit). Example 11, many prospective students pay money to students and lecturers in turn for admission. Where a lecturer accepts N250, 000 to offer admission to an applicant and never fulfilled his part, the applicant can never take a legal action for performance of such contract. Rather he can only explore criminal options, which may send the lecturer to jail at best!

Conclusively, agreement should be made as often as possible between adults of sane minds. It can be made in any form and format but must clearly contain the intentions of parties.

Thank you.

- See more at: http://www.learnnigerianlaws.com/index.php/law-articles/commercial-and-corporate-law/25-how-to-write-agreements-contracts?showall=1#sthash.6flj8rV0.dpuf

[center]
RIGHTS OF A LANDLORD.
By Onyekachi Umah, Esq. ACIArb(Uk)
08037665878
Onyekachi.umah@gmail.com
www.LearnNigerianLaws.com[/center]


Firstly, in Nigeria all lands are vested on the thirty-six Governors of the States of the Federation as guaranteed in our conservative and over-due for amendment; Land Use Act of 1978. Consequently, the Governors hold the whole land in trust for the people except those owned by Federal Government and its agencies. Owing to the above fact, a Governor can only grant a Rights of Occupancy for a certain period of time. A Governor does this by issuing a Certificate of Occupancy (C of O) to individuals (of not less than 18 years old) and registered bodies (ie, Companies, Corporations and Incorporated Trustees) for a certain term (usually 99 years) for either residential or commercial purposes. An infant or a Business Name cannot buy, own or sale a land in Nigeria. A foreigner has all rights to purchase and own a land in any part of Nigeria.
In the common parlance, an individual or registered body on whom a right of occupancy is vested on is referred to as a “landlord”. Furthermore, a person who owns a house, a store, a warehouse or a park is equally referred to as a “landlord”. In adhering to rules of English language, a feminine landlord is referred to as a “landlady”. In a bid to provide a peaceful and enviable society, Nigeria has through her laws and conventions accorded a lot of rights to landlords although not without some duties. The said rights have prompted massive inflow of many investors into property acquisition and real estate investment in general. Some of the rights of a landlord are:
1. RIGHT TO OWN PROPERTY IN ANY PART OF NIGERIA.
The organic law of Nigeria; Constitution of the Federal Republic of Nigeria, 1999 at Section 43 provides for the “Right to acquire and own immovable property anywhere in Nigeria.” Hence, all citizens of Nigeria have the right to buy, purchase, acquire, inherit and retain, own, maintain and use a land located in any part of Nigeria. It does not matter whether one is Igbo or Hausa, Efik or Yoruba, indigene or Non-indigene.
Like any other fundamental human right provided for under our constitution you can seek for its enforcement in a High Court or Federal High. All landlords are entitled to their property and the safety of their property in any part of Nigeria. Don’t let indigenous revolting tenants intimidate you. You owe them just nothing. Don’t decay in ignorance; believing fundamental human rights to be only on life, movement, speech, fair hearing and issues alike.

2. RIGHT AGAINST COMPULSORY ACQUISITION OF PROPERTY.
The Constitution of the Federal Republic of Nigeria, being aware of the dreaded powers of government and the selfish interest of its prospective wielders, provided certain protection for landlords. The pitiful plots and scenes of the “Biblical Nabothic Vineyard” still plays in our today society; where jealous and selfish Governors forcefully acquire lands of citizens for their own personal investments. Friends, worry not for our Constitution in Section 44 provides for a right against compulsory acquisition of property. By the above provision, no land or interest on it can be compulsorily taken away from its owner in any part of Nigeria.
The provision went further to provide that on exceptional situations land can be compulsorily acquired but in the manner and for the purposes prescribed for in any of our laws. The law went further to entitle the landlord to receive a prompt payment of compensation from the government. To complement our constitution, the LAND USE ACT 1978, went on to provide the sacrosanct manner and purpose for which a land can be compulsorily acquired by government. By section 28 of the Land Use Act, a governor can only compulsorily acquire a land for overriding public interest. The law went further to explain that “overriding public interest” means
i. The requirement of the land by government for public purposes within the state
ii. Or for mining purposes or oil pipelines or building materials extraction or similar purposes.
iii. The transfer of land or interest in it by landlord without obeying the regulations over such transaction. (it’s a punitive measure).
It is crystal clear that our laws did not provide for compulsory acquisition by Governors’ for their own businesses rather for public purposes or better still for state use. Hence, no Governor can rightly, acquire your land to erect his personal house, hotel, hostel, school or private parks. Don’t succumb to the agitations of a Governor that wrestles to compulsorily acquire you land, for anything short of “for public use” instead get a lawyer.


3. RIGHT TO COMPENSATION.
The law cannot allow the efforts of a landlord to go in vain, hence the law equipped him with a commensurate right that comes to birth in the event of compulsory acquisition of his land. Our grundnorm; Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for payments of compensation to landlords in Section 44. Aside the provision in the Constitution, our Land Use Act in Section 29 equally provides for compensation of a landlord upon compulsory acquisition of his land. Take note that, a landlord is not compensated for a land itself rather for his improvements, advancements and investments on the land, like buildings, mechanical installation, drainage system, irrigation system, fence, reclamation works, economic crops and any paid land rent for the year of such acquisition.
Before compensation could be paid, evaluators from government would calculate, evaluate and fix prices to all improvements on a land, short of depreciation. A documentary evidence and proof works and investments on a land (like invoices and receipts) would aid the computation. Know you all men that no compensation can ever be paid to a landlord for an undeveloped, bare land for he has expended nothing on it!
A Compulsory acquisition of a land can never come like “Jesus Christ”, whom the Scriptures say would come like a thief in the night. There are notices, letters and reminders that must be sent by government to a landlord before a compulsory acquisition of his land. A landlord whose land is to be compulsorily acquired must receive a written notice from a duly authorised public officer on behalf of the Governor. If such notices are not served on a landlord he can legally contest the invalidity of such acquisition.

4. RIGHT TO ISSUE A NOTICE TO QUIT.
One of the greatest powers of a landlord is “right to rent and un-rent” his property. He has the right to hire and fire a tenant. No willing tenant can force himself or herself on the property of an unwilling landlord. Put it this way, every landlord has a right to say NO. But in saying or doing such, a landlord must do it within the provisions of the prevailing tenancy agreement and laws. The first step towards the removal of a tenant is the service of “Notice to Quit” (popularly termed “Quit Notice”). Generally, the law allows a tenant and his landlord to agree as to rent, duration of rent and notices to be issued. Hence, both can agree that the tenant be issued no “Notice to Quit” at all or a “Notice to Quit”, that is shorter than the statutorily provided periods. Since tenants are often desperate to sign agreements and pack into buildings, shylock landlords add draconic terms that may even waive tenants’ right to be issued a notice to quit. But where a landlord and his tenant fail to agree as to the duration of a notice to quit in their agreement, the law will take its course. Going by the law, where there is no tenancy agreement as to notice to quit, a landlord is to issue 6 months notice to quit for a yearly tenancy or a tenancy above one year and 1 month notice to quit for a monthly tenancy. Finally, a week tenancy requires one week notice to quit while a daily tenancy requires a day notice to quit. Where a landlord and his tenant failed to agree on the type of tenancy to run and the court would determine such through the periods for demand and payment of rent.
Landlords can serve valid “notice to quit” on their tenants without the aid of lawyers. A notice to quit cannot be orally delivered rather it must be written. A written notice to quit must contain the name of the landlord and his tenant. Address of the house/property, duration of the notice and date of expiration must be included in a notice to quit. Writing of a notice to quit is not an exclusive work of a lawyer, a landlord, his caretakers, estate managers and other agents can do such. A landlord must calculate and serve such notice to end on the eve of the anniversary of the subsisting tenancy of his tenant. Hence, for a tenancy that would end on 31st of August 2011, its valid notice to quit must end latest on the eve of 31st August 2011 for if it crosses over to 1st of September it would be invalid. A notice to quit that runs into a new tenancy period is invalid. A landlord must make sure his notice to quit is served personally on his tenant while an acknowledged copy of service of same is collected from the tenant. Please note that refusal to collect or receive rent is not a Notice to Quit. Even the acceptance of arrears of rent or rent itself from a tenant does not put an end to a subsisting notice to quit served on. A landlord need not issue a notice to quit to a tenant that has owed rent for 3 consecutive months or whose tenancy has expired or who has contradicted any of the conditions and terms of tenancy. For the sake of the above technicality, a landlord should engage the service of a lawyer.


5. RIGHT NOT TO ISSUE A NOTICE TO QUIT.
Ignorantly, most tenants argue endlessly with their landlord over his non issuance of a “Notice to Quit” on them. On the other hand, some landlords do issue “Notice to Quit” when they need to so. The truth is that a landlord has a right to issue a notice to quit and also a right not issue a notice to quit.
First of the instances where a landlord need not issue a “Notice to Quit” is where a tenancy agreement contains such. By tenancy agreement between a landlord and his tenant both can waive the issuance of a notice to quit on tenant. The law allows such and will honour same, for both parties have the right to determine the terms and conditions of their tenancy agreement. Practically, most tenants are always in a haste to move into houses/properties at all cost and would hurriedly sign anything. Hence, landlords can insert “Notice to quit Waiver Clauses” in tenancy agreements to afford them its consequential right. With such a clause a landlord need not serve even a day notice to quit on his tenant. Once the tenancy agreement was signed wilfully the court will honour it and assist in its execution.
The second instance is where a tenant contradicts a written term or condition of his tenancy agreement. In such circumstance his landlord need not issue him a notice to quit before embarking on further steps to evict him. For example, where a tenancy agreement provides that a building be used solely for residential purposes and a tenant turns such a building into a commercial, business or industrial use, his landlord need not serve him a “Notice to Quit”.
Thirdly, where a tenant has been in debt of arrears of rent for three (3) consecutive months, he requires no “Notice to Quit”. The 3 months must be together and not having a new paid month(s) in between them. The rent must have been demanded for by the landlord or his agents.
Lastly, where a term, tenure, duration of tenancy has expired and a new one is not renewed a landlord need not serve a “Notice to Quit” on his tenant. It plays to logic, because you need not give a notice of your intention to terminate what had already terminated. So at the lapse of a tenancy by effluxion of time a tenant requires no “Notice to Quit” from his landlord.
In all the above four instances, landlords can dispense the service of a “Notice to Quit” upon their tenants while they employ other eviction processes like the service of “7 Days Notice of Owners Intention”.

6. RIGHT TO ISSUE 7 DAYS NOTICE.
A landlord is the perpetual owner of his own property, being occupied by a tenant for a certain term. Upon the expiration of tenancy or occurrence of certain events the property reverts back to the lawful owner; landlord. Tenants are not owners of the buildings they occupy no matter how much they pay or how long there have been on it. Hence, a landlord has the right to recover back his property from any tenant.
In the process of evicting and recovering premises, a landlord has the right to issue a “Seven Days Notice” of his intention to recovers such premises to its occupier. In the legal chronology of processes for eviction and recover of premises, a “7 Days Notice of Owners Intention” comes after a “Notice to Quit” must have been served and had expired. Although like I had explained earlier in Right No. 5, they are instances where a landlord need not serve a “Notice to Quit”. In such instance, the landlord may just serve a “7 Days Notice of Owners Intention” straight away on the tenant. Unlike a “Notice to Quit” a “7 Days Notice of Owners Intention” can only be drafted by a lawyer. The “7 Days Notice of Owners Intention” will state that the landlord’s lawyer (solicitor) will proceed to court to evict the occupant of the premises if such occupant fails to give up his possession within the specified seven days. Upon the expiration of seven days, the lawyer will pray the court to evict the occupant and order any unpaid rent and mesne profit to be paid. No tenant can take away the building of a landlord from him or occupy his building without paying for such. Every period of occupation of a building must be paid either as rent or as mesne profit (mesne profit is a legal terminology for the amount owed by a tenant to a landlord from the date his tenancy expired till the date he packs out of the building and gives up possession to the landlord)

7. RIGHT TO ENTER A LENT PROPERTY.
Tenancy is not alienation, assignment or sale of ownership from landlord to his tenant rather it is the leasing, renting, giving of some certain term, period, tenancy or lease to a tenant. It does not matter if such was done for a price called rent or not. Consequently, the all time ownership of a property rests on the landlord who only gives right to a tenant to occupy same. Hence, a landlord has a right to enter upon his lent property at will. Yes, it is his property for life against his tenant; once a landlord always a landlord!
A landlord is equipped with this right in law to afford him the opportunity to supervise and monitor his property to avoid unnecessary damage in the hands of destructive tenants. A landlord needs to know what goes on his property to make sure tenants abide by their binding tenancy agreement. Squel to this right, some smart tenant would demand the landlord to sign in their tenancy agreement that he would only enter upon the property in the day time and not at odd hours of the night. Well that is okay. Besides, landlords need to respect tenants’ fundamental human right to private and family life as enshrined in the constitution. Landlords should not result to self-help, like breaking tenant’s door, loosening tenant’s doors, windows and roof, beating tenants or locking them up in their flats or rooms in order to forcefully gain access or recover rent or possession. For any of above acts, a tenant can sue the hell out such a landlord, both in civil and criminal law.


8. RIGHT TO RENEW TENANCY.
It is not mandatory that a landlord must renew his tenancy with a tenant; a landlord can decline without reasons. This right is one of the measures a landlord can use to offload a non-conformist or compliant tenant. A tenant cannot force himself upon a landlord. It is the exclusive rights of a landlord to determine his tenants. Hence, a landlord can only renew tenancy for his good old desirous tenants.
All landlords should include their rights to renew tenancy in their tenancy agreements. A “Tenancy Renewal Clause” should contain the time within which a tenant can apply to his landlord for renewal and also the mode of such application. This may look absurd but I bet you it clears off any air of assumption. All these are good foundation for an enjoyable “landlordship”!

9. RIGHT NOT TO REIMBURSE A TENANT.
A landlord owes a house and not a tenant. While a landlord owns a house and a tenant uses same, some repairs are for the landlord and some for his tenant. The nature of repairs can be clearly contained in a tenancy agreement to avoid doubt and unfounded assumption and problems. In practise, landlords for the sake of averting depreciation carryout repairs that should have been done by their tenant. Sometimes, tenants carry out repairs that are due to their inhuman landlords who care only for their rents. Some tenants after make repairs on building do subsequently seek to deduct their expenses from the rent due to their landlords. In some circumstances, the tenants may even demand for an outright defrayment of cost of repairs on the building.
Hear this; a landlord is not a master of his tenant neither is a tenant an agent of a landlord. Each of them is independent and none represents the other in profit or in loss. Hence, a landlord is not bound to reimburse his tenant for expenses incurred from repairs neither is a tenant responsible for a landlords cost of repairs on his building. Even if a landlord orally agrees to have such cost deducted from his tenant’s rent it still does not stand. A landlord can only be legally responsible to repay the expenses of his tenant if there is a written agreement between the landlord and his tenant as to such repayment. Equally, a landlord has a duty not to demand his cost of repairs from his tenants after they had paid their rent.

10. RIGHT TO REVIEW RENT.
The only thing that does not change is change itself. Landlords are in business, for their buildings are their investments while a quality rent is their rightful expectation. As policies, time and economics change landlords change their rent price. Unfortunately, the change is always an increment and never a decline, not minding depreciation on buildings. Well, it is the right of a landlord to review his rent price although within the percentage range in the “Rent Review Clause” of his tenancy agreement. Although a landlord can review his rent, he cannot do such during an existing tenancy and demand his tenants to pay up the difference. A rent review must be for a fresh tenancy and not for a subsisting tenancy.
With the above ten rights of a landlord you need not search further to know why the word “lord” is attached to the title; “landlord”. It is unfortunately, some landlords don’t enjoy half of their rights due to ignorance. To enjoy the above rights in its fullness, I advise you to consult a lawyer and get a better tenancy agreement. Join me next edition as I expose to you to the surest and most secured ways of buying lands in Nigeria. Thank you.

http://www.learnnigerianlaws.com/index.php/law-articles/landlord-and-tenant-law/23-rights-of-a-landlord