Everyday Law

Legal snippets to never forget when dealing with the Nigerian Police

fredericknkobowo

October 18, 2022

In this piece, we will deal with some points of law you should not forget when you are dealing with the Nigerian Police. Our discussions cover the EFCC as well as other security agencies in Nigeria. So, our repeated use of ‘Police Officer’ does not exclude other security agencies.

Also, in between our discussion, we will make reference to what the Courts have said while calling the Police to order and enforcing the rights of citizens.

Is Police Torture Legal in Nigeria?

No, it is not. The torture of persons by the Police is illegal in Nigeria. Torture by the Police amounts to an abuse of the fundamental rights of suspects who are under investigation for committing crime(s). The Police have no right to torture a suspect – whether as part of means to obtain a confession or as part of routine investigations. To make matters clearer, the Anti-Torture Act of 2017 makes the torture of suspects in Nigeria a crime. This applies to the Police, the EFCC, and other security agencies.

For emphasis, Section 9(1) of the Anti-Torture Act is to the effect that anyone who tortures a suspect can be prosecuted, convicted, and sentenced to imprisonment for as much as 25 years.

You can read – Sections 2, 3, 9 of the Anti-Torture Act 2017

In addition to the provisions of the Anti-Torture Act, a police officer involved in the torture or dehumanizing treatment of a Citizen could be dismissed from the Police Force after proper administrative/disciplinary action. On the 9th of August 2022, a Police Officer who was caught in a viral video beating a man with machete was dismissed from the Police Force. You could argue that if the video not gone viral, nothing would have happened and the officer would have continued on his merry way. Our Nigerian minds might want to agree with you in part. But, if such a case was tried in Court, chances are the Police officer and the Police Force would bear serious consequences as well.

Where a person is tortured to death, the Police officer (or other security official) responsible for such can be tried for murder and if found guilty, he or she can be punished accordingly – Section 9(2) of the Anti-Torture Act. In other words, a Police officer who indiscriminately[1] kills a fellow citizen has committed murder.

With all we’ve said you might still be tempted to ask – do Police officers ever get punished for indiscriminately killing innocent citizens? Yes, they do. The instances of these punishments may not be frequent enough to bring sanity to the system but the law still takes its course in many cases.

Here are some links to some news reports of Police officers punished for their wrong conduct;

We have mentioned that the torture of persons (suspects) by the Police amounts to an abuse of the fundamental human rights.  By Section 36(5) of the 1999 Constitution, every suspect even when eventually charged to Court is presumed innocent. Also, by Section 34 of the Constitution every individual (including a suspect) has the right to be treated with dignity. In effect, a suspect that has been tortured can sue the Nigerian Police Force for their infringement of his fundamental rights and claim monetary compensation.

We will give you an example of a case in this regard.

This example is a real-life story and it happened in Yola, Adamawa State. The story is as simple as it is common[1]. On the 16th of May 2016, Police officers wearing mufti raided Zaranda Street in Yola. Mr Kabiru Ahmadu who was present during the raid asked the Police officers to identify themselves. This annoyed the Police Inspector who was part of the operation. And Mr Ahmadu was arrested simply because he had the ‘guts’ to ask the Police officers dressed in mufti for some identification. In Mr Ahmadu’s words to the Court, the Inspector said in hausa “ba kasan yan chin ka ba, sai naji maka da dare” meaning “You claimed to know your right I will deal with you tonight”.

Mr Ahmadu was taken to the Police station and locked up. Throughout the night he was beaten until he went into a coma. When the Police officers saw the state in which he was, they attempted to take Mr Ahmadu home to his family. Mr Ahmadu’s father refused to accept his son in such terrible condition insisting that when the Police arrested his son, he was healthy. The Police officers then took Mr Ahmadu to the Hospital where he remained unconscious for 30 days.

Mr Ahmadu sued the Police and the Inspector. The Court gave judgment in his favor and awarded damages (monetary compensation) against the Police.

Don’t forget:

“The mere allegation of crime or wrongdoing against a suspect irrespective of its seriousness cannot operate to curtail the fundamental rights of the suspect nor can it operate to justify the incarceration and torture of the suspect.”

Statement of the Court of Appeal in the case of Duruaku v. Nwoke

Can the Police Detain Anyone for More than 24 to 48 Hours?

Generally speaking, the Police lack constitutional powers to detain anyone for more than a maximum of 48 hours without a court order. But in limited cases, they can detain suspects for more than 48 hours. Section 35 of the 1999 Constitution of the Federal Republic of Nigeria is clear on this point.

Let’s make it a bit clearer – By Section 35 of the 1999 Constitution, a Police officer can detain you for a maximum of 24 HOURS. After that, they must charge you to court. But if it is not possible to bring you to court within 24 HOURS because no court is close by or the following day is a weekend, they must bring you to court within a maximum of 48 HOURS. After this 24 or 48-hour limit, only a court can order that you be detained further. The Police cannot detain you further on their own.

Now if the Police cannot bring you to court within the 24 or 48-hour limit, you must be released on bail except for those cases where you are suspected of having committed an offence punishable with death (i.e. capital offences). The Police have no power to release you in capital offense cases so they must charge you within the 24 or 48-hour time frame or bring you before a court to obtain an order for further detention[2].

Glory Okolie’s Case

You might have read of the case of Glory Okolie; the suspected IPOB spy detained for months by the Police. Some news reports have her name as Gloria Okolie. After her release, she sued the Police and the Court gave judgment in her favour.

What to Note While in Detention

  1. Understand that at the point of arrest, the law presumes you innocent of committing any crime until the contrary is proven in a court of law.
  2. Ask to contact your family, friends or a lawyer. You have that right.
  3. Do not confront Police officers violently or engage them in a heated argument.
  4. If you have not been told, ask them why you are being arrested and detained.
  5. Try to memorize the officer’s name. If they are in mufti, ask the arresting persons to identify themselves.
  6. If you are assaulted, tortured and wounded by the security agent, ensure to take photographs of the wounds and request a first aid.
  7. Say nothing, if you are scared or in doubt and speak with your lawyer first. In other words, you have a right to keep shut until you have spoken with a lawyer or other person of your choosing – Section 35(2) of the Police Act and Section 36(2) of the CFRN. In case you are to be arrested, the Police are to inform you of this right – section 35(2) of the Police Act
  8. You must not make a statement at the Police Station, but it is advisable to do so.
  9. Sign the statement when you are satisfied that it is accurate and reflects the facts fully.
  10. If the Police obtain your statement by force, threat, promises or favours, that statement cannot be used against you in court.

Can the Police Declare Someone a Criminal?

No, the police have no power to declare anyone a criminal. Such power lies with the Court.  The police only have power to investigate a crime that they have reason to suspect has happened or is about to happen. They also have powers to arrest people suspected to have taken part in committing a crime. Once these suspects are arrested, they are to be taken to Court where they will be put on trial for the alleged offences. After the trial and if the Court finds them guilty – they will then be convicted and the appropriate sentence will be meted out on them. It is at this point of conviction that a person is really ‘declared a criminal’ and it is only the Court that has the powers to make such a declaration (or in other words convict anyone of crime i.e. declare someone a criminal).

To add to the point being made here, don’t forget that the Constitution presumes everyone innocent until their guilt is proved in Court and accepted by the Court. Because of this presumption of innocence, the police cannot legally declare anyone a criminal before such a person has had his day in Court. See Section 36 (5) of the Constitution for the presumption of innocence provision.

If I am a Suspect, Can the Police Arrest My Relative when They Don’t Find me?

A situation where the Police arrest someone in place of another is called ‘arrest in lieu’. And this practice is illegal. We should sound like a broken record on this point by now. You can read our previous article on this issue here.

Summarily, it is illegal for the Police to arrest you for an offence you did not commit and in place of another person (the real suspect). Criminal liability is not sexually transmitted neither is it transferable by blood ties.

Various provisions of the law support what we have said above, they include; Section 7 of the Administration of Criminal Justice Act 2015 and Section 36 of the Police Act 2020.

Can the Police Just Pick You up and Throw you into a Cell without Any Lawful Instrument?

The Police can arrest you. In some cases, the Police do not need a warrant of arrest (i.e. a lawful instrument) to arrest you. The Law allows the Police to arrest but the Law puts some checks in place to prevent them from abusing this power of arrest. One check is that, the police cannot (or should not) detain you for more than 48 hours without a Court order, just as we have already mentioned.

More precisely, the Police can you arrest without warrant (i.e. a lawful instrument) in some instances provided for under the Law. Section 38 of the Police Act lists some of these instances –

1.         Where the offence is committed in the presence of the Police officer

2.         When a person escapes from lawful custody

3.         When someone obstructs the officer in the performance of his duty

4.         When someone is found in possession of an item reasonably suspected to be stolen

The long and short of what we have said is that even where the Police arrest you without a lawful instrument (i.e. a warrant of arrest) they cannot detain you beyond the constitutionally allowed time limits. If they do so, you have the right to sue for the enforcement of your rights.

Can the Police Arrest you because of a Debt, Land or Family Issue?

Let’s make it very clear: The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of civil disputes.

Also, don’t forget, it is not a crime to be in debt in Nigeria. There is no law that makes owing of loans or debts a criminal offence. At best, owing a loan and not paying it back would constitute a civil dispute. And remember, the Police have no business in settling civil disputes. That business is for the Courts. Just to be clear, civil disputes also include – family crisis, land ownership tussles etc.

Should you use the Police to haunt your debtors under the guise that they have defrauded you, you could be courting trouble for yourself. What we fully mean is that you could and would be liable for any fundamental rights infringement the Police carry out on your debtor due to your petition to them (the Police). In the words of the Court of Appeal; “The position is and has always been that the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police.”[4]

Also, the police themselves have a duty to sift through petitions presented to them to tell if a truly criminal element exists that is worthy of the exercise of their powers.

Let’s not forget, you are not to be arrested merely because of a civil wrong – Section 32 (2) of the Police Act.

The law is settled that in exercising their powers under the law, the arresting authority must act strictly within the confines of the law. Implicit in the powers of the police or any law enforcement agent to arrest or apprehend a person upon a suspicion of having committed a crime is the duty and responsibility to scrutinize any complaint laid before them and to be reasonably satisfied that there is a ground to proceed on an investigation of a complaint.

– Statement of the Court of Appeal in the case of Obinegbo & Ors v. I.G.P & Ors

SOURCE: ChannelsTv

Key Take Aways:

Point 1: Police Men are not above the Law

A key point you should take from this piece is this – Police officers are to carry out their duties within the limits of the law. Therefore, there are things they are not legally allowed or permitted to do. 

So, when Police Officers cross the line (or break the law) in the course of carrying out their duties, they can be sufficiently punished.

As we have mentioned already, a Police officer could be convicted of the murder of a citizen. You can sue a Police officer who violates your fundamental human rights and be compensated in damages. In addition, a Police officer could be dismissed from the Police force for his professional misconduct.

Point 2: Police Officers are to protect the Rights of Citizens, not abuse them

By Section 4 of the Police Act, the Police are to protect lives and property and by Section 5, they are to promote and protect the fundamental human rights of citizens in their custody and all other citizens. The Fundamental rights in question extend to fundamental rights guaranteed under the African Charter on Human and People’s Rights (Ratification and Enforcement Act).

You are not to be arrested merely for a civil wrong – Section 32 (2) of the Police Act.

The Police are not debt collectors, and are not to settle family disputes and business contracts.

By Section 35(1) and (7) of the CFRN the arrest and detention of a person/citizen is to be on the reasonable suspicion that a CRIME has been committed. Usually, the instigation of the Police to recover debts (or to get involved in civil disputes) is carried out by fellow citizens but the Courts are now willing to and often award/grant damages against persons that wrongfully instigate the police in such matters.

Also, the police themselves have a duty to sift through the petition presented to tell indeed if a truly criminal element exists that is worthy of the exercise of their powers.

Written by Nkobowo Frederick LLB

Nkobowo Frederick Nkobowo is an astute lawyer and alumnus of the University of Uyo. He is currently a Senior associate in Compos Mentis Legal Practitioners; one of Nigeria’s foremost indigenous law firms. As part of the Dispute Resolution Practice group of the firm, he currently specializes in Banking law, employment law as well as oil and gas litigation. He is also an Associate of the Chartered Institute of Arbitrators, Nigerian Chapter.

In the Course of his practice, he has successfully represented corporate organizations and individual clients in handling various high net worth claims in various Courts across the nation. With a penchant for detail, he is known to sift through the mesh of facts and law to achieve justice for clients within the bounds of the law. This has led to the win of many multi-Million naira claims filed against his Clients.

When he is not solving knotty legal problems, he could be cooking another hopefully intriguing meal, savoring art or reading. In 2021, he published his first literary work named “Brambles and Roses”.

Case references:

Akila v Director SSS (2014) 2 NWLR (Pt 1392) 443

Obinegbo & Ors v. I.G.P & Ors (2020) LPELR-50980(CA)

Duruaku v. Nwoke (2016) All FWLR (Pt. 815) 351 at 395, Paras. E- F

NPF & Ors V. Omotosho & Ors (2018) LPELR-45778(CA)

Nkpa V Nkume (2001) 6 NWLR, PT 710, 543

Ogbonna V Ogbonna (2014) LPELR-22308 (CA)

Salami V Olaoye (2018) LPERLR-47256 (CA)

Gusau V Umezurike (2012) AFWLR, PT 655, 291

Osil Ltd V Balogun (2012) 7 WRN, 143

Ibiyeye V Gold (2013) AFWLR, PT 659, 1074

CP. Ondo State & Ors V. Kiladejo (2020) LPELR-52286(CA)

[1] Case citation is Nigeria Police Force & 2 Ors v Kabiru Ahmadu (2020) LEPLR 50317 (CA)

[2] Source: Street lawyer Naija – https://streetlawyernaija.com/right-to-personal-freedom-in-nigeria/; See Also, Section 35 of the 1999 Constitution

[3] See also Street Lawyer Naija

[4] Case references – NKPA V NKUME (2001) 6 NWLR, PT 710, 543; OGBONNA V OGBONNA (2014) LPELR-22308 (CA); SALAMI V OLAOYE (2018) LPERLR-47256 (CA); GUSAU V UMEZURIKE (2012) AFWLR, PT 655, 291; OSIL LTD V BALOGUN (2012) 7 WRN, 143; IBIYEYE V GOLD (2013) AFWLR, PT 659, 1074.

In CP. ONDO STATE & ORS v. KILADEJO (2020) LPELR-52286(CA) the Court said – The powers vested in the 1st and 2nd Appellants (the Police) under the Act does not include the use of the criminal process to resolve or influence the resolution of any civil dispute under the guise of investigating criminal features in such disputes. 

[1] Indiscriminately is used here to mean kill without legal justification/a trial

In this piece, we will deal with some points of law you should not forget when you are dealing with the Nigerian Police. Our discussions cover the EFCC as well as other security agencies in Nigeria. So, our repeated use of ‘Police Officer’ does not exclude other security agencies. Also, in between our discussion, we will make reference to what

Law and Business

Benefits of Registering your Business with the CAC in Nigeria

fredericknkobowo

March 23, 2022

Do you own and run a business in Nigeria? If so, in this article we will answer the question of whether indeed you should consider getting your business registered or incorporated with the Corporate Affairs Commission (CAC)[1]. We will also inform you of the various business structures that are currently available in Nigeria so that you take them into consideration when choosing which legal structure best fits your business needs and goals.

It is a surprising fact that many small and medium scale business owners in Nigeria do not consider it important to register or incorporate their businesses. Some of these business owners avoid registering their business because they believe that non-registration ‘protects’ their business from paying taxes.  But is this true? We will answer that too.

While controlling or minimizing tax obligations should definitely be a foremost consideration for every business, there is a proper way to go about that. Not registering your business is definitely not part of it. No one wants to shoot himself or herself in the foot. This is exactly what not registering your business is comparable to.

For any progressive business, the advantages of registration (especially using a well-considered business structure) completely outweigh the supposed advantages of not getting registered.

So let’s get to it.

In Nigeria, the benefits of registering your business include the following –

  1. It is one way to Protect your business name/identity – Now let’s imagine that you run a food business. In recent times your business has been booming and your bank account is in fact swollen to the limits. Your happy customers call and popularly know you as ‘Miss Pepeye’. Your food restaurant is also popularly known as ‘Pepeye Buka’.  In fact, once Pepeye buka is mentioned in any part of town, no one argues that it is your business that is being referred to.

If for whatever reason your business is not registered or incorporated with this name (or an identical name) or this name is not trademarked, there exists the risk of a Competitor coming up tomorrow to name its business with the exact same name that you have diligently built your business with over time – Pepeye buka.

So let’s imagine that Mrs Atiku – your competitor who is so jealous, approaches the Corporate Affairs Commission (CAC) to register her own food business with the Name – Pepeye buka. Guess what? If you did not register your business before Mrs Atiku’s move, there is nothing stopping her from succeeding with her move. She could get her own ‘Pepeye Buka Enterprises (or Nig Ltd)’ registered with the CAC; in effect successfully using the same name everyone knows you and your business by. And the result would be?  Mrs Atiku would automatically become the ‘legally recognized’ owner of the business entity legally recognized by that name and all your hard-work in building the ‘Pepeye Buka’ brand and getting the goodwill of customers will be ascribed to Mrs Atiku.

The point from our story here is – registering/incorporating your business is a major step towards legally maintaining exclusive use of the name you have given your business. Every business person knows how important branding can be. Once people get to know your business name (or brand) and attach goodwill and loyalty to it, the next most important thing is to prevent competitors from using that name or brand without your permission. In effect, registering your business is the first step to making your business identity exclusively yours and unique to you. No second business can validly be registered with the Corporate Affairs Commission using your business name once your business is registered/incorporated. For a second business to be registered with the same name, they would need your consent to do so. Section 852 of the Companies and Allied Matters Act

Registering your business even keeps competitors away from using a name that is identical or very similar to your business’ name. This is to prevent a situation where a competitor uses a name nearly resembling your business’ name for the purpose of outsmarting customers into thinking both businesses are owned or operated by the same person.

Benefits of registering your business with the Corporate Affairs Commission in Nigeria.
  • It helps you Set up a proper legal structure for your business – Registration helps you choose a legal structure that is best suitable for the long term growth and sustenance of your business. Therefore, you could choose to register your business as a business name, a limited liability company, a public liability company etc. Each of these structures are different and have their different legal implications. Building a business is almost identical to building a house. No matter how beautiful the exterior of a house is, its most important part is actually its foundation. Same thing with registering your business. When your business is registered with the Corporate Affairs Commission, you are able to structure your affairs properly.
  • It helps you Separate your business liability from your personal liability – Proper registration can help you separate your business liability from your personal liability. This effect (or concept if you would) of separating your business liability from your personal liability is called ‘limited liability’. Big grammar? I’ll break it into molecules. Liabilities of a business are simply what the business owes. While running a business, most times the business incurs debts. Suppliers, employees and maybe more persons could be owed. Now, you would not want these debts arising from the business to cross into your personal account. Put differently, you would not want to be personally liable for the debts of your business.

In effect, it is best that business liabilities should remain as such while your personal liabilities remain absolutely different. You don’t want any situation where like an evil spirit, your business debts roam into your personal account and swallow all the money there. This means you want any future liabilities from the business to be ‘limited’ to the business. Registering your business as a Company helps your achieve this.

So that, when the loans were gotten by the company and in the worst case possible, the company is unable to repay these loans, all steps at recovering the debt will ‘generally’ be limited to the Company’s assets[2]. This is because of the limited liability concept.

The opposite or reverse of the limited liability concept is ‘unlimited liability’. Unlimited liability applies when the business is not registered and when it is registered as a business name. In effect, not all types of registered business entities enjoy limited liability. When liability is unlimited, there is no separation between business losses and the losses of its owners.

A simple illustration may be able to drive home this point better;

Lets imagine that you took a loan from the bank to start your mechanic business. Contrary to your projections, your business did not perform so well and your plans went south. The situation even becomes worse because due to the business problems, you are behind on your loan repayments and you now owe the bank.

Since the loan is in your name (or even when you took it using a business name), you are personally and fully responsible (liable) for repaying the loan. If the Bank sues, the bank may be authorized by the Court to take over any properties (assets) that are in your name (like your house and land) and sell them to recover the loan amount you are owing. This is a clear instance of “unlimited liability”. In this situation, your personal assets are at risk and business failure could lead to personal bankruptcy.

The reverse is the case where the liability is limited.

Thankfully, under the current CAMA 2020, one person can register a Company. This means, even though you are the only Director in the Company, by law, you are different from the Company. With this structure, and a proper management of the legal risks of the Company, your personal assets – such as your house and car, would be save from business debts (or liabilities).  

  • Registration Enables you Earn trust of Clients/Customers; People and other businesses generally find it easier to do business with a registered business. This is because a registered business has rights and duties under the law, and this will give them (especially new clients/customers) the confidence that they are transacting with a reputable entity. Registration also helps you gain business credibility when dealing with business investors or financiers as well as bigger companies. Most big investors don’t usually like dealing with one-man enterprises that have no projection towards achieving growth. Registering your business shows the existence of that projection.
  • Registration helps ensure business continuity; on this benefit, it is important to note that when a business is registered as a company, the Law considers the Company to be a different and separate legal entity from its owners/founders. Due to this, the Company can enter into contracts, buy properties and own properties too. This separation of the company from its owners means that the Company can continue to exist even when its original founders and owners are long dead. Also, since the company is an entity in itself, it is possible for its directors to change over time so that the business continues. This is usually not the case with one-man enterprises where the business is so connected to the its founder that if the founder for any reason is missing in action, the business is missing as well.

An example here might help make this point clear. First Bank of Nigeria was established in 1894, it is unimaginable to believe that the founders of the Bank are still alive. But even with their demise long ago, First Bank continues to exist as a going business concern.

“Proper Business registration can give your business long life”

To show how far reaching this benefit is, when a company runs into serious troubled waters, since it is in the eyes of the law a legal person, there are various legal means of saving the company or preventing its death (that is keeping it from going bankrupt). These means of keeping the company (and its business) alive are called ‘company restructurings’[3]. As a restructuring option, the failing company can be bought over by a more profitable one. It can even ‘marry’ [in legal parlance ‘merge with’] a more successful company and remain in business as a new company or a part of the more successful company. When the former Diamond Bank headed into a bit of business strain, Access bank bought it over and so the customers of the Bank and business (previously operated as Diamond Bank) was absorbed into Access Bank and business continued.

  • Easier Access to loans, business grants and Government incentives; As a registered business, it is relatively easier to access loans to start or expand your business operations. This is because as mentioned earlier, more established businesses and even government establishments (in many cases) find it easier to trust and do business with registered businesses. An example of government grant that was available to only registered businesses was the recent Federal Government payroll support for SMEs to help caution the devastating effects of the pandemic on these businesses.  
  • Helps you comply with the laws applicable in regulated industries/Business Sectors – most times registering your business is compulsory. This is because, there are industries and businesses that by law, you cannot undertake without properly registering a company. Because of how sensitive these industries and businesses are, it is actually compulsorily required that only registered companies run these kind of businesses. Examples of such businesses are the banking and insurance businesses. Before anyone can set up and run an insurance business or Banking business in Nigeria, the law compulsorily requires that a company is registered for that purpose. ‘Ever wondered why you have not seen a bank in Nigeria called Okorodichukwu & Sons Enterprises yet?’ 

The benefit of registering the business in an instance like this is that it helps you comply with government regulations governing your business so as to prevent your business operations from being shut down by the government.

  • Can open a business bank account – Usually before a Bank will accept to open a Bank account in the name of your business or enterprise, the Bank will ask for the registration/incorporation documents of your business. It is not arguable that using a corporate account for your business strengthens the trust, confidence and credibility of your business before clients/customers, bank and partners. Besides using a corporate account looks professional and beats using a private account. But to get one, you need to register your business with the Corporate Affairs Commission.

For further inquiries or clarifications on this piece – you can us chat up via; http://wa.me/+2347083595771 or Call us on +2347061432534.

[1] In this article we use the words ‘incorporate’ and ‘register’ interchangeably to refer to the process of having your company legally recognized and identified by the Corporate affairs commission

[2]  There are cases where this is not the case, that is to say, recovering a debt many tap into the personal assets of the Company’s owners or directors. This could happen where the Company directors sign person guarantees to get the loan and when the personal properties of the company directors are used as collateral for the loans.

[3] https://www.investopedia.com/terms/r/restructuring.asp

Registering your business with the Corporate Affairs Commission can be beneficial.

Read more to find out.

Learned Scribbles Law Central

STEP-BY-STEP PROCEDURE ON THE CONDUCT OF GARNISHEE PROCEEDINGS IN A NIGERIAN HIGH COURT

fredericknkobowo

November 4, 2023

Garnishee proceedings is one of the ways of enforcing money judgments in Nigeria. The nature of the garnishee proceedings is as prescribed in Section 83 to 92 of the Sheriffs and Civil Process Act.  The procedure allows the judgment creditor to reap the fruits of the judgment by recovering debts owed by third parties to the judgment debtor. The garnishees are in some cases banks and the debts are usually the monies in the account of the judgment debtor domiciled in the banks. Although garnishee proceedings are usually an offshoot of judgments, the proceedings are in a class of its own. A garnishee proceedings is instituted by a person who has obtained judgment in its favour. The essence of the proceedings is to ask the court to compel a third party in possession of funds belonging to the judgment debtor to give up such funds to the person who has obtained the judgment, that is, the judgment creditor.

Parties to Garnishee Proceedings

  1. The Judgment Creditor: This is the party who has emerged victorious in a case and has obtained the judgment of court in that regard. The judgment creditor is usually the successful litigant who has now instituted garnishee proceedings to reap the fruits of the judgment.
  • The Judgment Debtor: The Judgment Debtor is the unsuccessful party at the end of a litigation. It is the party against whom judgment has been delivered. By reason of the judgment against him, he is indebted to the judgment creditor.
  • The Garnishee: This is the third party who is in possession of funds belonging to the judgment debtor. Typically, garnishees are banks. However, garnishees can be employees, employers etc. The important factor that qualifies an individual or organization to be a garnishee is that individual’s or organization’s possession of funds belonging to the judgment debtor.

Procedure for Garnishee Proceedings in Nigeria

Step 1:

Obtain a judgment of court: Garnishee proceedings are predicated on a judgment of court. Thus, the judgment creditor will need to obtain the Certified True Copy (CTC) of the judgment. The CTC will be relevant for the next procedural step.

Step 2:

Prepare and file an application to the court for the grant of a Garnishee Order Nisi. The application is usually a motion ex parte with a supporting affidavit. The CTC of the judgment has to be attached to the supporting affidavit as an exhibit. If the rules of court of your state of jurisdiction requires, you can accompany the motion with a written address.

Step 3:

Appear in court on the stipulated date and move your application.  Once the court is satisfied with the facts supporting your application, the Garnishee Order Nisi will be granted.

Step 4:

Once the Order Nisi is made, approach the registrar of court to draw up the order for service on the garnishees. Obtain the enrolled order and effect service of the same on the garnishees and the judgment debtor. Once the garnishees are served with the order, they will appear, as mandated by the order, to explain why the order should not be made absolute against them. They would do that by filing what is called an “Affidavit to Show Cause”.

Step 5:

On the next adjourned date, the Garnishees will appear in court to show cause. The Judgment Creditor’s lawyer will apply to the court to discharge the garnishees who have shown that they are not in possession of the judgment debtor’s funds. It is usually an oral application. Then, the lawyer can proceed to orally apply to the court to make the Garnishee Order Absolute against the garnishees who have disclosed being in possession of the judgment debtor’s funds. The Order Absolute directs the garnishees to pay the money belonging to the judgment debtor to the judgment creditor.

Step 6: Draft a demand letter and attach the enrolled order Absolute. Dispatch the demand letter and its attachment to the garnishees.

Written by Queen Charles Ukpo ESQ

Garnishee proceedings is one of the ways of enforcing money judgments in Nigeria. The nature of the garnishee proceedings is as prescribed in Section 83 to 92 of the Sheriffs and Civil Process Act.  The procedure allows the judgment creditor to reap the fruits of the judgment by recovering debts owed by third parties to the judgment debtor. The garnishees

Everyday Law

Hospital Detention – Can a Hospital legally detain me because I can’t pay my bills?

fredericknkobowo

October 30, 2023

Hospital Detention is Illegal

The detention of a patient who cannot pay his medical bills is not a practice that is allowed or backed up by the law. Such a detention could render the hospital or medical personnel who is responsible liable in an action for trespass to the patient (and more particularly the tort of false imprisonment – IGBOERI (2010) LPELR-4712(CA). Put simply, this means that the patient can sue the Hospital and ask the Court for monetary compensation on the basis that he or she has been falsely imprisoned by the Hospital.

The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the imprisonment has no right in law to imprison that other. (A tort is a civil wrong that causes a claimant to suffer loss or harm and leads to legal liability on the person who committed the tortious action).

In effect, the indebtedness of a patient does not give a hospital the right (in law) to detain such a patient. In fact, detaining a patient who has not paid his medical bill constitutes an infringement on such a patient’s rights to liberty and freedom of movement both enshrined in Sections 35 and 41 of the 1999 Constitution respectively. It would also amount to an infringement of the patient’s right under Article 11 of the International Covenant on Civil and Political Rights.

In 2018, the High Court of Anambra State held a hospital that detained an indebted patient liable for the tort of false imprisonment and awarded damages in the sum of N500,000 in damages against the hospital. You can read about this case HERE.

Again, Police are not Debt Recovery Agents

Also, the use of the Police to recover debt is not a practice sanctioned by the law. The Police are not debt recovery agents. As a corollary, being indebted is not a crime that could snowball or lead to criminal proceedings against a debtor. Where a party (a hospital in this instance) uses the instrument of the Police to intimidate or oppress an indebted patient, he does not go free. By a host of Court cases, the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police. The Courts have held that a person who employs the police, or any law enforcement agency, to violate the fundamental rights of another citizen should be ready to face the consequences, either alone or with the misguided government agency.

Written by Frederick Nkobowo BL, LL.B

References

Our Authorities for the above include –

  1. FBN Plc v. Onukwugha (2005) 16 NWLR (Pt. 950) 120.
  2. Nwaoboshi v FRN (2023) LPELR 60698 (SC)
  3. Article 11 of the International Covenant on Civil and Political Rights
  4. Section 35 of the Nigerian 1999 Constitution
  5. Section 41 of the Nigerian 1999 Constitution

You can read more on the practice and its legality here –

  1. DETENTION OF PATIENTS IN HOSPITALS
  2. Hospital Detention For Non-Payment Of Bills And Its Community Legal Effect By Chidera Nwokeke
  3. Curing our hospitals of a bad habit

Hospital Detention is Illegal The detention of a patient who cannot pay his medical bills is not a practice that is allowed or backed up by the law. Such a detention could render the hospital or medical personnel who is responsible liable in an action for trespass to the patient (and more particularly the tort of false imprisonment – IGBOERI

Everyday Law

Alimony in Nigeria – All you Should know

fredericknkobowo

September 21, 2023

Having been an Associate at the International Federation of Women Lawyers (FIDA), Rivers State Branch, and attended to several matrimonial causes cases, coupled with the news making the rounds about Steve Harvey’s wife asking for $200m in alimony after cheating on him, and the now old story of Achraf Hakimi wife who discovered all her husband’s properties was in his mother’s name, it appears to me that Nigerians will also settle for alimony in a failed relationship. This is quite understandable against the background that parties to a marriage in several instances have had to make compromises in every aspect of their lives; ranging from their jobs to their personal identities, and individual choices. The list is endless. Here, I have tried to answer a few questions you may have about Alimony, as practiced in Nigeria.

Q: What is “Alimony” and how does it apply in Nigeria?

According to the Black’s Law Dictionary, alimony is an allowance paid by one spouse to another by order of the court for maintenance of the other spouse while they are separated, during divorce proceedings, or after they have divorced. In Nigeria, there is no mention of the word “Alimony” anywhere in our laws. What our Matrimonial Causes Act LFN 1990 (being the principal law on the subject) in its Part IV provides for is “Maintenance, custody and settlement”. The Law has done away with the confusing terminologies of “alimony” and “maintenance” by only using the word “maintenance” even when alimony in the conventional sense is what is intended. However, I will be using the terms “Alimony” and “maintenance” interchangeably, for easy understanding.

Q: Who makes the order and to whom?

It can only be ordered by a court, and ordered against either the male spouse or the female spouse. Alimony is not only paid by a husband to his wife. Depending on the circumstance of each case, wives do pay alimony to their husbands too.

Q: What’s the purpose of Alimony?

It is to finance the maintenance of the “deserving” other spouse/party at any stage of divorce proceedings or beyond. Note that alimony is not a punitive cost nor is it awarded to mark the misconduct of either of the parties to the proceedings; it is not a punishment for the actions/inactions of any of the spouse. An adulterous man is not made to pay for his wife’s maintenance because he committed adultery. The sole purpose of making an order for the payment of alimony is to see to the maintenance of a deserving spouse.

Q: Does the type of marriage you did affect the application of Alimony?

Yes. Maintenance can ONLY be ordered by a Court where parties conduct Statutory marriage (either valid or void), which is what people call “Court marriage”, or even when done in church, the church is a registered place, authorized by law to celebrate legal marriages. This means that alimony cannot be ordered where parties are only married under customary (traditional) law or Muslim rites.

See Section 69 Matrimonial Causes Act.

This means that if you are not legally married, you are not entitled to alimony. I have had to deal with cases where parties had cohabited for a long time and suddenly the man is no longer interested in the relationship and the woman starts feeling entitled to the wealth “she helped him build”, Unfortunately, the law does not back you up. You are not entitled to anything. Your best option is suing for “breach of promise to marry”. I will refer you to this article to learn more about this option.

Q: Is there always a party entitled to Alimony?

No. The award of alimony is at the discretion of the court, that is a court of law is not bound to order alimony against any party in every divorce proceedings in Nigeria. The Court can make the order based on a number of factors including the means, earning capacity, and conduct of the parties to the marriage and all other relevant circumstances, based on the evidence before it.

See Section 70 (1) Matrimonial Causes Act.

Q: What are the principles/factors guiding the assessment of maintenance?

The court considers the following factors before making the order:

  1. The means of income and earning capacity of each spouse. This includes any income from employment, properties, investments, or other sources. The age, health, skills and responsibilities of the couple are considered for their earning capacity. 
  2. The conduct of the parties: In a case, the Court refused to award maintenance to the wife who walked out of the marriage in spite of letters and requests for reconciliation by the husband. Where the applicant for maintenance is the party at fault, the size of maintenance and whether it would be awarded at all depends on the gravity of the party’s misconduct.
  3. The financial needs and obligations of each spouse like rent, utilities, and medical bills.
  4. The length of the marriage: Generally, longer marriages result in higher alimony payments.
  5. The standard of living enjoyed by both spouses during the marriage, before the dissolution of the marriage. This includes factors such as housing, transportation, and entertainment expenses.
  6. The age and health of each spouse: If one spouse has health issues that prevent them from working, for example, they may be entitled to higher alimony payments.
  7. Existence or non-existence of a child/children of the marriage.

Q: How is maintenance paid?

The maintenance order or alimony sought, if granted by the court, may be ordered to be paid in a lump sum, weekly, monthly or as the court may deem fit to order.

Q: Are children covered by a maintenance payment?

Yes, the existence of children can affect the amount paid for alimony (maintenance). However, an order for the maintenance of children of the marriage does not cover a child who has attained the age of 21 years unless the court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of that child. The court in cases like these, directly or indirectly relating to children, always regards the interests of those children as the paramount consideration

See Section 70 (4) of the Matrimonial Causes Act

Q: What are the rights and obligations of parties?

Alimony payments involve two parties: the paying spouse (obligor) and the receiving spouse (obligee). The obligor has the right to challenge or request a review of the amount of alimony ordered by the court, in the absence of these, the obligor has an obligation to pay the amount of alimony ordered by the court. Failure to do so can result in legal consequences such as contempt of court charges.

The obligee has the right to receive alimony payments as ordered by the court and the obligation to use alimony payments for their intended purpose. They also have a right to request a review of the alimony order if their financial circumstances change.

Note:  A maintenance order made may be discharged if the party in whose favor it was made marries again or if there is any other just cause for so doing.

The following cases are instructive for your understanding of the subject:

  1. Hayes v. Hayes (2000) 3 NWLR (648) 276 at 294, 
  2. Nanna v. Nanna (2006) 3 NWLR Pt.966 page 1
  3. Ibeabuchi v. Ibeabuchi (unreported) Appeal NO. FCA/E/5/82 OF 22//9/82
  4. Nakanda v. Nakanda (unreported) Appeal CA/L/99/81 of 17/6/88.
  5. Okaome v. Okaome & ANOR (2016) LPELR-41460(CA)
  6. Ajayi-Ajagbe v. Ajayi-Ajagbe (1978) CCHCJ 193
  7. Onyia v. Onyia (1985) MCRN (PT. 11) 15

Written by Imeh Imeh ESQ

Having been an Associate at the International Federation of Women Lawyers (FIDA), Rivers State Branch, and attended to several matrimonial causes cases, coupled with the news making the rounds about Steve Harvey’s wife asking for $200m in alimony after cheating on him, and the now old story of Achraf Hakimi wife who discovered all her husband’s properties was in his

Everyday Law Law and Business

A Simple Guide to Personal Income Tax in Nigeria

fredericknkobowo

August 9, 2023

What Law Guides Personal Income Tax (PIT) in Nigeria

The Personal Income Tax is guided by the Personal Income Tax Act Cap P8 LFN 2004 (as amended)

What is your Personal Income?

Your personal income is total amount of money you make from any trade, business, profession or vocation and pension received from such.

Who is to Pay the Personal Income Tax and to Whom is it paid

The tax is imposed on income of all Individuals, Communities, Families and Trustees or Executors and is to be paid to the State of their residency for each year, i.e., the State’s Internal Revenue Service (IRS). Residents of FCT – Abuja, persons employed in the Nigerian Armed Forces (Army, Navy and Air Force), Police officers, officers of the Nigerian Foreign Service and a person resident outside Nigeria who derives income or profit from Nigeria, are all to pay to the Federal Inland Revenue Service (FIRS).

I don’t reside in Nigeria, do I need to pay my income tax to Nigeria?

Note that some nonresidents of Nigeria may still be taxed in Nigeria under certain conditions, such as where the business or trade producing the income for them is wholly or partially carried on or deemed to be carried on in Nigeria.

What is “gross income”?

“gross income” means income from all sources less all non-taxable income, income on which no further tax is payable, items exempted from tax and all allowable business expenses and capital allowance.

Will all my income be taxed?

No, not all of your income will be taxed. “Chargeable/taxable income” is the amount of the total income of an individual for a year, after any income exempted has been excluded and the deductions allowed by the Act have been made.

Income exempted from taxation are those as stated in the Third Schedule of the Personal Income Tax Act.

While the deductions to be made before arriving at your taxable income are all outgoing and expenses, or any part thereof, wholly, exclusively, necessarily and reasonably incurred during that period and ultimately borne by you in the production of the income. Such as:

  1. payable interest on money you borrowed as capital in acquiring the income;
  2. the rent and premiums on land or buildings occupied for your trade, business, profession or vocation for that period;
  3. any expense incurred for repair of premises, plant, machinery or fixtures employed in acquiring the income, or for the renewal, repair or alteration of any implement, utensil or article so employed;
  4. bad debts incurred in your trade, business, profession or vocation;
  5. a contribution or an abatement deducted from the salary or pension of a public officer under the Pensions Act or under any other approved scheme or the Nigeria Social Insurance Trust Fund or other retirement benefits scheme for employees throughout Nigeria; Etc.

Additionally, the government has granted a tax relief under the heading “Personal relief and relief for children, dependents”. The government is giving up taxing you a part of your annual income. They expect that you use this money to take care of yourself, children and dependents. It is called the “Consolidation Relief Allowance” and it is N200,000.00 or 1% of gross income whichever is higher, plus 20 % of the gross income.

The balance from all these deductions, exemptions and relief is what shall be taxable.

What deductions may be made?

There shall be allowed a deduction of the annual amount of any premium paid by the individual during the year preceding the year of assessment to an insurance company in respect of insurance on his life or the life of his spouse, or of a contract for deferred annuity on his own life or the life of his spouse

Are deductions made automatically?

No. No deduction shall be allowed to you unless you claim it in writing in such form as the relevant tax authority may prescribe.

How much is my Personal Income Tax?

The rate of the tax ranges from 7% to 24%, depending on the amount of chargeable income – Individuals are subject to minimum tax of 1% of gross income where the income is less than N300,000 per annum.

After the relief allowance, deductions and exemptions had been granted in accordance with the law, the balance of income shall be taxed as specified in the following tax table:

  1. First N300,000 @ 7 %
  2. Next N300,000 @ 11 %
  3. Next N500,000 @ 15 %
  4. Next N500,000 @ 19 %
  5. Next N1,600,000 @ 21 %
  6. Above N3,200,000 @ 24 %

Who calculates the tax I’m to pay?

You do. A taxable person (such as yourself) is required to file a return of income and in the return, calculate the amount of tax payable in the prescribed form.

How will Government verify my calculated tax?

Every taxable person (such as yourself) is required to keep Books of Accounts which will be used by the tax authority to verify your calculated tax. If you fail or refuse to keep books of accounts which, in the opinion of the relevant tax authority, are adequate for the purpose of the tax, you are be liable on conviction to a penalty of N50,000 for individuals and N500,000 for corporate entities.

Furthermore, for the purpose of obtaining full information in respect of your income or gain, the relevant tax authority may give you notice requiring you to complete and deliver any return to the tax authority, personally attend before an officer of the relevant tax authority for examination with respect to any matter relating to such income gains, produce for examination any book, document, account and return which the relevant tax authority may deem necessary or give orally or in writing any other information including a name and address specified in the notice.

If you are in salary employment as your only source of income, the above does not apply to you because your employer is responsible for your PAYE tax.

What duty do I owe the State aside from payment of my tax?

You are required by law to file a return of income every year, without notice or demand, with the tax authority of the State in which you are deemed to be a resident. The return of income is expected to state the amount of income and particulars to any such income, allowance, relief, deduction or otherwise as may be material for that purpose from every source of the preceding year. Notwithstanding that a tax authority requires you to file a return containing the amount of your income for each year, a person whose only source of income in any year of assessment is employment is such that he earns N30,000 or less from that source is not required to file return of income.

When should I file my returns of income?

The due date for filing returns of the tax is 31st March of every year (within ninety days from the commencement of every year of assessment). Note that a person who files his/her return within the time specified for filing of the return shall, if there is no default in the payment arrangement, be granted a bonus of 1% of the tax payable.

What if I fail to file my returns?

You shall be liable on conviction to a fine of N5,000 and a further sum of N100 for every day during which the failure continues or imprisonment of six (6) months or both. Also, the relevant tax authority may proceed to assess you as a taxable person chargeable with income tax after the expiration of the time allowed for the delivery of the return (after 31st March of every year).

When should I make payment after I have been assessed?

Income tax charged by an assessment which is not or has not been the subject of an objection or appeal, shall be payable within two months after the date of service of that notice.

If you do not pay within the period, a sum equal to ten % per annum of the tax shall be added, and the provisions of the Act relating to the recovery and collection of tax shall apply to the recovery and collection of that sum.

The relevant tax authority shall serve a demand note on you and, if payment is not made within one month from the date of the service of the demand note, the relevant tax authority may proceed to enforce the payment.

The penalty imposed is not be deemed to be part of the tax paid for the purpose of claiming relief.

If without lawful justification or excuse, of which burden of proving rests on you, you fail to pay the income tax within the period of one month, you are guilty of an offence.

Do I pay interest on late payment of tax?

Yes. The tax due from a taxable person shall carry interest on annual basis at bank base lending rate from the date when the tax becomes payable until it is paid.

How do I prove that I have cleared my tax?

By obtaining your tax clearance certificate. Whenever the relevant tax authority is of opinion that for the three years immediately preceding the current year of assessment, fully paid or that no tax is due on your income or that you are not liable to tax for any of those three years, it shall issue you with a tax clearance certificate within two weeks of your demand for the certificate. That the payment of current year tax shall not be made a condition for the issuance of the certificate unless you are leaving the country finally.

A tax clearance certificate contains the following in respect of the last three years of assessment –

  1. chargeable income;
  2. tax payable;
  3. tax paid;
  4. tax outstanding or alternatively a statement to the effect that no tax is due; and
  5. tax payer identification number (T.I.N).

Why do I need my tax clearance certificate?

A ministry, department or an agency of government or a commercial bank with whom you have any dealing with respect to any transactions may demand your tax clearance certificate for the three years immediately preceding the current year of assessment and shall verify the genuineness by referring same to the issuing tax authority before conducting such transaction with you.

Such transactions include:

  1. application for Government loan for industry or business;
  2. registration of motor vehicle;
  3. application for certificate of occupancy;
  4. application for award of contracts by Government, its agencies and registered companies;
  5. application for trade licence and import or export licence;
  6. application for transfer of real property;
  7. application for registration as a contractor;
  8. confirmation of appointment by Government as chairman or member of a public board, institution, commission, company or to any other similar position made by the Government;
  9. application for registration of a limited liability company or of a business name;
  10. appointment or election into public office.
  11. any other transaction as may be determined from time to time.

Note the following, if;

  1. for the purpose of obtaining a tax clearance certificate, you give incorrect information in relation to any matter or thing affecting his liability to tax; or
  2. obtain a tax clearance certificate through misrepresentation, forgery or falsification,

You are guilty of an offence and liable on conviction to a fine of N50,000 plus twice the tax payable by you or to imprisonment for three years or to both such fine and imprisonment.

A person, ministry, department or an agency of government or a commercial bank, who fails to request for your tax clearance certificate before performing such transaction with you is guilty of an offence and is liable on conviction to a fine of N5,000,000.00 or to imprisonment for 3 years or both fine and imprisonment.

What is P.A.Y.E?

P.A.Y.E. refers to “Pay As You Earn”. It is a method used to deduct personal income tax at the source the moment an employee earns their salary. It is deducted by the employer and paid to the relevant tax authority on behalf of the employee.

Every employer shall be required to file a return with the relevant tax authority of all emoluments paid to its employees, not later than 31st January of every year in respect of all employees in its employment in the preceding year failure which such employer shall be liable on conviction to a penalty of N500,000 in the case of a body corporate and N50,000 in the case of an individual.

When should I as an employer remit the P.A.Y.E tax of my employees?

As an employer, you are expected to remit the P.A.Y.E tax of your employees by the 10th day of every succeeding month. This day is called the due date for remittance.

Where do I go where dispute arise regarding my tax?

The Tax Appeal Tribunal has the powers to entertain all cases arising from operations of this Personal Income Tax Act.

Example of How to Calculate Personal Income Tax

CONSOLIDATED SALARY / GROSS EMOLUMENT

Determine the consolidated salary which is the gross emolument of the Tax Payer Per Annum. That is Basic Salary, Housing, Transport, Leave, Utility, Furniture, Meal Allowances etc.

Multiply by 12 to get the gross Per Annum

 ItemAmount (N)
1.Basic Salary50,000
2.Housing20,000
3.Transport10,000
4.Meal10,000
5.Furniture10,000
 TOTALN100,000

Total consolidated salary is N100,000 Per Month.

Therefore N1,200,000 Per Annum (N100,000 X 12)

  • CONSOLIDATED RELIEF ALLOWANCE (CRA)

A Tax relief of N200,000.00 or 1% of the Consolidated Salary, whichever is higher, plus 20% of the Consolidated Salary is given.

Less N200,000 from the N1,200,000

Also less 20% from N1,200,000 = N240,0000.

Therefore CRA = N200,000 + N240,000 = N440,000.

  • TAX EXEMPT ITEMS

Check Tax payer’s contribution in any of the following:

  • National Housing Fund Contribution (Mandatory contribution of 2.5% of monthly income of Nigerians earning N3000 and above per annum)
    • National Health Insurance Scheme (5%)
    • Life Assurance Premium (Tax deductibility applies if withdrawn within 5 years)
    • National Pension Scheme (8% of Basic, Housing and Transport)
  • ASCERTAIN CHARGEABLE INCOME

Compute taxable income based on steps 1 to 3 which is less CRA from consolidated salary.

N1,200,000 – N440,000 (CRA) = N760,000.

Therefore, for earnings of N1,200,000, the chargeable income therefore is N760,000.

  • INCOME TAX RATES

Apply the Tax Band to the Chargeable Income to arrive at the tax payable per annum:

First N300,000 @ 7% N21,000

Next N300,000 @ 11% N33,000

Next N500,000 @ 15% N75,000

Next N500,000 @ 19% N95,000

Next N1,600,000 @ 21% N336,000

Over N3,200,000 @ 24%

Therefore, for a Chargeable Income of N760,000 the Tax will be:

1st N300,000 @ 7% = N21,000 (Remaining N460,000)

Next N300,000@11% = N33,000 (Remaining N160,000)

Next N500,000 @ 15% = N160,000 X 15% = N24,000

Total Tax payable per Annum = N21,000 + N33,000 + N24,000 = N78,000 PA

  • MONTHLY TAX PAYABLE

The Tax Payable Per Annum is divided by 12

N78,000 divided by 12 = N6,500 Per Month.

Therefore the tax payable every month shall be N6,500 on the PAYE Scheme.

  • MINIMUM TAX DETERMINATION

Where the Chargeable Income obtained is lower than 1% of the consolidated or gross emolument then 1% of the consolidated salary shall be the Tax Payable Per Annum

Written by Imeh Imeh LLB, BL

What Law Guides Personal Income Tax (PIT) in Nigeria The Personal Income Tax is guided by the Personal Income Tax Act Cap P8 LFN 2004 (as amended) What is your Personal Income? Your personal income is total amount of money you make from any trade, business, profession or vocation and pension received from such. Who is to Pay the Personal

Learned Scribbles

Are Moot Court Competitions Important for Law Students? – My Experience

fredericknkobowo

June 27, 2023

MY EXPERIENCE

I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol). Consequently, I dedicated my full time to committing myself to great learning of what advocacy (participation in moot and mock competitions) entails. While as a fresher, I was drafted into a chamber (out rightly the best chamber in my faculty at the moment) where I could learn more about advocacy, participate directly in moot and mock competitions and enjoy the leverage to perfect any craft in me. I was directly coached and trained by my seniors who showed me the way to get things done – precisely what it takes to thrive in it. I was thirsty for knowledge and eager to learn everything it takes but I later figured out the learning is a gradual process as it never stops.

I was well coached and was given the necessary exposure to the life in advocacy. I was made to realize that full commitment to this new life would preclude me from access to every social life a student on campus would wish to enjoy. But I settled within myself that since I am on an academic journey, I need not bother about social life as such – very hard to conclude as I am a social type, I just had to accept things that way.

In my first year, I participated in my first moot competition within my faculty when I led my team from my chamber through intense preliminary rounds to the semi finals before I faced a seemingly tougher team. Lol. At every stage, I always learned new things. Most importantly, the role of ‘confidence’ and ‘delivery’ in oral advocacy. I did not stop there, I went back to my drawing board to catch more glimpse of what I still needed to learn, meet up with more senior colleagues within the faculty and outside the school, attended more webinars, and watched keenly the court appearance of senior colleagues.

Then in my second year, I was more eager to put everything I have learnt and observed into practice. I participated in another moot competition in the first semester of my second year, led my team again and emerged best counsel in two consecutive preliminary rounds of the competition. While this is not to tooth my horn but I would say the best counsel awards gave me more recognition beyond my chamber, to the entire faculty as a whole.

However, I knew I still needed more things to learn as I was not satisfied with my records. So I did not get relaxed but rather thirsty to learn more. I sought more knowledge from new moot tutors.

Suffice it here to say that my great thirst in advocacy was firstly spurred while I was a law aspirant by the sterling records of my seniors who have gone ahead of me. I read their stories online and I was wowed by their feats, how much they have achieved and how far they had gone. I was ready to take up the mantle upon my resumption and give my own best. I was not so sure where my best would lead me to, but I was certain my best would lead me somewhere – I can not learn and practice so hard and not get a giant leap, was my full conviction. Upon resumption, I heard directly from my seniors a more elaborate story of the great successes the seniors who had gone far ahead made during their undergraduate days. I was motivated by all these and was ready to give my own best.

In the early period of the second semester of my second year, I participated in another moot competition where my team made it to the finals and I was once again awarded the best counsel of the final round. The moments are still fresh in memory but the records was not enough, after all, man is insatiable. Lol. I made all these participations while lectures were ongoing. I know you would care to know how it was balancing these extra curricular activities with my class lectures and academics. It has not been so easy thus far balancing it out but i cannot rule out the place of passion. Before I took up the mantle, I was ready for everything it would take and was ready to ensure my academics does not suffer from my keen participation. And anywhere issue arises, I was always prepared to correct the anomaly – everything banks on readiness, if there is a will, there must be a way.

My greatest participation in Moot and Mock Competitions took place during the prolonged strike. Before I committed myself to further participation in this competition, I decided to intern in a leading litigation firm in my state where I was further exposed to rules of court, drafting of court processes, court languages, considerable appreciation of court procedures, development of legal research skills and so much more. After learning a significant amount of all these, I rounded off my internship and travelled down to my school for preparation for national competitions. I proceeded for my first national competition in Delta State alongside one of my senior colleagues where we were listed among the schools with the best court appearances and we were therefore awarded plaques, laurels and cash prizes which we took down to our faculty.  I represented the faculty in more national competitions before the strike ended and it all ended in good notes with great recognition of the oratory skills I and my teammates displayed.

While you would right now feel I have done much, I was yet unsatisfied that I have done little and there was still much to learn. It imperative to state that my participation in national competitions got me exposed to many other new things as regards advocacy (moot and mock competitions), competing with other brilliant and sharp brains from other schools really got me exposed. I made connections with these students, learn from them also and now we all still keep contacts, or even, we are more of close friends now. We share daily tips of more principles of advocacy and discuss career plans. The exposure has been great and really helpful.

During the days I had intensive learning about what advocacy entails, I decided to watch YouTube videos of moot appearances of law students from different parts of the world. I was intrigued by the level the oratory and drafting skills have taken some students to or out rightly how far they had gone, traveling to top countries across the world for participation in moot competitions.  I believed this rare feat can be achieved only if I keep learning and practicing. Thus, early this year, I decided to participate or show interest in an international law moot competition. It is the most prestigious and biggest moot court competition for law students across the world – The Philip Jessup International Law Moot Court Competition. I was at first reluctant to participate reasons being that I was still in my third year and was yet to offer international law. However, I had to abandon my worries because after all, the moot competitions I have all participated in, the subject matter of the facts have most time been on areas of law I have not been lectured on. They are things I always have to study myself.

As a result of this, I started drafting my arguments and practicing for the Jessup Competition. I represented my school alongside a senior colleague in the competition. We are paired against top schools in Nigeria from the preliminary rounds to the semi finals and finals of the competition. We made it to the finals of the competition and during the Judges’ pronouncement (after the round), we were announced as the winner of the competition having beaten our opponent with over 20 marks gap. We were thereafter informed that our victory has earned us a pride of place and a rare feat to represent our country in the international round of the competition in Washington D.C, United States of America where we will be competing with top schools from all over the world. It sounded surreal to me. I was finding it hard to put my thoughts right, align my reasoning and bring myself out of sudden shock the information subjected me to. Immediately, I created in my head a picture of what my traveling to the United States could look like. I found myself in-between myriads of thoughts; did I just make it to travel out to the United States? Of all countries, why United States? Will I really be getting the most reputable United States Visa? These thoughts and more left me puzzled that till now I cannot explain rightly how I felt when the information came.

With the necessary supports from my school, in the month of April, I and my teammates made our way to the United States. Unbelievable right? (It is still a moment that would take a full day or more to share). I was thus made to represent my school and my country at large in the United States in the international round of the Philip Jessup Competition. My team and I competed with other brilliant minds from top schools in the world; Harvard University, Oxford, Cambridge, Yale, Columbia law school, King’s College, Amsterdam University etc (over 138 schools in the world). The competition was really intense with great exposure to many things, connections with sharp and brilliant minds (law students) and with distinguished and top legal professionals in the world, with reputable law firms legal experts like White and Case LLP lawyers, among others.

Resoundingly, you would by now feel I have achieved much more than before. However, i still feel this is little and will not stop learning. I think this just open the floodgate to look into the bigger picture of what hard work and consistency can bring. Thus, since I am human – quite insatiable, I will not stop learning and practicing. This is beginning of another chapter!

Benefits of Participating in Moot Competitions – Why a Law Student Should Take it Seriously.

The benefits of participating in moot competitions is numerous and not exhaustive. The more you participate in competitions, the more you figure out the benefits that accrues to you via your participation.

Foremost, participating in advocacy competitions builds your confidence and sharpen your oratory skills. It kills your stage fright. Ordinarily, there is hardly a place, podium, or even before a large crowd that you would not be able to speak. This participation would make you have a full control of any stage as if the world is your oyster.

Also, the participation will expose you to different areas of the legal profession aside what you are being taught within the four walls of your classroom. It even makes you see in practice the theoretical principles you are being taught in class.

Furthermore, the experience you get from moot activities do go a long way in smoothing your paths most especially when you are trying to find a niche for yourself in the legal profession to specialize in. You just cannot tell where you would get to (with moot activity) that would cause a huge impact or  contribute immensely to your knowledge of law or general knowledge about the legal profession.

In addition, moot and mock competitions is the best extracurricular activity a law student can engage himself or herself in. In fact, I out rightly believe that moot and mock competitions should not be best regarded as ‘extracurricular activity’. This is because moot and mock activities have its way of contributing to academic performance in class – you just have to be smart and know when to apply some things.

Having said all these, it is imperative for me to reiterate that my experience thus far as a moot and mock enthusiast has been an interesting, educating and a worthwhile venture. And that the benefits that accrues from participation is expansive, limitless and awesome.

Written by Oluboyo Taiwo LLB (in view)

MY EXPERIENCE I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol).

Everyday Law

Can Nigeria Police Recover Debt?

fredericknkobowo

June 27, 2023

The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of civil disputes.

Also, don’t forget, it is not a crime to be in debt in Nigeria. There is no law that makes the owing of loans or debts a criminal offence. At best, owing a loan and not paying it back would constitute a civil dispute. And remember, the Police have no business in settling civil disputes. That business is for the Courts. Just to be clear, civil disputes also include – family crisis, land ownership tussles etc.

Should you use the Police to haunt your debtors under the guise that they have defrauded you, you could be courting trouble for yourself. What we fully mean is that you could and would be liable for any fundamental rights infringement the Police carry out on your debtor due to your petition to them (the Police). In the words of the Court of Appeal; “The position is and has always been that the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police.”. See more HERE

Also, the police themselves have a duty to sift through petitions presented to them to tell indeed if a truly criminal element exists that is worthy of the exercise of their powers.

Our Authorities are –

Section 4 of the Police Act 2020

NWADIUGWU v. IGP & ORS(2015) LPELR-26027(CA)

CP.,ONDO STATE & ORS v. KILADEJO (2020) LPELR-52286(CA)

EZEIGBO v. IKECHUKWU & ORS (2019) LPELR-48445(CA)

Nkpa v Nkume (2001) 6 NWLR Pt. 710 at Pg. 543

The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of

Law Library

Students Loans (Access to Higher Education) Act 2023

fredericknkobowo

June 19, 2023

The Students Loans (Access to Higher Education Act) 2023, was recently assented to by President Bola Ahmed Tinubu. The Act establishes an Education Loan Fund to help Nigerians fund their higher education, while they pay in instalments two years after completing their participation in the National Youth Service Corps (NYSC) programme.

Download a copy of the Act HERE

The Students Loans (Access to Higher Education Act) 2023, was recently assented to by President Bola Ahmed Tinubu. The Act establishes an Education Loan Fund to help Nigerians fund their higher education, while they pay in instalments two years after completing their participation in the National Youth Service Corps (NYSC) programme. Download a copy of the Act HERE

Law Library

Nigeria Data Protection Act 2023 (PDF DOWNLOAD)

fredericknkobowo

June 19, 2023

Nigeria’s President, Bola Ahmed Tinubu has signed the Data Protection Bill 2023 into law. The new law provides a legal shield to protect your personal data online and offline in Nigeria.

The law also sets up the Nigeria Data Protection Commission. A National Commissioner will lead it, controlling how personal data is processed.

Download a copy of the Act HERE.

Nigeria’s President, Bola Ahmed Tinubu has signed the Data Protection Bill 2023 into law. The new law provides a legal shield to protect your personal data online and offline in Nigeria. The law also sets up the Nigeria Data Protection Commission. A National Commissioner will lead it, controlling how personal data is processed. Download a copy of the Act HERE.

Law Library

Electricity Act 2023 (DOWNLOAD PDF)

fredericknkobowo

June 19, 2023

The Electricity Act 2023 was recently signed into Law by President Bola Ahmed Tinubu. The Act repeals and replaces the Electricity and Power Sector Reform Act of 2005 and seeks to promote private sector investments in the power sector amongst other radical changes to the electricity space in Nigeria.

Download a copy of the Act HERE

The Electricity Act 2023 was recently signed into Law by President Bola Ahmed Tinubu. The Act repeals and replaces the Electricity and Power Sector Reform Act of 2005 and seeks to promote private sector investments in the power sector amongst other radical changes to the electricity space in Nigeria. Download a copy of the Act HERE

Everyday Law

FAQs and Legal Tips Every Nigerian Landlord Must Know

fredericknkobowo

June 19, 2023

Landlords are often faced with a lot of dicey situations when dealing with their tenants in Nigeria. One of such instances is where a landlord has begun the legal process of evicting a tenant but the tenant has still not moved out of the house. Knowing how the judicial process can be painfully and regrettably slow in Nigeria, most tenants stay on (or hold over) the premises even after they’ve been served the necessary papers terminating their tenancy.

 A while ago, a viral tweet made the insinuation that in situations like this, the tenant who is still staying in the house is by law not required to pay any further rent. In essence, the tenant gets to stay in a free house even if he or she is not in Free Town. The tweet even mentioned that if the landlord does otherwise, tenants could feel free to arrest their landlord.

 You may have seen the tweet or maybe not. If not, you can find it below –

Interesting tweet, right? But some fundamental things mentioned in it do not represent the position of the law.

So, in this piece we will clear the air on the tweet and emphasize a few things any and every landlord should know when dealing with their tenants.

Reference is made only to Nigerian Law especially the tenancy law of Lagos State and a few other states. It is necessary to mention that the Lagos State tenancy law 2011 does not apply to all parts of Lagos State[1]. It also does not apply to all buildings or properties in Lagos State.

Due to the fragmentation in the law (as indicated above for Lagos State) as well as other technicalities in this area of the law, it is usually wise to seek legal advice for specific situations. Also, while concerted efforts have been made to provide correct legal information in this piece, please note that this piece does not replace the need for a lawyer and does not amount to legal advice.

How are Landlords to Evict Their Tenants in Nigeria?

The law currently prevents landlords from forcefully ejecting (or throwing out) their tenants. As stated in our previous article – the Law is that a landlord has the right to take back (or recover) his property from his tenant but this has to be in accordance with the tenancy agreement and the laws governing such recovery of his property.

The landlord must not take the law into his hands in an attempt to recover his property. Put differently, this means that the landlord is not allowed to forcefully enter into his property rented out to his tenants and evict (or throw) them without a court order. This includes a situation where a landlord removes the roof of a tenant’s house just so as to get the tenant to move out.

Where a landlord does this, he opens himself up to the possibility of being sued by the tenant for trespass. Also, should he assault the tenant, he could be criminally culpable or liable for the breach of the tenant’s fundamental rights. [ – Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt.487) 257, Akinkugbe v. Ewulum Holdings Nigeria Ltd. & Anor (2008) 12 NWLR (Pt. 1098) 375 Eloichin (Nigeria) Ltd & Ors v. Victor Ngozi Mbadiwe (1986) LPELR-SC.54/1981]

Just for emphasis, Section 44 of the Lagos state tenancy law 2011, provides as follows;

(1) Subject to the provisions of any Law-

(a) Any person who demolishes, alters or modifies a building to which this law applies with a view to ejecting a tenant and without the approval of the Court; or

(b) any person who in respect of any premises-

(i) attempts to forcibly eject or forcibly ejects a tenant;

(ii) threatens or molests a tenant by action or words, with a view to ejecting such tenant;

or

(iii) willfully damages any premises,

shall be guilty of an offence and is liable to a fine not exceeding Two Hundred and Fifty Thousand Naira (N250,000.00) or a maximum of six (6) months imprisonment and any other non-custodial disposition.

The gist of the section quoted above is simple – it is a crime to forcefully eject a tenant in Lagos State. Similar provisions exist in the tenancy laws of other states.

To properly evict a tenant in Nigeria, it is advisable to contact a legal practitioner for proper guidance or to preferably carry out the process for you. This is because some legal technicalities most times come to play and where one is not careful a tenant could take advantage of a landlord’s failure to properly surmount those technicalities and stay on in the property for an extended period. We will explain how this has happened in time past towards the end of this piece.

Generally speaking, a landlord should take the following steps –

  1. Where there is a tenancy agreement and the tenancy is still subsisting, review the agreement to know the extent of notice to quit the tenant is entitled to. Ideally, the length of the notice should be stated in the tenancy agreement.
    1. Where there is no tenancy agreement, the applicable law governing tenancies in the state concerned should be referred to. The tenancy law of the state concerned would usually provide for the length of notice to quit each type of tenant is entitled to.
  2. In some instances, the tenant is not to be served with a notice to quit, rather, he or she is to be served with another document called – a notice of owner’s intention to recover possession. This notice of owner’s intention is conventionally for a period of seven days and is used when the tenancy has expired[2]. In some states these notices are usually filed in Court and served by the court’s bailiff.
  3. After the service of the relevant notices, if the tenant does not leave the property, the next step is to file a claim in the court with jurisdiction over tenancy matters in the state involved.
  4. The claim would be heard and decided by the court just as any other civil matter. Most times, the tenant settles the matter out of court by leaving the property and making any relevant payments. In such a situation, there is no need for the claim to proceed till judgment. Most times, this is not so and the claim would be heard in full before the court issues a warrant of possession[3]

Depending on the applicable tenancy law and the situation in each case, it might not be necessary to chronologically follow the steps as stated above[4].

How Much Notice Does a Landlord Have to Give a Tenant to Move out in Nigeria?

The length of notice required to evict a tenant in Nigeria depends on two things – the tenancy law appliable in the state where the property is and the content of the tenancy agreement (where one was signed).

Let’s explain that.

The tenancy laws of many states stipulate how many months’ notice a landlord is to give his tenant before he can evict him. In many tenancy laws, the length of notice is usually stipulated as follows[5] –  

  • one (1) months notice for a monthly tenant;
  • six months notice for a yearly tenant

Despite the provision we’ve just stated above, we should mention that many of these tenancy laws also contain a rider. By this we mean they allow the landlord and tenant to agree to a shorter notice period in their tenancy agreement.

The effect of the above is this – while the length of notice stated in the law should ordinarily apply, the landlord and tenant can by their tenancy agreement choose the length of the notice. Where they agree to a different notice period in their tenancy agreement – it is what they’ve stated in the tenancy agreement that will apply. This is one reason why a written tenancy agreement is especially important.

Some Technicalities That Frustrate Landlords from Recovering their Properties In Nigeria

The eviction of tenants from properties in Nigeria is one area of the law that has a long history of tenants using every loophole in the law to ensure they continue staying in a property long after their rent has expired.

In one particular case, the tenant stayed in the property for about 14 years after its rent had expired[6]. Within this period the landlord was in Court trying to get an order evicting the tenant and the case moved got all the way to the Supreme Court!

One of such technicalities used to be that where the landlord fails to serve the proper statutory notice (that is a notice to quit or notice of owner’s intention to recover possession) on the erring tenant before the matter is taken to Court, the Landlord’s case is bound to fail[7]. This arguably used to be the position of the law until recently the Supreme Court delivered a landmark decision in the case of Pillars Nigeria Limited vs. William Kojo Desbordes & Anor (2021) LPELR-55200 (SC). Some Lawyers have praised this decision as one that has changed the compulsory requirements of giving the tenant notice[8].

Other Lawyers argue that the Supreme Court decision in Pillars Nigeria Limited did not alter the previous position of the law[9] which mandatorily required that the notices must be given to the tenant or the landlord’s case will fail. A recent Court of Appeal decision even supports the argument that the Pillars Nigeria Case did not change the law in this regard[10].  

Either side of the arguments have their merits. But for the landlord who simply wants his property back, it would be wise to act with caution in preventing this debatable legal position.

Will a Tenant pay Rent or any Other Fee after He is Given a Quit Notice?

This question is a common one. For clarity, the question is – Will a tenant still pay rent or any other fee even after his landlord has given him a quit notice[11]?

Surprisingly, a lot of people have the wrong belief that once they receive a quit notice, it automatically means no more payment is to be made to the Landlord until they leave the rented property. Like the tweet we mentioned earlier said – “…and you will not pay rent again within that 6 month“. That is not the position of the law please.

The law in Nigeria makes provision for a tenant who continues to stay in a house after his tenancy as expired to pay for the extra period he stays which is not covered by his last rent. This is what is known in law as MESNE PROFIT[12]. Mesne profit simply means the profit which a landlord can recover from a tenant whose tenancy has ended but who still continues to reside in the property till the date he finally leaves the property.

The simple gist we are trying to pass across here is that there are no free houses for ‘stubborn’ former tenants. A landlord can claim and recover mense profits where tenant doesn’t leave the property at the expiration of his tenancy or the notice to quit served on him.

Written By Nkobowo Frederick LLB, BL.

Nkobowo Frederick Nkobowo is an astute lawyer and alumnus of the University of Uyo. He is currently a Senior associate in Compos Mentis Legal Practitioners; one of Nigeria’s foremost indigenous law firms. As part of the Dispute Resolution Practice group of the firm, he currently specializes in Banking law, employment law as well as oil and gas litigation. He is also an Associate of the Chartered Institute of Arbitrators, Nigerian Chapter.

In the Course of his practice, he has successfully represented corporate organizations and individual clients in handling various high net worth claims in various Courts across the nation. With a penchant for detail, he is known to sift through the mesh of facts and law to achieve justice for clients within the bounds of the law. This has led to the win of many multi-Million naira claims filed against his Clients. He can be reached via fredericknkobowo@gmail.com.

[1] The Law does not apply to the Apapa, Ikeja GRA, Ikoyi and Victoria Island parts of Lagos State – Section 1(3) of the Lagos State Tenancy Law 2011.

[2] See Section 13(5) of the Lagos State Tenancy Law

[3] In Lagos State – See Sections 39 and 40 of the tenancy law of lagos state

[4] See Section 13 (2), (3) and (5) of the Lagos State Tenancy Law

[5] There are peculiarities to the length of notice required as stated above, See Section 13(1) of the Lagos State Tenancy Law,

[6] See the cases of A.P. v Owodunmi (1991) 8 NWLR (pt 210) 391 at 416 – 417, Oketade v Adewunmi (2010) 8 NWLR (Pt 1195) 63.

[7] The following cases are instructive on this point – ORJI v. OBI (2020) LPELR-50796(CA), BANKOLE & ANOR V. OLADITAN (2022) LPELR-56502(CA), SULE VS NIGERIA COTTON BOARD [1985] 2 NWLR [PT5] 17

[8] https://dnllegalandstyle.com/2022/pillars-nigeria-ltd-v-desbordes-legal-reprieve-for-landlords/

[9] https://thenigerialawyer.com/irregular-notice-to-quit-has-pillars-v-desbordes-changed-the-law/

[10] See ADIMEGWU v. BALA & ANOR (2022) LPELR-57442(CA)

[11] Quit notice is the same thing as a notice to quit. Both are used interchangeably in this piece.

[12] Section 31 of the Lagos State Tenancy Law

Landlords are often faced with a lot of dicey situations when dealing with their tenants in Nigeria. One of such instances is where a landlord has begun the legal process of evicting a tenant but the tenant has still not moved out of the house. Knowing how the judicial process can be painfully and regrettably slow in Nigeria, most tenants