rule of law Archives - Milton and Cross

Real Estate Contract: Mr. Dan Ngerem v. Crown Realties Plc [2021] 4 NWLR (Pt. 1767) 476

Posted on April 20, 2021April 22, 2021 by admin in Case analysis, real estate, rule of law

What was the Contract?

Crown Realties Plc (“The Respondent”) entered into a contract to sell six houses in Crown Estate, Lekki, Lagos to Mr. Dan Ngerem. The houses were sold off-plan (they were yet to be constructed). It was agreed that the houses would be completed within 9 months from the date of the initial deposit. Following these assurances, Mr. Ngerem paid the agreed initial deposit of N39.08 Million.

Unfortunately, Crown Realties failed to complete the houses at the agreed time. The company completed the houses 6 months after the due date. Mr. Ngerem condoned the breach of contract and the contractual relationship continued as if there had been no breach. Upon completion of the houses, Crown Realties wrote to Mr. Ngerem, informing him that the houses had been completed and demanding for the balance of the purchase price.

Do you wish to invest in Real Estate? Talk to us today

How the Dispute Emerged

On his part, Mr. Ngerem was unable to pay the balance of the purchase price to Crown Realties. Instead, he proposed to pay the balance in installments. To this end, he paid a deposit of N34 Million, which amounted to a total of N73.08 Million.

When Mr. Ngerem presented further payment, the company returned the cheque and revoked the contract on the ground that Mr. Ngerem was in breach of the payment terms of the contract which did not stipulate payment by installments.

The company applied N28.1 Million of the payments made by Mr. Ngerem as payment for one house, out of the 6 houses. The company proposed to refund the N44.9 Million balance after selling the other properties. For undisclosed reasons, Crown Realties sold the remaining five houses to other interested buyers but failed to refund Mr. Ngerem’s money.

Aggrieved, Mr. Ngerem sued Crown Realties before the High Court of Lagos State. He claimed a refund of the N44.9M, an order of specific performance and damages for breach of contract. among other reliefs.

How did the Nigerian Courts view the Contract?

The trial Court dismissed Mr. Ngerem’s claims on the ground that both parties were caught up in a mixed show of contract breaches. While Crown Realties breached the contract by not delivering within the 9-month period, Mr. Ngerem waived the breach by accepting delivery of the houses after the additional 6-month period. In the same vein, Mr. Ngerem breached the contract by not paying the balance, instead, he opted for payment by installments. The trial Court held that Mr. Ngerem was not entitled to damages for breach of the contract.

Dissatisfied, Mr. Ngerem appealed to the Court of Appeal. The Court agreed with the trial Court’s position on contract breaches by both parties. It held that Mr. Ngerem had the option to treat the contract as breached the moment Crown Realties failed to deliver within the agreed time. This would have entitled him to damages for the breach. But he ignored the breach and kept the contract alive by subsequently proposing to pay the balance by installments. Failure to pay the balance forthwith was also a breach in itself.

The court held that Mr. Ngerem was entitled to a N44.9 million refund. This is because he never received value for the payment. This was due to the revocation of the contract and subsequent sale of 5 houses to other purchasers.

What are the Duties of an Employer?

Posted on November 24, 2017 by admin in leadership, rule of law, Small Businesses, succession, transaction advisory, Uncategorized, upscale

An employer is a person or other legal entity that controls and directs the actions of another person, called a worker or employee under an express or implied contract of employment and pays (or is obligated to pay) him or her salary or wages in compensation. The employer has duties specified by the law which he must be cognizant of at all times as the breach of any of these duties may render the employer liable at law in the event of injury or loss to the employee and they include:

The duty to provide work for his employee.
The duty to provide a safe and healthy work environment. where it is not practicable to avoid the presence of hazards, providing adequate personal protective clothing and equipment without any cost to workers
The duty to provide competent co-workers so as to prevent or reduce the possibility of injury as a result of a co worker’s incompetence.
The duty to remunerate employees in accordance with the terms of the contract of employment if the employee arrives for work and can work..
The duty to indemnify employees against liabilities and losses resulting from following his employer’s instructions.
The duty to give employees reasonable opportunity to have their complaints resolved or mitigated.
Where a report is received from an employee about hazards or any injury or harm to health, he must within reasonable time after receiving the reportinvestigate the matter and determine the action, if any, to be taken; and notify the employee about what was decided.

If you are an employer and you feel you need advice on your rights and obligations, please feel free to contact us by email or give us a call at +2348036258312 or +2348188474167.

Sexual harassment 101: what everyone needs to know

Posted on November 21, 2017 by admin in Capital, Corporate Governance, Development, entrepreneurship, Police and Security, rule of law, Small Businesses, Uncategorized, Whistle blowing

The aftermath of the Harvey Weinstein revelations has unearthed a depth of ignorance around the whole issue of sexual harassment. There has been the routine conflation with assault and then panicky addition of “alleged” to the end of every sentence, along with wild assumptions about its rarity and triviality. For the avoidance of doubt, this is the harassment 101.

What is sexual harassment?

The UK Equality Act of 2010 defines it as:

“unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.”

It covers indecent or suggestive remarks, unwanted touching, requests or demands for sex and the dissemination of pornography. This legislation is often portrayed as murky or ambiguous, on the grounds that it’s hard to tell the difference between a bit of banter and a humiliating remark.

The humiliation or intimidation of sexual harassment lies in making someone feel that their physical attributes are their main value to the workplace, which undermines any skills or talent or insights or hard work they may also have brought. So saying “you’ll do well in the organisation because you have big boobs” is harassment, even if

a) you think it’s true,

b) you personally are not a boob man,

c) you didn’t mean it as an overture and

d) everyone laughed.

The test “how would I feel if it were said to me?” isn’t necessarily helpful, since there is context you may have missed, such as what it’s like to be routinely ignored in meetings until your point has been corroborated by three other men, and then congratulated on your big boobs. Sex-based harassment relates to the sex of the target but isn’t necessarily sexual in nature.

How common is it?

A report conducted jointly by the TUC and Everyday Sexism found that 52% of women had experienced some form of sexual harassment at work, nearly a quarter had been touched without invitation, a fifth had experienced a sexual advance. An earlier study by the law firm Slater and Gordon found that 60% of women had experienced inappropriate behaviour and nearly half of respondents had been warned to expect problematic behaviour from a particular person when they arrived.

Why don’t women report it?

About one in five women do report it. Their outcomes are poor: 80%, according to the TUC report, found that nothing changed; 16% said that the situation worsened afterwards.

Many women never report harassment because of the cultural context they are stepping into, one in which, says the writer and feminist activist Beatrix Campbell, “there’s a knowledge of and tolerance of sexual harassment, that makes women’s journeys through public space always a little bit hazardous. I think the people who talk about this stuff as if it’s nothing forget how heartbreakingly sorrowful we feel about that and how ashamed. The other structural conversation to have about this, apart from power, is shame. I am overwhelmed by hearing these women’s stories. The politics of humiliation has been erased from the discourse. It can’t be underestimated, because you were in that room, he did put his hands on your body. Even if you escaped, the point is that you were there.”

Why would a woman end up alone in Harvey Weinstein’s hotel room?

A few practical reasons: for instance, she had been lied to, told there was a party there or started off in a group that had then evaporated; meetings are routinely held in hotel rooms in the entertainment industry; the junior party in any given business meeting rarely has a decisive say over where it’s held. But really, the slide from civilised interaction into threatening behaviour is all in the hands of the aggressor. There are no formal waypoints, where consent is understood before moving to the next waypoint. Harassment isn’t like a date with a communication failure. However, the fact that this question is asked contributes to the shame and builds the wall of silence.

Is there a typical target, or a typical harasser?

Often the target of the harassment has low power in the workplace, whether by dint of a temporary or precarious contract or being young. The Equal Opportunities Commission (as was) found in 2002 that the majority of harassment cases taken to tribunal were by people who had been in the workplace for less than a year. Research suggests a clear association between harassment and women who are on zero-hours contracts who will just not get offered work again if they kick up a fuss. That is crude power operating in the workplace.”.

Powerlessness has no single source – Terry Crews has recounted his harassment by a senior Hollywood executive, as has James van der Beek; the operative vulnerability was race and age, respectively. The harassers are overwhelmingly male, and in a position of authority over the target.

How easy is it to bring a case of sexual harassment to an employment tribunal?

Juliette Franklin, a senior associate at Slater and Gordon, says that “unfortunately, it tends to be one person’s word against another, because if you’re setting out to intimidate, you do that when there’s no one else around”. Then it will be a case of looking at corroborating evidence. “Has any of this found its way into email correspondence? Can you keep a diary or some kind of record, perhaps send yourself an email so you’ve got something contemporaneous. Have you contacted HR and raised a grievance?”

Companies may have lots of procedures in place that nobody ever follows: they may have a big push on equality training, but nobody has been trained for 10 years.

“An awful lot of cases settle before they get to court, a level of compensation might be paid, other measurements might be put in place,” says Franklin. “That can be biggest benefit of it, making sure someone is taken to task for their behaviour.” The civil system is adjudicated on the balance of probabilities: is it more likely than not that this has happened, and for this reason? It is not a notoriously difficult area in which to secure a victory, but “there’s a great deal to be gained from resolving it as soon as possible”.

Michael Newman, from the solicitors Leigh Day, says “it’s easy enough [to bring a case] as in, the law is there. It’s quite hard for people to decide to do it while they’re still employed by the company. What I typically see is someone bringing an unfair dismissal case, and they’ll reel off a series of harassment incidents which, on their own, they never would have gone to a lawyer about, they’ll just have put up with it. They’d have found it pretty awful, but they couldn’t see a way of reasonably bringing a claim. It’s a very nuclear option.” Sometimes the HR department is inadequate, but often “the individual is so senior that they can operate in relative isolation”. A small employer may not have an HR department. “A garage in Scunthorpe with three people in it … I wouldn’t say it’s particular to any sector, or any large or small employer. Sadly, it’s pretty universal. And often I’ll get a bundle of cases: ‘Not only did you make me redundant while I was pregnant, you also did this a year ago.” The problem with that is the event has to be within the past three months.

Who should solve this?

We’ve got lots of policies on sexual harassment, we’ve been churning out guidance, giving training, we have a couple of hundred thousand elected workplace reps who are trained on how to tackle discrimination and harassment at work. But it really does come down to employers, unions and government. It is now the job of the institutions to take responsibility for this. It’s about women saying: ‘I didn’t do this, you allowed him to do it.’ It’s our problem and their fault.

Training Bonds: How do they work

Posted on November 20, 2017 by admin in Capital, Corporate Governance, entrepreneurship, International Investment, investment advisory, leadership, Personal Finance, rule of law, Small Businesses, Uncategorized

restrictive-covenant

Captain Dan is a pilot who was formerly in the employment of Highland Airways Ltd. A year before his resignation, the company expended substantial amounts of money in sponsoring 2 specialised trainings for Captain Dan in order to improve his skills and increase the number of planes he could fly.

The terms and conditions for sponsoring the trainings were contained in two training bonds which required Captain Dan to remain in the employment of the Company for 36 months and 12 months respectively. Captain Dan thereafter attended the trainings and acquired licences and qualifications as a result, which made him a desirable candidate for several .

However, contrary to the terms of the training bonds, Captain Dan resigned from the employment of the Company and repudiated the training bonds. He argued that the training bonds were void and unenforceable because they constituted a restraint of trade and an unfair labour practice. The company on the other hand, is of the opinion that the training bonds were freely entered into by the parties and were necessary for the protection of the Company’s business interests. It was further argued that training bonds are not contracts in restraint of trade and are enforceable in Nigeria and other jurisdictions.

This compelled the company to seek legal advice on their right against Captain Dan. Having recourse to international best practice in other jurisdictions, the position of the law is that training bonds are contracts in restraint of trade, but are enforceable if they are considered to be reasonable. The test of reasonableness is whether the restraint is necessary for the protection of the parties’ interest and is not contrary to public policy.

Where the bond is deemed reasonable, the parties can adopt the practice in other jurisdictions where the amount an employer is allowed to recover following a breach of a training bond is limited to the pro-rated cost of the training for the remaining period of the bonding period before the employee breached it. This position of the law provides comfort to employers who incur considerable expenses in providing training for its employees that such investment will be protected by the courts. Arguably, it will also reduce the tendency of employees to flagrantly breach their contractual obligations due to the lure of better offers of employment from their employer’s competitors.

Employers are therefore advised to seek legal advice before drafting their training bonds to be certain that they would pass the test of reasonableness.If a training bond is deemed unreasonably lengthy or restrictive, such as to place the employee in a state of indentured servitude to the employee, the courts may void the legal effect of such an agreement, even though it was freely entered into by the parties.

Should an Employee who was not issued with an Employment letter give a written Notice to Resign?

Posted on November 15, 2017 by admin in Capital, entrepreneurship, investment advisory, Personal Finance, rule of law, Small Businesses, strategy, succession, transaction advisory, Uncategorized, wealth

Amaka started working as an analyst in a commodities brokerage located in Victoria Island. Shortly before her employment, the Human Resources manager had resigned due to a dispute with the senior management. Due to this state of affairs, Amaka was not issued with an employment letter by the company and this state of affairs continued unremedied for the next year as the company searched for another Human Resources manager.

Amaka being a hard worker, was not bothered by the non-issuance of an employment letter, believing that she would prove her worth to the company over time. Moreover, she had been jobless for 2 years after the completion of her national youth service, and she was not going to let a simple matter as the non issuance of an employment letter prevent her from enjoying the fruits of such a juicy job.

Fast forward, and Amaka had worked punishing hours for 3 years under a continuously tense environment worsened by her nasty boss who had been pursuing a vendetta against her for not accepting his lascivious overtures. He had promised to ruin her career and make life difficult for her whilst she remained under his employment. Despite consistently delivering stellar work, she was repeatedly given low grades during performance appraisals and consequently denied promotions. Amaka felt like a slave and was treated almost like one.

A few months later, Amaka received an offer from another investment bank, with considerably better terms of service and benefits. She promptly turned in her 2 weeks notice of resignation and patiently waited for her salary at the end of the month. On the 30th day of the month, she received a letter from the Managing Director informing her that her resignation had been rejected on the grounds that it was company policy that employees were to give 1 (One) clear month’s notice or forfeit their monthly salary in lieu of notice. The letter was delivered by her boss with a malicious smirk on his toad-like face.

Amaka was incensed!!! This was a travesty, and she was not going to allow it. She promptly sought out legal advice on her options against the company.

The position of the law is that an employee has the right to resign with immediate effect, and the rejection of his resignation is tantamount to forced labour, and also against the time-honoured labour law principle that an employer cannot force himself on an unwilling employee. Employees are considered to have given notice of their intention to resign if they unambiguously inform their employers that they will terminate the contract on a certain date.

Furthermore, the Labour Act states that an employer must give an employee a written contract within 3 months of the commencement of the employment. The Labour Act also makes it unlawful for an employer to deduct the salary of employee by way of penalty, except in situations where the employer suffers a loss as a result of the misconduct of the employee.

From the facts there was a failure of Amaka’s employers to provide her with an employment agreement stipulating the terms of her employment, including the process for terminating the employment relationship. The necessary conclusion is that the attempt by the company to withhold her salary on the grounds of non-adherence to company policy falls flat on the failure of the company to comply with the provisions of the Labour Act. The absence of an express requirement for 1 month notice implies that the employment relationship could be terminated at will. Consequently Amaka’s resignation is valid at law, and she can enforce her right to the withheld salary against the company by a suit at the National industrial Court.

Why Lawyers Make Good Early-Stage Startup Hires

Posted on September 12, 2017 by admin in Compliance, Corporate Governance, entrepreneurship, International Investment, investment advisory, mergers and acquisitions, real estate, rule of law, Small Businesses, strategy, transaction advisory, Uncategorized, upscale, wealth

the20law20of20startups20icon

By Daniel Doktori and Sarah Reed (culled From hbr.org)

It’s a startup shibboleth that entrepreneurship and formal education don’t mix. For icons such as Mark Zuckerberg and Bill Gates, so goes the lore, finishing a bachelor’s degree would have only stifled the creativity that fueled their companies to stratospheric success. PayPal founder Peter Thiel offers a $100,000 fellowship to “young people who want to build new things instead of sitting in a classroom.” Graduate degrees are thought to merely exacerbate the problem of too much thinking, too little doing. And while high-profile efforts by top business schools to teach and promote entrepreneurship have lessened the stigma around the MBA, the law degree continues to occupy a unique place of villainy among the startup set. After all, YouTube, Uber, and Airbnb, among many others, were founded on ideas that challenged, if not broke, laws and regulations. When it comes to a tech startup, lawyers are a bug, not a feature. Right?

Maybe not. Lawyers can add value in the obvious ways, helping to avoid early mistakes like issuing stock too late in the game, when the company has grown in value and the employees can no longer take advantage of favorable tax treatment. But more importantly, a lawyer on the early team can contribute to a thriving company culture by asking the right questions at the right times, providing perspective on crucial transactions, and getting smart fast on issues where the rest of the team lacks expertise.

Lawyers help startups deal with common transactions and avoid costly mistakes.

Issuing equity to the early team often triggers time-sensitive filings with the IRS. Successfully commercializing a product depends upon clean and clear lines of intellectual property ownership. Raising outside financing requires compliance with complex securities laws. A misstep on any of these items could mean an early exit for a startup company (and not the good kind). A corporate lawyer with a few years of relevant training can help navigate these and other common set-up requirements.

Moreover, lawyers, particularly corporate transactional lawyers, have repeated exposure to the types of deals — and the associated risks — that a startup will face. The dynamics between a CEO and the investors on her board are a function of the legal arrangements articulated in the financing agreements. The relationship between a company and its customers stems from a license agreement governing how users may interact with a product. Partnering with a larger company in a similar industry can, in the best case, open new markets or, in the worst, box a company into a corner, severely limiting options for growth and eventual acquisition. Lawyers understand these transactions and the perspectives of the negotiators involved.

And when the complexity of the particular deal exceeds the expertise of the lawyer on the team, she can play the savvy procurer of legal services, knowing how to target efforts and limit costs. Such experience comes in handy in managing other third-party service providers such as bankers, accountants, and consultants.

While these benefits are valuable, however, they don’t in and of themselves justify a startup hiring a full-time in-house lawyer. Early stage companies — at least those with founders sufficiently experienced or savvy to recognize that they walk a road pitted with legal potholes — tend to manage such standard risks by hiring outside counsel. And while the costs associated with that outside attorney often rank among the highest in a startup’s budget, they do not typically rise to the level of a full-time annual salary. To justify her presence among the first dozen employees, a lawyer must add something beyond legal knowledge to the equation.

Lawyers are trained to ask the right questions at the right times.

Counterintuitively, lawyers can add the strategic absence of knowledge. President Harry Truman famously longed for a “one-handed economist” when presented with the equivocating analysis of his advisers, but executives in politics and business need to understand opposing viewpoints in order to make informed decisions. Legal education and training includes a strong emphasis on questioning assumptions and probing for further information.

Rather than crippling the company through risk aversion and overanalysis, however, having a lawyer on the early team contributes to a data-driven, analytic culture of thoughtful decision making. Further, lawyers are trained as advisers and service providers. They can ask questions, explore options, and execute on answers, but they don’t expect to make the final call. This comfort with playing a supporting role helps avoid the egocentrism that can cripple any organization, particularly a nascent one.

The lawyer’s craft sometimes can be boiled down to a willingness to immerse herself within the “fine print,” offering to read what no one else will on account of complexity, length, or sheer dryness. Trained to ensure that even simple advice is backed by evidence, lawyers read closely to the point of comprehension as a matter of professional responsibility. Such a skill enables a lawyer to take responsibility for a wider variety of important matters. Fledgling startups inevitably have to rely on analysis over experience. Lawyers fit well in such situations.

Not every lawyer is well suited for the gig, however. A lawyer with the qualifications outlined above needs a tolerance for risk. For one thing, she must be willing to give up her plush office and lucrative salary for a computer station at a long table and compensation in the form of prayers, otherwise known as stock options. Her professional risk tolerance must follow suit. An essential attribute of a business attorney is providing “risk-adjusted” advice, and the level of tolerable risk for a startup generally far exceeds that for a Fortune 500 company. Lawyers at startups need to recognize that a workable answer today is often preferable to the perfect answer tomorrow; hand-wringers need not apply.

But risk tolerance must be accompanied by a stiff spine in situations where the company’s momentum (and the CEO’s vision) hurtles on a collision course with the law or the company’s outstanding commitments. In these cases, a willingness to speak up is one of the many things lawyers can bring to the table.

Daniel Doktori is the Chief of Staff and General Counsel at Credly, a digital credential service provider. He previously represented startup companies at WilmerHale, a law firm.

Sarah Reed is the Chief Operating Officer and General Counsel of MPM Capital, a venture capital firm that invests in early-stage life sciences companies. Previously, she was the general counsel of Charles River Ventures, an early-stage technology venture capital firm.

How can you transfer your music copyrights?

Posted on August 1, 2017 by admin in corporate finance, entertainment, entrepreneurship, International Investment, investment advisory, Personal Finance, real estate, rule of law, Uncategorized

b5369ae73f12204464fef1de98c14a66

Wale is a music producer. Recently he composed music for a hit track which enjoyed substantial airplay for over 6 months. Consequent upon the success of his track, he was approached by an international music corporation, who requested him to transfer his copyright in the music to the company in return for a one off payment of $200,000 and royalties capped at 5% of global sales for the next 2 years. They assured him that he would enjoy more concert appearances with the allied revenue streams. Wale is confused and requires advice on his legal rights.

Of all the forms of copyright protected works, music is perhaps the most restricted and licensed. Since music was first broadcast on radio, a vast mechanism for licensing music has emerged from the opposing forces of the recording industry and the radio and TV broadcasting industries.

Copyright ownership can be transferred like any other form of property. Copyright is transmissible by assignment, by testamentary disposition, operation of law, as personal or moveable property. however, to give legal effect to that transmission there must be a written agreement signed by the assignor. Any grant by the copyright owner binds every successor in title except a bona-fide purchaser for value without notice (actual or constructive).

This doesn’t however mean that a copyright cannot be transferred verbally, as it is trite law that a verbal agreement to which both parties have agreed all the terms (i.e. has reached completion) is legally binding. It follows then that a verbal agreement to assign, provided there is no dispute as to the terms of the assignment between the assignor and assignee, is valid and copyright is transmissible by operation of basic contract. It is however advisable that the parties sign a confirmatory assignment agreement which refers retrospectively to the earlier assignment.

The transfer could be partial or total, where the rights owner can transfer all of the exclusive rights his or her grants. In partial assignment, a music author may transfer his reproduction, translation and adaptation rights to a publisher. He may also decide to split his rights between different persons.

Copyright assignment agreements can be limited in terms of duration or territory. The author of a literary work could, for example, assign their right to reproduce it in the UK, Nigeria, Ghana and the Gambia for 4 years.

Copyright assignment agreements can be reversionary, in other words, the rights can revert back to the assignor on the occurrence of an uncertain event, such as an unremedied breach of contract. This protects the assignor from the loss of their rights in the event of the occurrence of certain events which may be vitiate the transfer contract.

The transfer of copyrights contains some knotty issues, which could become highly problematic if not properly managed. When faced with a decision on copyrights, it is best that you seek advice from a qualified legal practitioner, so as to ensure that you take the best steps in the circumstances.

Milton & Cross Solicitors provides advice to entertainers, rights owners, rights administrators and merchandisers. We help them make informed decisions that facilitate high value transactions. Contact us for a free consultation.

ARE SALARY DEDUCTIONS LAWFUL?

Posted on July 6, 2017 by admin in Capital, Compliance, Corporate Governance, entrepreneurship, investment advisory, Personal Finance, rule of law, Uncategorized, upscale, wealth

security-destroying-old-bank-cheque-guarantee-card-by-cutting-in-half-a6nrm5

Donald owns a golf course business run through a company called Great Ltd. The business is performing poorly and there are significantly fewer customers than last year. Donald takes the view that this is the fault of his employees. He decides he will ‘make the business great again’ by firing staff or deducting their salaries.

Donald has never liked one particular employee called Bernard. As Bernard is doing his usual maintenance work on the golf course, Donald walks up and asks him aggressively why he is not working faster. Before he can answer, Donald states that he is going to deduct 20% of Bernard’s salary!!!

Fast forward to the end of the month, Bernard receives his pay check and notices that indeed 20% had been deducted from his salary, after taxes! he was so infuriated and reported the matter to this line manager, who after giving him the runaround, informed him that the order to deduct his salary came directly from Donald. Understanding that he can achieve no objective by working with the company hierarchy, Bernard seeks legal advice on his options.

As a general rule, Under the Labour Act LFN 2004, all amounts payable to an employee in relation to the performance of work must be paid in legal tender and periodically. It should be noted that the Act does not not govern the amount or periodicity of wages, but merely stipulates that the terms should be reduced into writing by the employer.

There are very specific provisions in the Act regarding the circumstances when an employer can make deductions from an employee’s wage or salary and it is important for employers to understand their obligations.

S.5 (1) of the Labour Act provides that except where expressly permitted by law or where loss or injury has been caused to the employer by the wilful misconduct or neglect of the worker, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages or any other moneys to be paid by the employer to the worker, for or in respect of any fines. This suggests that the use of wage deductions as a punitive or disciplinary measure is to a large extent unlawful.

Allowable deductions include;

Pension
Personal Income Tax
Union contributions, where the worker has accepted in writing to make voluntary contributions to the trade Union
Over payment of wages, but only in respect of any such over payment made during the three months immediately preceding the month in which the over payment was discovered.
Deductions which have been expressly approved by the worker, e.g Cooperative contributions, judgment debts which have been duly garnished by the judgement creditor or loan payments due to a 3rd party. The written authorisation from the employee must specify the amount of the deduction and may be withdrawn or varied, in writing, by the employee at any time.
Deductions for goods or services provided by an employer, or a related party to the employer, to an employee in the ordinary course of the employer’s business, and which are provided on terms and conditions that are the same as, or not more favourable than, to the general public.
A deduction which is to recover costs directly incurred by the employer as a result of the employee’s voluntary private use of particular property of the employer, whether the use is authorised or not. e.g cost of items purchased on a corporate credit card for personal use by the employee, cost of personal calls on a company mobile phone

However, it is possible that a situation may arise where the salary of the worker is tied to their work product, in which case, the suspension of an employee’s employment may not be viewed as a salary deduction.

Employers need to be very cautious in effecting payroll deductions,understanding that there is a distinction between a “belief” that there is a right to recover money from an employee, a legal right to recover money from an employee, and the method that the employer can ultimately use to recover any money.

The Law does not simply permit an employer to take the easy option of making a deduction from the employee’s future wages or salary to recovery money which the employee owes the employer.

Further, employers should be cautious in simply seeking to rely on any general deduction wording in their employment contracts. Despite such contractual wording, an employee’s express written authorisation of a specific amount will still be required, unless the deduction is properly authorised by an industrial instrument, legislation or court order.

In addition, employers are prohibited from requiring employees to spend any part of their payment in relation to the performance of work where the requirement is unreasonable. Where employees are required to wear a particular brand or type of clothing and are required to purchase that clothing, then that requirement has to be reasonable to be enforceable and not be in breach of the Act.

Employers should seek professional advice if unsure about the lawfulness of a payroll deduction for the employer’s benefit, BEFORE proceeding, as an unlawful deduction may attract a civil penalty under the Act.

The Biggest Mistakes Entrepreneurs Make when Hiring Business Lawyers.

Posted on May 18, 2017 by admin in Capital, Compliance, Corporate Governance, Development, entertainment, entrepreneurship, International Investment, investment advisory, leadership, Personal Finance, real estate, rule of law, Small Businesses, strategy, Uncategorized, upscale, wealth

I do not pay my lawyers to tell me what I cannot do, but to tell me how to do what I want to do.

J.P.Morgan

Ikenna is a brilliant programmer and all round tech whiz. in 2015, he designed a classified listings website called TRUGG, which drew public attention and commercial success due to its user centered design and simplicity of use, as well as its global reach.

However, As his company grew rapidly, so did the rate of lawsuits filed against the company. Aggrieved users, competitors and random individuals would file cases against the company, costing the company millions of Naira in time, legal costs and settlements. After a few years of fielding these cases, Ikenna decided to seek advice from Joe, a fellow successful tech entrepreneur, on the desirability or otherwise of retaining a commercial lawyer for his business.

A good business attorney, when fully embraced and informed, guides the company and its management on all touch points- products, services, communications, investor relations and customer service. Your lawyer will provide vital assistance in almost every aspect of your business, from formal business incorporation to basic compliance, copyright and trademark advice, and civil, contractual, or criminal liability arising from the activities of the company.

Most small businesses put off hiring a lawyer until the sheriff is standing at the door serving them with a summons. Bad mistake. The time to hook up with a good business lawyer is before you are sued. It’s easy to get into court, but very difficult and expensive to get out once you’ve been “trapped”. Once you have been served with a summons, it’s too late–the problem has already occurred, and it’s just a question of how much you will have to pay (in court costs, lawyers’ fees, settlements and other expenses) to get the problem resolved.

A good commercial law firm should be ideally able to handle your lawsuits, negotiate your lease of office or retail space, file a patent or trademark, draft a software license agreement, advise you on terminating a disruptive employee, and oversee your corporate annual meeting.

For many entrepreneurs, the idea of consulting a lawyer conjures up frightening visions of skyrocketing legal bills. The fee a lawyer will charge to keep you out of trouble is only a small fraction of the fee a lawyer will charge to get you out of trouble once it’s happened. When you hire an attorney, ensure you draw up an agreement (called an “engagement letter”) detailing the billing method to be applied and also specifying what expenses you’re expected to reimburse. This saves from conflicts arising from billings and requests for reimbursements.

Your lawyer should tell you what the law says and explain how it affects the way you do business so that you can spot problems well in advance. However, you should note that no lawyer can possibly know everything about every area of law. If your business has specialized legal needs (a graphic designer, for example, may need someone who is familiar with copyright laws), your attorney should either be familiar with that special area or have a working relationship with someone who is.

You should be able to communicate openly and freely with your attorney at all times. Good looks and a dynamic personality are not as important in a lawyer as accuracy, thoroughness, intelligence, the willingness to work hard for you and attention to detail. Look out for a lawyer who believes in your business and who is willing to go above and beyond the call of duty in managing the risks of your business and resolving any issues that may arise before they start.

Your Landlord must give you a rent receipt!

Posted on April 12, 2017 by admin in corruption, Development, real estate, rule of law, transaction advisory, Uncategorized

Chinyere came into Lagos in 2008 with dreams of getting a good job with a juicy pay package. She started out staying with a friend in Akoka, until she was able to rent a miniflat in Bariga in 2010. After taking several low paying jobs, Chinyere got a marketing position with a new generation bank in Lagos Island and began preparing to enjoy life as a banker. She sub-leased a room in a 2-bedroom apartment located at Ikoyi from her co-worker Adenike. it was agreed that in consideration of the use of the room and common areas in the apartment, Chinyere would pay Adenike an annual rent of N500,000 to the existing tenant, being 50% of the N1 million charged on the property

Things went relatively well until Chinyere had a minor disagreement around 18 months after Chinyere moved in. After the disagreement, Adenike became hostile and and disagreeable towards Chinyere with the object of making her uncomfortable in the house. At the end of the tenancy, Adenike informed Chinyere that she would not be renewing the tenancy and as a result, Chinyere would be required to quit the room she was occupying with immediate effect.

Chinyere was shocked beyond belief! This possibly could not be legal. From her little knowledge of the law, an annual tenant was entitled to 6 months quit notice. She confronted Adenike with this information, and Adenike bluntly informed her that she was not tenant but a mere occupier who could be summarily required to quit the premises, asking her to present any proof of rent payment or a tenancy agreement between the parties. At this point Chinyere was flummoxed! it appeared she had been hoodwinked by her friend; she sought out legal advice to understand whether she had any rights against Adenike, or if her rights were extinguished by the lack of a rent receipt.

Chinyere’s case is special, because amongst other provisions, Section 1 of the Lagos State Tenancy Law 2011 provides that the Law would not apply in the Ikoyi Area- However, this does not preclude her rights as a tenant.

It has been severally stated by the different courts that a tenancy relationship is deemed to exist where exclusive possession of a premises or a portion of a premises are granted by the landlord/sub-lessor to a Tenant/Sub-Lessee, for valuable consideration-no matter how small such consideration may be. This implies that the rent must have been paid in cash for this provision of law to apply.

Furthermore whilst Section 5 of the Lagos state Tenancy Law expressly criminalizes the non- issuance of a tenancy receipt, the law stipulates that once the tenant can prove that a rent has been paid, a tenancy will be deemed to have commenced in favor of the tenant and the Landlord cannot claim that a tenancy does not exist, even though a written tenancy agreement may not exist in the circumstances. Thus it is advisable for the tenant to always have proof of payment of the rent, either in form of a teller, an acknowledged photocopy of the cheque used in the payment of the rent, or any other proof of payment.

Consequently, having received monetary consideration, Adenike is precluded from evicting Chinyere without following the due process of issuing the statutory 6-month and 7-day notices. In this situation, Chinyere may take the matter to the Citizens Mediation Centre to facilitate the amicable resolution of the matter, or she may proceed to the courts to enforce her legal rights.