THE IMPACTS/BENEFITS OF THE NIGERIA STARTUP ACT, 2022

President Muhammadu Buhari recently signed the Nigeria Startup Bill into law much to the delight of industry stakeholders. The new act, which seeks to provide an enabling environment for technology-enabled businesses in Nigeria, has been described as a game-changer for the burgeoning startup ecosystem in the country.

BENEFITS OF THE ACT.

 1. The Act will ensure that federal laws and regulations are clear, planned, and designed to work for the tech ecosystem. With the new Act, Nigeria’s tech ecosystem is expected to see an improved enabling environment soon.

2. The Act set up a Council known as the National Council for Digital Innovation and Entrepreneurship. The main function of the council is to ensure the monitoring and evaluation of the regulatory framework. It will also formulate and provide general policy guidelines for the realisation of the Startup Act’s objectives and give overall directions for the harmonisation of laws and regulations that affect a startup.

3.  The Act will usher in a new era and set in motion new rules of engagement for the startup ecosystem. Crucially, it brings an end to some of the challenges that may have held the startup ecosystem back since its rapid rise within the last decade.

4. It marks as one of the most historic pieces of legislation in Nigeria, as it positions the startup ecosystem to thrive through its targeted provisions. These policies, collaborative in their making, will now guide the operations of startups in Nigeria. 

5. It gives legal backing to both the sector and the players in the ecosystem.

6. It ensures the protection of young Nigerians that are coming up with innovative ideas without the requisite knowledge of dealing with international investors.

7. The offer of incentives such as tax holidays will allow startups to scale up without the burden of taxation in their formative years.

8. It establishes the Startup Investment Seed Fund, which is designated for startups alone to provide finance and tech relief for startups. This means increased access to funding that will grow the startup ecosystem. To this end, it will be easier for startups to fund their operations by leveraging the grants and loans that will be available to them.

9. Companies labelled as startups under the act are eligible for pioneer status incentives and other tax reliefs.

10. Also, companies labelled startups with at least ten employees where 60% of the employees have no prior work experience within three years of graduation or any vocational program have access to percentage-based tax relief.

THE NIGERIA STARTUP BILL HAS BEEN SIGNED INTO LAW- NIGERIA STARTUP ACT.

The Nigeria Startup Bill (NSB) has been passed into law and is now recognised as the Nigeria Start-up Act, 2022.Over a year after its first draft was produced, President Muhammadu Buhari assented to the NBS, which is targeted at the growth of the country’s tech ecosystem. 

The Minister of Communications and Digital Economy, Isa Pantami, disclosed this via his Twitter handle.He said the new act would establish the National Digital Innovation and Entrepreneurship Council.The bill’s passage into an act automatically eradicates the legal uncertainties that have trailed the startup industry in the past.The new act is a joint initiative by Nigeria’s tech startup ecosystem and the Presidency to harness the potential of the country’s digital economy through co-created regulations.

It is believed that it will ensure that Nigeria’s laws and regulations are clear, planned and work for the tech ecosystem.According to Pantami, it is an executive bill initiated by the offices of the chief of staff and the minister of communications and digital economy.With the new act, Nigeria’s tech ecosystem should see an improved enabling environment soon. Tech startups in Nigeria face several regulatory hurdles and suffer from a lack of basic amenities like constant power supply and limited funding.

A HIGH COURT IN PORT HARCOURT ORDERS NIGERIAN AGIP TO PAY OVER $8M TO F & G TRINITY MARINE LTD, AWARDS N20M DAMAGES AGAINST CHEVYLN RESOURCES LTD.

A High Court in Port Harcourt has ordered Chevlyn Resources Ltd and Nigerian Agip Oil Co. Ltd, to pay F & G Trinity Marine Ltd, the sum of N230 per liter for the balance of 147,467 liters of A.G.O and the sum of $815,778, for 852,532 liters of A.G.O, respectively.

 The court also awarded the sum of N20,000,000, as general damages to be paid by the 1st Defendant, Chevlyn Resources Ltd to F & G Trinity Marine Ltd

Justice, David Gbasam, while delivering the judgment on 30th Sept, in suit No: PHC/6/2022 entered it in favour of F & G Trinity Marine Ltd. He dismissed the counter-claim of the Chevlyn Resources Ltd, for lacking in merit.

Justice Gbasam, held that F & G Trinity Marine, at all material times in the case had the exclusive possessory right of the BARGE christened “KOBA 1”, as well as in control and charge over the content to the exclusion of the Defendants.

The court further held that the conversion and diversion of 1,000,000 liters of A.G.O being the content “KOBA 1” property of F & G Trinity Marine by Chevlyn Resources Ltd at Nigerian Agip Oil Co’s Farm Tank in Brass amounts to conversion, especially when it is done without its authorization.

The judge commended the counsel to the claimant, Chief AA Malik SAN and B. O. Iyasere-Kayode, Esq, for their professionalism, commitment, consistency in the suit.

In the Certified True Copy of the judgment the court made the following orders; “Restraining and/or prohibiting the 2nd Defendant from making any payment to the 1st Defendant and/or honouring any request for payment in respect of the plaintiff’s 1,000,000 liters of A.G.O being content of barge “KOBA 1” property of the Claimant converted by the 1st Defendant at the 2nd Defendant’s Tank Farm, Brass , Bayelsa State, between the period of June. 2018 to July, 2018.

“An order to be and is hereby made that the 1st Defendant ie Chevlyn Resources Ltd , pay to the Claimant forthwith the total gross price in the sum of 815,778 USD, for 852,532 liters of A.G.O belonging to the claimant and supplied to the 2nd Defendant by the 1st Defendant as admitted within 14 days from the judgment.

“The 1st Defendant is hereby ordered to pay to the claimant N230 per liter for the balance of 147,468 liters of A.G.O being the content of Barge “KOBA 1” property of the Claimant converted by the 1st defendant within the 14 days from judgement.

“The 1st defendant is hereby ordered to pay the claimant the sum of N20,000,000, as general damages

SURVEY LAW: COURT DISMISSES LAGOS STATE APPLICATION FOR STAY OF JUDGEMENT

Justice Daniel Osiagor of the Federal High Court in Lagos yesterday dismissed an application filed by Lagos State seeking to stay judgement of the court which nullified Section 5 of the Survey Law of Lagos State.

The controversial section requires surveyors to obtain written consent of the Surveyor General of Lagos State before carrying out survey on any state land or land acquired by the Lagos State Government.

In the application filed by the Surveyor General of Lagos State and 10 others, they are seeking an order of injunction pending appeal, restraining the Respondents from enforcing, implementing or taking any further step or giving any effect to the judgment of the court delivered on August 2, 2022, pending the determination of the appeal now filed against the judgment. 

Moving the Motion on Notice brought pursuant to Order 32 of the Federal High Court (Civil Procedure Rules, 2019), Mrs. T E Akinbiyi from the Lagos Ministry of Justice urged the Court to grant the Application, in order to forestall breakdown of law and order in Lagos State.

She told the court that the Applicants have a competent appeal on which the application is predicated, adding that it would be in the interest of justice if the Application is granted.

However, counsel to the respondents, Osaretin Egbobor opposed the application and urged the court to dismiss it in its entirety.

Egbobor informed the court that the Applicants have refused to obey the judgement of the court, and have invited the court to speculate on what constitutes the res in this matter and how the refusal of the Application would occasion a destruction of the res contrary to the settled principle of law that a Court of law does not speculate.

He stated that “A party who seeks an exercise of the Court’s discretion must place sufficient materials before the Court to aid the Court to exercise its discretion.

“Having not placed before this honourable Court, the res which the Applicants alleged will be destroyed in this matter, the Respondents submit that the Applicants have not placed sufficient materials before your lordship to warrant the exercise of your lordship’s discretion in favour of the Applicants.”

He stated that as long as the applicants continue in their contempt of disobeying the orders contained in the judgment, the Court will not exercise its discretionary power in their favour.

In his ruling, Justice Osiagor held that the fact that the Applicants filed an appeal against the judgement of the court does not constitute a stay of execution of the judgement.

The court further held that the judgement was declaratory, and not executory, hence that was not to stay.

Dismissing the Application, Justice Osiagor held that the Application lacked merit, and there is absolutely nothing to restrain.

Justice Osiagor, had in his judgement held that the Lagos State House of Assembly acted unconstitutionally, in enacting Section 5 of the Survey Law of Lagos State, which requires Surveyors to obtain written consent of the Surveyor General of Lagos State before carrying out survey on any State land or land acquired by the Lagos State Government.

The court stated that the Surveyors Council of Nigeria is the only body vested with authority to regulate and control survey practice/profession throughout the Federal Republic of Nigeria.

Justice Osiagor held that only the Surveyors Council of Nigeria, (2nd Defendant) has the powers to issue guidelines for the conduct of Survey Practice in Nigeria 2020 in exercise of its powers to regulate and control survey practice/ profession in Nigeria.

The court stated that the Surveyor General, of Lagos State (1st Defendant) being a member 2nd Defendant, is bound to follow and apply the Guidelines for the Conduct of Survey Practice in Nigeria 2020, in Lagos State.

The court held that the Surveyor General, of Lagos State lacks the power to deny the Plaintiffs or any Registered Surveyor consent to conduct survey on any parcel of land in Lagos State (whether owned by the Lagos State Government, Corporate bodies or private individuals).

The court also held that the first Defendant lacked the power to reject copies of survey plans submitted by the Plaintiffs, and every other Registered Surveyor in Nigeria) for lodgement and that he has no power to demand and/or insist on counter-signing a survey plan prepared by a Registered Surveyor.

Besides, Justice Osiagor held that “The engagement of the 3rd to 9th Defendants by the 1st Defendant via a letter dated 15 September 2020 with Reference No. OSSG/CAD/2020/Vol. 1/ 033, as the only Surveyors to carry out surveys in the Mende Revocation Area, to the exclusion of the Plaintiffs, and every other Registered Surveyor in Nigeria is hereby set aside for being in gross violation of the provisions of Sections 4(d) and 19(1) of the SURCON Act, Sections 1(3), 1(5) and 3 of the Guidelines for the Conduct of Survey Practice in Nigeria 2020.

Subsequently, the court made an order of perpetual injunction restraining the Defendants from giving effect to the 1st Defendant’s letter dated 15 September 2020 with Reference No. OSSG/CAD/2020/ Vol. 1/033, pursuant to which the 3rd to 9th Defendants were engaged by the 1st Defendant is hereby granted.

COURT ORDERS FEDERAL GOVERNMENT TO RETURN NNAMDI KANU TO KENYA

 The Federal High Court presided by Justice Evelyn Anyadike has ordered the Federal Government to “restore Nnamdi Kanu to his status quo before 19th June 2021”.

In Wednesday’s ruling on fundamental human rights and extraordinary rendition of the leader of the proscribed Indigenous Peoples of Biafra (IPOB), she also ordered the government to pay N500m as damages to him.

The Court in its further rulings issued an injunction restraining the Attorney General of the Federation Abubakar Malami from prosecuting Kanu consequent upon his extraordinary rendition.

Kanu had in March this year filed a suit through his special counsel Aloy Ejimakor to enforce his fundamental rights stemming from what Ejimakor had termed his “extraordinary rendition” from Kenya in June last year.

In its Judgment, the court dismissed the Federal government’s objections to its jurisdiction and upheld all the reliefs sought by Kanu.

Speaking to the media after the judgment, Ejimakor called on the Federal government to “promptly comply with the judgment, more particularly the part that requires Kanu to be returned to Kenya”.

“We defeated the Federal Government. They said they don’t listen, they have listened today. Court told them that if they know the thing they did in June last year when they went to abduct the man from Kenya, they should return him back to Kenya the same way,” he told BBC Igbo.

“That what they did is bad and illegal, the way they tortured him is illegal. Our prayers to the court are eight, the court granted all. But the one I’m strongly pointing at is for them to take him back to Kenya, that is what the court said. So, I am hoping they will obey. If you offend and the court tells you, you have to accept.

“If you offend the Federal Government, they go to court; why do they go to court? When the court rules against them, they will start dragging foot. If they insist on not obeying the court, then they should dismantle all the courts in the country and we will start exchanging blows.”

RULE OF LAW VS RULE OF FORCE- DIFFERENCE.

 Nwadiajuebowe vs. Nwawo (2004) 6 NWLR (Part 869) Page 439, Ratio 2.

RULE of law and rule of force are mutually exclusive. Law rules by reason and morality, force rules by violence and immorality. Thus, where the rule of law operates, the rule of self-help by force is abandoned. Therefore, once parties have submitted to jurisdiction of the court, they must not resort to self-help. In other words, once the court is seised of a matter, no party has the right to take the law into his own hands. The whole rationale for this position is that if parties are allowed to resort to self-help, the machinery of justice will not only ground to a halt, but will be most ineffective in the enforcement of court processes. Thus, once the court is seised of a matter, no party has a right to take law into his own hands.

ADEGOKE. MOTORS LD V ADESANYA & ANOR (1989) 3 NWLR (PT. 109) P. 250.

On the need to interpret the decisions of the Supreme Court based on the facts and circumstances of each case.

.

From the arguments put forward, both in the briefs and oral submissions of the parties, it is evident that the parties interpreted our various decisions where Sections 97, 98 and 99 of the Sheriffs and Civil Process Act were mentioned; especially Skenconsult (Nig.) Lt & Anr. v. Ukey (1981)1 S.C. 6 and Ezomo v. Oyakhire (1985) 2 S.C. 260; (1985)1 N.W.L.R. (Pt.2) 195 differently and arrived at different conclusions as to what exactly this Court decided in those cases. It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.

 

PRENUPTIAL AGREEMENT IN NIGERIA - ARGUMENT AGAINST

Elvis Asia

Managing Partner at Law Future Partners

Like everything else, there are downsides to a prenup. A prenup is not romantic! For most people, particularly women, being engaged invokes images of ‘Mills and Boon’ love stories, candlelit dinners and walks in the moonlight. Any talk of a prenup at this point may wake one from this sweet dream of bliss! In fact, it may raise suspicion. The reality, however, is that happily-ever-after are love stories meant only for the pages of ‘Mills and Boon’. Marriage is not only a romantic partnership; it is also a financial one as well. Failure to discuss finance and property is at the root of many difficulties experienced in marriages and divorces.

Another downside is that you have to disclose your assets to your partner as you are mandatorily required to disclose them. There may be special reasons why you may not want to do so but when you hide your assets; you are already planting landmines for the marriage.

A prenup is said not to be ideal for everyone but for persons with substantial wealth, older people marrying younger people and people who are entering into second or subsequent marriages. This should not be the case in view of the advantages enumerated above. It is not out of place for people outside of this bracket to enter into prenup or at least, have serious discussions on finance and property before marriage. Moreover, with reference to wealth, there is nothing to say that a couple without considerable wealth today will not have some tomorrow.

People also believe that negotiating a prenup leads to conflict even before the marriage. Starting a relationship with a contract that sets out the particulars of what will happen upon death or divorce can engender a sense of lack of trust. As this maybe, a frank communication about finance before marriage which a prenup symbolizes can actually improve the quality of relationships and provide a great basis for communication in marriage.

From the perspective of Religious people, a prenup is a bad omen. If the person is a ‘Christian’, the argument will be that a prenup is contrary to God’s ‘till death do us part’ will for marriage. It is like asking a Nigerian to write a Will! If you tell your parents about a prenup, their response is likely going to be questions like: “what do you mean”? “Are you planning to divorce”? A prenup is not a divorce plan; it can be likened to insurance. The insurance of your property against fire does not mean you are inviting fire to destroy it and the fire may never occur but when it does, the effect will be cushioned. A prenup is also not all about divorce.

Though hardly considered, there are many practical and legal reasons why a prenup should be explored in Nigeria. There is nothing under our law which precludes its enforceability. A prenup proposal may be unromantic but it is a practical financial decision, it has nothing to do with love or the absence of it.  There is a reality after a marriage ceremony and like they say, ‘life happens’. In this age of materialism where ‘love’ can be a deceptive tool and where the once sacred institution of marriage has been demystified; the only assurance of true love may just be a prenup.

 

VALIDITY OF PRENUPTIAL AGREEMENT IN NIGERIA

Elvis Asia

Managing Partner at Law Future Partners

The Matrimonial Causes Act (MCA) in Section 72(2) recognises the right of parties to execute prenup and post-nuptial agreement (a post-nuptial agreement is entered into after the marriage and in most cases, during the course of a divorce proceeding). Though the court has discretion on the enforcement of pre or post-nuptial agreements with respect to the allocation of property in the event of a divorce, experience has shown that the court readily enforces post-nuptial agreements[15].  The same approach would apply to prenup, in view of the fact that court is mandated to take into consideration any prenup made by the parties for settlement of properties[16].

[15] In view of the fact that the court hardly questions post-nuptial agreements entered into during the course of proceedings, it is advisable for couples to enter into such agreements to avoid lengthy and expensive divorce process. However, prenups are more advantageous in that at the time of contracting same, emotional and sentimental feelings of hurt which normally stand in the way of post-nuptial agreements would be absent. From experience, parties hardly agree on anything after the marriage breaks down.

[16] The MCA refers agreements entered into between the parties before or after marriage. In some sections it is termed ante-nuptial or post-nuptial settlement. See sections 16 (1) (f), 19, 72 (2), 73 (1) (k) of the MCA.

PRENUPTIAL AGREEMENT AND SETTLEMENT OF PROPERTY IN NIGERIA

Elvis Asia

Managing Partner at Law Future Partners

There is a legal necessity for a prenup in Nigeria. This is because, unlike many jurisdictions where state/national laws do a fine job of defining clear property rights in marriage and in the event of a divorce, the Nigerian legal framework is vague with wide discretion, the exercise of which has been influenced by patriarchal norms and an unconscious bias against women.

The courts have the power to allocate financial resources or settle property at the instance and for the benefit of the parties and the children of the marriage under Section 72 of the Matrimonial Causes Act[8] (MCA). There is however no provision under Nigerian law defining the premise and boundary of the exercise of the court’s power[9]. All the courts are required to do under section 72 MCA is to consider what is just and equitable in the circumstances of each case[10].

In applying this wide discretion, the courts have formulated, as the primary consideration, the contribution of the parties to the property[11]. In a situation where one of the parties is found not to have made any contribution, he/she will not get anything no matter the age of the marriage. Though the contribution envisaged have been stated to include moral support to the business that generated the income[12], this judicial creation defeats section 72 (1) which contemplates that the property due for settlement may belong to one of the parties and is most unfair. The idea approach which represents the intention of the legislature from a review of the law is that, once the property was acquired or paid for during the subsistence of the marriage, the parties are entitled to interest in the property and what is left for the court to do is to determine the extent or ratio of that interest. In exercising that discretion, the court may then consider factors such as contribution, the duration of the marriage, ages of children of the marriage and who has custody, etc[13].

It is hoped that one day, the court will have course to review its position on its fixation on contribution as the basis for determining interest in properties acquired during a marriage in the direction of my postulation above, however, the reality today is that the factor remains the default setting in the judicial system. The court would not grant any interest unless contribution is established. The attitude of the court has done injustice in many cases against the spirit of section 72 of the MCA. This has resulted in a situation where parties who have properties abroad prefer to petition for the division of assets in other countries or apply for ancillary reliefs after proceedings in Nigeria where the legal framework is more favourable[14].

A prenup will address the lack of clarity in the Nigerian law on settlement, of property in the event of a separation or divorce. A prenup may also be employed to subject issues of property settlement to the laws of countries (where the properties are situated) with a more favourable legal framework.

[8] Cap M7 LFN 2004[

9] There is a justifiable argument in some quarters that unguarded discretion by a court amounts to a breach of the fundamental premise of the Rule of Law. This is because a major element of the rule of law is that the law must be precise and clear leaving no room for subjective considerations.

[10] See generally Practical Law overview of Family Law in Nigeria by Efe Etomi & Elvis Asia. Available online at https://uk.practicallaw.thomsonreuters.com/6-613 4665?__lrTS=20180110042641003&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

[11] MR. ALEXANDER IBEABUCHI v. MRS. NNEKA IBEABUCHI (2016) LPELR-41268(CA), MRS. GETRUDE N. MGBEAHURUIKE v. MR. ROLAND C. MGBEAHURUIKE (2017) LPELR-42434(CA), Rimmer Vs Rimmer (1952) 2 All ER 863, Coker Vs Coker (1964) LLR 188, Amadi Vs Nwosu (1992) 6 SCNJ 59, Egunjobi Vs Egunjobi (1974) 4 ECSLR 552, Aderounmu Vs Aderounmu (2003) 2 NWLR (Pt 803) 1, Mueller Vs Mueller (2006) 6 NWLR (Pt.977) 627, Oghoyone Vs Oghoyone (2010) LPELR-CA/L/26/2003

[12] It must be noted that the courts have in some cases decided commendably that contribution may or may not be towards the acquisition of the property in issue but general contribution to joint living as husband and wife. See KAFI v. KAFI 1986) 3 NWLR (pt.27) 175 and Akinbuwa v. Akinbuwa (1998) 7 NWLR pt.559 p. 661

[13] This is consistent with the practice in the United Kingdom where our matrimonial laws originated from. In the United States, there is a presumption of 50/50 split and these factors may swing the ratio upwards or downwards depending on the circumstances.

[14] See Agbaje v Akinnoye-Agbaje [2010] UKSC 13

PRENUPTIAL AGREEMENT AND BREACH OF PROMISE TO MARRY IN NIGERIA

Elvis Asia

Managing Partner at Law Future Partners

 There have been cases where planned marriages are called off after the parties have invested much into it. Though hardly explored in Nigeria, breach of promise of marriage is a legal possibility[5]. There are few reported cases of claims for breach of promise of marriage[6]. Perhaps, one of the major reasons for this is the enormous burden of proving the existence of the promise in the first place. The law is that to establish the claim, the claimant must show that there was a promise to marry under the Matrimonial Causes Act, or under Islamic law or under customary law[7]. This difficulty can be solved with a provision for breach of promise claim in a prenup. The importance of this is that it would provide the needed corroboration required by law to establish the claim.

[5] The Evidence Act, 2011 recognizes breach of promise of marriage claims but provides that the claim must be corroborated. 

[6] See Aiyede vs Norman –William (1960) LLR 253, Uso v Iketubosin [1975] WRNLR 187, Mabamije vs Otto (2016) LPELR 26058(SC) and EZEANAH V. ATTA (2004) LPELR-1198(SC).

[7] The special requirement for proof of breach of promise of marriage was recognized by the Supreme Court in EZEANAH V. ATTA. Niki Tobi JSC in his usual linguistic flamboyance noted that a mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry.