LEGAL PRACTICE
REPOSITIONING NIGERIA FOR GLOBAL INVESTMENT THE ECONOMY, THE REGULATIONS & THE LAWYER OF THE FUTURE
Ayuli Jemide, Chairman Nigerian Bar Association Section on Business Law N1000 $3.85 £3.12 F I N A N C E M A R K E T I N G M A N A G E M E N T T E C H N O L O G Y S P O R T S L I F E S T Y L E
LEGAL PRACTICE
THE INDISPENSABLE COUNSEL THE IN-HOUSE LEGAL DEPARTMENT AS AN INDISPENSABLE PILLAR OF CORPORATE NIGERIA
F I N A N C E M A R K E T I N G M A N A G E M E N T
MAURITUS AS AN ATTRACTIVE OPTION FOR THE ENTERTAINMENT INDUSTRY, THE FLYING CADILLAC: A BRIEF LOOK INTO THE LAW & FLYING CARS
N1000 $3.85 £3.12
T E C H N O L O G Y S P O R T S L I F E S T Y L E
ESQ PRACTICAL LAWYERS ACADEMY INTRODUCES
CLE WEBINAR PLATFORM The CLE Webinar Platform will provide unlimited virtual access for CLE programmes to African Lawyers and their clients. ESQ's mission is its commitment to the development of a robust and comprehensive continuous Legal Education for Lawyers and their clients across Africa.
Mondays & Wednesdays | 1:00pm WAT
Fridays | 11:00am WAT
FOR BOOKINGS AND ENQUIRIES:
Proudly sponsored by
+2348132676084, trainings@esq-law.com
ADVOCAAT LAW PRACTICE & G. ELIAS & CO
ESQ PRACTICAL LAWYERS ACADEMY CORPORATE/IN HOUSE COUNSEL ACADEMY PRESENTS
DATE:
th
th
5 –8 APRIL, 2021
ADVANCED NEGOTIATION WORKSHOP FOR LAWYERS
FOR BOOKINGS AND ENQUIRIES:
+2348132676084, trainings@esq-law.com
Interview
THE INDISPENSABLE COUNSEL | P48 | P22 |
HEAVY VAT ADJUSTMENT
P25 |
TRADE SECRETS
P27 |
LEGAL REPORT
P38 |
GREYCHAPEL
P44 |
MAURITUS
P56 |
BOOK KEEPING
P58 |
LAW FIRM STRATEGY
REPOSITIONING NIGERIA FOR GLOBAL INVESTMENT
THE ECONOMY, THE REGULATIONS & THE LAWYER OF THE FUTURE |74|
A REVIEW OF BOFIA | 68| ARTIST MANAGEMENT IN CAMEROON | P26 | BLOCKCHAIN |80|
SEGUN OSUNTOKUN THE BLACK-BRITISH SUPER LAWYER
GREYCHAPEL LEGAL
A PROMISE OF LEGAL EXCELLENCE
P86 |
LEGAL ISSUES IN THE OIL & GAS SECTOR
P88 |
THE FLYING CADILLAC
P92 |
LIMITATIONS IN THE NIGERIAN ENERGY
THE COMPANIES & ALLIED MATTERS ACT 2020 KEY HIGHLIGHTS
| P40 |
| P12 |
DEVELOPMENTS IN
AFRICAN ARBITRATION LAW
| P20 |
AO2LAW
A HAVEN OF INNOVATIVE LEGAL SOLUTIONS |62|
| P48 |
oluwatosin
temitayo
Solanke
Samuel
Oluwatosin graduated from the Olabisi Onabanjo University from where she got her LL.B with honours in 2009. She was called to the Nigerian Bar in 2011 and holds an LL.M Degree in Commercial Law from the University of Cape Town, South Africa. She is disciplined, result oriented, a good team player with the ability to take up leadership responsibilities. She is the Administrator and Head of Training at ESQ Trainings Limited and also a member of the ESQ Legal Practice Magazine editorial team.
Temitayo's background in finance and administration makes her an invaluable asset to Esq Trainings Limited. She also holds the position of a community manager. Temitayo is the brain behind some of the company's latest investment. She adds value by assisting lawyers with good ideas on how to translate legal expertise to profitability.
zainab
Head Of Training/ Administration: Tosin Solanke Community/finance Manager: Temitayo Samuel Digital Marketer: Zainab Lawal
adeyemi
Lawal
Owoade
Zainab Lawal studied Electrical and Electronic Engineering in the university of Bradford. She has a flair for digital marketing and brand management. She is currently a digital marketer at ESQ trainings limited. She is good at developing strategies that helps businesses thrive online. She sees herself as a creative and innovative individual with great skills in planning, time management, and research.
Adeyemi is a legal practitioner with expertise in research and editorial functions. He currently holds the role of research and communication executive with ESQ Training Limited. He is a member of the editorial team of ESQ Legal Practice Magazine.
janet
chidinma
Nwoke
Agu
Janet is a seasoned communicator with years of experience in public speaking. Her background in English Language at Obafemi Awolowo University informs her book editing skills. She is multitasking, and this ability makes her fit into opportunities seamlessly. Also, She is the CEO of Royal Impeccable Gallery, the home of beads, auto gele, make up, and dress making.
Chidinma is a seasoned lawyer with the role of research and development at Esq Training Limited. She finished from Obafemi Awolowo University IleIfe, Osun state. She is currently a member of a continuous legal education NGO affiliated to the United Nations Office on Drugs and Crime (UNODC) called the Legal Advocacy in Response to Drugs and related organized crime in Nigeria (LARDI). She has also diversified into the real estate sector of the economy and she believes herself to be a seasoned research development personnel.
Research & Communications: Adeyemi Owoade Human Resource Manager: Janet Nwoke Olurotimi Akeredolu San Gbenga Oyebode Mfr Kayode Sofola San Prof. Mrs. Yinka Omoregbe Dr. Dayo Adaralegbe Theophilus Ayeteni Lilian Allosse Legal Interns: Chizoba Osuji Azibasuam L. Afagha Oluwafemi Akinrefe
+234 813 267 6084 +234 803 526 9055 esqlegalpracticemag@gmail.com trainings@esq-law.com
Block 58A, Plot 18A, Omorinre Johnson, Lekki Phase 1, Lagos
lere.fashola@esq-law.com
ESQ PRACTICAL LAWYERS ACADEMY & CORPORATE FINANCE ACADEMY PRESENTS
DATE:
th
8 ‒ th 11 March, 2021
A 4 DAY TRAINING ON THE
MECHANICS OF CORPORATE FINANCE
FOR BOOKINGS AND ENQUIRIES:
+2348132676084, training@esq-law.com
2021
BUSINESS IN AN INTERNET CENSORED WORLD
Lere Fashola
national election. Can citizens question this censorship as a breach of human rights? Will it be a breach of freedom of speech? It may be seen as the same. However, we must note that fundamental human n recent times, there even deliver services to rights are subject to the have been several customers. The Coronavirus overriding public interest. actions by government pandemic makes the use of What the court would do in agencies and internet the internet more this situation, according to service providers in indispensable. Now, the Oliver Wendell Holmes, will trying to lock their clients possibility that what Amazon be the law. The court is the did with Parler can be done from the internet. This last hope of man we await with any business. January, the Ugandan what the court would do in government locked the case the government shut internet in preparation for the It appears that the law down the internet. But will presidential elections. Sequel business may be one of the our court be on the side of the to the capitol Hill attack, most affected as a lot of law citizens? You can guess the Amazon removed Parler, a firms in advanced countries answer! social media platform, from now rely on the use of the internet for claims related technology to improve their On the other side, when a to the citing of insurrection. legal service delivery. There hosting company forcefully abound legal technologies Twitter and YouTube also removes their clients from the improving on legal service respectively suspended internet in the case of Parler, Donald J. Trump's accounts on delivery. Some law firms have what should the client do? even adopted cloud their respective platforms. If There must be a recourse to computing. An internet businesses are unjustly the hosting agreement and shutdown experience will removed from the internet, other contractual terms in mean a lot for law firms. Law existence between parties. how will they survive? firms and other businesses Lawyers can help review such Earlier in 2020, the Nigerian must ensure they find a way agreements to seek recourse Government was said to have of survival in this case. and remedy from such. In the introduced a bill in the case of Amazon and Parler, National Assembly seeking to What then should a business Amazon claimed their action regulate the use of social do in case of an internet was based on Parler’s breach media. It faced a huge public shutdown? of fundamental clause and outcry. Nevertheless, the term. Now, if businesses are possibility of the law been Governments licensed removed from the internet by passed is high. It appears that telecommunication companies their hosting companies such the government will be to operate in their countries can take action for remedies interested in controlling the and they can withdraw same for breach of contract if they use of social media. at any point. In the case of have not breached any Since Businesses now leverage Uganda, the reason was the fundamental term. The work the internet to market and security of persons during the of the tech-oriented lawyer
In this connected digital world, businesses only thrive when they leverage the use of the internet. The use of the internet is tied to the survival of many businesses. Take away the internet and many will be out of business.
I
www.esq-law.com
cannot be underestimated in this issue. We must say that the legal space on this issue is still fresh. Recently, the Judge in the case between Parler and Amazon held that it would not be in the “public interest” to force Amazon “to host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the U.S. Capitol.” In essence, the matter was dismissed. This judgment means a lot for internet censorship. It appears that a web service provider can decide one day and remove clients from the internet for hosting ‘abusive contents’. This path is not safe for our connected world. A censored internet is one that will choke businesses. The possibility of a grand shutdown of the internet in a digital world like ours seems impossible but impossible may be possible. However, a selective restriction may start happening as it has been in some countries of the world. Businesses that cannot survive outside the internet may suffer if such happens. Businesses and other parastatals have a lot of responsibilities in preventing such an Armageddon. The internet is another jurisdiction whose citizens must rise to safeguard.
Esq Legal Practice | 11
Law
THE COMPANIES & ALLIED MATTERS ACT 2020 KEY HIGHLIGHTS Written by G. ELIAS & Co
On August 7, 2020, the Special Adviser to the President on Media and Publicity, Chief Femi Adesina, announced that President Muhammadu Buhari had signed the Companies and Allied Matters Act 2020 (“CAMA 2020”) into law. Prior to the signing of CAMA 2020, the extant law that regulated the operation of companies and other forms of business associations was the Companies and Allied Matters Act 1990 and its amendments (“the Old CAMA”).
C
AMA 2020 ushers in welcome developments that will not only ease the administration and management of corporate entities but also embrace the technological advancements and realities that have rendered provisions in the Old CAMA obsolete. We have set out below summaries of the key changes and introductions ushered in by CAMA 2020. Single Shareholder for Private Companies. Unlike under the Old CAMA that required a minimum of 2 12 | Esq Legal Practice
(two) shareholders for the formation of a company, CAMA 2020 allows private companies to be incorporated with a minimum of 1(one) shareholder.
50% of the total assets of that company without the consent of all its shareholders. These restrictions are, however, not compulsory and ultimately subject to the provision of the articles of that company.
Restrictions on Transfers of Shares and Assets for Private Companies.
Consent of the Attorney-General of the Federation for Ltd/Gte.
CAMA 2020 has introduced pre-emptive rights in favour existing shareholders of a private company where a shareholder intends to transfer its shares to a third party. The shares are required to be first offered to the existing shareholders. Also, a private company may not transfer assets with a value of
Though the consent of the Attorney General of the Federation (the “AG”) is still required to register a Ltd/Gte, CAMA 2020 provides that where all valid documents are furnished and no decision has been made by the AG within a 30 day period, the promoters of the Ltd/Gte shall: (a) place an advertisement in 3 national
daily newspapers, and (b) invite objections, if any, after which the Corporate Affairs Commission (the “CAC”) shall having regard to all the circumstances assent, register and issue a certificate of incorporation to the Ltd/Gte without the AG's consent. Abolition of Authorised Share Capital and Introduction of Minimum Issued Share Capital. Companies are no longer required to have an authorised share capital which accommodates an unissued share capital. Companies are now only required to have a minimum issued share capital without room for any www.esq-law.com
unissued share capital. The minimum issued share capital shall not be less than N100,000 in the case of a private company and N2,000,000 in the case of a public company. Increase of Share Capital. A company's issued share capital is increased where the company in general meeting through an ordinary resolution allots additional shares to its shareholders. At least 25% of the issued share capital is now required to be paid up.
Declaration of Compliance. The declaration of compliance required when a company is registered may now be merely signed by an applicant or its agent. Prior to this change, a declaration of compliance was required to be signed by a legal practitioner and attested before a commissioner for oaths or notary public.
Execution of Deeds by Companies. A company may now execute a deed without affixing its common seal so long as it is executed on behalf of the company by at least two directors, or a director and a secretary, or one director whose signature shall be attested to by at least one witness.
Issue of Shares at a Discount. Companies are now absolutely prohibited from issuing shares at a discount. Irredeemable Preference Shares.
Common Seal Requirement. Significant Control.
The previous requirement for a company to have a common Persons with significant seal is no longer mandatory. control over a company are required to disclose their interest to the company. Recognition of Electronic Objects of a Company. Signatures. Persons with significant control are persons that hold CAMA 2020 provides that the Electronic signatures are now at least 5% of the voting objects of a company shall be recognized as a valid means of rights, shares or interest in a unrestricted unless specifically restricted by that company in authentication of a document company or limited liability by an authorized signatory of partnership; have the power its articles. a company. to appoint or remove a majority of the board or partners of a limited liability partnership; or exercise www.esq-law.com
significant influence over a company or limited liability partnership. Companies are also required to disclose these persons in their annual return filings.
Companies limited by shares are prohibited from issuing irredeemable preference shares. Valuation of Consideration other than Cash for Shares. The requirement for an independent valuer to value consideration other than cash is now restricted to public companies.
Esq Legal Practice | 13
Share Buyback and Treasury Shares. A company may now, with the satisfaction of certain conditions, buyback its own shares. Also, CAMA 2020 introduces the concept of treasury shares which refers to shares in a company's share capital which the company holds in proprietary capacity and enjoys legal, beneficial and economic interest of. A company may only hold a maximum of 15% if its shares as treasury shares. Reduction of Registration Cost for Registration of Charges. The fees payable to the Corporate Affairs Commission (“the Commission”) for the registration or release of a charge shall not exceed 0.35% of the value of the charge. Annual General Meetings. Companies with a single shareholder and small companies are not required to have annual general meetings. Virtual meetings. Shareholders of private companies are allowed to convene general meetings electronically where their articles so permit. Service of Notices Electronically. Notice of general meetings may now be sent to email addresses provided by shareholders.
14 | Esq Legal Practice
Public companies are now required to have at least three independent directors. An independent director is a director who, or whose relatives either separately or together with him or each other, during the two years preceding the time in question was not an employee of the company, did not own directly or indirectly more than 30% of the shares of any type or class of the company.
Compensation of Managers.
Independent Directors.
Public companies are now required to have at least three independent directors. An independent director is a director who, or whose relatives either separately or together with him or each Minutes of Meetings. other, during the two years preceding the time in question Companies with single members are not required to was not an employee of the company, did not own keep minutes of meetings. Also, in the case of a company directly or indirectly more than 30% of the shares of any that has only one member, where such member takes any type or class of the company. decision that may be taken by Register of Directors Residential the company in general Addresses. meetings and has effect as if agreed by the company in Companies are now required general meeting, the single shareholder shall provide the to keep registers of residential addresses of directors. details of the decision to the board of directors. Company Secretary. The compensation of managers of a company is now required to be disclosed the shareholders of a company in general meeting.
Minimum Number of Directors. Small companies are permitted to have less than two directors. Second/Casting Vote. The requirement for the chairman of a company to have a second or casting vote may now be varied by the articles of a company.
Small companies are not required to appoint company secretaries.
issued shares and in the case of a company not having a share capital, on the application of at least onetenth in the number of persons on the company's register of members. Publication of Accounts on Website. Public companies are required to publish their audited financial statements on their websites. Introduction of the Financial Reporting Council of Nigeria. CAMA 2020 replaces (a) Nigerian Accounting Standards Board with “Financial Reporting Council of Nigeria” and (b) Institute of Chartered Accountant of Nigeria Act with “any Act establishing a body of Accountants”.
Definition of a Small Company. Investigation of a Company by the Commission. The new turnover amount and net assets value for a small An investigation may only be company is “not more than conducted on the application N120,000,000 and of members holding at least N60,000,000” respectively. one-tenth of the company's
www.esq-law.com
CAMA 2020 allows any documents required to be filed with the commission to be filed electronically and further allows certified true copies of documents filed electronically to be admissible in evidence as of equal validity with the original documents. Shareholders of private companies are allowed to convene general meetings electronically where their articles so permit. Composition of Audit Committee.
national newspapers a list of the names of the persons CAMA 2020 has changed the entitled to unclaimed erstwhile composition of the dividends and attach same to audit committee of a public the notice of its next AGM. company. The members of the Certification by Small Companies. Dividends that are unclaimed audit committee of a public after 12 years should be company shall now be 5(five) A small company is required included in the profits that with 3 (three) shareholders to annex with its annual should be distributed to other and 2(two) nonexecutive returns a certificate stating shareholders of the company. directors. At least one of the that annual turnover is not members is required to be a more than N120,000,000 (One Voluntary Arrangements. member of a professional Twenty Million Naira) and its accounting body in Nigeria net assets value is not more CAMA introduces a proposal established by an Act of the than N60,000,000 or as may be for voluntary arrangement to National Assembly. fixed by the Commission. be made by the directors of a company to its creditors for a Certification of the Audited Defunct Companies. scheme or arrangement of its Financial Statements. affairs or composition in Failure to file annual returns satisfaction of its debts. The The audited financial for a consecutive period of 10 proposal may only be made statements of a small years is a ground for striking where (i) an administration company are not required to the name off the companies order is in force in relation to be certified by its chief register. the company, and (ii) the executive officer and chief company is being wound up financial officer. Unclaimed Dividends. by a liquidator. Filing of Returns. CAMA 2020 introduces an application by a company for an extension of time to file its annual returns after the prescribed 42days. However, this does not apply to companies with only one member. Also, documents
www.esq-law.com
required to be annexed to an annual return can be delivered in either hard copies or via electronic communications.
CAMA 2020 requires a company to publish in two
(i)
an administration order of the court, (ii) a holder of a floating charge, or (iii) the company or its directors. The administrator shall manage the affairs, business and property of the company for the purpose of rescuing the company, achieving the best result for the company's creditors and realizing property to distribute to the company's creditors or preferential creditors. An application for an administrative order may be made by;
(i) the company; (ii) the directors; (iii) one or more creditors of the company; (iv) a designated officer of the Federal High Court to act as a receiver; (v) a combination of the persons listed in (I)- (iv). An administrative order is only one of the ways through which an administrator may be appointed.
Appointment of Administrators.
Generally, upon the making of an administration order by the An administrator may court, any petition to wind-up be appointed over the the concerned company shall affairs of company be dismissed. by
Esq Legal Practice | 15
more persons who shall be the limited partners. A partnership that carries on business as a limited partnership is required to be registered with the Commission. Where a limited partnership is not registered with the Commission, it is deemed to be a general classification of qualified partnership and all the contracts to be which netting partners shall be deemed to be agreements may be based general partners. Therefore, upon and the enforceability of any limited partnership a netting agreement in registered under any statute is insolvency proceedings. required to be reregistered with the Commission. Unlike Limited Liability Partnerships. a limited liability partnership, a limited partnership does not CAMA 2020 has introduced have a separate legal limited liability partnerships personality from its partners. (“LLP”). An LLP is a corporate Mergers of Associations. body capable of suing and Associations registered as being sued in its own name incorporate trustees may now and to be registered with at be merged subject to the least two partners. An LLP is a provisions of CAMA 2020. legal entity separate from its partners. LLPs are required to Administrative Proceedings have at least two designated Committee. partners who shall be responsible for the acts, CAMA 2020 establishes an matters and things required of Administrative Proceeding the LLP. Foreign limited Committee liability partnerships are charged with the duty to required to be registered in resolve disputes arising from Nigeria prior to carrying on the operation of CAMA 2020. any business in Nigeria. LLPs may be wound up voluntarily Electronic Filings. by the partners or by the court CAMA 2020 allows any and thereafter dissolved. documents required to be filed Persons with significant control of an LLP are required with the Commission to be to disclose their interest to the filed electronically and further allows certified true copies of Commission and the LLP is required to maintain a register documents filed electronically to be admissible in evidence of such persons. as of equal validity with the original documents. Limited Partnerships.
CAMA 2020 has introduced limited liability partnerships (“LLP”). An LLP is a corporate body capable of suing and being sued in its own name and to be registered with at least two partners. An LLP is a legal entity separate from its partners. LLPs are required to have at least two designated partners who shall be responsible for the acts, matters and things required of the LLP.
Powers of Administrators.
Fraudulent Preference.
The administrator has allencompassing powers to do anything expedient for the management of the affairs business and property of the company such as removing or appointing a director whether or not a vacancy exists and taking custody and control of the property of the company. In furtherance of the administrator's powers, officers of companies in administration require the consent of the administrator prior to exercising any management power. An administrator may, by the order of the court, dispose of property that is the subject of security (other than a floating charge which does not require the order of the court) and dispose of property that is subject to a hire-purchase arrangement. The powers of the administrator may be subject to scrutiny where a creditor applies to court for an examination of the conduct of the administrator.
The definition of what constitutes fraudulent preference is now more detailed. It has also been extended to include circumstances where a company is in administration and not just when it is being wound up. Liability of Directors on Insolvent Winding Up.
Past and current directors of companies undergoing insolvent winding up are liable to make contributions in the event that such directors knew or ought to have concluded at some time before the commencement of the winding up of that company, that there was reasonable prospect that the company would avoid going into insolvent liquidation. Schemes. Schemes, whether for mergers, arrangements, reconstruction or compromise, may now be between two or more companies. These provisions have now created a structure for companies to Tenure of Office of An undergo merger schemes after Administrator. the repeal of sections 118 to 128 of the Investments and The tenure of office of an Securities Act 2007 by the administrator shall cease automatically within a year of Federal Competition and CAMA 2020 allows the Consumer Protection Act his/her appointment except formation of limited extended by an order of court 2018. partnerships (“LPs”). The or the creditors of the partners of an LP shall not Netting Provisions. company. exceed 20. An LP is required CAMA 2020 has introduced provisions applicable to netting transactions, the 16 | Esq Legal Practice
Prescription of Fines by the Commission.
Generally, under CAMA 2020, the CAC is now required to to have a general partner who prescribes penalties and fines for non-compliance with the shall be liable for the debts provisions of CAMA 2020 by and obligations of the partnership and at least one or regulations. www.esq-law.com
ESQ PRACTICAL LAWYERS ACADEMY TRANSPORT, SHIPPING & LOGISTICS ACADEMY PRESENTS
A 4 DAY TRAINING ON MASTERING THE DYNAMICS OF SHIPPING & MARITIME RELATED CONTRACTS
DATE: st
FOR BOOKINGS AND ENQUIRIES: th
1 ‒ 4 March, 2021
+2348132676084 training@esq-law.com
Legal Icon
SEGUN OSUNTOKUN THE BLACK-BRITISH SUPER LAWYER Segun Osuntokun was born in Nigeria into a family of Five. His parents were medical doctors and his father was one of Nigeria's Pre-eminent neurologists.
A
t the age of 15, Segun was sent to a boarding school in England for his Alevels and after which he proceeded to Queen Mary London in 1984 to obtain an Economics degree. He came back to Nigeria to partake in the mandatory 18 | Esq Legal Practice
National Youth Service Scheme. During his service year, he worked with local communities in executing projects such as building infrastructure and teaching in schools. After his service in Nigeria, he then proceeded to Balliol College, Oxford in 1988 to obtain a degree in law. His law degree was inspired by www.esq-law.com
his sister who is also a lawyer. corruption. He has also on numerous and successful He was a partner at DLA occasions defended and Piper for five years and has applied for applications for been with Bryan Cave emergency injunctions and Leighton Paisner (BCLP) for disclosure orders in English 12 years since 2008. He joined High Court. He has also represented the African Wilde Sapte as a trainee in Development Bank and the 1991 and later became an Central Bank of Nigeria. associate. He is currently the managing partner of the law He has been recognized by firm BCLP which is based in Chambers and legal 500 as a London. leading individual for banking He worked in a local bank and litigation and civil fraud as well as a foreign expert on had the option of pursuing a Nigerian disputes. He also career in banking. won the Business Person of In September 2018, Segun was the Year in the Black British Business Awards 2020. appointed as the office managing partner for London. Segun as a Managing Partner He is also the head of the firm's Africa Group and head of the London office of Bryan Cave Leighton Paisner (BCLP) of the firm's energy disputes is an obvious promoter for practice. social inclusion and ethnic He has acquired over 27 years diversity. He also partakes actively in the firm's activities of litigation and arbitration and affirms the firm's and his experience and expertise obligation to ethnic diversity across a range of sectors which includes but not limited in their labor force. to energy, banking, and financial services, commercial He is an establishing partner of the Bryan Cave Leighton disputes, regulation Paisner (BCLP) global compliance & advisory, diversity and inclusivity litigation and dispute Board and has also co-led the resolution international arbitration, anti-bribery, and firm's social inclusion and corruption, etc. He has also ethnicity network. He leads proven himself to be an astute “Race for Change” an awardlegal practitioner in different winning activity that supports jurisdictions and many of his Black understudies and graduates by giving cases originate or relate to jurisdictions from Sub-Sahara admittance to good examples, system administration, and Africa due to his position as direction on applications to the head of the firm's Africa law offices. Group. He specializes in resolving complex disputes and claims which have elements of dishonesty, fraud, and www.esq-law.com
He stated that this was in 1980 when casual racism was at play and there were cases of playground abuse about those less able or different of which he was also on the receiving end. Irrespective of the clear-cut bullying and racism, Segun found a way to defend and speak for himself and was never fazed for being the only one who is black or looks like himself. opportunity to forge connections between BAME attorneys and to share best practices according to the convergence between socioeconomic background and ethnicity. He is effectively involved with various mentoring schemes advocating diversity in the legal profession. He was also on the legacy BLP committee that was responsible for dividing the profits that were distributed on a merit basis for six years.
In an interview with legal business, Segun recounts his experience in his early days and the struggles of attending a boarding school in a mainly white rural setting. He stated that this was in 1980 when casual racism was at play and there were cases of playground abuse about those less able or different of which he was also on the receiving end. Irrespective of the clearcut bullying and racism, Segun found a way to defend and speak for himself and was never fazed for being the only Segun has been recognized for one who is black or looks like his work in diversity by JP himself. Morgan and for his legal expertise by the British In his early days as an Nigerian Law Forum, Legal associate, Segun was 500, and Chambers. He was overwhelmed as he had to put also recognized in the 2018 his best foot forward. He Empower 100 Ethnic Minority recalls being unsuccessful Executives List presented by when he first applied as a Financial Times and. He also partner at DLA and how he Segun also led a team of won the Diversity and was encouraged by his London Bame attorneys to the Inclusion Impact Award at the colleagues. firm's Lawyers of Color retreat UK Legal diversity awards. in Denver giving the Esq Legal Practice | 19
Law
DEVELOPMENTS IN
AFRICAN ARBITRATION LAW Arbitration as a means of settling financial and commercial disputes has burgeoned in Africa in the 21st century – as the continent has grown economically and seen major improvements in governance. What is the current state of play?
A
rbitration is essentially a procedure to resolve disagreements outside a courtroom, with disputing parties agreeing to submit their cases for judgment or mediation by an independent, impartial adjudicator. Crucially, the arbiter's decision is usually binding in law. For many decades, African legal systems relied mainly in court litigation to settle disputes – between officials, companies and individuals. However, the developed world practice of arbitration carries many advantages over litigation – such as faster resolution, confidentiality and the capacity for parties to agree on a “judge” – and it has caught on in Africa.
held a lively discussion on the topic “Developments in African Arbitration Law, moderated by Des Williams, Director of Werksmans Attorneys South Africa. Michael Dedon, Managing Associate of Giwa-Osagie & Co, described the future of arbitration in Nigeria as “very bright” with growing interest among professionals, fuelled by congestion in the country's courts. “Due to overcrowding in the formal legal system, there has been a steady resort to the use of alternate dispute resolution (ADR) mechanisms,” added Dedon. The advantage of arbitration over other ADR methods is that it has the same force and effect as the judgment of a court of law.
There are two main sources of As part of its ongoing webinar the law relating to commercial arbitration in Nigeria: firstly, series, LEX Africa, recently 20 | Esq Legal Practice
common law and doctrines of courthouse”, as conceived of equity, and secondly, statutes. by Harvard University professor Frank Sander, The principal statute whereby citizens with legal governing commercial problems are “diagnosed” and arbitration in Nigeria is the screened before expensive Arbitration and Conciliation lawyers enter the picture. Act (ACA) of 2004, which Alternatives to litigation, such consists mainly of provisions as arbitration, conciliation and of the United Nations mediation become Commission on International institutionalised. To this end, the Lagos Multi-Door Court Trade Law (UNCITRAL) Model Law. The ACA is not a House was established in 2007 with three serving judges complete code as it only provides a framework for promoting ADR within the arbitration and details must be judiciary. filled in by common law and in other ways. Mauritius is also a signatory of the New York Convention Importantly, the New York of 1958, as well as the 1965 Convention – which covers International Convention for reciprocal recognition and Settlement of Investment enforcement of foreign Disputes. arbitration awards – was incorporated into Nigerian Recognition and enforcement legislation. of foreign arbitral awards must be made before the Integral to Nigeria's embrace Supreme Court, explained of arbitration has been the Dev Erriah, Head of Erriah Chambers, pointing out that concept of the “multi-door www.esq-law.com
enforcement was the rule of thumb.
abroad. Many of the disputes relate to pre-investment undertakings by the Zambian state which have allegedly The limited grounds for been abrogated with the setting aside a foreign arbitration award includes the passage of time and changes in government policies, said award being in conflict with the public policy of Mauritius. Chisenga. A notable case in this regard was State Trading Company v Shareholder disputes have Betamax Ltd of 2019, in which increased, centred on governance issues – the court found that a particularly during the CovidBetamax contract breached national procurement laws 19 pandemic. and therefore annulled a Nonetheless, arbitration foreign award. remains the preferred method of resolution over courts, he Currently, most high-level said. arbitrations in Zambia involve disputes between the state and The picture is less rosy in investors, a state of affairs Kenya, according to Peter described as “highly Gachuhi, Partner at Kaplan & undesirable” by Sydney Stratton Advocates, with Chisenga, Managing Partner, mixed market reactions to a Corpus Legal Practitioners. number of well-publicised arbitration awards. The silence He explained that an of the Kenya Arbitration Act adversarial relationship with on rights of appeal and a foreign investors served to confusing judgment from the discourage much-needed Supreme Court on the subject has further complicated the further investment from www.esq-law.com
area of arbitration.
court judgment – showing that there are many more than a single avenue to gain legal However, Gachuhi said Covid-19 had offered “a silver recognition for decisions taken far from the shores of Africa. lining” in terms of setting an example of fast resolution of disputes via virtual arbitration The Southern African Development Community and mediation practice. (SADC) is committed to “the development, strengthening Unlike several other African and enhancement of countries, Malawi has not commercial ADR practices … adopted the UNCITRAL Model Law mentioned earlier, by way of a joint initiative nor is it party to the New York between SADC-LA and the Arbitration Foundation of Convention and other Southern Africa (AFSA)”, said international pacts on recognition of foreign awards. Stanley Nyamanhindi, CEO of the SADC Lawyers Association and AFSA SADC However, Shabir Latif, Managing Partner at Sacranie Division Vice Chairman. Gow & Co, revealed that The SADC aims to set up a Malawi is a party to the 1923 panel of arbitrators and Geneva Protocol on mediators, adopt a standard Arbitration Clauses and the set of rules for the region, 1927 Geneva Convention on Foreign Arbitral Awards. The establish a secretariat and effect of these is that the provide requisite training, procedure for enforcement of revealed Nyamanhindi. both foreign and domestic arbitral awards is exactly the same as enforcement of a local Esq Legal Practice | 21
Business
HEAVY VAT ADJUSTMENTS ON EXPORTED SERVICES IN CAMEROON KNOW YOUR RIGHTS! Albert Desire Zang, Cameroon Country Lead, Centurion Law Group
Actors of the fiscal arena in Cameroon have been facing a big controversy concerning the tax treatment of the exportation of services. If companies and tax consultants are of the opinion that such transactions do not attract VAT, the Tax Authorities do no longer see eye to eye with them.
22 | Esq Legal Practice
www.esq-law.com
T
heir initial position was that services rendered by Cameroonbased entities to a customer whose domicile was abroad did not bring about a VAT number to pay, either because such transactions were subject to VAT at zero percent rate (0%) or because they were not taxable. Recently, they surprisingly came up with a different and constant view. Henceforth, according to them, only the export of goods is likely to benefit from the zero percent rate (0%), while VAT applies to exported services at the general rate of 19.25% (17,5% + 10% as additional council tax.) This has obviously resulted in significant tax adjustments amid COVID-19. In this perspective, we thought we would shed some light on that problem by finding out whether the administration's position is consistent with the legislation in force? To answer, we need to unveil their legal arguments followed by an assessment of the technical merits of those arguments and a proposal of practical solutions as well. Summary of arguments for taxing the exportations of services
“VAT (…) rates shall be fixed as follows:
– general rate ……………… 17,5 % – zero rate ……………………0 In line with these provisions, % the administration means that VAT must be collected no The rates shall apply both to locally produced goods and/or matter the location of the beneficiary of the services. As services and to imported evidence of this, a well-known goods (…) bank suffered a tax adjustment of XAF 748 128 610 The VAT general rate shall in June 2020. To be honest the apply to all transactions not provisions selected by the tax subject to the zero rate. authorities tend to make sense and the way they structured The zero rate shall apply to ex-ports of taxable products.” their demonstration is quite impressive. However, this The current understanding of begs the question whether the legal provisions chosen are the above-mentioned provisions by tax inspectors is appropriate for the case at hand. that because services are not being products (goods), they Assessment of the technical are taxable to VAT since they merits of the arguments have not specifically been targeted by the tax legislator. It is the duty of the tax authorities to proceed with tax Secondly, they highlight that adjustments but the latter services rendered by should be in line with the laws Cameroonian entities or in force and should not ignore individuals and benefitting the rationale behind the non-residents are not exempted from VAT, not only legislation applicable to a because they are not listed by specific area or matter. It is not simply a question of quoting section 128 GTC, but also some sections from the GTC, it because they are not pointed out by articles 7, 8 and 9 of the is all about a holistic approach. The common CEMAC directive, both of criticism of taxing exported which dealing with VAT services is that one of the exemptions. essential features of VAT, notably the “territoriality Ultimately, more insights have rule” is not taken into been provided. Referring to consideration. This rule section 129 (subsection 1) GTC implies that VAT being a and 10 of the CEMAC consumption tax, directive the tax Cameroonian VAT is only due administration thinks that when the transaction is carried these provisions are really in out in Cameroon. Its contents their favour as their content which are laid down by the speaks volumes in the articles 129 (2) GTC and 10 of following terms: the CEMAC directive can be summed up as follows: “Transactions carried out in
There are basically three reasons for the new approach of the tax officials, and they are based on certain provisions from the general tax code (GTC) and the CEMAC directive on VAT related matters. In the first place, they argue that no legal provision can sustain the application of the zero rate to exported services, following Section 142 GTC (subsections 1, 2, 3 and 4) which states as Cameroon and not listed that: among the exemptions in www.esq-law.com
Section 128 above shall be liable to VAT even when the residence or head office of the real taxpayer is situated outside Cameroon.”
“Transactions carried out in Cameroon (…) shall be liable Esq Legal Practice | 23
interests nor right or adapted to exportations. Tackling them from that angle is nothing more than fighting a losing battle. More importantly, knowing that no one may win the case during the administrative phase of the tax litigation, it is high time to VAT (…) exportation of services in governed by the rule of law. for tax payers to show a little Cameroon is considered an Paradoxical as it may seem, bit of courage by bringing an A transaction shall be deemed importation in the country of this is an obvious benefit. action before the competent the consumer where it is to have been carried out in Given the strength of our administrative court and then subject to VAT. In almost Cameroon: challenging arguments we to the supreme court if need every jurisdiction, believe the chances of be. Because of the illegality of a) where, in the case of a importations are VAT-taxable successfully disputing the VAT adjustments, the tax operations. At the end, the adjustments are high. sale, goods are authorities will obviously lose delivered in Cameroon. same service will be assessed the case as they ignore the rule locally and overseas, although Practical challenging solutions for b) where, in the case of of territoriality on purpose. taxpayers other transactions, the it is not carried out in Cameroon according to the service provided, the In addition, one of the above quoted provisions. The According to sections M 115 rights transferred, or fundamental administrative and following of the Manual the object hired is used second negative effect is the law principles is the obligation of Tax Procedures (MTP), impossibility of deducting or operated in for authorities to obey their claims related to taxes and VAT charged by the Cameroon.” own decisions. This principle penalties may be Cameroonian provider. This is is known in its Latine adage as challengeable up to the level Simply put, only a consumer because such VAT from “Tu patere legem quam ipse of the Ministry of Finance. In Cameroon is not allowed who is in Cameroon may be fecisti” and rests on consistent liable to VAT and not the one abroad as per the territoriality case of an unsatisfactory result jurisprudence. We are aware based abroad. This means that rule. This is a serious problem at that level, they can be of similar cases where the tax the location of the costumer is because the amount of VAT to formally disputed through an authorities clearly indicate objection. Throughout the be remitted to the Revenue crucial to trigger VAT or not. that exportations of services process, companies and their Authorities is the difference Purposefully, tax authorities do not give rise to VAT. For have left this territoriality rule between output VAT (VAT on tax advisers should organize example, we have letters aside and have rather quoted our invoices) and input VAT their defence very efficiently (administrative doctrine) from otherwise they will never the rules that are likely to help (VAT on our providers' the Director General of succeed. Hereafter are some invoices). As a result, nonthem collect additional fiscal Taxation and the Minister of tips. The first step to be taken resident companies may revenue. finance as proofs. is to elaborate on the refrain from doing business territoriality rule of VAT with Cameroonian service There is another objection to Finally, Taxpayers can file a which undeniably providers. the new trend of taxing the claim for damages which are demonstrates that exportation of services. It does to be paid together with the exportations of services do not not allow for the fundamental In our view the ongoing VAT unfairly adjusted tax number. fall within the ambit of VAT. adjustments on exported mechanisms of VAT to flow No need to challenge the services are based on weak smoothly, and some administration's arguments in In conclusion, the tax disadvantages are noticeable. technical grounds and adjustments in question have point I above as they are constitute some sorts of The first drawback has to do no legal basis and constitute neither suitable for the bottlenecks to the progressive with a potential double an attack on fortune. Tax protection of the taxpayers' construction of a state taxation. In fact, the authorities being judge and In addition, one of the fundamental administrative law principles is party, right or fair decisions are hardly expected from the obligation for authorities to obey their own decisions. This them. Therefore, taxpayers principle is known in its Latine adage as “Tu patere legem quam ipse fecisti” and rests on consistent jurisprudence. We are aware should wake up for their rights. They have no choice of similar cases where the tax authorities clearly indicate that but to pin their hopes on exportations of services do not give rise to VAT. For example, we courts so as to end have letters (administrative doctrine) from the Director General of competent the illicit practice.
There is another objection to the new trend of taxing the exportation of services. It does not allow for the fundamental mechanisms of VAT to flow smoothly, and some disadvantages are noticeable. The first drawback has to do with a potential double taxation. In fact, the exportation of services in Cameroon is considered an importation in the country of the consumer where it is subject to VAT.
Taxation and the Minister of finance as proofs.
24 | Esq Legal Practice
www.esq-law.com
Business
HOW TO PROTECT TRADE SECRETS IN LESOTHO Maema Chaka of Webber Newdigate Attorneys
A trade secret is defined as information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. It has economic value which provides a competitive edge to the owner over a competitor.
W
hen looking into the nature of trade secrets, it is important to establish what the essential requirements of protectable confidential information are. Unlike other forms of intellectual property such as patents, industrial designs and trademarks that are clearly defined and protected by statute; trade secret law is a creation of court precedents over the years. To date there is no legislation that particularly deals with trade secrets in Lesotho. It follows therefore that the requirements for what qualifies for protection as a trade secret protectable by law will be found in precedent. The requirements are as follows: ž The information must be confidential; ž The information must be www.esq-law.com
applicable in trade or industry; and ž The information must when objectively viewed be of economic value. Looking at the above requirements, it becomes clear that not all confidential information qualifies for protection as trade secrets. For information to qualify as a trade secret it ought to meet each of the three requirements stated above. Due to the lack of legislative protection, trade secrets are protected by application of the general principles of the law of delict and the law of contract. Under the law of delict, competitive trading is unlawful when it involves wrongful interference with another trader's rights and is actionable under the lex Aquilia if it results in loss. If a trader steals information from a competitor which he knows to be secret and confidential,
and which has been developed by the competitor's skill and industry, he is acting unfairly and dishonestly if he uses that stolen information for his own profit and to the detriment of his rival.
undertaking for a period of time provided for in the contract.
A restraint of trade agreement on the other hand is an agreement which enjoins an employee or business partner The owner of a trade secret not to use the trade secrets of can also approach the court the business for their own for an interdict. An interdict benefit and in competition does not require the with the business. This duty establishment of fault or persists even after the damage, the unlawfulness of relationship has terminated. the conduct is sufficient. The purpose of express contractual protection of trade In terms of contract law, the secrets is always to impose a types of contracts usually duty on the receiver of the used in protection of trade secret not to use the secret for secrets are the non-disclosure any other purpose than those agreement and the restraint of envisaged by the owner, nor disclose it to other parties. trade agreement. The nondisclosure agreement It is advisable for businesses generally applies to and employers who want to employees, although it can protect their trade secrets still be used to restrain any from misappropriation to other party to a contract. It bars a party to such a contract ensure that they put in place measures such as those from disclosing the referred to above. confidential information related to the business or Esq Legal Practice | 25
ESQ PRACTICAL LAWYERS ACADEMY TELECOMMUNICATION LAW ACADEMY PRESENTS
SCHOOL OF TELECOMMUNICATION CONTRACTS Date: 26th – 30th April, 2021. FOR BOOKINGS AND ENQUIRIES:
+2348132676084, training@esq-law.com
Legalreport Deals
CDC PARTNERS WITH STANDARD CHARTERED ON TRADE FINANCE African Trade Finance will get a USD 100 million funding following an arrangement between the UK's development finance institution and the main bank.
T
he United Kingdom development finance institution (DFI) CDC Group has proceeded with a busy few weeks of many long stretches of investment in Africa, through a USD 100 million commitment master risk participation agreement with London-settled bank Standard Chartered.
partnership with Standard Chartered Bank will support vital trade and supply chains in sub-Saharan Africa and South Asia, thereby protecting jobs and economic growth. Our trade finance programme aims to alleviate poverty, and ensure vital goods get to those that need it most across our markets."
Development remarked: " This additional USD 100 million through the CDC and Standard Chartered partnership will be critical for many businesses in subSaharan Africa and South Asia. This investment will help protect jobs, support economic growth, and ensure vital goods get to those most in need."
CDC CEO Nick O'Donohoe remarked: "Our aggregate investment to Liquid Telecom now stands at USD 220 million, this will play an important role in addressing the increasing demand for digital services and help close the digital divide between Africa and other regions. Investing in Africa's digital infrastructure is vital for CDC said the fund would help facilitate the liquidity Additionally, in the previous building resilience within pressures that are restricting few weeks, CDC did a USD 75 African economies and The fund is an expansion to a trade finance across the two accelerating their growth." million obligation money current arrangement between regions. The financing will manage Stanbic IBTC, the especially uphold food, the two, pointed toward Nigerian auxiliary of Standard Liquid Telecom CEO Nic agriculture, and medical supporting trade finance Bank. Rudnick added: " Africa has through banks in Sub-Saharan services. significant untapped Telecoms Transformation Africa and South Asia, against economic potential that is In late October, CDC made a Nicolas Langlois, Standard a setting of exchange and being unlocked by improving USD 40 million investment in Chartered worldwide head of supply money troubles connectivity, data storage and ALUKO & OYEBODE ADVISES ACCESS BANK PLC trade distribution, added that African fiber, data centre, and the use of cloud-based brought about by the Covidcloud services company ON THE NIGERIAN LAW ASPECTS OF ITS ACQUISITION the deal " will enable us to 19 pandemic. applications. This investment Liquid Telecom, which started will bring significant OF TRANSNATIONAL BANK (KENYA) PLC support business sectors across sub-Saharan Africa and in Johannesburg and now has economic benefits to The deal came barely seven days after the DFI disclosed a South Asia that are impacted activities in many African developing markets across the nations. by Covid-19, as well as deal, for USD 100 million, continent.” with the European subsidiary provide them with the muchneeded access to trade finance The investment is part of a of Japanese bank Sumitomo In April 2020, Amazon set up USD 307 million rights issue Mitsui Banking Corporation. in these challenging times ". an African region for Amazon fundraising, intended to Web Services, situated in Cape support the development of Admir Imami, CDC's head of James Dudderidge, UK Town. its data centre activity, African member of parliament and trade and supply chain Data Centers. Minister for Economic finance, said: " Our
www.esq-law.com
Esq Legal Practice | 27
Deals
GLOBAL ACCELEREX RECEIVES PRIVATE EQUITY BOOST A Nigerian fintech company has plans to venture into new business areas across Sub-Saharan Africa, in the wake of accepting a USD 20 million funding The parent company of Nigerian e-payment Company Global Accelerex has gotten a USD 20 million venture from private equity firm Africa Capital Alliance (ACA). Under the agreement, the Capital Alliance Private Equity IV (CAPE IV) fund will pick up three seats on the board of Accelerex Holdings, based in Mauritius, as a tradeoff for the investment. Based in Lagos, Global Accelerex renders payment Services to 95% of Nigeria's banks and 90,000 vendors. The organization ventured into Ghana in 2019 and the new funding will uphold new
CDC Group as of late gave USD 75 million in debt finance operations in Ivory Coast, for Nigeria-based Stanbic ACA accomplice Paul Kenya, Tanzania, and South IBTC, an auxiliary of the Kokoricha added that funding Africa in the following two South African Standard Bank. and skill are significant when years, together with new scaling up fintech product development. Other recent CDC Group organizations, saying: In a statement, the CEO of work includes contributing "Accelerex's strong business Global Accelerex, Tunde USD 100 million for trade model and its agile and Ogungbade, stated: "This finance support through dynamic management team partnership will help Standard Chartered and makes it the ideal African Accelerex to aggressively another USD 100 million fintech group to back." expand into Africa and through a European branch of accelerate product Japan's Sumitomo Mitsui Also, Accelerex has bought a development." Banking Corporation. larger part stake in AbujaCAPE IV has USD 567 million based SLS Microfinance Bank, In 2019, fintech company Cash for investments in businesses giving it extra strength in the Plus was sold to individual agent banking market. in the monetary services, Moroccan company Groupe quick customer merchandise, Richbond, while in April 2020, United Kingdom development energy, and innovation, Vodafone sold M-Pesa to finance institution CDC media, and broadcast South African and Kenyan communications areas, as well Group is an anchor investor in organizations Vodacom and ACA's funds, including CAPE as other arising businesses. Safaricom.
Deals
AIIM FUND GAINS EXTRA CAPITAL 28 | Esq Legal Practice
IV, to which it put USD 50 million in 2015.
An extra USD 80 million will go into an asset focusing on energy and digital investments across Africa. Private equity director African Infrastructure Investment Managers (AIIM) has expanded the capital in its African Infrastructure Investment Fund 3 (AIIF3) asset to USD 400 million. The extra USD 80 million came from a capital raise that shut in mid-November and will add to the asset's investments in the energy, force, transport, and digital infrastructure businesses. Nine such investments have just been made, seven of which are operational ventures, while two further investments in the energy and digital infrastructure markets are arranged. AIIM made sure about the last close on the asset, worth USD www.esq-law.com
Deals
CDC COMMITS ANOTHER USD 100 MILLION TO TRADE FINANCE The UK's development finance institution has cooperated with a Japanese bank to give USD 100 million to trade finance in Africa. An extra USD 100 million will be into trade, imports, and supply chains in Africa, through a partnership between CDC Group and SMBC Bank International (SMBC BI). CDC, the United Kingdom's Development Finance Institution (DFI), will give USD 100 million to the trade hazard sharing facility which as of now has with the London-based subsidiary of Tokyo-based Sumitomo Mitsui Banking Corporation (SMBC). The investment is expected to keep trade imports going, by giving liquidity to banks. It is believed that this will
320 million, in mid-2019, after prior shut in 2017 and May 2019.
guarantee a continuous supply of products and ventures across the landmass, assisting organizations with withstanding the Economic stun of the pandemic.
finance that the investment was important for a " longstanding partnership with SMBC BI and deepens our commitment to preserving trade across Africa".
CDC portrayed countercyclical responsibilities by DFIs as "critical to closing the trade finance gap, particularly at a time when businesses face growing needs".
" The facility will provide liquidity to markets and sectors that need it most, thereby cushioning the impact of the pandemic on businesses and supply chains that rely on imports" he added.
The new arrangement duplicates the DFI's current obligation to the facility, taking it to USD 200 million altogether.
SMBC BI spotlights finance in Europe, the Middle East, and Africa. Top of its Africa gathering, Nisrin Abouelezz, remarked: "CDC's additional USD 100 million commitment to our longstanding facility is a major step in helping us
Admir Imami, CDC's head of trade and supply chain
"This allows us to consider strategic deals in countries with high-growth prospects and sectors that have shown greater resilience to Covid-19 "AIIF3 continues its strategy impacts, without being limited of targeting mid-market to a smaller grouping of opportunities,” defined as those in the USD 20-60 million countries with the scale to support mega deals," he range, said AIIM investment proceeded. director Paul Frankish, describing it as “a space we believe is less competitive and AIIM has workplaces in carries less execution risk than Lagos, Abidjan, Nairobi, Cape some of the large-cap deals". Town, and Johannesburg. www.esq-law.com
Despite the issues brought about by the subsequent financial decline, the Covid pandemic is required to bring changes in Africa's investment markets which will make open doors for private equity investors in the medium and long haul. In August this year, AIIM cooverseeing director Olusola Lawson joined the leading group of the African Private Equity and Venture Capital
scale the trade finance lines we provide to local banks. Our partnership with CDC will help mitigate the humanitarian aspects of the Covid-19 crisis by focusing on food security and healthcare." As of now, CDC has given USD 75 million in debt finance for a bank in Nigeria, while three financial institutions dispatched a USD 1.5 billion credit facility to help African businesses survive despite Covid-19. CDC had recently given trade finance funding up to USD 75 million deal with Absa.
Association (AVCA). A month ago, the African Export-Import Bank joined forces with the public authority of Rwanda to dispatch a foreign direct investment reserve, while the African Development Bank gave a USD 120 million credit for the development of a Tanzanian hydroelectric power station
Esq Legal Practice | 29
Legalreport Country
African governance declines for first time in10 years Africa faces a developing governance emergency, a circumstance exacerbated by Covid-19, however not brought about by it, as per another report. The nature of governance across Africa has declined without precedent for a decade, a stressing trend which can't be credited to the Covid pandemic, as per the Bi-yearly Ibrahim Index of African Governance (IIAG).
the main 10 two years prior, with Morocco supplanting Rwanda which has dropped to eleventh. Positioning Details
Notwithstanding, even the main nations are giving stressing indications, as per In spite of the fact that the Camilla Rocca, head of circumstance has since been exacerbated by Covid-19, the operations at the Mo Ibrahim Foundation, which distributes decay originates before the the report. Talking at the IIAG pandemic, with the index's outcomes covering this a long dispatch on Monday, she clarified that even perpetual time from 2018 to 2019. top performers Mauritius and South Africa have declining Mauritius was again governance scores, and positioned as Africa's best Botswana, which is as yet nation for governance, as it ascending the table, has has been reliably over past indicated stressing trends. Of versions, with Cabo Verde the other driving countries, trading places with Seychelles Namibia and Ghana likewise to guarantee second, trailed show what the report called by Tunisia, Botswana, South "warning signs". Africa, Namibia, Ghana, Senegal, and Morocco in the In any case, the majority of the best 10. nations positioned somewhere Nine of those nations were in in the range of 10-20 actually 30 | Esq Legal Practice
enlisted an improvement, with of Congo. Angola the most improved, while Burkina Faso had the Specifically, there has been a greatest year-to-year decline. general weakening in two of the four fundamental The Gambia, positioned classifications utilized in the sixteenth in general, was the report: basic liberties and most improved nation of the incorporation, security and decade, credited to improved the rule of law, while support responsibility and in majority rule government straightforwardness, while has likewise dropped. That Ivory Coast has gained recommends that admonitions ground in foundation and from the IIAG going back to policy management. Libya has 2016 have not been regarded. seen the biggest decrease over that period because of the Rocca said that while Covidsecurity circumstance and " 19 has exacerbated things this weakened social protection ". year, the full effect of the pandemic has not yet been The most noticeably awful represented. nation for governance was Somalia, which has regardless There has been an indicated a few additions, improvement in the other two trailed by South Sudan, models: establishments for Eritrea, Equatorial Guinea, monetary chance and human and the Central Africa turn of events, albeit even that Republic. The last 10 was is easing back. finished by the Democratic Republic of Congo, Sudan, The greatest advancement has Chad, Libya, and the Republic been made in foundation and www.esq-law.com
Legalreport has undermined this advancement. Rights have been dissolving since before the pandemic, a trend deteriorated by the reaction to Covid-19, and holes in human advancement have been put under the spotlight by the pandemic. This is reflected by a deteriorating public insight in those zones.
equality, and sustainability and the environment.
IIAG has additionally redesigned its information, expanding the number of sources and giving more noteworthy unmistakable quality to the voices of African residents through information incorporated by Accra-settled exploration and investigation Changing with the Times supplier Afrobarometer, which thought about the view IIAG, which has been running of governments and since 2007, has adjusted its authorities, giving a "reality philosophy this year, which check" to the information. Rocca said mirrored the " expanding needs " of users. Rocca recognized that there
wellbeing, upheld by improved natural manageability. Long Term "The African governance strand has been declining over the past five years ", said Rocca. It is the first run through the general score has weakened in a decade.
are still holes in the report on The index currently considers issues including the climate, another governance scene, medical care limit, schooling which incorporates a youthful fulfillment, admittance to and quickly urbanizing energy, coordinated populace that faces 21stwrongdoing, and mainland century challenges and has joining. expanded assumptions for its administrations. With that in Abdoulie Janneh, leader chief mind, the index presently and the seat of IIAG, depicted takes a gander at antithe outcomes as a " worrying corruption, inclusion and deterioration in governance ",
notice: " It is important that we in Africa look at this dataset seriously," at national, regional, and continental level. He encouraged nations to join forces with the Mo Ibrahim Foundation and their residents, to discover solutions. " We want particularly to engage civil society because it is through the civil society that we can hold the feet of government to the fire," he said. The index is delivered on substitute years, however, a year ago the establishment distributed its African Governance Report which found that the general nature of governance had improved over the previous five years, yet cautioned that progress was easing back in key sectors, for example, education.
Governance had recently expanded or remained the equivalent across the years 2010 to 2018. Over 60% of Africa's populace in 2019 lives in a nation where governance has improved since 2010, and there has been a general improvement in the mainland's score from that point forward. Africa was on the sure way for development on establishments for a monetary open door in the past five and 10 years, however, Covid-19 www.esq-law.com
Esq Legal Practice | 31
Legalreport Country
FDI FUNDING:
AFREXIMBANK
PARTNERS WITH
RWANDA
Another fund, set up by Afreximbank and sponsored by Rwanda, intends to meet Africa's exchange and export account setback, particularly for SMEs. FEDA led by CEO Philip Kamau, an Afreximbank veteran, and former ranking executive, who was designated to lead the foundation of the fund two years prior.
agribusiness, and education ventures.
Egypt, Alfred Kalisa, stated: “Rwanda is glad to host FEDA as we work together to achieve the dreams of the African Continental Free Trade Area (ACfTA) on the continent. We will work together to ensure that FEDA is successful in driving and achieving its mandate.'’
Africa's small and mediumsized enterprises (SMEs), a sector which has been recognized by investors, banks, and governments as a key to the continent's The institution will give economic development, and financing pointed toward records for around 90% of its supporting exchange organizations, as indicated by Oramah adulated Rwanda, foundation and the Afreximbank, will be the focal saying: " To have agreed to speculation hole in the host FEDA without any financial services, innovation, point of the fund. equivocation is a clear and consumer, retail merchandise, bold statement of visionary tourism, producing, transport, Rwanda's ambassador to
Country
THE UK ENTERED A TRADE DEAL Kenya in trying to boost her economy has entered into a new trade deal with the UK. The new trade deal is expected to ensure tariff-free trade between the UK and Kenya. 32 | Esq Legal Practice
leadership and recognition of the economic value of PanAfrican institutions." It comes only a couple a long time after Afreximbank worked with two different banks to set up a credit office to battle the economic effect of Covid-19. The strong relationship between Afreximbank and Rwanda was featured recently when the bank gave its help to the Intra-Africa Trade Fair which was expected to be facilitated in Kigali this September and was in the end postponed to 2021 because of the pandemic.
It was gathered that this move was necessitated by UK's departure from the European Union. However, countries in the East African Community Trading Bloc have raised concerns on the deal even though the UK plans to engage in similar alliances with the countries in that region. The terms of the deal were agreed upon in November 2020 but were signed on the 8th of December, 2020 by UK International Trade Minister Ranil Jayawardena and Kenya's Cabinet Secretary Betty Maina. The deal is expected to take force from January 1, 2021. This deal www.esq-law.com
Legalreport Country
ADB supported the Tanzanian hydro project with loan backing Another fund, set up by Afreximbank and sponsored by Rwanda, intends to meet Africa's exchange and export account setback, particularly for SMEs. The project is expected to be sited in Kigoma, the Malagarasi Hydropower project is estimated at USD 144.14 million in total and will connect to the national grid, supply rural areas, provide administration and also see to the proper resettlement of people dismissed by the project. The plant is expected to generate 181 Gwh per year and supply up to 133,649 households in the region, creating around 700
allows for duty-free movement of goods between the two countries. Commenting on the deal, Jayawardena said: “This deal makes sure businesses have the certainty they need to continue trading as they do now, supporting jobs and livelihoods in both our countries.” He continued by saying, “Today's agreement is also a first step towards a regional agreement with the East African Community, and I look forward to working with other members to secure an agreement to forge evercloser trading ties.” One of the opportunities available in the deal is for the www.esq-law.com
construction jobs, reducing elected as AfDB president in business costs in the area, and late August 2020, said the cutting emissions. project “is a reflection of the bank's commitment to assist The Africa Growing Together the government of the United Fund will be part of the Republic of Tanzania to funding for the loan with USD accelerate its transition to 20 million. AfDB loan will more inclusive and also come from its sovereign sustainable growth through window, with finance the production of clean, provided by the Chinese reliable and affordable government, while the electricity”. remaining USD 4.14 million comes from the Tanzanian AfDB has cited improving government. African power supply as a In a statement, Adesina major requirement to assist Akinwumi, who was rethe continent's
industrialisation, and which is a key programme under the 'High 5s' programme of the AfDB.
florists who rely on flowers imported from Kenya which was estimated to be worth GBP 54 million in 2019. Other UK market with heavy involvement in import in 2019 includes tea, coffee, and spices tuning to a market worth GBP 121 million, and vegetables to the tune of GBP 79 million. 43% of Kenya's vegetable export was received by the United Kingdom. Also, close to 2,500 UK businesses export to Kenya in the machinery, electronics, and equipment sectors.
Kenya that includes security, sustainable development, climate change, and cultural pillars.” In the days after the Brexit, the UK had heavily committed to trade deals in Africa, with state-owned development finance institution CDC Group promising GBP 2 billion to African investments in 2020 and 2021, while the UK-Africa Investment Summit took place in London in January 2020.
Countries. Although this may be difficult as the deal with Kenya has met with a lot of criticism from these countries. James Duddridge, the UK Minister for Africa, emphasised the hopes for a deal with the East African region as a whole: “This agreement will provide the strongest possible platform for the United Kingdom, Kenya and, ultimately, the whole EAC, to expand our trade relationship in future.” Duddridge added: “We will use this agreement as the catalyst to deepen our mutual The UK government believed prosperity alongside the other that it would enter the same areas of cooperation in our deal with other East African strategic partnership with
Henry Batchi Baldeh, AfDB power systems development director, said the project is “one of the flagship physical infrastructure investments” in Tanzania's “Development Vision 2025 and Tanzania's current five-year development plan”.
Esq Legal Practice | 33
Legalreport Technology
Country
DENTONS LAUNCHES
ANGOLA
IN
Denton, an international firm, has formalized its foothold in Angola, proceeding with its plan of spreading across Africa. Global law office Dentons has ventured into Angola by settling its partnership with LEAD Advogados, which has gotten one of its 14 African destinations. The firm will currently work in Angola as Dentons LEAD, with corporate, private investment, banking and finance, litigation and arbitration, employment, real estate, natural resources, and tax practices. It was one of five additions declared in September 2019, alongside mixes in Morocco, Uganda, Zambia, and Mozambique. Dentons presently has workplaces in Cape Town, Johannesburg, Port Louis, Mombasa, Nairobi, Kampala, Cairo, and Casablanca, with the mixes in Maputo, Harare, Dar es Salaam Lusaka still to be formalized.
34 | Esq Legal Practice
" Angola is a priority market for our clients given its strategic importance in Southern Africa," explained global CEO, Elliott Portnoy. Its system since setting up a different activity for Africa within the firm in 2017 has been to turn into the continent's biggest firm and it is quick to advance itself as being driven by African chiefs. Africa CEO Noor Kapdi stated: " Dentons' strategy is focused on finding combination firms who have the proven ability to offer sophisticated, high-quality legal services and business solutions in their home markets." Djamila Pinto de Andrade Dentons LEAD managing part added that with the consolidation, the association's customers presently had "admittance to driving worldwide ability to convey
great arrangements in Angola and around the globe". The worldwide firm announced its venture into Tanzania in September this year. African firm Bowmans as of late shaped a coalition with Nigeria's Udo Udoma and Belo-Osagie, proceeding to make three recruits in Kenya, and a month ago added a banking accomplice in South Africa. Likewise dynamic in Kenya is London-settled Clyde and Co, which framed a partnership with Kangwana and Co. Somewhere else, ENSafrica as of late recruited a Cape Townbased assessment trained professional.
Ex-Google mapper brings Kenyan address startup to Nigeria OkHi is breaking into the Nigerian market in an offer to support monetary consideration and help settle the nation's absence of formal addressing. Kenya-based startup OkHi, which empowers organizations to recognize hard-to-track down client tends to utilize GPS innovation, is to grow in Nigeria subsequent to closing
Technology
Kenyan bank launches mobile payments service A collaboration with a UK-based organization will give Prime Bank clients in Kenya admittance to mobile payment facilities. www.esq-law.com
Legalreport sees Nigeria, which likewise does not have a confirmed focal location information base, as a critical development market.
Drayson says that OkHi innovation assists with bypassing the issue and contends that clients who need to get products are encouraged to give exact " We connect people who have information. an accurate and verified address with businesses who “What we found was that can use that for their business when we worked with delivery businesses in Kenya, needs…There aren't many street names that are labelled, people are incentivised to give especially once we get outside an accurate address, because they want the food delivery or small middle-class urban centres. Most buildings don't the e-commerce delivery. The challenge is when you move have names or numbers and into the financial services it's both frustrating for a fundraising round. postal addressing consumers not to have decent space – if you're getting a loan The $1.5m round was driven infrastructure, which limits delivery services and access to from a mobile app you've just by Lagos-based payment final services and subverts the downloaded, you prefer for finance, and inefficient and processing firm Interswitch, proficiency of the continent's them not to know where you frustrating for businesses." who will contribute to the fledgling e-commerce sector. are.” Nigerian launch, together “What we found working The absence of a proper with Founders Factory Africa The firm gathers data, with some early financial location framework is and Betatron venture including GPS area service and loan companies especially baffling for capitalists. information and photos of was that a large number of Nigerian organizations. The properties, to develop exact addresses provided were Nigerian government has OkHi co-founder and CEO client addresses. Addresses presented strict guidelines for incorrect, so we've created a Timbo Drayson, who formerly can be confirmed utilizing banking clients, implying that remote address verification worked on the launch of past client delivery narratives solution which combines data financial institutions need to Google Maps in Europe, the and telephone location send actual agents to discover from your delivery history Middle East, and Africa, says information. Drayson says the hidden and hard-to-find client and location data from your the firm plans to conquer firm has gathered 300,000 phone.” homes Africa's absence of formal client addresses in Kenya and
Bank in 2018. Africa has been among the most conspicuous districts for fintech A Nairobi-based private bank development as clients, banks, Prime Bank has stepped into and innovation organizations the fintech market by have avoided conventional dispatching a global cash banking to grasp mobile move administration, in a joint banking and payment effort with London-based services. organization SimbaPay. The administration will SimbaPay's head of tasks permit clients to send cash to Victor Karanja said in an bank accounts and payment assertion: "Businesses, as well wallets in 15 nations, as Kenyans and expatriates including Uganda, the United with friends and family Kingdom, India, China, and abroad, send over USD 18 Germany. billion to other African SimbaPay recently set up a countries, Asia and Europe comparative help for moves to annually with several billion Asia with Kenya's Family Kenya Shillings going through www.esq-law.com
the SimbaPay network." Prime Bank business development director Vijay Kantaria said collaborating with fintech organizations was important for its arrangement to build its digital coordination, adding: "Through our digital platforms, we aim to make available a one-stop solution to our customers in terms of funds transfer and with the inclusion of SimbaPay, our customers will now send money to friends and family across the world at the comfort of their mobile phones.." As of now, Nigerian fintech
organization Global Accelerex got a USD 20 million investment from an Africacentered private equity firm. African fintech brand M-Pesa was bought by South Africa's Vodacom and Kenyan organization Safaricom in April 2020, as both looked for an additional extension of versatile banking administrations across the mainland. In August 2020, the proposed consolidation between two of Kenya's biggest media communications organizations failed to work out.
Esq Legal Practice | 35
Legalreport ENSAFRICA ADDS VAT VETERAN A tax expert who played a vital role in the introduction of VAT with South Africa has joined ENSafrica in Cape Town.
relevant areas of tax law,” he added.
Tax Expert Charles de Wet has joined South African law office ENSafrica following 26 years in different jobs with PwC. De Wet, who earlier in his career worked on the 1991 execution of VAT in South Africa, as an individual from the South African Revenue Service, joined the firm a month ago as the head of the VAT division.
Previously, an ENSafrica tax legal counsel joined Baker McKenzie in Johannesburg in May a year ago. Bowmans recruited a banking and money accomplice a month ago, parting his time among Durban and Johannesburg, while it employed a Nairobi tax group in September.
Cape Town-based De Wet is the fourth tax employ by the firm over the last one year, after the employment of Kazi
Convergence Partners received a new fintech investment A Sub-Sahara African company that engaging in fintech service received USD 5 million as investment from a Johannesburgheadquartered investor.
36 | Esq Legal Practice
Mbangeleli, Mark Badenhorst, and Arnaaz Camay, compensating for the loss of Denny da Silva, another previous PwC tax expert, to Baker McKenzie in May.
enrollment of South African tax advisors lately.
In a statement, Peter Dachs, Head of the firm's tax office, clarified: “It is important for us to grow alongside our He was previously at PwC's clients as their needs develop Africa tax leadership team, the and we're continuing to build Africa tax policy board, and and fortify our team with was the head of the indirect diverse skillsets and expertise tax practice. accordingly.” “However, this growth has been careful and strategic to ENSafrica said the recruits reflected developing interest ensure that we attract the top talent in our industry and for tax administrations, and there has been a rivalry in the have deep expertise in all the
Convergence Partners, an African Technology investment management firm based in South Africa has increased its stake in a fintech company, Channel VAS which provides mobile money services across Sub-Saharan Africa. In the past, Convergence had invested in a Dubai-based company and has now acquired an additional stake worth USD 5 million.
financial needs of underserved customers in the markets it serves.” Doyle continued: “This substantial development impact comes coupled with rapid, profitable growth and dominant scale in the business' chosen solutions, a focused, top quality management team, substantial future scale and growth prospects, solid and proven execution capabilities and delivery of market-leading metrics.”
The previous head of Uganda's tax authority joined Dentons in Kampala in July.
Convergence majorly channels its investments into the technology, media, and telecommunications sector in its offices in Mauritius and Nigeria. Some of its previous investments include Nedbank, Intelsat, Telkom, and Vodacom.
Channel VAS offers mobile banking and credit services across multiple countries in Sub-Saharan Africa, as well as other regions including the Convergence chief executive Middle East and Latin Brandon Doyle said in a America. Fintech has changed the face statement: “This is a business of banking in Africa during Paystack, a Nigerian fintech we feel particularly excited the past five years and has company received a USD 20 about as it ticks a number of helped bankers reach million private equity boxes for us as an investor; the consumers beyond the investment, from a US-based success of the business conventional way of banking. company while in October demonstrates the capacity of Fintech in Africa has grown 2020, a South African fibre digital data and AI greatly and has been receiving connection business was technologies to deliver investments. purchased by a Londonmeaningful and robust headquartered investor. solutions to meet the real www.esq-law.com
ESQ PRACTICAL LAWYERS ACDAEMY ENERGY, OIL & GAS ACADEMY PRESENTS
A 12 WEEK VIRTUAL DISTANCE LEARNING COURSE ON THE
DYNAMICS
OF POWER
CONTRACTS Regulation, Contract Negotiation, Documentation, & Project Financing Facilitators Include:
MATTHEW WOOD,
DR AYODELE ONI,
Partner, Head of African Practice, Ashurst LLP.
Partner, Bloomfield Law Practice.
Commencement Date:
16th February, 2021 6 hours of lectures per week with lots of assignments, simulation exercises, case studies and group work. Registration fee:
ENQUIRIES:
Tel: +2348132676084 Email: training@esq-law.com
N200,000
Interview
GREYCHAPEL LEGAL
A PROMISE OF LEGAL EXCELLENCE
ESQ Team met with Oladele Oladunjoye, the principal partner of Greychapel Legal, and asked some questions on the firm's practice and outstanding achievements in the last few years. Greychapel Legal has emerged as a leading law with a vision to deliver bespoke ad firm in Nigeria what has being your story? quality legal services. We are driven by integrity and a passion to ensure that Greychapel Legal commenced operations savvy, proactive and result oriented in March 2016, as a full-service law firm lawyers are accessible to our clients round 38 | Esq Legal Practice
www.esq-law.com
www.esq-law.com
Esq Legal Practice | 39
40 | Esq Legal Practice
www.esq-law.com
We are driven by integrity and a passion to ensure that savvy, proactive, and resultoriented lawyers are accessible to our clients round the clock. We have over the years built an enviable client base consisting of local and international clients across the public and private sectors and have advised on both contentious and noncontentious matters. Knowledge & Bespoke Offering We endeavor to know, understand and stay abreast of our clients' business in order to provide quality bespoke advice that ultimately gives our client the competitive edge. Round the Clock Availability We recognize that we are in the business of keeping our clients in business. Thus, we ensure that our lawyers are accessible to our clients round the clock.
Young lawyers also need to understand the nature of the work from inception and hone skills in certain areas of practice. the clock. We have over the years built an enviable client base consisting of local and international clients across the public and private sectors and have advised on both contentious and noncontentious matters. In 2017, the firm was licensed by the Securities and Exchange Commission to advise on capital market transactions and in 2018 and 2019, the firm was recognized by IFLR as a leading law firm in Capital Market, Finance, Mergers & Acquisition and Corporate Restructuring practices.
firms for financial and corporate transactions in Nigeria” and in this regard, the firm received a “Tier 3” ranking and “Other Notable” rankings for “Mergers & Acquisition” and “Project Development: Infrastructure Practice” Areas. At the 2016 ESQ Nigerian Legal Awards, I was recognised as one of the “40 Leading Nigerian lawyers Under 40” who have made remarkable achievements in the legal industry and who will shape the future of the legal profession.
What are the ethics and principles In 2020, we were again recognized and recommended that your firm follows to achieve success? in the 30th edition of the IFLR1000 as “one of the go-to Integrity www.esq-law.com
each team member Which practices do you see growing in the next 12 months? What are the drivers behind that? Mergers and Acquisition – This is primarily due to the worsening economic conditions in Nigeria, which will force businesses to consolidate for sustainability and growth. This is in addition to the COVID 19 pandemic and its indubitable negative effects on businesses.
Furthermore, Fintech (blockchain technologyUp-To-Date Knowledge bitcoin and other forms of We are not oblivious of the financial technology alike), constantly evolving world has been one of the raves in dynamics; as such we recent times, as investments in consciously and constantly financial technology has been strive to advance ourselves on the rise. This practice area both professionally and in the is one which should marketplace by undergoing experience more growth in the periodic trainings and few months and indeed the attending relevant workshops. coming years with increased demand for lawyers with What are your core areas of expertise. practice? My core areas of practice are ADR, Banking & Finance, Capital Markets, Commercial Litigation, Energy, M&A and Real Estate. What do you see as the main points that differentiate Greychapel Legal from your competitors? Integrity The quality of our legal service Quick turnaround time Specific sector knowledge of
What is the main change you've made in the firm that will benefit clients? We encourage our lawyers to work virtually (to the extent necessary) and in this regard, we have consciously taken steps to develop and equip the firm with the requisite technological tools to ensure efficient service delivery. Is technology changing the way you interact with your clients, and the services you can provide them? Esq Legal Practice | 41
We are driven by integrity and a passion to ensure that savvy, proactive, and resultoriented lawyers are accessible to our clients round the clock. We have over the years built an enviable client base consisting of local and international clients across the public and private sectors and have advised on both contentious and noncontentious matters. Yes, definitely, technology is changing our interaction with our clients particularly following the outbreak of the covid-19 pandemic. Most meetings that would have held physically can now be held via platforms such as Zoom and Microsoft teams.
identify and engage the services of several first class telecommunications professionals at a subsidised fee. Are clients looking for stability and strategic direction from their law firms – where do you see the firm in three years' time?
edge to ensure they are strategically positioned.
motivated and understand the core values of the firm. We also ensure the work environment is conducive for In addition, we should have consolidated the strategic them to harness their full alliances we are exploring potentials towards meeting with some international law the needs of our portfolio of firms, particularly in the clients. In addition, we strive middle east and the United at all times to set good Kingdom; where I am licensed example for the lawyers, to practice. ensuring necessary feedback and promotion of lawyers as Due to the current pandemic, there and when due. is a chaos of functions. How do you manage to bring unity and What would be your word of cooperation among your advice for the budding teammates in this period? entrepreneurs who wish to start a
We have always adopted an open, transparent, collaborative and conversation driven work culture. These Can you give us a practical Yes, there is a growing example of how you have helped a values have allowed us to tendency for clients to look to client to add value to their manage the effects of the their law firms for strategic business? pandemic. direction as it relates to their One of our clients required business. In the next three Lastly, your firm has achieved and sought legal advisory years, we see an expansion in many accomplishments for its services with respect to our practice areas as well as hard work and authenticity. The competition among the legal firms obtaining a staff strength particularly at telecommunication licence as the senior level, to be able to is getting compact and there is an increase in the number of firms, an Internet Service Provider accommodate the everso please tell us how do you from the Nigerian growing needs of our clients. ensure the stability and growth of Communication Commission. We also aim to continue to your firm? In addition to providing the provide bespoke quality legal legal services, towards advisory services with the We ensure we maintain at all obtaining the said licence, we objective of providing the times a team of highly skilled leveraged on our network to much-needed competitive and experienced staff who are 42 | Esq Legal Practice
law firm of their own? This may sound very cliché, but my primary advice is that the Client's legitimate needs must come first. In addition, every lawyer must be ready to all times maintain the highest level of integrity and ethics, no matter the temptation. Young lawyers also need to understand the nature of the work from inception and hone skills in certain areas of practice. Furthermore, hard work and tenacity will definitely go a long way, although the rewards may not come “overnight” . www.esq-law.com
ESQ PRACTICAL LAWYERS ACADEMY INTELLECTUAL PROPERTY LAW ACADEMY PRESENTS
INTELLECTUAL PROPERTY LAW ACADEMY DATE:
th
th
12 ‒ 15 APRIL, 2021. FOR BOOKINGS AND ENQUIRIES:
+2348132676084, training@esq-law.com
Travel
MAURITIUS AS AN ATTRACTIVE OPTION FOR THE ENTERTAINMENT INDUSTRY The entertainment industry constitutes a potential component for the economic development of Mauritius, as well as an alternative platform for potential foreign individuals and businesses.
T
he creative / entertainment sector is increasingly becoming a valuable segment contributing to the local, regional and global economies by generating income, jobs and exports, both for the local population as well as attracting foreign investors and entrepreneurs. Film Rebate Scheme Endowed with beautiful scenery, a peaceful location, historical sites coupled with the introduction of the Film Rebate Scheme, Mauritius attracts a large number of operators in the global creative media and film production arena.
44 | Esq Legal Practice
www.esq-law.com
The Mauritius Film Rebate Scheme is a project of the Economic Development Board (EDB), in association with the Mauritius Film Development Corporation (MFDC). The scheme is open to both local and international. The purpose of the Film Rebate Scheme is to stimulate the interest of filmmakers and encourage them to shoot in Mauritius, and so creating a new industry, jobs and skills, and a way to promote the island. The Film Rebate Scheme is a cash-back incentive for audio-visual productions in Mauritius.
A competitive cash rebate of a maximum of 40% on Qualifying Production Expenditure (QPE) incurred in Mauritius makes the country as one of the most attractive shooting locations. The Economic Development Board is entrusted to facilitate film production under the Film Rebate Scheme. Mauritius has one of the most competitive tax rates in the world (15%) and has negotiated Double Taxation Agreement treaties with more than 40 countries in the world for the benefit of foreign film producers. The film rebate scheme supports Feature Films, high-end TV Drama series, TV Commercials, Documentaries, TV Reality Series, Music Videos, Games and Single Drama Series.
www.esq-law.com
globalized world. To bring on worldwide talents to live and work in Mauritius, the country is aiming at a rich and enhanced cultural life thanks to its remarkable blend of populace.
As part of a new UNESCO project, the Ministry of Arts and Culture in Mauritius has formed a National Team to examine the status of the cultural and creative industries sector over the past years, to devise a national report, in consultation with a wide range of stakeholders, on the impact of national cultural policies and best practices to be shared. The main objective Creative Industry of this project is to Mauritius is one of the most culturally diverse, artistically demonstrate how cultural rich and cosmopolitan nations policies are guiding towards sustainable development. The in the Indian Ocean. The cultural diversity, components project officially launched on of British, French, West Indies the 10th of October 2019, will be running through 2021 with among other cultures, gives various activities including the country a community debates on emerging topics spirit of collaboration and such as gender equality in the enterprise. culture sector, media diversity or artistic freedom. In Mauritius, the creative economy is evaluated at 3.5 % In this regard, the UNESCO of GDP, representing and the Ministry of Arts and approximately 8-10 billion Culture have organized a rupees. Creativity, information and admittance to three day training workshop for stakeholders and national data are progressively being perceived as incredible motors team to present the 2005 driving economic growth and Convention on the Protection and Promotion of the development promotion in a Esq Legal Practice | 45
Diversity of Cultural Expressions. This convention aims at: National policies and measures promoting creation, production, distribution and access with regard to diverse cultural goods and services and contribute to informed, transparent and participatory systems of governance for culture. Preferential treatment measures facilitating a balanced flow of cultural goods and services and promote the mobility of artists and cultural professionals around the world.
and economic rights of artists. Sports and Leisure activities Mauritius frequently has the opportunities to hold international sports and leisure events like The Indian Ocean Island Games, officially known as Jeux des îles de l'océan Indien (JIOI), the Indian Ocean Triathlon, MTB cycle tour among others events.
To fully support the JIOI taking place in Mauritius in 2019 and other potential upcoming events, the local government has provided the following incentives and facilities: the new National Sports Complex at Cote d'Or, including a stadium, an Sustainable development internationally certified 50m policies and international swimming pool and other assistance programmes latest sports trends and integrating culture as a equipment, and other strategic dimension. appropriate sites organised International and national and Sports Facilities legislation related to human Management Unit to improve rights and fundamental maintenance and operation of freedoms promote both artistic freedom and the social sports facilities.
46 | Esq Legal Practice
Besides a wide range of housing options and university facilities, Uniciti, located in the south-west of the island integrates a fullfledged sports complex that enhance social and sporting opportunities. Opened in 2018, this high-end facility gives to individuals, athletes, coaches and the community as a whole, the necessary framework for the practice of various sports, as well as health, fitness and recreational facilities.
coming to live in Mauritius with their children have, as a result, not only access to topnotch education and infrastructure but to sports facilities readily available for the public.
Mauritius is also the first African country to introduce an indicators framework within its national monitoring and evaluation system to quantify the areas in which sport is making a positive impact. Further, the budget 20/21 has made provision of Rs 724 million (approximately The sports center is also a host USD 18,220,000) allocated to to a medical & health centre the Ministry of Youth comprising of more than 25 Empowerment, Sports and medical and paramedical Recreation to enable the implementation of some key practitioners. Foreigners
www.esq-law.com
major worldwide occasions in Mauritius.
projects in order to achieve the owned by the Essel Group in main objectives of the national India. It is related to a few sport policy. other sister channels which offer types of services in Event Promotion Hindi, English and a few provincial dialects of India) on The event industry englobes the 2nd November 2018. several aspects including weddings, social events, Leading Bollywood artists and corporate events (international other Zee TV stars performed conferences, seminars, etc…). at this event. A team of 50 In 2019, the Mauritius people including both artists Tourism Promotion Authority and TV crew were present in organized The World Travel Mauritius for the show. The Awards for African and event was aired live on Zee TV Indian Ocean. More than 600 social media platform and TV locals and international guests News which received a were invited to this event. cumulative number of over 21 Typical Mauritian events like million followers. The Divali Celebrations were programme was also organised at national level in broadcast over 120 countries collaboration with the Zee TV worldwide. Media (a Hindi Language general entertainment channel
www.esq-law.com
Mauritius, other than its picturesque view, is a perfect MICE (Meetings, Incentives, Conferences and Events) destination. The island has the infrastructure and resources needed to cater for MICE groups all year round. The quality and assortment of convenience, the meticulousness in administration conveyance, cutting edge conferencing scenes, and the tremendous number of extra exercises on offer all guarantee genuine value for money. Far beyond its various attributes and financial incentives, a VAT Refund Scheme has been implemented to empower the business and entertainment event industry to grapple
Under this Scheme, an event organiser registered with the Economic Development Board (EDB) can apply to the Mauritius Revenue Authority (MRA) for refund of VAT in respect of accommodation costs for events with over 100 visitors staying for a minimum of 3 nights for business meetings, conferences and weddings; the registration has to be done, at least 30 days before the event. Conclusion Overall, aside from being a financial business hub, the Government of Mauritius has made considerable provisions to improve the creative, cultural and leisure sectors in order to make it match the international standards while making it a leading and sustainable destination. For more information, contact us on oneyka.ojogbo@centurionlg.co m
Esq Legal Practice | 47
Interview
THE INDISPENSABLE COUNSEL THE IN-HOUSE LEGAL DEPARTMENT AS AN INDISPENSABLE PILLAR OF CORPORATE NIGERIA 48 | Esq Legal Practice
www.esq-law.com
www.esq-law.com
Esq Legal Practice | 49
Mr Muyiwa Ayojimi is a leading General Counsel of one the top multinational companies in Nigeria, International Breweries Plc. Esq Team met with him recently to discuss the roles of the indispensable in-house counsel To many people, “the life of a corporate counsel is the envy of all the profession, no time sheets, just one client, no demand for higher billable hours or collections, a regular salary, stock options, corporate perks.” Is the corporate counsel's life really that rosy?
economic windfall. There is always an exaggerated perception of benefits to the general-counsel. Not necessarily so. But to the point of “just one client” I disagree. In-house, we work as hard as external counsels. We have multiple internal clients Did you say “envy”? You Finance, Procurement, know what they say that “the Supply/Technical, Marketing, grass is always greener from Sales, logistics, Human the other side.” It is ultimately Resources departments. All of dependent on the these departments require organization. That is just the advice on the legal way it is- be sure about what complexities around you wish for though. It would guidelines/laws, contract surprise you to know that negotiations and legal conversely, quite a number of advisory notes on adhoc legal us miss practice and the issues. But overall, whether in opportunity of practising as or out, legal practitioners external counsels reaping 50 | Esq Legal Practice
collaborate to add value to businesses. The In-House Counsel is generally referred to as Gatekeepers for the Corporation. What does this gatekeeping role entail and how has the In-house Department of your organisation played this role effectively? A Gatekeeper is an access controller and a go-between on processes that require meeting the required standards. So the In-house counsel may delay, refuse or even deny access where required because we are custodians who must mitigate against reputational risks. We most times, man the gate of compliance on any issue that
Muyiwa Ayojimi General Counsel www.esq-law.com
In house counsels are judged by their last worst actions, not their good intentions or prior successes, but in all, your good character will stand you out. With this comes the running of a very approachable policy. This builds the confidence of your clients to receive prompt legal advice without borders and they can trust you with information to assist with an honest feedback or prompt remedial actions. can affect Corporate objectives. We keep ensuring that the company complies with relevant laws and policies. This includes, staying up to date on developments, interpreting laws as it affects the company's activities and ensuring that the departments of the company have the needed information in this regard, the requirements for a multinational like ours is enormous. There is a general expectation and there is the place of understanding the company-specific expectation. Given the fact that the company has metamorphosed within the last few years, from merger transactions to capital raising, so there has been quite a lot of change management and this has required considerable amount of compliance within the company and across the value chain as well.
and accountants? To all intent and purposes, this is not far wrong. I mean, take the Enron, Siemens, just to mention a few episodes of corporate failures, professionals were the dramatis personae and they were complicit. Liability exposure for the corporate counsel is immense in terms of potential civil liability and even criminal liability. How should the corporate counsel conduct himself to avoid the liability pitfall?
When the chips are down, the liability is both for you and the company. I would say, draw and master your risk map. The map is- all of the known compliance notes vs. how the organization is trending. The in-house counsel must always train and retrain its internal clients until doing the right thing gets into Do you agree with the widely held their fabric. You are as strong opinion that major corporate fraud as the team. cannot happen over an extended period without the complicity of The scope of civil liability is quite professionals especially lawyers wide in terms of potential civil
www.esq-law.com
Esq Legal Practice | 51
Adeyemi Adetoye Legal & Compliance Counsel (West)
Teresa Umeakunne Africa Compliance Manager
liability to the client employer and administrative committee, potential civil liability to third capable of imposing penalties parties. How often do these issues for contraventions in the Act come up in the Nigerian context? This varies from the dictates of one regulation to the other and then the laws. The liabilities relating to third parties are easier to manage. You can have this mitigated by paying more attention to your contracts or agreements that govern the relationship. And you know, in this clime, there is a lot to catch-up with. If you take the Companies and Allied Matters Act 2020 (as amended) for example, the dispute resolution and penalty regime under the law is far reaching. The law empowers CAC to have an 52 | Esq Legal Practice
Is it advisable for corporate counsel to serve as officers (e.g. Vice President, Secretary) or directors of their client- employer or of an affiliated company in view of the higher exposure to liabilities involved in such dual roles?
Business exigency decisions often times conflict with compliance protocols, but while the counsel understands this, due process must not be sacrificed on the altar of pressure.
In foreign jurisdictions and even in The professional posture of Nigeria, some In House lawyers the in-house counsel have turned themselves into determines this. An in-house pretzels and are always willing to counsel worth his mettle and accommodate the wishes of having the appropriate company management without This is an added advantage recourse to their professional gravitas would not be caught and a confirmation of responsibilities to insist that the in the web of being a stooge. corporate confidence in the in- company comply with the law. Counsel must always give house counsel. The exposure What are the challenges faced by written and detailed legal to liabilities would always be a corporate counsel in ensuring opinions and document due compliance by their there and given the eventual decisions of client/employer? background of the in-house counsel, he is equipped to The in- house counsel must always train mitigate these exposures and and retrain its internal clients until doing add value to the appointed the right thing gets into their fabric. You are position.
as strong as the team.
www.esq-law.com
Oyindamola Agagu Legal & Compliance Counsel (East)
Management wants to achieve What is the cost of an incompetent Corporate Counsel on the and how you can help in corporate establishment? navigating into the process and achieving the objectives The consequence is dire I must say. It ranges from getting For an ethical and competent corporate fines and penalties corporate counsel are there any management if contrary to exigencies that are not need for insurance coverage such to reputational damage. such opinions. Business reasonably foreseeable. Hence as directors and officers (D & O) Incompetence itself is a risk insurance policies, malpractice exigency decisions often times the challenge with that must be addressed. We conflict with compliance management in most cases is insurance policies? And if yes, are talked about in-house these policies readily available in protocols, but while the “fire brigade” in nature and counsels being gatekeepers Nigeria? counsel understands this, due the cure to not compromising earlier, so the holder of this process must not be sacrificed process, is planning ahead of office should necessarily come We don't have a malpractice on the altar of pressure. I pressure. However, the with a tested background and insurance cover in Nigeria, usually say that – No one can inhouse counsel being a demonstrable experience. You but I know some insurance manufacture a legal problem. business partner, should can not give what you don't companies have professional Its either, we have envisaged devise proactive ways to liability insurance/bonds. But have. So, go, get the it and trying to mitigate its mitigate this kind of challenge knowledge. you see, no claim can impact, or the legal problem by contributing to the sufficiently cover reputational has crystalized and we are respective strategy session of In view of the global financial damage. crisis and its revelation of the dealing with it. Likewise, each department. That way, intricacies of most companies and you understand what there are no business
I think it is important for the in-house counsel to avoid being a pawn in any game of infraction. The in-house counsel should give legal advice without fear or favour in a clear and distinctive manner.
www.esq-law.com
Esq Legal Practice | 53
You must deal professionally and with this comes character- hallmark of character for me is conscientiousness and integrity. Please let this adorn your practice like a badge of honour. In house counsels are judged by their last worst actions, not their good intentions or prior successes, but in all, your good character will stand you out. With this comes the running of a very approachable policy. This builds the confidence of your clients to receive prompt legal advice without borders and they can trust you with information to assist with an honest feedback or prompt remedial actions corporations, how do we avoid high profile corporate scandals involving In-House counsel in Nigeria?
the culture of the company. Learn about the company's business operations. I didn't for instance know what “hectolitres” meant to our - Compliance is at the heart of avoiding business until I learnt about brewing corporate scandals. My team and I for non-brewers. Learn about your practice what we term as “preventive company's industry, the strategy and principle”- We spot check and plan the market. Talk to Managers in the every of our departmental and value company, establish your reporting chain against our compliance relationships to fully grasp each framework. What this does is to enable workings of the company' value chain. us to detect any due/non-compliance with a view to swiftly remedy them. Secondly, build a professional Also, and most often than not, before a relationship. corporate scandal becomes full blown, there would have been pockets of issues You must deal professionally and with that may not have been extinguished to this comes character- hallmark of it roots. character for me is conscientiousness I think it is important for the in-house and integrity. Please let this adorn your counsel to avoid being a pawn in any practice like a badge of honour. In game of infraction. The in-house house counsels are judged by their last counsel should give legal advice worst actions, not their good intentions without fear or favour in a clear and or prior successes, but in all, your good distinctive manner. character will stand you out. With this comes the running of a very What keeps you awake in the night? approachable policy. This builds the confidence of your clients to receive Overnight/not well thought out prompt legal advice without borders regulations and enforcements by and they can trust you with information ambush of archaic laws, or their mis to assist with an honest feedback or interpretation by government or its prompt remedial actions. parastatals at different levels. Thirdly, retain experienced external counsels particularly in the area of your legal team's weakness. You must be able to assess whether a matter should Perhaps not to be like me, but be outsourced or handled internally. succeeding as an in-house counsel as Learn also, the art of managing the success itself is a journey and not a external counsels as well. What you see destination. from the inside, the external counsel I would sum it up in 3 pillars: the first is may not and vice-versa. So there must to Understand and be firmly rooted in be a fine balance. What advice do you have for young lawyers who are looking forward to being like you?
Compliance is at the heart of avoiding corporate scandals 54 | Esq Legal Practice
www.esq-law.com
www.esq-law.com
Esq Legal Practice | 55
Law Firm
BOOKKEEPING FOR LAW FIRMS The Banks and Other Financial Institutions Act (BOFIA) Cap B3 Laws of the Federation of Nigeria 2004 was enacted 29 years ago and since then had not been revised.
E
ven though "Bookkeeping" may give you flashbacks of those variable based math classes in school (prompt the perspiration), it's basic for your law office. Appropriate law office bookkeeping not just permits you to perceive how well your firm is performing, it also permits you to make informed business choices that push you forward.
wreck on your hands. Even though you're shuffling the wide range of various duties of claiming a firm, you ought to never permit your books to fall behind. That is the place where the correct assistance and the correct innovation can act the hero.
Bookkeeping expects you to be precise, persistent, and show scrupulousness. Then again, accounting is more emotional and includes:
ž Using your books to reveal business bits of knowledge, for example, key execution The Difference Between Law Firm pointers, financial patterns, Bookkeeping and Accounting the effect of financial choices, tax arranging, First of all, bookkeeping and gauging, and so on accounting aren't very similar ž Capturing costs that weren't things. Even though they initially recorded and share a common objective, changing passages they happen at various phases appropriately of dealing with your ž Preparing financial company's accounts. statements and other Bookkeeping happens first reporting devices and identifies with the ž Planning for tax liabilities regulatory side of tracking ž Completing tax returns your money. It includes: How about we start with the essentials, shall we?
As a law office manager, you may have just endeavored to keep your books without oversight. Assuming this is the case, you may have been insulted with the acknowledgment that you basically can't. All things considered, law office bookkeeping can snowball rapidly, like doing dishes. If you do some washing each time you utilize a dish, you ž Recording each financial have a cycle that keeps your exchange that happens home clean. In any case, if you inside your firm, for stand by seven days… a example, posting charges month… or even *gasp* a and credits year… you have a spoiling 56 | Esq Legal Practice
ž Creating and sending solicitations ž Running payroll for your group
Set forth plainly, you can't rehearse legitimate accounting without law office bookkeeping as the establishment. Try not to trust us? Indeed, take it from Kelly.
She discovered it out the most difficult way possible. After Kelly documented her law office's taxes, she understood she had neglected to include a few costs that weren't initially recorded on her books. Those costs would have caused her to lower her tax risk and save more money in her pocket for her business. Keeping a Chart of Accounts All in all, how would you keep away from Kelly's disaster? You make a bookkeeping cycle that is easy to follow. However, don't freeze in case you don't know where to begin. The principal thing you ought to do is make a Chart of Accounts, the structure for getting sorted out information, for example, ž ž ž ž
Revenues Expenses Client costs Trust accounts
This financial assertion is a list of your association's financial www.esq-law.com
quite possibly the most wellknown slip-ups lawyers make is forgetting about the operational expense. It's ideal to catch and record your operational expense every day, so you don't lose those receipts or solicitations. At that point, put aside a period every week to ensure they are coded appropriately in your books.
records, across the board place. The Chart of Accounts commonly incorporates five primary classifications: resources, liabilities, proprietor's value, income, and costs, in addition to numerous subcategories relying upon your business. Many utilize the Chart of Accounts to guarantee they plug financial data into the right spot for accommodating each record. It'll assist you with doing likewise.
Intermixing Personal and Business Expenses: Anybody needing to maintain a genuine business ought to never join individual and operational expense. All things considered, it's likewise disliked by the IRS. Mixing the two makes it almost difficult to guarantee your costs, also track the financial wellbeing of your firm.
To guarantee you don't blend, save separate records for your business and your individual budgets. For bookkeeping 8 Common Bookkeeping Mistakes purposes, guarantee you're and How to Avoid Them just following exchanges that happen inside your law As proprietors of our own law office's records. On the off offices, we've committed chance that under any something reasonable of conditions you commit an errors. Tragically, error, (for example, storing an bookkeeping botches have individual check-in your ramifications for your business account), make a business, personal taxes, and point to follow it in your permit. Fortunately, these slip- books. ups are anything but difficult to stay away from. We'll show Forgetting about Business you how. Expenses: Discussing costs,
Committing Data Entry Errors: Have you ever attempted to adjust your checkbook, just to discover It's additionally an you're a quarter off extraordinary practice to someplace? One number sliprecord what each cost was for up on your law office's books in detail. For instance, in case can cause anarchy. That is the you're discounting a dinner, reason it's critical to require you may record who you were some investment, twofold with and what you examined. checking your entrances as All things considered, in the you go. event that you ought to be exposed to a review (shiver), The best way to get it going you'll need these records to returns to our last point: don't demonstrate your costs were hesitate. Require some for business purposes. investment every day to enter your numbers, requiring an Overlooking Professional additional couple of moments Help: Bookkeeping requires to twofold check your work. commitment and consideration simply like all Forgetting about the other things in your firm. Transactions: Glen saw his We comprehend what it books and saw he had resembles to have everything additional money to spend on fall on your shoulders. That is a PC redesign for the firm. additionally why we prescribe Lamentably, after he bought at last recruiting an expert the new hardware, he accountant to guarantee understood he had neglected nothing gets lost in the noise. to record a huge installment (More on this later.) on his books. Presently, he's in the red. Delaying: Learn to expect the unexpected. You can hardly The objective of bookkeeping wait until just before tax time is to have a precise image of to begin following your your present financial accounts. Indeed, you can't standing. Missing exchanges stand to stand by seven days cause errors that can cost you. until you make time to enter For instance, you may your exchanges. We prescribe resemble Glen and overspend, planning a chance to follow sending your firm into the red your funds in any event week for the month. Or then again, after week. you may forget about basic
Appropriate law office bookkeeping not just permits you to perceive how well your firm is performing, it also permits you to make informed business choices that push you forward. www.esq-law.com
Indeed, put it on your schedule. It truly is that significant. A limited quantity of time every week will keep you from going through an excessive amount of time attempting to make up for the lost time.
exchanges that influence your taxes. To maintain a strategic distance from this kind of Esq Legal Practice | 57
Law Firm
UNDERSTANDING LAW FIRM STRATEGY Law firm strategy is a future-evidence plan that empowers firms to organize destinations, stay serious, and streamline monetary objectives. It permits firms to separate themselves from the opposition, reflecting the two qualities and shortcomings. Law firm strategy assists firms with finding their chances and dangers, revealing key execution pointers (KPIs) to gauge progress and offer the most obvious opportunity at progress.
S
olo or small-scale law firms can assemble supportable law practices by zeroing in on customer-driven administra3. tions, future-oriented technology, profit-oriented plans of action, and admittance to equity and incorporation. 4. As a firm, your law firm strategy ought to incorporate a few ideas: 1.
2.
5. Your mission and qualities are clear and recorded. You have a plan of action worked around tackling customer issues following
their assumptions at a fitting cost and evaluating choices that appeal to those customers and function admirably for your firm, as well. You examine drifts that will influence your firm and customers, and you join what you realize into your strategy. You're chipping away at tasks and momentary objectives associated with your drawn-out objectives for your firm. You utilize a bunch of key execution markers (KPIs) to screen your firm's wellbeing and assist you with anticipating your future achievement. Your
your guide, causing you to arrive at your objectives, keeping you responsible, and 6. going about as the foundation of your law firm strategy pushing ahead. Also, every business choice will lay on your arrangement, lightning By planning, you can fabricate overpowers, or hesitation. an effective law firm that Before you make your stands the trial of time. The marketable strategy, you most ideal approach to get should address key issues, for ready is to make a strategy example, that flexes with the rhythmic movement of the act of law. ž What is the name of your This begins with the correct firm? marketable strategy. ž What is the scope of your Step by Step Instructions to practice? Develop your Small Firm Strategic ž What is your lawful Plan structure? For instance, sole Your law firm essential ownership, organization, arrangement goes about as KPIs are routinely looked into and refreshed. You lead a serious investigation and change your strategy to win your market on in any event a quarterly premise.
circumstance, use accounting software that permits you to computerize a portion of the cycles. For instance, monitoring solicitations or month to month repeating costs. Once more, you ought to likewise be investing energy day by day recording your association's exchanges.
BOOKKEEPING FOR LAW FIRMS 58 | Esq Legal Practice
Befuddling Owner's Pay and Draws: A draw is a point at which you remove assets from your business for individual use. Proprietor's compensation alludes to paying yourself compensation straightforwardly from your business. Utilizing both can bring about befuddling exchanges that are hard to oversee. We generally suggest lawyers pay themselves a reasonable compensation straightforwardly from their business. It's just better for you and your company's accounts.
www.esq-law.com
and so on ž Who is your objective client(s)? ž How will you keep up your law firm's documents and records? ž What remuneration structures are set up for you and your workers? ž What are your present moment and long-term objectives?
Bumbling Cash Reconciliation and Accrual Statements: In accounting, there are two sorts: the money strategy and the gathering technique. In the money strategy, you record exchanges as the money is traded, paying little heed to when the exchange happens. In the accumulation strategy, you record an exchange when it really happens. We prescribe picking either to forestall disarray and for the most precise outline of your association's funds.
www.esq-law.com
ž Who are the individuals you need in your group to achieve those objectives? ž What monetary resources do you have, and which resources do you need to push ahead?
Executive Summary. This segment is an outline of your whole arrangement and incorporates your statement of purpose, qualities, and market differentiators.
Plan a Data-Driven and ClientCentered Law Firm There are seven particular pieces of a total marketable strategy. These parts include:
Company Overview. This diagram ought to incorporate your main goal and qualities once more, your area and the zones you serve,
guarantee consistency. IOLTA (Trust) Bookkeeping As a lawyer, you're mindful that when you get the cash that has a place with a customer, you should put those assets in a trust account separate from your own cash. These assets are put away in IOLTA or "interest on legal counselors' trust accounts" accounts.
First, does the equilibrium in your IOLTA trust ledger coordinate the sum thought about your books in the IOLTA trust obligation account balance?
firm structure, proprietorship, and your firm's set of experiences. Market Analysis. Observe the historical backdrop of your legitimate specialty just as its future, including market size to showcase development. This part ought to likewise incorporate your intended interest group, a total serious
trust account balance on your association's books amount to the equilibrium in your IOLTA ledger?
Observe these standards and monitor customer supports each day to guarantee you don't cross any lines that can cause your firm difficult Next, does every customer's trust balance have an itemized issues. record demonstrating explicit exchanges for each and every inflow and surge?
You don't need to battle with IOLTA accounts. Indeed, there Finally, when taken together, are some essential guidelines do the aggregate sums reflect that direct how you should in every customer's IOLTA deal with this cash to Esq Legal Practice | 59
examination, and the projected sum your intended interest group needs to spend to help decide administration estimating.
Build Up Your Firm's Mission, Vision and Values
present. Your vision identifies where you need your firm to be later on. By understanding The moves you make and the your vision, your readiness to decisions you make rely upon settle on business choices the "why" behind your choice depend on where you need to to enter the practice of law Firm Organization and be in your business, not where and start your firm. Management. you are. Your vision ought to Characterizing your main This part incorporates data move and direct your firm's goal, vision, and qualities will means forward. about you and other people help manage you as you make who have proprietorship in your firm. It incorporates your your law firm strategy. Impart your vision by making experience, insight, and the a dream explanation for your Your Mission "why" behind your initiative. firm. Keep it short and easy to recollect, and guarantee it Your law firm's central goal is Firm Services. covers your firm's drawn-out the explanation your firm Your administration area targets. For instance, as should incorporate the issues exists, a definitive reason. It opposed to its statement of you intend to address for your identifies what it is your firm purpose, investigate Google's does, how you do it, who you customer, the arrangements vision proclamation: you give, and a review of your do it for, and the worth you bring to your customers. opposition. "To provide access to the world's
A few instances of guiding principle include:
Advocacy Collaboration Community Innovation Integrity Service Trust
Utilizing a single word to portray each worth is an extraordinary spot to begin. As you learn and develop, you can begin making esteem articulations that depict what each worth means for you and your customers.
Spot your main mission, vision, and values in plain view where your group and information in one click." To impart your main goal, Marketing Strategy. customers can see them, for make a statement of purpose: Your showcasing strategy example, on your site or in Although the mission is to should address the following: a short sentence depicting your office. In any case, don't make data all-around your firm's motivation and situating, valuing, and think of it as done until they available, their drawn-out advancement. It ought to talk objective. For instance, target is to give access to data are shared with everybody. investigate Google's statement about how you intend to Continually allude to them in only a single click. of purpose: situate your firm, the amount when settling on choices and you'll charge for your Your Values work on rehearsing them in administrations, and how you "To organize the world's the entirety of your work and information and make it intend to advance your firm. There are purposes for the communications. At last, universally accessible and decisions you make and the they'll be shared by useful." Finances. things you do. Find the everybody. Draw in your This segment talks about the explanation you began your colleagues during the time planning and estimating for Keep it straightforward. On firm in any case inside your spent assisting with your firm, including the the off chance that you can't guiding principle. Your characterizing the mission, capital, month to month identify what it is you need to qualities are the essential vision, and qualities so that spending plans, cases do in only a couple of words, convictions of your these are reflected in their expected to equal the initial you might not have the association, the establishment day-by-day work and their investment, projected profit, clearness you need to push you need to perform commitments to other projected misfortune, and ahead presently. Burrow significant and effective work. strategies. then some. further. When complete, your arrangement will fill in as a living and breathing report you and your group will follow when pushing ahead. Set up your arrangement as a written record. At that point return to and update it consistently.
60 | Esq Legal Practice
Your Vision Your statement of purpose characterizes your firm in the
www.esq-law.com
ESQ PRACTICAL LAWYERS ACDAEMY ENERGY, OIL & GAS ACADEMY PRESENTS
A 12 WEEK VIRTUAL DISTANCE LEARNING COURSE ON THE
DYNAMICS
OF POWER
CONTRACTS Regulation, Contract Negotiation, Documentation, & Project Financing Facilitators Include:
MATTHEW WOOD,
DR AYODELE ONI,
Partner, Head of African Practice, Ashurst LLP.
Partner, Bloomfield Law Practice.
Commencement Date:
16th February, 2021 6 hours of lectures per week with lots of assignments, simulation exercises, case studies and group work. Registration fee:
ENQUIRIES:
N200,000
Tel: +2348132676084 Email: training@esq-law.com www.esq-law.com
Esq Legal Practice | 61
Interview
AO2LAW
A HAVEN OF INNOVATIVE LEGAL SOLUTIONS ESQ Team had a brilliant discussion with the partners of AO2Law on the firm's practice and contributions to the development of law practice in Nigeria. It was a great discussion and we believe that AO2Law will achieve more greatness in no time. 62 | Esq Legal Practice
AO2 Law has emerged as a leading law firm in Nigeria what has being your story? We are arguably a start-up firm and cannot be appropriately regarded as a leading law firm. We commenced business on 1 March 2017 which is just over 3 years ago. The Founding Partners of the firm are alumni of the big law firms in Nigeria who decided to go the entrepreneurial route to establish a law www.esq-law.com
firm to assist clients in meeting their business objectives. We saw enormous opportunities in the Nigerian legal industry and decided to venture out in order to take advantage of these opportunities. We started out as a firm of 6 lawyers in 2017 and today we are about 20 man strong and growing. In terms of our story, as you www.esq-law.com
would agree, in 2017 when we started, this was the height of the recession and the Nigerian economy was contracting which means establishing a business during such a period was illogical. However, we believe there is no other time to plant a tree than now as such, we thought establishing a business during a recession although
daunting, strategically affords us the opportunity to position ourselves when the economy picks-up. What are the ethics and principles that your firm follows to achieve success? Four Main Principles that we form part of our core in Esq Legal Practice | 63
everything we do are; Excellence Adaptability Innovation Grit
specific.
AO2 Law is focused on the success of its clients. As such, we adopt a proactive approach that not only manages present What are your core areas of practice? business challenges for our clients, but looks ahead to The firm is divided into 4 broad determine potential future practice areas: challenges, and then design ž Dispute Resolution and mitigation techniques. Our Risk Management solutions are, therefore, ž Commercial and Criminal pragmatic, innovative and Law Practice forward-thinking, ž Energy and Extractives allowing our clients to ž Real Estate and thrive in their dealings. Infrastructure and Transport As part of being What do you see as the main points that differentiate AO2 Law from your competitors? We are a one-stop legal shop As a Firm, we continuously maintain an ever-towering standard of offering excellence and experiential services to our clients. We are highly innovative in creating new ideas in challenging the status quo and adaptable to proffering tailormade solutions that are client
innovative, we have established a technology business, AO2 Law Technologies Limited (“AO2 LawTech”). AO2 LawTech's core focus is to invest in technology and develop products to ensure innovation in the provision of legal services.
Ao2 Law is focused on the success of its clients. As such, we adopt a proactive approach that not only manages present business challenges for our clients, but looks ahead to determine potential future challenges, and then design mitigation techniques. Our solutions are, therefore, pragmatic, innovative, and forwardthinking, allowing our clients to thrive in their dealings. 64 | Esq Legal Practice
www.esq-law.com
At AO2 Law are firm believers that we are only as good as our team. As such, we cultivate an efficient and inclusive environment that allows the team to thrive and encourages superior performance. Our practice manager is highly skilled at managing both talent and resources optimally, and our administration team runs a close to seamless interface experience between the team and our clients. We have a team of young and vibrant lawyers who have excelled in their academic pursuits.
COVID -19 has emphasized the importance of technology to our daily lives. Therefore, there would be continuous demand for technology as a service, thus it is expected that businesses in this space will require legal services to support their objectives. Which practices do you see growing in the next 12 months? What are the drivers behind that? Technology: COVID -19 has emphasized the importance of technology to our daily lives. Therefore, there would be continuous demand for technology as a service, thus it is expected that businesses in this space will require legal services to support their objectives.
Pandemic which has necessitated restructuring and in extreme circumstances, triggered insolvency events. We believe, this area would grow over the next 12 months as business continue to navigate the shock of COVID-19.
What is the main change you've made in the firm that will benefit clients? The major change has been our response to the COVID-19 pandemic, we have been able to adopt a flexible approach in our work culture. This has been of Data Protection: immense benefit to clients as we this area is closely related to can be reached anywhere and technology. Going by the saying anytime of the day. Also, we have “Data is the New Oil”, we believe been able to deploy state of the art this is a bourgeoning area that technology to support our remote continues to attract attention. The work structure to ensure real-time NITDA Nigerian Data Protection response to client's needs. Partners Regulation (NDPR) 2019 has and Associates are on hands with We also build a cordial relationship engendered a number of these technological tools and use it through retreats, hangouts and compliance requirements in the effectively to guarantee client's engagement sessions. This is also in Data Protection space. optimal service satisfaction. line with our open-door policy that Is technology changing the way encourages dialogue. Power: you interact with your clients, and There is a huge power deficit in the the services you can provide them? For effective Human Resource country as at today, we believe Yes, it is. Save for physical management, we have deployed a there would continue to be meetings which continues to Payroll Manager called TaxiT investments in the sector which in reduce, all other means of Payroll, a payroll management turn will need legal services. interaction with our clients are software which is optimized for technology driven. Telephone calls, taxes for the benefit of our Insolvency: sms, emails, tools for virtual employees. Businesses have fallen on hard meetings. times as a result of the COVID-19 We fiercely believe in our team of professionals and invest in them every way we know how. Besides the several trainings staff undergo tailored to their area of tested proficiency. In order to ensure the best experience as commercial lawyers some of our lawyers are currently under secondment programmes with some of our clients.
www.esq-law.com
Esq Legal Practice | 65
Clients will always desire a partnership with Firms that have systems in place for business growth and continuity. AO2LAW has institutionalised provisions for these two and continues to work assiduously for business stability in the volatile Nigerian economy we help in guiding their growth into Can you give us a practical example of the future. In 3 years, AO2LAW will how you have helped a client to add value be better positioned as a leader to their business? within the legal industry, in the deployment of modern This year, we have obtained technological tools in the services judgement from the Tax Appeal that it offers to its ever-increasing Tribunal which will change the Real clientele base Estate Landscape. In September 2020, we obtained a landmark judgement Due to the current pandemic, there is a which held that VAT shall not be chaos of functions. How do you manage applicable to rent. We are currently to bring unity and cooperation among working with the Project Developer your teammates in this period? of an IPP Project that would power some parts of the Lagos Metropolis. We are an agile firm that has built flexi-work hours into our Are clients looking for stability and structure before the advent of strategic direction from their law firms – the pandemic, so we were able where do you see the firm in three years' to manage the seeming chaos. time? Team members are responsible with remote Clients will always desire working and we don't need to partnership with Firms that have chase team members to do systems in place for business growth what ought to be done. The and continuity. AO2LAW has Pandemic only came to test instutionalised provisions for these our established processes two and continues to work which needed a bit of fine assiduously for business stability in tuning. As a firm, remote the volatile Nigerian economy. While work is part of us and we currently service industry physical presence in the leaders, we have also provisioned for workspace is no longer Small and Medium Scale Enterprise compulsory going forward. “(SMEs”). These are businesses that
Running a law firm is just like any business; put the necessary structures in place. Commitment and Consistency are key in ensuring success. 66 | Esq Legal Practice
www.esq-law.com
Lastly, your firm has achieved many accomplishments for its hard work and authenticity. The competition among the legal firms is getting compact and there is an increase in the number of firms, so please tell us how do you ensure the stability and growth of your firm? Constantly delivering experiential services and focusing on the client success which is our mission as a firm. For us at AO2LAW we thrive to make a lasting impression on every client the firm interacts with. Our dealings are anchored on impeccable service delivery and attention to details by building relationships and developing partnerships that will in turn benefits our clients. With this in mind, growth is inevitable. What would be your word of advice for the budding entrepreneurs who wish to start a law firm of their own? Running a law firm is just like any business; put the necessary structures in place. Commitment and Consistency are key in ensuring success.
www.esq-law.com
Esq Legal Practice | 67
Banking
A REVIEW OF
BOFIA 2020 Written by: Oluwafemi Akinrefe
The Banks and Other Financial Institutions Act (BOFIA) Cap B3 Laws of the Federation of Nigeria 2004 was enacted 29 years ago and 1 since then had not been revised.
H
owever, In response to the significant development s in the financial sector, President Muhammed Buhari on the 12th of November 2020 signed the Banks and Other Financial Institutions Act 2020 (“2020 BOFIA”) into Law2 which repeals the BOFIA 2004. Although, in a way the BOFIA 2004 had helped us forge one of the most regulated banking systems in the world, the truth remains that an amendment is necessary. Looking at the current innovation and the 1. 2.
3.
4.
application of fintech in the banking system; not also forgetting that in the past decade, industry stakeholders have consistently argued that the Banks and Other Financial Institutions Act (BOFIA) Cap B3 Laws of the Federation of Nigeria 2004 was obsolete and needed to be updated to reflect the true position of the industry. All these and more necessitated the enactment of the BOFIA 2020.3
stuck in the past with archaic and outdated provisions, the law appeared to have served as a facilitator of the laxity in corporate governance and corruption as the operators exploited its weaknesses to perpetrate various reckless insider abuses and other unethical conducts that only fueled the high incidence of non-performing loans (NPLs) in the banking system.4 Hence BOFIA 2020 seeks to regulate banks and other financial The old BOFIA was designed institutions by prohibiting the to regulate banking and other carrying on of such businesses financial institutions in Nigeria except under businesses, but it was still licence and by a company
incorporated in Nigeria. It also updates the laws governing Banks, Financial Institutions and Financial Services Companies; enhance efficiency in the process of obtaining/granting banking licences; accurately delineate the regulatory functions of the Central Bank of Nigeria in the financial services industry; update and incorporate the laws for enacting, licencing and regulation of microfinance banks inter alia. Beyond this, it regulates the activities of financial technology companies (FinTechs), and update
Taiye Adegoke, 'A Comprehensive Analysis of the BOFIA 2020'. Seun Timi-Koleolu & Praise Adetunde, 'Revised Banking Law in Nigeria- BOFIA 2020' (November 23, 2020) < https://pavestoneslegal.com/revised-banking-law-in-nigeria-bofia 2020/#:~:text=Similar%20to%20the%201991%20BOFIA,(5)%20of%202020%20BOFIA. > Accessed December 17, 2020. Kelly Ushedo, 'BOFIA 2020: Forward or Backward for the Nigerian Banking Industry', ( November 18, 2020) < https://nairametrics.com/2020/11/18/bofia-2020-forward-or-backward-step-fornigerian-banks/ > accessed December 17, 2020. Bassey Udo, 'Analysis: How Nigeria's New Bank Law, BOFIA, Will Impact Bank Sector', ( November 17, 2020) < https://www.premiumtimesng.com/news/top-news/426566-analysis-how-nigeriasnew-banks-law-bofia will-impact-financial-sector.html > Accessed December 17, 2020.
68 | Esq Legal Practice
www.esq-law.com
commensurate penalties for regulatory breaches in the financial services sector.5 Notably, Section 33(3) dealing with the power of the CBN Governor to appoint one or more officers of the bank as the examiner has been deleted. Sections 45 amongst others have also been deleted from the new act. The regulatory power of the CBN as the apex bank was made clear. Also, the Federal High Court was expressly given the exclusive jurisdiction to try all offences under the Act and to try some civil issues like challenging the revocation of the licence of a bank.6 Without much ado, in this article, we 5. 6. 7. 8.
The 2020 BOFIA clearly defines “other financial institutions” to include entities that carry on financial businesses electronically, virtually, or digitally. Such entities are to incorporate a company in Nigerian and obtain a license from the CBN before carrying out financial businesses in Nigeria. shall examine the innovative provisions of the Banks and Other Financial Institutions Act (BOFIA 2020), its advantages and disadvantages.
bank, issue a licence or refuse to issue a licence, and the Bank is required to give reasons for the refusal within 60 days.
whatsoever. Such enormous power goes against the grain of contemporary and good order regulatory oversight. Such powers might be This gave the CBN Governor considered by the investment wide discretionary power to community, operators, and Issues relating to licensing issue a licence, with or counterparties to be arbitrary without conditions, or refuse and liable to abuse or be used Section 3(3) of the new Act7 to issue a licence without to act in any manner the provides that: giving any reasons for such regulator sees fit, without refusal.8 This is a form of check or balance or hindrance. The Central Bank of Nigeria absolute power given to the This might discourage (“the Bank or CBN”) may, Governor of the CBN to refuse investment/participation in upon payment of the to grant a banking license the banking industry prescribed sum by the proposed without giving any reasons especially from serious
Ibid, Taiye Adegoke. Unini Chioma, 'An Appraisal of the New BOFIA Act' ( November 29, 2020) < https://thenigerialawyer.com/an-appraisal-of-the-new-bofia-act-2020/ > Accessed December 18, 2020. BOFIA Cap B3 LFN 2020. Ibid, Taiye Adegoke.
www.esq-law.com
Esq Legal Practice | 69
The Central Bank of Nigeria (“the Bank or CBN”) may, upon payment of the prescribed sum by the proposed bank, issue a licence or refuse to issue a licence, and the Bank is required to give reasons for the refusal within 60 days. investors - and affect the Under the new Act, where the perception of Nigeria as a Bank grants an application for country where banking licence it shall, in addition to licenses are not granted on giving written notice to the transparent principles. Good applicant, indicate the scope of lawmaking ought to place the banking business in which constraints on a regulator's the applicant can engage in arbitrary power to do as he or and the geographical area she wishes without within which the applicant consideration for the impact bank shall operate. on stakeholders and investing parties.9 This is a good provision as it will curb financial institutions While Section 3(4)(ii) provides from overstretching and thus: overreaching their scope of 9.
10. 11.
financial services group that is subject to effective consolidated supervision shall not be allowed to operate in Nigeria and no Nigerian bank or its subsidiaries shall establish or continue any relationship with such bank or subsidiary.
operation; however, it tends to put a limit on business expansion in the financial This would help to restrict the sector. arbitrary and unregulated provision of digital financial Furthermore, the new act10 added new subsections ( 6 and services by foreign entities through online platforms.11 7 ) to Section 3. subsection 6 provides that: However, section 8(2) provides that any foreign or any bank or its subsidiaries which has no physical presence Nigerian bank interested in in the country of incorporation operating in the free trade and where it is licensed and is zone or special economic zones must obtain a licence to not affiliated with any
Proshare, 'BOFIA bill 2020: A Call for Reflection, Rethinking, and Resurgence' < https://www.proshareng.com/news/NIGERIA%20ECONOMY/BOFIA-Bill-2020--A-Call-for-Reflection--Rethinkingand-Resurgence/53178 > Accessed December 18, 2020 Ibid, (7). Ibid, Seun Timi-Koleolu & Praise Adetunde.
70 | Esq Legal Practice
www.esq-law.com
take reasonable steps to secure compliance with any conditions of licence guilty of an offence and liable upon conviction to imprisonment to a term not exceeding five years or a fine of N15,000,000 or for both such imprisonment and fine. Hence, both the bank and its officers are guilty of noncompliance. This provision is laudable because it seeks to hold Bank officials personally liable for any failures to seek compliance with their conditions of license. The rationale being that when individuals face imprisonment of up to 5 years and/or a fine of N15,000,000.00 (as stipulated in the new law) for negligence, they would most likely sit up to their duties of compliance, than in the old days when the faceless banks were summarily fined pittance for non-compliance.12 Similarly, in Section 5(5) the Act has been able to adjust the penalties to reflect new financial realities, especially operate. Also, banks given the profitability of providing offshore banking banks these days. N50, 000 services must obtain a fines have been hiked to banking licence. The new Act N1,000,000.00 (and N100,000 clearly defines offshore daily) for non-compliance in banking services as the Section 5 (3). This trend of provision from Nigeria of cross-border intermediation of increase holds constant for every policy breach with a funds and provision of penalty of a fine.13 financial services to a nonresident of Nigeria (other than Issues Relating to Revocation of Nigerian citizens). Banking licence Issues relating to penalties Section 5(6) of the new Act provides that: any director, manager, or officer of a bank who fails to 12. 13. 14. 15. 16.
contains only one subsection, The section under the new Act has been enlarged to include 6 Subsections. The subsections variously contain provisions dealing with the appointment of the Nigerian Deposit Insurance Corporation (NDIC) as a liquidator of the affected bank whose licence has been revoked; the immediate payment by the CBN of private deposit liabilities of the bank before the commencement or compilation of the liquidation of the bank by the Corporation; the exclusive jurisdiction of the Federal High Court to entertain an action to challenge the revocation of the licence of a bank, the time frame within which to hear and determine an action to challenge a revocation and an appeal against the decision of the Federal High Court in respect of same, the time within which to commence an action in respect of revocation of the licence of a bank and so on. All of these are germane provisions that are not contained in the 1991 Act.14
However, the Act under Section 12(6) attempts to usurp the power of the Court to grant restorative or similar orders against the Bank or the Governor in any action, suit, or proceedings in relation to the revocation of a licence by the Bank and limits a claimant's remedy to only damages. These provisions Another laudable provision of can occasion unrestrained the new Act is Section 12(1-6), abuse of power and if dealing with “Revocation of retained, could discourage Banking licence” which has investment/participation in been enlarged under the new the banking sector. Regulated Act to cover more grounds. entities will live in perpetual Unlike the old Act which
fear of never being able to freely, fairly, and respectfully express their views. No country's financial system develops and attains stability under such a draconian climate.15 Issues Relating to Prohibition of Unlicensed Financial Institutions Section 58(1) & (2) of the Act provides that: No person shall carry on specialised banking or business of other financial institutions in Nigeria, other than insurance, pension fund management, collective investment schemes, and capital market, except it is a company duly incorporated in Nigeria and holds a valid licence granted under the provisions of the Act. Examples of “business of other financial institutions” under the Act include business of a discount house, bureau de change, finance company, money brokerage, etc. The 2020 BOFIA clearly defines “other financial institutions” to include entities that carry on financial businesses electronically, virtually, or digitally. Such entities are to incorporate a company in Nigeria and obtain a licence from the CBN before carrying out financial businesses in Nigeria. Thus, the operations of digital financial service providers/FinTechs in Nigeria are now governed by the 2020 BOFIA and regulated by the CBN.16
Oluwafemi Akinrefe is a Virtual Intern of Esq Legal Practice Magazine.
Ibid, Kelly Ushedo. Ibid, Kelly Ushedo. Ibid, Unini Chioma. Ibid, Proshareng. Ibid, Seun Timi-Koleolu & Praise Adetunde.
www.esq-law.com
Esq Legal Practice | 71
Entertainment
Artist Management AGREEMENT IN CAMEROON Mafany Victor Ngando
Artist Management Agreement in Cameroon embodies terms and conditions that will define the relationship between an artist and the manager. These terms and conditions define the structure of the total management of the artist in relation to the scope of representing the artist, duration of the agreement, rights of both artist and the manager, the terms of authority, compensation of the artist, sharing formula, the consequence of any breach of the terms of the agreement and other clauses that affect the agreement.
A
n Artist is a broad classification of persons who are involved in creating and demonstrating the art of entertainment in respect of comedy, music, dance, acting, etc. A Manager on the other hand can be an individual or a company that helps to guide the growth in the professional career of an Artist in terms of representing the best interest of the artist that will in turn be beneficial to both parties in the entertainment industry.
lead to the success of the artist since the success of an Artist is dependent on the strategic management, promotion, and publicity by the Manger.
important that a form of contract is executed between the artist and manager to ensure the successful smoothrunning relationship between parties. This contract is usually referred to as an Artist Management Agreement. This Agreement as earlier mentioned is executed by both the artist and the manager and will serve as a guide in the professional affairs of the artist and ensuring that the rights and interests of both the parties are protected.
In Cameroon today, there are individuals and companies that operate strictly on representing and managing artists. The management serves as a link to provide an artist signed under its management with career guidance, communication with the right record labels where the artist is a musician, Content of an Artist Management booking shows and getting Agreement endorsement contract with companies among others. The Manager of an Artist is The following terms must be saddled with the included in an agreement to responsibility of ensuring that Furthermore, because of the heavy responsibility placed on be executed between the Artist the Artist maximizes his full and the Manager: potential in the entertainment a manager in managing an artist in Cameroon, it is very industry, which in turn will 72 | Esq Legal Practice
Parties Clause: the name and address of the manager or managing company and the artist including the alias name must be expressly stated in the Artist Management Agreement. The Responsibilities of the Parties: in the Artist Management Agreement, parties must negotiate and expressly state the responsibility and duties to be rendered by parties to the agreement. The responsibilities of both parties to the agreement will range from the general responsibilities such as the representation of the artist to specific responsibilities.
www.esq-law.com
Terms and Duration of the Agreement: The Artist Agreement like every other agreement is for a time certain. The duration clause of an Artist Management agreement will state the duration in which the relationship between the artist and the manager will be in effect. It is advisable to give a short term of duration like one or two years to evaluate the compatibility and success of the relation between the artist and the manager and further insert the option to renew the agreement where parties are desirable to extend the contractual relationship. Parties to the agreement are expected to comply with the terms and conditions contained in the agreement until the date the agreement ends. Authority: the authority of the manager must be expressly stated in the Agreement. The authority must be such that there is a balance between actions the manager can undertake on behalf of the artist with his approval and actions that can be done without seeking the artists' approval. Authorities such as representing the artist, negotiating on behalf of the artist, publicity of the artist, branding of the artist, etc. Expenses: in a relationship between an artist and a manager, it is pertinent that money will be expended on the artist, such as rebranding the artist to gain public acceptance, booking shows.etc. to get more profit for the management. Money is an important factor that is highly disputed and can make or mar the relationship between an artist and his www.esq-law.com
management. Therefore, it is important to include a clause in the agreement to ensure that parties are in the cohesion of mind to reduce any dispute that may likely arise when the artist to be managed has gained career growth. Nowadays, there are a lot of disputes between artist and their management which has led to breaking up the relationship and several court cases. These disputes arise because the artist signed becomes so successful that they either rip off their management or the management are in the habit of reaping off their artist. As a result of this, it is important that an artist is involved in the decision-making process especially in the expenditures made in the course of managing the career of the artist.
entertainment industry. It is possible for management to invest a lot in the career of an artist only to yield the unsuccessful growth of the artist. This redundancy can be caused by various factors. When the success of the artist is not guaranteed, it becomes difficult for the manager to reap the profit from his investment. The most feasible method to be compensated for the career growth of the artist is by calculating based on the percentage of the money made by the artist. Typically, the industry standard of measuring the compensation rate is within 15% -20% of the earnings of the artist. The success rate of an artist is derived from an endorsement contract with companies, album sales, show performance or deals sealed. It is important that the Agreement states the compensation is derived from all incomes.
Court for specific performance. Notice of Termination: where the Agreement is to be terminated by any party to the agreement, it must be stated that proper written notice must be given by the party to end the agreement. In sum, the responsibility of drafting a well detailed Artist Management Agreement is given to a legal practitioner. The lawyer ensures that all the rights, obligations, responsibilities, and duties of both the Artist and Manager are well represented.
To avoid the complexity of an Artist Management Agreement, it is advisable that any agreement executed between parties must be simple, clear, and free from any ambiguities. All issues relating to the finance, Sharing formula: the sharing formula of the division of labour and profits made from managing duration of contract must be the artist must be contained in Termination: included. An Artist the agreement. A manager is like every contract agreement, Management Agreement an Artist Management paid based on the monetary executed between parties in Agreement must have a Cameroon is a binding success of the artist. The contract that can be enforced sharing formula must be such termination clause. The to represent the best financial agreement may be terminated by a competent court. upon the conclusion of the interest of both parties. The sharing formula is dependent term of the agreement or as a An Artist Management result of a breach of any party Agreement is an important on the financial input and to the agreement. The factor in determining the efforts of the management. termination clause must also successful relationship Where management spends contain the consequence of between an artist and his more to brand an artist, it is expected that the management bringing the Agreement to an manager and thus, it should end before the stipulated time be properly drafted by to will get the bulk share of contain all essential clauses to whatever profit is made from as contained in the the artist. It is important that Agreement. Where a party to serve the best interest of both the Agreement fails to parties. parties are in agreement on perform any part of the the percentage formula that Agreement, it may lead to the will be suitable to avoid any untimely termination of the financial dispute. Kinsmen Advocates Agreement. Where there is a Law Firm Compensation: breach of specific “The content of this article is intended to the success of an artist cannot performance, the aggrieved provide a general guide to the subject matter. Specialist advice should be sought be guaranteed in the party may seek action in about your specific circumstance”
Esq Legal Practice | 73
Interview
REPOSITIONING NIGERIA FOR GLOBAL INVESTMENT THE ECONOMY, THE REGULATIONS & THE LAWYER OF THE FUTURE
Ayuli Jemide, Chairman Nigerian Bar Association Section on Business Law Ayuli Jemide, an outstanding gentleman and leading corporate lawyer, is the Chairman of the Nigerian Bar Association Section on Business Law. He is also the Founder and Lead Partner with Detail Commercial Solicitors a top corporate and commercial law firm located in Lagos Nigeria. Lere Fashola had a chat with Mr Jemide on how Nigeria can reposition herself for global investments. What are the immediate necessary in the last few years. Domestic steps for the Nigerian Government investment in equities has to reposition Nigeria for global however increased because investment relevance? treasury bills and savings has reduced returns for PFA's It is clear that both foreign have resorted to equities. The direct investment and 3 key things that will improve portfolio investment is dipped 74 | Esq Legal Practice
the investment climate (and I refer to foreign direct investment) is, firstly security – the spate of kidnappings and now police impunity needs to be addressed. Secondly is foreign exchange
regime – the ability to repatriate dividends is still a major bottleneck. The third problem is policy – we have too many policy summersaults in the last few years related to the power www.esq-law.com www.esq-law.com
www.esq-law.com www.esq-law.com
Esq Legal Practice | 75
Interview
What are the immediate necessary steps for the Nigerian Government to reposition Nigeria for global investment relevance? It is clear that both foreign direct investment and portfolio investment is dipped in the last few years. Domestic investment in equities has however increased because treasury bills and savings has reduced returns for PFA's have resorted to equities. The 3 key things that will improve the investment climate (and I refer to foreign direct investment) is, firstly security – the spate of kidnappings and now police impunity needs to be addressed. Secondly is foreign exchange regime – the ability to repatriate dividends is still a major bottleneck. The third problem is policy – we have too many policy summersaults in the last few years related to the power sector, fx regimes, ride hailing business (uber, taxify, gokada) etc. Are the current operating or regulatory landscape in support of this? The problem in Nigeria today is not with the legal and regulatory environment. If anything, I think we have over-legislated with several legislative overlaps here and there. We have enough laws to do almost anything in Nigeria. The real issue is with the operational side – bureaucracy, lack of lateral thinkers, vested interests, and a plain simple dearth of vision. What role does security play in country's attractiveness for global investment? How do we attract investment if people cannot arrive at the international airport and feel 76 | Esq Legal Practice
www.esq-law.com
From the conversations I have had with many managing partners it is likely that many law firms will only go into offices a few days a week even after the covid 19 pandemic is over. People have just come to terms with this work mode that many find even more productive – less commuting, greater work life balance and the like. safe commuting to their hotels without armed escorts or visit a factory on the outskirts or travel by road within Nigeria? Tourism, for example, will not thrive in insecurity. Security is a basic human need so investment cannot be attracted to an insecure environment, except, of course, businesses who sell security gadgets – bulletproof items, pepper spray, etc.
of the law firm's have been up to speed with technology and SBL has always been at the regrouped sufficiently to fore front of knowledge sharing and deepening the assist their clients thought leadership of lawyers professionally. A lot of law under our umbrella. Under firms have had to take fee my leadership we want to go a haircuts in sympathy for step further to provide tools clients who are seriously and access to resources affected by the vagaries of the deploying technology. We time. In all I think Nigerian want lawyers to have near law firms have played a equal access to information salutary role in these times and data that feeds into work and have risen to the occasion. they do for their clients at What are the current challenges their fingertips for free or next How and to what extent are Law business lawyers face today? to nothing. Shared services to Firms in Nigeria adjusting their operating models? reduce cost is something we Law is a knowledge business. also need to explore. From the conversations I have What we sell is knowledge. had with many managing Business lawyers need to be Its being really an unprecedented partners it is likely that many business lawyers – aware of year for businesses: How have Nigerian Lawyers played their role law firms will only go into the business environment, of balancing commerciality and offices a few days a week even savvy with finance and risk in assisting their clients to after the covid 19 pandemic is accounting, and astute on the navigate this storming waters? over. People have just come to go. The major challenge is terms with this work mode therefore harnessing that Indeed, an unprecedented that many find even more knowledge and monetizing it. year with Covid19 and civil productive – less commuting, protests. Most businesses have greater work life balance and What role is the SBL under you had to operate virtually and playing to reposition the lawyers the like. The only real with great uncertainty. Most for the challenges ahead? www.esq-law.com
Esq Legal Practice | 77
Interview
downside is that certain meetings do require a face to face and sometimes we can read what people are not saying if we eye ball them. The virtual work mode also does not aid camaraderie which is a key element in professional firms. What is the relevance of the NextGen Lawyers in this task of rebuilding the Nigeria of our Dreams?
dreams but about their dreams. These kids need to be equipped and channeled to take up the mantle in the next few years. At SBL we are doing our bit by appointing younger people to Council and to Committee Exco's. For the first time since the inception of SBL we have a Council that has the Chair of the Young Lawyers Committee as a member of Council.
90 million of Nigerians out of How is the SBL Preparing her our 200 million population are members for thuis daunting Task below the age of 30. The ahead?
need Know-How – knowing how to use what you know. The task ahead is to train business lawyers on these two fronts, but we realize that knowledge and knowhow goes beyond just knowing the law and being able to advise clients. We think the other key skills sets are becoming more important and by these, I mean – entrepreneurship, marketing skills, understanding how to account for intangible services and price yourself properly. Lawyers need to learn how to
90 million of Nigerians out of our 200 million population are below the age of 30. The demographics therefore tells the story. Therefore, the future of Nigeria is not about our dreams but about their dreams. These kids need to be equipped and channeled to take up the mantle in the next few years. At SBL we are doing our bit by appointing younger people to Council and to Committee Exco's. For the first time since the inception of SBL we have a Council that has the Chair of the Young Lawyers Committee as a member of Council.
Does the legal technology of today deliver on its promised returns? Technology is doing its best under the circumstances, but I think a few things would be unfolded in the days to come to respond to the needs of the virtual workspace. What advise do you have for the Generation X who are now leading current revolution in Nigeria? First and foremost, I won’t use the word revolution because it sounds like there are problems with a class of Nigerians, and we need to revolt. Even if that exists, I think our minds should focus more on the transition than the revolution because the transition deals with everything. So young people should focus on getting an electoral law passed that makes it more difficult for votes not to count. People should be able to vote on their phones and thugs should see fewer ballot boxes to destroy. People should be guaranteed their voters cards as a constitutional right, not asked to go to local government head offices to push and shove with even no guarantee that their voters’ cards will be obtained. Once the electoral system works then the younger generation can peacefully see a transition to younger more responsive leadership. EndSars will end Sars if the people at the top do not understand or see Sars as a tool for their selfish interests during elections or to harass opponents. A 100 days at any bridge will yield no results. Go for the transition, not the revolution. If you want to protest then do so in relation to electoral reforms.
demographics therefore tells Our major equipping as get the best of their the story. Therefore, the future lawyers is knowledge – know relationships, particularly of Nigeria is not about our something. Beyond that we with clients. 78 | Esq Legal Practice
www.esq-law.com
www.esq-law.com
Esq Legal Practice | 79
Technology
FUNDAMENTALS OF THE
BLOCKCHAIN TECHNOLOGY Written by Oluwafemi Akinrefe
Recently, Facebook established a new financial technology company in Switzerland that focuses on blockchain.1 From all indications, it is observed that this is based on the introduction of another digital currency called Libra. According to Forbes, 28 member companies, including MasterCard, Visa, Lyft, Uber, and Spotify, etc supported this drive and they are expected to have 100 more companies on board this year (2020).2
T
his collaboration has boosted the publicity of blockchain technology in the financial industry. It is believed to have improved public trust in the blockchain. Blockchain which was first invented by a person (or group of people) using the name Satoshi Nakamoto in 2008 to serve as the public transaction ledger of the 1.
2.
3. 4. 5. 6.
cryptocurrency bitcoin,3 can be described as a growing list of records, called blocks, that are linked using cryptography, each block contains a cryptographic hash of the previous block, a timestamp, and transaction data.4 Blockchain is just a chain of blocks, but not in the traditional sense of those words; by the words “block” and “chain” in this context, we are talking about digital information (the “block”)
the world.6
Since its invention, many establishments have adopted it as the underpinning technology behind their operations and there are several examples of blockchain technology in stored in a public database practice, such as Bitcoin, (the “chain”). “Blocks” on the Ethereum, Mediachain Labs blockchain are made up of used by Spotify, TradeLens digital pieces of information.5 created by Maersk and IBM Blockchain is a digital ledger which secure exchange of based on a distributive information across the global network, the database is not supply chain, æternity managed by any particular blockchain platform, that can body (e.g. bank), instead, be used for many applications everyone in the network gets a requiring high-speed copy of the whole database. It transactions, The Matchpool is a fundamental technology platform incentivizes, etc.7 similar to the internet which was a similar foundational The fundamentals of technology that revolutionizes blockchain can best be
Brenna Hughes Neghaiwi, 'Facebook Created a Blockchain Company in Switzerland' (17 May 2019) < www.businessinsider.com/facebook-forms-swiss-fintech-firm-with-payments-focus-20195%3famp > accessed October 28, 2020. Bernard Marr, 'Facebook's Blockchain-Based Cryptocurrency Libra: Everything You Need To Know' (October 7, 2019) < www.forbes.com/sites/bernardmarr/2019/10/07/facebooks-blockchainbased-cryptocurrency-libra-everything-you-need-to-know/amp/ > Accessed October 28, 2020. The Economist, 'Blockchain: the great chain of being sure about things' 31 October 2015. Mrayanan and Arvind et al, 'Bitcoin and Cryptocurrency Technologies: A Comprehensive Introduction' (Princeton university press, 2016) 85. Blockchain explained (1 February 2020) < https://www.investopedia.com/terms/b/blockchain.asp > accessed October 7, 2020. Finmaestro, 'What is blockchain' ( 9 January 2018) < https://www.youtube.com/watch?reload=9&v=LWAYveDotb0 > accessed October 27, 2020.
80 | Esq Legal Practice
www.esq-law.com
understood via a simple illustration using the bitcoin blockchain technology. Traditionally, where two persons need to transact money, they will need a middle man or an intermediary called the bank, each party interact separately with the bank, but blockchain technology eliminates the need for a middle man or agency. Transactions in the blockchain like purchase and sale are stored in a record called ledger, this ledger is distributed to all the parties in the network called Nodes, hence this is called a distributive network. When a transaction takes place between two parties, this transaction is broadcasted to all the nodes within the network, all the nodes within the network need to approve this transaction for the purpose of entering it into the ledger. This creates two events, (1) bitcoin is generated (2) transaction is approved, bitcoin is received and the transaction is added to all available public ledgers. All transactions are stored in a public ledger and linked to the previous transaction. This creates an audit trail for the transaction and makes it irreversible. All transactions are transparent and publicly available and at the same time do not reveal the identity, these are possible with the help of a public key called a wallet, these wallets ensure transactions are pseudonymous, i.e. it is transparent yet privacy is ensured. It enables smart contracts, i.e. these 7. 8. 9. 10. 11. 12. 13. 14.
transactions are programmable in such a way that the terms of the contract can be programmed into the blockchain which can help trigger events based on the terms of the contract.8
entity, it is interlinked amongst all the members of the network which makes it less vulnerable to hacking.9
Transactions are Irreversible: Once data has been entered into the blockchain, it cannot Clearly, the above illustration be tampered with, it remains revealed the fundamentals of irreversible. This feature is invaluable to financial the blockchain technology institutes, in the sense that which are: figures can no longer be ž Distributed/ Decentralized manipulated. This is possible because of the cryptographic network hash function embedded in ž Transactions are the blockchain.10 irreversible ž Transparency ž Programmable Transactions Transparency: Blockchain is both public and (smart contract). yet ensure privacy, this is a unique feature many financial Distributed/ Decentralized institutions did not offer. Network: Before now, we were more When you transact it will be familiar with centralized public for everyone to see, services. An example of a however, your name will not centralized system is the be disclosed instead only your banks, you keep your money public address will be with them and the only way revealed which is a couple of you can transact with a third codes. This way everyone party is by going through the knows what is done.11 bank. However, the Programmable Transactions centralized system has a (smart contract): couple of vulnerabilities. Because they are centralized, You don't need to execute your transactions manually, all the data is stored in one imagine, you need to sell to spot, this makes them easy someone in a faraway place so target spots for potential hackers. In case of a software you agreed that once goods are delivered, the other party upgrade, it would halt the entire system since all data are should transfer you your money, what if you send the stored in the same location. What if the centralized entity goods and the other party refused to transfer your somehow shuts down for money? The blockchain is whatever reason? That way nobody will be able to access different, if you are to transact with someone, the blockchain the information that it possesses. This is not the case allows you to program the with blockchain, because it is terms of the contract into the decentralized the information network such that once a condition is fulfilled by a is not stored by one single
party the system executes the rest automatically.12 Finally, blockchain beyond cryptocurrency still has a lot of potentials we can explore to better our world, it can create a more efficient and prosperous world where people can connect with each other without the need for intermediaries. Companies can also utilize blockchain technology to provide a more transparent, trustworthy, and efficient service to the consumer.13 If you are a creator, you can connect with the buyers directly using a blockchain solution. If properly integrated into the current banking system, the financial world will completely change, take for example the Ethereum blockchain which can automate, secure, and operate an efficient process in the finance and banking sector, it will also optimize cost and digitize securities and other assets without increasing the cost required to manage them. It will make the government more transparent as the whole world can see how funds are being distributed. It will also impact the healthcare sector.14 In closing, if there is any action plan we can recommend in this article, it is that sectors should research to see how blockchain technology can be integrated into their system, once this is done, they should take immediate measures to implement same, not forgetting that the world as we know it is evolving, only organizations that know how to follow trends stays relevant.
PJ Surani, 'Blockchain in Action – 16 Inspirational Examples' (2019) < https://computerrock.com/blog/blockchain-in-action-16-inspirational-examples/ > accessed October 27, 2020. Ibid. Ameer Rosic, 'What is Blockchain Technology? A Step-by-Step Guide For Beginners' < https://blockgeeks.com/guides/what-is-blockchain-technology/ > accessed October 27, 2020. ibid Ibid ibid Nitish Singh, 'Blockchain Will Change The World' (19 January 2020) < www.101blockchains.com/blockchain-chnage-the-world/amp/ > accessed October 27, 2020. ibid
www.esq-law.com
Esq Legal Practice | 81
82 | Esq Legal Practice
www.esq-law.com
Famsville Solicitors is one the fastest growing commercial law firm in Nigeria. ESQ Team met with the partners of Famsville Solicitors and discussed the firm's practice and contributions to the development of commercial law practice in Nigeria. Can you tell us about Famsville Solicitors?
Famsville Solicitors have lawyers who have distinguished themselves in Famsville Solicitors is a fastdifferent practice areas and growing commercial law firm our lawyers have worked with and the firm's core business is international law firms, providing legal and advisory advised Fortune 500 services to both indigenous companies, multinational and international clients on companies, etc. and are innovative and complex experts in their various areas transactions. The firm has of practice. always been a partner to its clients and we do this by The firm has advised clients understanding our clients' across different sectors and commercial objectives has undertaken work for whether on a long or short public and private companies, term basis. corporate investors, governments, financial www.esq-law.com
institutions, foreign law firms and international consultancy firms. The firm is also growing its brand with a pan-African vision of setting up offices in major African metropolitan cities. What areas of law do the firm specializes in?
Real Estate and Construction Law, Corporate and Business Immigration, Company Secretarial and Regulatory Compliance, Intellectual Property, Maritime and Transportation, Dispute Resolution and Litigation, Corporate and Commercial Transaction, Investigation and White Collar, Government Relations and Compliance, Private Wealth Services and International Trade.
Famsville Solicitors is renowned for its expertise in various areas of practice. Our What are some of the expertise lies in the areas of achievements of the law firm in Labour and Employment Law, the last couple of years?
Esq Legal Practice | 83
court for an indigent client. The firm's partners have been consistently ranked in leading international legal directories including Who's Who Legal for three years consecutively 2018, 2019 and 2020 - for expertise in Labour & Employment, and Corporate Immigration practice in Nigeria as well as Real Estate and Construction Law. Chambers Global (via Nextlaw Referral Network), Legal 500 and Leaders league have also rated our work. During this period, the firm has also grown in size, which led to us relocating to an ultramodern office space in Ikoyi.
As a commercial law firm, how have the changes in the regulatory environment affected businesses in Nigeria? Regulatory changes are constant in any society and these changes can have both negative and positive impacts for businesses.
The recent amendment of the Financial Act and the increase of Value Added Tax (VAT) to 7.5% has led to an increase in the price of goods and services which will further increase the inflation rate (which already stands at over 11%). Furthermore, the rise in the By way of continuing legal inflation rate will further lead education and development of to a reduction in consumer young lawyers, the firm has purchasing power as VAT is been undertaking training for borne by the final consumer. young lawyers in some practice areas. The firm in This reduction in conjunction with Lagos consumption levels will Chambers of Commerce reduce the standard of living International Arbitration of the average Nigerian and Center (LACIA) organized a this will affect business in free training on growing the Nigeria. Instead of increasing export market and eliminating the tax rate, we rather expect trade barriers, dispute the government to expand the resolution mechanism under tax base, increase the tax net the AfCFTA to some young and improve and rationalize lawyers, private companies in public expenditure. the maritime sector and students who are interested in The government of Nigeria pursuing their careers in will need to continue to do maritime law and more in putting more transportation. This is our regulations that will quota towards continuing encourage a business-friendly education for young lawyers. environment most especially for Medium, Small and Medium Enterprises The firm through its lawyers (MSMEs). organized training for inhouse employees in private What are the contributions of the organizations and contributed firm to the development of law practice in Nigeria? towards moot competitions among young and budding lawyers in Nigeria. Famsville As a law firm, our contributions towards the Solicitors have also undertaken different pro-bono development of law practice matters in court. Recently, the in Nigeria can be seen through our collaboration with the firm secured an acquittal in 84 | Esq Legal Practice
Lagos Chamber of Commerce International Arbitration Center (LACIAC). Some of our work with the LACIAC has been on Maritime Business and Disputes. We have also leveraged this relationship by training and retraining lawyers. We have also developed the capacity of young lawyers through our work with the Africa Legal & Tech Network Summit. This is through the exploration of other emerging areas of law practice in Nigeria and across the African continent. Our lawyers have also been involved in notable cases at superior courts of record in some of our areas of practice, particularly labour and employment law. We have written articles in international law journals, international comparative guides, and online journals which serve as reference points for both Nigerian and international lawyers. Where do you see the law firm in the next ten years? With humble beginnings, Famsville Solicitors has grown from a small practice to a midsize practice within its short period of existence. We dream big and we desire that within the next decade, we'll actualise our vision of building a pan-African law firm by having a strong presence in at least two offices in 2 (two) targeted cities in Africa. With the recent disruption in the world, what is the law firm putting in place in doing business in the new normal?
As a dynamic law firm, we had to adapt to this change of doing business in the new normal. One of the proactive measures we took was to have a flexible working schedule for our lawyers before the first lockdown was announced by the Federal Government of Nigeria to enable them to work from home. Our policy was in line with international best practices and our lawyers only come to our office on an as-needed basis. Furthermore, to ensure that our business operations ran smoothly and communication between lawyers and clients was uninterrupted, we provided allowances and stipends to our lawyers. As a forward-looking firm, we've also taken advantage of emerging technological innovations in conducting client interviews and handling various tasks and instructions. What makes Famsville Solicitors different from other corporate and commercial law firms in Nigeria? Famsville Solicitors is distinct from other corporate and commercial law firms in Nigeria because of our work culture and collegial environment. We constantly drive every lawyer, regardless of the year of call, practice area or experience to have a sense of ownership in the law firm. Furthermore, our ethos of professionalism and reward for hard work is a unique aspect of our brand. Our lawyers can strive to own a stake in the law firm, by becoming owners and partners.
The recent outbreak of the COVID-19 pandemic has Lastly, our client-care skills affected the usual business have endeared us to both local activities of several industries. and international clients
www.esq-law.com
which have resulted in referrals based on the quality of work done. What does working in Famsville Solicitors feel like for the team, navigating the tension between work and life outside work? One of the basic tenets upon which Famsville Solicitor operates is flexibility and adaptability. We have built a strong team over the years and have a compassionate organisational culture. At Famsville Solicitors, we believe in the holistic wellbeing of our team members which drives them into putting their best at all times. For us, a healthy worklife balance brings out the best in our team members. We also encourage our team members to be open and innovative by providing suggestions as to how the work environment can be improved to help them thrive.
www.esq-law.com
Any advice for Nigerian lawyers in the post-pandemic world? The world has changed within the last few months and we might remain with the new normal for the foreseeable future. Therefore, my advice to Nigerian lawyers is to build capacity and acquire new skills that will make them invaluable assets and be futuristic in your approach towards practice to provide innovative solutions to the changing environment, postpandemic.
Esq Legal Practice | 85
Oil & Gas
LEGAL ISSUESIN THE OIL & GAS SECTOR
Since the discovery of oil and gas, most countries have recognized the economic and social 1 2 benefits and tend to benefit from it at all costs.
Written by: Azibasuam Lilian Afagha
O
wnership of oil and gas varies from one country to another. In the US, ownership is by private individuals, while in most European and African countries, the government has sole ownership and control of resources. National Oil companies are in most cases, established to regulate/manage the resources. In Nigeria, ownership is vested in the Federal Government, through the Nigerian National Petroleum Company (NNPC), as the major player in the 86 | Esq Legal Practice
industry, which partners with International Oil Companies (IOCs) through Joint Venture Agreements (JVAs) and Production Sharing Contracts (PSCs).3
obligations of IOCs. The contractual agreement poses an issue sometimes, as most IOCs have stated that some countries set up very strict laws, making it difficult for IOCs to explore for oil in these countries.
biodiversity, to health and safety risks. There is also a rise in oceanic transportation of oil and other hazardous products, causing spills in marine areas. This gave rise to the enactment of some rules and conventions to monitor The oil and gas industry is the activities.4 The Ogoni termed 'high risk and high communities and some other return' due to the risky and Safety, health, and environmental incidents are to Niger-Delta communities have complicated nature of the be taken into consideration as suffered the effects of oil spills mining and exploration well. This will be the focus of on their lands and rivers, process. As a result, most taking away their means of companies form Joint ventures this article. Various sectors depend on the products of oil livelihood and feeding, as this in order to share risks and and gas for their activities. has resulted in pollution, rewards. Some of the risks killing crops and sea animals.5 involved in the industry are as This has led to a massive exploration of the resources to Thorough clean up exercises follows; First, the issue of satisfy this need, thereby should be carried out to politics surrounding prevent pollution on land and ownership of oil and gas and exposing the citizens and www.esq-law.com
sea. If the proper approach is adopted, these issues can be avoided or controlled. Some countries adopt a performance-based regime, while others have adopted a prescriptive regime to regulate health and safety in the oil and gas sector. 'Performancebased approaches encourage operators to innovate mechanisms for enhancing occupational health and safety in the oil and gas industry, while prescriptive regimes call for compliance with the established laws, procedures, and guidelines on people's health and safety.’ Conclusion and Recommendation Safety issues have an impact
1.
2. 3. 4. 5. 6. 7. 8.
on the environment as well. Prevention is always better than response as it helps to manage risks. A response cannot give full restoration. Environmental Impact Assessment is necessary before any activity is carried out, to weigh the possible
impacts of such activities and responses to be put in place before it gets out of control. Countries need to establish laws that properly spell out health and safety procedures to be followed during mining and exploration activities, to protect the resources, lives, and environment from such issues. The legal provisions should be robust enough to cover grant of concessions, taxes, Joint Ventures, Health and safety, PSAs, Farm in and Farm outs, and local content, during the duration of exploration and exploitation.6
offenders/perpetrators brought to book. Regulatory and monitoring bodies should be set up to ensure that these laws are adhered to, to promote effectiveness. Where there is adherence, issues like Piper Alpha7 and Macondo (Deep Water Horizon) blowout8 can be prevented. Azibasuam is a virtual intern of Esq Legal Practice Magazine. She is a Nigerian Lawyer with LL.M in Oil & Gas Law from the University of Aberdeen.
It is not enough to only enact laws, there should be strict rules of compliance and
Eddy Lenusira Wifa, 'The Paradox of Plenty: An Analysis of the Environmental and Socio-economic Symptoms of the Resource Curse in the Niger Delta of Nigeria' in Ibibia Lucky Worika and Sylvester S. Popnen (edns.) The Challenge of Justice: Contemporary Essays in Honour of B.M Wifa OFR, SAN, DSSRS, KJW (Princeton & Associates Publishing Co. Ltd (2018) 576. Vivoda, V, 'Resource nationalism, bargaining and international oil companies: challenges and change in the new millennium', (2009) 14 New Political Economy 4 517-534. Oliver Omoredia, 'Taxation of Oil and Gas Companies in Nigeria: FAQs' (2019) <<https>>://www.linkedin.com/pulse/taxation-oil-gas-companies-faqs-oliver-omoredia/ http://www.imo.org/en/About/ Conventions/ListOfConventions/Pages/Default.aspx Oke, T., 'Financial crime prosecution, legal certainty, and exigency of policy: Case of Nigeria's EFCC' (2014). 21 Journal of Financial Crime 3 56-65. Pongsiri, N, 'Partnerships in oil and gas production-sharing contracts', (2004) 17 International Journal of Public Sector Management 5 431-442. Fiona Macleod and Stephen Richardson, 'Piper Alpha: The Disaster in Detail' (2018) 925/926 The Chemical Engineer. Goldenberg, Suzanne; MacAlister, Terry, 'BP Suspended from new US Federal Contracts Over Deepwater Disaster' ( 2012) The Guardian, London.
www.esq-law.com
Esq Legal Practice | 87
Car
FLYING CADILLAC: A BRIEF LOOK INTO THE LAW AND FLYING CARS Written by Adeyemi Owoade
flying cars. At a virtual event, Consumer Electronic Show(CES) 2021, GM displayed the designs of the Overview increased the speed of trains, GM recently announced its car. This has left us puzzled he accessibility of space bodies, plan to invest in flying cars. with the state of aviation industrialization and automation of goods The Vice President of GM regulation concerning flying era made delivery. Amid all these unveiled the design of the cars. It is important to know if transportation disruptions, auto-companies new vehicle, the flying to classify a flying car as an easier but the are looking ahead and trying Cadillac eVTOL. GM is joining aircraft under the definition of recent advancement in to solve issues of traffic and the league of other carmakers the extant aviation law technology is looking forward transportation of persons. by producing the flying car. frameworks or just take it as a to improving and giving the Now, cars are expected to fly Hyundai, Toyota, Fiat car that just can fly. world a reformed and to help commuters get to their Chrysler, and Porsche are the improved transportation locations as scheduled. carmakers who have dabbled system. This advancement has into the business of making
Transportation of goods and persons has been an indispensable part of human life since the beginning of the age.
T
88 | Esq Legal Practice
www.esq-law.com
Technical Components Of The Flying Car Before going into the regulations, it is important to know the component of a flying car. Let's take a cursory look at the technical structure of GM's flying Cadillac, eVTOL. According to reports, the flying Cadillac is “a luxury egg-shaped autonomous vehicle and a single-seater electric vertical takeoff and landing”. The vehicle lacks traditional vehicle control such as steering wheels and pedals. The flying Cadillac is an” all-electric, with a 90kWmotor, a GM Ultium battery pack, and an ultralightweight body with four pairs of rotors.” Also, the flying Cadillac “will be able to travel from urban rooftop to urban rooftop at speeds up to 55 miles per hour”. The interior looks more “like a 1970s-era sunken living room”. Michael Simcoe, GM's VP of Global Design, described it as “a social space for a group of friends or family to spend time together on their way to a destination.” The vehicle has a vertical light signature, expansive glass www.esq-law.com
roof, and biometric sensors to read passenger's vital signs and use that data to adjust settings like temperature, lighting, ambient noises, and even aromatics. Other options, like voice control and gesture recognition, will ensure making those adjustments mostly effortless.
What are the liabilities that can arise from the peculiarities? Let us take these issues one after the other.
specification of most flying cars, we can conclude that they are aircraft. This follows that the extant aviation laws can be applied.
Are Flying Cars Aircraft?
The Chicago Convention does not define the term “aircraft”. However, Annex 7 defines aircraft as “Any machine that can derive support in the Aviation Laws And Flying Cars Several issues are arising from atmosphere from the reactions the invention of flying cars. of the air other than the Are flying cars under the reactions of the air against the proper definition of aircraft? earth's surface." From the
Recently, Terrafugia's TF-X got an approval from the Federal Aviation Administration (FAA) and the National Highway Traffic and Safety Administration (NHTSA) with respect to the classification of its current model (the Transition) as light-sport aircraft and the Esq Legal Practice | 89
right to deviate from standard automobile materials. Also, the FAA has awarded SkyRunner the Special LightSport Aircraft Certificate.
autonomous aircraft might not meet up with the requirement of a licensed pilot except it can be well proven that they are controlled by seasoned pilots remotely. For now it is Some scholars have argued established that most that there may be other issues regulations, in the countries where flying cars are arising from flying cars, that may require proper legislation recognized, provide that the pilot, whether physical or and regulations. remotely must be licensed and Licensing certified to fly an aircraft. “Some flying cars don't Most of the aviation laws require a pilot's license or provide that aircraft has a require registration with the licensed pilot manning it. An Federal Aviation
90 | Esq Legal Practice
Administration. However, the only type of flying cars that don't require this to operate them are ultralights which weigh under 254 pounds not including safety features”.
management system for the aviation industry which covers the designers and producers of aircraft. As an aircraft, it is expected that flying cars service providers comply with this.
Safety and Accident Liabilities ICAO's Safety Management Manual Fourth Edition, 2018(Doc 9859), compels airlines and air service providers to implement a safety management system. Annex 19 to the Chicago Convention, sets out the safety
There are possibilities of flying cars crashing due to operational failure or any other error. Who will bear the liabilities for the damages? Scholars have opined that the liability should be borne by the company providing services of lifting passengers
www.esq-law.com
in a flying car. Liabilities can be on a negligent pilot.
especially the automated ones, will be based on movement of data. Article 7 of the Safety It is noted that motor vehicle Management Manual, fourth edition, recognises the insurance or aviation insurance may not be the best gathering of safety data which can be used to ensure safety of for flying cars. There should be a properly drafted and well passengers. In gathering such considered insurance cover for data, the manual recommends protection of such safety data flying car service providers and certain information and and passengers. recordings. It, however, places the responsibility of protection Cyber Security and Data Privacy of safety data in the hands of the state. It provides that the It is necessary to note that the state must ensure that movement of a flying car, organizations report, analyse,
www.esq-law.com
and correct deficiencies.
can not be fought but can be well regulated to ensure It is therefore important to compliance with safety and ensure that such facilities legal standards. The connected to the flying cars regulation of flying cars is are well secured to prevent important, and it should not hackers from taking control of just be seen as a regular the facilities. Cybersecurity's aircraft. It is suggested that best policies must be put in such be properly regulated place in addition to through legislations that will information security facilities. cater for its peculiarities. Data breach must be prevented as a lot of data will be gathered from passengers of flying cars. Conclusion Innovation in transportation
Esq Legal Practice | 91
Energy
LIMITATIONS IN THE
NIGERIAN ENERGY SECTOR Azibasuam Lilian Afagha
The most noticeable implication of contemporaneity and the recent technological developments that have been made available for ease of ”modern-day” living is the unending need for energy for the day to day life and activities of mankind. Statistics show that the world consumed approximately 17.4 Terawatts of electricity in 2015.1
T
his energy was used in various life-sustaining activities such as feeding, communication, transportation, and medical purposes and derived from a combination of renewable and non-renewable sources. The continuous development towards the use of renewable energy sources in Nigeria has long been driven by the need to maintain the sustainability of conventional energy sources and the systemic failure that has plagued their utilization.2 This article briefly 1. 2. 3. 4.
describes the Nigerian energy sector and the factors limiting the sector from the proper utilization of its resources to provide affordable and constant energy to its citizens.
can be generated if the right resources are made available. Oniemola stated in his work that, 'the effective utilisation of energy in any country is governed by the existence of comprehensive and coherent THE NIGERIAN ENERGY SECTOR legal frameworks'3. This is necessary for a region like Nigeria is blessed with Nigeria where systemic numerous renewable energy failures in the energy sector sources, including are endemic and interrupt hydroelectric, wind, tidal, access to energy. The biomass, and solar resources. importance of affordable It generates about 4,000 sources of energy cannot be megawatts of power from over-emphasised in a plants within the country. It developing country like has been recorded that over Nigeria. Affordability of 12,000 megawatts of power energy for a large population,
such as Nigeria, remains one of the prerequisites for economic development and also is a necessary factor for the development of a country.4 Oyedepo, et al adopted the notion that the uses of renewable energy sources date back to ancient times. However, the reemergence and the importance that come with these sources and the energy gotten there-from are traceable to the fact that the burning of fossil fuels from which a larger percentage of the world's energy is derived leads to the production of
Seger, B, Global Consumption: The numbers for now and the future (2016), 2 Ojo, OV, An overview of the legal and regulatory framework for renewable energy projects in Nigeria: Challenges and prospects (2017), 1,1, 23 Oniemola, PK, Legal response to support renewable energy in China (2015), 32, 179. Clayton, Christensen, Efosa, Ojomo and Karen, Dillon, The Prosperity Paradox: How innovation can lift nations out of poverty (Harper Collins, 2018), 20.
92 | Esq Legal Practice
www.esq-law.com
The right infrastructure needs to be put in place to afford sustainability. However, the problem remains that a poor implementation system for the legal framework guiding the utilisation of energy resources will always lead to systemic failures with drastic implications for economic development. inability to meet the high tariff demands will cripple the economy of the country if not properly addressed speedily. The country's economic development is largely dependent on energy that is easily accessible, affordable, and environment friendly.
maintenance, no manufacturing capabilities, inability to convert gas flares to a source of electricity.12
In conclusion, it is not far from the truth that Nigeria is blessed with abundant natural resources. However, the increasing demand, yet an Various reports have been inadequate supply of energy carried out showing that can lead to a crippling Nigeria has the opportunity to economy. The right transform wind energy into infrastructure needs to be put electricity, especially in the in place to afford northern part of the country.9 sustainability. As important as However, there is a lack of the emergence and resources to harvest the said sustainability of a system that energy. The lack of favours the present situation, management and proper distribution and development has equally utilisation of affordable created a gap in supply and energy, is the provision of demand in the energy sector.10 workable laws and regulatory frameworks. However, the Energy consumed in Nigeria problem remains that a poor is said to be very little, about implementation system for the one-sixth of what is used in legal framework guiding the developed countries, and is a utilisation of energy resources result of the poverty situation will always lead to systemic greenhouse gas emissions sector is facing. This will in the country.11 More than failures with drastic (GHG) which consequentially enable the country to avoid 70% of those in rural areas implications for economic leads to global warming,5.6 waste of energy and thereby depend on fuelwood. This is development,13.14 save up to improve the sector, the major effect of LIMITATIONS thereby developing the deforestation in the country, To properly harness the country.7 Only recently, the leading to erosion in the country's energy resources, Lack of diversification of the Nigerian government southern and desertification in there is a need to develop energy sources in domestic, increased the energy tariffs,8 the northern part of the manpower to provide industrial, and commercial leading to an outcry by the country. equipment and spare parts for sectors and no access to citizens. The cost of living is production and to ensure modern technologies to generally very high in Nigeria. Another limitation facing the proper maintenance. The properly transform energy to This will only worsen the energy sector is the failure to provision of an information electricity for more people to situation and make life utilize the energy plants system on energy resources is have access, are some of the unbearable for the citizens, across the country and this is also a requirement. issues the Nigerian energy especially the lower class. The as a result of lack of 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
Oyedepo, SO, Energy and sustainable development in Nigeria: The way forward (2012), 2, 1, 3. Emodi, NV and Ebele, NE, Policies enhancing renewable energy development and implications for Nigeria (2016), 11 energsustainsoc.biomedcentral.com/articles/10.1186/2192-0567-2-15 https://punchng.com/breaking-electricity-tariff-increase-takes-effect-sept-1-nerc-disco/ Ngala et al, “Viability of Wind Energy as a Power Generation source in Maiduguri, Borno State, Nigeria.” (2007) 32 Renewable Energy 2007 13 Okafor ECN, 'Challenges to Development of Renewable Energy for Electric Power Sector in Nigeria.' (2010) 2 International Journal of Academic Research 2 211-216 energsustainsoc.biomedcentral.com/articles/10.1186/2192-0567-2-15 Emeka E.E., 'Causality Analysis of Nigerian Electricity Consumption and Economic Growth' (2010) Journal of Economics and Engineering 80-85 Ajayi, OO and Ajayi, OO, Nigeria's energy policy: Inferences, analysis and legal ethics toward RE development (2013), 60, 62 Heffron, RJ and Talus, K, The development of energy law in the 21st century: A paradigm shift (2016), 6
www.esq-law.com
Esq Legal Practice | 93
SEGUN OSUNTOKUN THE BLACK-BRITISH SUPER LAWYER
BOOK KEEPING FOR LAW FIRMS
LEGAL PRACTICE
A HAVEN OF INNOVATIVE LEGAL SOLUTIONS N1000 $3.85 £3.12 F I N A N C E M A R K E T I N G M A N A G E M E N T T E C H N O L O G Y S P O R T S L I F E S T Y L E