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BUSINESS DAY
C002D5556
LegalPerspectives
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Odunayo Oyasiji
Laches and acquiescence
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people in a scenario that a person unnecessarily and unreasonably sleeps on his right. If he wakes up after the delay to seek redress when things have changed in such a way that granting the relief sort will effect a level of injustice on the defendant then the plaintiff (person that slept on his right) will be denied of the reliefs sought. Never sleep on your right, act fast before it is too late.
Laches
aches means unreasonable delay. Such delay can be in the area of pursuing a right or claim and such delay can lead to the granting of a claim that is brought after the delay to be inequitable. The doctrine of laches in a way bars or prevents a person from getting the relief sought as the delay in seeking the relief cannot be justified. It is usually invoked as a defence in civil matters. This defence is based on the maxim that the law helps the vigilant and not the indolent. Therefore, laches is a form of punishment for someone that sleeps on his right for too long to the extent that the situation changed and granting reliefs against the defendant will amount to a form of injustice. Furthermore, the person relying on the defence of laches usually show that the plaintiff knows that his or her right has been trampled on and yet refuses to take steps quickly to address it or seek redress. To be successful under this claim
a person must show that there is a delay in seeking a redress and the delay must be an unreasonable one. Also, the defendant must either show that the plaintiff acquiesced
to what he is complaining about or that the there will be prejudice to the defendant. The implication of this is that this doctrine is available to protect
Acquiescence This is a common law principle. It has to do with a situation where a person permits his civil right to be infringed or trampled on, he cannot later claim against the person who infringed on his right. Acquiescence can be in different forms. It can be in an implied form where the party whose right was infringed does nothing about it for a long time and thereby behaving in a way as if he or she agrees to the infringement. However, if the failure to take steps is due to some other reasons like lack of resources
Legal implication of Hostile takeover of companies not replying business correspondence that requires response
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n business, parties communicate on important matters through letters. However, while some letters require the party to whom it is addressed to reply others may not. An example of a letter that may not require a response is a general letter showing services rendered by another organisation. On the other hand, it is extremely important to reply to sensitive business letters that requires that denial, acceptance or an expression of the company’s position on business issues. Failure to reply to such letter automatically amounts to an admission of the statements in the letter. The above position has been established in various cases in Nigeria. Therefore, it is an unpardonable offence under the law as the law will deem the statements in the letter admitted. In the case of Trade Bank Plc v Chami (2003) 13 NWLR pt.836, pg.216.- Salami JCA stated that “The defendant in this case did not answer the letter and the failure or neglect to answer such a letter in the circumstance is tantamount to an admission of the assertion in it. The letter was not a social but business letter. While social correspondence may be ignored business letters deserve to be answered. The failure or neglect of the defendant to reply or answer the letter is amounts to an admission because what is asserted in the letter and is not denied is deemed admitted.” In the matter, the bank wrote a demand letter to the defendant and he refused to answer. The Court of Appeal held that the failure to answer the letter amounts to an admission of its content.
ompanies are essential legal personalities through which trade and businesses are being run. A company can either be private or public. The concept of takeover applies to the latter. It has been said that a takeover can either be a friendly one or a hostile one. A friendly takeover is where the both firms come into an agreement on the terms of the takeover while hostile takeover is done without the knowledge of the management/ board of the target company. Hostile takeover happens when the control of a company is being acquired through the backdoor.
What could be responsible for the non-occurrence of Hostile Takeover in Nigeria? The position of things in Nigeria is best illustrated through the statement made by Ecobank Chairman in 2015 when the news about the likelihood of a hostile takeover of the bank was making rounds. He said “The fears are genuine. This is related to past events where debts were converted to equity and in the process, their shares were diluted. But that process has stopped. Right now, the decision of the board is that any further share increase would be by rights issue… in the past we have had shareholders that tried to take over the bank and they have failed and I can assure you that we do not think that the regulatory bodies in Africa will be silent to see such a thing happen”.
Friday 23 November 2018
The implication of the statement quoted above is that asides the fact that the management/ board of the target company will naturally be against a hostile takeover, the regulatory bodies within the country are also likely to frustrate such effort. A very recent example of the stance of regulatory bodies to hostile takeover in Nigeria is the case of 13 commercial banks that wanted to takeover Etisalat because of its heavy indebtedness to them. Both the Central Bank of Nigeria and Nigerian Communications Commission vehemently opposed the move by the banks. There are laws regulating companies in Nigeria. Example of such laws are- The Investment
and Securities Act, The Companies and Allied Matters Act, The Nigerian Stock Exchange Rule Book and The Securities and Exchange Commission Rules. There are also laws that applies to specific industries and which have effects on the acquisition of interest in such a companyThe Banks and Other Financial Institutions Act, The Nigerian Communication Commission Act, The Electric Power Sector Reform Act, The Insurance Act, The National Broadcasting Commission Act and others. Some of the above listed laws and regulations have provisions that are likely to frustrate a hostile takeover (especially since regulators tend to take a negative stance to hostile takeover). In the Power Sector,
then they can make a claim later in future. It must be noted that it is the duty of the party relying on it for defence to show that the failure to take steps was deliberate and that the party has conducted himself in a way that shows approval. Another type of acquiescence is a situation where the affected party (the person whose right has been infringed) expressly communicates his approval of same to the party infringing on his right and that no action will be taken. This can be verbal or in writing. He will not be permitted to turn around and make a claim against the party that infringed on his right. The above shows that a party whose right is being trampled on must be careful of giving approval either expressly or by conduct if they do not mean to do so. This is because it may be difficult to later make a claim on the basis of such infringement later except if exceptional circumstances can be shown to the court.
it is required that notification should be given to the Nigerian Electricity Regulation Commission for the acquisition of 5% of the shares of a licensee. Also, the Commission must first approve of any acquisition that will change the ownership status of a licensee. In the telecommunications sector, the consent of the Nigerian Communications Commission must first be sort and obtained before anybody can acquire 10% of the shares of a licenced telecommunications company in Nigeria. The Investment and Securities Act places a heavy burden on a person that wishes to takeover a company. The law requires a high level of disclosure from a person bidding to takeover- i.e. the identity of the person bidding, the source of the fund, existing interest in the company, the number of shares the person wants to acquire etc. The approval of the commission must first be obtained before making a takeover bid. It can be said that the type of bid the act is talking about here tends to tilt more towards a friendly takeover. Notwithstanding, since there is need for a prior consent of the commission and coupled with the anti-takeover approach of regulators there is a high possibility that such takeover bid may end up being frustrated. It is safe to say that there is no legal framework in Nigeria that supports a hostile takeover. Therefore, if anything of such is going to happen in Nigeria it will likely end up as a friendly negotiation.