LET’S CLEAR SOME AIR AROUND WRITING WILLS!

DOES MAKING A WILL ANTICIPATE DEATH?

Apparently, walking up to an average Nigerian and asking them if they have a will can cause an uproar. The thought of you wishing them death is the next thing that pops up on their minds. Whereas, having a will does not mean you’re increasing your susceptibility towards mortality, it just simply means you love your loved ones enough to administer how your properties should be disposed without them plunging them into a sea of decisions that you could have made for them. 

A person who dies without making a will is said to have died intestate. And this has caused more harm than good in most families, there have been cases where the authenticity of a will was questioned, how much more where there is none. 

This is the very point the need for a will arises. One of the reasons to have a will is that it confers on a person the sole right to determine how they want their property to be administered, or how they want to be buried.

WHAT IS A WILL?

A will is a legal document in which an individual known as the Testator declares how they would like their assets to be distributed after demise. Individuals designated to receive any of the properties of a testator are called Beneficiaries, while individuals designated to administer or execute the desires of the testator as written in the will are called Executors

WHAT IS CONTAINED IN A WILL?

A will helps to determine person(s) who will be executors, persons who will be beneficiaries to the testator’s assets and in cases of minors, invalids or aged; persons who will be guardians for any minor or dependents. 

It also helps to administer some special properties like insurance policies, retirement accounts, shares or stock, etc. 

CAN A WILL BE AMENDED?

A lot of people come up with clauses like: ‘’I am still young, if I make a will now can it be amended in later circumstances’’. Oh Yes! A will can be amended, this can be done either by making a new will or by amending the earlier made. This amendment is what is referred to as CODICIL in law. 

HOW CAN WE DETERMINE THE VALIDITY OF A WILL?

  1. It must be written.
  2. The testator must have attained the age of 18.
  3. The testator must be of sound mind.
  4. The signature of the testator must be appended on the will in the presence of witnesses.
  5. Such will must not be written or made under duress or undue influence.

CAN A WILL BE UNWRITTEN?

A will does not always have to be in writing, it could be in oral, this is usually referred to as NUNCUPATIVE or DEATH-BED WILL. It is a will that is spoken to witnesses but not written. Such wills are valid only in a few states and only in very limited and unusual circumstances. This is because memories fade and information not written down can easily be forgotten, added to, removed from, or totally changed.

DOES A TESTATOR NECESSARILY HAVE TO ATTAIN THE AGE OF 18 YEARS?

This does not apply in all cases, members of the Armed Forces and Naval Officers do not necessarily have to attain the age of 18 years to make will.

WHO SHOULD BE AN EXECUTOR?

An executor is an individual inferred in law as a person in Fiduciary (trust based) Relationship with the testator. He is to act in good faith in carrying out his duties to the testator and beneficiaries. Such individuals may be trusted friends or relatives, spouse of the testator, a child or any adult whom the testator finds trustworthy and reliable.

However, it is always better to have a lawyer as an executor. An executor must ensure that the testator’s wishes under the will are carried out to the letters. 

WHERE IS MY WILL SAFE?

  • At the probates registry of your state.
  • With Your lawyer.
  • At the bank.
  • Safety Deposit box: Never store your will in a safety deposit box unless someone else has access to it.
  • In your home: Make sure it’s safe from water and fire.

However, wherever you choose to keep your will should be known and easily accessible to your executors.

The very importance of a will cannot be over emphasized, it doesn’t mean you wish yourself death, it’s just a means of taking charge of your “life” even when you’re no more. Would you like to talk to a lawyer about your will? Click here

ROLE OF LAWYERS IN BUSINESS TO BUSINESS (B2B) TRANSACTIONS OR RELATIONSHIPS

The functions of a lawyer cut across various aspects of the society, varying from social to business to economic and even family Institution. However, the society seems oblivious to this fact. Before delving into the nitty-gritty of this topic, it is important to explain what a Business to Business (B2B) transactions entail.

A B2B transaction is a form of transaction where one business makes a commercial transaction with another such as one involving a manufacturer & a wholesaler or a wholesaler & a retailer. B2B transactions would naturally occur in a supply chain, where one company may purchase raw materials from another to be used in their manufacturing process. This type of transaction is normal in many industries such as auto-mobile, tech, construction, healthcare, food and beverage, real estate, engineering, education, etc.

Some examples might be where an eatery consults with an independent baker for regular supply of cakes for sale in the eatery or where an auto mobile company purchases parts like tires, batteries, and other electronics from various companies and in turn assembles them into a whole car, or even where a hospital consults a drug producing company for regular supply of drugs and other medical equipment needed for their own smooth day-to-day running.

In summary, B2B Transactions are a special kind of Partnership between a company and another in order to satisfy each other’s goal and interests and in arrangements like these, a lawyer’s skills and advice would be of utmost importance in all transactions that transpire between these companies.

For every kind of transaction or contract a business or person engages in, certain documents must be signed as evidence of the transaction, stating all its terms. Lawyers are armed with the knowledge of preparing different types of documents in business transactions and only they, are able to determine the type of documents that must be prepared for a specific business transaction.

A lawyer would put in place a strong functional legal structure that takes care of his client’s rights and obligations. In other words, involving a lawyer in B2B transactions should not be compromised or overlooked, as those documents may at the end of the day be your safety net or what may protect you from losing your investment.

A lawyer’s role in B2B transactions includes but not limited to: 

  1. Preparation of Partnership Deed for the parties, if it is a full-fledged partnership. In preparing this Partnership Deed, the lawyer considers nature of the business, share capital or financial capacity of each company, its shareholders, credit worthiness of the companies, mode of sharing profit and loss, Dispute Resolution Mechanisms that must be employed in case of disputes, etc.
  2. Examination and interpretation of clauses and ambiguous words contained in the agreement brought forward by the other party in order to ensure his client’s interest is properly secured and not exploited in any way. Where necessary introduce a lawyer may introduce new clauses in favor of his client into the agreement or he may entirely condemn the agreement as practically impossible for his client to fulfil.
  3. Provision of advisory functions.
  4. Ensures legal compliance of his client to not only regulations stated out by the law but also maintenance of standard required by the regulatory bodies in charge of the sector.
  5. Performs Post Partnership Agreement duties.
  6. In instances where disputes arise, a lawyer employs the best Dispute Resolution Mechanism that minimizes damage and not in any way adverse to his client.

Finally, these and many more are the roles of a lawyer in a Business-to-Business transactions and an experienced corporate lawyer will be able to lend his expertise to ensure that all Business transactions are done legitimately and in the interest of parties, especially ensuring that his client’s interest are duly secured.

Do not allow yourself to be exploited. Contact a lawyer today to help you take legal care of all your transactions. If you need to talk to a business lawyer, click here

WILLS: DEFINITION AND EXPLANATION

Aluko Adeyemi & Associates – Wills

Imagine that in an average Nigerian home today, a 40 year old man informs his 35 year old wife that he was going to see his lawyer to write his will, the following conversation will be the likely aftermath of that information.

Wife:  Are you sure you’re okay?

Man: Of course, I am.

Wife: Are you suffering from any ailment you’re not telling me? Do you have another woman or child outside this marriage? Have you started hiding things from me?

Man:  I do really appreciate your concern, but I am hale and hearty. I just believe it’s appropriate one makes a will in the same way one would give their business a structure and register their business with Corporate Affairs Commission.

Continue reading “WILLS: DEFINITION AND EXPLANATION”

BRIEF EXPLANATION OF THE PENSION REFORM ACT 2014: FOR SMEs AND MSMEs

The Pension Reform Act 2014, which repealed the Pension Reform Act No. 2 of 2004 (repealed Act) was signed into Law on 1st day of July, 2014. The Pension Reform Act governs and regulates the administration of the contributory pension scheme for both public and private sectors in Nigeria.

The crux of the Act is to encourage participation in the Contributory Pension Scheme. The Scheme applies to two categories of employees, which are – all employees in the public sector and employees of private organizations in which there are 15 or more employees.

Continue reading “BRIEF EXPLANATION OF THE PENSION REFORM ACT 2014: FOR SMEs AND MSMEs”

BRIEF BREAKDOWN OF THE NATIONAL HOUSING FUND ACT

National Housing Fund (NHF) established by the NHF Act of 1992 is a Federal Government scheme, which entitles all Nigerians above the age of 21 years in paid employment to a government funded loan with low interest. The National Housing Fund was created by the Federal Government to cater for the housing needs of the Nigerian citizenry.

Continue reading “BRIEF BREAKDOWN OF THE NATIONAL HOUSING FUND ACT”

SHORT ANALYSES OF THE EMPLOYEE COMPENSATION ACT, 2010.

The Employee Compensation Act, 2010 (the Act) is the extant law governing the payment of compensation to all employees both in the public and private sector except members of the armed forces. It mandates all employers to contribute 1% of the total monthly payroll into the compensation fund and entitles all employees to claim compensation for occupational diseases and injuries sustained from an accident at the workplace or during employment.

The law places a primary responsibility on the employer to provide good working conditions for their employees, and this ranges from providing a healthy and safe environment to provision of safety equipment, etc.

To further ensure that such responsibility is met, this Act provides remedies enforceable against the employer for certain injuries or diseases sustained during employment and at the workplace.

It is pertinent to note that an employee has been defined by section 73 of the Employee Compensation Act to be “a person employed by the employer under oral or written contract of employment whether on continuous, part-time, temporary, apprenticeship, or casual basis and also includes domestic servants who is not a member of the family of the employer including persons employed in any federal, state or local government or their agencies or any formal or informal sector of the economy.”

Thus, any person who comes under this definition can claim compensation under the Act.

The crux of this write-up therefore, is to analyze compensation for workplace injury for employees in Nigeria.

REMEDY FOR WORK PLACE INJURY:

Generally, there are two remedies available to an employee for a workplace injury. These are:

  1. Application for Compensation under the Employee Compensation Act, 2010
  2. Civil action against the employer at the National Industrial Court of Nigeria.
  1. Application for Compensation under the Employee Compensation Act, 2010:

Some of the injuries for which an employee may apply for compensation under this Act include;

  1. Disabling injuries arising out of or in the course of employment. This also includes injuries that prevent an employee from earning full remuneration at the workplace. Compensation in this situation is payable from the first working day after the injury.
  2. Accidents sustained between the place of work and the employee’s primary or secondary residence, where he/she usually takes meals and places where he/she receives remuneration, provided the employer has prior knowledge of such.
  1. Injuries or diseases sustained during employment. Unless contrary can be proved, it is presumed to have occurred during employment. This also includes injuries superimposed on an already existing disability.
  1. Mental stress which can be an acute reaction to a sudden reaction or unexpected event during the course of employment or a diagnosis of a medical practitioner that it arose from the nature of the work or event related to the work. Such can also arise for changing working conditions that unfairly exceed the working ability and capacity of the employee.  
  1. Occupational diseases that disable the employee from earning full remuneration, cause death, arising from the nature of the employment which entitle the employee to compensation and health care benefits.
  1. Hearing impairments of non-traumatic origin arising out of or in the course of employment and impairment superimposed on existing hearing impairment. The extent of the hearing impairment determines the compensation to be paid and this is decided by the Board in consultation with the National Council for Occupational Safety and Health (NCOHS).
  1. Injury arising outside the normal/usual workplace if the job requires the employee, or the employee has the authority of the employer to work outside the normal workplace. 

Procedure for Applying for Compensation

This is a simple procedure governed by Sections 4, 5 and 6 of the Act. They provide thus:

  1. Notification of Injury: The Employee or his dependent in the case of death shall first notify the Employer, manager, supervisor or any other appropriate representative of the employer of the injury or occupational disease within 14 days of the occurrence or receipt of the notification of the occurrence stating the name of the employee, time and place of occurrence, nature and cause of the disease, if known. The employer may further request for particulars of the injury or disease on a form prescribed by the Board.
  1. Employer’s Obligation to Report to the Board: The Employer is also required to report to the Board and the nearest NCOHS within 7 days of the occurrence of the injury or death or within 7 days of receiving the notification of injury and shall state the name of the employee, time and place of death, injury or disease, nature of injury or death, name and address of accredited specialist that attended to the employee, and any other information required by the board.
  1. Application for Compensation to the Board (Nigeria Social Insurance Trust Fund Management Board): This is made in the form prescribed by the board and signed by either the employee or his dependent and must be made within 1 year of the occurrence of the injury or death. Compensation shall not be made if the application is not made within the time frame unless special circumstances exist, then the time frame can be extended to 3 years. For a person claiming compensation for hearing impairment, his application must be accompanied with:
  1. Report of a medical practitioner who specializes in such field accredited by the Board
  2. An audiogram and a report by the employer of the working environment of the employee
  3. Any other evidence as may be requested by the Board from time to time.

It must be noted that an employee cannot waive his right to compensation to which he or his dependents may become entitled. Furthermore, while an employer is mandated to contribute 1% of the annual payroll to the compensation fund, the employer cannot either directly or indirectly deduct from the remuneration of the employee any sum the employer is liable to pay to the fund. The Act further considers as an offence the contravention of its provisions.

  1. Commencing civil action against the employer at the National Industrial Court of Nigeria:

The appropriate court to institute any action that borders on employer/employee relations is the National Industrial Court of Nigeria.

By virtue of Section 254(c) of the 1999 Constitution (as amended), the National Industrial Court has the jurisdiction to entertain matters pertaining to employment, Labour, matters arising from the workplace, conditions of service, the welfare of employees and other related matters. The employee can through a legal practitioner commence an action wherein the facts are pleaded, and damages are claimed in respect of the injury sustained.

There have been several cases such as Registered Trustees of Winners Chapel v. Ikenna (2018) LPELR-45767 (CA) among many others where employees have successfully instituted civil actions for injuries caused during employment against their employers.

In conclusion therefore, it is important for employees on one hand to be aware of the remedies available to them in the event of a workplace injury and employers on the other hand to be aware of the financial liability placed on them by the law in the event of workplace injury so they can strive to provide safe working conditions to avoid liabilities.

TRADE UNIONS IN NIGERIA PART 2 (SERIES)

THE PROPRIETY OR OTHERWISE OF EMPLOYERS PREVENTING THEIR EMPLOYEES FROM FORMING OR JOINING TRADE UNIONS

Aluko Adeyemi & Associates – Trade Unions in Nigeria

Section 40 of the 1999 Constitution of the Federal Republic of Nigeria made provision for citizens’ freedom to assemble and associate with other persons, and in particular to join and form associations for the protection of their rights. Therefore, it is illegal to prevent employees from joining trade unions and other Labour associations. As, no employment contract can prevent workers from joining trade unions.

An employer cannot discriminate against a person either by refusing them employment, treating them unjustly or dismissing them for joining a trade union. Neither do employers have any right to influence or restrict an employee’s choice of trade union. Trade unions serve as the major level playground where workers are able to take part in decisions that concern their welfare, working terms and condition at the work place, thereby getting their interest protected.

Note that: Certain government organizations like the Military/paramilitary bodies and some others are not permitted to form unions. Likewise, young workers under the age of sixteen may not join a union, as they lack the legal capacity to do so.

REGISTRATION OF TRADE UNION

For a trade Union to legally exist, function and be recognized by the law, it must be duly registered with the necessary statutory body through an application to the Registrar of Trade Union, which must be signed by at least fifty (50) members in the case of a trade union of employees, and at least two (2) members in the case of a trade union of employers. They must also have registered rules, which are known as the Union’s Constitution. The constitution should expressly spell out the following information amongst others:

  1. The name of the trade union
  2. The objectives of the trade union
  3. The purpose to which the general funds of the trade union will be applied
  4. A list of the members of the trade union and adequate provision for the inspection of said list by the officials and members of the trade union
  5. The payment of subscription by members of the trade union
  6. The manner in which the rules will be amended, varied and/or repealed
  7. The manner in which the members of the executives and the other officials of the trade union will be appointed and removed.
  8. The manner in which the funds of the trade union will be kept and audited
  9. The manner in which inspection of books of accounts by the officials and members of the trade union will be made
  10. The conditions under which any member will be entitled to have benefits under the rules, and under which fine will be imposed on the members
  11. The manner in which the trade union will be dissolved.
Aluko Adeyemi & Associates – Trade Unions in Nigeria

Other documents to accompany the application for registration as required by the Registrar are as follows:

  1. Two (2) copies of the association’s constitution/registered rules.
  2. Minutes of general meeting where the decision to register the union was taken.
  3. List of attendants with signatures, address, age and occupation of each of the persons by whom the application is signed.
  4. List of the association’s officials with official title, address, age, and occupation of each official.
  5. Duly completed form from the registrar of trade unions with the required registration fee.

Furthermore, a recommendation of the application is made to the Honourable minister for his approval, after ensuring that the application and rules of the proposed union have been satisfied. Thereafter, a publication is made in the federal government’s official gazette for a period of three (3) months. Objection can be made in writing to the registrar of trade union during this 3 month period.

Where there is no objection or where the objections are baseless, the trade union is duly registered by the Registrar of trade unions and a certificate of registration is issued to the union, as a duly registered trade union. But, where there is/are credible objection, the registrar will send a notice to the applicants to that effect for necessary actions to be made as the case maybe.

However, in the case of a refusal to register the trade union, the registrar will send a notice to the applicants stating the grounds of refusal, and the period within which the time for appealing against the refusal is to run. The registrar will also publish same in the federal gazette. An appeal against the refusal can be brought by any official or member of the union to the appropriate court within a period of thirty (30) days beginning with the date stated in the notice

After registration, a trade union becomes a corporate body, having perpetual succession and a common seal. It can contract and own properties, sue and be sued in its registered name, and do all such things permissible under our extant laws to be done by a body corporate. The trade union therefore becomes a legal entity distinct from its members.

TRADE UNIONS IN NIGERIA (series)

A trade union is an organized association of workers or employers from related fields – trades, profession or industry, who come together for the purpose of protecting its members against exploitation by their employers or supervisory or regulatory bodies, and ensuring the maintenance and improvement of their collective interests. Such collective interests include, but not limited to, their wages, working terms and conditions, their rights, policies relating to health and safety, maternity and work, gender related issues, sexual harassment, forced labour, and minimum wage amongst many others. Trade union is also referred to as labour Union.

Continue reading “TRADE UNIONS IN NIGERIA (series)”

INTELLECTUAL PROPERTY SERIES: PATENTS AND DESIGNS

Patent is an exclusive right granted to confer legal protection on an invention for a given period, which exclusive right expressly excludes others from making, using, or selling said invention in the country from which it is obtained without permission or consent during the existence of the patent. Patent in Nigeria is regulated by the Patent and Design Act Cap P2 LFN 2004.

For an inventive work to be capable of being registered as a Patent it must:

Continue reading “INTELLECTUAL PROPERTY SERIES: PATENTS AND DESIGNS”

INTELLECTUAL PROPERTY SERIES: WHAT YOU NEED TO KNOW ABOUT TRADEMARK

A trademark, according to Wikipedia is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks.

The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings.

Continue reading “INTELLECTUAL PROPERTY SERIES: WHAT YOU NEED TO KNOW ABOUT TRADEMARK”