Introduction

Choosing the right business structure is a critical decision that impacts your legal liability, tax obligations, ability to raise capital, and operational flexibility. Whether you are a startup, freelancer, or expanding company, understanding the different incorporation options is essential.

In this guide, we will compare the main business incorporation types, their advantages and disadvantages, and help you determine the best fit for your business.

1. Sole Proprietorship vs. Partnership vs. Limited Company - Which One Fits Your Business?

Each business structure comes with unique benefits and challenges. Below is a quick comparison:

• Sole Proprietorship
  

Best For  

Freelancers, small businesses, self-employed individuals

Advantages    

Easy setup, full control, minimal costs

Disadvantages

Unlimited liability, hard to raise funds, no business continuity

• Partnership (General/Limited)
  

Best For

Joint ventures, professional firms (e.g., law firms, agencies)

Advantages

Shared responsibilities, easier fundraising, tax benefits

Disadvantages 

Unlimited liability (General Partnership), disputes between partners

• Private Limited Company (Ltd)

Best For 

Startups, growing businesses, investor-backed companies

Adavantages

Limited liability, separate legal entity, easier fundraising, business continuity

Disadvantages 

More regulations, higher incorporation costs

• Public Limited Company (PLC)

Best For 

Large corporations, businesses seeking public investment

Advantages

Access to public capital, enhanced credibility

Disadvantages 

High compliance costs, loss of control

• Incorporated Trustees (Non-Profit)

Best For 

NGOs, charities, religious and social organizations

Advantages

Legal recognition, tax benefits, liability protection

Disadvantages 

Regulatory oversight, no profit distribution, administrative costs

Want to know which one is best for you? Contact us for expert guidance!

2. Key Factors to Consider When Choosing an Incorporation Type

Before incorporating your business, consider:

• Liability Protection: Do you want to separate your personal assets from business risks?

• Tax Implications: Different structures have different tax obligations.
  

✔ Fundraising Potential: Will you need investors or bank loans?

• Ownership & Control: Do you want full control, or are you open to shareholders?

• Compliance Requirements: Some structures require more reporting and regulations.

3. Step-by-Step Guide to Incorporating a Business in Nigeria 

Step 1: Choose a unique business name.

Step 2: Determine the best incorporation type.

Step 3: Prepare the necessary legal documents (Memorandum & Articles of Association, Partnership Agreement, etc.).

Step 4: Register with the appropriate regulatory authority.

Step 5: Obtain business permits and tax identification numbers.

Step 6: Open a business bank account and ensure compliance with local regulations.

4. Common Mistakes to Avoid When Registering a Business

• Choosing the wrong business structure can lead to legal and financial issues. Here are some mistakes to avoid:

a. Skipping Legal Consultation: Incorporation laws vary by country. Professional advice ensures compliance.

b. Not Considering Taxes: Some business types face higher tax obligations than others.

c. Ignoring Future Growth: Will your business need investors in the future? Choose a structure that allows expansion.

d. Failure to Register Trademarks: Protect your brand early to avoid legal disputes.

5. Frequently Asked Questions (FAQs) on Business Incorporation

Q: How long does incorporation take?

A: It depends on the type and location. It can take anywhere from 3 days to 4 weeks, subject to the Corporate Affairs Commission's schedule.

Q: Can a foreigner own a company in Nigeria?

A: Yes, but there may be legal restrictions or additional documentation required.

Q: Do I need a lawyer to incorporate my business?

A: While not mandatory, legal guidance ensures full compliance with regulations.

Conclusion 

Starting a business is exciting, but choosing the wrong structure can have long-term consequences. By understanding your legal, tax, and operational needs, you can make an informed decision.

Disclaimer

This content is for informational purposes only and does not constitute legal or financial advice. Always consult with a professional before making incorporation decisions.

The Court of Appeal's decision in Okafor & Ors v. Okafor & Anor (2022) LPELR-59136(CA) addresses critical aspects of family law, particularly regarding the validity of customary marriages, paternity acknowledgment, and inheritance rights. Below are the key legal principles established in the case.

1. Elements of a Valid Customary Marriage

A valid customary law marriage requires specific criteria to be fulfilled. The court highlighted two key elements:

(i) Payment of Dowry, and

(ii) Handing Over of the Bride to the bridegroom's family.

Failure to meet these requirements may render the marriage invalid under customary law.

2. Ways to Establish Paternity

The court identified three main ways in which paternity can be proven in Nigeria:

1. Paternity by Existing Marriage

A child born during a valid marriage is presumed to be legitimate. Under Section 165 of the Evidence Act, this presumption extends up to 280 days after the dissolution of the marriage, provided the mother remains unmarried.

2. Paternity by Subsequent Marriage

If a child is born outside marriage, paternity can be established when the parents contract a valid marriage after the child's birth.

3. Paternity by Acknowledgment

Paternity may be acknowledged through actions like payment of hospital bills, providing financial support, or introducing the child to the family as one's own.

Without such acknowledgment, establishing paternity becomes challenging.

3. Inheritance Rights of Children Born Out of Wedlock

The court explained that children born out of wedlock may only inherit their father's intestate estate if the father acknowledged their paternity during his lifetime.

If there is no acknowledgment, inheritance claims under intestate succession may be denied.

4. Effect of Statutory Marriage on Customary Marriages

The court emphasized that a person who contracts a valid statutory marriage cannot enter into another valid customary marriage during the subsistence of the statutory marriage.

This rule helps ensure that statutory marriages take precedence over customary law marriages.

5. Distribution of Intestate Estates for Those Married Under the Act

The court relied on Section 36 of the Marriage Act and similar provisions of the Administration and Succession Law of Anambra State, which provide that the estate of a person who contracts a statutory marriage and dies intestate will be distributed according to English law, overriding any conflicting customary law.

This provision aims to standardize inheritance processes for individuals subject to statutory marriages.

Key Considerations

(i) Customary Marriages require proper ceremonies and payment of dowry to be valid.

(ii) Paternity can be proven through marriage, subsequent marriage, or acknowledgment.

(iii) Inheritance Rights of children born out of wedlock are dependent on the father's acknowledgment of paternity.

(iv) Statutory Marriages take precedence and prevent concurrent customary marriages.

(v) Intestate Estates of those married under the Act are governed by statutory rules rather than customary laws.

Conclusion

The decision in Okafor & Ors v. Okafor & Anor highlights the importance of adhering to legal standards when dealing with family-related issues such as marriage, paternity, and inheritance. Proper understanding of these principles ensures better navigation of legal processes and outcomes.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.

In the legal profession, the Rules of Professional Conduct (RPC) aim to regulate the practice of law and ensure accountability among practitioners. However, questions often arise about the scope and applicability of certain rules. One such issue is whether legal practitioners are required to affix their stamp and seal on affidavits they depose to as witnesses. This was addressed in the Court of Appeal decision in Mainstreet Bank Registrars Ltd v. Ogundimu (2022) LPELR-57273(CA).

The Issue

The core question was whether an affidavit deposed to by a legal practitioner, acting as a witness rather than in their professional capacity, must have the practitioner’s stamp and seal affixed under Rule 10 of the Rules of Professional Conduct (RPC).

The Court’s Ruling

Justice Muhammad Ibrahim Sirajo, JCA, clarified the scope of Rule 10 of the RPC, stating:

“Rule 10 of the Rules of Professional Conduct is concerned with documents filed in Court by a lawyer in his capacity as a legal practitioner, which… does not include an affidavit deposed to by a witness who happens to be a legal practitioner by profession, but not acting as such for the party on whose behalf he is giving evidence.”

The court made the following key points:

1. Affidavits Deposed by Legal Practitioners Are Witness Evidence

 • A deponent to an affidavit, regardless of their profession, is considered a witness.

 • When a lawyer deposes to an affidavit in their personal capacity or as a witness, they are not acting in their professional capacity as a legal practitioner.

2. Purpose of Rule 10 of the RPC

 • Rule 10 primarily seeks to prevent fake lawyers from practicing law by ensuring documents filed by legal practitioners carry their stamp and seal.

• Applying this rule to affidavits deposed by lawyers acting merely as witnesses would be an overreach and could lead to absurd outcomes.

3. No Additional Burden on Litigants

• Imposing a requirement for lawyers to affix stamps on affidavits they depose to as witnesses would place an undue burden on litigants relying on their evidence.

• This would also contravene the principles of fair hearing and fundamental rights.

Key Takeaways

1. Affidavits Are Witness Evidence, Not Legal Documents: An affidavit deposed by a lawyer acting as a witness is treated as evidence, not as a legal document requiring professional authentication.

2. Purpose of Stamps and Seals: The requirement for a lawyer’s stamp and seal applies strictly to documents prepared and filed by lawyers in their professional capacity.

3. Avoiding Overregulation: The court cautioned against interpreting Rule 10 in a way that unnecessarily complicates legal processes or burdens litigants.

Implications for Legal Practice

This ruling is significant for lawyers, litigants, and courts. Legal practitioners acting as witnesses should:

• Understand that their affidavits, when given as evidence, do not require their professional stamp and seal.

• Be cautious to distinguish between acting as a legal representative and as a witness in legal proceedings.

Litigants can rely on affidavits deposed by legal practitioners without worrying about the technicalities of stamps and seals in such circumstances.

Conclusion

The decision in Mainstreet Bank Registrars Ltd v. Ogundimu reinforces the principle that legal rules should not be interpreted in a way that imposes unnecessary burdens on parties or produces absurd outcomes. Lawyers acting as witnesses are not bound by Rule 10 of the RPC to affix their stamp and seal on affidavits.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.

In appellate practice, the proper service of a notice of appeal is critical to the competence of an appeal. However, what happens when a respondent acknowledges receipt but raises objections to the manner of service? The Court of Appeal addressed this in the case of Kogi State House of Assembly & Ors v. Achuba & Ors (2024) LPELR-61938(CA). This decision clarifies the rules on serving notices of appeal and underscores the practical implications of such service.

The Issue

Is a notice of appeal invalid if not personally served on the respondent, even when the respondent admits having received it?

The Court’s Ruling

Justice Adebukunola Adeoti Ibironke Banjoko, JCA, provided a definitive ruling on this procedural issue, relying on Order 2 Rule 1 of the Court of Appeal Rules 2021:

“Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8, and 9, be served personally; provided that if the Court is satisfied that the Notice of Appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the Notice of Appeal was not served personally.”

The court emphasized that once the notice of appeal is communicated to the respondent and acknowledged, objections to service become baseless. In this case, the respondent admitted knowing about the appeal and even presented himself at the court registry to personally collect the processes.

The court stated:

“Service can take place anywhere a party is, even on a plane or in the market. There is no law that stipulates that it must be at his residence or office for service to be held as effective.”

Key Takeaways

1. Personal Service is Preferred but Not Absolute: While personal service is the standard, communication of the notice of appeal suffices to validate the process.

2. Location of Service is Irrelevant: Service can be effective anywhere the respondent is located, as long as they receive the process.

3. Objections Must Have Substance: Raising procedural objections, such as lack of personal service, is futile if the respondent has clearly received and acknowledged the appellate processes.

4. Practical Enforcement of Rules: The court demonstrated flexibility in applying procedural rules, focusing on fairness and the actual knowledge of the respondent rather than rigid technicalities.

Implications for Legal Practice

This decision provides clarity and practical guidance for appellate lawyers. Key lessons include:

• Ensure notices of appeal are communicated to respondents promptly, even if personal service proves challenging.

• Emphasize acknowledgment of receipt by the respondent in case of disputes over service.

• Avoid frivolous objections that focus on form over substance, as courts prioritize effective communication and fairness.

Conclusion

The Court of Appeal’s decision in Kogi State House of Assembly & Ors v. Achuba & Ors highlights the balance between procedural compliance and practical fairness in appellate litigation. Lawyers should prioritize ensuring respondents are aware of processes rather than focusing on overly rigid service requirements.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.

In appellate proceedings, the question of whether a notice of appeal can be amended at any stage often arises. Two cases—Famese & Ors v. Kayode & Ors (2017) LPELR-43233(CA) and Ugochukwu & Ors v. Nwaduka & Anor (2024) LPELR-61822(CA)—provide clarity on this issue, affirming the court’s discretionary powers to allow amendments when they serve the ends of justice.

Can a Notice of Appeal Be Amended at Any Time?

Insights from Famese & Ors v. Kayode & Ors

Justice Obande Festus Ogbuanya, JCA, affirmed that:

“The fact that briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing will not prevent the Court from exercising its undoubted discretion to allow an amendment… so long as the amendment would serve the ends of justice and fairness, and the other party can be compensated by cost.”

This emphasizes that:

1. Timing Is Not a Barrier: Amendments can be made even if the appeal is ready for hearing.

2. Justice and Fairness Prevail: The court prioritizes substantive justice over procedural technicalities.

3. Compensatory Costs: The opposing party may be awarded costs to mitigate any inconvenience caused by the amendment.

Insights from Ugochukwu & Ors v. Nwaduka & Anor

Justice Amina Audi Wambai, JCA, reinforced the principle under Order 7 Rule 8 of the Court of Appeal Rules, 2021:

“A Notice of Appeal may be amended by or with the leave of the Court at any time.”

This confirms that the rules explicitly permit amendments to notices of appeal at any stage, provided the court grants leave.

Key Takeaways

1. Flexibility in Amendments

      •   Both cases highlight that amendments to notices of appeal are not restricted by time and can be made even at advanced stages of the appellate process.

2. Court’s Discretion

      •   The court retains broad discretion to determine whether an amendment serves justice and fairness.

3. No Room for Technicalities

      •   Procedural objections based solely on the timing of amendments are unlikely to succeed if the substantive rights of the parties are preserved.

4. Compensation for the Opposing Party

      •   To ensure fairness, courts often award costs to the opposing party when an amendment is allowed.

Practical Implications for Legal Practice

 • Appellants: Always seek leave of the court when amending a notice of appeal. Prepare to justify how the amendment will advance justice.

 • Respondents: Be prepared to argue against amendments only if they result in significant prejudice or unfairness. Otherwise, seek compensatory costs.

 • Judges: Balance procedural compliance with the need to ensure justice and fairness in the appellate process.

Conclusion

Both Famese v. Kayode and Ugochukwu v. Nwaduka emphasize that amendments to notices of appeal are permissible at any time, provided they serve the ends of justice. This flexible approach ensures that technicalities do not override the court’s primary objective of delivering fair outcomes.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal issues, consult a qualified legal professional.

The freezing of a bank account without a court order raises significant legal and constitutional questions, particularly concerning the protection of fundamental rights. In the case of Access Bank Plc v. Agbasiere (2022) LPELR-58489(CA), the Court of Appeal addressed whether such an action can be challenged under the Fundamental Rights (Enforcement Procedure) Rules.

The Issue

The primary question was whether the respondent, whose account was frozen without a court order, could pursue a remedy under the Fundamental Rights (Enforcement Procedure) Rules or whether the proper route was through a regular writ of summons.

The Court’s Ruling

Justice Patricia Ajuma Mahmoud, JCA, affirmed that the freezing of the respondent’s account without a court order violated their fundamental rights and could be challenged under the Fundamental Rights (Enforcement Procedure) Rules. Relying on Section 44(1) of the 1999 Constitution, the court emphasized:

“No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by law.”

The court cited precedents, including:

1. Olagunju v. EFCC (2019) LPELR-48461(CA), where it was held that freezing an account without a court order is unlawful and unconstitutional, constituting a breach of the fundamental right to moveable property.

2. GTB Plc v. Adedamola & Ors (2019) 5 NWLR (Pt. 1664) 30(CA), where similar actions were successfully challenged under the Fundamental Rights (Enforcement Procedure) Rules.

In light of these decisions, the court concluded that the lower court was correct in exercising jurisdiction to hear and determine the respondent’s application.

Key Legal Principles

1. Constitutional Protection of Property: Section 44(1) of the 1999 Constitution protects individuals from the compulsory acquisition or restriction of their movable or immovable property, except as prescribed by law.

2. Court Order Requirement: Freezing a bank account without a court order violates this constitutional protection and constitutes a breach of fundamental rights.

3. Remedy Under Fundamental Rights Rules: Victims of such actions can seek redress under the Fundamental Rights (Enforcement Procedure) Rules, as the principal relief centers on the violation of constitutional rights.

Implications for Legal Practice

This decision reinforces the protection of individual property rights and provides clear guidance for legal practitioners. Key takeaways include:

   •   Always ensure proper legal authorization, such as a court order, before freezing accounts.

   •   For victims, the Fundamental Rights (Enforcement Procedure) Rules offer a direct remedy for challenging unconstitutional actions.

   •   Courts will not hesitate to strike down unauthorized restrictions on property rights and provide redress to affected individuals.

Conclusion

The ruling in Access Bank Plc v. Agbasiere highlights the importance of adhering to due process when freezing bank accounts. Such actions without court orders not only violate constitutional protections but also expose financial institutions and regulators to legal liability. For individuals whose rights have been infringed, the Fundamental Rights (Enforcement Procedure) Rules provide a robust framework for seeking justice.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.

In the case of Peterson & Ors v. Idufueko (2024) LPELR-62461(CA), the Court of Appeal reiterated a fundamental principle of Nigerian civil procedure: courts are prohibited from delving into substantive issues when deciding a preliminary objection. This principle ensures that preliminary objections are restricted to procedural issues, preserving the impartiality and fairness of judicial proceedings.

The Core Issue

The appellants in this case argued that the lower court had improperly analyzed substantive issues while determining a preliminary objection. Specifically, they claimed the issue of their non-party status in the consent judgment should not have been addressed at that stage of the proceedings.

The Court of Appeal emphasized that this was a misstep, as resolving substantive issues during the consideration of a preliminary objection goes against established legal principles.

The Court’s Ruling

Justice Ita George Mbaba, JCA, clarified the court’s position by referencing several precedents, stating:

“The law forbids a Court from delving into the substantive matter, which is yet to be tried, at the time of considering a preliminary objection. The issue of appellants not being parties to the consent judgment is not (and cannot be) an issue at this stage of the case, since the substantive matter is yet to be heard.”

The court further relied on notable cases, such as British American Tobacco Plc v. A.G. Kano State (2021) LPELR-56570(CA), to reinforce the principle that substantive issues must only be addressed during the trial proper.

Key Legal Principles

1. Preliminary Objections Focus on Procedure: Preliminary objections are intended to address procedural defects, such as jurisdiction or the competence of a case, rather than resolve substantive disputes.

2. Preservation of Fairness: Courts must avoid making observations or decisions that could prejudge the substantive issues of a case.

3. Precedent on Substantive Restraint: The court relied on landmark cases, including:

 •   NDIC v. SBN Plc (2003) 1 NWLR (Pt. 801) 371

  •   Attorney General of the Federation v. Attorney General of Abia State (2001) LPELR-24862(SC)

  •   Akinrinmisi v. Maersk Nig. Ltd & Anor (2013) 10 NWLR (Pt. 1367) 73

These cases consistently caution against judicial overreach during preliminary objections.

Implications for Legal Practice

This decision serves as a critical guide for legal practitioners and judges alike. It highlights the need to:

   •   Restrict arguments during preliminary objections to procedural issues.

 • Avoid veering into substantive matters that require full trial adjudication.

   •   Preserve the integrity and neutrality of the judicial process until the substantive matter is ripe for determination.

Conclusion

The decision in Peterson & Ors v. Idufueko reinforces the boundary between procedural objections and substantive issues in Nigerian courts. It underscores the principle that fairness and due process demand a clear distinction between preliminary objections and the trial of substantive matters.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.

Desertion is a common ground for seeking the dissolution of marriage under Nigerian matrimonial law. However, proving desertion involves meeting specific legal requirements, as highlighted in the Court of Appeal’s decision in Igbuwe v. Igbuwe (2023) LPELR-60748(CA). This case examines the critical elements of desertion under Section 15(2)(d) of the Matrimonial Causes Act (MCA).

The Issue

The appellant filed a petition seeking a decree of dissolution on the ground that the respondent had deserted the marriage for about two years, thereby causing the marriage to break down irretrievably. The trial court analyzed the evidence but found it insufficient to prove desertion, a decision upheld by the Court of Appeal.

Key Legal Principles on Desertion

Justice Abimbola Osarugue Obaseki-Adejumo, JCA, reiterated the elements required to establish desertion, relying on the decision in Nwakwo v. Nwakwo (2014) LPELR-24396(CA). The court explained that for desertion to be established, the following elements must be present:

1. Elements on the Part of the Deserting Spouse

   •   Factum (Physical Separation): There must be clear evidence of the deserting spouse physically separating from the marital home.

   •   Animus Deserendi (Intention to End Cohabitation): The deserting spouse must have the intention to permanently end cohabitation.

2. Elements on the Part of the Deserted Spouse

   •   Absence of Consent: The deserted spouse must not have consented to the separation.

   •   Absence of Conduct Leading to Desertion: The deserted spouse’s behavior must not have reasonably caused the deserting spouse to decide to end cohabitation.

These elements must be proven cumulatively to succeed in a petition based on desertion.

Court’s Ruling

The court found that the evidence presented by the appellant did not satisfactorily establish the required elements, particularly the animus deserendi of the respondent and the absence of conduct reasonably causing the desertion. The court emphasized the need for concrete evidence to support such claims under Section 15(2)(d) of the MCA.

Implications for Legal Practice

This case serves as a valuable guide for legal practitioners handling matrimonial causes. Key takeaways include:

1. Comprehensive Evidence: Both physical separation and intention to desert must be demonstrated with credible evidence.

2. Focus on Conduct: The petitioner must establish that their behavior did not contribute to the desertion.

3. Statutory Requirements: Adherence to Section 15(2)(d) of the Matrimonial Causes Act is essential in proving desertion.

Conclusion

The decision in Igbuwe v. Igbuwe underscores the stringent evidentiary requirements for proving desertion as a ground for dissolution of marriage. Petitioners must not only establish the physical separation but also prove the intention to permanently end cohabitation, while also demonstrating their own lack of fault in the separation.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.

The legal landscape surrounding the use of counterclaims in Nigerian civil procedure has been further clarified in the case of Ituen v. Speaker, Akwa Ibom State House of Assembly & Ors (2021) LPELR-53318(CA). This decision focuses on whether a respondent can embed a counterclaim within a counter-affidavit filed in response to an affidavit in support of an originating summons.

The Issue

The appellant in this case contended that the counterclaim of the 1st respondent, embedded within the counter-affidavit, amounted to an abuse of court process. This raised the question: Can a counterclaim in an originating summons procedure be incorporated into a counter-affidavit?

The Court’s Ruling

Justice Mojeed Adekunle Owoade, JCA, addressed this issue comprehensively, holding that:

“The counter-affidavit in the originating summons procedure is synonymous with the statement of defence in pleadings under the writ of summons procedure. It follows logically that in the originating summons procedure, the counterclaim has to be contained in the counter-affidavit as a counterclaim is contained in the statement of defence in the writ of summons procedure.” (Pp 15–20 Paras A–C)

The court emphasized that affidavits in originating summons cases are considered equivalent to pleadings:

•   The claimant’s affidavit is treated as the statement of claim.

 • The defendant’s counter-affidavit is treated as the statement of defence.

Thus, a counterclaim within a counter-affidavit is procedurally proper as long as the counterclaimant sufficiently indicates their intention to rely on the same pleadings in support of their counterclaim.

Key Principles Established

1. Equivalence of Affidavits and Pleadings: In originating summons cases, affidavits serve the same purpose as pleadings in writ of summons cases.

2. Validity of Embedded Counterclaims: A counterclaim may be included within a counter-affidavit in originating summons procedures without constituting an abuse of court process.

3. Requirement of Sufficient Indication: The counterclaimant must clearly indicate their intention to rely on the pleadings in support of the counterclaim.

4. Court’s Jurisdiction on Counterclaims: Even if the main claim fails, the court is not precluded from considering the counterclaim embedded in the counter-affidavit.

Implications for Legal Practice

This ruling underscores the procedural flexibility afforded to respondents in originating summons cases. Legal practitioners should take note of the following:

   •   Embedding a counterclaim within a counter-affidavit is procedurally sound and permissible.

   •   Clear articulation of the counterclaim and reliance on the same pleadings are crucial to satisfying procedural requirements.

   •   The court retains the authority to consider counterclaims even if the primary claim is dismissed.

Conclusion

The Court of Appeal’s decision in Ituen v. Speaker, Akwa Ibom State House of Assembly & Ors affirms that counterclaims can be incorporated into counter-affidavits in originating summons proceedings. This interpretation provides clarity and procedural certainty for parties involved in such cases.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult a qualified legal professional.

In legal practice, counter-claims are powerful tools that allow defendants to assert their rights against plaintiffs within the same proceedings. However, the scope and nature of counter-claims have been subject to judicial scrutiny, as clarified in the Court of Appeal’s decision in Comex Resources & Inv. Ltd v. Olive Foundation (Nig) Ltd & Ors (2018) LPELR-49953(CA). This case examines whether a defendant can counter-claim against a co-defendant.

Key Issue

Can a defendant bring a counter-claim against a co-defendant in the same proceedings?

The Court’s Ruling

Justice Jamilu Yammama Tukur, JCA, provided a definitive answer:

“Now, the law is trite that a counter-claim is a legal procedure which allows the Defendant to maintain an action against the plaintiff in the same proceedings. It is therefore a cross-action. What it means is that by its very nature of being a cross-action a defendant would not be allowed to bring a counter-claim against the Defendants. This is so because a counter-claim means a cross-action against the plaintiff in the same proceedings and the Defendant for the purposes of the counter-claim is the plaintiff while the plaintiff is the defendant in the counter-claim.” (P. 9 Paras A-C)

The court highlighted the foundational principle of counter-claims: they are cross-actions strictly between defendants and plaintiffs. Consequently, a defendant cannot legally counter-claim against a co-defendant, as this falls outside the procedural framework for counter-claims.

Implications for Legal Practice

This decision underscores the following principles:

1. Nature of Counter-Claims: Counter-claims are procedural mechanisms designed to balance claims between defendants and plaintiffs.

2. Limitations: Counter-claims cannot be used to litigate disputes between co-defendants within the same proceedings.

For legal practitioners, this judgment serves as a critical reminder to assess the appropriateness of counter-claims and ensure they align with procedural rules.

Conclusion

The decision in Comex Resources & Inv. Ltd v. Olive Foundation (Nig) Ltd & Ors reinforces the boundaries of counter-claims in Nigerian civil procedure. While counter-claims remain an effective tool for defendants to pursue cross-actions against plaintiffs, their use against co-defendants is impermissible. Legal practitioners must carefully evaluate the nature of claims and adhere to procedural rules to avoid missteps.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal concerns or guidance, consult a qualified legal professional.

In the landmark case of Olaniyan v. Olaniyan (2024) LPELR-62816(CA), the Court of Appeal provided crucial clarifications on various aspects of matrimonial proceedings under Nigerian law. This decision addresses critical issues regarding the necessity of a petitioner’s testimony, the grounds for dissolution of marriage, and the rules of evidence applicable in matrimonial cases.

Personal Testimony of the Petitioner: Is it Mandatory?

A pivotal issue addressed in this case was whether it is mandatory for a petitioner to personally testify in matrimonial proceedings to secure the reliefs sought. Justice Folasade Ayodeji Ojo, JCA, emphasized:

“There is no provision in the Matrimonial Causes Act or Matrimonial Causes Rules which makes it mandatory for the Petitioner to testify personally before she will be entitled to the reliefs sought.” (P. 29, Paras D-E)

This clarification ensures that petitioners who are unable to appear in person can still proceed with their petitions, provided evidence is led in support of the claims through other means.

Grounds for Dissolution of Marriage

The statutory framework for the dissolution of marriage is anchored in Section 15(1)-(3) of the Matrimonial Causes Act. Justice Muhammad Ibrahim Sirajo, JCA, outlined the specific grounds upon which a marriage can be dissolved, including:

1. Refusal to consummate the marriage.

2. Adultery and resulting intolerability.

3. Unreasonable behavior by the respondent.

4. Desertion for at least one year.

5. Separation for at least two years (with no objection by the respondent).

6. Separation for at least three years.

7. Failure to comply with a decree for restitution of conjugal rights.

8. Presumption of death due to prolonged absence.

These grounds reinforce the principle that a marriage must have “broken down irretrievably” to warrant a decree of dissolution.

Rules of Evidence in Matrimonial Causes

Another significant clarification provided by the court concerned the rules of evidence applicable to matrimonial proceedings. Justice Sirajo, JCA, explained:

“The Court shall not grant a decree of dissolution of marriage without receiving evidence by the petitioner in support of the petition.” (P. 17, Paras C-C)

However, the court noted that this does not necessitate the petitioner’s physical presence in court. Evidence can be led through:

   •   Witness testimony,

   •   Oral or documentary evidence, or

   •   Any combination of the above.

The rules of evidence in civil proceedings, as codified in the Evidence Act, apply to matrimonial causes unless expressly excluded by the Matrimonial Causes Act or Rules. This principle aligns with the decision in Amah v. Amah (2016) LPELR-41087(CA), where the court held that matrimonial proceedings could incorporate civil rules of evidence to prove facts.

Implications for Legal Practice

This decision has far-reaching implications for matrimonial causes in Nigeria. It:

   •   Eases the burden on petitioners who are unable to appear in court, as they can rely on witnesses or documentary evidence to support their case.

   •   Reinforces the flexibility of matrimonial proceedings, aligning them with general civil rules of evidence.

   •   Provides clarity on the statutory grounds for divorce, ensuring parties understand the legal thresholds required to dissolve a marriage.

Conclusion

The Court of Appeal’s decision in Olaniyan v. Olaniyan highlights the evolving nature of matrimonial law in Nigeria. By interpreting the Matrimonial Causes Act and Rules in a pragmatic manner, the court ensures access to justice for petitioners while maintaining adherence to legal standards.

For legal practitioners and litigants alike, this judgment serves as an invaluable guide to navigating the complexities of matrimonial proceedings.

Disclaimer

This post is for informational purposes only and does not constitute legal advice. For advice specific to your situation, please consult a qualified legal professional.

Recently, tensions have flared between a Nigerian activist, content creator and public figure and another public figure, with the latter sending a cease-and-desist letter, threatening to sue for defamation. This situation raises key questions about free speech, public interest, and protecting one’s reputation. Here’s a look at both sides of the argument.

For the Nigerian Activist, Content Creator and Public Figure: Right to Free Speech and Public Interest

The activist argues that his comments and the release of the audio recording were aimed at exposing possible corruption—a matter of public interest. Public figures are often subject to scrutiny, and discussing their actions is part of open debate.

His comments were phrased as questions and opinions, not direct accusations. In Nigerian law, there is a distinction between expressing an opinion and making a false, damaging statement. Since his remarks were speculative and not presented as facts, he can argue that he was exercising his right to free speech.

Against the Nigerian Activist, Content Creator and Public Figure: Harmful Speculation and Potential Defamation

On the other hand, the other public figure views the activist’s remarks as damaging and misleading. Even though the statements were framed as questions, they could imply false information that harms the other public figure’s reputation. Under Nigerian law, even insinuations can be defamatory if they expose someone to ridicule or damage their standing in society.

If the other public figure can show that these comments have harmed his reputation, he might have a case for defamation. From this angle, the cease-and-desist letter is a reasonable step to protect his name and stop the spread of potentially harmful speculation.

For the other Public Figure: Protecting Reputation

The other public figure has the right to defend his reputation against what he sees as unverified and damaging insinuations. The cease-and-desist letter is a warning to the activist to stop making speculative comments that could harm his image. Public figures may be subject to scrutiny, but that doesn’t give others a license to spread harmful rumors.

Against the other Public Figure: Intimidation and Suppressing Free Speech

However, the cease-and-desist letter could also be seen as an attempt to intimidate the activist. Public figures, especially those with legal knowledge and resources, may be perceived as using legal threats to address criticisms, which some argue could limit free speech. The activist might argue that he was simply raising questions based on a public audio recording and that such discussions are essential for transparency.

Conclusion

This dispute highlights the ongoing struggle between free speech and reputation protection. While the activist claims he was discussing a matter of public interest, the other public figure is focused on safeguarding his reputation. The outcome of this dispute will shed light on how Nigerian law balances these competing rights.

Disclaimer

This blog post is intended for informational purposes only and does not constitute legal advice. The views expressed are based on a general understanding of Nigerian defamation law and public interest issues. For specific legal concerns, please consult a qualified legal professional.

In Nigeria, the relationship between landlords and tenants is governed by a complex web of laws, with the Recovery of Premises Act being one of the most significant pieces of legislation aimed at protecting the interests of tenants. Despite these protections, tenants often face challenges such as arbitrary rent increases, illegal evictions, and poor living conditions. Understanding the legal protections available to tenants, particularly under the Recovery of Premises Act, and the remedies they can seek is crucial for safeguarding their rights.

Understanding the Tenancy Agreement

The tenancy agreement forms the foundation of the landlord-tenant relationship. It outlines the rights and obligations of both parties and can be either oral or written. However, a written agreement is highly recommended for clarity and enforceability. The agreement should specify essential terms such as the duration of the tenancy, the rent amount, payment schedule, and other relevant conditions. Tenants must ensure they fully understand the terms before signing, as it becomes legally binding and can significantly impact their rights under the law.

Rights of Tenants Under Nigerian Law

The Recovery of Premises Act, along with other tenancy laws in Nigeria, confers several rights on tenants to protect them from exploitation and unfair treatment. Some of these rights include:

• Right to Peaceful Enjoyment of the Property: Tenants are entitled to live in the rented property without undue interference from the landlord, provided they comply with the tenancy agreement. The Recovery of Premises Act reinforces this right by ensuring that tenants cannot be unlawfully evicted or harassed.

• Right to Notice Before Rent Increase: The Recovery of Premises Act mandates that landlords must provide adequate notice before increasing rent. The notice period is typically one month for monthly tenants and three months for yearly tenants, but this may vary depending on the specific provisions of the tenancy agreement or local laws.

• Protection Against Illegal Eviction: The Recovery of Premises Act is particularly significant in protecting tenants from illegal evictions. It stipulates that landlords must follow due process, including serving the tenant with a statutory notice to quit and a notice of owner’s intention to recover possession. If the tenant fails to vacate after the expiration of the notice, the landlord must obtain a court order before carrying out the eviction.

• Right to a Habitable Environment: The Act also places an obligation on landlords to ensure that the premises are in a condition fit for habitation. Tenants can demand necessary repairs or improvements, and failure by the landlord to comply may lead to legal consequences.

Remedies Available to Tenants

When a tenant’s rights under the Recovery of Premises Act or other tenancy laws are violated, several legal remedies are available:

• Seeking Injunctive Relief: If a landlord attempts an illegal eviction or any other unlawful action, the tenant can apply to the court for an injunction to prevent the landlord from proceeding with such actions. The Recovery of Premises Act allows tenants to seek immediate judicial intervention to protect their occupancy rights.

• Claiming Damages: Tenants can sue for damages if they suffer loss or injury due to the landlord’s actions, such as unlawful eviction or failure to maintain the property in a habitable condition. The Recovery of Premises Act provides a framework for such claims, ensuring that tenants can seek compensation for any harm suffered.

• Reporting to Regulatory Authorities: Tenants can report landlords to relevant state authorities, such as the Rent Tribunal, which handles disputes related to rent and tenancy matters. The Recovery of Premises Act empowers these tribunals to adjudicate on matters concerning possession and eviction, providing tenants with a formal avenue to resolve disputes.

• Termination of Tenancy: If the landlord fails to fulfill their obligations under the tenancy agreement or the Recovery of Premises Act, the tenant may terminate the tenancy agreement and seek relocation to a more suitable property. This termination must also follow the procedures outlined in the Act, ensuring that both parties adhere to legal standards.

Conclusion

The Recovery of Premises Act, alongside other tenancy laws, provides a robust framework for the protection of tenant rights in Nigeria. By understanding these legal protections and knowing the remedies available, tenants can effectively assert their rights and seek justice when necessary. It is also advisable for tenants to consult legal professionals when facing disputes, as the laws can vary significantly from one state to another.

Citations

• Recovery of Premises Act, Cap 544, Laws of the Federation of Nigeria 1990

• Tenancy Law of Lagos State 2011

• Rent Control and Recovery of Residential Premises Law, Lagos State 1997

•  Landlord and Tenant Law in Nigeria by Festus Emiri (2017)

Disclaimer

This blog post is intended for informational purposes only and does not constitute legal advice. For specific legal concerns, tenants should consult a qualified legal practitioner to obtain advice tailored to their situation.