Nigeria: The December 2012 Twin Regulations

Last Updated: 2 May 2013
Article by Perchstone & Graeys

2012 came to an end with the passing of two regulations affecting both corporate and litigation lawyers and by extension, clients. These regulations are the Companies Regulations 2012 (effective date November 1, 2012) and the High Court of Lagos State (Civil Procedure) Rules 2012 (effective date December 31, 2012).

Companies Regulation 2012

The Companies Regulation 2012 passed by the Corporate Affairs Commission (CAC; the principal Companies regulator in Nigeria) is one that every business man and corporate lawyer needs to keep an eye on. The regulation was passed in a bid to ease the company regulation process in Nigeria and enhance good corporate governance in areas either not elaborated on or provided for in the Companies and Allied Matters Act 1990 (CAMA) pending its next amendment.

The Regulation introduces changes to the forms being utilized to effect statutory fillings and fees payable thereof. Further to this regulation, there are new statutory forms introduced for post incorporation fillings different from pre-incorporation filling forms.

The Regulation has now incorporated Know Your Customer practices by mandating the submission of the photocopy of the information page of the international passport or national identity card or drivers license of the first subscribers, first directors, subsequent directors or trustees of a company, when effecting certain fillings.

An additional requirement is for passport photographs submitted for any application, e.g. registration of a Business Name, to be certified by a Notary Public, Magistrate or Commissioner for Oaths prior to submission.

The Regulation goes a step further to provide requirements for applications and fillings with the CAC, including an application of consent to use Group, Holding, or Consortium in the name of a Company.

Schedule 2 contains the new Forms in the acceptable format. These forms include separate Name Availability forms for incorporation, Change of Name, Appointment of Company Secretary, Notice or Change of Registered Address, two particulars of directors forms (pre and post incorporation for effecting changes to the board or the residential or postal address of a member of the board, etc), two Return of Allotment Forms (pre and post incorporation), sample Constitution and Memorandum and Articles of Association, Annual Return forms for the different company types (business names, incorporated trustees, exempted foreign companies, companies limited by guarantee, etc), amongst others. These forms require the submission of the name of the director and secretary, as applicable, telephone numbers, etc, that will be appending their signatures to the forms.

The High Court of Lagos State (Civil Procedure) Rules 2012

The High Court of Lagos State (Civil Procedure) Rules 2012 came into effect in late 2012, with provisions tailored to encourage a faster and more effective dispensation of justice by the High Court of Lagos State.

One of the changes wrought by this Rules is the new definition of a Legal Practitioner, being a legal practitioner or counsel within the meaning of the Legal Practitioners' Act. Also, a Pre-action Protocol is now defined to mean steps that parties are required to take before issuing proceedings in court as set out in Form 01 to these Rules). A Referee means any person who has been appointed by the court to determine any matter or question or issue of fact in a suit) and Statement of Case (as used in Order 25 Rule 6 means the summary of the case of the parties as contained in the pleadings.

The Rules slightly modify the accompanying documents to be filed with certain Originating Processes and during the litigation process.

Additionally, the Rules enforce the use of Alternative Dispute Resolution (ADR). Now all Originating Processes shall, on acceptance for filing by the Registry, be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate ADR institutions or practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State. This auto - referral process is not without the risk of sanctions. Where a case is deemed suitable for ADR or has by directive been so referred, the ADR Judge, in the case of recalcitrant parties, shall consider and give appropriate directives on the filing of statement of case and other necessary issues: the Claimant is to file his statement of case within 14 days of the Order of the Judge and the Defendant, his response within 14 days of service of the Claimant's Statement. Where a party fails to comply with these directives/orders or fails to participate in the proceedings the Judge shall (a) in the case of the Claimant dismiss the Claim; (b) in the case of a Defendant, enter judgment against him where appropriate. Also, where an offer of settlement made in the course of Case Management or ADR is rejected by a party and the party succeeds at trial but is awarded orders not in excess of the offer of settlement earlier made, the winning party shall pay the costs of the losing party from the time of the offer of settlement up to judgment.

By the new Rules, "Pre Trial Conferencing and Scheduling" is now designated as "Case Management Conference and Scheduling". The time within which a party may amend his Originating Process and Pleadings, is any time before the close of Case Management Conference and not more than twice during trial before judgment.

The Rules also leave out certain provisions such as provisions relating to the right of persons under legal disability to sue by their guardians or defend by guardians appointed for that purpose.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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