Famsville Solicitors

Public-Private Partnerships: The Prospects for Standard Infrastructural Developments in Nigeria

INTRODUCTION

Ideologically, it is expected that the government provides basic social amenities and infrastructure for its populace largely through taxes paid by citizens. In reality, taxes paid by citizens are not sufficient to ensure that these social amenities and infrastructures are provided for. It is no news that there is shortage of funding available for essential services and infrastructural development by the government in Nigeria and in almost every country in the world thereby creating a gap which NGOs and companies through their Corporate Social Responsibilities (CSR) have attempted to fill. The inability of the government to meet up with the increasing responsibility to provide and maintain infrastructure in the country and the need to regulate the contribution of private individuals to infrastructural development has led to the concept of Public-Private Partnership (PPP).

This article discusses the concept of Public-Private Partnership (PPP), clauses, examples, advantages, disadvantages and recommendations for its success.

A public- private partnership can be described as a co-operation between the public and the private sector, in which the government and the private sector jointly carry out a project  on the basis of an agreed division of tasks and risks, each party retaining its own identity and responsibilities. It is a way for governments to mobilise funds and deliver what they would not have otherwise been able to provide i.e. the public infrastructure and services that the citizens require.

The underlying principle of PPPs is that, the public sector needs to be responsible for the delivery of a particular service, it does not have  to be involved in the actual provision the service or for undertaking the investment themselves. In this way, all actors of a public private partnership can concentrate on doing their part of the agreement. PPP agreements are aimed at optimising the input of knowledge and resources from both sectors.

Major  public infrastructural  developments have always  been undertaken by the private  sector under contract. The major difference  between a normal contract from the government and a private sector  and public – private partnerships is the fact that the private  sector can be regarded as a full-fledged contributor.

The High Court of Lagos State (civil procedure) Rules 2019 – a step to improving the administration of justice?

Introduction

Pursuant to Section 274 of the 1999 Constitution of the Federal Republic of Nigeria and Section 89 (1) of the High Court Law of Lagos State CAP H5, Laws of Lagos State, 2015, the Chief Judge of Lagos State is empowered to make rules concerning the administration of the civil justice system.  Recently, the Chief Judge of Lagos State in exercise of this power made the High Court of Lagos State (Civil Procedure) Rules 2019 (the “New Rules”). In addition, the Chief Judge also issued two practice directions on expeditious disposal of civil cases. The first, on backlog elimination program and the second, on pre-action protocol procedure. The practice directions are expected to eliminate the incessant clogs plaguing the state’s judiciary, improve efficiency and ensure timely delivery of justice.

This article seeks to analyze the amendments made and innovations introduced by the new rules and the implication of such amendments to the administration of justice.

DOCUMENT RETRIEVAL SERVICES IN NIGERIA  

Background

It is a common phenomenon for individuals and corporate entities to require documents from statutory agencies for various reasons. This could be due to loss or destruction of document, or may be required as part of due diligence or investigation procedure in the course of completing a commercial transaction or routine business operation.

Generally, these undertakings include search or production of copies of Court records, public or government owned registry, regulatory authorities, various land bureaus and registry, government ministries, department and agencies or public libraries. The nature of the document under review largely determines where to look. Our document retrieval practice group has countrywide presence and cognate experience in delivering timely and efficient services to our clients. We have been providing litigation support services to financial institutions, private investigation firms, hedge funds and private equity firms across Nigeria. These services include retrieval of any document from any court, government agencies and court reporting services. Beyond the retrieval process, we equally provide document authentication and legalisation services for deserving documents at the embassy and requisite government ministry and agency.

FIRS lacks the powers to impose turnover assessment on the value of properties

In the recently decided case of Theodak Nigeria Limited (Theodak) v. Federal Inland Revenue Service, the Federal High Court held that the Federal Inland Revenue Service (FIRS) acted ultravires the powers granted to it by the Companies Income Tax (CIT) Act by imposing a turnover assessment on Theodak relying on the value of its property. FIRS argued that Section 65 of CITA vested it with powers to exercise Best of Judgment (BOJ) assessment and its move to subject 20% of the value of Theodak Plaza was a “Best of Judgment Assessment” since Theodak failed to file returns for 2015. FIRS also argued that the action before the court was incompetent as Theodak failed to object to the assessment within 30 days, making the assessment final and conclusive.

The Federal High Court held that the FIRS lacks the powers to impose turnover assessments on the properties of taxpayers even when such taxpayers have failed to file their Annual returns except such company is in the business of selling property and fails to file its annual returns. The Federal High Court sitting at Abuja also held that the wording of Section 69(1) CITA “If anybody disputes the assessment, it may apply to the board by notice of objection in writing…” is to the effect that application to the Board is not mandatory but discretionary.

ENFORCEMENT OF SHIP MORTGAGE UNDER NIGERIAN LAW

Mortgaging a ship is a form of security wherein a ship owner (“Mortgagor”) gives to the lender (“Mortgagor”) an interest in a ship as a security for loan either by way of creating a statutory mortgage or a equity mortgage. The mortgage is consequently discharged upon payment of the principal sum and usually the interest.

Section 54 of the Nigerian Merchant Shipping Act 2007 (“MSA”) allows a vessel or a share in a vessel to be made a security for a loan or other valuable consideration. Upon entering a mortgage agreement, the mortgage may be registered at the Nigerian Ship Registry. One of the benefits of registering the instrument creating the mortgage at the ship registry is that, it takes priority over unregistered mortgage deeds. Where the Mortgagor is a corporate body, a charge may be registered at the Corporate Affairs Commission.

Section 57 of the MSA stipulates that if there are more mortgages than one registered in respect of a ship or share, the mortgages shall, notwithstanding any express, implied or constructive notice, be entitled in priority one over the other, according to the date on which each mortgage is recorded in the register and not according to the date of each mortgage itself. It is therefore important that mortgage agreement be registered as soon as executed by parties.

Under the Nigerian law, the procedure for enforcement of a ship mortgage is subject to a contractual right. Accordingly, the rights of a mortgagee are derived from specific terms agreed with the mortgagor. Usually, the loan documentation, which the mortgage is premised upon, will identify those events by the mortgagor, which give rise to the right on the part of the mortgagee to take enforcement action.