Evaluating the Significance of Mandatory Offers in Contemporary Corporate Finance

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

Evaluating the Significance of Mandatory Offers in Contemporary Corporate Finance

Author: Justice Mudzamiri

ISSN: 2521-2605
Affiliations: LLB (Fort Hare) LLM (University of Johannesburg) LLD (Fort Hare). Postdoctoral Research Fellow, Department of Commercial Law, University of Cape Town, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 58 – 82
https://doi.org/10.47348/JCLA/v10/i1a3

Abstract

If a regulated company reacquires its voting securities in terms of section 48 of the Companies Act 71 of 2008 (2008 Act) or if a person, together with related persons who held less than 35 per cent voting rights before the acquisition attain 35 per cent of voting rights after the acquisition, they must offer to purchase the remaining securities within a prescribed period. Transactions that force the acquirer to offer the remaining securities holders acquisition of their securities as contemplated above are referred to as mandatory offers. Academics debate whether to retain or dispense with mandatory offers in corporate finance law. They question the rationales for mandatory offers. For instance, some academics argue that mandatory offers inhibit investment. The rationale of using mandatory offers to pursue equal treatment of securities holders is also challenged for being incompatible with generally accepted company law principles. It is within this context that this article seeks to reinforce the pertinence of mandatory offers in the South African takeover regulation regime. Mandatory offers are of practical relevance and important to achieve equal and fair treatment of the securities holders of a similar class in line with the overarching objectives of the 2008 Act read together with the Takeover Regulations, 2011 (2011 Regulations). Mandatory offers also protect minority shareholders from being forced to retain their investments in a company that has significantly shifted its securities holding control. This article suggests some amendments to the existing provisions of the 2008 Act to reinforce the functional purposes of mandatory offers.

From Subsistence to Commercialisation: Legal Implications of ‘Ecowas Regulations on Transhumance’ on Livestock Investment Options

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

From Subsistence to Commercialisation: Legal Implications of ‘Ecowas Regulations on Transhumance’ on Livestock Investment Options

Author: Jane Ezirigwe

ISSN: 2521-2605
Affiliations: LLB (Hons.) (Abuja) LLM (London) MBA (EBS) PhD (UCT); Senior Research Fellow, Nigerian Institute of Advanced Legal Studies
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 83 – 132
https://doi.org/10.47348/JCLA/v10/i1a4

Abstract

West Africa is expected to experience rapid population growth with a projected population of 796,494,188 in 2050, most of whom will be unemployed youths in quest of job and business opportunities. The increasing growth in population with an increasing demand for livestock products and a ready workforce presents exciting opportunities for investment in livestock production, job creation, poverty reduction, and food security. Nonetheless, private investment may not happen in a form that will achieve these gains if the ECOWAS texts are left in their current form, in promoting the transhumance business model to the detriment of meaningful large-scale investments that will increase productivity and create jobs for the region’s booming young population. This article adopts a socio-legal approach to examine the ECOWAS Decision and Regulation on Transhumance in order to determine whether they have adequately promoted transhumance in a form that is not inimical to other business investment options for livestock production in the region. Its aim is to show that the regulatory framework has not effectively ensured that transhumance exists in a form that will still provide other business models with opportunities to competitively engage in livestock production. This is given the fact that the transhumance method has been commercialised and even criminalised in ways that produce significant negative consequences for the livestock business. It recommends concrete plans with a view to phasing out transhumance across borders and designating rangelands in semi-arid areas of the region.

Towards an Appropriate Legal Framework for Sustainable Management and Disposal of Plastic Waste in Nigeria: Lessons from Other Jurisdictions

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

Towards an Appropriate Legal Framework for Sustainable Management and Disposal of Plastic Waste in Nigeria: Lessons from Other Jurisdictions

Author: Izuoma Egeruoh-Adindu

ISSN: 2521-2605
Affiliations: BL LLB LLM: Senior research fellow Nigerian Institute of Advanced Legal Studies
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 103 – 132
https://doi.org/10.47348/JCLA/v10/i1a5

Abstract

Plastic pollution from unsustainable management and disposal of plastic waste on land and in the marine environment is a very serious problem. Statistics indicate that more than one million plastic bags are used every minute, and approximately 500 billion plastic bags are used annually worldwide. This phenomenon has raised global concern leading to the adoption of measures by countries, including legislation to mitigate plastic waste pollution in the environment. Employing desk-based research methodologies, this paper examines the problems associated with the indiscriminate disposal of plastic waste in Nigeria. The paper argues that the extant legal framework on the management of solid wastes is ineffective, too general and does not take cognisance of the peculiarities and environmental hazards associated with plastic waste. The paper concludes that an appropriate legal framework complemented by effective enforcement mechanisms that target plastic waste management and sustainable disposal are required to address the problem. This paper, therefore, calls for the passage of the Plastic Bag (Prohibition) Bill of 2018 before the National Assembly and the effective implementation of the recommended measures aimed at ensuring environmentally-friendly disposal of plastic waste in Nigeria.

Traditional Justice Systems in the Nigerian Administration of Justice: Lessons from Kenya

by | Aug 15, 2023 | JCLA, JCLA V10 I1 2023

Traditional Justice Systems in the Nigerian Administration of Justice: Lessons from Kenya

Author: Abdulrazaq Adelodun Daibu

ISSN: 2521-2605
Affiliations: Senior Lecturer, Department of Private and Property Law, Faculty of Law, University of Ilorin, Ilorin. Nigeria
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 133 – 168
https://doi.org/10.47348/JCLA/v10/i1a6

Abstract

The Nigerian administration of justice is facing many challenges such as congestion of cases in the courts, delays in the prompt resolution of cases, corruption in the formal justice system, a punitive and retributive approach to crime with little or no room for restitution and reparation of victims of crimes, as well as the adversarial, hostile, and technical nature of litigation. Although the federal government and some states have made efforts in respect of criminal matters by the enactment of the Administration of Criminal Justice Act (ACJA) and Administration of Criminal Justice Laws (ACJL) traditional justice systems can effectively ameliorate these challenges in the resolution of both civil and criminal matters. However, the potential benefits of the effective application and operation of traditional justice systems in Nigeria are hindered by their restriction to civil disputes, the lack of a clear and specific legal and policy framework, scant regard for procedural justice, inadequate or lacking of enforcement mechanisms and a retributive and punitive approach of the criminal justice system. This article analyses the nature of the Nigerian traditional justice systems and their relationship with alternative dispute resolution (ADR) mechanisms to see how ADR could complement the Nigerian administration of justice. The article further examines the challenges of the Nigerian administration of justice and the practice of traditional justice systems in Kenya to draw lessons for Nigeria. The article argues that the reconciliatory and restorative focus of tranditional justice systems could help resolve some of the challenges facing the Nigerian administration of justice. The article suggests legal, policy, and institutional reforms and their integration for effective application in Nigeria.

Examining the Propriety of Section 84(1) of the Sheriffs and Civil Process Act of Nigeria from the Lens of the Supreme Court’s Decision in Central Bank of Nigeria V Insterstella Com Ltd

by | Aug 14, 2023 | JCLA, JCLA V10 I1 2023

Examining the Propriety of Section 84(1) of the Sheriffs and Civil Process Act of Nigeria from the Lens of the Supreme Court’s Decision in Central Bank of Nigeria V Insterstella Com Ltd

Authors: David Tarh-Akong Eyongndi, Oluwakemi Oluyinka Odeyinde

ISSN: 2521-2605
Affiliations: LLB (Hons) UNICAL, LLM (Ibadan), BL, Assistant Professor, College of Law, Bowen University, Iwo, Osun State, Nigeria; LLB (Hons) Ibadan, LLM (UNILAG), BL Lecturer Centre for Foundation Education, Bells University of Technology, Ota, Ogun State
Source: Journal of Comparative Law in Africa, Volume 10 Issue 1, p. 169 – 189
https://doi.org/10.47348/JCLA/v10/i1a7

Abstract

Where a person has litigated a case against anybody or the government and judgment is given in monetary value, where the judgment debtor fails to voluntarily settle the judgment sum, the judgment creditor must enforce the judgment. In enforcing the judgment which is usually via garnishee proceedings, the Sheriff and Civil Process Act (SCPA) provides that the consent of the Attorney General (AG) must be sought and obtained once the funds to be used in satisfying the judgment are in the possession of the public officer. This paper, while underscoring the rationale for this prerequisite, examines its propriety vis-à-vis the finality of a court judgment, by adopting doctrinal methodology. It raises the question that since the AG’s consent is to be sought and same can be denied, what option, if any, is open to a person after such denial? Can a mandamus be used to compel the AG to consent, seeing that the giving of consent is not a duty to be performed but a discretion? The paper argues that this practice amounts to subjugating the implementation of Court’s determination/decision to the discretion of the AG which is inimical to the smooth delivery of justice. It may undermine the sanctity of court’s pronouncements as well as democracy. Therefore, the paper calls for the abolition of this practice as way forward.

Tax policy gap in southern African countries: Reflections on indirect tax coordination and tax diversity in SADC post Covid-19

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

Tax policy gap in southern African countries: Reflections on indirect tax coordination and tax diversity in SADC post Covid-19

Author: Puseletso Letete

ISSN: 2521-2605
Affiliations: BA Law, LLB (NUL), LLM (UCT), PhD (Edinburgh). Professor, School of Law, University of South Africa until 31 August 2022
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 1 – 32
https://doi.org/10.47348/JCLA/v9/i2a1

Abstract

The Southern African Development Community (SADC) tax policy on indirect tax coordination has mainly been guided by an approach toward the harmonisation of tax bases, the convergence of tax rates and the movement of taxes toward tax uniformity. This approach is one envisaged by the member states and reflected in Annex 3 of the Protocol on Finance and Investment. However, in recent studies, writers in this area opine that countries within a regional integration economic area (REC) should instead adopt an approach characterised by tax diversity of the indirect tax systems, as well as mutual coordination and cooperation to contribute towards economic integration. Recent literature proposes that tax coordination of indirect taxes must consider other options that move away from the uniformity of taxes, rates, and tax base. This paper considers this approach of placing tax diversity at the centre of the SADC tax policy of coordination of indirect taxes, particularly VAT and excise taxes. The paper reflects on the previous approaches that have characterised the implementation of the existing legal framework in tax coordination in the SADC and critically examines the implementation of the VAT and excise taxes guidelines and their significance in achieving tax coordination of indirect taxes. The article emphasises the importance of the SADC realising its goal of coordinating indirect taxes, particularly post Covid-19, due to the imminent need to raise more revenue from cross-border trade in the SADC member states to contribute toward the economic growth of member states.