Les Orientions du Législateur OHADA Dans L’auscgie Révisé

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Les Orientions du Législateur OHADA Dans L’auscgie Révisé

Authors Patrice Samuela Badji

ISSN: 2521-2605
Affiliations: Agrégé des Facultés de Droit, UCAD
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 114 – 148

Abstract

The OHADA legislator has made a decision to make this law attractive, which has been demonstrated through several reforms. Thus, corporate law, a law of globalisation, could not escape this reform movement. Indeed, when browsing the revised Uniform Act relating to Commercial Companies and GIE, it is clear that the legislator is attempting to overcome the endless conflicts between several notions or concepts in an effort to allow inclusive and democratic management of the company. However, shortcomings have been noted with regard to a lack of knowledge of corporate social responsibility standards and procedural rights of managers and associates who are in conflict with the company or partners. The conclusion is that these failures will be met in the next set of corporate law reforms.

Minority Shareholders’ Rights and the Majority Rule under Corporate Governance: An Appraisal

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Minority Shareholders’ Rights and the Majority Rule under Corporate Governance: An Appraisal

Authors Oluwasegun Isaac Aderibigbe

ISSN: 2521-2605
Affiliations: Law lecturer and researcher, Faculty of Law, Bowen University, IWO, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 100 – 113

Abstract

This article examines minority shareholders’ rights under corporate governance; what those rights are and what they should be, particularly in developing jurisdictions like Nigeria. The article subscribes strongly to the quest for the recognition and enforcement of minority shareholders’ rights under corporate governance. Once a company is incorporated, it assumes a legal status distinct from its subscribers; it can sue and be sued in its corporate name. Consequently, whenever the company has been wronged it is only the company that can seek redress; this is founded on the doctrine known as the majority rule as laid down in Foss v Harbottle [fn1]. The courts and a number of corporate laws in developing jurisdictions have over the years laid down several exceptions to this rule, thereby giving the minority shareholders right to seek redress against the majority shareholders in certain circumstances. This article interrogates the rationale behind the exceptions to the majority rule, with a special focus on developing jurisdictions. The article concludes that the majority rule is tainted with oppressive intentions rather than being a strategic imperative, particularly in respect of the right of minority shareholders to seek redress in court and that the strict application of the majority rule may create some intricate practical and legal problems. The success of the free market economy depends on the success of companies which rely on the leadership and performance of directors. The success of companies depends on directors bringing enterprise and integrity into their relationships with all shareholders, particularly minority shareholders. This research paper makes a modest contribution to knowledge in the sphere of minority shareholders’ rights and discusses how to facilitate a robust regime of the recognition and enforcement of minority shareholders rights under corporate governance in developing countries. footnote 1: (1843) 2 HARE 461

Daughter/Widow Retention in Nigeria: Survey and Analysis of Case Law

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Daughter/Widow Retention in Nigeria: Survey and Analysis of Case Law

Authors Nwudego Nkemakonam Chinwuba

ISSN: 2521-2605
Affiliations: Senior lecturer in law, University of Lagos, Department of Private and Property Law, Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 82 – 99

Abstract

This paper provides a case law survey of the custom of daughter/widow retention, alternatively referred to as ‘woman-to-woman’ marriage, in Nigeria. Since the empirical survey presenting the patterns is taken from case law, the paper necessarily adopts a socio-legal approach, invoking a need for limited analysis of the cases. Existing studies of the custom emphasise the role of patriarchy, succession and gender socialising in its development. However, a closer look at the custom and ancillary customs from the same ethnic group suggests that the relevance of womanhood to the scheme of society’s affairs, a chance at women’s self-actualisation, and the individual’s dignity, in spite of circumstances of birth, have played more significant roles in the sustenance, perpetuation and acceptance of the custom. Is the custom still relevant? The approach of the Nigerian courts is to abolish this custom vide ‘judicial legislating’. The paper shows that the larger society within which the custom operates accepts its ideals, thereby making African customary law structures that thrive on informal dispute resolution and persuasion the only viable way of resolving the conflicts and calming the tensions emanating from the clash between this custom and modernity. Persuasion through convincing strategies would thus work better than the current attitude of the Nigerian superior courts.

La Réparation des Dommages Causés Aux Détenteurs des Droits Fonciers du Fait des Exploitations Minieres: Réflexion à Partir de Textes Camerounais

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

La Réparation des Dommages Causés Aux Détenteurs des Droits Fonciers du Fait des Exploitations Minieres: Réflexion à Partir de Textes Camerounais

Authors Jules Goudem

ISSN: 2521-2605
Affiliations: Docteur de 3e cycle et Docteur/Ph.D. en droit privé, Chargé de cours, Université de Yaoundé II (Cameroun)
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 48 – 81

Abstract

Mining is one sector where the national legislator legislated early. Despite the fact that mines are considered priority areas as factors for development, the problem of taking into account the rights of landowners within the mining areas remains critical. This article shows that compensation for damages suffered by land rights holders due to mining activities is inadequate with respect to certain foreign experiences, in particular the Canadian one. On the other hand, compensation for damages of the same kind suffered by those who have been expropriated is sometimes appropriate. However, this is not the case for mining operations that have not been preceded by expropriation or incorporation. The law recognises the right to significant compensation for victims, even if judicial guarantees may be subject to uncertainty, which the next reforms should eliminate.

Agenda for Intra-African Economic Development: Business-Legal Frameworks, Enablers and Impediments

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Agenda for Intra-African Economic Development: Business-Legal Frameworks, Enablers and Impediments

Authors Olawale Ajai

ISSN: 2521-2605
Affiliations: Professor of Legal, Social and Political Environment of Business, Lagos Business School, Pan Atlantic University, Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 1 – 47

Abstract

Africa, once described as the ‘Dark Continent’, is now regarded as the next frontier for the internationalisation of developed and emerging market multinational corporations (MNCs) and small and medium enterprises (SMEs). Although viewed as a continent with burnished democracies, there is no doubt that a resurgent Africa, with a combined middle class of 600 million people and a raft of the fastest growing economies in the world, presents immense economic opportunities. In recent times there has been a noticeable trend in the internationalisation of African firms into Africa. With the repositioning of African political and economic cooperation, and emphasis on economic cooperation, intra-African-led economic development seems more plausible. Conversely, there are still xenophobic tendencies and trade barriers that bedevil intra-African trade and commerce. The differences in laws, legal culture and other institutional voids, in addition to constrained political and country business environmental factors, appear to be serious impediments. This paper undertakes a fairly extensive cross-disciplinary literature review and investigates the scope of the existing legal and business environments for intra-African business, with a view to identifying the key enabling and constraining factors and institutions. It highlights key areas and strategies for legal and institutional reforms and for further business-legal research.

The Protection of Traditional Cultural Expressions in Africa by Enyinna Nwauche, Springer International Publishing, 2017

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

The Protection of Traditional Cultural Expressions in Africa by Enyinna Nwauche, Springer International Publishing, 2017

Authors AC Diala

ISSN: 2521-2605
Affiliations: Research Fellow, Centre for Comparative Law in Africa, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 200 – 203

Abstract

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