once there is a legal duty to act, failure to act becomes an offence. This statement underlines the concept of criminal omissions.
The law does not only punish a person for doing what he is not supposed to do, the punitive hands of the law is also upon that man who knows what he is supposed to do and does it not.
However, a thick line is drawn between what morality dictates and what the law dictates. For instance, morality dictates that if I see a person drowning, that I should dive in to save his life where it would be reasonable to do so; but if I rather choose to cross my leg and enjoy the scenery, and watch the person drown, gasping for breadth making desperate plea for help, and I do nothing, my conscience condemns me but the law does not.
WHEN THEN WILL THE LAW CONDEMN ME?
When my duty surpecedes a mere moral obligation, the law condemns me; when the duty is a legal duty.
Taking the scenario above, if my job is to save people from drowning (a lifegaurd), suppose it happens in a pool where I am employed, then the law condemns me, as the duty is now a legal one. see R v. Dytham (1979) QB 722
This legal duty may be imposed by statute, by contract or implied by court.
For instance, The Children and Young Persons Act 1993 imposes a legal duty on parents or anyone standing in loco parentis to feed and provide medical care for their ward, and makes neglecting a child an offence. There is also a legal duty to take care on aged members of the family, once a relationship of reliance is established. R v. Stone and Dobinson (1977).
Also, the Road Traffic Act imposes on motorist the duty of reporting road accidents to the police.
Legal duty could be imposed by contract- see R v. Pithwood (1902) and R v. Benge (1865).
In all cases where there is a legal duty, there would only be liability for failure to act if it is reasonable to act in the circumstance. That is, the law will not impose on a man the duty to save another at his own peril.
QUESTION: A is sick with typhoid. His father, a pastor of Grace Revival Ministries refuses to take him to the hospital, stating that he had been administered holy water and should get well. A's condition worsens and his father still remain adamant despite the plea of his wife that A should be taken to the hospital for proper treatment. 3 days later, A dies of Typhoid, could a charge of murder be sutained against A's father?
Tuesday 23 April 2019
CIVIL JURISDICTION OF COURTS IN NIGERIA
Jurisdiction refers to the power or authority of the court to adjudicate over a specific subject matter. Jurisdiction is a matter of law, so usually the Constitution or the law creating the court will prescribe it's jurisdiction.
TYPES OF JURISDICTION
There are different types of jurisdiction, these are:
1. Limited and Unlimited Jurisdiction: when the Jurisdiction of a court is limited this means that the court has jurisdiction to adjudicate over specific matters but not over every matter (I.e the Jurisdiction of the court is restricted to specific matters). Whereas, where jurisdiction is unlimited it means the court can adjudicate over all matters. Presently, no court in Nigeria has unlimited jurisdiction. Previously, the State High Court used to have unlimited jurisdiction.
2. Territorial Jurisdiction: The jurisdiction of certain courts is limited to their geographical location. For instance, the jurisdiction of the High Court of a state is limited to their respective states. See OGBUANYIYA v OKUDU
3. Divisional Jurisdiction: Certain courts are divided into judicial divisions. The division into judicial divisions is however merely for administrative convenience. Thus, commencing an action in the wrong division will not vitiate proceedings.
4. Constitutive Jurisdiction: This means for a court to properly exercise jurisdiction over a matter it must be constituted by the required number of judges/justices.
5. Original, appellate and exclusive jurisdiction: A court is said to have original jurisdiction where it presides over a matter as a court of first instance. A court has appellate jurisdiction where appeal from a matter in a lower court lies to it. Similarly, a court is said to have exclusive jurisdiction where it has the right to hear a matter to the exclusion of all other Courts.
6. Procedural and Substantive Jurisdiction: Procedural Jurisdiction refers to the procedure of law by which a matter is brought. Lack of procedural jurisdiction may not vitiate proceedings as the parties can waive it. See MOBIL v LASEPA. Substantive jurisdiction on the other hand refers to the powers of the court to adjudicate over a specific subject matter. Substantive jurisdiction is so crucial that the parties cannot waive it. Lack of substantive jurisdiction will invalidate proceedings. MAXEELL v UAC
The issue of jurisdiction is so crucial that once it is raised the court must stop itself and consider it; it can also be raised by the court suo motu. See OGUNSANYA v DADA
The issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal. However, where raised for the first time on appeal, the leave of court must be sought. OSHATOBA v OLUJITAN
As the court stated in MADUKOLU v NKEMDILIM for the court to properly exercise it's jurisdiction, three things must be present:
1. The subject matter must be that which is within the Jurisdiction of the court.
2. There must be no element in the case to prevent the court from exercising its jurisdiction. (I.e the court must be properly constituted by the right number of judges/justices, each judge/justice must be qualified to seat on the matter etc)
3. The matter must have been brought before the court initiated by due process of law and all conditions precedent must have been fulfilled.
TYPES OF JURISDICTION
There are different types of jurisdiction, these are:
1. Limited and Unlimited Jurisdiction: when the Jurisdiction of a court is limited this means that the court has jurisdiction to adjudicate over specific matters but not over every matter (I.e the Jurisdiction of the court is restricted to specific matters). Whereas, where jurisdiction is unlimited it means the court can adjudicate over all matters. Presently, no court in Nigeria has unlimited jurisdiction. Previously, the State High Court used to have unlimited jurisdiction.
2. Territorial Jurisdiction: The jurisdiction of certain courts is limited to their geographical location. For instance, the jurisdiction of the High Court of a state is limited to their respective states. See OGBUANYIYA v OKUDU
3. Divisional Jurisdiction: Certain courts are divided into judicial divisions. The division into judicial divisions is however merely for administrative convenience. Thus, commencing an action in the wrong division will not vitiate proceedings.
4. Constitutive Jurisdiction: This means for a court to properly exercise jurisdiction over a matter it must be constituted by the required number of judges/justices.
5. Original, appellate and exclusive jurisdiction: A court is said to have original jurisdiction where it presides over a matter as a court of first instance. A court has appellate jurisdiction where appeal from a matter in a lower court lies to it. Similarly, a court is said to have exclusive jurisdiction where it has the right to hear a matter to the exclusion of all other Courts.
6. Procedural and Substantive Jurisdiction: Procedural Jurisdiction refers to the procedure of law by which a matter is brought. Lack of procedural jurisdiction may not vitiate proceedings as the parties can waive it. See MOBIL v LASEPA. Substantive jurisdiction on the other hand refers to the powers of the court to adjudicate over a specific subject matter. Substantive jurisdiction is so crucial that the parties cannot waive it. Lack of substantive jurisdiction will invalidate proceedings. MAXEELL v UAC
The issue of jurisdiction is so crucial that once it is raised the court must stop itself and consider it; it can also be raised by the court suo motu. See OGUNSANYA v DADA
The issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal. However, where raised for the first time on appeal, the leave of court must be sought. OSHATOBA v OLUJITAN
As the court stated in MADUKOLU v NKEMDILIM for the court to properly exercise it's jurisdiction, three things must be present:
1. The subject matter must be that which is within the Jurisdiction of the court.
2. There must be no element in the case to prevent the court from exercising its jurisdiction. (I.e the court must be properly constituted by the right number of judges/justices, each judge/justice must be qualified to seat on the matter etc)
3. The matter must have been brought before the court initiated by due process of law and all conditions precedent must have been fulfilled.
WHAT IS EVIDENTIAL WEIGHT?
This refers to the importance that the judge or jury attaches to a piece of evidence. It is an abstract science in that there is no physical scale with which a judge or jury can measure whether a piece of evidence is more important than another; so it's more of a question of logic and inference. It also depends on the opinion of a judge or jury as to whether he believes a particular witness or not.
The admissibility of evidence is one thing, the weight the court would attach to it is another. The court may admit a piece of evidence and yet attach no weight to it. That is, the piece of evidence is of no value when the court is reaching it's conclusion. (see Kolawole v. The State LER[2015] SC.82/2012)
Testimonies and pieces of evidence which are altogether unconnected with a fact in issue carry no weight at all. The closer the connection of a piece of evidence with a fact in issue, the greater the weight it carries.
Also the more reliable the judge or jury thinks a witness testimony is, the greater the weight that will be attached to it. If a judge or judge does not believe a witness or feels that his accounts are untrue or unreliable for numerous contradictions, little or no weight will be accorded to his testimony.
Section 34 of the Evidence Act 2011 outline factors the court may consider in determining the weight of a statement, these include:
1. Inference as to the accuracy or otherwise of the statement.
2. Contemporaneity of the statement.
3. Whether the maker had an incentive to misrepresent facts
Weight is important because it helps the judge or jury in reaching its verdict. At the end of the trial, the judge of jury would have to weigh the evidence adduced on both sides to determine in whose favour the scale of justice tilts.
When determining what weight will be accorded to a piece of evidence, the court would look at the quality of evidence and not its quantity. In other words, the testimony of one or two witnesses may have more weight that the speculations of 20 others. (See Trade Bank Plc v . Dele Morenikeji (Nig.) Ltd (2005) 6 NWLR ( Pt. 921) 309)
The admissibility of evidence is one thing, the weight the court would attach to it is another. The court may admit a piece of evidence and yet attach no weight to it. That is, the piece of evidence is of no value when the court is reaching it's conclusion. (see Kolawole v. The State LER[2015] SC.82/2012)
Testimonies and pieces of evidence which are altogether unconnected with a fact in issue carry no weight at all. The closer the connection of a piece of evidence with a fact in issue, the greater the weight it carries.
Also the more reliable the judge or jury thinks a witness testimony is, the greater the weight that will be attached to it. If a judge or judge does not believe a witness or feels that his accounts are untrue or unreliable for numerous contradictions, little or no weight will be accorded to his testimony.
Section 34 of the Evidence Act 2011 outline factors the court may consider in determining the weight of a statement, these include:
1. Inference as to the accuracy or otherwise of the statement.
2. Contemporaneity of the statement.
3. Whether the maker had an incentive to misrepresent facts
Weight is important because it helps the judge or jury in reaching its verdict. At the end of the trial, the judge of jury would have to weigh the evidence adduced on both sides to determine in whose favour the scale of justice tilts.
When determining what weight will be accorded to a piece of evidence, the court would look at the quality of evidence and not its quantity. In other words, the testimony of one or two witnesses may have more weight that the speculations of 20 others. (See Trade Bank Plc v . Dele Morenikeji (Nig.) Ltd (2005) 6 NWLR ( Pt. 921) 309)
Thursday 5 October 2017
WINGRASS | Empower Yourself: COMPETENCE AND COMPELLABILITY OF WITNESSES IN NIGERIAN COURTS
http://www.lawstudentcompanion.com/forums/law-and-legal-articles/39/competence-and-compellability-of-witnesses-in-nigeria
Wednesday 5 July 2017
INJUNCTIONS AS AN EQUITABLE REMEDY
An injunction is an order of the court commanding a person to do an act or refrain from doing an act.
Where there is a continuing breach, an injunction is the appropriate remedy. An example is where there is a continuing trespass on the applicant's land.
An injunction can be sought for an actual breach or an anticipatory breach. A breach is anticipatory where the defendant had not begun the infringing act, but has made preparations for doing that.
An injunction granted for an anticipatory breach is known as a qua timet injunction.
Injunctions like other equitable remedy is discretionary. That is, the court has a discretion whether or not to grant an injunction. The House of Lords in American Cyanamid v. Ethicon Ltd sought to set out the framework to guide the court in the exercise of its discretion. It stated that the factors to be considered are as follows:
1. That there is a substantial case to be tried,
2. that there is a risk of irreparable damage to the applicant,
3. that the applicant would not be sufficiently compensated by an award of damages,
4. that the applicant is willing and able to compensate the defendant adequately if his case fails.
1. That there is a substantial case to be tried,
2. that there is a risk of irreparable damage to the applicant,
3. that the applicant would not be sufficiently compensated by an award of damages,
4. that the applicant is willing and able to compensate the defendant adequately if his case fails.
The Supreme Court in Buhari v. Obasanjo stated that in granting an injunction the court will consider the 'balance of convenience' on both sides to see where the pendulum tilts.
Injunctions can be classified as follow:
1. Interim Injunctions: This is usually granted exparte (I.e without notice to the other party), before trial to maintain the status quo pending a trial on notice, and a grant of an interlocutory injunction.
2. Interlocutory Injunction: This is usually granted during trial on notice to all parties to maintain the status quo pending the determination of the matter and an award of a final injunction.
3. Permanent or Final Injunction: This is granted at the end of the proceeding on merit, upon the determination of the matter.
Examples of Injunction include:
1. Manreva Injunction: An order granted to freeze the assets of the defendant upon which judgement would be levied to prevent him from transferring it or moving it out of the jurisdiction of the court with a aim of defeating or delaying the execution of a judgement.
2. Anton Pillar Injunction: This is an order for entry and seizure levied on the premises of the defendant, where it is believed that he stores materials for infringement or infringing copies of a work.
1. Interim Injunctions: This is usually granted exparte (I.e without notice to the other party), before trial to maintain the status quo pending a trial on notice, and a grant of an interlocutory injunction.
2. Interlocutory Injunction: This is usually granted during trial on notice to all parties to maintain the status quo pending the determination of the matter and an award of a final injunction.
3. Permanent or Final Injunction: This is granted at the end of the proceeding on merit, upon the determination of the matter.
Examples of Injunction include:
1. Manreva Injunction: An order granted to freeze the assets of the defendant upon which judgement would be levied to prevent him from transferring it or moving it out of the jurisdiction of the court with a aim of defeating or delaying the execution of a judgement.
2. Anton Pillar Injunction: This is an order for entry and seizure levied on the premises of the defendant, where it is believed that he stores materials for infringement or infringing copies of a work.
In conclusion, over the years, injunctions have become an indespensable remedy in all judicial proceedings over the years.
DAMAGES AS COMMON LAW REMEDY
Historically, the only remedy available at Common Law is the award of damages, which was not always sufficient in all cases, this led to the intervention of the court of Chancery in awarding equitable remedies one of which is injunctions which we discussed earlier.
In simple terms, damages merely refers to monetary compensation for the loss suffered by the plaintiff from the breach of the defendant. The object of the award of damages is to put the defendant in the position he would have been as the breach not taken place as far as possible. For Instance, if A a car dealer contracts to sell a Car to be for N5 million, and B fails to buy the car, and a result of delay in selling the car as at the time A will sell the car to C, the market value has reduced to N4 million, A will be awarded the difference of N1 million as damages.
As a general rule, damages are intended to be compensatory and not punitive. However, in certain circumstances the court may award examplary damages where for instance the defendant's act was either willful or flagrant.
Let's examine the various types of damages:
1. Compensatory Damage: This is an award for the pecuniary loss of the the plaintiff (see F.R.A Williams v. Daily Times Nigeria Ltd). This could be classified into:
A. General damages: This is the damages which the court award based on the presumed loss of the plaintiff. That is, the attitude of the court is this; if there is a breach then there must be some damage. So, the plaintiff need not specially plead that he suffered any real or actual damage before general damage is awarded.
B. Special Damages: This is awarded in addition to general damages where the plaintiff shows that he suffered some real or actual Damages. Such as loss of profit, loss of income and earnings, etc. They need to be specially pleaded before they are awarded.
2. Punitive or Exemplary Damage: This is compensation awarded over and above the damage suffered by the plaintiff, as a punishment to the defendant. Thus where the actual loss is N1 million the court may award N10 million to the plaintiff as punishment to the defendant. This is usually where the breach is intentional, flagrant, or the defendant derived economic benefit from it. (see Rookes v. Bernard)
3. Aggravated Damages: This is an award for non pecuniary loss of the Plaintiff such as loss of reputation, goodwill, honour, pride, integrity etc. (see F.R.A Williams v. Daily Times Nigeria Ltd)
4. Nominal Damages: this is awarded where the loss suffered by the defendant is minimal or insubstantial, it is an award of meagre amount to the plaintiff.
Some Rules Governing the Award of Damages
1. Remoteness of Damage: The court will usually not award any damage for a consequence that is too remote to be said to result from the breach. For example, if A contracts to sell his car to B and B fails to buy and as a result the car was stolen in A premises. This loss of the car can not be said to result from B breach, and thus is too remote.
2. Mitigation of Loss: In Law, A is expected to mitigate his loss and not allow it to flow endlessly. so where B fails to buy the car he is expected to sell it at the nearest available window and not leave it to continue to loose value.
THE LAW OF SUCCESSION - INTESTACY
when talking about succession, 'it always cheaper and easier to employ the service of a lawyer to avoid getting into a mess than employing one to get out of a mess'.
The beautiful thing about the law of succession is that it affects almost everybody. In a lifetime, you are either going to inherit property or pass property to your heirs. Whichever category you fall in, it must be in accordance with law, and like they say, 'ignorance of the law is no excuse'.
Property is generally divided into two types:
1. Real Property (land and landed property)
2. Personal property (all other property apart from land)
There are two types of succession
1. Testate Succession (where there's a valid will)
2. Intestate Succession (where there is no valid will or the will covers only part of the property of the deceased)
A will or testament is a legal document by
which a person, the testator , expresses their
wishes as to how their property is to be
distributed at death, and names one or more
persons, the executor , to manage the estate
until its final distribution.
A gift of Personal property through a will is known as a LEGACY, and the beneficiary is called a LEGATEE
A gift of real property through a will is known as a DEVISE, and the beneficiary is DEVISEE
A person who wishes to pass his estate to his heirs may do so through a will, where he does not, his estate forms intestate estate and is governed by Laws relating to intestacy. Subsequently we will examine the laws relating to making of a will in another post, but here our focus will be on INTESTACY.
Intestacy is the condition of the estate of a person who dies without
having made a valid will or other binding declaration. Alternatively
this may also apply where a will or declaration has been made, but
only applies to part of the estate; the remaining estate forms the
" intestate estate".
Where a person dies intestate, his estate is governed by the personal law of the deceased and the rules of equity. If during his lifetime, the deceased was subject to customary law, his estate would devolve in accordance to the rules of Customary Law, but where not, his estate is governed by the Administration of Estates Law of the various states in Nigeria. (see SALUBI v. NWARIAKU)
Where a person whose estate is governed by customary law on intestacy, a letter of administration need not be obtained for devolution of the property and the property may be shared by the community head or family head in line with the prevalent custom; but where the property is bound by the Administration of Estates Law, a letter of administration must be obtained.
Letter of Administration is the legal authority granted by the Probate Court to a person
called the administrator or administratrix to administer the estate or property of a
person who died intestate. A person is said to have died intestate when he dies without
leaving behind a valid will. The administrator derives his or her authority to act from
the terms of the letters of administration,
granted, an administrator lacks the authority to act. Ademola v. Sodipo (1989) 5 NWLR (Pt. 121)329.
Any person interested in the Estate of the deceased may apply for a letter of administration.
of Estate Law, Laws of Lagos State,
Volume 1, CAP A3, 2003)
The maxim number of persons that can apply for a letter of administration is four. (see Section 24 Administration of Estate Law, Laws of Lagos State).
Section 49(1) of the Administration of Estates Law states that, the estate of a person
who died intestate shall be distributed in the following manner; the surviving husband or
wife shall take the personal chattels absolutely and in addition the estate (excluding
personal chattels) shall be charged with the payment of a net sum of money equivalent
to the value of one third of the estate, free of funeral expenses, to the surviving
husband or wife plus interest from the date of death at the rate of 2½ % per annum
until paid or appropriated and subject to providing for that sum the estate (excluding
personal chattels) shall be held as follows; (a) one-third upon trust for the surviving
husband or wife during his or her lifetime and subject to such life interest, on the
statutory trusts for the children of the deceased; and (b) two thirds on the statutory
trusts for the children of the deceased.
The beautiful thing about the law of succession is that it affects almost everybody. In a lifetime, you are either going to inherit property or pass property to your heirs. Whichever category you fall in, it must be in accordance with law, and like they say, 'ignorance of the law is no excuse'.
Property is generally divided into two types:
1. Real Property (land and landed property)
2. Personal property (all other property apart from land)
There are two types of succession
1. Testate Succession (where there's a valid will)
2. Intestate Succession (where there is no valid will or the will covers only part of the property of the deceased)
A will or testament is a legal document by
which a person, the testator , expresses their
wishes as to how their property is to be
distributed at death, and names one or more
persons, the executor , to manage the estate
until its final distribution.
A gift of Personal property through a will is known as a LEGACY, and the beneficiary is called a LEGATEE
A gift of real property through a will is known as a DEVISE, and the beneficiary is DEVISEE
A person who wishes to pass his estate to his heirs may do so through a will, where he does not, his estate forms intestate estate and is governed by Laws relating to intestacy. Subsequently we will examine the laws relating to making of a will in another post, but here our focus will be on INTESTACY.
Intestacy is the condition of the estate of a person who dies without
having made a valid will or other binding declaration. Alternatively
this may also apply where a will or declaration has been made, but
only applies to part of the estate; the remaining estate forms the
" intestate estate".
Where a person dies intestate, his estate is governed by the personal law of the deceased and the rules of equity. If during his lifetime, the deceased was subject to customary law, his estate would devolve in accordance to the rules of Customary Law, but where not, his estate is governed by the Administration of Estates Law of the various states in Nigeria. (see SALUBI v. NWARIAKU)
Where a person whose estate is governed by customary law on intestacy, a letter of administration need not be obtained for devolution of the property and the property may be shared by the community head or family head in line with the prevalent custom; but where the property is bound by the Administration of Estates Law, a letter of administration must be obtained.
Letter of Administration is the legal authority granted by the Probate Court to a person
called the administrator or administratrix to administer the estate or property of a
person who died intestate. A person is said to have died intestate when he dies without
leaving behind a valid will. The administrator derives his or her authority to act from
the terms of the letters of administration,
granted, an administrator lacks the authority to act. Ademola v. Sodipo (1989) 5 NWLR (Pt. 121)329.
Any person interested in the Estate of the deceased may apply for a letter of administration.
of Estate Law, Laws of Lagos State,
Volume 1, CAP A3, 2003)
The maxim number of persons that can apply for a letter of administration is four. (see Section 24 Administration of Estate Law, Laws of Lagos State).
Section 49(1) of the Administration of Estates Law states that, the estate of a person
who died intestate shall be distributed in the following manner; the surviving husband or
wife shall take the personal chattels absolutely and in addition the estate (excluding
personal chattels) shall be charged with the payment of a net sum of money equivalent
to the value of one third of the estate, free of funeral expenses, to the surviving
husband or wife plus interest from the date of death at the rate of 2½ % per annum
until paid or appropriated and subject to providing for that sum the estate (excluding
personal chattels) shall be held as follows; (a) one-third upon trust for the surviving
husband or wife during his or her lifetime and subject to such life interest, on the
statutory trusts for the children of the deceased; and (b) two thirds on the statutory
trusts for the children of the deceased.
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