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.
Friday, 3 February 2017
THE LAWYER'S MYTH
HE IS A LAWYER SO HE IS GATS TO BE RICH, so they pile of bills, ranging from society levies to family bills, nephew school fees, cousins medical fees and so on. Even at parties they reserve the high table for him; numerous invitation to be chairman of societies and clubs. So don't be surprise when you have a bulk of financial obligations awaiting you once you finish from law school, afterall they paid exorbitant fees for your law school. 'lawyer na big man abeg' that is the societal perception of the profession, I don't blame them much, 'cos even lawyer wey never chop sef must wear coat and tie'. Nothing is farther from the truth than the believe that all lawyers are rich.
MYTH 2:
HE IS A LAWYER SO HE MUST BE VERY BRILLIANT, lawyers and law students alike have a way of intimidating laymen with their presence and imposing inferiority complex on them.There is just this aura and ego about the way they do things that gives others the perception that they are brilliant. You dare not act brilliant in front of a lawyer, when he starts to speak those kind of grammar you do not understand ehn, even you will start to doubt your brilliance. He might say things like 'you do not have the jurisdiction to talk to me so everything you are saying now is void ab initio', but nothing is also farther than the truth than the believe that all lawyers are brilliant, some of them are doubtlessly outstanding.
MYTH 3:
LAWYERS ARE LIARS, there is general perception that lawyers are in the business of telling lies and twisting facts, contrary to this believe some of the most truthful and honest people you could meet in life are lawyers. Most lawyers are men of principles, and often men with unquestionable integrity.
MYTH 4:
LAWYERS ARE DECENT AND GENTLE PEOPLE, nothing is farther than the truth than this very one, don't try nonsense with your lawyer, he could break bottle on your head, and beat the hell out of you if you try to prove stubborn. *Smiles*, a lawyer is unlikely to this though, but don't think all lawyers are meek. There are those who go from the bar to bars, they can name every alcohol in the market, they know the names of all the clubs in town, and they could really beat life out of you if you 'do anyhow'. We call them 'criminal lawyers'
MYTH 5:
HE IS A LAWYER SO HE MUST KNOW HOW TO SPEAK AND WRITE GOOD ENGLISH, this is not so today anymore, some lawyer's spoken English is worse than that of Falz the bad guy. Although mastery of the English language ought to be a perequisite for legal education, but when you hear some lawyers address the court you will be wondering how they passed The Common Entrance English Language Examination.
MYTH 6:
LAWYERS ARE FAITHFUL SPOUSES, a friend once told me she likes to marry a lawyer because they are faithful. My laughter knew no bounds. I was wondering where she got that idea from until I heard it again from another person. Not only is this untrue, the reverse is in fact the truth. Coupled with their great appeals to the opposite sex, is their ingenuiety in dodging the truth, so the chances are that you will never catch him in the act.
MYTH 7:
LAWYERS ARE LAW ABIDING, rather than their knowledge of the law instilling some level of obedience to the law, it confers on them some sense of immunity, so you usually finding lawyers intelligently avoiding rules and regulations. Like flouting dress codes, avoiding dues, etc.
MYTH 8:
LAWYERS ARE BOOKWORM, it is true that the legal profession requires extensive reading, but the perception that law students and lawyers read to their death is untrue. Most law students and lawyers spend a ample amount of time engaging in social activities and attending social functions.
MYTH 9:
LAWYERS ARE BORING PEOPLE, the legal profession is easily associated with boredom, maybe for it customary use of white and black or the rigid nature of the profession; but in all honesty some of the most fun to be with and most fun loving people I have met are lawyers and law students. I agree that there is a negligible few of them who are boring, but on the majority, most lawyers are fun loving people.
MYTH 10:
LAWYERS ARE EGOISTIC, it is very easy for you to hear people say lawyers and law students are proud, this is usually nothing but for the personal inferiority they feel when they are around lawyers and law students. I have earlier mentioned the aura of lawyers, you need to be around one to know what that aura feels like. I tell you it is very easy for you to feel inferior or intimidated when a lawyer is around you, but this doesn't mean lawyers are proud. Do not mistake their aura and confidence for pride because of your own lack of confidence. Pride is a personal problem, it is not peculiar to lawyers.
HAVE A NICE DAY
Subscribe to:
Posts (Atom)