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Law of Bankruptcy.

2011-01-17T02:38:00.001-08:00

Bankruptcy has been defined by Halsbury's Laws of England as:
A proceeding by which the State takes possession of the property of a debtor by an officer appointed for the purpose, and such property is realized and, subject to certain priorities, distributed rateably among persons to whom the debtor owes money or has incurred pecuniary liabilities.

When a debtor is unable to liquidate his debts, and there is no likelihood of his being able to do so in the immediate future, action may be taken against him in a court of law, whereby the debtor's estate is administered through the instrumentality of the court for the benefit of the debtor's creditors

It follows that in the process of the bankruptcy proceedings, the debtor is given protection against suits by the persons to whom he is indebted and, if after he has been publicly examined, he is not found guilty of serious misconduct, he can, subject to stipulated conditions, obtain a discharge from his debts and liabilities.

Bankruptcy was originally regarded as a crime. However, this is no longer the case; nevertheless a bankrupt is subject to certain legal disabilities, which make his position unenviable

OBJECTIVES OF BANKRUPTCY

There are three main purposes of bankruptcy law, namely:
1. To provide for equality in the distribution of the debtor's property among creditors of the same rank. In other words, to establish an arrangement whereby creditors are treated justly and fairly by the debtor in relation to the distribution of the available property.
2. To provide a machinery whereby a debtor is freed from his debts and perhaps afford him the chance of making a fresh start; and
3. To enquire into the circumstances responsible for the insolvency and thereby provide information which may deter others from accumulating debts which they are unable to liquidate.

ACTS OF BANKRUPTCY

Section 1(1) of the Act specifies three such acts of bankruptcy, namely:

1. If a creditor has obtained a final judgment or final order against him for any amount, and execution thereon not having been stayed, has a bankruptcy notice served on him and he does within 14 days after service of the notice, comply with the requirements of the notice or satisfy the court that he has a counter-claim, set off or cross demand which equals or exceeds amount of the judgment debt or sum ordered to be paid, and which he could not set cp in action in which the judgment was obtained or the proceedings in which the order was obtained.

2. If execution against him has been levied by seizure of his goods under process in an action, or proceedings in the court, and the goods have either been sold or held by the bailiff for 31 days: provided that, where an inter-pleader summons has been taken out in regard to the goods seized, the time elapsing between the date at which summons is taken out and the date at which the proceedings on such summons are finally disposed of, settled or abandoned shall not be taken into account in calculating such period of 21 days; and

3. If he files in the court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself.

Section 129-139 of the Bankruptcy Act enumerates the acts of misconduct by a person adjudicated pt, which may expose the bankrupt to liability on being convicted. Such a bankrupt may be e for an offence if:
1. He fails to discover to the trustee all his property and to disclose dispositions made by him (except in the ordinary course of business) to whom, how and for what consideration.
2. He fails to deliver up his property to the trustee.
3. He fails to deliver up books, documents, papers and writing to the trustee.
4. He conceals any part of his property to the value of N50 or upwards.
5. He fraudulently removes any property to the value of N80 or upwards.
6. He obtains or disposes of property obtained on credit and not paid for, unless in the ordinary way of his trade.
7. He makes false entry in any book, and may be fined N200 or imprisonment for twelve months or to both fine and imprisonment.
8. property by fraudulent misrepresentation.
9. He pawns, pledges PERSONS WHO MAY BE BANKRUPT
The term ‘debtor’ is not expressly defined under the Act, but is elastic enough to extend to Nigerians and foreigners alike, and includes any person who at the time when any of the three acts of bankruptcy was done or suffered by him:
1. was ordinary resident in Nigeria; or
2. ordinary resided in Nigeria within one year before the presentation of the petition; or
3. has a dwelling house in Nigeria; or
4. has a place of business in Nigeria; or
5. was carrying on business in Nigeria personally or by means of an agent or manager, or
6. was a member of a firm or partnership of persons which carried on business in Nigeria.

A person who makes a few visits to Nigeria but lives abroad is not 'ordinarily resident in Nigeria. To be ordinarily resident in Nigeria, he must habitually stay in Nigeria.

Generally, any debtor within the jurisdiction owing a debt or debts amounting in aggregate to N2,000 or over, the payment of which can be enforced against him or her personally and who has committed an act of bankruptcy within three months of the presentation of the petition can be made a bankrupt. Foreigners, as stated above, are amenable to bankruptcy jurisdiction as Nigerians.

It should be pointed out that, subject to certain qualifications in respect of certain classes of debtors, every person may be made bankrupt.

INFANTS
MARRIED WOMEN
Sections 39(1) and (2) of the Act makes a married woman a deferred creditor in
property relating to bankruptcy as if she were a feme sole.

INSANE PERSON

CORPORATIONS

PARTNERSHIPS

DECEASED PERSONS

PRESENTATION OF A PETITION IN BANKRUPTCY

JURISDICTION TO ENTERTAIN BANKRUPTCY PROCEDINGS
Section 142 of the Act provides that the former Federal Revenue Court was the only court with original jurisdiction to entertain suits on bankruptcy while sitting in its bankruptcy jurisdiction. Under the 1979 Constitution, the new Federal High Court has taken over the jurisdiction, including the bankruptcy jurisdiction which was formerly vested in the Federal Revenue Court.

THE PETITION
Section 3 provides that if a debtor commits an act of bankruptcy, the court may, on a petition presented to it, make a receiving order for the protection of his estate.

PETITION BY THE DEBTOR
A petition for the adjudication of a debtor bankrupt may be presented either by the debtor himself, or by one or more creditors. In other words, a debtor may present a petition against himself asking that a receiving order may be made in respect of Iris estate and that he may be adjudged bankrupt. Section 8(1) provides that if the petition is presented by the debtor against himself, the petition must allege in it the fact of the debtor's inability to pay his debts. Usually, the court will act on such, allegation, as the presentation of the petition is deemed an act of bankruptcy. Under Section 8(3), a debtor's leave shall not after presentation be withdrawn without leave of the court. And it was held in Re a Debtor that the debts on which the petition is based may be for any amount that is presently payable and not debts payable in the future.

PETITION BY THE CREDITOR
A creditor's petition may be presented by one creditor or several creditors jointly. Section 4(1) of the Act provides that a creditor is not entitled to present a bankruptcy petition against a debtor unless:
1. The debt owing by the debtor to the petitioning creditor, or if two or more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, is at least N2,000;
2. The debt is a liquidated debt, payable either immediately or at some certain future time;
3. The act of bankruptcy on which the petition is grounded has occurred within three months before the presentation of the petition;
4. The debtor is ordinarily resident in Nigeria, or within a year before the date of the presentation of the petition has ordinarily resided, or had a dwelling house or place of business, in Nigeria, or has carried on business in Nigeria, personally or by means of an agent or manager, or is or within the said period has been a member of a firm or partnership of persons which has carried on business in Nigeria by means of a partner or partners or manager.

POWERS OF THE OFFICIAL RECEIVER ON THE FILING OF THE PETITION
As soon as a petition is filed, and the Official Receiver has reason to believe that an offence under the Act or a fraud has been or is about to be committed, he may summon the debtor to appear before him to give such information as he requires. Moreover, he may, for the purpose of inspecting the debtor’s property, stock in trade and books of account, enter on any premises occupied by the debtor between 8 o'clock in the morning and 6 o'clock in the evening, either by himself or through an agent. The debtor is bound to furnish the Official Receiver with all such information as it is debtor's power to give or obtain. If the debtor fails without reasonable cause to attend to the 0ficial Receiver as required, or furnish him with such information as stated above, obstructs the search of the premises or the production of any required book or document or authorizes or permits any such obstruction, the debtor shall be liable on summary conviction to imprisonment for a term of not exceeding six months.

PROCEDURE ON PETITION
As already stated, the court to which a bankruptcy petition must be presented is the Federal High Court. Section 96 of the Act provides that in this and other bankruptcy proceedings, the rules and practice of the court in ordinary civil proceedings are applicable so far as they are relevant and not inconsistent with the provisions of the Act.

Under Sections 7(1), (2) and (3), every creditor's petition must be verified by an affidavit of the creditor or of some person on his behalf having knowledge of the facts and served on the debtor in the same manner as a writ of summons. And at the hearing, the following must be proved the court:
(a). The debt of the petitioning creditor,
(b). The service of the petition; and
(c) The act of bankruptcy or acts of bankruptcy.

If the court is satisfied with the proof, it may make a receiving order in pursuance of the petition. On the other hand, if any of these issues is not proved or if the court is not satisfied that the net asset for division among the unsecured creditors, after payment of expenses and preferred debts, shall be sufficient to pay a dividend of 15 per cent, or considers that for sufficient cause no order ought to be made, it may dismiss the petition.
Section 7(7) provides that a creditor's petition shall not be withdrawn after presentment, without the leave of the court.

THE RECEIVING ORDER
On a bankruptcy petition being presented either by the debtor or a creditor, the court may make an order called the Receiving Order, for the purpose of protecting the estate, if a debtor commits an act of bankruptcy. Section 10 provides that on the making of a receiving order, the Official Receiver shall be constituted receiver of the property of the debtor. In this connection, Section 72(1) states that the Registrar of Companies shall perform the duties conferred upon the Official Receiver. And, under Section 72(2) and (3), a person appointed as Assistant Registrar of Companies shall, for the purposes of bankruptcy law, be designated as Deputy Official Receiver and exercise the-powers conferred on the Official Receiver. The effect of a receiving order is to place the properties and moneys of the debtor under the control of the Official Receiver. Certainly, the receiving order is in the nature of an interim order and does not have the effect of making the debtor bankrupt, nor of depriving him of the ownership of his property. The order merely shifts the control of the debtor's property from the debtor to the Official Receiver pending the determination of the petition. In other words, it has the effect of depriving him of the possession and control thereof so that it can be preserved for equitable distribution among the creditors.

Once a receiving order has been made, all creditors whose debts are provable in bankruptcy are prevented from obtaining any remedy or instituting an action in relation to the debtor's debt, except with the leave of the court, and upon such terms as may be imposed by the court However, this does not affect the power of any secured creditor to realize or otherwise deal with his security. But, the court has power to stay any action, execution or other legal process against the property or person of the debtor. And, this power may be exercised at any time after the presentation of the bankruptcy petition, that is, before the receiving order and after.

Under Section 74(2), it is not proper for the Official Receiver before adjudication to realize the debtor's estate, or to deal with it, except for the purpose of protecting it. However, he may sell perishable goods. But, after the making of the receiving order, the debtor's property is in the custody of the court, and it is contempt of court for anyone to interfere with the possession of the Official Receiver. However, the debtor's landlord can, sometimes validly interfere with his possession. And so long as the landlord has received no dividend in the bankruptcy, the court will not restrain him from exercising his right of distress.

Section 14 provides that notice of every receiving order, stating the names, addresses and description of the debtor, the date of the order, and the date of the petition shall be published in the Gazette by the Official Receiver.

THE OFFICIAL RECEIVER
Under Section 73(3) of the Act, the term, Official Receiver, under the bankruptcy law, includes a trustee in bankruptcy, unless there is a contrary intention expressed under the Act whenever the Official Receiver acts in the capacity of a trustee. And, under Section 73(1), his duties relate both to the debtor's conduct and to the administration of his estate. He works closely with the trustee in bankruptcy and derives much assistance from him in the execution of his functions under the Act.

Every Assistant Registrar of Companies is a Deputy Official Receiver and acts under the general authority and direction of the Official Receiver. And a Deputy Official Receiver has all the powers conferred by the Act on the Official Receiver.
As stated above, the duties of the Official Receiver are twofold, namely -
1. The duty in relation to the conduct of the debtor; and
2. The duty to the administration of the debtor's estate.

DUTIES IN RELATION TO THE DEBTOR'S CONDUCT
Under Section 74, the Official Receiver has the following duties:
1. To investigate the conduct of the debtor and to report to the court, stating whether there is reason to believe that the debtor has committed any act which constitutes an offence under the bankruptcy law or which would justify the court in refusing, suspending or qualifying an order for his discharge;
2. To conduct the public examination of the debtor; and
3. To assist in the prosecution of any fraudulent debtor as may be directed by the Attorney¬ General of the Federation.

DUTIES AS TO THE DEBTOR'S ESTATE
With respect to the estate of the debtor, the duties of the Official Receiver as contained in Section 75(1) are as follows:
1. To act as interim receiver of the debtor's estate pending the appointment of a trustee, and as manager where no special manager has been appointed.
2. To raise money in any case where, in the interests of the creditors, it appears necessary so to do.
3. To summon and preside at the first meeting of creditors.
4. To issue forms of proxy for use at meetings of creditors.
5. To report to the creditors as to any proposal which the debtor may have made with respect to the mode of liquidating his affairs.
6. To advertise the receiving order, the date of the creditor's first meeting and of the debtor public examination, and such other matters as it may be necessary to advertise.
7. To act as trustee during the vacancy in the office of trustee.
8. To assist the debtor in preparing his statement of affairs in case the debtor has no solicitor acting for him and is unable properly to prepare it himself, and for this purpose he may employ at the expense of the estate any person or persons to assist in its preparation.

Under Section 85, any creditor is entitled, with the concurrence of one fourth of the creditors at any time to call upon the Official Receiver to furnish and transmit to the creditors, a statement of the accounts up to the date of such notice. Provided that if so required, the person at whose instance the accounts are furnished must deposit with the Official Receiver a sum sufficient to pay the cost of furnishing and transmitting the accounts, which sum may be repaid to him out of the estate, if the court directs.

FIRST MEETING OF THE CREDITORS
As soon as possible after the making of the receiving order against a debtor, a general meeting of his creditors shall be held for the purpose of considering whether a proposal for a composition or a scheme of arrangement shall be accepted, or whether it is expedient that the debtor shall be adjudged bankrupt. A scheme is where a debtor makes his assets over to be administered by a trustee while a composition is where the debtor undertakes to pay over a certain sum to the creditors. And it is necessary that the debtor must attend the first meeting of the creditors.

Section 15(2) provides that the Chief Judge of the Federal High Court is empowered to make rules providing for the summoning of and proceedings at the first and other meetings of creditors.

THE DEBTOR'S STATEMENT OF AFFAIRS
It is necessary that the Official Receiver should know at the earliest opportunity the extent and nature of the debtor's estate. For this purpose, the debtor shall, after a receiving order is made against him, prepare and submit to the Official Receiver a statement of and in relation to his affairs, called the Debtor's Statement of Affairs. The Statement must be in the prescribed form and should be verified by an affidavit. It must show the particulars of the debtor's assets, debts and liabilities, whether in Nigeria or elsewhere, the securities held by them respectively and the dates when the securities were respectively given, and such further or other information as may be prescribed or as the Official Receiver may require..

FAILURE TO PRODUCE A STATEMENT OF AFFAIRS
If the debtor fails without reasonable cause to comply with this provision of submitting a statement of affairs, he may be punished for contempt of court, and the court may, on the application of the Official Receiver or any creditor adjudge the debtor bankrupt.

Section 16(4) provides that any creditor stating himself to be a creditor of the bankrupt may, on payment of the prescribed fee, personally or by agent inspect the statement at all reasonable times and take any copy thereof or extract therefrom.

COMPOSITIONS AND SCHEMES OF ARRANGEMENT
The debtor may make a proposal for a composition in satisfaction of his debts or a proposal for a scheme of arrangement of his affairs. Obviously, it is generally in the interest of the debtor, if he is in a position to do so, to propose such composition or scheme of arrangement to his creditors, since, if approved, this will have the effect of terminating the bankruptcy proceedings and removing the personal liabilities attaching to a bankrupt As already stated, it is a scheme if the debtor makes over his assets to be administered by a trustee, and a composition where he keeps his assets and pays over to the creditors a certain sum.

PUBLIC EXAMINATION OF DEBTOR
Where the court has made a receiving order, it must hold a public sitting on a date appointed by it for the examination of the debtor with regard to his conduct, dealings and property. The purpose of the examination is to ascertain why the debtor failed to meet his financial obligations. The examination shall be held as soon as conveniently may be after the expiration of the time for the submission of the debtor's statement of affairs.

ADJUDICATION OF BANKRUPTCY
A receiving order, as we have seen, is only an interim order for the purpose of protecting both the debtor and his property pending the meeting of the creditors and their ascertainment of the facts the debtor's affairs. Where the debtor has not made any proposal for a composition or scheme, at there are no grounds upon which to rescind the receiving order, an adjudicating order will be made by the court declaring the debtor bankrupt, presumably either, on the application of the Official Receiver or any of the creditors. Consequently, his property is vested in a trustee in bankruptcy, who is the Official Receiver unless and until a Trustee is appointed, for distribution, after realization among his creditors in accordance with the provisions of the Act.

An adjudicatory order may be made in the event of any of the following:
1. If the creditors at the first meeting or any adjournment thereof, by ordinary resolution resolve that the debtor be adjudged bankrupt; or
2. If the creditors pass no resolution; or
3. if the creditors do not meet; or
4. if a composition or scheme put forward by the debtor is not approved in pursuance of the Act within fourteen days after the completion of the public examination of the debtor or such further extension of time as the court may allow.

RESCISSION AND ANNULMENT OF RECEIVING AND ADJUDICATION ORDERS
The court may review, rescind or vary any order made by it under its bankruptcy jurisdiction. following circumstances:
1. Where the court has sanctioned a composition or scheme.
2. Where the circumstances would justify the annulment of an adjudication order, for example, where the order ought not to have been made, or the debts have been paid in full.
Application to rescind a receiving order is usually made by the debtor, but it may be made by the Official Receiver.

DISCHARGE OF BANKRUPT
Section 28(1) of the Act provides that a bankrupt may, at any time after being adjudged bank¬rupt, apply to the court for an order of discharge, and the court must appoint a day for hearing the application, but the application cannot be heard until the conclusion of the public examination of the bankrupt. And, the application must be heard in open court, unless the court otherwise directs.
DISQUALIFICATIONS OF A BANKRUPT
Section 126(1) of the Act provides that, as a result of a person being adjudged a bankrupt he shall be subject to the following disabilities:
1. He cannot be elected to the office of President, Vice-President, Governor or Deputy Governor,
2. He cannot be elected to, or Sit or vote in, either House of the National Assembly or in a State Assembly;
3. He cannot be elected to, or sit or vote in, any local government council;
4. He cannot be appointed to, or sit or vote in, any governing board of any statutory corporation or any other statutory body (whether corporate or unincorporated), or as provided by Section 178 of the Companies Act, of any company as defined in that section;
5. He cannot be appointed or act as a justice of peace;
6. He cannot be appointed or act as a trustee of a trust estate;
7. He cannot be admitted to practice any profession for the time being regulated by law on his own or in partnership or in any other form of association (other than as an employee) with any other person. .

1. Grant or refuse an absolute order of discharge; or
2. Suspend the operation of the order for a specified time; or
3. Grant the discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the bankrupt or with respect to his after-acquired property. Provided that, if the bankrupt has committed any offence connected with his bankruptcy under the Act, or if any of the facts enumerated below are proved, the court shall –
a. refuse the discharge; or
b. suspend the discharge until a dividend of not less than 50 per cent has been paid to the creditors;
4. require the bankrupt as a condition of his discharge to consent to judgment being entered against him by the Official Receiver or trustee for any balance or part of any balance of the debts provable under the bankruptcy

10. That he has within three months preceding the date of the receiving order incurred liabilities with a view to making his assets equal to 50 per cent of his unsecured liabilities;
11. That he has on any previous occasion, whether in Nigeria or elsewhere, been adjudged bankrupt or made a composition or arrangement with his creditors;
12. That he has been guilty of any other fraud or fraudulent breach of trust.
Section 28(6) provides that, for the purposes of this section, a bankrupt's assets shall be deemed of a value equal to 50 per cent of his unsecured liabilities when the court is satisfied that the property of the bankrupt has realized or is likely to realize, or with due care in realization might have realized an amount of not less than 50 per cent of his unsecured liabilities, and a report by the Official
Receiver or the trustee will be prima facie evidence of the amount of such liabilities.

AUTOMATIC DISCHARGE
For the purpose of dealing with the problem of debtors who refuse to apply for their discharge, Section 31 provides that, notwithstanding the provisions of Sections 28-30 of the Act, a bankrupt shall have an automatic discharge after five years from the date a receiving order was made against him.

BANKRUPTCY OFFENCES
Bankruptcy procedure is not intended to afford a refuge for the fraudulent, but is designed to provide relief to those who are unable to meet their liabilities through no fault of their own. Consequently, many acts which might be committed by the debtor, before and during his bankruptcy, constitute criminal offences and are punishable accordingly.

EFFECT OF DISCHARGE
Section 29(1) provides that, an order of discharge shall not release the bankrupt
1. From any other debt or a recognizance nor from any debt with which he may be chargeable at the suit of the State or of any person for any offence against a statute relating to any branch of the public service on a .bail bond entered into for the appearance of any person prosecuted for any such offence; or

2. From any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party, or from any debt or liability whereof he has obtained forbearance by any fraud to which he was a party. .
Under Section 29(2), an order of discharge shall release the bankrupt from all other debts provable in bankruptcy. .

And, under Section 29(3), an order of discharge shall be conclusive evidence of the bankruptcy and the validity of the proceedings therein. And, in any proceedings that may be instituted against a discharged bankrupt in respect of any debt from which he is released, the bankrupt may plead that the cause of action occurred before his discharge.

APPOINTMENT
Section 21(1) provides that where a debtor is adjudged bankrupt or the creditors have resolved that he be adjudged bankrupt, the creditors may by ordinary resolution appoint the Official Receiver or some other fit and proper person, whether a creditor or not, to act as trustee of the property of the bankrupt; alternatively, they may resolve to leave the appointment to the committee of inspection.

DUTIES OF THE TRUSTEE
1. As soon as a trustee is appointed, he must take possession of the debtor's property and documents, realize the property and distribute the proceeds in the specified order of preference among the creditors.
2. The trustee or Official Receiver shall whenever required by any creditor to do so, furnish and transmit to him by post a list of the creditors showing the amount of the debt due to each creditor, on payment of a prescribed fee.
3. Any creditor with the concurrence of one-fourth of the creditors may request the trustee or Official Receiver to furnish and transmit to the creditors a statement of the accounts up to the date of such request, and the trustee shall upon receipt of such request furnish and transmit the statement of accounts.
4. A trustee shall, as may be prescribed, but at least once in every year during the continuance of the bankruptcy, transmit to the Official Receiver a statement showing the proceedings in the bankruptcy up to the date of the statement. The statement must contain the prescribed particulars and must be made out in the prescribed form. But the Official Receiver may request the trustee to account for any misfeasance, neglect or omission that appears on the said documents or in his accounts. He may also apply to the court for an order that the trustee should make good any loss sustained by the bankrupt's estate as a result of the misfeasance, neglect or omission.
5. The trustee in bankruptcy or under composition or scheme shall never pay any money collected by him into his own banking account or use it otherwise than in the administration of the estate.
6. Every trustee must open an account in the name of the debtor's estate and shall pay to the credit of such account all sums which may from time to time be received by him as such trustee. And, if a trustee at any time retains for more than ten days a sum exceeding N500.00, or such other amount as the court in any particular case may authorize him to retain, then unless he explains the retention to the satisfaction of the court, he shall pay interest on the amount so retained in excess at the rate of twenty per cent per annum, and has no claim to any remuneration. Furthermore, he may be removed from his office by the court and be liable to pay expenses occasioned by reason of his default.
7. The trustee shall keep a record in writing of minutes of all proceedings had and resolutions passed at any meeting of creditors or the committee of inspection, and a statement of all negotiations and proceedings necessary to give a correct view of the management of the bankrupt's property.
8. The trustee must also keep an account called the estate account in the form of an ordinary debtor and creditor account in which he must enter from day to day all his receipts and payments as trustee.
9. The trustee shall produce at every meeting of creditors and the committee of inspection the record and account mentioned above, as well as the passbook of the estate's bank account
10. The trustee must, at such times as may be prescribed but not less than once in each year during his tenure of office, send to the Official Receiver an account of his receipts and payments as such trustee. The account, which must be in the prescribed form, must be made in duplicate and must be verified by an affidavit in the prescribed form.

POWERS OF THE TRUSTEE
Section 57 of the Act provides that the trustee has absolute authority to:
1. Sell all or any part of the property of the bankrupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt), by public auction or private treaty;

2. Give receipts for any money received by him, thereby discharging the debtors;

3. Prove, claim and draw any dividend in respect of any debt due to the bankrupt;

4. Exercise any powers given him by the Act, and execute any powers of attorney, deeds and other instruments for the purpose of carrying into effect the provisions of the Act.

POWERS EXERCISABLE WITH THE PERMISSION OF THE COMMITTEE OF INSPECTION
Section 58(1) provides that the trustee may, with the permission of the committee of inspection do all or any of the following things:
1. Carry on the business of the bankrupt so far as may be necessary for the beneficial winding up of the same;

2. Bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt;

3. Employ a legal practitioner or other agent to take any proceedings or do any business which may be sanctioned by the committee of inspection;

4. Accept as the consideration for the sale of any property of the bankrupt a sum of money payable at a future time subject to such stipulation as to security and otherwise as the committee thinks fit;

5. Mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts;

6. Refer any dispute to arbitration, or compromise any debts, claims and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist between the bankrupt and any person who may have incurred any liability to the bankrupt, on the receipt of such sums, payable at such times and generally on such terms as may be agreed on;

7. Make such compromise or other arrangement as may be thought expedient with creditors or persons claiming to be creditors in respect of any debts provable under the bankruptcy;

8. Make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person;

9. Divide in its existing form amongst the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold.

REMUNERATION OF TRUSTEES
The remuneration of the trustee, if any, takes the form of a commission or percentage as the court may approve or as may be prescribed from time to time. Such commission or percentage shall be payable on the amount realized by the trustee, after deducting any sums paid to secured creditors out of the proceeds of their securities, and the other part on the amount distributed in dividend.

REMOVAL OF TRUSTEE
This may arise in two main ways:
1. Section 93(1) provides that the creditors may, by ordinary resolution, at a meeting specially called for that purpose of which seven days' notice has been given, remove a trustee, other than the Official Receiver, appointed by them and may at the same or any subsequent meeting appoint another person to fill the vacancy.
2. Under Section 93(2) the court may remove a trustee appointed by the creditors and appoint another person in his place if it is of opinion that:
(a) He is guilty of misconduct or fails to perform his duties under the Act; or
(b) His trusteeship is being needlessly protracted without any probable
advantage to the creditors;
(c) He is by reason of mental or physical disability or absence incapable of
performing his duties;
(d) His connection with or relation to the bankrupt or his estate or any particular
creditor might make it difficult for him to act with impartiality in the interest of the creditors generally; or
(e) The interests of the creditors require it.

CONTROL OVER TRUSTEE

COMMITTEE OF INSPECTION

The trustee usually Works under the supervision of a committee of inspection, and the creditors who are qualified to vote may, at their first or any subsequent meeting, by resolution, appoint such a committee. It consists of not more than five nor less than three persons possessing any of the following qualifications:

PROPERTY OF THE BANKRUPT DIVISIBLE AMONG CREDITORS.

VESTING OF PROPERTY IN THE TRUSTEE
Until a trustee is appointed, the Official Receiver shall be the trustee, and immediately the debtor is declared bankrupt, the property of the bankrupt shall vest in the trustee. On the appointment of a trustee, the property shall forthwith pass to and vest in him

NATURE OF TRUSTEE'S TITLE
It was held in National Provincial Bank Ltd v. Ainsworth that a trustee usually takes the property on the same terms as the bankrupt held it and subject to all equities and liabilities attaching thereto.

THE DOCTRINE OF RELATING BACK OF TRUSTEE'S TITLE
It is only when the debtor is adjudged bankrupt that the trustee takes control of his property. But the trustee's title to such property dates back to the commencement of the bankruptcy. The bankruptcy of a debtor shall be deemed to have relation back to, and to commence at the time of the act of bankruptcy being committed on which a receiving order is made.
Nature of Property Divisible Among Creditors
Section 41 (1) provides that the property of the bankrupt which pass to the trustee and divisible among the creditors are:
1. All property belonging to or vested in the bankrupt at the commencement of the bankruptcy or required by or devolving on him before his discharge;

2. The capacity to exercise and take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy or before his discharge;

3. All goods being at the commencement of the bankruptcy in the possession, order or disposition of the bankrupt, in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof. But it is expressly provided that things in action other than debts due or growing due to the bankrupt in the course of his trade or business are not to be deemed goods.
However, under section 41 (2), the property of the bankrupt divisible among his creditors does not include the following:
1. Property held by the bankrupt on trust for any other person;

2. The tools, if any, of his trade and the necessary wearing apparel and bedding of himself and his family dependent on and residing with him, to a value, inclusive of tools and apparel and bedding, not exceeding N 1,000 on the whole.

PROOF OF DEBTS
Once a person has been adjudged bankrupt, his creditors cannot enforce any claims against him or his property; rather, the right available to such creditors is the right to share proportionally in the distribution by the trustee in bankruptcy of the assets of the bankrupt which become vested in him. 1be debts and claims of the creditors are called 'provable debts' whilst the method by which they are declared and established is called ‘proof’.

PROVABLE DEBTS
Provable debts are all debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the receiving order.3 Provable debts include demands in the nature of unliquidated damages
arising out of contract.

Where any debt or liability by reason of its being subject to a contingency or for any other reason, does not bear a value that is certain, an estimate shall be made by the trustee of the value, and any person aggrieved by the estimate may appeal to the court. If in the opinion of the court the debt or liability is capable of being fairly estimated, the court may direct the value to be assessed before itself and may give all necessary directions for this purpose and the assessed value is deemed to be a provable debt.
For the purposes of the Act, the term 'liability' includes:
1. Any compensation for work or labour done;
2. Any obligation or possibility of an obligation to pay money or money's worth, on
the breach of any express or implied covenant, contract, agreement or undertaking, whether the breach does or does not occur, or is or is not likely to occur or capable of occurring, before the discharge of the debtor;
3. Any express or implied engagement, agreement or undertaking to pay or capable of resulting in the payment of money or money's worth, whether the payment is, as respects amount, fixed or unliquidated, as respects time, present or future, certain or dependent on anyone contingency or two or more contingencies, or as to mode of valuation, capable of being ascertained by fixed rules or as matter of opinion.
NON-PROVABLE DEBTS
Non-provable debts include:
1. Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust. These include damages for assault and battery and for seduction.

2. Debts or liabilities contracted by the debtor with a person who had earlier notice of the act of bankruptcy against the debtor, which debt was subsequent to this notice. These cannot be recovered afterwards even by action. What constitutes notice in this context is a matter of fact and will depend on the circumstances.

3. Debts or liabilities, which in the opinion of the courts are incapable of being fairly estimated may be pronounced by the court as not provable in bankruptcy.

4. All debts which are statute-barred generally under the Limitation Act or any other law as well as other debts which are not recoverable under any law (such as debts arising out of wages or unenforceable for lack of evidence in writing

DISTRIBUTON OF ASSETS

Priority of Costs and Charges
Section 35(1) provides that after the payment of the actual expenses incurred in realizing any of the assets of the debtor, the trustee must apply the remaining assets in making the following payments in the following order of priority:
1. The actual expenses incurred by the Official Receiver in protecting or attempting to protect the property or assets of the debtor or any part thereof and any expenses or outlay incurred by him or by his authority in carrying on the business of the debtor;
2. The fees, percentages and charges payable to, or costs, charges and expenses incurred or authorized by the Official Receiver, whether acting as Official Receiver or trustee;
3. The remuneration of the special manager, if any; and
4. The taxed costs of the petitioner, so far as the same may not have been disallowed by the court.

PRIORITY OF DEBTS
The distribution of the property among his creditors shall be done in priority to all other debts, namely:
1. All debts due from the bankrupt to the State at the date of the receiving order and having be come due and payable within twelve months next before that time;
2. All wages or salary (including commission, provided that the amount thereof is fixed or ascertainable at the date of the receiving order) of any employee for services rendered to the bankrupt during four months next before the date of the receiving order, not exceeding N300

PREFERENTIAL CLAIMS OF PERSONS APPRENTICED OR ARTICLED TO THE BANKRUPT
Section 37(1) provides that where at the time of the presentation of the bankruptcy petition, any person is an apprentice or is an articled clerk of the bankrupt, the adjudication of bankruptcy operates to terminate the apprenticeship or clerkship, if either the bankrupt, the apprentice or clerk gives notice in writing to the trustee to that effect..

DEBTS PAYABLE PARI PASSU
Subject to the provisions of the Act conferring priority on certain debts and postponing others until the claims of ordinary creditors have been fully satisfied, and subject to any other provisions of the law on bankruptcy (e.g. deferred creditors) all debts proved in bankruptcy are paid pari passu

Deferred Debts
These are debts or claims which are postponed until all other creditors have been fully paid.
Ordinary Debts

The unsecured creditors are dealt with by the trustees in a group, and since the claims of such creditors are rarely paid in full in a single operation, in the majority of cases they receive only a small proportion of the amount due.

DISCLAIMER OF ONEROUS PROPERTY BY THE TRUSTEE
Section 56(1) permits the trustee to disclaim certain onerous property. The section provides that where any part of the property of the bankrupt consists of land of any tenure burdened with onerous covenants, or shares or stock in companies, or unprofitable contracts, or any other property that is unsaleable, or not readily saleable by reason of its being encumbered by onerous liability, the trustee may, by writing signed by him, at any time within twelve months after the first appointment of a trustee, disclaim such property so as to prevent him from becoming personally liable, and in turn relieve the bankrupt's estate from incurring further liability. Provided that, where the property, in question has not come to the knowledge of the trustee within one month after his appointment, he may disclaim such property at any time within twelve months after he has become aware of the existence of the property, or such extended period as may be allowed by the court.

EFFECT OF DISCLAIMER
Section 56(2) states that the disclaimer operates to terminate, as from the date of disclaimer, the rights, interests and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and also discharges the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but it does not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect rights or liabilities of any other person.

FINAL DIVIDEND
When the trustee has realized all the property of the bankrupt, he shall declare a final dividend. However, before doing so, he shall give notice in the prescribed manner to the persons whose claims to be creditors have been notified to him, but not established to his satisfaction, that if they do not establish their claims to the satisfaction of the court within the time stipulated by the notice, he will proceed to make a final dividend without regard to their claims.

After the expiration of the time so limited or if the court on the application of any such claimant grants him further time for establishing his claim, then on the expiration of such further time, the property of the bankrupt shall be divided among the creditors who have proved their debts, without regard to the claims of any other person.
ENFORCEMENT OF PAYMENT OF DIVIDEND
No action shall lie against the trustee to enforce the payment of a dividend. But if the trustee refuses to pay any dividend, the court may, if it thinks fit, order him to pay it and also to payout of his own money interest thereon for the time that it is withheld and the costs of the application.

GENUINE CONSENT IN CONTRACT

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An agreement can only result in a binding contract if the parties consent freely and genuinely to its terms. As the court explained in Adeola v. Henry Stephens & Sons Ltd., a contract is essentially an expression of the free-will of the parties, not an imposition or, something obtained through trickery or fraud. The parties' negotiations must result in a genuine consensus ad idem (a meeting of the minds), or no binding contract can arise.

VITIATING FACTORS:
These are factors Which operate to nullify or negate the consent which parties appear to have bestowed on a contract. The four factors which vitiate a contract are as follows:
1. Duress,
2. Undue influence,
3. Misrepresentation, and
4. Mistake.
Each of these vitiating factors affect a contract differently. Some may render an agreement totally void, while others only make it voidable, unenforceable, or just illegal.

DURESS
Duress arises when a party is induced to enter into a contract by force or the threat of force. In this event, consent is not freely given and hence such contracts are voidable at the option of the party under coercion.

In Cummings v. Ince, an eighty-year old lady was threatened that she would be confined unlawfully to a mental asylum if she refused to sign a document transferring some of her property to a relative. Held: her consent to the transfer was vitiated by duress.

Legal Effect of Duress:
It is generally agreed that the effect of duress is to make the agreement voidable. The party concerned can have it set aside if he wishes. If he does not do that but acts on it voluntarily, he will be bound by the agreement.

UNDUE INFLUENCE
Undue influence arises if excessive authority or pressure brought to bear on a party to such extent that his free will is completely overcome by the other party's. Undue influence vitiates consent because it renders a party incapable of acting as a free agent. Almost all cases of undue influence arise because a party who has authority or power over another, uses this power wrongfully to exert his consent to agreement.

Proof of Undue Influence
The following approaches or methods are possible:

(a) Agreements between specially related parties:
If a special (fiduciary relationship exists between the parties so that one can unduly control the mind of the other, their agreement shall be presumed to be vitiated by undue influence once the allegation is made. The following parties are linked by special/fiduciary relationship at law:
(i) Solicitor and client,
(ii) Priest or spiritual adviser and disciple,
(iii) Parent and child.
(iv) Trustee and beneficiary,
(v) Doctor and patient,
(vi) Guardian and ward,
(vii) Husband and wife.
The list however is not exhaustive. The test is whether opportunity for unconscientious use of one's authority over another exists or not Whenever undue influence is alleged and presumed in cases like these the other party can refute or rebut the presumption by proving that the complainant obtained independent (legal) advice before he entered into the disputed agreement.
It is necessary too to prove that the adviser had all relevant information about the agreement to enable him give independent advice. In Taylor v. Brewer (1813) 1 M & S. 290, a woman challenged an agreement under which she had transferred some of her property to her father. It was held that her consent was vitiated by undue influence since her father also acted as her solicitor in the transaction and he had not proved that the lady obtained independent advice before she consented to the transfer.

(b) Agreements where parties are not specially related:
In such cases, no presumption of undue influence arises. Rather the party making the allegation has to provide evidence to show that undue influence exists in fact. This can be done, for example, by showing that the other party had obtained some authority over the plaintiff which he had used unconscientiously to obtain his consent to the agreement. In Hodgson v. Mark, an elderly lady transferred her house to her lodger and allowed him to manage her affairs. He later sold the house. Held: undue influence was to be presumed from the relationship and the benefits obtained by the lodger.

Legal Effect of Undue Influence:
Undue influence makes an agreement voidable. The person unduly influenced can have the agreement set aside if he acts in good time, and does nothing to show that he has subsequently affirmed the agreement. Again, the agreement should be avoided before innocent third parties become affected or involved.
MISREPRESENTA TION
Misrepresentation is another important factor whose presence vitiates consent and prevents an agreement from becoming a binding contract.
Definition: Misrepresentation consists of untrue statements, relating to some existing facts, or past events, made by a party to induce the other party to enter into an agreement. From the definition, the features of misrepresentation are as follows:-

(a) Misrepresentation takes the form of an untrue statement:
There must be evidence that an untrue statement was made (either in writing, verbally, or by conduct). For the general rule is that silence does not constitute misrepresentation. The exceptions to this rule or the situations in which silence may amount to misrepresentation are as follows:

(i) Contracts uberrima fidei - These are contracts like insurance and
Partnership which are based on utmost good faith. Parties are obliged
to volunteer all material information to each other. Non-disclosure
may therefore amount to misrepresentation and make the agreement
voidable.
(ii) If a true statement made in the course of the negotiations subsequently becomes false, failure to inform the other party before the agreement is finalized may amount to misrepresentation.
(iii) When silence distorts and makes a representation untrue, i.e. half-truths.
In R. v. Kylsant (1932) 1 K.B. 442, for example, a company issued a prospectus offering shares for subscription and stated that it had paid dividends throughout the preceding five years. It omitted to disclose that dividend was rather paid from extra-ordinary items. The court held that this omission amounted to misrepresentation since it gave the wrong impression that the company had made profits throughout the period.
(b) The untrue statement must be made before or at the' time of. Making the contract: The purpose of making representations is to persuade a reluctant party to contract. These representations may be incorporated into the agreement itself if the parties want. If that happens, the representations become terms of the contract. If incorporated as a part of the terms of the agreement, it affords a party extra protection since the other party thereby contracts or warrants that the representations are true, and may be sued for breach of contract if they turn out to be untrue.
(c) A statement of opinion, intention or about the law does not amount to misrepresentation: If a party gives an opinion, i.e. he states beliefs which are based on grounds that cannot be subjected to any proof, he cannot be liable for misrepresentation. To advertise a product as "the best of its kind in the world" is regarded as mere puffery. Since every salesman is entitled to "puff-up" h is products to attract customers, he is entitled to state his opinion and commend the virtues of his wares. This right is expressed in the Latin maxim simplex commendatio non obligat (mere commendation creates no obligations). On the basis of this maxim, it was held in Scott v. Hanson that it is not misrepresentation to describe one's land as "uncommonly rich"

Types and Consequences of Misrepresentation
Misrepresentation may be described as either innocent, negligent or fraudulent. Each attracts different legal consequences.

1. Innocent Misrepresentation:
This arises if a party makes untrue representations without being aware that the statements are false. At common law, no remedy for damages existed unless the untrue statement had been incorporated into the terms of the contract. The injured party can only apply for rescission of the contract, i.e. for the contract to be set aside, and all benefits obtained under the agreement restored to their owners.

2. Negligent Misrepresentation:
These are untrue statements made because the maker failed to exercise reasonable care. The position that such untrue statements are actionable was adopted by the House of Lords in the important case of Hedley Byrne & Co. Ltd. v. Heller. & Partners Ltd (1964) A.C. 465. The effect of this rule is that one is liable to pay for losses arising from his failure to exercise reasonable care in making statements that he knows that other parties will rely on to decide whether to contract or not. A party can only sue for damages for negligent misrepresentation if he can prove that he has relied on the statements and suffered damage as a result.

3. Fraudulent Misrepresentation: As defined in Derry v. Peek (1889) 14 App. Cas. 337, fraudulent misrepresentation consists of untrue statements that are made
(a) Knowing that they are untrue, or
(b) Believing that they are untrue, or
(c) Made recklessly, without caring whether they are true or not.
Fraudulent misrepresentation is the worst case of securing consent to agreements falsely. Consequently, the party who is misled into an agreement by fraudulent misrepresentation has the right either:
(i) To rescind the contract if it is possible to restore the parties to their pre-contractual positions, or
(ii) To affirm the contract but still sue for damages for the tort of deceit.

All agreements obtained by fraudulent misrepresentation are voidable. The deceived party may therefore repudiate the agreement, and, if sued, plead the other's fraud as his defence.

SUMMARY OF REQUIREMENTS FOR MISREPRESENTATION
1. It must consist of representations or statements on matters that are material to the contract.

2. The statements or representations must be made before or at the time of entering into the agreement.

3. The statements should be made with the intention that it should be believed and acted upon.

4. The statements must be acted upon by inducing the agreement or causing the party to consent to the agreement.

MISTAKE
The term mistake is used in contract law to describe the situation in which one or both parties to an agreement acted under an untrue belief about the existence or non-existence of a material fact. In at least four situations, mistake as a vitiating factor, may make an agreement void and incapable of being enforced as a valid contract. These are cases of res extincta, res sua, non est factum and a unilateral mistake about the identity of a party. Apart from these four cases, the general rule is that the mistake of a party does not affect the validity of a contract.
TYPES OF MISTAKE
Mistake may be one of these three types, namely, common mistake, mutual mistake and unilateral mistake.

Common Mistake
A common mistake occurs where both parties are suffering from the same handicap. For example, contracts to sell corn to B and unknown to both parties, the corn have perished before the contract was made. The above example is a mistake concerning the existence of the subject matter of the contract.

Mutual Mistake
Mutual mistake occurs where the parties have negotiated at cross-purposes. For example, A agrees to sell his horse to B, A is thinking of his white horse and B is thinking of A’s black horse. This is a mistake concerning the identity of the subject matter of the contract.

Unilateral Mistake
Unilateral mistake occurs where one party only is mistaken, and the other party knows or is deemed to know about the mistake. For example, A makes an offer to B only; C accepts the offer, knowing full well that the offer was made to B only. A thinks mistakenly that the acceptance was made by B. This is a mistake as to the identity of the other contracting party.
Legal Effect of Mistake
Though "to err is human", the law does not accept that once a party makes a mistake, he should be forgiven and released from his obligations. The following kinds of mistake do not generally an agreement:

(a) Where a party makes a mistake about his legal rights and powers. For the general rule affirmed in Agbaje v. Bankole "ignorance of the law is no excuse" (ignoratio juri excusat). Everybody is presumed to know his or her legal rights.

(b) A mistake as to the true value, quality or characteristic of something contracted for will usually not affect the agreement. Parties are normally held bound by the contract because rule that parties must protect their own interest, i.e. caveat emptor (buyer must beware).

Laymen are prone to believe as a result, that the law is harsh on parties who made genuine mistakes. However, the common law and equity have accepted some situations in which some genuine errors on the part of one or both parties may render the contract, if any, void and of no effect.

The four situations in which mistake may make an agreement void are as follows:
1. RES EXTINCTA:
Where both parties make a common mistake about the existence of the subject matter of the agreement, the agreement is void. For example, in Couturier v. Hastie (1856) 5 H.L.C. 673, the parties who were in Britain were not aware that the cargo of maize they had contracted for had been sold already in Spain by the shipmaster because it was going bad before the contract was signed. Held: no contract.

An insurer may also mistakenly agree to insure the life of somebody without
the customer/proposer or the insurer knowing that the person to be insured had already died as in Srickland v. Turner (1852) 7 Exch. 208. These examples are cases where the goods or subject matter of the agreement had ceased to exist before the agreement was entered into.

2. RES SUA:
If a party mistakenly buys what belongs to him, there is no contract. In Abraham v. Oluwa (1944) 7 NLR 123, for example, neither the seller nor the buyer knew at the time of the sale of piece of land that the land already belonged to the buyer. The court consequently held that their common mistake rendered the agreement void. This situation is known as res sua.

3. NON EST FACTUM (IT IS NO MY DEED):
If a party mistakenly signs a document, the doctrine of non est factum may permit the agreement signed to be set aside if all the following conditions are satisfied:
(a) The party signing must have been led to sign a document which is fundamentally different in nature from the one he intended to sign.
(b) The other party was aware of his mistake; he normally tricks the other party to sing, and
(c) The party who singed must act without negligence i.e it must be shown that he took reasonable care.
In Lewis v. Clay (1987) 67 LJQB 224, the defendant was presented with a document covered with blotting paper by a fraudulent lord. He was informed by the Lord that the document related to some secrete family matters, and the defendant was expected to sign as a mere witness. It turned out to be a note in which the defendant promised to pay certain debts owed by the lord to the plaintiff. The court held that the defence of non est factum will avail the party who signed. However, it is better to read and understand documents before one signs them. The general rule, to which the above may be regarded as an exception is that once a person signs a document he is bound by its contents, his mistake as to its meaning or terms notwithstanding.

5. UNILATERAL MISTAKE AS TO THE IDENTITY OF THE PARTY CONTRACTED WITH:
The fourth and very common mistake in agreements occurs where A for example, believes that he is dealing with B, whereas it is rather X who is pretending to be B. If X issues a cheque (in B's name) to pay for goods obtained from A and the cheque bounces, how is the agreement affected by A's mistake as to the identity of the person he is dealing with? A unilateral mistake is usually the result of misrepresentation by one party. The party misled is then entitled to rescind the contract for misrepresentation but it may then be too late to recover the goods. Title to the goods passes to the dishonest party under a contract which is voidable and he may re-sell them to an innocent third party who is entitled to retain them (since the rogue still had title at the time of the re-sale to him). If on the other hand the contract is void for mistake at the outset, no title passes to the dishonest party and it may be possible for the party misled to recover his goods. The difference between a voidable and a void contract determines which of two innocent persons is to bear the loss caused by fraud.

Most of the case-law on this type of mistake is concerned with mistake of identity. As will be seen, there is an almost standard procedure in swindles of this type. A contract is only void for mistake by the seller about the buyer's identity if the seller intended to sell to someone different from the actual buyer. If that is the position, the seller never intends to sell to the actual buyer and the contract with him is void. In any other case, the contract is valid when made though it may later be rescinded. The parties may negotiate the contract by correspondence without meeting face to face. If the buyer assumes the identity of another person known to the seller with whom the seller intends to make the contract the sale to the actual buyer is void.

The summary of the legal position is that such mistakes as to a party's identity can only render an agreement void if all the conditions below are satisfied. It must be proved that:
(a) The mistaken party intended to deal with somebody other than the person he deal t with. His intention can• be gathered from the surrounding circumstances of each case.
(b) That the person with whom he contracted was aware of his mistake.
(c) That at the time of the contract, the mistaken party regarded the identity of the other party as vital to the transaction.
(d) And he took reasonable steps to verify the person's identity i.e. he did not act negligently.

Universal Declaration of Human Rights

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Following is the complete text of the United Nations Universal Declaration of Human Rights. The UDHR was adopted and proclaimed by General Assembly resolution 217 A(III) of 10th December 1948.

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, therefore, The General Assembly Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3
Everyone has the right to life, liberty and security of person.

Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6
Everyone has the right to recognition everywhere as a person before the law.

Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9
No one shall be subjected to arbitrary arrest, detention or exile.

Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11
1. Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
2. No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed.

Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.

Article 21
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23
1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

WHAT DOES A LAWYER DO

2010-12-13T12:18:00.001-08:00

I am writing this article for people that are not lawyers. The reason for this article is the fact that a lot of people in the public including you that is reading this article now do not know what a lawyer does in the society. There are situations where I asked my students, [remember I lecture business law, check my profile],the job of a lawyer, the answer I normally received is that lawyers goes to court.

Yes, they are right, lawyers goes to court to handle matters for their clients, but there are other things that lawyers do. It is important for you to know what lawyers do. This knowledge will avail you the opportunity to utilize the maximum advantage of a lawyer’s services.

Lawyers are involved in corporate practice. That is, they handle briefs for people in areas of incorporation of companies, business name and incorporated trustees like churches, non governmental organizations Associations and community base organization.

The corporate service of a lawyer equally include writing of agreements and deeds, like land agreement purchase and mortgage agreement etc.

Lawyers also handle documentation matters for banks and financial institutions ,conducting searches for banks, and other corporate organizations at the Corporate Affairs Commission.

Lawyers also undertakes the service of advising their clients on sundry issues ranging from commercial, business, family, inheritance, political and labour among others.

Lawyers train employers/employees on labour jurisprudence, human rights, constitutional law, anti corruption law and other allied matters that relate to their job and professions.

Lawyers have the noble responsibility of engaging in training the legislators on legislative drafting more so as most of the legislatures are from different background and professions.

Lawyer are seriously involve in immigration law thereby rendering advise on immigration matters to people that travels out of the country and also gives advice to embassies on immigration stuffs.

Lawyers are social engineers. On this premise, lawyers advocate for better life for the citizens. That is why lawyers engaged themselves in human rights crusade and activism.

With this few indications of a lawyers services in the society it is clear that lawyers are inevitable instrument in the wheel of progress and development in any given society.

Written by Ekerete Utioh Esq.

2010-12-10T12:37:00.001-08:00

SES by business degree online promotion team.

LAW OF CONTRACT IN BRIEF

2010-12-09T14:48:00.001-08:00

Agreements are the subject matter of law of contract. But not all these agreements are valid and enforceable in court. Those that are valid and can be enforced by court action are referred to as contracts. A contract, therefore, may be defined as an agreement made between two or more parties, whereby legal rights and obligations are created which the law will enforce. Whether or not such rights are acquired and obligations incurred in a contract, depends upon the compliance by the parties with certain essential elements in the formation of the contract. These essential elements are:

1. An offer by one party and its acceptance by the other.

2. A valuable consideration.

3. The intention of the parties to create legal relations.

4. Legal capacity of the parties to act.

5. A genuine consent by the parties.

6. Legality of the objects of the agreement.

These elements and other aspects of a contract will be discussed in detail.

TYPES OF CONTRACT

Contracts may be classified according to either their legal effect, the form in which they are expressed, or the number of parties involved. The types of contract derived from these are:-

(i) Void contracts

(ii) voidable contracts

(iii) Unenforceable contracts

(iv) Contracts by record

(v) Contracts by record

(vi) Simple contracts

(vii) Bilateral contracts

(ix) Quasi-contracts

(x) Valid contracts

FORMATION OF CONTRACT

This topic comprises the following:-

i. Offer and acceptance;

ii. Consideration,

iii. Intention to create legal relationship.

It addresses the essential elements of a contract by examining offer and acceptance and the rules governing them. Also, the rules on consideration are dealt with and the various ways by which the courts determine that parties intended a contract are highlighted.

OFFER AND ACCEPTANCE

Agreement is the essential basis of a contract. It is necessary to identify the point in negotiation at which one party proposes that a contract be made (the offer) and the other expresses his agreement (the acceptance). The significance of offer and acceptance is that:

(a) New terms cannot thereafter be introduced into the contract unless both parties agree;

(b) The terms of the contract appear from the offer and acceptance rather than from the unexpressed intentions of the parties.

OFFER

An offer is a proposition made by one party called the offeror to another party called the offeree definitely and clearly indicating the terms under which the offeror is willing to enter into a contract with the offeree. Since a complete agreement results immediately the offeree communicates his acceptance, the offer must meet the following requirements:

(a) An offer is a definite promise to be bound on specific terms. It cannot be vague or ambiguous. In Gunting v. Lynn (1831) 2 B&Ad. 232, for example, the offeror's promise to pay some money if a horse was "lucky" was held to be too vague to be a serious offer.

(b) An offer must emanate from the person liable to be bound if the terms are accepted; that is, the offeror or his authorized agent. An offer made by a person having no authority to do so purporting to be an offer cannot create a contract if accepted. In Ajayi-Obe v. The Executive Secretary, Family Planning Council of Nigeria (1975) 3 S.C., A was interviewed by a panel of the FPCN following which, the chairman of the council wrote a letter to the secretary directing him to make an offer to A. A copy of this letter was sent to A by the chairman for information. The secretary did not write the letter but A "accepted" the offer. Held: since the secretary was the normal channel for communication with the outside, the chairman's letter could not be an offer, and as such there was no binding contract.

(c) An offer must be distinguished from the mere supply of information or invitation to the other party to enter into negotiations or to make an offer. Only an offer in the proper sense (i.e. made with the intention that it shall become binding when accepted) may be accepted so as to form a binding contract. In Harvey v. Facey (1893) A.C. 552, A telegraphed to B "will you sell us Bumper Hall pen? Telegraph lowest cash price". B replied "lowest price for Bumper Hall pen £900”.A telegraphed to accept what he regarded as an offer; B made no further reply. Held: B's telegram was merely a statement of his price if a sale was to be agreed. It was not an offer which A could accept. No contract had been made.

TYPES OF OFFER

An offer may be described as either a specific or general offer.

(a) Specific Offer: This is addressed to a clearly identified and specified person, group or institution and may be accepted by that specific' person or any member of the class or group only.

(b) General Offer: This is addressed to the general public.

General offers are common in unilateral contracts like advertisements of reward for returning lost items.

OFFERS AND INVITATION TO TREAT

An invitation to treat is not an offer. It is just an indication that a person is willing to enter into negotiation. In other words, it is an invitation for offers. It differs from an offer in these ways:-

(i) Once an offer is accepted, the offeror is bound to perform. A party who invites offers, on the other hand, is not bound to any of the respondents whose offers are not accepted.

(ii) An offer cannot be modified by the offeree when he receives it; he either he accepts or rejects it. Responses received to an invitation to come and treat however, may lead to further negotiations and modifications.

The following transactions are regarded as examples of invitation to treat not offers at law:

(a) Display of goods in a shop

(b) Request for tenders.

(d) Notice of auction sales

(e) Interviews for employment and entry into (educational) institutions.

TERMINATION OF OFFER

An offer is brought to an end if any of the following factors or circumstances terminates it:

(a) Revocation - by the offeror,

(b) Rejection"" by the offeree,

(d) Death, and

(e) Unfulfilled conditions.

ACCEPTANCE

Once an offer is made, the offeree must let the offeror know either in writing, verbally, or through his conduct, that he agrees unconditionally to the proposition made to him. Immediately the fact of the offeree's total acceptance is communicated to the offeror in the appropriate manner, the agreement is deemed to be completed, and a contract shall ensue if other essential elements are present.

CONSIDERATION

Definition

One of the most quoted definitions of consideration is that given in Currie v. Misa (1875) L.R. 10 Ex. Ch. 153. According to this case, "valuable consideration ... consists of either some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other”.

RULES OR PRINCIPLES GOVERNING CONSIDERATION

The common law has developed five man rules to govern consideration in contracts. These are expressed in the following popular maxims.

(i) Consideration must move from the promise

(ii) Consideration must not be past

(iii) Consideration must be sufficient

(iv) Consideration needs not be adequate.

(v) Consideration must not be unlawful.

INTENTION TO CREATE LEGAL RELATIONS

Although every contract is an agreement, there are sever a agreements which are not contracts. In order for an agreement u become a contract and thereby legally binding, the law requires that in addition to the requirements of offer and acceptance and consideration, there must also be an intention by the parties to create legal relations. In determining whether parties intended to create a legal relation by their agreements, the courts have always looked at domestic and other social agreements on the one side and commercial agreements on the other.

CONTRACTUAL CAPACITY

Where you enter into a contract with a normal and sane man or woman (i.e. an adult), the contract is a valid contract and is also enforceable provided the other conditions or elements of a contract are present. The law requires that anybody purporting to enter into a contract must have the capacity to do so. In general, any person has legal capacity to enter into a binding contract. But a minor, a corporation and a person who is insane or drunk has only restricted capacity and contracts made by such persons may be void or voidable. Also note the case of married women before and after the Married Women Properties Act, 1882.

Minors

The general rule is that a minor (not yet aged 21 or more) cannot make a binding contract. The position under customary law is that the contractual capacity of a youth depend on his physical maturity.

In Labinjo V. Abake (1924) 5 NLR 33, it was held that contractual capacity begins at puberty.

Married Women

Before the enactment of the Married Women Property Act, 1882, a married woman did not have the capacity to make a contract or own separate property. After the passing of the Act in 1882, married women now have the capacity to make contracts and own separate property just like any adult male or spinster.

Statutory Corporation

The contractual capacity of such corporations is defined by the statute establishing the corporation.

Registered Companies

The contractual capacity of a registered company is defined by the company’s memorandum of association. All act beyond the capacity conferred by the memorandum are ultra vires the company, i.e outside the powers of the company and therefore void.

Contracts of Persons who are insane or Drunk

If a person who is insane, under the influence of drugs or drunk enters into a contract it is binding on him unless:

(a) He is at the time incapable of understanding the nature of the contract, and

(b) The other party knows or ought to know of his disability.

CLASSIFICATION OF CONTRACTUAL TERMS

Contractual terms whether oral, written or implied, importance and are traditionally classified into conditions and warranties. A condition is a vital term which goes to the root of the contract, the non-observance of which will affect the main purpose of the contract and entitles the innocent party to either repudiate the contract or claim damages for loss suffered. A warranty on the other hand, is a minor term, subsidiary to the main purpose of the contract, the breach of which entitles the innocent party to claim damages, but does not give him the right to repudiate the contract.

Warranty es post facto is where a breach of a condition is treated as if it were a breach of warranty, i.e. the injured party does not set contract but sues for damages for its breach instead. Where the terms of a contract is a condition, the condition may be either precedent or subsequent. A condition is "precedent" when it precedes the existence of the obligation, that is, the liability of one or both parties will effective only upon the happening of some event. The condition is "subsequent" where the parties specify that a contract already in existence shall terminate upon the occurrence of a particular event.

EXEMPTION CLAUSES

Exemption clauses are those terms of a contract by which a party seeks to limit, restrict or totally eliminate his liability for breach. The doctrine of freedom of contract has in the past permitted the inclusion of such terms in a contract. But the courts have realized that parties with a stronger bargaining power more often than not impose their terms on the weaker. They have, therefore, over the years evolved certain rules for the purpose of restricting the effectiveness of exemption clauses. These are:

(i) The document containing the exemption clauses must be part of the contract. The maker must have intended the document in which the terms appear to be a contractual document and not perhaps a mere acknowledgement of payment, for example, receipt.

DISCHARGE OF CONTRACT

When parties enter into a binding agreement, the agreement does not last forever. I t must at one time come to an end. This may come about by one of th,~ following ways:

(i) Performance

(ii) Mutual agreement of the parties

(iii) Frustration

(iv) Operation (if the law, or

(v) Breach.

FAQ ON COMPANY REGISTRATION IN NIGERIA

2010-12-07T16:56:00.001-08:00

1. I want to register a company how many people can I contact.

It depends on the type of company. Private company that is to perform ordinary business that statute does not give any minimum no. of director can be formed with at least too directors/members. If it is a public company with at least 5 members.

Companies like bank has statutory numbers of directors.

2. What name do I use

You have to choose a name and the name have to be unique so that it will not conflict with any other company’s name if it conflict you may be sued for tort of passing off. No company is allowed to use the word chambers of commerce, National in it name. And also the name of a city or town without the consent of the authorities.

3. Can I do any business with the company?

Yes, the business you will do with the company must be a legal business and must be provide in the memorandum and article of Association of the company to avoid ultra vires business.

4. What is ultra vires?

This is a situation where the company does a business that is not provided for by memorandum and Article of Association of the company.

5. With will handle the registration of the company.

The person that will undertake the business of registration of the company is called a promoter in most cases lawyers do handle the registration of companies.

6. What are the types of company that I can register?

What are the types of company could be either private or public.

Public company is the one that has the abbreviation plc as the last word forming the name of the company whereas private will have the abbreviation LTD as the last word of the company.

7. Is there any other categorization of company?

We have company limited by share i.e. the liability of the member is limited to the unpaid amount, if any which the members subscribed in the Memorandum and Article of Association of the company. Whereas a company limited by guarantee is the one that the liability of the members is limited to the amount that the member volunteered to play in the event of insolvency.

And company that has unlimited liability this one the liability of the members is unlimited.

8. How much is enquired to register a company.

The amount of money spent in registration of a company will depend on the number of share capital and the types of company. The share capital determines the money that will be paid on stamp duty and the filling fee with the corporate Affair commission.

9. Which establishment is CAC?

CAC stands for Corporate Affairs Commission, it is the body that handles incorporation and registration of company in Nigeria.

10. Is it mandatory to register a company in Nigeria?

Very well. Infect if a person runs a company that is not registered it is a criminal offence.

11. What is the different between a company and a business name?

A company once registered is a separate legal entity different from the members. It is a body corporate while a business name is just the registration of the business. The name and the proprietor are not different.

For more info contact the blog administrator.

LAWYERS DON’T TELL LIES

2010-12-03T13:48:00.000-08:00

It is generally believe that lawyers are liars. This believe is universal, all over the world. The reason for the believe is that lawyers do not attach sentiment to reality. Lawyers always face fact as it is not as it ought to be. That is why the positivist school of thought defines law as the dictate of the sovereign to the subordinate backed by sanction.

Lawyers in assessing laws tries to distinguish it from morality.
When a lawyer is confronted with a case, he will consider it in line with the statutory provisions that have been made by the legislators. The lawyer is not the person that makes the law. His duty is to marry the law that has been made with the fact of his case

For instance, in a situation where a lawyer is face with a criminal case, the 1999 constitution in Nigeria provides that every person is presumed to be innocent until proof otherwise by a competent court. The onus is on the prosecution to proof the guilt of the accused person- the standard of proof in criminal case is beyond all reasonable doubt’. When there is any doubt in the mind of the court then such doubt will be discharged in favour of the accused person.

The plea of the accused in criminal case is guilty or not guilty, in the southern part of Nigeria, and admitting or not admitting in the northern part of Nigeria
On this premise where an accused person plead not guilty or not admitting, he is indirectly telling the prosecution to proof his guilt- at that point of making his plea the accused person can decide to keep quiet through out the duration of the trial.

It must be noted that when a lawyer tells an accused person to plead not guilty or not admitting to the charge preferred against him, the lawyer is not telling the accused person to tell lies to the court but the lawyer is only trying to invoke the constitutional provision in favour of his client, the accused person.

On the other hand, where the evidence is so compelling against an accused person his lawyer can advise him the accused to plead guilty and thereafter the lawyer can plead for an alocutus, that is for the court to temper justice with mercy.

A lawyer is always striving to defend his client within the ambit of the law, taking into consideration his position of a social engineer

2010-11-27T09:05:00.001-08:00

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NEWS: Okah Denied Bail, Files Appeal

2010-11-20T12:44:00.000-08:00

Henry Emomotimi Okah, the suspected leader of the Movement for the Emancipation of the Niger Delta yesterday lost his legal battle for bail as the magistrate court sitting in Johannesburg ordered him remanded in prison till February 11, 2011 when he is billed to appear in court. That day Okah would be told when the actual trial will begin. Reacting to the denial of his bail application, Okah who spoke exclusively to THISDAY from his prison cell said that he was not surprised but disappointed at the decision of the court, describing the ruling as the most unintelligent and dumb judgement I have ever seen. The regional magistrate, Mr. Hein Louw said Okah failed to satisfy the court on the balance of probability that if released he would not jeopardize the actual trial. Minutes after the judgment, the defence counsel Mr. Rudi Krause headed for the high court, also in Johannesburg to file an appeal on behalf of Okah. Also echoing his client, the defence told journalists shortly before leaving the court premises that he was disappointed but not surprised, adding that the attitude of the magistrate from the onset had shown he was not disposed to granting his client the bail. He made reference to the prosecution, whom he described as extremely wealthy, well connected and has the capability to intimidate witnesses, tamper with evidence or simply destroy them. He also cited the prosecutions submission that Okah once attempted to jump bail while being held in Nigeria but was later arrested in Angola. The magistrate told the court that in reaching his decision, he was convinced that Okah was untruthful and lied under oath when he was in the witness box. He said Okah lied that he was not the leader of MEND while entries in his diary showed that he was intimately connected with the struggle in the Niger Delta. Louw said he was not happy with Okahs failure to explain some of the jottings in his diary on the excuse that he had forgotten what he wrote. Most damning according to the magistrate was that while Okah denied being the leader of MEND, his wife stated in her own handwriting that her husband was the leader of the group. Okahs bail request on the grounds that he needed to undergo operations and attend to his failing health, Louw said, was not enough convincing reason to grant the temporary freedom, saying arrangements can be made to get him treated in well equipped private hospitals in that country. Describing the judgment as the most and unintelligent and dumb judgment I have ever seen, Okah said he was disappointed because he was told that the magistrate was an intelligent and thorough person. Unfortunately, I did not see any of those attributes throughout the entire proceedings, he declared. Okah reiterated his earlier allegation that he was only being persecuted for his refusal to support the 2011 presidential ambition of the president, Dr. Goodluck Jonathan. As an Ijaw man, they believe I should support an Ijaw man automatically but I said no. this is a struggle and the struggle is not about me, it is about millions of people. Describing the judgment as a sham and an attempt to break his resolve, Okah said, No one in this whole world can intimidate me. That person has not been created. This whole thing is a circus. The magistrate is under severe pressure by the South African government working on the instruction of the Nigerian government. Okah s and his counsel maintained that no evidence has been brought to court to establish his link with the October 1 Abuja bombings which killed 12 people a few metres from the eagles square, venue of the independence anniversary celebrations. That stand, which was corroborated by his counsel, was however dismissed by the magistrate who held that the prosecution might decide not to provide the evidence until the actual trial begins. But Okah insisted that the ploy of the federal government was to keep him behind bars until the after the 2011 elections. This ploy, he said, will not work, stating that his detention cannot solve the problem Even if they decide to kill me, can that end the struggle when there are many others springing up even as I am being held? he demanded. He criticized the governments amnesty programme which he said was aimed at treating the effect and leaving out the cause. He said Boyloaf, Tompolo and Farah who the government wooed to its side do not have the wherewithal to bring an end to the Niger Delta problem. As I am here, bombs are still going off in Nigeria and I dont even know who these people are, which means new commanders are springing up in the creeks. Unless you address the problems which brought about the struggle, no progress can be made. My people drink from the same water they bath and defecate in, same water polluted by oil companies, billions of dollars are being made from their land and the people cannot afford a loaf of bread or decent shelter and you expect them to keep quiet? The prosecution counsel, Shaun Abrahams, who said he has a policy not to talk to the media, however informed THISDAY that he was sure Okah would appeal the judgment. He said the applicant has the right to appeal the judgment, adding, I m certain he going exercise it. The actual trial he said could commence in the next few weeks but the magistrate adjourned Okahs next appearance for February 11, 2011. Coutesy of Thisday newspaper.

EQUITABLE MAXIMS.

2010-10-17T15:33:00.000-07:00

Equity regarding what ought to be done

This maxim means that when individuals are required, by their agreements or by law to have done some act of legal significance, Equity will regard it as having been done as it ought to have, even before it has actually happened. This makes possible the legal phenomenon of equitable conversion. Sometime this is phrased as "equity regards as done what should have been done." The consequences of this maxim, and of equitable conversion, are significant in their bearing on the risk of loss in transactions. When parties enter a contract for a sale of real property, the buyer is deemed to have obtained an equitable right that becomes a legal right only after the deal is completed. Due to his equitable interest in the outcome of the transaction, the buyer who suffers a breach may then be entitled to the equitable remedy of specific performance (although not always, see below). It also is reflected in how his damages are measured if he pursues a legal, substitutionary remedy instead of an equitable remedy. At law, he is entitled to the value at the time of breach, whether it has appreciated, or depreciated. The fact that the buyer may be forced to suffer the depreciation means that he bears the risk of loss if, for example, the improvements on the property he bought burn down while he is still in escrow. Additional Examples: Problems may sometimes arise because, through some lapse or omission, cover is not in force at the time a claim is made. If the policyholder has clearly been at fault in this connection, because, for example, he has not paid premiums when he should have, then it will normally be quite reasonable for an insurer to decline to meet the claim. However, it gets more difficult if the policyholder is no more at fault than the insurer. The fair solution in the circumstances may be arrived at by applying the principle that equity regards that as done that ought to be done [See para 1, above]. In other words, what would the position have been if what should have been done had been done? Thus, in one case, premiums on a life policy were overdue. The insurer' s letter to the policyholder warning him of this fact was never received by the policyholder, who died shortly after the policy consequently lapsed. It was clear that if the notice had been received by the policyholder, he or his wife would have taken steps to ensure the policy continued in force, because the policyholder was terminally ill at the time and the cover provided by the policy was something his wife was plainly going to require in the foreseeable future. Since the policyholder would have been fully entitled to pay the outstanding premium at that stage, regardless of his physical condition, the insurer (with some persuasion from the Bureau) agreed that the matter should be dealt with as if the policyholder had done so. In other words, his widow was entitled to the sum assured less the outstanding premium. In other similar cases, however, it has not been possible to follow the same principle because there has not been sufficiently clear evidence that the policy would have been renewed. Another illustration of the application of this equitable principle was in connection with motor insurance. A policyholder was provided with cover on the basis that she was entitled to a ' no claims' discount from her previous insurer. Confirmation to this effect from the previous insurer was required. When that was not forthcoming, her cover was cancelled by the brokers who had issued the initial cover note. This was done without reference to the insurer concerned, whose normal practice in such circumstances would have been to maintain cover, but to require payment of the full premium until proof of the no claims discount was forthcoming. Such proof was eventually obtained by the policyholder, but only after she had been involved in an accident after the cancellation by the brokers of the policy. Here again, the fair outcome was to look at what would have happened if the insurer's normal practice had been followed. In such circumstances, the policyholder would plainly have still had a policy at the time of the accident. The insurer itself had not acted incorrectly at any stage. However, in the circumstances, it was equitable for it to meet the claim.

Equity will not suffer a wrong to be without a remedy

When seeking an equitable relief, the one that has been wronged has the stronger hand. The stronger hand is the one that has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of specific performance or an injunction (injunctive relief). These are superior remedies to those administered at common law such as damages. The Latin legal maxim is ubi jus ibi remedium ("where there is a right, there must be a remedy"). The maxim is necessarily subordinate to positive principles and cannot be applied either to subvert established rules of law or to give the courts a jurisdiction hitherto unknown, and it is only in a general not in a literal sense that maxim has force. Case law dealing with this maxim is include Ashby v White and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

Equity delights in equality

Where two persons have an equal right, the property will be divided equally. Thus Equity will presume joint owners to be tenants in common unless the parties have expressly agreed otherwise. Equity also favours partition, if requested, of jointly-held property.

One who seeks equity must do equity

To receive equitable relief, the party must be willing to complete all of their own obligations as well. The applicant to a court of equity is as subject to the power of that court as the defendant. This may also overlap with the clean hands maxim (see below).

Equity aids the vigilant, not those who slumber on their rights

Vigilantibus non dormientibus aequitas subvenit. Once the party knows they have been wronged, they must act relatively swiftly to preserve their rights. Otherwise, they are guilty of laches. Laches is a defense to an action in equity. This maxim is often displaced by statutory limitations, but even where a limitation period has not yet run, equity may apply the doctrine of "laches," an equitable term used to describe delay sufficient to defeat an equitable claim. In Chief Young Dede v. African Association Ltd. the equitable rule of laches and acquiescence was introduced. Alternatives: * Delay defeats equity * Equity aids the vigilant, not those who sleep on their rights

Equity imputes an intent to fulfill an obligation

Generally speaking, near performance of a general obligation will be treated as sufficient unless the law requires perfect performance, such as in the exercise of an option. Text writers give an example of a debtor leaving a legacy to his creditor equal or greater to his obligation. Equity regards such a gift as performance of the obligation so the creditor cannot claim both the legacy and payment of the debt

Equity acts in personam.

In England, there was a distinction in the type of adjudicatory jurisdiction of the courts and the chancery. Courts of law had jurisdiction over property, and their coercive power arose out of their ability to adjust ownership rights. Courts of equity had power over individuals. Their coercive power was the ability, on authority of the crown, to hold a violator in contempt, and take away his or her freedom (or money) until he obeyed. This distinction helped preserve a separation of powers between the two courts. Nevertheless, courts of equity also developed a doctrine that an applicant must assert a "property interest." This was a limitiation on their own power to issue relief. It does not mean that the courts of equity had taken jurisdiction over property. Rather, it required that the applicant be asserting a right of some significance, as opposed to emotional and dignitary interests.

Equity abhors a forfeiture

Today, a mortgagor refers to his interest in the property as his "equity." The origin of the concept, however, was actually a mirror-image of the current practice. At common law, a mortgage was a conveyance of the property, with a condition subsequent, that if the grantor paid the secured indebteness to the grantee on or before a date certain (the "law" day) then the conveyance would be void, otherwise to remain in full force and effect. As was inevitable, debtors would be unable to pay on the law day, and if they tendered the debt after the time had passed, the creditor owed no duty to give the land back. So then the debtor would run to the court of equity, plead that there was an unconscionable forfeiture about to occur, and beg the court to grant an equitable decree requiring the lender to surrender the property upon payment of the secured debt with interest to date. And the equity courts granted these petitions quite regularly and often without regard for the amount of time that had lapsed since the law day had passed. The lender could interpose a defense of laches, saying that so much time had gone by (and so much improvement and betterment had taken place) that it would be inequitable to require undoing the finality of the mortgage conveyance. Other defenses, including equitable estoppel, were used to bar redemption as well. This unsettling system had a negative impact on the willingness of lenders to accept real estate as collateral security for loans. Since a lender could not re-sell the property until it had been in uncontested possession for years, or unless it could show changed circumstances, the value of real estate collateral was significantly impaired. Impaired, that is, until lawyers concocted the bill of foreclosure, whereby a mortgagee could request a decree that unless the mortgagor paid the debt by a date certain (and after the law date set in the mortgage), the mortgagor would thereafter be barred and foreclosed of all right, title and equity of redemption in and to the mortgaged premises. To complete the circle, one needs to understand that when a mortgagor fails to pay an installment when due, and the mortgagee accelerates the mortgage, requiring immediate repayment of the entire mortgage indebtedness, the mortgagor does not have a right to pay the past-due installment(s) and have the mortgage reinstated. In Graf v. Hope Building Corp., 254 NY 1 (1930), the New York Court of Appeals observed that in such a case, there was no forfeiture, only the operation of a clause fair on its face, to which the mortgagor had freely assented. In the latter 20th Century, New York's lower courts eroded the Graf doctrine to such a degree that it appears that it is no longer the law, and that a court of conscience has the power to mandate that a default be excused if it is equitable to do so. Of course, now that the pendulum is swinging in the opposite direction, we can expect courts to explain where the limits on the newly-expanded equity of redemption lie...and it is probably not a coincidence that the cases that have eroded Graf v. Hope Building Corp. have been accompanied by the rise of arbitration as a means for enforcing mortgages. See, generally, Osborne, Real Estate Finance Law (West, 1979), Chapter 7.

Equity does not require an idle gesture Also: Equity will not compel a court to do a vain and useless thing.

It would be an idle gesture for the court to grant reformation of a contract and then to deny to the prevailing party an opportunity to perform it as modified.

One who comes into equity must come with clean hands

It is often stated that one who comes into equity must come with clean hands (or alternately, equity will not permit a party to profit by his own wrong). In other words, if you ask for help about the actions of someone else but have acted wrongly, then you do not have clean hands and you may not receive the help you seek. For example, if you desire your tenant to vacate, you must have not violated the tenant's rights. However, the requirement of clean hands does not mean that a "bad person" cannot obtain the aid of equity. "Equity does not demand that its suitors shall have led blameless lives." Loughran v. Loughran, 292 U.S. 215, 229 (1934) (Brandeis, J.). The defense of unclean hands only applies if there is a nexus between the applicant's wrongful act and the rights he wishes to enforce. For instance, in Riggs v. Palmer (1889) 115 N.Y. 506, a man who had killed his grandfather to receive his inheritance more quickly (and for fear that his grandfather may change his will) lost all right(s) to the inheritance. In D&C Builders v. Rees (1966), a small building firm did some work on the house of a couple named Rees. The bill came to 732 pounds, of which the Rees had already paid 250 pounds. When the builders asked for the balance of 482 pounds, the Rees announced that the work was defective, and they were only prepared to pay 300 pounds. As the builders were in serious financial difficulties (as the Rees knew), they reluctantly accepted the 300 pounds 'in completion of the account'. The decision to accept the money would not normally be binding in contract law, and afterwards the builders sued the Rees for the outstanding amount. The Rees claimed that the court should apply the doctrine of equitable estoppel, which can make promises binding when they would normally not be. However, Lord Denning refused to apply the doctrine, on the grounds that the Rees had taken unfair advantage of the builders' financial difficulties, and therefore had not come 'with clean hands'.

Equity delights to do justice and not by halves

When a court of equity is presented with a good claim to equitable relief, and it is clear that the plaintiff also sustained monetary damages, the court of equity has jurisdiction to render legal relief, e.g., monetary damages. Hence equity does not stop at granting equitable relief, but goes on to render a full and complete collection of remedies. [editall of the rights of the parties connected with the subject matter of the action, so as to avoid a multiplicity of

Equity will take jurisdiction to avoid a multiplicity of suits

Thus, "where a court of equity has all the parties before it, it will adjudicate upon suits." Burnworth v. Hughes, 670 P.2d 917, 922 (Kan. 1983). This is the basis for the procedures of interpleader and the more rarely used Bill of Peace.

Equity follows the law

Equity will not allow a remedy that is contrary to law. The court of Chancery never claimed to override the courts of common law. In Story on Equity third English edition 1920 page 34,"where a rule, either of the common or the statute law is direct, and governs the case with all its circumstances, or the particular point, a court of equity is a much bound by it as a court of law, and can as little justify a departure from it." it is only when there is some important circumstance disregarded by the common law rules that equity interferes. As per Cardozo in Graf v. Hope Building Corporation, 254 N.Y 1 at 9 (1930), "Equity works as a supplement for law and does not supersede the prevailing law."

Equity will not aid a volunteer

Equity cannot be used to take back a benefit that was voluntarily but mistakenly conferred without consultation of the receiver. This maxim protects the doctrine of choice. This maxim is very important in restitution. Restitution developed as a series of writs called special assumpsit, which were later additions in the courts of law, and were more flexible tools of recovery, based on Equity. Restitution could provide means of recovery when people bestowed benefits on one another (such as giving money or providing services) according to contracts that would have been legally unenforceable. However, pursuant to the equitable maxim, restitution does not allow a volunteer or "officious intermeddler" to recover. A volunteer is not merely someone who acts selflessly. In the legal (and equitable) context, it refers to someone who provides a benefit regardless of whether the recipient wants it. For example, when someone mistakenly builds an improvement on a home, neither equity nor restitution will allow the improver to recover from the homeowner. The exception is if the doctrine of estoppel applies.

Between equal equities the law will prevail

Equity will provide no specific remedies where the parties are equal, or where neither has been wronged. The significance of this maxim is that applicants to the chancellors often did so because of the formal pleading of the law courts, and the lack of flexibility they offered to litigants. Law courts and legislature, as lawmakers, through the limits of the substantive law they had created, thus inculcated a certain status quo that affected private conduct, and private ordering of disputes. Equity, in theory, had the power to alter that status quo, ignoring the limits of legal relief, or legal defences. But, they were hesitant to do so. This maxim reflects the hesitancy to upset the legal status quo. If in such a case, the law created no cause of action, equity would provide no relief; if the law did provide relief, then the applicant would be obligated to bring a legal, rather than equitable action. This maxim overlaps with the previously-mentioned "equity follows the law."

Between equal equities the first in order of time shall prevail

This maxim operates where there are two or more competing interests, one legal and the other equitable. Where the claims of both parties are fair and meritorious, precedence will be given to the legal interest. This maxim was developed in connection with interests in lands. When a purchaser acquires property bona fide without notice of a defect in the vendor’s title, the equities are equal and the legal estate will prevail. If the purchaser takes title with notice of the defect, the earlier title, if valid, will prevail. The force of this maxim has largely been displaced by legislated systems of land title registration

Equity will not complete an imperfect gift

If a donor has made an imperfect gift, ie lacking the formalities required at common law, equity will not assist the intended donee. A subset of equity will not assist a volunteer. Note the exception in Strong v Bird (1874) LR 18 Eq 315. If the donor appoints the intended donee as executor of his/her will, and the donor subsequently dies, equity will perfect the imperfect gift.

Equity will not allow a statute to be used as a cloak for fraud

Equity prevents a party from relying upon an absence of a statutory formality if to do so would be unconscionable and unfair. This can occur in secret trusts and also constructive trusts and so on.

Equity will not allow a trust to fail for want of a trustee

If there is no trustee, whoever has title to the trust property will be considered the trustee. Otherwise, a court may appoint a trustee, or in Ireland the trustee may be any administrator of a charity to which the trust is related.

KNOW HOW TO INSTITUTE LEGAL ACTION IN COURT.

2010-08-09T16:28:00.001-07:00

It often look mysterious to some people how to commence legal action against another in court. Cases, depending on the the nature have ways of how to start them in court. We shall go straight to the point.

CRIMINAL CASES.
In the magistrate courts criminal cases are commence through Charge Sheet. This is mostly common in almost all the common law countries. A charge sheet is a document that is preferred by the Police against an accused person. The charge sheet will contain all the charges against the accused. The charge will be read out one by one, more than one, to the accused person and he the accused shall be given an opportunity to answer to the charge.

PLEA ON THE CHARGE FROM CHARGE SHEET.
The constitution of many jurisdiction states that a person is presumed innocent until proof otherwise by a competent court. On this premise, he will be allowed to answer to the charge. The plea here will be, I am guilty or not guilty. When an accused person plead not guilty, it means that he is shifting the burden of proof to the prosecution to proof the accused guilt. Note here that, the plea of not guilty does not mean that the accused is telling lies to the court-supposing he was the one that committed the offense, what he is saying in essence is that he, the accused is challenging the prosecution to proof his (accused) guilt.

In some jurisdiction, like Nigeria, the law makes a further extension of the nature of commencing criminal matter in the magistrate court, to wit, it can be commenced through First Information Report( FIR ). The difference between charge sheet and first information report is that, in first information report the accused is undergoing a preliminary investigation by the court as to whether there is any prima facie case against him. This invariably means that the court is making a preliminary trial investigation trial of the accused person to see whether he actually committed the offense. The plea for FIR is “ I admit, or not admitting”.

Where an accused person plead guilty or admitting to the charge, then the matter will be determined there and then and sentence given against the accused person, whereas, the accused person plead not guilty not or not admitting to the charge it means that the accused person have join issues with the prosecution. It must be noted that criminal matters in the magistrate court are prosecuted by the Police, so we used to have Commissioner of Police v. Accused person

In the high court criminal matter is commenced mostly through the office of the Director of Public Prosecution (DPP) which prosecution will be done by the state council. I other criminal matters that has to do with certain offenses, like corruption, such matters may be handled by relevant governmental agency, example EFCC, ICPC etc.

CIVIL MATTERS.

Civil matters in the magistrate court are commence by plaint. The plaint will be filed by the plaintiff against the defendant. When the plaintiff filed a plaint, the defendant will file a statement of defense in response. Civil matters are like landlord and tenancy matter, breach of contract matter, company case etc.

CONTENTS OF PLAINT

(a) The title of the plaint, that is, the court to which the matter will be filed,
(b) The parties,
(c) Suit number,
(d) Heading,
(e) Particulars of the plaint in paragraphs,
(f) Name, signature and address of the plaintiff, if filed by a lawyer, then the lawyers name signature and address.
(g) Address of the defendant for service of the plaint.

Civil matters in the high court are commenced through the following ways:
( a ) writ of summons, a matter that is going to be contentious will be commenced by a writ.

CONTENTS OF A WRIT.
( a ) Title of the writ, ie, the court,
( b ) The parties,
( c ) Suit number,
( d ) Heading of the writ, it will be headed –statement of claim The statement of claim will be written in paragraphs,
( e ) The name, signature, and address of the lawyer that filed the writ will be provided,
( f ) Address of service of the defendant.
When a writ is filed, the defendant will file a statement of defense to join issues with the plaintiff.

ORIGINATING APPLICATION.

This is used in a situation where there is no contentious issue between the parties, example, were the issue before the court will be on interpretation of a particular clause in the agreement. In originating application the parties will file application together with affidavit whereas the respondent will file a counter affidavit.

PETITION.

This is used to commence election petition matters in the tribunal. Petition can also be filed to commence divorce case and cases like enforcement of ones fundamental human right that has been infringed by the state. Petition comes with affidavit, verifying affidavit from the applicant and counter affidavit from the respondent.
Posted by Ekerete Utioh, Esq.

NIGERIA LAW HAS SOURCES

2010-08-06T16:21:00.000-07:00

Are you interested in knowing the sources of our law in Nigeria. Many times that I teach my students this very subject, they seem not to have the faintest idea of what I am talking about until when the subject is unfold. In every country and jurisdiction, the laws operating therein have their sources.

It is important for every person in the society to know of the sources of law in that very society to be able to ascertain his rights in all areas of life.

Here in Nigeria our law comes from different sources which shall be enumerated in this article. They are:

1 THE RECEIVED ENGLISH LAW. Under the receive English law we have;
(A) common law of England,
(B) doctrine of equity,
(C) statute of general application.

Common law
Common Law is otherwise known as case law. Common law is not written law but the decisions of the courts of the various enclaves called England in the medieval period . Those laws that were so commonly used where adopted in the whole enclaves of England as their common law. Example of common law principle is the doctrine of privities of contract, the concept of corporate personality of a company. See Solomon v. Salomon & co ltd. These principles are being administered and applied in our various courts and even codified in our statute books. See the consequence of registration of a company under the Company and Allied Matters Act, 1990.

Statute of General Application.
There are those laws that were enacted in England and were applicable in the whole enclave of England before 1900,these laws are implied to have been enacted here in Nigeria The example of statute of general application are; Infant Relief Act 18 ,Sale of Goods Act 1893,Statute of Fraud…..,etc.

Doctrine of equity.
The doctrine of equity emanates as a result of the rigors in the application of the common law principles. Court of equity was presided over by clergies, that is why the court is otherwise called court of conscience. Equity stands for fair play and justice. Example of the doctrine of equity is injunction trust rescission, etc. These principles are practice in our various courts.

LOCAL SOURCES.
Under the local sources we have the followings:

NIGERIAN LEGISLATIONS;
Under this we have the followings;

ORDINANCE
Ordinances are the laws that were enacted by the colonial leaders for the entire region called Nigeria. Example is the Co-operative Society Ordinance 1935.

ACT OF PARLIAMENT.
During the first republic Nigeria was administered by act. Now also, under our democratic dispensation we are having act from the National Assembly. Act are laws that are enacted by the national assembly and are applicable in the whole federation, example are; Independent Corrupt Practice Act 2000, Electoral Act, 2006,etc. Acts are assented to by the President.

LAW.
Law is the enactment made by the state house of assembly for the state. Laws made by the state house of assemblies of the various states are only applicable to these state. Laws are signed by the Governor.

DECREE.
Decrees are laws promulgated by the military and are applicable in the entire nation. Since the first military coup in Nigeria in 1966 the country have govern by military decree by successive military administrations Decrees are promulgated by the Armed Forces Ruling Council and assented to by the Head of state.

EDICT.
This is law promulgated by the Military Administrator or Governor as the case may be for the for the administration of a particular state

RULES.
These are laws that guides certain categories of person, like civil servants in ministries and parastatals, example , Civil Service Rules.

BYE LAWS.
Bye Laws are laws enacted by the local government councils.

CUSTOMARY LAW.
Customary laws are laws that have been practice from time immemorial by a particular community and have been accepted by the people as their own law and way of life. Customary law is a mirror of acceptable usage. See Bankole v. Omotosho. Customary law is not written but embedded in the minds of the people.
Customary law is applicable to family law, divorce, succession and inheritance, land matter chieftain issues, etc. In the various enactment in the states the customary law of that state will be taken into consideration before such laws are enacted, this means that those laws derives their roots from the custom of the people.
The Suburbs
CHARACTERISTIC OF CUSTOMARY LAW:
Customary law must be generally acceptable by the majority of people in that very community/state.
Customary law must be flexible-as society changes so is customary law. The dynamism of the society equally translates into the evolution of the custom.
Customary law must be an existing customary law. That is, it must be a law that is currently in practice not a jettison custom. See Dawodu v Danmole.

VALIDITY TEST OF CUSTOMARY LAW.
Customary law must not be repugnant to natural justice, equity, and good conscience. Any customary law that is oppressive or barbaric will not be allowed by the court. See Edet v. Essien, Re Okon Atta.
Must be an existing customary law, and
Must be generally acceptable.

PROOF OF CUSTOMARY LAW IN A NON CUSTOMARY COURT.
By witness.
Elders of the village will be call to come to court to give evidence

By text book.
Text book written by known legal luminary from that community or state can be used in court to profess a particular customary law.

By assessors.
These are persons that sits with the judge in the court and must be persons from the community in question. They help the court to actually ascertain whether the customary law in question do exist. Note here, that their opinion and advice to the judge presiding over the case is only persuasive in nature, as the judge is not bound to take their advice.

Judicial notice.
This will be applicable to a case that has been frequently brought to the court. The court at any other time that is face with such a similar case will decide the later in line with the former one.

JUDICIAL PRECEDENCE.
Decisions of court of superior jurisdiction will bind court of subordinate jurisdiction. Judicial precedence is a direct consequence of common law practice. It is case law. It makes for orderliness in our legal system and practice.

LAW REPORT.
Law reporting is the systematic publication of decided cases in a booklet form call law report. The cases that are decided by the courts are published in a book form to serve as a reference for lawyers and the general public. It also serves the courts from being mislead by practitioners. There are so many law reports in Nigeria and outside the country. They are;
Nigeria weekly law report
Supreme court cases
Supreme court quarterly report,
All Nigeria law report,
West Africa court of appeal,
Queens bench,
Kings bench,
All England law report,
Chancery report. Etc

TEXT BOOKS.
Text books written by known legal minds can be used in a novel issue in the law. The said text book will be quoted to the court and if the court deems it fit it will follow the submission of such book. Here the court is not bound to follow the submission and reasoning of such author.

Posted by Ekerete Utioh, Esq.

KNOW YOUR RIGHT AS A TENANT

2010-08-04T14:45:00.000-07:00

Study shows that 80% of persons that have rented apartments as either residential office purposes does not know their rights as tenants .I was in a conversation with my friend recently, and the topic of discussion was on the manner landlords are intimidating their tenants in the country. My friend did exhibited serious ignorance of his rights as tenant to such an extent, that he told me that if he is evicted from his rented apartment, he will leave every thing to God. What a pity.

WHO IS A TENANT.

This is a question that have been answered by the court in various occasions on tenancy matters that have been handled by our courts over the years.
A TENANT is a person that leaves in a particular apartment either with payment of rent or without any payment of rent, provided that the person is not leaving in such an apartment as the owner The definition of a tenant is so broad that its include even a squatter.

PROCEDURE FOR EVICTING A TENANT.

If a landlord wishes to evict a tenant, the landlord have to follow the legal process to wit:
1 the tenant shall be given notice to quit the premises. The length of notice will depend on the nature of the tenancy. The law is that if the tenant is a yearly tenant, then the length of notice shall be six months ,for half year tenancy the length of notice shall be six months, whereas for a quarterly tenant, the length of notice shall be three months, while monthly a tenant shall attract one month notice It has to be said here that despite the nature of the tenancy agreement, if there was an agreement written by the parties the length of time provided in the agreement shall be used to calculate the length of notice.

After the expiration of the notice to quit, the landlord will serve the tenant with seven days notice of the landlords intention to go to court and recover possession of the premises. It is after the expiration of this seven days notice that the landlord will be able to go to court for a summons against the tenant.

AT THE TRIAL.

Landlord and tenancy matter is a civil suit. Like every civil suit ,the tenant will be given the opportunity to defend himself either in person or by a legal practitioner of his own choice. Depending on the yearly rent, the matter can be commenced either at the magistrate court or high court. Note that when judgment is given by the court ,the tenant shall be given time to vacate if the landlord succeeds. Also, if the landlord fails then the court shall dismiss the case.
Very important, landlord and tenancy matter is not a criminal case and so cannot be settled by the police.

HOW TO OPERATE A FINANCIAL INSTITUTION WITHOUT PASSING THROUGH CENTRAL BANK.

2010-08-01T16:04:00.000-07:00

To operate a bank or financial institution any were in the world and in particular Nigeria is a capital intensive venture.I n Nigeria according to the central Bank guide line,to operate a financial house like micro finance require about N25,000,000,whereas the requirement for the establishment of commercial bank is N25 billion.This amount of money is not a child's play.That was why many banks could not on their own recapitalized to meet up with the capital base for banks in the country.

Are you interested in going into banking business or running a finance house in the country without necessarily passing through the Central Bank of Nigeria and yet you will not break any code or law of the land.If your answer is yes then this article is for you.

THE WAY OUT.

The way out of this,is for you to establish a co-operative society.Do you hear me well,yes I said co-operative society.You can run a co-operative society as a financial institution in the category of micro finance house and yet you will not be asked to pay N25,000,000 to Central Bank neither will any body ask you to deposit your document of qualification to establish such business.

WHAT IS CO-OPERATIVE SOCIETY.

Co-operative society is an association of individuals united by a common bond coming together for their economic interest.Co-operative Society can be registered by individuals like market women coming together to form themselves into a Co-operative Society for their own benefits.It could also be made up of existing co-operative society that comes up to form a bigger co-operative society called secondary co-operative society.

The law authorise co-operative society to even put the word bank provided they meet up with Bank and other Financial Institution Decree of 1991.

The objective of the law of co-operative is to help small scale business to go into join venture helping themselves in the cause of furthering their business.This they do by way of contribution among themselves,it could be daily, weekly,monthly,etc.It is also allowed to encourage the members to go into saving with interest of whatsoever percentage as the bye law will permit.Co-operative society is equally allowed to grant loan to its members with interest.

Co-operative Society is registered by the Director of Co-operative in the various states of the federation.This is because Co-operative Society is under the concurrent legislative list of the 1999 constitution in Nigeria.All the states are encouraging their indgenes to establish business through co-operative society.

PRIVILAGE OF DOING BUSINESS UNDER A CO-OPERATIVE SOCIETY.

There are serious mechanism that the law have provided to protect persons that does business through co-operative society.

The first one is that co-operative society is tax free.Co-operative Society do not pay tax on the business they transact.

Secondly,co-operative society places charge on the property of their members

Thirdly,co-operative society can restrain the trade of their members that is a product of loan from the society

Fourthly,Co-operative Society can grant loan to its members with interest

For more on this contact the author at ekerete4u@gmail.com or +2348027799295

HOW TO REGISTER A BUSINESS NAME IN NIGERIA WITHOUT CONSULTING A LAWYER.

2010-07-30T20:22:00.000-07:00

This article is aim at solving the avalanche of problems that members of the public face in the cause of registering a simple business name.

There are a lot of people that does business on a name without proper registration simply because they do not have the money to consult a lawyer to handle such registration for them.Note that this article is not targeted at you not consulting a lawyer in respect of some legal advise that may relate to your business,but it only seek to help business owners or prospective ones on how to take care of registration of business name.

WHAT IS BUSINESS NAME

In conventional business arena a business that is run under a business name registration is called a firm or a sole proprietorship Example one man business,partnership,and enterprises that does not have the word limited.

THE IMPLICATION

The implication of registering a business name is that the relevant government agency,like in Nigeria,The Corporate Affairs Commission.is giving the owner the permission to do business under that name. The name itself does not give the owner an entity of its own but merely give him the legality to use the name to do business.

The type of business that should be operated under a business name registration are:
1 food is ready canteen
2 barbing saloon
3 drinking palour
4 tailoring shop
5motor mechanic biz
provision store
service oriented biz etc

STEPS FOR REGISTRATION.

The first thing to consider in the cause of registration of business name with corporate Affairs COMMISSION is to have a proposed name.This name will be submitted for search with the commission.The essence of the search is to know whether the name is available or not.If the name is already used by another person then the commission will reject such name but if there is no similar name or the same name used by any other person or group of persons for thier business then the name will be approved as available.This search for availability is very important as one will not be allowed to register a name without presenting a document showing such approval.

The next thing that will follow the search for availability is to purchase the regisration form from the same commission and fill same using the name that have been approved.

INFORMATION TO PROVIDE IN THE FORM ARE;

a the name of the business,
b the name of the sole proprietor or partners,
c the registered office,
d the address of the owner/s,
e two passport photographs of the owner/s,
f any other information.
g the business that will be transacted by the
company will be mentioned.

After getting all these,the business name will be registered.The commission will only register the name after satisfying that the necessarily document and information are in place.Once the certificate is issued to the owner of the name the business is legal.

FEE.The filing fee for business name registration in Nigeria is N6000 subject to change by the commission If you undertake all these alone,you will not spent more than N8000 to get your business registered.

HOW TO MARKET YOUR WEBSITE.

2010-07-30T04:05:00.000-07:00

I want to share with you on the important subject of marketing your website on the net.
If I may ask,what is the essence of starting a business.The answer is to produce for people and render services to them.Another question is how do you archive this?

You can only archive the objective of your business if you have customers or clients that will patronize the business.This principle work the same way with both online and off line business In the online world,if you have a site and at the end of the day nobody visits the,then the objective of creating site will be defeated.A ghost site does not generate any income to the owner.

To succeed online you must at every time be able to drive people to the site,this,in internet language is call traffic.There are a lot of e-books on how to drive traffic to your site,some of these ways and strategies are expensive to venture into.

Website or blog can be promoted and marketed free through writing of articles to article directory site.There are so many article directory sites on the internet.Do your research discover the one that will be suitable for you.

WHAT IS ARTICLE DIRECTORY SITE.

An article directory site is the one that venture into the services of receiving articles from their members and in turn published these articles to the whole world.Article directory sites can otherwise be known as web media sites.Most of the article directory sites receives membership through registration in that site as their member before you can post any article.

HOW IT WORKS.

In an article submission,the member is given an opportunity to showcase his article and in his article,the member is allow to provide link to his site in the article that he has submitted.

REQUIREMENT.

The requirement of marketing your website through this means is your brain and motivation BAM That is your writing ability.Everybody is a writer.You do not need to be a Shakespeare or Wole Soyinka to do this,just start with a sentence and you will be there,before you know it,you will turn to a prolific and sort after writer.

I personally started in this way and now I can virtually write on any topic whatsoever without stress.Writing can be done as an hobby-put in two hours in a day and see the tons of articles that you will have in your niche area.

IMPORTANT POINT.

DID YOU HEAR ME SAY NICHE AREA.When you are writing for article directory sites,note that the write up must be tailored towards the niche area of your site and make your audience to ask and seek for more information on the subject on the subject.They have to come to your site.

THE RESULT.

Come to think of it,if you submit your article that is embedded with your site link to an article directory sire that has a lot of traffic and your article is read by about1000 persons who will in turn click your link in two weeks,that means that 1000 persons will visit your site in two weeks.Supposing you are selling a particular product, this will turn to much sales.Mind you the visitors to your site shall surely come back if your product is good for them.

If you do this to about 20 article directory sites how much visitors do you think you will drive to your site in one month Do the calculation yourself.

Posted by publishyourself.

THE NEED TO REGISTER YOUR BUSINESS.

2010-07-28T15:15:00.000-07:00

Statistics have shown that about 90% of adult in this world are business men and women,but out of this percentage only 10% are doing such business under a registered name or company.

Many a time people go into partnership business without an agreement talk less of registering the business with the appropriate authority.

The import of this article is to show you the various benefits of running a business under a registered name.

There are two types of registration of business.They are:Business name registration.In this category,we have sole proprietorship,that is one man business and partnership business for service oriented business like accountancy firm,law firm,management consultancy firm,etc.

ii Company.This could be either private or public. In this case the business is going to be a big one and requires much capital.

In every country if a person operate a business without registration of such business the business will be considered as illegal and in fact it is a criminal offense to engage in such a business.

LEGALITY.

Just as we have said above,if you are operating a small business of barbing salon and such is not registered with the appropriate corporate agency, that business does not have the legality to operate.It does not matter that the nature of the business is itself legal.Registration gives a business the legality.

STATUS

IF A PERSON REGISTERS A COMPANY,that company is different from the members.The members are mere agents of the company.The company is a body corporate,that is,it is a corporate personality.

what flow from this is that the company once registered can sue and can be sued on its own name without joining the members.This gives the members protection from litigation by outsiders who enters into contract with the company.

Also a registered company enjoys perpetual succession.This means that death or bankruptcy of any of the members does not affect the life of the company.On this premise, if the chairman of the company is dead the company will still be in existence.A company can only die if it is kill by the members or the court.A company company can only be killed through liquidation.This is very important because allows for continuity in business.It makes a business not to stop simply because one or two persons have exit.

Equally,a company can enter into contract with another person.The nature of contract of a company must be such that are approved in the memorandum and article of association of the company.In practice many rich persons that owns companies virtually enter into contract with people in their personal capacity,this strategy gives them much more protection.

Company when register own property/ies both movable and immovable.It is saver to own property in the name of your company than to have property in a personal name.

A registered pay tax from profit.The implication of this is that a registered business pay tax after spending their money unlike a natural person who pays tax on income duely taxed.

When a business is registered there is trust from the members of the public.A company that is registered can get a contract of whatsoever sum more-so when the share capital is reasonable.People will respect the company and this respect will be translated into more business for the company.

For more information on how to register a company contact the author at ekerete4u@gmail.com

Post by Ekerete Utioh, Esq.

MAKE MONEY AS A LAWYER WITHOUT BEING ONE.

2010-07-27T19:11:00.000-07:00

Do you know that you can benefit from the legal profession without necessarily being a lawyer?
Legal profession is arguably one of the lucrative profession in the world no matter the jurisdiction.
I am interested in literally opening your eyes to see a practical aspect of the legal profession that
you can actively involve as a non lawyer without breaking the code.

You can be involve in the corporate aspect of the profession as a PROMOTER.

WHO IS A PROMOTER?

A Promoter is a person who holds himself out as a person in the business of registration of companies to others.A person that can act as a Promoter need not have any special qualification other than basic education.

WHAT A PROMOTER DOES.

A Promoter takes his brief from proposed member of the company.That is, the Promoter will have to know type of company to be registered,the share capital,the name of the members/Directors,the objects, registered address etc.

PRE-INCORPORATION CONTRACT OF THE PROMOTER.

A Promoter is an agent of the proposed company ,on this premise,the contract that is entered by the Promoter shall be considered as the business of the company.This consideration will depend on the jurisdiction,so you need to research on your local legislation.

For the actual filing of the company the promoter need to affiliate with a lawyer who will handle the actual filing with the relevant authority as most countries only permits only lawyers for that purpose.

PROMOTERS FEE.

THIS IS THE CRUX OF THE MATTER. The services of a Promoter is not free.He is entitle to fee.The remuneration of a Promoter shall be fixed by the proposed members of the company before incorporation,such shall be ratified by the company after incorporation of same.The fee shall be determined by the bargaining ability of the parties to the contract This makes the business of a Promoter interesting as he is not limited to any amount of money by any legislation or practice.

For more information on Promoter,consult your lawyer or e-mail me at ekerete4u@gmail.com

Post by Barrister Ekerete Utioh

WELCOME TO MY BLOG

2010-07-27T18:32:00.000-07:00

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neither to be journalist with Times of London.

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Get free information on any matter whatsoever in this blog for free.
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