Desertion: When A Spouse Abandons Marriage After The Wedding| Hightower Lawyers

Desertion: When A Spouse Abandons Marriage After The Wedding| Hightower Lawyers

This is not legal advice.
This piece only seeks to educate and promote a healthy conversation.

In Nigeria, there is only
one ground for divorce. This is when a marriage has broken down
irretrievably
. Instances that lead to this include cruelty, adultery, and
desertion for at least one year.


Newly weds(and old
couples) have a legal duty to live together in the same household, though not
necessarily under the same roof. That is, they can live in different places or
countries as long as they have so agreed.

Desertion can be described
as a matrimonial misconduct, and it occurs when there is an intention to part
with the other spouse, coupled with the intent to bring the cohabitation(living
together) to an end. In a reported decision, the husband forced his wife out of
the matrimonial home, and abandoned her for three years without any
maintenance; it was held to amount to desertion.
Another example would be
instances where the husband deliberately moves out of the matrimonial home
without the consent of his wife, or where he lives a completely isolated life
from his wife, regardless of the fact that they live together, e.g. where he
cooks his own food, sleeps in a separate room, denies his wife sex and fails to
communicate with her.

In the same vein, when a
husband travels out of the country, in search of greener pastures, and never
comes back to his wife(family) or gets married to (or cohabitates permanently)
another woman, all these may amount to desertion. This is the present reality
of lots of married people in Nigeria.

However, four elements
must be established to prove desertion:
1.    
Actual separation of the spouses,
2.    
The intention to end cohabitation
permanently,
3.    
The lack of consent from the deserted
spouse,
4.    
Absence of just or reasonable cause for the
desertion.

Where the elements above
have been proved, the innocent party (i.e. the deserted partner) may sue for
judicial separation, restitution of conjugal rights, or even dissolution of
marriage.

The law affords the
innocent party the above mentioned options. Marriage – it is believed – is
contracted for different reasons. The law recognises that when companionship,
support, and all other benefits cease to exist, there is adequate reason to
dissolve such unions or seek other remedies.

In sum, if a spouse has
been deserted, there is a fitting prescription under the Nigerian law.

By – Hightower Lawyers
        www.hightowerlawyers.com
This article was first
posted here.

Medical Negligence In Nigeria: Addressing The Public On Its Scope And The Resultant Legal Implications

Medical Negligence In Nigeria: Addressing The Public On Its Scope And The Resultant Legal Implications

INTRODUCTION

It is not uncommon to see
this quote on a hospital building “We Care, God Heals”.

While the accuracy or
otherwise of that statement is not in contention, it is pertinent to ponder on
how much “care” medical practitioners owe their patients before the healing is
left in the hands of the most Supreme Being. Are Medical Doctors mere tools in
the hands of the creator? So much so that regardless of the magnanimity of
their efforts, high hopes should be kept at bay?


The reality that exists
today is that the average Nigerian, and surprisingly even the above Nigerian
has only a vague knowledge of the existence /or enforceability of the Laws
Governing Medical Negligence in Nigeria.

Do we have to accept every
mishap as the will of God? Is it the will of God that a stage 4 breast cancer
patient is diagnosed of a big and unusual boil until she writhes in pain before
suffering an untimely, painful and perhaps avoidable death? These things are
not news and I could write on about numerous examples while we lament about how
bad our Country is.

This Article however seeks
to equip the average Nigerians with useful information on steps to take in
dealing with health service providers.

DEFINITION
OF MEDICAL NEGLIGENCE
A definition of the term
Medical Negligence is apt at this juncture. Medical negligence can be defined
as improper, unskilled, or negligent treatment of a patient by a physician,
dentist, nurse, pharmacist or other health care professional. * (the free
dictionary by farlex)legal-dictionary.thefreedictionary.com

It is important to note
that whilst medical negligence is generally used in reference to Doctors, other
health care providers such as nurses, pharmacists, laboratory attendants and
any other health care provider can be liable for medical negligence.

WHAT
AMOUNTS TO MEDICAL NEGLIGENCE
The Rules of Professional
Conduct for Medical and Dental Practitioners also known as the Code of Medical
Ethics highlights some instances that would amount to Professional  Negligence. Some of these are:

(A)  Failure
to attend promptly to a patient requiring urgent attention when the
practitioner was in a position to do so.
(B)  Manifestation of incompetence in the
assessment of a patient.

(C)
Making an incorrect diagnosis particularly when the clinical features were so
glaring that no reasonable skillful practitioner could have failed to notice
them. 

(D) Failure to advise, or proffering wrong advice to, a patient on the
risk involved in a particular operation or course of treatment, especially if
such an operation or course of treatment is likely to result-in serious side
effects like deformity or loss of organ.

(E)
Failure to obtain the consent of the patient (informed or otherwise) before
proceeding on any surgical procedure or course of treatment, when such a consent
was necessary.

(F)
Making a mistake in treatment e.g. amputation of the wrong limb, inadvertent
termination of a pregnancy, prescribing the wrong drug in error for a correctly
diagnosed ailment, etc.

(G)
Failure to refer or transfer a patient in good time when such a referral or
transfer was necessary

H)
Failure to do anything that ought reasonably to have been done under any
circumstance for the good of the patient.

(I)
Failure to see a patient as often as his medical condition warrants or to make
proper notes of the practitioner’s observations and prescribed treatment during
such visits or to communicate with the patient or his relation as may be
necessary with regards to any developments, progress or prognosis in the
patient’s condition.
LAWS
GOVERNING MEDICAL ETHICS
There are various laws
governing medical practice in Nigeria and one of such Laws is the Medical and
Dental Practitioners Act (CAP M8) which is designed to regulate and govern
medical ethics in Nigeria and rules of professional conduct for Medical and
Dental Practitioners.  Another one is the
Rules of Professional Conduct for Medical and Dental Practitioners.

Globally, Medical
practitioners are governed by The Hippocratic Oath, ethical guidelines which
are historically taken by physicians summarily pledges to serve humanity to the
best of their ability and without discrimination of any sort and without
breaching patients confidentiality. Another one is the International Code of
Medical Ethics (Declaration of Venice 1983).

Despite all these, it is a
glaring reality that has come to abide with us that poor patient care, lack of
proper diagnosis, unsafe drug options, and limited treatment options are some
of the travails that affect Doctor/Patient relationships.
A
PRACTICAL EXAMPLE
To elucidate further and
put things in perspective, here is an example:
A pregnant woman falls
into labour and is taken to a popular Government Hospital and is informed that
she will have to undergo a caesarean section. 4 hours later, the woman is
referred to another hospital because of the unavailability of the Doctor on duty.
On getting to the referred hospital, the doctor on duty informed the patient
and her husband that there was no bed space. After much pleading, she was
eventually admitted and sedated despite protests from her husband against the
sedatives. The surgery was not carried out until the following day and the
baby, following the operation did not cry after delivery but was breathing and
moving her limbs.

It was discovered several
months down the line that the baby was asphyxiated during birth and the baby
was later diagnosed as suffering from cerebral palsy.

From this example, several
things can be deduced.
i.  The combined lack of adequate efforts of
the various Doctors that were in one way or the other involved in the birth of
that child does not meet the criteria of standard medical practice required.

ii.    It is apparent that there was negligence
during antenatal, delivery and post operative care.

The resulting consequence
of all this is a five year old child suffering from cerebral palsy a condition
which cannot be cured but only managed, bitter parents whose lives have been
altered forever, and a prolonged Trial that may or may not have a favorable
outcome. This is the story of thousands of people with different names,
different facts and different circumstances who have something in common: an
undeniable case of medical negligence and a struggle for their voices to be
heard.

AVAILABLE
OPTIONS
After all is said and
done, what are some of the options that are available to patients?
a.     A
report can be made at the Police Station who can prosecute where investigation
reveals gross negligence or where death has resulted from such negligence.
b. A complaint can be
filed with the Medical and Dental Council of Nigeria for appropriate redress.
The Medical and Dental Practitioners Act provides for an Investigation Tribunal
and where a prima facie case is established; a Disciplinary Tribunal. Thus,
Medical Practitioners who are found guilty of gross negligence are liable to:
(i) Suspension or a period
of six months; or
(ii) Having his name
struck off the medical or dental register, as the case may be.
c.      Patients
can also seek legal redress through a Court of law by filing civil claims for
tortuous liability and a breach of duty of care.
d.    Apart
from Litigation, another option available to patients is exploring other means
of alternative dispute resolution through Arbitration or Mediation. Alternative
Dispute Resolution greatly reduces cost and circumvents lengthy law suits.  The success of law suits is not always
guaranteed due to challenges such as the unwillingness of Doctors to give
expert reports in cases of Medical Negligence, however settlement can be a
preferred and outcome based solution where criminal liability is not involved.  Nonetheless, exploring these options do not
foreclose the patient’s constitutionally guaranteed right to trial.

SUGGESTIONS
It is imperative to state
that it is also advisable to make use of the National Health Insurance Scheme
which was established under the National Health Insurance Scheme Act, CAP N42
LFN 2004. The NHIS is aimed at providing quality healthcare in a cost effective
way and patients are offered a variety of health care options.

CONCLUSION
I am not unmindful of the
fact that we have a lot of progress to make as a nation in providing an
enabling environment with modern and innovative equipment to aid medical
practitioners in carrying out their duties. I am also not oblivious to the fact
that Doctors who are employed in Government hospitals constantly have to demand
adequate remuneration.

Notwithstanding, patients should remember that they
have rights, the right to ask questions, the right to get second opinions,
right to choose their preferred treatment options and a voice to complain.

We may not be able to
solve all of our challenges arising from medical negligence, however we can
collectively make efforts to make it bearable.
 
 By- Motunrayo Olaleye
 Legal Counsel at B. Ayorinde & Co. 

  Photo Credit – www.medical-negligence-dublin.com

Doing Business In Nigeria: Dealing With Incidents Of Fraud | Hightower Lawyers

Doing Business In Nigeria: Dealing With Incidents Of Fraud | Hightower Lawyers

In business, there’s
always a risk of being swindled, even when dealing with supposed ‘partners’,
agents, distributors, vendors or contractors.
Some protection is
afforded entrepreneurs, businesses, and businessmen within our laws. Several
law enforcement agencies in Nigeria also do a fine job of administering these
laws.


What fraud looks like?
Fraud comes in different
forms such as unjust enrichment, sharp practices, conflict of interest or abuse
of office and deceit.

It is unlawful enterprise
or scheme in which a dishonest individual uses deception to get an unfair
advantage over another. It could be under the guise of utilizing tricks
directly, or fooling someone else in order to get access to their money.

How to React
It is best to collaborate
with law enforcement agents. The complaint should be brought to their notice
via a well written petition that chronicles all material events leading up to
the loss or inconvenience suffered. When a contractor, partner or vendor unjustly
enriches himself at the expense of another person, or deceives the same person,
this should be reported to the relevant law enforcement agencies.

Why Lawyers?
By reason of their
practice, experience and skill-set, they are well positioned to help victims of
fraud when their services are sought. After consulting with the victim they
render counsel on how best to address the situation i.e. instituting an action
either in tort against the person(s) or as a criminal action.

How to involve Law
Enforcement Agencies
Law Enforcement Agencies
such as The Economic and Financial Crimes Commission (EFCC), The Independent
Corrupt Practices (and Related Offences) Commission (“ICPC”) and The Nigerian
Police Force (Special Fraud Unit) can be involved once the victim of fraud can
show with evidence that he has been defrauded. A victim’s complaint must
present a strong case for preliminary investigation.

The Economic and Financial
Crimes Commission (EFCC)
If an individual has been
defrauded, the popular way of seeking redress is by filing a petition as an
individual or an organization. Once this falls within the purview of the EFCC
Act, an investigation will commence right away.

The Independent Corrupt
Practices (and Related Offences) Commission (“ICPC”)
If anyone has been a
victim of fraud, the process through which they can seek relief is by filing a
petition at the Commission once they can show that the fraudulent act is within
the ambit of the commission.

 The Nigerian Police
Force (Special Fraud Unit)
The Nigerian Police Force
(Special Fraud Unit) has a mandate to tackle cases of special fraud and has the
following criteria to establish special fraud, namely:
  • The fraud in question exceeds
    N2,000,000;
  • There are Multiple victims of the
    suspected fraud; and
  • Other law enforcement agencies don’t
    have legal or financial capacity
Have you been a victim of
fraud? Contact the relevant Law Enforcement Agencies or seek the services of a
lawyer for legal advice and representation.
Hightower Lawyers 
Phone: +234 (0)70
1497 9879

Land Ratification/Regularization Policy of Lagos State- Would the Supreme Court’s Decision Have Been Different Had It Considered the Land Use Act?

Land Ratification/Regularization Policy of Lagos State- Would the Supreme Court’s Decision Have Been Different Had It Considered the Land Use Act?

Introduction
Lagos State, the former capital of Nigeria,
otherwise known as the ‘Centre of Excellence’ prides itself on being a
megacity. In order to maintain this lofty position, it generates a major part
of its own income and as a result, seeks to raise funds in whichever way
possible, sometimes to the chagrin of its citizens and just recently, the
Federal Government.

The megacity has a land regularization
policy which amongst other things, mandates a second registration of the title
to land held by purchasers of federal lands at the Lagos Lands Registry not
minding that the said title had originally been registered by the Federal
Ministry of Lands.
It was not surprising that the Federal
Government instituted a suit against the Lagos State Government in respect of
the regularization policy on grounds of what it termed as “Insubordination”.
Okay, I made that up. Not the suit part though. The Federal Government indeed
instituted the suit at the Supreme Court challenging the validity of the policy
vis-à-vis federal lands.

The Supreme Court in its ruling held that
from the evidence available before it, the Federal Government had divested
itself of the titles to properties which were subject of the suit and therefore
had no locus to bring the action. In simple parlance, the Supreme Court meant
that the federal lands in question had already been sold to third parties by the
Federal Government, as such, the lands no longer belonged to the Federal
Government. Therefore, it had no business suing in respect of them. Ouch!

As much as we commend the industry of the
Justices of the Supreme Court, we do not agree with its conclusion. It is
elementary that freehold interests no longer exist in Nigeria by virtue of
Section 1 of the Land Use Act (LUA) which vests ownership of all lands (except
land vested in the Federal government or its agencies by virtue of section 49
(1) of the LUA) in a State in the State Governor. Hence, the State Government
merely gives a lease of the lands to persons for a maximum period of 99 years
after which the property will revert back to the Government unless of course,
the lease is further extended in favour of the lessee or title holder. Section
49 Subrule 1 of the LUA provides as follows:

“nothing in this Act shall affect
any title to land whether developed or undeveloped held by the Federal
Government or any agency of the Federal Government at the commencement of this
Act and, accordingly, any such land shall continue to vest in the Federal
Government or the agency concerned.”

Furthermore Section 51(2) of the LUA
provides as follows:
The powers of a Governor under this
Act shall, in respect of land comprised in the Federal Capital Territory or any
land held or vested in the Federal Government in any State, be exercisable by
the Head of the Federal Military Government or any Federal Commissioner
designated by him in that behalf and references in this Act to Governor shall
be construed accordingly.

In light of the foregoing, it is apparent
that ownership and control of federal lands are vested, conferred, lodged or
bestowed upon the Federal Government. As such, all a title holder possesses is
a ‘right of occupancy’ in the technical sense and not ‘ownership’. Therefore,
we cannot fathom nor comprehend the Supreme Court’s reasoning that the Federal
Government in its capacity as an Overlord or Headlessor had no locus
standi
 to institute an action in respect of its lands.

It is our considered opinion that the
decision of the Supreme Court on the locus or lack
thereof of the Federal Government to institute the suit was made per
incuriam 
andwould have been different had the Court averted its mind
to the foregoing provisions of the Land Use Act. Unfortunately, this decision
remains binding until same is set aside by the Supreme Court itself. It would
appear that the ball now lies in the court of holders of title to federal lands
to contest the regularization policy of Lagos State before the High Courts of
Lagos State.

Adebanke Ajayi is a Legal Practitioner
writing from Lagos State.
 Adebanke Ajayi
Associate
Olawoyin & Olawoyin Legal
Practitioners & Consultants
Ed’s Note – This article was first
published here
Photo Credit – www.visalady.com 

Are Documents Made by Interested Persons to an Action Admissible in Court? | Adebanke Ajayi

Are Documents Made by Interested Persons to an Action Admissible in Court? | Adebanke Ajayi


Generally, a
document made by a person interested in an action either in anticipation of the
suit or during its pendency is inadmissible. See Section 83 (3) of the Evidence
Act 2011 as amended.

Who is an
interested person in this context?
An interested
person in the context of admissibility or otherwise of documentary evidence is
one who is likely to pervert the truth as a result of his pecuniary or other
material interest in the result of a proceeding. For example, say Mr. John Doe,
a pharmacist, is claiming damages in the sum of
1,000,000.00 (One Million Naira) from a pharmaceutical company on grounds
of negligence (Donoghue v Stevenson). If Mr. John Doe swears to an affidavit or
prepares an expert opinion in respect of his case, it stands to reason that
such document prepared by Mr. John Doe will most likely be in support of his
claims. Furthermore, due to Mr. John Doe’s proximity to the case, he may be
tempted to simulate the facts to suit his side of the story considering that he
has a lot to lose or gain from the results of the proceeding.
What nature of
interest will bar the admissibility of the document in question?
Where a person
has a personal interest in the results of a proceeding as against an interest
in an official capacity such as that of an employee or servant, any document
prepared by him in respect of the matter is inadmissible. In the case of UTC
(Nig.) Plc v Lawal (2013) LPELR-23002(SC) at page 27 paras A-F
, the
Supreme Court per Ariwoola J.S.C held as follows:
“…the interest
that is envisaged by the law which disqualifies is a personal interest not
merely interest in an official capacity…It does not mean an interest in the
sense of intellectual observation or an interest purely due to sympathy. It
means an interest in the legal sense, which imports something to be gained or
lost.”
Similarly, in the
case of Nigeria Social Insurance Trust V. Klifco Nigeria Ltd(2010)
LPELR-2006(SC)
 on pages 26-28, paras. D-G, 
the Supreme
Court per Chukwuma-Eneh, J.S.C held as follows:
“The nature of
the disqualifying interest will depend upon the nature of duty undertaken by
the servant. Where from the nature of the duty he can be relied upon to speak
the truth and that he will not be adversely affected thereby, the document has
always been admitted in evidence. This is because the rationale of the
provision is that he must be a person who has no temptation to depart
front the truth on one side or the other – a person not swayed by personal
interest, but completely detached judicial, impartial, independent” 
[Emphasis
Ours].
However, can one
accurately state that an employee has no personal interest in the outcome of a
proceeding to which his employer is a party? Can we safely conclude that a
document prepared by John Doe’s employee in respect of the negligence claim was
without any influence from John Doe himself? In light of these uncertainties,
we reckon that a determination by the courts, as to whether or not a document
prepared in an official capacity is ‘tainted with personal interest’ will have
to be decided on a case by case basis.

Adebanke
Ajayi
Associate
Olawoyin & Olawoyin Legal Practitioners
& Consultants
Ed’s Note – This article was first
published here
Photo Credit – www.visalady.com 
Military attire, civilian camouflage, and their legality in Nigeria | Gbenga Odugbemi

Military attire, civilian camouflage, and their legality in Nigeria | Gbenga Odugbemi

In Nigeria, it is notorious that majority
of the civilians do not know their rights, and for a population where the majority
do not know their rights, legal understanding is consequently a sophisticated
endeavor. Although, this a discussion for another time, the reason why law
seems sophisticated in Nigeria is still very confusing. For a country having
three major languages – Yoruba, Igbo, and Hausa – one would expect that laws
would be written in these languages, or if not, that laws would be written in
the more common and uniting language – the ‘Nigeria Pidgin English’. A forced
understanding of the law written in English
language in a country where the majority of the adults – 56.9% – are
illiterates is ludicrous[1]


The question beckons, who are the laws written for?. It is like the USA having
their laws written in French, or France having their laws written in Chinese.
The relics of colonization must be modified (to suit the Nigerian people) if we
do not want to totally abrogate them. The legal profession and the Rules of
professional responsibility are also a
constituent factor in the legal illiteracy of the Nigeria populace; for
example, lawyers are restricted in giving legal clarifications to the populace
by Rule 35[2]
of the “Rules of Professional Conducts for Lawyers” (in Nigeria). This is an
anomaly, as it offends the right to freedom of expression (of lawyers) as
promised in the section 39 of the Nigerian 1999 Constitution.    
The problems described above have been the
cause of the dearth of cases on the law relating to wearing of military garbs
in Nigeria hitherto. There is virtually no case law
on this issue in Nigeria, and one of the causes is that the people do not understand
the law or their rights?, for if we know our rights and understand the law,
someone, in the past would have brought this issue before a court of law in
Nigeria. It is saddening while writing on a topic as this, that the writer has
to search the nooks and crannies for authorities to support arguments. On
another note, if laws are not deliberately made sophisticated, and if everyone
understand the law, the crippled man almost beaten to death by two military
officers in Onitsha, Anambra State recently[3]
would not have been a victim of the humiliation and pain he suffered, for
what?, just because he is a Nigerian and has worn a military camouflage.
Since the attitude of the Nigerian military
is a continuing one, where they assault anyone wearing military-like attire,
and since the court has not made any
pronouncement on the issue – because no one has had the audacity to take their
case to court, this creates a lacuna in legal discourse. “Legal discourse”
because the majority of the writings on
the issue are being propounded by non-lawyers or those who do not understand
the law. The aim of this article is to dissect the law on the issue of
civilians wearing military camouflage, the legal provisions especially in the
Criminal Code Act (applicable in Nigeria – aside from the Northern part), and
the legality of the military officers who more than often ‘beat the hell out’
of civilians wearing military camouflage in public.
Quickly, the relevant laws are in sections
110[4]
– which describes the acts that constitute
the offense and the punishment of “Unlawfully
wearing the uniform of forces”, and section 251 – which describes the offense of what constitutes “Bringing contempt
on uniform”.
In section 110, the law provides that:
Any
person who – Unlawfully wearing the uniform of forces, etc. L.N. 112 of 1964.
1967 No. 27.
(1)            not being a person serving in any
of the armed forces of Nigeria, wears
the uniform or any part of the uniform of such forces, or any of the armed
dress having the appearance
or bearing any of the regimental or other
distinctive marks of such uniforms; or
(2)            not being a person holding any
office or authority under the Government of Nigeria or of any part thereof,
wears any uniform or distinctive badge or mark or carries any token calculated to convey the impression that such person holds
any office or authority under the government;
                 is guilty of an offense and is liable to imprisonment for one
month, or to a fine of ten naira, unless
he proves that he had the permission of the President or of the Governor of a
State or wear such uniform or dress, badge or mark or to carry such token:
                 Provided that this section
shall not apply to the wearing of any uniform or dress in the course of a stage
play or in any bona fide public entertainment.
First, it must be understood that contrary
to popular belief and what has been circulating, this provision does not “entirely” incriminate civilians from
wearing military attire or a camouflage of same. Here is a dissection of the
two subsections, starting from subsection 2. 
In the said subsection 2, a proper and close reading would show that
what that subsection incriminates is “impersonation”, especially when one pay
close attention to the phrase “calculated to convey the impression”. In law,
there are lots of ramifications that follows using a phrase as this in a criminal
law provision. One, it shows that the crime requires a criminal mental state[5],
and also, that the prosecution/State must prove this culpable mental state
before the suspect can be convicted. It,
therefore, follows that civilians wearing military garbs on the street
without the intention or mental state calculated to convey the impression that
they belong to the military cannot be held responsible under section 110
subsection 2. It is very simple. The prosecution has the burden of proving that
a civilian wearing a military garb intend to impersonate, the civilian is not liable
at the point of merely wearing a military garb.
On subsection 1, unlike subsection 2, the offense is clearly strict in nature. A strict offense
is one that doesn’t require the prosecution/State to prove the mental state
which culminated into physically carrying out the culpable mental state. Put in
another way, doing the act alone is enough for someone to be found guilty, for
example, merely possessing arms like gun(s)
is a crime in Nigeria under section 428 of the Criminal Code Act, whether the
person intended to possess the gun is immaterial. Likewise in subsection 1
above, wearing the said uniform or any type having the appearance is enough to
make someone liable. Why it could be argued that this section is the main basis
for the harassment of the Nigerian populace wearing military camouflage, it
must be mentioned that the interpretation of that provision itself is not
flawless. The wordings of section 110 (1) at best is an example of ‘legislative
imprudence’ common in most Nigerian statutes. For what it’s worth, it is
obvious that what section 110 in the ‘spirit of the law’ is trying to
incriminate is also “impersonation” like its subsection 2. This argument is
further bolstered when one looks at the two previous sections of the law –
which are also deliberating on similar offense,
this time for persons in public service and police officers. Section 108 uses
the word “personates” and section 109
uses the words “with intent…” It is only logical that section 110 also
incriminates personation, but it seems the legislature has ‘muddled up’ its
actual intention in section 110 subsection 1.
Although the ongoing
argument is open to lots of criticisms – like the literal provision of the law
must be adhered to – a counter-argument is employing the legislative intent in
interpreting a statutory provision. The title of section 110 shows it was added
in 1967, that period marked the beginning of the Nigerian Civil War, whereas a
legislative manuscript or White Papers of the legislature in making this law
cannot be laid hands on so that one can decipher the legislative intent behind section
110 (1). Still, one can logically reason that the legislative intent was to prevent
impersonation or using the military platform to carry out odd/criminal
activities. It is also logical to say the legislative intent was to delineate
civilians from the military. Whichever logically conclusion one might want to
draw, the most important thing is that section 110 in its entirety is a war relic that must and should have been eliminated since it was not part of our law
before, but was “smuggled” in – for war, and emergency purpose. War has ended,
so is the emergency situation, in fact, the Civil War ended 3 years after, in
early January of 1970, the country is no more ruled by the military and has now embraced democracy – a
civilian type of government – and still we still have a section 110 in our
criminal law. Section 110 is an upshot of the laziness of Nigerian
legislatures, the Nigerian Criminal Code Act has been promulgated since
1st June, 1916, and has since not been reviewed or
amended. It is really sad. If the law has been reviewed, it would have followed
the way criminal laws are now been written, i.e. where a crime which is a
strict liability offense is so highlighted, and those requiring prove of mental
state uses words like ‘intentionally’, ‘with intent’ etc.
On the other provision, section 251 of
the law states that:
“Any
person who, not being a person serving in any of the armed or police forces of
Nigeria, wears the uniform of any of these forces, or any dress having the
appearance or bearing any of the regimental or other distinctive marks of any
such uniform, in such manner or in such circumstances as to be likely to bring contempt on that uniform, or employs any
other person so to wear such uniform or dress, is guilty of a simple offence,
and is liable to imprisonment for three months or to a fine of forty naira.”
Section 251 of the Criminal Code Act
shares in the criticisms of section 110
above, but also, it is clear that section 251 is a bad law. The controlling
phrase is “as to be likely to bring contempt”. This is a clearly subjective
phrase, the question is what constitutes “contempt on the uniform?”. If the
legislature via the criminal law provision has recluse itself from objectively and
narrowly defining what would amount to “contempt”, then anything subjectively
done to the uniform must be accepted as
licit. Section 251 is vague and is, therefore, void. [see: PDP v. INEC &
Ors (2012) LPELR 9724 (SC)]. The suspect is being robbed of the ‘notice’ of
what he is being held reprehensible for – and this is unconstitutional, see
section 36(6)(a) of the Nigerian 1999 Constitution.
A more important issue that must be
addressed is the jungle-justice the military are exerting on civilians found
culpable as regards these laws. The military is
either equal to the civilians or below them (since they – the military – live
on the taxpayer’s taxes – the civilians
taxes), but never above them, and therefore could not and should not be seen
beating people up on the streets. Even if we agree that civilians could be held
liable under section 110(1) alone, the suspect is still entitled to the
procedural due process promised under section 36 of the Nigerian Constitution.
An instance where the military takes the law into their hands, where they make
themselves the court and executioner of their judgment is devastating. This must be stopped, and the military body and
institutions must be held accountable for this attitude, as it sure shows their
‘products’ are not well-ingrained in the due process requirements of the law since the attitude is quite repetitive. The
initiative taken by the Director, Army Public Relations, Brigadier-General Sani Kukasheka Usman
subjecting the two military officers engaged in the maltreatment of the
crippled man in Onitsha to an assault charge (via their Commanding Officer) is
admirable. This type of attitude puts our feet back in the right direction. At
the end, if we agree that wearing a military-like attire is a crime, then, like
every other criminal case, the suspect
must be subject to the court system, not assault on the streets.
This article will not be complete
without mentioning the relevance of section 39 of the Nigerian Constitution as
it relates to these issues. It is trite that the freedom of expression and its
interpretation is and should be interpreted
broadly. Freedom of expression thus encapsulates wearing a military-type garb.
However, since there has not been a case before a court in Nigeria on this
issue, it is doubtful how the court will explain the fundamental right of
expression and wearing a military-like garb. Still, it is doubtful if any court
would suppress the fundamental right of expression in clothing for a military
‘interest’. The military/government (for whatever reason) might argue they have
an interest in restricting civilians from wearing what they wish, but the assessment
would be if such propounded interest is legitimate/rational enough to suppress
a huge constitutional right as freedom of expression. Thus, from a legal point
of view, section 110 of the criminal code itself is constitutionally infirm as
it intends to restrict the smooth operation of a fundamental right housed by
the constitution, and because of that is void by virtue of section 1(3) of the
Nigerian Constitution. The Constitution is paramount to any other law, the said
Criminal Code Act inclusive.
There are also some arguments flying
around that similar attitude is incriminated in countries like India and the Philippines, the question is, and so what?,
does it mean that incriminating the act is good law?, does it mean Nigeria must
follow suit?, gay rights is observed in Europe and North America, do we observe
the rights?. No doubt, arguments as these are hypocritical
because even countries with advanced military personnel allow their civilians
to wear military-like garbs. The ability of a State to choose laws for her own
people is what sets each State apart. A sanction of civilians in this regard in
today’s Nigeria is not only unnecessary, it is a source of brutality of the common man by military
officers as has been seen repetitively.
In conclusion, we need our laws in our
traditional languages in Nigeria, the merits of doing so are vast. For once, the acts of those in power
could be checked, the masses would know their rights, it would also aid
judicial activeness and explanation on a lot of knotty legal issues as the
court would have had opportunities to explain lots of issues that would have
been brought by lots of people. Rule 35 of the Rules of Professional Conduct
for Lawyers in Nigeria is also a bad rule, so is Rule 34 restricting
Advertisement of legal practice, these rules are in conflict with the freedom of
expression. Lawyers should be able to take the challenge of explaining laws to
people freely, without the fear of the Nigerian Bar Association subjecting him
to a quasi-trial in a disciplinary hearing. 

If there is any country that needs
explanations of law to its populace, it is Nigeria, it is confusing why that
effort is being restricted by some rules. Rules should emancipate us, not
restrict us unnecessarily. Also, the Nigerian Army Institutions must be charged
with impacting some legal knowledge in those they release to go on the streets,
especially on the constitutional due process of law, and that they should
refrain from taking laws into their hands, as civilians have rights and should and
cannot be pushed around. An assault charge would most likely stand in a court
of law if the crippled man assaulted in Onitsha chooses to press charges,
regardless of the internal charge by the Nigerian Army. The Nigerian Army can
foreclose a potential legal damages loss if it put her agents in check.  

Gbenga Odugbemi
Legal Counsel 

Photo Credit – www.nigerianeye.com 


[1] 65 million Nigerian adults are said to
be illiterates, see:
http://www.vanguardngr.com/2015/12/65-million-nigerians-are-illiterates-unesco/
[2] Rule 35 provides: “A lawyer may with propriety write articles for publication in
which he gives information upon the law; but he should not accept employment
from such publications to advise inquirers in respect to their individual
rights.”
[3] On February 7th, 2016
[4] Of the Nigerian Criminal Code Act
[5] In criminal law, before a person can be
convicted of an offence, the State/Prosecution must prove that the person
had/nurtured a mental state of committing an offence, and secondly, that he
actually did the carried out the mental state idea he nurtured – that he
materializes or transform the culpable mental state into reality. These two
requirements are referred to as ‘mens rea’ and ‘actus reus’. However, some laws
describing a crime explicitly state that the State/prosecution need not prove
the mental state – the ‘mens rea’, this type of offences are called “strict
liability offences”, e.g. when one runs a red light at a traffic stop, it does
not matter if the person had the mental state of running the light OR where one
is found possessing a controlled drug/substance, the ‘possession’ itself is a
crime, there is no need to prove intention of possessing it etc.
Life of Lagos Lawyer -Episode 7

Life of Lagos Lawyer -Episode 7


As a lawyer, receiving phone calls about a
client in police custody is not the sort of welcoming news I like to hear, in
fact its bad market. What happened to the Fortune 500 companies, Oil & Gas
Firms and Multi-Nationals? Why don’t those Clients call my phone! Now, I am
getting calls that Baba Fine-face has been arrested by the Police for staging a
protest against the government. Na me send am? However, after listening to the
way the poor man was man-handled by security agents, his clothes torn, phones
seized and his left eye partially closed from a swollen face, who am I not to
come to my brother’s aid.  

I am not surprised though as this is not
his first time. Baba Fineface is a member of the Native Leadership Congress and
a staunch believer in the doctrines of equality, fairness and justice. This
time, his protest was against the State Governor for the State’s inability to
pay the salaries of workers. For 7 months, state workers had been forced to beg
just to survive. Many children had been withdrawn from schools for the inability
of their parents to pay school fees and the frustration in many homes was about
to erupt like a giant Volcano. The Country’s Misery Index was now above 50% and
the foreign exchange rates have successfully crippled many businesses. Who
would blame Baba Fineface.
It’s always unsettling for a Lawyer
visiting a Police Station, maybe it’s because of the mutual hatred between the
Police and Lawyers. While the Police are used to having their way with
un-learned members of the society, it is only the Lawyer that can rightfully
defend his position confidently. I once heard a Policeman say “Chai, this country
don spoil, why would a lawyer have the temerity to talk when being addressed by
a Policeman”, the Policeman had been responding to my debate with his colleague
over the guilt of my client.  So now you
understand why though the Policeman and the Lawyer are both ministers in the
Temple of Justice, it is very difficult for us to get along. And right now,
sitting in the DPO’s office, it’s not difficult to feel the tension in the air.
It is the Officer’s position that my client
organized an unlawful protest by not seeking a Police permit before carrying
out such and when he was directed to turn back with his cohorts, they refused,
so the officers on riot – duty had to teach my client a lesson. I notice his
demeanour while saying the words “teach my client a lesson”, you would have
thought he was referring to just a mere cautionary warning and not four
police officers beating an unarmed man with batons and the soles of their boots.
I on the other hand am of the opinion that my client was unlawfully assaulted
and arrested because he did not cause any public outburst of violence and the
law is trite as decided by the Supreme Court that no one needs a police permit
before carrying out a peaceful protest and such person may only inform the Police
for the sake of providing security. Furthermore, Sections 39 and 40 of the
Constitution guarantees my client’s right to freedom of expression and to
assemble and associate freely. It takes threatening to sue the Police for
breach of my client’s Rights before he is released on bail with no apology but
a warning not to organize such protests again. Chai, the sacrifices some people
have made for this country, only God can reward them. In a country where there
is Rule of Law, a Policeman will be breaching the rights of citizens with
impunity, chai this country has spoilt.
“Ah, D-Law, this country has showed me
pepper”, Baba Fineface begins. “See how these policemen beat me like thief today,
just because say we want better country for ourselves and our pickin, wetin I do
now and nobody go fight for me”. You no wan go court? I respond. “D-Law, no
even talk that one, who court don epp na, I go go court now, spend 5 years
before judgment commot before we come begin appeal again. I beg who wan dey go
court every day na for 5 years, u fit go now make them say court no sit, e don
taya person o”.   Baba Fineface is just glad to be out of the
ordeal and wishes only to return home for a good night rest after vising the
hospital for a checkup. We both discuss my fee and he agrees to pay the
following morning before I in-turn start driving in the direction of my Office.
 
However, I continue to ponder on Baba
Fineface and his ordeal. I believe it is safe to say there is a huge disconnect
between the Government and the governed in this Country. This also has led to
distrust on the part of the people towards Government and political office
holders. The resulting effect is what I would liken to a No-Win situation for
everyone. While most persons believe political office holders are in government
to line their pockets with the best part of the Nation’s collective wealth,
political office holders on the other hand seem to be overwhelmed by the
growing demands of the people for a better standard of living and accountable
governance.
So why won’t people like Baba Fineface take
to the streets in protest? How do we find a solution to this problem? We engage
constructively I believe. The need for proper engagement with all tiers of
government cannot be overstated. The advantages are too numerous to count and
the benefits are too enormous for us to overlook. Protests and rallies half the
time fail to generate results only attention. But na person wey don chop fit
engage o, I quickly tell myself.
 Join
us next time for another episode of “Life of a Lagos Lawyer”. An exclusive
Legalnaija series. 
PLESE NOTE: This is a work of
fiction. Names, characters, places and incidents either are products of the
author’s imagination or are used fictitiously. Any resemblance to actual events
or locales or persons, living or dead, is entirely coincidental.

Effect of the International Convention for Control and Management of Ships’​ Ballast Water and Sediments

Effect of the International Convention for Control and Management of Ships’​ Ballast Water and Sediments

Since the advent
and use of steel-hulled vessels, water has been used as ballast to stabilize
vessels at sea. Industry practice over years reveals that Ballast water is
pumped into vessels to maintain safe operating conditions throughout a voyage.
This reduces stress on the hull, provides stability, improves propulsion and
maneuverability, compensates for weight changes in various cargo load levels
which would have ordinarily arisen due to fuel and water consumption.

Whilst the
practice of using water as ballast is done without ill-motives and is essential
for safe and efficient modern shipping operations, it is known to sometimes
pose serious ecological, economic and health problems due to the multitude of
marine species carried along in ships’ ballast water. The transferred species
may survive to establish a reproductive population in the host environment,
becoming invasive, out-competing native species and multiplying into pest
proportions. The spread of invasive species is now recognized as one of the
greatest threats to the ecological and the economic “well-being” of the planet.
The need to find a lasting solution became more apparent as years passed.
It took several
years of complex negotiations between International Maritime Organization
Member States to adopt (by consensus) the International Convention for the
Control and Management of Ships’ Ballast Water and Sediments (BWM Convention)
at a Diplomatic Conference held at International Maritime Organization’s (IMO)
Headquarters in London on February 13th 2004. For the Convention to have the
force of law as it were, at least 30 countries representing a combined total
gross tonnage of more than 35% of the world’s merchant fleet must have ratified
it.
On September 8,
2016, Finland ratified the International Maritime Organization’s (IMO)
International Convention for the Control and Management of Ships’ Ballast Water
and Sediments (the “Convention”) which was originally adopted in 2004.
Finland’s ratification ensured that the convention satisfied the conditions of
the required number of signatories and total gross tonnage. Consequently, the
Convention is widely expected to come into force on September 8, 2017.
The ratification
of the Convention is said to be a landmark step towards halting the spread of
invasive aquatic species, which can cause havoc for local ecosystems, affect
biodiversity and lead to substantial economic loss. 
The Convention is
expected to have a significant impact on ships engaged in international trade,
requiring them to manage their ballast water and sediments to certain minimum
standards and to install onboard ballast water management systems.
The Convention
states that all ships of 400 gross tonnage and above will be required to have
on board:
·        
Ships specific approved Ballast Water Management
Plan approved by the administration
·        
Ballast water record book
·        
Approved Ballast Water Treatment System
·        
International Ballast Water Management certificate
In view of the
foregoing, it is also expected that there will be huge retrofit demand on
thousands of ships once the Convention comes into force later this
year. Around 40,000 to 50,000 ships will probably need to be retro-fitted
to an approved Ballast Water Treatment System. The implementation of the
Convention will be a major challenge in the global shipping industry, including
shipyards, equipment manufacturers and ship owners majorly because of the cost
of installing a Ballast Water Treatment System (“BTWS”).
The expectation
and objective is to eventually have a situation where all relevant vessels have
a BWTS installed, whereby ballast water discharged is made harmless as it
relates to invasive species. The IMO implementation schedule for BWTS implies
that most vessels (which do not already have a BWTS installed) will be
requested to install such equipment in the period 2017–2021 – in each case
before the expiry date of the vessel’s International Oil Pollution Prevention
Certificate.
The Convention
also includes a transitional period during which ballast water can be
“exchanged” in deep seas during voyages between ports A and B.
The UK P&I
Club has admonished its members not to delay compliance with the new strict
ballast water management controls which will surely come into force during the
course of the year.
Although the
fixing of BWTS is quite expensive, it is a welcomed development and the cost
cannot be compared to the economic damage which runs into billions of dollars
and colossal ecological and public health impact. This Convention shows that
the trends in the shipping market are sustainable development and environmental
friendly operations.
There is
worldwide acceptance and optimism about the Convention and industry experts are
certain that the Ballast Water Management Convention, once in force in
September 2017, will not only minimize the risk of invasion by alien species
via ballast water, but will also provide a global parlance for international
shipping, providing clear and robust standards for the management of ballast
water on ship.
Damilola
Osinuga is an Associate in the Shipping and Oil Services practice group of Bloomfield
Law Practice
, Nigeria. His scope of work includes registration of
commercial vessels and yachts, incorporation and legal support of shipping
companies, ship financing and mortgaging, shipping advisory and litigation.

Ed’s
Post – This article was first published here.
Legal Strategies for Addressing Climate Change: A Comparative Analysis of Cap-and-Trade and Carbon Tax | Magnus Amudi

Legal Strategies for Addressing Climate Change: A Comparative Analysis of Cap-and-Trade and Carbon Tax | Magnus Amudi


1.     Introduction
Today, major/global climate change
conversations are no longer centered on the validity or otherwise of global
warming as a major threat and challenge to the earth’s existence. The doubts
that once welcomed this subject “are fading, appropriately, as rapidly as some
ice sheets and glaciers are melting.”[1] 


The United States Department of State states that,
“climate change poses multiple threats to U.S. and global security. It is
likely to exacerbate economic and social inequality, and increase competition
and conflict over agricultural, marine, and water resources. It can result in
the massive displacement of people, including those whose livelihoods depend on
these resources.”[2] The discussion today, both locally and
internationally, focus on ways to abate the continued deterioration of our
climate thereby enhancing our collective survival. The purpose of this paper is
to discuss two major legal climate change strategies, comparing and contrasting
both, and highlight their advantages and disadvantages The two strategies
examined in this paper are Cap-and-Trade and Carbon Tax. “Climate change
strategies” is used here to mean plans or methods employed to reduce the
emissions of Greenhouse Gases (“GHGs”). The following are the critical GHGs
found on earth’s atmosphere: Water vapor (H2O), Carbon dioxide (CO2), Methane
(CH4), Nitrous oxide (N2O), Ozone (O3), Chlorofluorocarbons (CFCs).[3]
2.       Comparative
Analysis of Cap-and-Trade and Carbon Tax as Legal Climate Change Strategies
2.1.  Cap-and-Trade
Cap and Trade are two words which when
taken together represent a legal method of tackling the destructive effects of
climate change by reducing the emissions of GHGs. “[A regulator] sets a []
‘cap’ [] on emissions, which is lowered over time to reduce the amount of
pollutants (e.g., CO2) released into the atmosphere. The ‘trade’ creates a
market for carbon allowances, since the ‘total number of permits is limited by
the cap, the permits take on financial value and can be traded on the open
market,’[4] persuading companies to innovate in order to meet,
or come in under, their allocated limit. The less they emit, the less they pay,
so it is in their economic incentive to pollute less.”[5]
A very successful example of a
cap-and-trade legal strategy is the Acid Rain Program (the “Program”).
Established by Title IV of the 1990 Clean Air Act with U.S. Environmental
Protection Agency (“EPA”) as its administrator. The major goal of the Program
is to reduce Sulfur Dioxide (“SO2”) emissions to half of the level in 1980 by
setting a cap on the total amount of SO2 that could be emitted by electric
power plants across the country. It is believed that the Program have reduced
annual SO2 emissions to one-half the amount emitted in 1980.[6]
How it works(ed)? As a typical cap-and-trade
program, the Program did not set individual emission caps for each powerplant,
rather, an overall cap is set each year with each powerplant allocated a
certain number of allowances based on the predetermined cap. An allowance is a
right to pollute, to the extend ‘allowed.’ When not fully exhausted or used, by
reducing emissions below the allowed level, an allowance holder may sell
(trade) or save (bank) the allowance for future use. To be complaint,
powerplants that are unable to reduce their emissions below the allowed level
must purchase allowances. The trading aspect therefore creates an incentive for
emission reduction. The overall allowances are adjusted and lowered over time
to ensure continued reduction in emissions and achievement of the program’s
goal. How are emissions monitored? Every powerplant under the Program is
required to deploy a Continuous Emissions Monitoring (CEM) which continuously
measure the emissions of SO2, reporting emissions to the EPA. Under
cap-and-trade strategy, some of the major policy issues are what to regulate
and the scope (which GHGs and emissions sources to include and where in the
fossil fuel supply chain the point of regulation will occur), method of
allowance distribution (free distribution, auction or a synergy of both?), and
flexibility and cost controls (bankability, safety valve, offsets e.t.c.).

2.2.  Carbon Tax
By contrast, a carbon tax is a tax levied
on the carbon content of fuels.[7] “It is intended to make users of fossil fuels pay
for climate damage their fuel use imposes by releasing [GHGs, chiefly] carbon
dioxide into the atmosphere, and also to motivate switches to cleaner energy.”[8] Like the traditional command and control regime,
carbon tax tries to internalize the social cost of the utilization of dirty
fuels. Emissions of GHGs, specifically CO2 is proportionate to the carbon
content of the fossil fuel burned for the generation of energy, making the
implementation of a tax regime on the carbon content of the fossil fuel ease.[9] Due to this certainty, a carbon tax could be
implemented at the point of the entry of the dirty fuels into the market
(Upstream), passed along through the wholesale users (downstream) to the final
consumer of products in rates. An example of a successful carbon tax program is
that of Sweden. Sweden has used a carbon tax to reduce greenhouse gas emissions
since 1991. “The Swedish Ministry of Environment estimated that carbon tax has
cut emissions by an additional 20 percent (as opposed to solely relying on
regulations), enabling the country to achieve its 2012 target under the Kyoto
Protocol.”[10]
Why Carbon tax? It is direct and it can be
used to generate revenues for the government, which applies it for a more
economic purpose. “It could be revenue-neutral: all revenues could be rebated
directly to every citizen (tax-and-dividend) or could be used to reduce
existing taxes (tax-and-shift). Alternatively, revenues could be invested in
development and deployment of new clean-energy technologies (tax-and-invest)
and/or in energy efficiency programs (tax-and-caulk).”[11]
3.     Comparative
Analysis (Highlighting the Strengths and Weaknesses of Both Strategies
Cap-and-trade and carbon trade as discussed
are both market-based legal strategies used to address adverse impacts of
climate change. However, they will be compared and contrasted under the
following subheadings:
3.1.  Innovation-Both
cap-and-trade similarly encourage innovation in the way industries or large
entities generate/consume energy. To take advantage of the trading part of
cap-and-trade, a polluter would require to reduce emissions and either save or
trade allowances. In carbon tax, polluters are forced to look for alternatives
sources for their energy needs to avoid paying carbon taxes. Thereby driving
innovation or forcing the development and deployment of new technologies.
3.2.  Revenue Generation-Both
strategies are possible revenue generators. Cap-and-trade can also generate
revenue for government if the initial allowances are auctioned rather than
freely distributed. However, carbon tax is a certain way to generate revenues.
3.3.  Certainty/Uncertainty-Both
strategies share similarities and difference regarding certainty/uncertainty.
While cap-and-trade firmly conveys the amount of emissions to be allowed (the
‘cap’), carbon tax does not. Conversely, carbon tax guarantees the amount of
revenue to be received from the regulation, but cap-and-trade does not.

3.4.  Monitoring/Report
Requirements
-Both strategies require close monitoring, reporting and
verification of reports to be successful. Without the regulators close
monitoring of the program, issues of fraud and misrepresentations may defeat
the exercise.
3.5.  Independence/Dependence-One
of the not so popular characteristics of these two strategies are their
independence/dependence on the intervention of the regulators. For
cap-and-trade, as soon as the initial allocation of the allowances are made,
emission regulation becomes market controlled, thus requiring little or no
governmental intervention. However, for a carbon tax, the regulator will
continuously monitor the operation of the program to ensure that the tax has
not been a burden to businesses or become too little to matter, as such,
requiring adjustments.
3.6.  Economic Justice/Equity-Both
strategies raise the price of energy (both electricity and gas) bringing
additional adverse economic impact on low-income consumers. Nonetheless, these
impacts can be mitigated by utilizing the collected revenue (where allocation
was auction in cap-and-trade) in a way that ameliorates its impacts on
low-income households. Similarly, if not adequately implemented and regulated,
cap-and-trade may create emission hotspots, especially within the low-income
communities. Even if the reduction in GHGs are widespread, that of
co-pollutants remain a conundrum as they impact on local environment.
3.7.  Regulatory Framework-Both
strategies would require a legal framework and/or enabling legislation to be
implemented. It is thought that while cap-and-trade may require an entirely new
implementation framework, carbon tax may piggyback on existing tax frameworks.

3.8.    Flexibility-Cap-and-trade
is the most flexible of both. While polluter may choose to either reduce their
emissions by investing in better technologies, some may easily buy allowances
to continue usual operations. However, carbon tax offers no such flexibility.
Indeed, even if polluters desired to switch from fossil fuel EGU to cleaner
burning fuels, such as natural gas, such moves require major investments and a
major overhaul.
4.       Conclusion
In view of the above comparative analysis,
I am of the view that the cap-and-trade strategies offers much more than the
carbon tax does. For one, one of the strongest points in favour of carbon tax
is its revenue certainty, if cap-and-trade adopts the auction method for the
distribution of initial allowances, it would be carbon tax in addition to
trade. Finally, another cap on the feather of cap-and-trade is its tremendous
success in United States (the Program) and in the European Union.

[1] Perry E. Wallace, Climate Change, Corporate
Strategy, and Corporate Law Duties, American University Washington College of
Law Digital Commons @ American University Washington College of Law, 2009
[2] United States Department of State, Addressing
Climate Change: A Top U.S. Priority, http://www.state.gov/r/pa/pl/223165.htm
[3] Wikipedia,
https://en.wikipedia.org/wiki/Greenhouse_gas#Greenhouse_gases
[4] Eleanor Revelle, Cap-and-Trade Versus Carbon Tax:
Two Approaches to Curbing Greenhouse Gas Emissions, retrieved from:
http://lwv.org/content/cap-and-trade-versus-carbon-tax-two-approaches-curbing-greenhouse-gas-emissions
[5] Environmental Defence Fund, How Cap and
Trade Works
, Retrieved fromhttps://www.edf.org/climate/how-cap-and-trade-works (December
17, 2016).
[6] U.S. Environmental Protection Agency, Acid Rain
Program Basic Information. Available at:
http://www.epa.gov/airmarkets/progsregs/arp/basic.html
[8] Carbon Tax Centre, Pricing Carbon Efficiently and
Equitably,https://www.carbontax.org/whats-a-carbon-tax/ Retrieved
December 17 2016.
[9] Id.
[11] Eleanor Revelle, Cap-and-Trade Versus Carbon Tax:
Two Approaches to Curbing Greenhouse Gas Emissions, retrieved from:
http://lwv.org/content/cap-and-trade-versus-carbon-tax-two-approaches-curbing-greenhouse-gas-emissions

Magnus
Amudi
Corporate, Energy and Environmental Law
Practitioner

Ed’s Note – This article was first published
here.
Essentials Of A Contract Of Sale | Hightower Lawyers

Essentials Of A Contract Of Sale | Hightower Lawyers

A Contract of Sale is an
agreement for the exchange of goods, services, or property, between the seller
and the buyer, for a promised or paid value, usually money.


For there to be a valid
contract of sale, all these essential elements must be present. 
They include:


Two parties in the transaction (the buyer and Seller).

Goods, services or property, which must be the subject matter of the agreement.

There must be some price consideration.

The interest in the goods must be transferred to the buyer.

It may be an express or implied agreement.

There must be transfer of ownership.

A common type of
Contract of Sale is the Contract of Sale of land. For the purpose of this text,
we highlight the under-mentioned set of facts.

Executing a Contract of
Sale of land is the initial step in a conveyancing transaction. At this initial
stage, the purchaser acquires an equitable interest in the property at this
stage while a legal interest is acquired at the completion step.

Section 4, Statute of
Fraud, 1677 is the preliminary statute applicable to the Contract of Sale of
land in Nigeria, as well as the Law Reform Contract Act (No 64) of 1961(Lagos),
and Property and Conveyancing Laws of Western Nigeria.

Subject to the various
laws applicable to the Contract of Sale of land, the contract must be evidenced
in writing and signed by the respective persons privy to the transaction,
although no particular form is required.

 There are certain
essentials that must be included in the memorandum of a contract of sale. They
include:

1.    
The name of the parties.
2.    
The property.
3.    
The price.
4.    
The signature of the parties.
Before parties in this
contract can enforce it, the memorandum must exist although it need not exist
at the time the contract is being made.

The three types of
‘Contract for Sale’ are Oral, Open and Formal Contracts.

Oral Contract is
an agreement by word of mouth. This is prevalent under native law and custom.

Open Contract on
the other hand provides for the minimum requirements of the Statute of Fraud –
the Parties, Property and Signature.

Formal Contract is
one made subject to general conditions of sale, in-spite of the fact that they
only apply so far as they are not varied by or inconsistent with the special
conditions stipulated by conveyancing laws.

The capacity of parties in
a contract of sale is also important; it is the ability of the party to be in a
contract of sale of land. The inability of either of the parties renders the
contract void.

In conclusion, the
existence of these salient essentials guarantees
 that your interests
are well guarded when conducting a sale of land or real property.
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Hightower Lawyers
Ed’s Note – This article
was first published here.