ALWAYS WRITE YOUR CONTRACTS

ALWAYS WRITE YOUR CONTRACTS


A contract in legal parlance is an agreement between two or more parties creating obligations that are recognisable,enforceable, and binding on both parties at law.   Simply put, it is an agreement between two parties.
This agreement could be oral or written. For any contract to be valid, certain elements are essential. They are; offer, acceptance, and consideration exchanged for the good/service offered.   Thus, a contract is between an offeror (the party offering a good/ service) and an offeree (the party accepting the good/service).
In accepting the offer, the offeror and offeree usually have different conditions that are considered back and forth before a consensus is reached. These are usually the
terms of the contract.   Everyday, somehow, we all have business transactions which entail agreements of various types with various people at various places.  
In a fast paced cosmopolitan society like ours, we are faced with so many business opportunities, endorsement deals, sports agreements the list of offers are endless.   Unfortunately, Most people enter into these contractual relationships without putting pen to paper.
These agreements, mostly referred to as oral contracts,are the  most difficult to enforce because the terms therein are not clearly stated.   Where a contract is Oral, it is considered an open contract, in the sense that the terms and conditions can at best be implied.   However, due to the documentary nature of a written contract, it is easier to enforce the terms against any party in event of breach.
The courts when approached in such circumstances, usually would grant any of the following orders: specific performance of the contractual obligations, payment of liquidated and or penal Damages by the party in breach, or an order of rescission.   Hence, a written contract becomes an insurance and security to either party, because in the event of a breach, the other party can easily approach the court to ensure the terms of the contract are strictly adhered to.  
To enjoy this security,the following are advisable:  
1. Have your agreements written. No matter how short, and ensure both parties as signitaries to the document.
2. Clearly state the rights and obligations of both parties.  
3. State the Conditions for discharge of either or both parties to the contract.  
4. Clearly state the Consequence of breach of contractual terms  
5. Consult your lawyer.  
Always have something written down. Its the safest guaranty you have in that transaction.
By: Temitope Atiba Esq.
ASSAULT AND BATTERY: A MISDEMEANOR

ASSAULT AND BATTERY: A MISDEMEANOR

Battery is the intentional and direct application of force to another person. Assault on the other hand is causing a person reasonable apprehension of the infliction of force or immediate harm upon him. For instance, if Mr. A hits Mr. B with a stick, Mr. A has committed Battery but if Mr. A threatens to hit Mr. B with a stick and Mr. B believes that Mr. A will carry out his threat that will be an Assault.

Though assault and battery are used hand in hand, they are different torts, e.g. to throw water at a person is an assault but if any drops fall upon him it is battery; throwing a stone at someone is an assault, because the person expects the stone will cause him harm but when the stone touches the person, it becomes battery. It does not matter if any harm is done to the person per se.

For battery to exist, there must be a voluntary act by the person applying the force intended to bring about the contact. Therefore I do not commit battery against you if X seizes my hand and uses it like a club – here X alone is liable because I did not intend to hit you with my hand in the first place. It is immaterial if the person accused of battery did not intend to cause serious harm as there will be liability for the injury even though it was neither desired nor even foreseen. However, where there is consent, there is no battery.

Assault requires no contact because its essence is conduct which leads a person to expect the application of force. In majority of cases, an assault precedes a battery. Though, there can be battery without an assault, for instance when a person is hit from behind.

It should however be noted that under Nigerian law, assault and battery are treated as one and the same. Section 252 of the Criminal Code Act defines an assault as:

“ a person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent, if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault”.


It is also worthy to note that by virtue of Section 351 of the Criminal Code Act, any person who unlawfully assaults another is guilty of a misdemeanor, and is liable, if no greater punishment is provided, to imprisonment for one year.

ADR: ARBITRATION

ADR: ARBITRATION

Arbitration is a procedure for the settlement of disputes, under which the parties agree to be bound by the decision of an arbitrator whose decision is final and legally binding on both parties. Therefore, where two or more persons agree that a dispute or potential dispute between them shall be decided in a legally binding way by one or more impartial persons of their choice, in a judicial manner, the agreement is called an arbitration agreement.

Arbitration is a form of alternative dispute resolution, others are; negotiation, conciliation, mediation, mini-trial and med-arb. The law that regulates arbitration in Nigeria is the Arbitration and Conciliation Act. Arbitration may arise by virtue of an order of court, by statute or by agreement between the parties. Advantages of arbitration over litigation include;
• Parties select the venue
• Parties have privacy unlike in law courts
• Parties select the law they rather guides them
• It is flexible
• Saves cost
• Make decision making quicker unlike in courts
• The decision of the arbitrator is final
• It preserves the good relationship between parties

It must be noted however that arbitration does not affect criminal proceedings but usually commercial matters. The arbitration panel or arbitral tribunal may be composed of one or more arbitrators. The duty of the tribunal is to hear both parties and to make their decisions based on the interest of justice.

An award is a final determination of a particular issue of claim in the arbitration, i.e. the final decision of the arbitrator in the settlement of controversy which will be binding on both parties in the arbitral proceedings. However, the court may set aside an arbitral award if the party making the application furnishes proof that the award contains decisions on matters which are beyond the scope of the submission to arbitration. It may also be set aside if there is evidence of misconduct on the part of the tribunal.

It has become common practice in Nigeria to include arbitration clauses in commercial agreements as a dispute resolution technique because the courts are too slow and may take years in determining an issue, time which most business men do not have.

POWER OF ATTORNEY

POWER OF ATTORNEY

What is a Power of Attorney?

It is an instrument or document which authorizes a person to act for another person as his agent. The person who donates the power is called the “donor” (Principal) while the other person to whom it is donated is called the “donee” (Attorney). The main aim of a Power of Attorney is to satisfy third parties that the agent has the authority of the donor to deal on a subject matter.

Such acts may include representing one in court, receiving or suing for rates and rents or helping to transfer title in a property. A power of attorney does not in itself transfer ownership to the donee rather it is a vehicle by which ownership may be transferred to a 3rd party. For instance, if I donate to Mary a power of attorney to sell my house in New york,
I do not transfer the ownership of my property to Mary, but Mary on the other hand can transfer ownership of that property to anybody else.

The choice of a power of attorney may arise if the principal is unavailable, ill or whenever the expert skill of the donee is required. The power may be general or specific. It is general where the powers are broadly provided to cover issues pertaining to the subject matter, while it is specific, where the power is given in respect of a particular act.

A power of attorney to be valid must be; written, signed by the donor, sealed (when necessary) , witnessed and registered (also when necessary). A power of attorney may also be revoked at any time by the Donor except in particular circumstances, especially where it was given in consideration for an act.

A specimen for a power of attorney can be seen below:

POWER OF ATTORNEY
BY THIS POWER OF ATTORNEY made this 17th day of August, 2012, I Frank White Monday of Legal Naija appoint Mary Jane of Ikoyi to be my Attorney in my name and on my behalf to do the following;

1. To sell my house in New York.
2. To collect rents from my house in Ikoyi.
3. To represent me in any legal action that may arise as a result of the above
mentioned duties.

IN WITNESS of which the said Mr. Frank White Monday has in this instrument set my hand and seal the day and year written above.

SIGNED, SEALED AND DELIVERED _________________
by the above named Mr. Adedunmde Onibokun

In the presence of (Name, address and signature)

GARNISHEE PROCEEDINGS

GARNISHEE PROCEEDINGS

A garnishee proceeding is a judicial process whereby a judgment creditor who is armed with the judgment of a court may recover such debt owed by judgment debtor from a 3rd party who in turn has an obligation to the judgment debtor. For instance, if Mr. A gets a monetary judgment in court against Mr. B and Mr. B has refused to pay, Mr. A can ask the court to help collect Mr. B’s money from Mr. C who in turn owes Mr. B money. The 3rd person indebted to the judgment debtor is called the garnishee while the judgment creditor is also referred to as the garnishor.

The law governing garnishee proceedings can be found in Rules of Court, the Sheriff and Civil Process Act Cap 407, Laws of the Federation of Nigeria 2004 and case laws. Any debt owing to a judgment debtor from any other person within the jurisdiction of the court can be recovered by the judgment – creditor towards the satisfaction of his judgment by attachment of debts via a garnishee order.

However, not all debts are attachable; a debt can only be attachable if it is due or accruing to the judgment debtor and the test for determining this, is whether any sum certain is due and payable by the garnishee to the judgment debtor. In addition, the debt must be certain in amount and the judgment debtor must have an immediate legal right to it.

The amount at the judgment debtor’s credit in his savings/current bank account is property of the judgment debtor consisting of a debt, the bank being the person indebted; the amount could therefore be attached by garnishee proceedings. In other for a salary to be attachable it must be due and payable. Rent owed by a tenant can also be attached.

The process is instituted in court through an ex-parte motion by the judgment- creditor applying to the court for an order attaching the said sum, the order nisi is then served on the garnishee and the judgment debtor, if the garnishee fails to refute the claim that he has an obligation to the judgment – debtor, the court may then order that the order nisi be made absolute. It should be noted that disobedience of the order of the court as to the attachment of the debts may earn the judgment debtor imprisonment.

REFORMING THE NIGERIAN BAR by CHIDI ANSLM ODINKALU

The mechanisms for electing the leadership of the Nigerian Bar Association (NBA) are out-dated, scandal-prone and liable to whimsical capture. The question is not whether to change them but how quickly and how deeply. The answer to this is: not soon enough. The pay offs from such reform will be far reaching. They will transform the way we govern our Bar, give the Bar greater legitimacy in monitoring public affairs and ensure better revenues for the NBA. Above all they will herald a more transparent, professional, efficient and fully inclusive Bar.

No one knows how many lawyers there are in Nigeria. We don’t keep good records even of our lawyers. Such inexcusable omissions undermine the credibility of our Bar. There are well over 80,000 lawyers on the Roll of lawyers kept by the Supreme Court.
This is the list of all lawyers who have ever been admitted to practise in the country. A few thousands are surely dead. Many have also gone on to the Bench as Magistrates and judges. Obviously, neither the dead nor judges and magistrates should be voting in NBA’s elections. As presently organised, however, little stops votes being counted in their names.

The NBA elects its leadership by a system of delegates drawn from the 100 branches of the Bar. Each branch is entitled to 10 delegates each. If a branch has 100 members of more, it gets an additional delegate for every one hundred members. Also entitled to vote as delegates the elected officers of the NBA (13 of them), all living lawyers (excluding judges) who are members of the Body of Benchers, Senior Advocates of Nigeria (SANs) and all members of the expanded National Executive Committee (NEC) of the Association. In all, this electorate at its optimal is less than 2,000.

There is a painful history to this delegates system. 1991 was the last time the NBA tried to vote by universal suffrage in Port Harcourt. The military government of Ibrahim Babangida was then in power. There were allegations that it was interested in installing a Bar leadership of its liking. There were court orders, police interference and, in the ensuing confusion, the Port Harcourt conference ended in chaos. The NBA was to become largely leaderless until the end of military rule in 1998.

The inevitable diagnosis that followed concluded that the problem was that the Bar could not manage the numbers seeking to vote. Yet there were then fewer than 20,000 people on the Roll of lawyers in Nigeria. The idea of suffrage for delegates alone was intended to reduce the expenses and uncertainties involved with universal suffrage at the Bar.

That diagnosis, with the benefit of hindsight, was quite wrong. The problem was not the numbers but the fact that the governance of our Bar was too dependent on government and the elections into leadership at the Bar were too prone to manipulation. These two problems remain unaddressed.

The NBA’s bi-ennial election conference is a four-day jamboree. On the first day, delegates travel to and arrive at the venue in Abuja. On the second day, the delegates are accredited and addressed by the candidates in a “Manifesto” night. Voting takes place on day three, followed by counting and declaration of results. On the fourth day, most travelling delegates return home.

There is no excuse for this arrangement. For most lawyers in single or two-person practice, the delegates’ conference is a waste. The risks of road travel are also enormous. Most delegates travel long distances by mini-bus from their respective branches. Many of these buses are inadequately insured, if at all. Elections at the Bar are one car crash away from being hostage to avoidable tragedy. No amount of “God forbid” or “It is not your portion!” should be allowed to diminish the size of this risk.

There is no reason why the Bar should spend four days in organizing elections in which there are fewer than 2,000 voters. If it continues this way, the Bar loses any standing to criticize the Independent National Election Commission (INEC) for its well-advertised inefficiencies.

Returning credibility to our Bar requires that this situation be reformed urgently. To do so, the NBA must set a target for leadership selection based on universal suffrage by 2016. It could be sooner. Achieving this requires three easy steps.

First, we need fully transparent and reliable records of lawyers in Nigeria. This requires a capable electronic platform. If the NBA can spend ten-digit sums acquiring buildings, it surely can find sums in the low seven-digits to finance a capable electronic platform with adequate firewalls. Old membership records can be mirrored electronically in one year or less. Prospectively, membership and admission records for all lawyers can be electronically maintained and updated.

Second, membership management – including services, entitlements and voting – can be organised around a unique professional identity number (PIN) assigned to each lawyer on Roll. At the end of the deadline for payment of annual Practising Fees the first quarter of each year, the NBA should issue the list of all members who have paid the fees and who, thereby, will have the rights to membership services and voting.

Third, the idea of gathering all voters in one place is Mediaeval and must end. In the current security context that we have in Nigeria, it is plainly unsafe. Instead, voting processes at the Bar, including accreditation and balloting, can and should be de-centralised. Current ICT capabilities make this easily manageable.

The newly elected President of the NBA, Okey Wali, a Senior Advocate, can easily launch the Association onto a new pedestal by implementing these easily achievable reforms. To help get the message out, he can launch a Movement for Universal Bar Suffrage (MUBS) in 2012, creating the awareness across 100 branches of the NBA to make it possible to amend the constitution of the NBA in 2013 to eliminate the delegate’s conference. The larger goal in doing this will be to give us a Bar for the 21st Century.

From www.premiumtimesng.com

LAGOS STATE TRAFFIC LAW 2012

LAGOS STATE TRAFFIC LAW 2012

Governor Babatunde Raji Fashola SAN, Governor of Lagos State on 2nd August, 2012, signed into law the new Lagos State Road Traffic law, in view of the old maxim that says “ignorance of the law is no excuse”, it is wise for all Lagosians to know by heart the provisions of this radical law which would revolutionize traffic management in the state.

The Law operates alongside the already existing traditional road traffic rules and offences including driving without due care and attention. The Law empowers LASTMA to demand psychiatric evaluation of any person who drives against the normal flow of traffic or fails to comply with any provision of the law at the offender’s cost, if in the opinion of any LASTMA
officer, such is necessary for the purpose of determining the person’s ability to operate a motor vehicle. The law also gives the Lagos State Traffic Management Authority (LASTMA) the power to apply breath, blood and urine specimen testing on any driver to detect drunk-driving or driving under the influence of drugs.

LASTMA is also empowered by the new law to designate as bus lanes for priority service, a side of Ikotun-Ejigbo-Cele Expressway, Iyana-Ipaja-Agege, Pen Cinema, Ojodu -Berger; Iyana-Ipaja-Idimu-Iyana-Iba Roundabout, Iyana-Idimu-Ikotun, Berger-3rd Mainland-Tafawa Balewa Square, Iyana-Oworo-Anthony-Oshodi-Mile 2-Apapa, Sango-Iyana-Ipaja-Oshodi and Orile Iganmu-Mile 2- Okokomaiko roads, during peak hours of 6.00 a.m. to 10.00 a.m. and 4.00 p.m. to 9.00 p.m.

The Law also bars anybody from operating a motorcycle or tricycle without a Rider’s Card issued by MVAA, without wearing a standard protective crash helmet, carrying more than one passenger at a time, while a pregnant woman, a child below the age of 12 or an adult carrying heavy load on his head should not be carried as passenger at all. “Anybody caught in this act risks an imprisonment of three years or community service and forfeiture of the vehicle while the passenger will also be prosecuted except such a passenger is a child.

The law, specifically excludes anybody from riding motorcycle, driving tricycle or propelling a cart on Lagos – Ibadan Expressway, Apapa – Oshodi Expressway, Ikorodu Road, Agege Motor Road, Funsho Williams Avenue, Eko Bridge, 3rd Mainland Bridge, Carter Bridge, Lagos-Badagry Expressway, Victoria Island-Lekki-Epe Expressway and all bridges not earlier mentioned, however, where motorcycles are permitted, they can only operate between the hours of 6.00 a.m. and 8.00 p.m.

All motorcycles below 200cc engine capacity shall not be used or operated on bridges or carriage roads with two or more lanes in the opposite directions while mail distribution or other courier service motorcycles exempted from route restriction by the Ministry of Transport can only operate if they have 200cc or above engine capacity, carry prescribed number plates and identification, fitted with proper mail cabin and do not carry passengers.

The penalties for neglect of traffic signs, traffic light and traffic directions or driving against on-coming traffic, include forfeiture and imprisonment for one year for first offender and three years and forfeiture for subsequent cases if found guilty. The list of offences include, driving on BRT lane, parking within 15 metres of a road intersection, using sirens and other noisy devices in a vehicle, driver or conductor on duty failing to wear the prescribe uniform or identification tag, driving or being driven on unauthorized routes and herding or allowing cattle, sheep, goats or other animals on the road, smoking and eating while driving.

Driving an unregistered, unlicensed vehicle or vehicle without valid identification mark attracts a penalty of N20, 000 for first offender and N30.000 or three years imprisonment or both for subsequent offences and conditions for use of trailers where the law now bars trailers from entering or travelling within the Lagos Metropolis between 6.00 a.m. and 9.00 p.m. although fuel tankers and long vehicles for carrying passengers are exempted. Any trailer contravening the law will be impounded and N50.000 fine imposed or imprisonment for six month for the driver.

According to the law, it is henceforth an offence to sell alcoholic drinks, herbal or pharmaceutical drugs within 100 metres of a bus stop, terminus or motor park; hawk, vend or offer for sale any item of goods or services or beg or solicit for alms or engage in cleaning windscreens or any part of a vehicle on the highway or bridge. Other offences include displaying of wares on walkways, dropping or picking of passengers on fast lanes or undesignated bus-stop by commercial vehicles.

Provisions of the new law will apply to public officers or other persons in the service of the State ,the purpose of proceedings for an offence in connection with any official vehicle, any person other than the driver, the person nominated by the Department in whose service the vehicle is used, shall be deemed to be the person actually responsible unless it is otherwise proved to the satisfaction of the court.

Also, the law bars all traffic officers from demanding, willfully condoning, conniving, abetting or receiving gratification in cash or kind from any person to circumvent the provisions of the law while contravention by any officer will attract summary dismissal and prosecution under the ACL Law. Vehicle inspection Officer are also empowered under the law to inspect, control, regulate and enforce road worthiness standards, pre-registration inspection, emergency services, issuance of Road Worthiness Certificates, testing for license or riders’ card etc.

@adedunmade