Human Rights and Nigeria's Economic Recession

The reversed order in the economic space of Nigeria conforms to the Orwellian 1984 tale. Having successfully formed an extant part of history and being willed into existence from Lord Lugard’s colonial laboratory of artificial insemination by colonial friends, Nigeria has had to deal with grave issues that surround her, deciding he who pursues and he who runs. Some have proved insurmountable, while others have been buried as soon as their heads rose. The economy of Nigeria is one of such grave issues, having evolved through the phase of agriculture as the economic mainstay up until the oil wealth.

A brief sweep into history contains details of Nigeria’s economic slip into recession. As indicated in the 2016 second quarter report of the National Bureau of Statistics, Nigeria’s Gross Domestic Product (GDP) contracted by 2.06 per cent. The report includes that decline has caused the Naira to go weaker while lower oil prices dragged the oil sector down. The report also showed that agriculture had picked, showing the government’s determination to shift the nation’s revenue source away from crude oil to agriculture.

 

Human Rights over the years has evolved with our economic systems ranking from the development model after the Second World War, focused on growth and development at the macro-economic level. Today we observe a broadening of the term development to include a distinct micro-level perspective which also takes into account individual well-being. This individual component is closely linked to the recognition of the instrumental role of individual participation and choice for development and underlines that particular attention that has to be paid to disadvantaged and most-marginalized groups. Furthermore, the emergence of ‘good governance’ in the late 1980s reflects a growing awareness that development in economic terms cannot be detached from capacity building and institutional considerations in the political field.

 

These changing perceptions eventually paved the way for increased attention to the relationship between economic development and democratic governance as well as for an enhanced role for human rights as a means and objective of development.

With regard to the inclusion of human rights in development two approaches can be noted. From a more traditional perspective, development and human rights are in principle still viewed as two distinct concepts and fields of activity. Within such an approach, human rights projects and programmes are simply ‘added’ to the traditional activities of development co-operation, which itself is understood as aiming primarily at economic (and social) development.

The Nigerian Economy Before Now

When the civilian administration of President Olusegun Obasanjo came into power in 1999, the exchange rate was NGN 85 to USD 1. In the following years, the naira so depreciated that USD 1 could buy NGN 114.50 in the official markets and NGN 138 in the parallel market. The 2002 budget however proposed a whopping 38% cut in capital expenditures from the 2001 level. If added to huge allocations of NGN 49.6 billion to the presidency, and NGN 10 billion to the National Identity Card Project, all of which are and still are unproductive sectors, the question remains “How much real investment does Nigeria have? What is our real income? And how much do we have for the future?”

 

The instance of allocating NGN 31.4 billion instead of NGN 20.5 billion for defence in the 2001 budget where less than 50% of funds were disbursed occurred again in 2000. It happened in 2001 and in 2001 because the National Assembly and government remained uninformed to the liquidity crisis. While striving to build a strong economy, the government therefore paid no attention to the prevailing exchange rate regulations.

 

The greatest betrayal Nigerians ever witnessed in her economic scene is the proposed 2002 budget where allocations were made to the agricultural sector. Though the Nigerian agricultural sector was in shambles and needed a revamp, it still contributed the lion’s share to employment and the GDP AT 33%. Since one of the principal and cardinal objectives of the 2002 budget is the alleviation of poverty, one would have expected the allocation to agriculture to reflect this intention. Instead, we find the allocation to agriculture to be a paltry 3.8 billion, about one-third of what was allocated to the white elephant- the National Identity Card Project.

As human right advocates, there lay no problem in choosing sides as pertain the welfarist-monetarist divides. It is simply a matter of equity that should people have jobs, inflation can be contained.

The Nigerian Economy as at 2016

Nigeria slipped into recession with the latest growing figures showing that the economy contracted 2.06% between April and June, 2016. We have thus seen consecutive quarters of declining growth, a practical definition of recession. The oil industry with crude oil sales account for 70% of government income was also hit by weaker global prices, (Nigerian Bureau of Statistics- NBS) making the price of oil fall from about $112 a barrel in 2014 to below $50 at the moment. Outside the oil industry, the figures showed that the fall in the Nigerian currency, the naira, has hurt the economy. It was allowed to float freely in June to help kick-start the economy. The government admitted that there had been strong growth in other sectors by finding positive news in the figures based on the growth in the agricultural and solid minerals sectors, areas where the federal government had placed priority

Nigeria slipped into recession because:

• Nigeria runs an oil-dependent economy. Experts and analysts have blamed successive governments for operating mono-product economy, based on oil which is vulnerable to economic challenges.
• Nigeria lacks sustainable developmental strategies. Nigeria is not only an oil-producing nation but a rental economy. As such, collecting rents from multinationals that produce the country’s natural resources cannot be used as bias for development.
• there is a mismanagement of Nigeria’s petroleum revenues. The little made off oil is practically misused and managed to the detriment of the nation
• the government engages in excessive borrowing
• there are high interest rates and Inflation.
  

          
HUMAN RIGHTS AND DEVELOPMENT

The Inter-American Democratic Charter, adopted by the General Assembly of the Organisation of American States in 2001, defines democracy in Article 3 as: 

 

the access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organisations, and the separation of powers and independence of the branches of government.

When the relationship between human rights and development was established in the 1970s, the link between the two concepts was often connected with debates about democracy and the discontinuation of assistance to a country whose government grossly violated human rights and the punitive aspect of the linkage appeared to prevail in public opinion. Most donors have had experiences with the withdrawal of aid, often a much debated and not necessarily effective measure; and active promotion of human rights through, for example, assistance to the judiciary or human rights institutions, can be interpreted as interference in internal affairs.

 

In the course of the 1980s, the relationship between human rights and development co-operation began to take on a different form. The use of development co-operation to promote human rights through, e.g., additional support to democratizing governments, support to human rights NGOs or decentralized co-operation, received increasing attention. Gradually, human rights became part of the dialogue between donors and recipients. One of the first instruments formally establishing the linkage and confirming the emerging human rights policy was the Lomé III Convention between the EC and its partner states in Africa, the Caribbean and the Pacific (signed in 1984). Human rights were mentioned in the Preamble of the Convention and further elaborated upon in the joint declarations attached to it. The dramatic changes in Central and Eastern Europe in 1989 influenced governments’ views on the relationship between human rights and sustainable development, generating an approach where the individual was placed at the Centre, becoming the main protagonist and beneficiary of development. The conviction emerged that, in the long term, respect for human rights, the rule of law, political pluralism and effective, accountable political institutions form the basis of all development and equitable distribution.
 
The right to development is another principle deeply rooted in the Charter of the United Nations, the Universal Declaration on Human Rights and the International Human Rights Covenants. Development and human rights are intricately linked. As such, numerous documents have explicitly acknowledged their indivisibility, including the Declaration on the Right to Development (1986), the African Charter on Human and Peoples’ Rights, the Declaration on the Rights of Indigenous Peoples (2007), the Vienna Declaration and Programme of Action (1993) and the Rio Declaration on Environment and Development (1992)
 
Hand in hand, both development and human rights movements share the same enthusiasm and motivation to promote the freedom, well-being and dignity of individuals. On the one hand human development improves the capabilities and freedoms of individuals while on the other hand human rights provide the framework for a social arrangement that facilitates and secures capabilities and freedoms expressed by human development. Article 1 of the Declaration on the Right to Development states that:
 

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

The preamble of the Declaration also states that:
 

Development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from.

Article 1 identifies the human person as the beneficiary of the right to development. It imposes obligations on individual states to ensure equal and adequate access to essential resources and on the international community to promote fair development policies and effective international co-operation.

An important achievement in establishing the relationship between human rights and development were the so-called ‘Sustainable Development Goals’ (SDGs). At the UN Millennium Summit in 2000, world leaders agreed upon a set of time-bound and measurable goals and targets for combating poverty, hunger, disease, illiteracy, environmental degradation and discrimination against women. These goals aim at achieving measurable progress in a number of specific fields which are considered essential for human development and several lead to increased enjoyment of human rights, such as primary education. The goals provide a framework for development co-operation institutions to work coherently together towards a common end. Close co-operation is imperative as a large majority of nations can only reach the MDGs with substantial support from outside. Progress toward the SDGs is being measured on a regular basis.

The SDGs have led to increased emphasis on human rights-based approaches to development and poverty reduction. A human rights-based approach deals with the substance of the development support initiatives, but focuses on the way in which development is being approached. The human rights-based approach, in essence, requires that policies and institutions working on development and reduction of poverty base themselves on the obligations that emanate from the international human rights conventions (International Covenant on Civil and Political Rights, International Covenant on Economic Social and Cultural Rights, CERD, CEDAW, CAT, CRC and CRPD). 

Human rights are inherent to the person and belong equally to all human beings and their realization has to be carried out as a participatory, egalitarian and transparent process. Human rights instruments, such as the Universal Declaration of Human Rights, provide a coherent framework for practical action at the international and domestic levels to reduce poverty. The human rights-based approach to poverty reduction upholds the principles of universality and indivisibility, empowerment and transparency, accountability and participation.         

The United Nations Development Programme (UNDP) plays a central role within the UN in realizing the human rights-based approach to development by focusing its policy, programming and capacity development support to this approach. In particular, it encourages all actors to adopt a human rights-based approach in tailoring and customizing the Sustainable Development Goals targets to the local context.Focuses on the capacities of duty-holders to meet their obligations to respect, protect and fulfill rights; as well as the capacities of rights-bearers to claim their rights.Enhances the synergy between poverty reduction and democratic governance.Programmes for local governance, access to justice, capacity of human rights institutions, grassroots initiatives for community development, and human rights education will be included among pro-poor poverty programming.Engages in the work of UN Treaty Bodies; particularly strives to incorporate selected and relevant recommendations that result from periodic reviews into its programme development.Promotes and supports participatory assessment methodologies that link rights, obstacles and strengths around which poor people can secure their livelihood.Build in-house capacity to undertake multi-disciplinary review and analysis that maximize meaningful participation of the poor. The human rights-based approach is a perspective and process that can lead more directly to increased enjoyment of human rights. Development processes – traditionally technical and economically orientated - are becoming increasingly focused on enjoyment of rights and promotion of values. One of the most important aspects of this approach is the increased recognition of poverty as one of the greatest barriers to the universal enjoyment of human rights. In short, HRBA aims for sustainable outcomes by analyzing and addressing the inequalities, discriminatory practices and unjust power relations which are often at the heart of development problems.

    SUSTAINABLE DEVELOPMENT GOALS
    1.      Solve extreme poverty and hunger.
    2.      Achieve universal primary education.
    3.      Empower women and promote equality between women and men.
    4.      Reduce under-five mortality by two-thirds.
    5.      Reduce maternal mortality by three-quarters.
    6.      Reverse the spread of killer diseases, especially HIV/AIDS and malaria.
    7.      Ensure environmental sustainability.
    8.      Create a global partnership for development, with targets for aid, trade and debt relief.

The public policy responses to economic recession from the angle of The Human Right analyst has its background in the United Nations International Covenant on economic, Social and Cultural Rights and the Universal Declaration of Human Rights (1948). With the conglomeration of the financial, fuel and food crises, the global economic crisis is devastating lives and livelihoods across the world and it is rapidly turning into a human rights crisis. One year on from the near-collapse of the international financial system, this briefing explores the human rights dimensions of the crisis, its causes and consequences, and worldwide responses.From an economic perspective, the harmful impacts of the crisis on human lives and dignity tend to be seen as tragic but inevitable consequences of unpredictable and uncontrollable market forces. A human rights perspective challenges this complacency; these devastating consequences are not inevitable, nor should they be acceptable. The causes of the crisis can be clearly located in human decisions and concrete actions (or inactions) of governments and powerful economic actors, and shouldnot be seen as the result of forces outside of human control. A human rights approach demandsaccountability for these human decisions. It requires that negative effects be avoided or mitigated and itempowers people affected to demand respect for their human rights.

The following are portions of these international documents and authorities that define positive response from the economic and human right view respectively:

• The Human Right to economic, political, social and cultural development which is sustainable, resulting in fair distribution of benefits to individuals and people in a society, and which allows for the realization of all other human rights.
• The Human Right to an International environment where human right to development and all other human rights can be fully realized.
• The human right to full and equal participation in developmental and environmental planning and decision-making, and in shaping all policies affecting one’s community and living conditions at the local, national and international levels.
• The right to an adequate standard of living, including access to safe food, water and housing.
• The human right to work and to receive wages that contribute to an adequate standard of living.
• The human right to safe working conditions
• The human right to equal access for all persons to productive resources
  

As inferred from the provisions of the International Covenant on Economic, Social and Cultural Rights, the question remains: “What do we make of an economy if not the standard of living, the collective focus of money and the management of money, the means of subsistence”

“Economy is an area of the production, distribution, or trade, and consumption of goods and services by different agents in a given geographical location[10]”

The government’s development initiatives have not managed to reduce poverty in the country and have also failed to diversify a petroleum-based economy, with a non-sustainable extraction led-growth model still being applied. This has led to severe environmental degradation, with alarming desertification and erosion trends. The Nigerian government has to rethink its strategies and adopt environmentally friendly long-term planning policies based on renewable energy sources and adequately environmental management. The poor should be empowered and given stake in managing the environment and natural resources.

Birthed in 1954 and signed on the 16th December, 1966, the International Covenant on economic, Social and Cultural Rights became effective on 3rd January, 1976 as a document of the United Nations Trusteeship Agreements listed by the General Assembly as Non-self governing. It is a declaration of the essentials of a man’s life. Part 1, Article1 of this document recognizes the right of “all people” to freely pursue their economic, social and cultural goals. It also contains a clause that enables the management and disposal of resources by individuals. It covers the negative right that a people should not be deprived of their necessary means of subsistence and that the persons in authority should respect the individual’s economic decisions.

As relates Nigeria’s economy development and human right, Clauses of concern include an individual’s right to

• Work under “just and favourable conditions”,with the right to form and join trade unions
• An adequate standard of living, including adequate food, clothing and housing and the continuous improvement of living conditions.
• Health, specifically the highest attainable standard of physical and mental health.
• Education, including free universal primary education, generally available secondary education, and equally accessible higher education. This should be directed to the full development of the human personality and the sense of its dignity and enable all persons to participate effectively in society
  

The Committee on Economic, Social and Cultural Rights makes general recommendations to the General Assembly of the United Nations Organisation on appropriate measures to realize these rights. However, certain factors have frustrated these recommendations and the realization of these rights subsequently. A good example of this is the clause that covers education:

    “Education, including free universal primary education, generally available secondary education, and equally accessible higher education. This should be directed to the full development of the human personality and the sense of its dignity and enable all persons to participate effectively in society”

The above clause and others, backed with the principle of progressive realization in the ICESCR, which states that:
 

all parties shall take steps…to the maximum of its available resources, with a view to achieving progressively, the full realisation of the rights recognized in the present covenant by all appropriate means, including particularly, the adoption of legislative measures

have been unfollowed by the principles in Nigeria’s legislation. Or what do we say of a constitution which upon following the Education clause in the ICESCR includes more of a condition stating:
 

“Government shall strive to eradicate illiteracy; and to this end, Government shall as and when practicable, provide-
    (a)   Free, compulsory and universal primary education;
    (b)   Free university education; and
    (c)    Free adult literacy programme”

This is more of a deliberately regressive measure which impede the goal of the ICESCR despite the minimum core obligations to provide at the least, minimum essential levels of each of the rights. The Nigerian budgets too have been easier said than done as in the last ten years, they have retained certain common goals and policies namely:

• Alleviate poverty by fostering opportunities for job creation
• Achieve high economic growth through better mobilization and prudent use of economic resources.
• Build a strong economy by encouraging private sector participation (privatisation)
• Ensure good governance by transforming development administration into a service and result-oriented system.
  

The fact remains still, that while the goals cannot be faulted, the means for their achievement, that is, the budgetary allocations paint quite a different picture.


CONSEQUENCES OF ECONOMIC RECESSION ON HUMAN RIGHTS

• World hunger will reach an historic high in 2009 with more than one billion people going hungry every day (FAO, 2009). This means that one in six people will be too poor to eat adequately. The food crisis that occurred as a result of the rapid rise in food prices in 2008 is far from over, as food prices remain high in 40 developing countries and the loss of jobs and remittances produce further food insecurity (N Special Rapporteur on the Right to Food, 2009). Chronic malnutrition will affect children’s physical and intellectual development for the rest of their lives.
• The sub-prime mortgage housing crisis has left many people without homes or shelters, making many people face foreclosure, some of them victims of fraud and abusive practices by mortgage brokers[20]. In developing countries, the number of people living in slums will rise, and millions more slum dwellers will face lack of access to clean water and sanitation, and increased insecurity of tenure.
• The World Bank estimates that up to 90 million more men, women and children may be pushed into poverty, in addition to the estimated 160 to 200 million people who fell into poverty as a result of the food crisis between 2005 and 2008. Greater poverty, and the hunger that it brings, will threaten the right to life and health of many of these people, especially children.
• The rights of women are also particularly at risk, as unemployment and social unrest can translate into greater violence against women. Female workers, who tend to be concentrated in the informal economy with lower wages and less employment protection, are losing their jobs and incomes
• Human trafficking is expected to escalate as the economic crisis fuels poverty and unemployment.
• Every year during this crisis, about 400,000 more children will die before they reach their fifth birthday simply because their families cannot afford food or basic medical care for preventable diseases, according to estimates[23]. And the impact will be hardest in the poorest countries: “While people in developed countries are feeling the impacts on their standards of living, their jobs and their homes, people in developing countries are bearing the brunt of the crisis, with few safety-nets to protect them from severe poverty and deprivation, and without the fiscal capacity and space to soften the blow” (ESCR-Net, 2009).
  

Way Out: Practical Solutions

• Acknowledge Human Rights: The believe in the existence of a thing forms a doctrine, a principle and thereafter, a way of life. The principles of Human Rights should be accepted as “existing” and regarded as such.
  

• Respect for Human Rights: This does not only cover in the case of violation, but extends to the point where an individual chooses not to go against the equal human rights of the other as they have same. Let human rights be respected and upheld in society.
  

• Protect Human Rights: In the case that the human rights of an individual has been tampered with, proper shield should be made in reserves for the abused party. It forms a wall of security as to subsequent actions that could follow the abuse of human rights as it is a case that could be judged locally (within Nigeria) or at the ICC- International Criminal Court.
  

• Imbue it in Economic and Fiscal Policies of State: The economic and fiscal policies of the state should be intellectually arranged with the principles of human rights fully imbued therein. A policy that would build up economic strength, provide landmark and satisfying living conditions would be loved by Nigerians.
  

Conclusion
As the financial crisis has spilled over into the real economy, it has had, as we have seen, devastating effects on lives and livelihoods across the world, especially on the poorest people in the poorest countries; Practical , with women and children, migrants and minorities bearing the brunt. The economic crisis threatens the full range of human rights. It threatens not only economic, social and cultural rights, including the right to an adequate standard of living and the rights to health, housing, food and education, but also civil and political rights. It is still too early to tell the full extent of the damage caused by the crisis, but poor and low-income families across the world are being badly hit. It is therefore in the light of these aforementioned and measures informed in this piece that the future of any economy can be rebuilt on the wings of human rights.



References 

• The Spotlight on Sustainable Development 2016.
• UNDP, Human Development Report 2010: The Real Wealth of Nation, (New York; 2010).

 

 

This Article was adapted and updated from the original essay titled Human Rights as a Tool of National Development; A way out of Recession by Nelson Vincent Ayomitunde (2016)

Gambling Laws in Nigeria

Gambling in Nigeria is regulated by the National Lottery Regulatory Commission. The lottery was legalized with the National Lottery Act, 2005 and gambling is defined by Chapter 22 of the Criminal Code Act enacted in 1990. The law splits the games into two categories: The legal and illegal games. The legal games are lottery, land-based casino, and sports betting. Roulette, dice games, and non-skilled card games are illegal. The law regulates slot machine activity and only licensed operators can provide slot machine gambling. Money laundering activity is covered by the Money Laundering (Prohibition) Act, 2011.

Although these laws are in place, gambling in Nigeria is not well regulated and as a result, there are many illegal casinos which operate in the country. The legal land-based casinos are located in the two largest cities with the current biggest casino being The Federal Palace Hotel, Lagos. Nigerian law focuses on activities to reduce money laundering and illegal gambling.

Online gambling

Online gambling in Nigeria is regulated by the Nigerian Lottery Commission. All bookmakers are required to obtain a license from the gaming commission before operating in Nigeria. Nigerian law does not mention online space and there is no restriction for the people to reach local or foreign gambling sites. Although Internet space is not mentioned exactly in the law, the companies are obliged to follow the regulations and laws as it is for the land-based casinos. All types of online games are available except those that are illegal.

Online Gambling Companies
Nigeria is one of the most competitive markets in gambling in Africa. The size of the population and internet exposure of the residents creates the right conditions for online gambling companies to operate in.

Gambling age
The gambling age is defined by the law. People below the age of 18 cannot legally gamble.

Payment gateways
There is no obstacle when depositing money to foreign or local bookies, although betting limits exist as defined by respective individual bookmakers. Users deposit money using bank cards, e-wallets such as Skrill or Neteller, and USSD services. There is no legal restriction or service blocking.
http://www.nigeria-law.org/Criminal%20Code%20Act-PartIII-IV.htm#Chapter 22
LawNigeria. "Laws of the Federation of Nigeria - GAMING MACHINES(PROHIBITION) ACT". www.lawnigeria.com.
http://www.icnl.org/research/library/files/Nigeria/5_NigeriaMLPA2011.pdf

Gambling Commission

NIGERIAN GAMBLING LAWS

Nigerian Gambling Regulation and Legislation
The laws and regulations governing gambling in Nigeria can be a little confusing because there is no cut and dried law or legislation that solely addresses gambling in the West African Nation. Instead, there are two federal Acts that make reference to gambling in terms of what is illegal or not allowed, and what is legal and allowed. Here is a brief explanation of each:

The Gaming Machines (Prohibition) Act of 1977
The first is The Gaming Machines (Prohibition) Act of 1977, which specifies that the ownership and use of gaming machines in Nigeria is illegal, and that the penalty if caught and convicted of owning and using gaming machines, is a year in prison without the option of a fine.

In addition, all proceeds derived from said machines as well as the machines themselves are liable to be confiscated by the Nigerian Government. According to the Act, a gaming machine is considered to be any mechanical coin or token operated gambling or gaming device that is used for the sole purpose of enticing people to gamble in the hope they win monetary rewards.

The Nigerian Criminal Code Act
The second Act in Nigeria that pertains to what constitutes legal and illegal gambling practices is the Nigerian Criminal Code, specifically Subsection 1 of Section 236 in Chapter 22. In this Act, an illegal gaming house is defined as any property or venue where unlawful gaming is offering or undertaken.

If caught, the owner, operator, manager or occupier of an illegal gaming house can face a fine of 1000 Naira and/or two years in prison. The Act goes on to specify which types of gambling are permitted and which are not. In other words, which games are unlawful (see the list below). This, of course, begs the question of what constitutes legal or lawful gambling in Nigeria.

What is Lawful Gaming in Nigeria?
There are really only three lawful types of gambling in Nigeria – betting / pools, lotteries and a handful of land casinos. Here is a brief description and explanation of each:

Betting and Pools
According to Subsection 3 of Section 239 in Chapter 22 of the Nigerian Criminal Code Act, “any house, room or place which is used for the purposes of a licensed pool betting business shall not be deemed to be a common betting house by reason only that it is so used.”

This clause allows the operation and use of betting and pool houses in Nigeria provided they are the only types of gambling on offer. Further, under the laws of Nigeria, betting and pool operators must use a totalisator (a.k.a. a pari-mutuel machine) to register bets and equally divide the total amount bet amongst the winners.

In addition, operators are required to register their pools and/or betting houses with the government in order to gain a legal status. Failing to do so would mean that they are operated illegally and open them up to prosecution, fines and/or time in prison.

Lotteries
According to Section 240 in Chapter 22 of the Nigerian Criminal Code Act, “lottery” includes any game, method or device whereby money or money's worth is distributed or allotted in any manner based on or to be determined by chance or lot.

A lottery ticket includes any ticket, paper or other printed article that entitles the holder who has the winning numbers to collect its corresponding cash prize or equivalent.

A "public lottery" means a lottery to which the public or any class of the public has, or may have, access, and every lottery shall, until the contrary is proved, be deemed to be a public lottery.

According to Section 240, anyone caught acting like a ‘middle-man’ between a public lottery and buyers of lottery tickets players is liable for a 100 Naira fine or six months in prison.

Land Casinos
Despite the vastness of Nigeria, to date the country has only three licensed land casinos – two in Lagos and one in the nation’s capital, Abuja.

They are Le Meridien Eko Hotel & Casino and the Federal Palace Hotel and Casino in Lagos, and the Transcorp Hilton in Abuja.

Although equipped with a smaller selection of games than you’d find in most western land casinos, each has enough to keep local and visiting gambling fans entertained.

Most have a small selection of table games (such as Blackjack, Casino Hold’em and American Roulette) accompanied by a bank of slot machines, which can be coinless.

Even though Nigeria’s various Acts expressly prohibit the import and use of certain casino games – such as slot machines, for instance – the nation’s three licensed land casinos seem to be permitted to offer them.

It’s unknown why licenses have only been granted to just three casinos to date, but it may have something to do with the fact that pools / betting and lotteries are the preferred forms of gaming in most parts of this large African nation.

Is Online Gambling Legal in Nigeria?
No, online gambling is not legal in Nigeria, and anyone or organisation caught hosting and/or operating an internet-based gambling site within Nigerian borders may be liable for prosecution and thus fines and/or a prison sentence.

That said, it’s extremely hard if not impossible for the Nigerian government to prevent its citizens from accessing and signing up with Nigerian-friendly online casinos and any other off-shore owned and run internet gaming sites that welcome players from Nigeria.

While it’s true that relatively few online casinos allow players from Nigeria to sign up, deposit and play, there are a few that do, the best of which you’ll find reviewed and featured here on this site. Some casinos even allow players from Nigeria to deposit, play and cash-out in Naira.

To play online, all you need is a fast and secure internet connection, a late model computer or smart mobile phone or device, the means to fund your rea money online casino account, and a trustworthy, safe and reputable online casino to sign up with.

 

GAMBLINGAFRICA.COM

The Concept of Judges Rule in Nigeria

In the early 19th Century, there were cases where the police “obtained” statements from suspects by force while the judicial authority was strong for admitting an accused’s statements in evidence even though they were obtained by constables, who had him in custody, by means of considerable insistence and even force during interrogation. With this, judges of the Kings Bench Division (UK) at the request of the Home Secretary formulated the “Judge Rules” in 1912, to guide the police and other officials involved in investigating crimes. The rules became effective in 1914 in Nigeria. In 1964, England revised the rules which now differ significantly from the 1912 rules that still operate in Nigeria.

The rules are merely administrative and do not have the force of law, but the courts acts on them. In Evbuowman v Police (1961), the court quashed conviction on the ground that the police officer acted contrary to the judges’ rules. It is permissible for a police officer to question a person in custody with regard to the offence or offences for which he or she is held. But it is important that the judge rules are followed. In this context “custody” means: “in custody of the police”, R v Buchan (1964), R v Strappen (1952).

In Nigeria there are nine main rules.

Rule 1: What Questions may be asked  

“When a Police Officer seeks to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not  from whom he thinks useful information can be obtained”.
The suspect’s answers to any questions put and any statement that he may volunteer should be in writing. This should be so that:

• The suspect may be able to clear himself of suspicion. 
• If it is later decided to charge him, his statement will be available to check this story in the witness box. 
• It may disclose matters, which open new causes of investigation.   
  

Rule 2: When to caution

“Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any question or any further questions, as the case may be.” 

Rule 3: Persons in Custody

“Persons in custody should not be questioned without the usual caution being first administered.”  

Rule 4: Voluntary Statement  
“If the prisoner wishes to volunteer any statement, the usual caution should be administered.”  

Rule 5

• Formal Caution: ‘The caution to be administered to a prisoner, when he is formally charged, should be in the following words: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence”.
  

Care should be taken to avoid any suggestion that his answers can only be used in evidence against him, as this may prevent an innocent person from making a statement, which might assist to clear him of the charge.

• Short Caution: The words in Rule 5 are only applicable when the formal charge is made and can have no application when a violent or resisting prisoner is being taken to a police station. In that case before the formal charge is made, the short caution should apply, that is to say:
  

“You are not obliged to say anything, but anything you say may be given in evidence.” In both instances, every suggestion that the statement is to be given in evidence against its maker must be avoided.       

Rule 6: Statements Prior to Caution  
“A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but in such a case he should be cautioned as soon as possible.”

Rule 7: Questions which may be asked of a prisoner  

A prisoner or a suspect making a voluntary statement must not be cross-examined. No questions should be put to him about it except to remove ambiguity in what he has actually said. If, however he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week which do not agree, or has not made it clear to what he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.”

Rule 8: Persons Jointly Charged  

“When two or more person are charged with the same offence and statements are taken separately from them, the police should not read the statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered.”

The West African Court of Appeal in R v. Ajose and others (2 W.A.C.A. 118) added the following provision to Rule 8:

“Provided that when the person charged (other than the person who made the statement) is an illiterate, the statement may be read over and interpreted to him apart by some person other than a policeman. Anything said to such reader by the person charged when the statement is read shall not be admissible in evidence against him, but if, after the statement has been so read he shall be desirous of making a statement to the Police in reply, such statement shall be taken only after the usual caution has been administered. 

Rule 9: Statements  

“Any statement made in accordance with these rules should whenever possible be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.”

The judges rules do not apply to interrogation of members of the Armed and the Police Forces by their superior. In R. v Bass (1955), a Criminal Court of Appeal expressed the opinion that if at the time the police questioned the accused, he was in custody and no caution had been administered to him, the jury should have been directed to consider whether, despite a breach of the judge’s rules, the accused had made his statements voluntarily. The conviction was quashed because the jury had not been so directed. Where there is no jury as in the case of Nigeria, the judge must caution himself as to whether, despite the non-observance of the judges rules, the statement can be said to be voluntary. It should be on record that he has so cautioned himself. 

Application of the Judges Rule 

In R v Payne (1963), following a car crash, P. was taken to the police station. He was asked and he agreed to be medically examined by the police doctor. Police informed P that it would be no part of the doctor’s duty to examine him in order to give an opinion as to his unfitness to drive. Quashing his conviction for drunken driving, the appellate court held that if P had realised that the doctor would give evidence on that matter, P might have refused to be medically examined, and that the judge had exercised his discretion wrongly. The mere fact that a confession is made in answer to a question put by a police officer is not sufficient to render the confession inadmissible. However, where the accused refused to answer a question on the ground that his or her answer tend to incriminate him or her and he or she is improperly compelled to answer it, such a confession would not be voluntary. The judge’s rules do not necessarily render a voluntary confession involuntary because it was obtained in violation of the judge’s Rules, but the trial judge has a discretion to exclude it. 

Read: The Right of Widows in the Nigerian Society

The accused in R.v. Ogwuogo (1936) also made a statement to the police. He was cautioned in a native dialect. He was convicted for murder. The accused did not understand the caution. Held the court must be satisfied that the statement is free and voluntary. If it is not satisfied, the onus is on the prosecution. In dealing with illiterate suspects therefore, one must ensure that they understand what the caution is all about. There must be positive evidence that it was administered and understood.  

An accused cannot be forced to present himself or herself for a photograph. He requires to be cautioned - Ugama v. R (1959) 4 FSC, 218.

The judges rules offer safeguards to ensure that confessions are freely given and voluntary, and that the accused is properly cautioned. It ensures the absence of any suggestion that a confession has been induced by threats or promises from someone in authority. In practice, the officer accepting a confession is obliged to take the accused and the statement before a superior police officer (i.e. an Assistant Superintendent or above) as early as possible. The Superior Police Officer is required to satisfy him or herself that the statement is free and voluntary. If he is satisfied, he must ask the accused if he made the statement and whether it is true. If the accused admits, the superior police officer endorses and signs the confession to that effect. Now, the mere fact that superior police officer has not endorsed a confession does not render it inadmissible. However, such endorsement has the value of assuring the court that it has been properly taken.  

Judges rules are an extension of the rules on confession. They were built to advance voluntary confessions. They are not statutory provisions, judicial decisions, Practice directives or Court Rules. They are administrative rules to guide the police and other agencies that investigate criminal matters. They do not have the force of law but their observance assures the admissibility of a confession which otherwise would have been impeached. The judges rules in England have been revised since 1964, but those operating in Nigeria were those formulated in 1912-1914 and it is incumbent on police officers and every other person charged with the duty of investigating offences or charging offenders to comply with them as far as practicable.

The Doctrine of Estoppel

The doctrine of estoppels originates from English Criminal Law. It is a legal concept that bars a party to a suit to renege from or doing the contrary of which he or she has led another to believe and the special case of relying on a previous judgment as conclusive of the issue or issues in dispute. 

By nature, estoppel is an admission which is conclusive and parties are not allowed to plead against it or advance contradictory evidence. The court considers it only fair that a person’s own act or acceptance should prevent him or her from alleging the contrary. According to Lord Coke, “Estoppel” comes from the French  Word, ‘estoupe’ and the English  word “stopped”. It is called estoppel  or conclusive  because a man’s  own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth”

Estoppel can be by conduct, deed, larches, misrepresentation, negligence and as well as estoppels by judgment. It is a legal result or conclusion arising  from an admission which has either been actually made, or which the law presumes to have been  made, and which binds all persons whom it affects. Estoppel is a rule of evidence, which prevents a party from denying the truth of some statement, formerly made by him or her. Thus a person would be stopped from denying the existence of facts which he or she has by words or conduct led another to believe. If X by a representation, induces Y to change his position, X cannot be heard afterwards to deny the truth of his or her representation.

Statutory provisions relating to Estoppels are in Part X of the Evidence Act of 2011, the Matrimonial Causes Act, the Federal Republic of Nigeria Constitution, 1999 and the Rules of various High Courts of Justice. In the Constitution 1999, S36(9) says that no person, who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for a criminal offence, having the same ingredients as that offence save upon the order of a superior court. In S 173, 174, 65 and 169 of the Evidence Act, 2011 talks about Estoppel. Specifically, S 174 says if a judgment  is  not pleaded  by way of estoppel,  it is as between  parties  and privies deemed to be a relevant fact, whenever any matter, which was , or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.  

S 26 of the Matrimonial Causes Act, 2004 is another statutory provision for estoppel as it deals with Condonation and Connivance. According to the section, except where section 16(1) (g) of this Act applies, a decree of dissolution of marriage shall not be made if the petitioner has condoned or connived at the conduct constituting the facts on which the petition is based.
(d)  Rules of Court
Most High Court Rules contain provisions to the effect that:
An application to set aside for irregularity any proceedings, any step taken in any proceedings  or any document,  judgment  or order  therein  shall  not  be allowed unless it is made within a reasonable time and before the party applying has taken any first step after becoming aware of the irregularity.
What the provisions seem to show is that estoppel is not static; but has continued to expand in different varieties according to the facts of each particular case, and at the same time, breeding a myriad of problems.
Each of the species may have its own peculiarity and what you find in one may not be in the other.   For example estoppel by record or by deed does not bind the statement, but estoppel by conduct does.
Your consolation is several folds:
i.  The  varieties  are  all  under  one  proof:  “Someone  is  estopped  from  saying something  or other;  or doing something  or other, continuing  or other”.   The rationale is that when a person, by words or conduct, has led another to believe in a particular state of affairs, that person will not be allowed to go back on it when it would be unjust or inequitable for him or her to do so.
ii. The doctrine, whether as a rule of evidence or a rule of substantive law or in whatever form of estoppel, is rooted on the principle of justice and equity that no man should be allowed to profit from his own act or omission, which the other side has relied upon to his detriment or be allowed to raise a second time, a matter decided in a previous case.

The notion of estoppel is a combination of several elements such as: 

• A clear and unqualified statement, which must be acted on.
• The action must act on the faith of the statement to the detriment to the actor
  

The Nature of Estoppel and Rule

Estoppel may be looked at as a rule of evidence because it is contained in the statute (Evidence Act, Part X S62-64 and S169-172). In Ladega v. Durosimi (1978), Eso, JSC  (as he then was) confirmed that Estoppel “is essentially a rule of evidence; any relevant evidence  excluded  by  the  doctrine  of estoppels is inadmissible. It is also a rule of criminal Procedure - Constitution 1999, CPA Part 19 and CPC Sections 223-224. At the same time, estoppel may be a substantive law because a substantive law may be a cause of action. Generally the Evidence Act provides for estoppels and its proof. The Evidence Act is a substantive law and it contains a substantive law. Estoppel is a defence, but estoppel per rem judicata can also give rise to a cause of action. Brett JSC in Ijale v. AG Leventis (1961) ALL NLR 752 said that “Estoppel is often described as a rule of evidence... but the whole concept is more correctly viewed as a substantive rule of law.

Estoppels and Pleadings

Estoppel, the relevant and specific facts on which it relies, are required to be pleaded.  Estoppel then is (though not entirely) a matter of pleading. It looks like a rule because it set up by statute and also exclusionary, but unlike a rule, an estoppel is pleaded. 

Classification of Estoppels

• Estoppel in pais
• Estoppel in writing 
• Estoppel by record 
• Per Lord Denning: West Midlands Police Force & Anor (1980)
  

• Estoppel by Representation  
• Promissory estoppels  
• Estoppel by deed 
• Estoppel per rem Judicata
  

• Estoppel by record  
• Estoppel by deed  
• Estoppel by conduct  
• Equitable estoppel
  

All these depend on the different ways estoppel may arise. Lord Denning likens estoppels to a big  house with many rooms where what you find in one may not be found in others;  estoppels per rem judicata,  issue  estoppels, estoppel by acquiescence, estoppel by election, or  waiver, estoppel by negligence, promissory estoppel, proprietary estoppel, etc…
Estoppel by Record: This includes-
1.  Judgments of the Courts of Record
(i).  Cause of action estoppels
This is where a cause of action which has been litigated upon between the parties and finally determined by a court of record, having jurisdiction in the matter is brought again in a subsequent proceeding between the same parties
(ii).  Issue estoppels:
Issue estoppels arises where a fact in issue in the first cause of action has previously been decided and the same fact comes again in question in a different subsequent suit between the same parties
As regards estoppels by judgment, the general principle is that:
i. it is for the common good that there should be an end to litigation and  
ii. no one should be sued twice on the same ground.
In essence, every judgment is conclusive evidence for or against all persons, whether or not they are parties, of its own existence, date and legal effect, except as to the accuracy of the decision.   To create estoppels, therefore,  the judgment  must be unimpeachable, final, decided on the merit,  pronounced  by a competent  court and obtained  neither  by fraud nor by collusion.
A judgment is not evidence of a fact, which was not directly decided; e.g.  Collateral matters or matters that were incidental or merely inferable from arguments.  Accordingly, objections may be raised when the other party seeks to tender a judgment as evidence of the facts decided on the ground that:
i.  It is not a formal judgment.   It is only a final judgment when the rights of the parties have been determined, even though an appeal is possible
ii.  It was not decided on merits; e.g. if it was dismissed   for want of prosecution.
iii.  It is collusive, fraudulent or forged.
A judgment in rem is adjudication as to the status or condition of some particular subject matter of a Tribunal, having competent authority for that purpose.  Such judgment is   in rem juidicata   e.g a divorce, declaration of legitimacy, condemnation of a prize court, or adjudications in bankruptcy.   The estoppel that arises in subsequent proceeding on the same subject is estoppel per rem judicatum – a  rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings,  matters which have  been  adjudicated  upon  previously  by  a  competent  court  between  him  and  his opponent.
A judgment is a conclusion for or against all persons, of whatever matter it settles, as to the status of persons or property, the rights or title to property or whatever disposition of property or proceeds of sale it makes or other matters actually decided.  The reason is that public policy demands that questions of status and the like should not be left in doubt.
For  example,  A  decree  of  dissolution  or  nullity  of  marriage  on  the  ground  that  the marriage has broken down irretrievably, alters the status of the erstwhile spouses, and the ground  of divorce binds  the parties and privies  but not strangers.  Thus in Hill v Hill (1954) PD 291 W petitioned for divorce on grounds of cruelty, alleging several acts of violence against   H. Dismissing the petition,   the court held that the acts as   were complained about did not amount to cruelty.  H later petitioned for divorce on the ground of W’s desertion.    W pleaded justification based on acts of violence she had alleged on the previous proceedings.   Held W is estopped.   Also in EZENWANI  v ONWORDI  (1987) the Supreme  Court held that since the issue of traditional   history has been decided in an earlier case between parties on the same land in dispute, it has become issue estoppel and inadmissible in a subsequent suit between the same parties.
Res Judicata operates not only against the party whom it affects but also against the jurisdiction of the court itself.  The party affected  is stopped  per rem  judicatam  from bringing a fresh action before the court or from proving anything, which contradicts his previous  acts  or  declarations  to  the  prejudice  of  a  party.  The plea of res judicata prohibits the Court from inquiring into a matter already adjudicated upon.  Its effect is to oust the jurisdiction of the Court.
3.4.2 Parties
The  term  ‘Party’  means  not  only  a person  named  as such  but  also  one,  who,  being cognizant of the proceedings and of the facts that a party thereto is professing to act in his interest, allows his battle to be fought by that party intending to take the benefit of the championship in the success.
 

Privies

Privy here means Privity in blood (e.g. ancestors and heirs), privy in Law  (e.g. Bankrupt and trustee in bankruptcy), privy in Estate (e.g. Lessor and Lessee). For Privies to bind the party, the party or privies must sue or defend in the same right and character. An action  in a personal  capacity  cannot  create  estoppels in a subsequent action in a representative capacity or as an administrator. Hence a civil action will not create estoppel in a criminal proceeding and vice versa for the obvious reason that parties are different. 

• Judgment  does  not  create  estoppels  for  or  against  a  stranger  unless  he  or  she knowingly stood by and did nothing to intervene in proceedings  in which he or she has an interest.
• Judgments  are  admissible  to prove  facts  and  can  be  used  to  corroborate  other evidence even though the judgment does not amount to an estoppel.  Examples can be found in cases of: 
• Bankruptcy  (Ex.Parte Anderson, re Tollemache (1885) 
• Divorce  (Parrington V Parrington and Atkinson (1925).
  

The following judgment would not constitute estoppels: 

• Judgments obtained by consent;
• Judgment in default of appearance to the writ; 
• Judgment of dismissal for want of persecution, not being dismissal on the merit; 
• Consent  orders,  though  obtained  by fraud,  do estoppel  the parties until it is set aside;
  

Aniagolu  JSC explained the consequence as follows:
“A party to civil proceedings is not allowed to make an assertion against the other party, whether of facts or legal consequences  of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential  element  in his previous  cause  of action  or defence,  in a previous  suit between the same parties or their predecessors  in title, and was determined by a court  of competent  jurisdiction  unless  further  material be found,  which was not available,  and  could  not,  by reasonable  diligence,  have  been  available,  in the previous proceedings”.
“So established is issue estoppels in the laws of the common law countries that it has been held that where a final decision of an issue has been made by a criminal court of competent jurisdiction, it was a general rule of public policy that the use of a civil  action  to initiate  a collateral  attack  on the decision was an abuse of the process of the court, unless there was fresh evidence”.
 

Judgment in Personam

A judgment in personam is conclusive evidence as long as parties to the suit and their privies are concerned not only as the matters actually decided but also as to the grounds of its decision when these again come in controversy between the same parties and privies (e.g ordinary judgment between parties in cases of contract,  tort and crime, against a person and not against a thing). This is because public policy does not encourage litigation. The principle – nemo bis vexare debet – forbids a person to be vexed twice over.

Conditions precedent for estoppel in personam to operate:

• Parties and privies against whom the judgment is tendered must be suing in the same right or same capacity as in the former proceedings.
• The matter in dispute must be the same in both proceedings.
  

The judge decides on the question of identity of issues and the test is whether the same evidence would support both actions. This means an action in tort will not estoppel an action in contract arising from the same faults.  The duty of care owed by one driver to another differs from duty of care owed the passengers by the driver. Estoppel   also applies   in Administration   Actions.   Consequently, a party who has acquiesced in the distribution of funds is stopped from a subsequent application to revoke the letters of administration.  However, the fact of a conviction is admissible in civil proceedings.
3.4.5 Foreign Judgment
A party who obtains a foreign judgment in his favour is at liberty to sue again in the domestic courts.    However, there are occasions when a foreign judgment may estoppel a party against whom judgment has been given.   It is ineffectual against a party in whose favour the foreign judgment was given.   The foreign judgment acts as an estoppel, it is conclusive against the defendant and the domestic courts will not go into its merits or sit over it as an appellate court.  But it is impeachable on the ground of:
 Fraud, collusion, or forgery
 Want of jurisdiction in the foreign court
 That it is not a final judgment decided on the merits of the case
 That it is contrary to natural justice
 That it is contrary to the rules if Private International Law.
3.4.6 Judgment in rem and judgment in personam.
The distinction between judgments in rem and in personam is explained in DIKE v NZEKA (1986) 4 NWLR 144.  Here the Court said:
A judgment is said to be in rem when it is an adjudication pronounced upon the status of some  particular  thing  or  subject  matter  by  a  tribunal  having  the  jurisdiction  and competence  to pronounce  on that  status.    Such a judgment is usually and invariably founded in proceedings instituted against   something or subject matter whose status or conditions is to be determined.   It is thus a solemn declaration on the status of some persons or things.  It is therefore binding on all persons in so far as their interests in the status of the person or thing are concerned.  That is why a judgment in rem is binding on the whole world – parties as well as non-parties.
A judgment in personam, on the other hand, is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing.  A judgment in personam is a judgment inter parties.   It creates a personal obligation as it determines the rights of parties inter se to or in the subject – matter in dispute whether it is land or other corporeal property damaged, but does not affect the status of either of the parties to the dispute or the thing in dispute.
3.5 Estoppel by Deed
Estoppel by deed prevents a party to a deed from denying anything recited in that deed if the party has induced another to accept or act under the deed.  Indeed, every recital and description in the deed which is unambiguous, material and conceded to be binding, binds both parties to the deed and anyone claiming through them, but only in an action on the deed.
Hence, parties to a deed and those claiming under them cannot deny the statements of fact contained in the deeds in an action between the actual parties to it and in an action on the deed.   The particular statements of facts must be material and intended to be binding on the parties.  This type of estoppels may be challenged on the ground that:
i. The deed itself is tainted by fraud or illegality  
ii. It was executed under duress
iii. It was executed under a mistake
A recital in a deed acknowledging that one of the parties received some money is merely an evidence of payment, does not create an estoppel.
3.6 Estoppel by Conduct
When one person has either by virtue of an existing court judgment, deed or agreement or by his declaration,  act or omission,  intentionally  caused or permitted another person to believe a thing to be true or to act upon such belief, neither he nor his representative in interest shall be allowed,  in any proceedings  between himself and such person or said person’s  representative  in  interest,  to  deny  the  truth  of  that  thing. Except for the additional phrase “either by virtue of an existing court judgment, deed or agreement or” estoppel means essentially the same as it was prior to 2011.
Whereas Section 151 Evidence act 2004 refers to “declarations, act or omission” Section 169  of  Evidence  Act  2011  has  expanded  this  to  include  court  judgement,  deed  or agreement.
Estoppel by conduct implies that when a person, by his or her conduct induces another to alter his position upon some representation made, the law precludes him or her from denying the fact which he does represent to exist.
Estoppel by conduct arises in a contractual relationship  between parties e. g. between a mortgagee  and  mortgagor,  lessor  and lessee,  bailor  and  bailee,  licensor  and  licensee. Where this relationship exists, estoppel would operate in situation where:
 A mortgagee allows a mortgagor of property to remain in possession and sell in execution to satisfy mortgagor’s judgment debt with knowledge of seizure and intention to sell.
 Lessee or bailee denies title of licensor or bailor respectively.
 Estoppels in pais operates under the following conditions:
 These must be a representation by words (spoken or written) or conduct of some existing fact. In this context, conduct includes silence when there is a duty to speak.   A statement or promise as to the statement  of law, or of intention in future is ineffectual : Kelsen v Imperial Tobacco  Co (1957), Jorden v Money (1854)
  The representation must be clear, precise, and unqualified.  Territorial and Auxiliary Forces v. Nicholas (1949), Canadian and Dominon Sugar Co v Canadian West Indies Steamships Ltd (1947) (Lower v.  Combank  Ltd (1960).
 It must be a representation of fact not Law. Territorial and Auxiliary forces V. Nicholas (1949), Leslie v Shiell (1914).
 The representation must be such that a reasonable man would believe it and act upon it. Freeman v Cooke (1848) However, a “reasonable man” is not credited with the knowledge of the intricacies of modern hire purchase finance (Lowe v Lambank Ltd. 1960).   It suffices that the representation meant the statement to be acted upon or at least have so conducted himself that a reasonable man in the position of the representee would take the representation to be true and believe that it was meant that he should act upon it.
 The representation must have been made with intent that the other party shall act on it.  Mere negligent statement in an atmosphere where there is no duty of care is not sufficient:   Seton v Lafone (1887), Henderson  v Williams (1895).
 The party to whom the representation was made must have acted on it to his or her detriment    Caroline Morayo V Okiode and others (1942); Conpaye Ado V Musa (1938).
 He or she must also have suffered damages, and the representation must have been proximate cause of such damage.
3.7 Estoppel and Bills of Exchange
Estoppel operates on favour of a holder in due course and those who claim through him or her. Consequently:
 The drawer is stopped from denying the existence of the payee of a negotiable instrument and his capacity to endorse.
  The acceptor of a bill of exchange is stopped from denying the existence of the drawer, the genuineness of the drawer’s signature, and his capacity and authority to draw the bill.
 The endorser is stopped from denying the genuineness of the drawer’s signature, and any previous endorsements.
3.8 Standing By
Amancio Santis v Ikosi Industries Ltd & Anor (1942) Merbill v Akiwei (1952)
The conduct of ‘standing by’ is omission to take actions, which ought to have been taken. It arises, for instance, where there is a pending action in Court and a person who has the same interest in the subject matter of litigation as one of the parties, stands by, sees his battle fought by somebody else in the same interest, (and fails, omits or neglects to apply to be made a party in addition to that party). In a situation like that the person is bound by the result and would not be allowed to reopen the case.
The doctrine would not apply to:
I   A decision against a person in his/her personal capacity and the person to be stopped is not privy or cannot be held to be a party.
2.  A person, who during the pendency of an action brought his own action before judgement in the earlier or pending action.
3.9 Innocent Misrepresentation
Generally, no damage is recoverable for an innocent or negligent mis-statement of fact; (DERRY  v  PECK,  (1889)  Negligence  creates  estoppels  where  the  person  alleged  to  be estopped owes a duty of care to the person setting up the estoppel.   (CAMPBELL VISCOUNT CO v GOLD (1961).
Under  the Companies  and Allied Matters  Act, 1990-2004,  directors  may be liable for misstatement  in the prospectus  of a company  unless they had reasonable  grounds  for believing their statements to be true.
Damages may be recovered from a breach of contract or breach of warranty in which there has been an innocent misrepresentation of fact.
This  is based  on  “a  principle  of universal  application  that  if a person  makes  a  false representation  to another  and that other acts upon that false representation,  the person who has made it shall not afterwards be allowed to set up that what he or she said was false and to assert the real truth in place of the falsehood which has so misled the other” – Per Lord McNaughton.
Misrepresentation is a cause of action, but the doctrine of Estoppels is not. Rather it is a rule of evidence.  On how estoppel operates in relation to misinterpretation, see Combe v Combe (1951) 2 KB 215.
NOTE:  There must be in independent cause of action for estoppels to operate in favour of the plaintiff seeking damages, estoppels being part of his or her evidence.
You own a car or other articles; you allow another to treat the car or goods as his or her own; you do not object, whereby a third person is induced to buy the car bona fide:  By your laches and acquiescence, you are stopped from claiming the ownership to the car.
3.10 Equitable Estoppel or Promissory Estoppel.
This is a defensive doctrine, which prevents one party from taking an unfair advantage of another,  when,  through  a  false  language,  or  conduct,  the  person  to  be  estopped  has induced another person to act in a certain way, with the result that the other person has been injured in some way.  The doctrine is founded on the principle of fraud.
It is also called quasi estoppels or promissory estoppels.   It is a shield, not a sword; a defence, not a cause of action.   The principle  of equitable  estoppel  was expressed by Lord  Cairns  in the  important  case  of  HUGHES  v METROPOLITAN  RAILWAY  CO  (1877)  as follows.
“If parties,  who  have  entered  into  definite  and distinct  terms  involving  certain legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of a negotiation, which has the affect of leading  one of the parties  to suppose  that the strict  rights  arising  under  the contract will not be enforced or will be kept in suspense or held in abeyance , the person who otherwise   might have enforced  those rights will not be allowed to enforce them, where it would be inequitable, having regard to the dealings which have thus taken place between the parties.”
In the case, a tenant failed to comply with his landlord’s notice to repair the premises, because he was negotiating for the purchase of these premises.  When the negotiation failed, the landlord ought to forfeit the lease because of the tenant’s failure to comply with the notice. The House of Lords held that there is an implied promise that the notice would not be enforced as long as the negotiations continued.  The tenant was therefore entitled to a reasonable time after their termination to comply with the notice.  
The principle was re-affirmed by Denning in CENTRAL LONDON PROPERTY TRUST LTD v HIGH TREES HOUSE LTD (1947) KB 130 and COMBE v COMBE (1951) 2 KB 215 OR [1951] ALL ER 767 where Denning L.J explained that:
The principle stated in the High Trees Case does not create new causes of action where none existed before.   It only prevents a party from insisting upon his strict legal right, when it would be unjust to allow him or her to enforce them, having regard to the dealing which have taken place between the parties. The principle is that:
Where one party has, by his words or conduct made to the other a promise or assurance which  was  intended  to affect  the legal  relations  between  them and to be acted  upon accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promises or assurance had been made by him, but he must accept  their  legal  relations,   subject  to  the  qualification,   which  he  himself  has  so introduced, even though it is not supported on points of law by any consideration but only by his (or her) word.
Equitable estoppel is not limited to representation of fact.  It extends to:
 Representation of Intention (oral or written)
 Representation by Conduct
 Representation by legal relations
Equitable Estoppel does not bind promisor   ad infinitium;  it endures only until such time as the promisee should  have been  restored  to the  position  he  or she was  immediately before  the representation.
If estoppel is based on conduct, the other would have acted to his detriment. (See Lord Denning: 15 M.L.R. pages 1-10).
4.0  CONCLUSION
If a man by his words or conduct wilfully endeavours to cause another to believe in a certain state of things which the first knows to be false and the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time. Again if a man either in express terms or by conduct makes representation to another of the existence of a state of facts, which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of that state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take  his  conduct  to  mean  a  certain  representation   of  facts  and  that  it  was  a  true representation and that the latter was intended to act upon it in a particular way, and he with such belief, does act in such way to his damage, the first is estopped from denying the facts of representation  (See the case of JOE IGA AND OTHERS v EZEKIEL AMAKIRI AND OTHERS (1976)11S.C.1)  especially pages 12 – 13).
Thus an Estoppel is a rule of evidence which precludes a person from denying the truth of some statement formerly made by him or her or the existence of facts  upon  which a judgment against him or her is based.  Estoppel is a shield, not a sword, a defence; not a cause of action. A party who wishes to avail such estoppels, whilst there cannot be cause of action stopped as between a criminal and a civil action, there can be issue estoppels. Estoppel is based on the rule of public policy that there should be an end to all litigations and no one should be sued twice on the same ground(s).

 [12/21/2021, 5:41 AM] Nelson Vincent Ayomitunde: Menu

Corporate Finance Institute

Estoppel

A judicial instrument ordered by a court to prohibit an individual from making claims or from taking back his or her original statement

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What is Estoppel?

An estoppel is a legal means of preventing a party from taking action that will negate some previous action taken. It is a judicial instrument in common law legal frameworks through which a court can prohibit or “estop” an individual from making claims or from taking back his or her original statement; the individual being prosecuted is said to be “estopped.”

 

 

Estoppel can prohibit an individual from making specific claims. Estoppel theories are centered around both common law and equity.

For example, a lender and borrower are in court because of an unpaid debt. The lender says that he will pardon 50% of the debt. The judge can, therefore, issue an estoppel on the lender from going back on his word. Hence, he cannot change his mind and only pardon 30% of the existing debt.

 

Summary

Estoppel is a legal means of preventing a party from taking action that will negate some previous action taken.

Estoppel theories are centered around both common law and equity.

The two most common types of estoppel in the U.S. are promissory estoppels and equitable estoppels.

 

Common Types of Estoppels in the U.S.

When looking at the U.S., two common types of estoppels are the promissory estoppel and the equitable estoppel.

 

1. Promissory estoppel

The promissory estoppel, which is frequently found in contract law, prevents an individual from changing their mind on a commitment or promise made, even though there is no legal agreement. It argues that an aggrieved person can seek compensation from the offeror or promisor for damages incurred if the damages caused have been the product of the commitment made by the offeror or promisor, which the aggrieved party or receiver had been reliant on before the loss of the promise. The doctrine of promissory estoppel allows a promise to be executed, even if the conditions that constitute a legal contract have not been met.

For promissory estoppel to be legally binding, it has to embody the following elements: a notable promise was made by a promisor to a promisee and the promise resulted in actions being taken by the promisee, the promisee was dependent on the promise that was made, the promisee experienced and incurred noteworthy damages as a result of relying on the promise made to him or her, and if the promisee can only be renumerated through the fulfillment of the promise made to him or her.

 

2. Equitable estoppel

The equitable estoppel, which is based on the principles of fraud, is a defensive theory that forbids one individual from taking undue advantage of another individual where, by deceptive language or actions, the person to be “estopped” has forced or coerced another individual to behave in a certain manner, which causes the other individual to be injured in one way or another.

The key elements for equitable estoppel include the misrepresentation or coverup of data and facts, the knowledge of the facts, a clear intention to be fraudulent, inducement and reliance, damages, injury has been incurred by the complainant, and proof of culpability or blameworthiness.

 

Other Types of Estoppels

With reference to the Australian, English, and American laws, the common types of estoppels in civil cases include (but may not be limited to:

 

1. Laches

Laches are commonly used in situations where an individual being litigated intentionally delays an action, at the expense of their adversary.

 

2. Estoppel by record

Estoppel by record commonly rises as an issue and/or cause of action, through which previous judgments passed on certain causes of action or issues in past legal proceedings cannot be relitigated by concerned parties.

 

3. Estoppel by deed

Estoppel by deed prohibits an individual who is being litigated from denying the truth of actions carried out or statements made through rules of evidence.

 

4. Estoppel by silence

Estoppels of silence are used to prevent an individual from making a new statement when they had previously been allowed to do so, and his or her silence placed another individual in a less favorable position.

 

5. Reliance-based estoppel

Reliance-based estoppel is common in instances where a party relies on the actions or statements given by another party. The estoppel is made against the party that carried out the act or made the statement.

[12/21/2021, 5:43 AM] Nelson Vincent Ayomitunde: https://isochukwu.com/2018/01/14/evidence-1-8-estoppel/

[12/21/2021, 5:44 AM] Nelson Vincent Ayomitunde: https://m.facebook.com/www.barristerawojobiadetoro.ng/posts/1374394446064897

The Meaning, Evolution and Essence of Hire Purchase

Hire purchase is a contract of hire which is paid for by installment after which the hirer may become the owner of the goods if he completes payment of the hire purchase. A Hire purchase contract can also be defined as a contract where goods are delivered to a person who agrees to make periodical payments with an option to buy the goods after paying up the installments. The goods may be returned to the owner at any time before the full payment is exercised as stated in the contract, but until then, there is no express agreement to buy the goods.

According to S20, Hire Purchase Act, hire purchase is the bailment of goods in pursuance of an agreement under which the bailed may buy the goods or under which the property in the goods will or may pass to the bailee. In Jajira v. Northern Brewery, it was held that even though the terms of an agreement are drafted as hire purchase, the court will not treat it as such if good evidence shows its as otherwise. The court will look at the reality not merely the legal formality.

Mr. Henry Moore, the Bishop Gate Piano maker claimed to have invented the hire purchase trading system in England in 1846. This trading system soon gained ground with the advent of the Sewing machine made by Singha Manufacturing Company which let out machine to its customers under a hire system containing an option to purchase. The hire purchase trading system was given Judicial approval in the case of Helbye v. Matthews (1859) A Cat pg.471.

The decision in the case undermined the provisions of S9, Factors Act 1889, and attempts were made to reverse the decision by a statute in 1912 but the attempts were not successful because of the persistent abuses of the system by the dealers and because of the little protection afforded the hirer by the system, demand for legislation regulating the hire purchase transactions increased and after several unsuccessful attempts, the Hire Purchase Act was passed in 1930 to regulate hire purchase transactions.

How does a Hire Purchase System Work?

In a hire purchase, the owner delivers the goods to the hirer on credit. The hirer makes a deposit and then takes custody of the goods. A hirer uses the goods and pays the rest of the price in instalments and the owner usually charges an interest over the amount unpaid for being deprived of the use of his capital. In some cases, instead of the owner parting with his goods on credit, a finance company may be brought in for the provision of money to finance the purchase. The finance company would want to satisfy itself of the financial standing of the hirer. If satisfied, it will enter into an agreement with the hirer for the hirer to take the goods on hire purchase. Also, sometimes where the dealer or finance company is not sure of the financial standing of the hirer, the hirer is asked to provide someone who will guarantee the payment of installment as at when due. If the hirer defaults, the guarantor may find himself personally liable to make the payment instead of the hirer.

The hire purchase trading system has been adopted in commercial practice to protect the owner's title to the goods if the hirer, in  breach of his undertaking sells the goods to a third party.

Distinction between Hire Purchase and Similar Transactions

• Contract for Sale of goods: Here, the seller transfers or agrees to transfer the property in the goods to a buyer for a money consideration called "the price" - S1, Sale of Goods Act. In this case, the buyer is bound to buy the goods but in hire purchase, the hirer may or may not buy the goods.
  
• Bill of Sale: This is a document by which the property in the goods is transferred by one person to another. It is designed for transactions in which the seller's or donors remain in possession of the goods after disposing off the property in them. Since the purchaser is not given immediate possession of the goods, it is necessary for his protection that he should have some documents proving his title in the goods.Hire purchase agreement is outside the scope of bill of sales incethe property in the goods is not vested in the hirer during the currency of the agreement and he cannot therefore be said to have any right of seizure over or make any assurance of disposition of the goods.
  
• Conditional sale Agreement: Here, the goods are sold with an express provision preventing the property from passing to the buyer until he has paid his installment. Meanwhile, the buyer has immediate possession of the goods.At common law, if before completing his instalment under a conditional sale, the buyer sells the goods to a good faith purchaser, the later will get a good title - S9, Factors Act and S25, Sale of Goods Act. The hire purchase agreement does not involve the hirer in the legal obligation to buy the goods. If the hirer disposes off the goods before completing the instalment, the owner can recover the goods from the good faith purchaser.
• Money Lending: Hire purchase is not an agreement for the loan of money. The hirer simply pays to use the goods and has the option to purchase them. In money lending, money passes from the lender to the borrower.
  
   

How to Form a Contract of Hire Purchase

Basic rules of contract apply at common law and as such, there are no formal or rigid requirement for law of hire purchase.Written and formal agreement are valid and binding.The parties must have capacity to enter into a hire purchase agreement. The terms of hire purchase must be stated precisely such that the court will be able either from express terms of the agreement or by reasonable implication and reference to identifiable documents ascertain the intention of the parties. Again, before creating a contract, there should be a consensus adidem between the parties, the acceptance must match the offer but there are cases when dispute may arise as to the facts contained in the hire purchase agreement at common law. This was always due to sharp practice on the path of the dealers. Sometimes also, there may be a misrepresentation as to the name of the document which the hirer had signed.In such situation, if the hirer believes that the document involved is essentially different from what he signed,the hirer may be able to set up a plea of non est factum and thereby escape liability. - Mushkan Financeco. Ltd v. Howard. Also, hire purchase from its inception is void abinitio and all monies paid under it are recoverable. This is known in the general principle of contract law as lex non cogit ad impossiblia.

In certain circumstances, a mistake by one or more of the parties to an agreement (as to the terms of the agreement or the identity of the other party) may render the agreement void. Also, the court will not enforce an illegal hire purchase agreement because it is an invalid contract - Pearce v. Brooks

Duties/Obligations of the Owner in Common Law

• Title: The person letting out the goods has title to dispose the goods.  In Karflex Ltd v. Poole, the plaintiffs who were hire purchase dealers bought a car from the defendant with an option to purchase on payment of all installment.The defendant paid the deposit and took possession of the car but he defaulted on the first installment and the plaintiffs commenced proceedings against him. It transpired that the car seller had never been the owner of the car at all but the plaintiffs paid off the true owner and proceeded with their action against the defendant. It was held by a divisional court that the action must fail because the plaintiffs were in breach of an implied condition that they had a right to sell the goods at the date of delivery of the car, they had no such right. The defendant who had defaulted on payment of the first installment was entitled to repudiate the contract and recover all deposits despite the fact that he had not been evicted by the true owners and that by the time the case came up for trial, there was no possibility of eviction because the original owner had been paid off.
• Correspondence with sample or description: Where goods are let on hire purchase by description, it is implied condition that the goods correspond with the description. Also, where the goods are let by reference to sample, it is an implied condition that the bulk must correspond with the sample and that the hirer will have a reasonable opportunity to compare the bulk with the sample and that the goods are free from any defect, rendering the goodsunmerchantablewhichwouldnotbe apparent on reasonable examination of the sample. The goods must correspond with the description, else, the hirer is entitled to reject them, even if the deviation is only minor and does not affect the value. Though, purely trivial may be ignored - Arcos Ltd v. E.A Rommasel & Sons 
• Delivery: The owner must transfer possession of the goods from himself to the hirer. Hiring does not commence until the goods are delivered and the hirer is not obliged to accept them unless they appear as described in the contract. - Karsales (Arrow) Ltd v. Wallis. Unless it is agreed to the contrary, the place of delivery is the owner's place of business if he has one or if not his residence. If there is no stipulation as to time in the agreement,the owner must send the goods to the hirer within a reasonable time.When the owner is readyand willing to deliver the goods,and he requests the hirer to take delivery, the hirer is obliged to do so within a reasonable time or else he will be liable in damages for breach of contract. Delivery is normally effected by a physical transfer of possession of the goods from the owner to the hirer. However,the goods may also be delivered through other methods e.g, if constructive possession is given to the hirer.
• Quiet Possession: An implied warranty where the owner, in addition to putting the hirer in possession of the goods must leave him in peaceful possession of them. The warranty is broken if the hirer’s enjoyment of possession is interfered with either by the owner or the lawful act of a third party. This obligation as to quiet possession is a mere warranty and its infringement entitles the hirer only to damages (it does not relieve him of his duty to perform his part of the agreement). However, where the interference with the hirer’s possession arises as a result of a defect in the owner’s title, it will be to the hirer’s advantage to base his claim on a breach of an implied term as to title since it is a condition that entitles the hirer to repudiate the contract if breached. If the owner wrongfully repossesses the goods in defiance of the hirer’s right, the fact that the term of quiet possession is only a warranty and not a condition is irrelevant. The owner has by conduct, wrongfully repudiated the agreement and the hirer is entitled if he so desires to treat that repudiation as discharging him of performance of his obligations under the contract.
• Fitness for Purpose: There is a warranty where the hirer expressly or impliedly informs the owner (or his agent) of the particular purpose for hiring the goods. To show that he relied on the owner’s skill and judgment, there is an implied term that the goods are reasonably fit for that purpose. This term cannot be claimed by the hirer unless the particular purpose for which the goods were required was made known to the owner before or when making the agreement. Communication to the dealer is not sufficient since he is not the agent of the owner to receive and transmit to the owner such a communication. Also, what is required to attract the implication of this term as to fitness is the hirer’s reliance on the skill and judgment of the person letting the goods on hire purchase. In Bentworth Finance v. DeBank Transport (1968), the court confirmed that where the hirer makes known the purpose for which the goods are required so as to showthathe relies on the owner’s skill and judgment, it is implied that the goods are as fit and suitable for that purpose as reasonable care and skill can make them. However, in Anokav.SCOA*(1955-56) WRNLR113, the court said that the hirer cannot complain of any defect in the goods which could not have been discovered by due care and skill on the part of the owner.
• Merchantable Quality: This was defined in Bristol Tramways Carriage Co Ltd v. Fiat Motors (1910) 2KB831 to mean quality such that a reasonable man acting reasonably would after full examination, accept the goods in the performance of his offer to buy them. This term, in absence of an agreement to the contrary, will be implied in favour of the hirer where the goods are let by description and where the owner is one who manufactures the goods or  the dealer of the goods of that description. If the hirer by himself, examines the goods before entering the agreement, the owner will not be liable for defects.
• Accept Payment Offered: The owner is impliedly obliged not to refuse installments validly tendered by the hirer except for reasonable cause e.g. where the hirer is in breach of his duties.
• Repairs: Unless the agreement provides, the owner has no duty to keep the goods in repair after delivery except if repairs are necessitated by breach of the implied condition of fitness. If there is no provision in the agreement requiring the owner to maintain goods after delivery and the hirer makes repairs, he is not entitled to reimbursement by the owner. If there is a provision intheagreementrequiringtheownertocarryoutrepairs andtheownerfailstodosoafter receiving reasonable notice fromt hehirer, the hirer can repudiate the agreement or make repairs and recover reasonable cost from the owner.
• Insurance: In the absence of an agreement to the contrary, there is no duty imposed on the owner to insure the goods. Most hire purchase agreement impose an express obligation on the hirer to insure.
• Maintenance of goods up to the time of delivery: There is an implied term that the owner shall deliver the goods in as good a state as they were at the time the agreement was made. If the hirer has examined the goods before the date of the agreementandmakesan application for hirepurchase,onthebasisofhisexamination,itistheowner’sresponsibilitytoseethat the goods are on the same condition as when first seen by the hirer. Karsales(Harrow)v. Wallis (supra). In the case, the defendant inspected a car owned by a car seller, founditin goodcondition,andwishedtotakeitonhirepurchase.The carsellerthereaftersoldit to the plaintiff who in turn resold it to a hire purchase company .The defendant made a contract with this company. The contract contained a term that‘ no condition or warranty that the vehicle is road worthy or astoitscondition of fitness for any purpose is given bythe owner or implied therein.’ One night , a ‘car’ was left outside the defendant’s premises.It looked like the car in question but it was a mere shell. The cylinder head was broken, all the valves were burnt, two pistons were broken and it was incapable of self propelling. The defendant refused to accept it or pay the hire purchase instalment and when sued for this, he pleaded the state of the car. The plaintiffs relied on this exclusion terms in their reply to the defendant’s case.The Appeal Court held that the item delivered was not the item contracted for so, the exclusion clause did not avail the plaintiff and judgment was given to the defendant.
  

Duties/Obligations of the Hirer in Common Law

• Acceptance of the Delivery of Goods: The hirer is obliged to accept delivery of goods he agreed to take under the hire purchase agreement. If  he wrongfully refuses to accept delivery, the owner’s remedy is to claim damages for breach of contract. - National Cash Company v. Stanley (1921) - when the hirer failed to take delivery and the bailor sued for rent and arrears, the court held that the bailor was only entitled to damages for breach of contract.
• Care of the goods: A strict duty of care is imposed on the hirer, rendering him liable for loss or damage to the goods irrespective of negligence. In the absence of a provision on the standard of care, the hirer is under implied obligation to take reasonable care of the goods during the currency of the hire purchase agreement. The hirer is liable for his negligent acts and those of his servants or agents acting within the scope of their authority. The hirer's duty to take good care of the goods is an independent promise and not a condition precedent to the owner’s obligation to leave the hirer in quiet possession of the goods during the agreement. Therefore, a breach by the hirer of his duty of care will not justify the owner in seizing the goods and terminating the agreement unless the agreement it self empowers him to do so or unless the hirer’s neglect is to indicate that he hirer is repudiating all his obligations e.g. where he willfully abandons the goods. In the absence of one of these grounds of termination, the owner’s remedy is to sue for damages either for a breach of contract or in tort for conversion.
• Use of the goods in accordance with the terms of hire: The hirer is impliedly obliged not to do any act in relation to the goods contrary to the terms of hire. If he does, e.g selling the goods as in Whiteley Ltd. v. Hilt (1918) 2K B808 or pledging them as in Belsize Motor  Supply Company v . Cox (1914) 1K B2 44 or using the goods for a  purpose different from the stipulated as in Burnard v. Haggis (1863) 1 4C BS 45, the owner becomes entitled to have immediate possession of the goods and if may decide to terminate the whole agreement.
• Repair: Apart from his duty of reasonable care, there is no implied duty on the part of the hirer to repair the goods hired. Where the agreement expressly provides that the hirer shall keep the goods in repair during the hiring, this amounts to an implied authority to the hirer to arrange for the execution of repair either by himself or by a third party as at when due.
• Payment: The hirer has a duty to pay the sum stipulated in the agreement at a time and in a manner laid down in the agreement. Unless the agreement otherwise provides, the rules as to payment are those applicable to contracts generally. For the agreement to be enforceable at all, the time of payment must be stipulated with reasonable precision either in the agreement itself or in some other collateral agreement, verbal or otherwise. However, time of payment is not of the essence unless the agreement otherwise indicates that a mere delay in payment does not entitle the owner to treat the agreement as repudiated - S10 (1) of the Sale of Goods Act 1893. Where no place for payment is stipulated in the agreement, the hirer must seek the owner and pay him wherever he may be found. In practice, most agreements specify the ways payment should be made by the hirer.
• Insurance: The hirer has no implied obligation to insure the goods but the agreement requires him to take a comprehensive policy on them.
• Protection of Owner’s Title: The hirer has no obligation to give notice of an adverse claim to the person who supplied him with the goods on hire. He has prospective proprietary interest in the goods and he is entitled to rely on the implied condition as to title on the part of the person who has let the goods out to him on hire and to continue payment to such person under the hire purchase agreement notwithstanding that he knows of an adverse claim by a third party .- Warman v. Southern Counties Car Finance Corporation Ltd. (1949) 1A l l ER7 11. However, in bailment, the bailee is under a duty to protect his bailor’s title by informing the bail or as soon as it is reasonably practicable of any adverse claim to the goods bailed. 
  
• Re-delivery: The hirer must re-deliver the goods at the end of the hire period if he does not exercise the option to purchase within the stipulated time. Where delivery becomes impossible through no fault of the hirer e.g. through accidental destruction of the goods, he will be discharged from his obligation to return the goods unless the terms of the agreement indicate that the risk of accidental destruction or loss is to be borne by the hirer and that the obligation to re-deliver is a strict liability independent of negligence.
• Information and Document: Hire purchase requires the hirer to notify the owners of any change of address and to produce on request certain classes of documents which will enable the owner to see that the goods are covered by insurance and are not liable to be in jeopardy at the hands of a third party. Documents normally specified include receipt for insurance premium in respect of insurance on the goods and receipts for rent, rates and taxes payable in respect of the premises where the goods are kept. In agreements relating to motor vehicles, the hirer may also be required upon termination of the agreement or the hiring , to surrender to the owner the log book of the car and all licenses andi nsurance policies and certificates relating to the car.
  

Reception of Hire Purchase Agreement

There is no statute of general application for Hire Purchase in Nigeria. The first English statute on Hire Purchase was the Hire Purchase Act 1938 which formed the basis of the first Nigerian statute on the subject. Before 1965, the common law on Hire Purchase governed the subject in Nigeria, dealing with the formation of the agreement, information of what the parties have agreed and the general law of contract. The first Nigerian legislation on the subject was the Hire Purchase Act 1965 which was applicable in the Federal Capital Territory of Lagos alone. Its application was extended to the rest of the country by the Hire Purchase (Application) Decree No. 42 of 1966. The Hire Purchase system in Nigeria did not have immediate effect but came into force on 1st October 1968 by the Hire Purchase (Appointed Day) Order of 1968. The development of Hire Purchase in Nigeria has been slow and affected by similar factors as present when the system was developing in England. The expansion of the Hire Purchase system brought in abuse and injustice which were beyond the purview of the law of contract. Many were induced to enter into written agreements which they did not understand and suffered in consequence. The more unscrupulous Hire Purchase dealers deliberately encouraged their customers to incur commitments beyond their means with the object of allowing them fall into arrears towards the end of the hire period after most of the instalments had been paid so that the dealers would then exercise their power of possession commonl y called the snatch back and thus secure for themselves a considerable profit from the goods which they supplied without parting with the goods themselves. Matters were made worse with the rule laid down in Cramer v. Giles that the court would not intervene to protect the hirer in d e fault so that even if he has defaulted on the last instalment only having punctually paid all the previous installments, the owner will still been titled to terminate the agreement and repossess the goods immediately the default has arisen without having to return any part of the money hehad received. In Atere v. Dada Amoo (1957) WR N L R1 76,  the plaintiff took a lorry on hire purchase from the defendant and he completed repayment of 995 pounds out of hire purchase price of 1000 pounds. He then failed to pay the final instalment of 5 pounds when it was due. This breach of contract terminated the agreement and the owner was held entitled to recover possession of the lorry. Although repossession and resale of the vehicle enabled the owner to recover more than his actual loss of 5pounds,thecourtstill held that the owner was not obliged to account to the hirer for the excess recovered. This and other factors made the hire purchase system unattractive. The abuse and injustice of the hire purchase system in common law against the hirer include that:

• The hirer had no right to redeem the hired goods after default in his instalmental payment.
  
• If the hirer wrongfully returned the goods to the owner, before expiration of the hire period, he may remain liable to pay substantially the rent for the entire hired period. - J.O Lawrence v. Bentworth Finance Co Ltd (1966)NMLR87.
• There was no transfer of property or property interest in the goods to the hirer until he has exercised his option to purchase the goods even though he may have made substantial sums of payment toward the agreement. - Dictum of Lord Macnaghten in Helby v Matthews (supra)
• The Hirer has no legal interest in thegoodsrepossessedbytheownerdespitethefactthat Theirsubsequentsaleby the owner may yield substantial surplus over the hire purchase price.- Dictum of Butler Lloyd ACJ in D.O Williams v. U.A.C Ltd.
• The hirer may become liable to pay excess under the minimum payment clause on termination of the agreement. - Amusan & anor v. Bentworth Finance(Nig) Ltd (1966 )NMLR 276.
  

Remedies of the Owner

• Right  to bring an action for repossession S9(1 and 2), HPA: In common law, the owner has a right to reposses at default. However, under the Hire Purchase Act, the owner can only reposses if the hirer fails to pay up. This is exercisable when there are several defaults by the hirer. The right of the ownertoreposses is only enforceable by court action  - Civil Design Construction Nigeria Ltd v. SCOA Nigeria Ltd. Failure to institute a court action before exercise of the right of recovery of possession would determine the agreement. Upon the termination of the agreement, the hirer is released from all liability and he is entitled to recover in an action all sums paid under the agreement: and the guarantor is also liable to recover all sums in an action  for moneys had and received
  
• Right of to interim possession: This is exercisable during dependency of an action to recover possession. In S9(5), HPA, this is exercisable in respect of motor vehicles where 3/5 of the hire purchase price has been paid and the Act allows the owner to remove such vehicle pending the determination of the court action for recovery of possession and the owner will be liable to the hirer for any damage caused by such removal. This right is exercisable when there is a pending action in court - Ebohime v. Nigeria Tech company
  
• Damages for failure to take care of goods: S8(2), HPA provides that the owner may be entitled to damages where the hirer fails to take care of the goods.
• Action in tort for trespass, detinue, conversion or adverse possession - S14 (1)  of the Act. The owner' s right to recovery can be exercised without court order where:
  
  • the hirer exercises his right to terminate
  • the substantial part or relevant proportion of the hire purchase price is unpaid
  • the hirer voluntarily consents to return the goods
  • the goods are in possession of any person other than the hirer
  • the goods are abandoned or may be reasonably inferred to be abandoned.
    
   

 Remedies of the Hirer

• Exercise of Right to terminate: S8 of the Act provides that a hirer shall at any time before final payment as agreed be entitled to give a notice of termination in writing to any person entitled to recover any sums payable under the agreement - Incar Motors Nig. Ltd v. Elias Bus Transport Ltd, Amusan & Thomas v. Bentworth Finance Nig. Ltd, * Yeomancredit v. Apps. The conditionas stated for which the hirer may exercise his right to termination is said to be fundamental breach and the time is any time before final payment. When the hirer exercises this right, he must give a notice of termination to the owner or his authorised agent. He must have paid at least half the purchase price and other outstanding sums and must hand the goods back to the owner. The liability of the hirer after termination extends to all outstanding sums as well as any amount by which half of the hire purchase price exceeds the total sum paid and due immediately before termination or such less amount as specified in the agreement.

A hire purchase Agreement may be terminated by:

• performance- when both parties have fulfilled their obligation in the contract.
• subsequent agreement: the relationship of an owner and a hirer was initiated by an agreement and may also be ended by a fresh agreement. In the course of the first agreement, the parties may enter a fresh agreement to terminates the former, provided that the former is still executory. The consideration for the new agreement would consist in the covenant by both parties to release each other from their existing obligations under the former contract. In this case, it is said that the new arrangement has yielded the old for the new.- Abdulkareem v. Incar Nig.Ltd and Morris v. Baron & Co 
• a notice to terminate - S8(1): In common law, the agreement may be terminated by a notice given by any party to the other expressing his intention to terminate. Under the Act, the hirer's statutory right to terminate requires that he gives a notice in writing to the owner or any person entitled or authorized to receive money payable under the agreement.
• breach & repudiation from either parties: If a party renounces his obligation under the agreement or breaches any fundamental term in a way to show an intention to no longer be bound by the agreement, the other party is entitled to sue for such a Breach.Wherein the case of an owner, the hirer commits the fundamental breach, the owner is entitled to determine the agreement and claim his outstanding payment from the hirer
  
• frustration. This occurs where the subject matter seizes to exist without fault on both parties.- Bentworth Finance Ltd v. Alhaji Sanni Bakore
• the express terms of contract - where parties have inserted into the term of contract that it would be terminated on certain conditions.
• judgement of a court of competent jurisdiction
  

CIF

This happenswhenthebuyeristoremitmoneyforcostofinsuranceandfreight

Duties of Parties under CIF Contract

Thedutiesofthesellerare:

• to ship the goods attheportofshipmentascontainedinthecontract.
• to procure on behalf of the buyer a contract of carriage
• to arrange for insurance of the goods on terms which would benefit the buyer
• to prepare an invoice of the goods in a form acceptable in the tradd
• to tender all documents to the buyer in order to effect payment, obtain delivery or recover from the loss as the case may be.
  

 

FOB
Here, the selleragreestopaycostoffreight.
 

DUTIESOFPARTIESUNDERFOBCONTRACT
Thesellerhasdutiesof:

• supplyingthegoodsinaccordancewiththecontract
• deliveryofthegoodsbyplacingthemonboardthenominatedship
• paying up cost up to the pointofdeliveryonboardtheship
• obtaining export licence and bill of lading
  

5.Responsibilitytoproducethecommercialinvoiceandtendertothebuyer
The dutiesofthebuyerare:
1.Notifytothesellerthenominatedshipandportofshipment
2.Acceptdeliveryofgoods.
3.Paymentforgoodsandotherincidentalcharges

Insurance of FOB Contract

Generally, it is the seller's obligation to give notice to the buyer to insure the goods during transit.- S32(2), Sales of Goods Act. Where the seller fails to give such notice, the goods are deemed to be at his risk during transit. - Wimblesons & Co Ltd v.Rosenberg & Sons Ltd

Bill of Lading

The bill of lading serves three purposes as:

• an evidence of a contractofcarriage
• a receipt of the goods
• a document of title