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5 Reasons Why You Should Take up Pro Bono Cases as a Lawyer

Pro bono was created from a Latin word called pro bono publico, which means for the public good. Recently, pro bono publico has become popularly known as pro bono. It is described as a method of contributing to and helping those in need of legal representation and help. It is deeply rooted in the legal profession.Pro bono can be defined as an act done willingly by lawyers whereby free services are provided for those whose rights are breached. Lawyers act in the public interest by providing legal services at no or reduced cost because they do not seek financial gain but rather to ensure justice is served. There are numerous organizations in which lawyers offer pro bono services, some of which are hospitals, universities, churches, foundations, and national charities. It is done for the good of others and the good of the public.

Pro bono originated from America when a fight broke out between British soldiers and American colonists and there was a bloodbath where five Americans were killed. After this issue, John Adams decided to offer free legal representation and defended the British soldiers who were on trial for the killings, and he won. The American Bar Association provides that every lawyer should provide at least 50 hours of pro bono legal service per year according to Model Rule 6.1, and other countries should imitate this rule.

Pro bono cases take advantage of the skills of legal professionals to defend those who cannot pay for legal representation. This service is offered to minorities and other relevant populations that lack access to justice because they lack the funds. When lawyers make a constant effort to modify and refine the legal system through persuasion or solicitation, they render legal assistance to institutions that uphold social causes and create room for phone conversations to get quick legal opinions.

 

Pro Bono Week is set aside nationwide in October to appreciate and celebrate the thousands of legal practitioners that offer professional skills and expertise to ensure others get access to justice. The legal field has the obligation to render pro bono assistance written in its guiding principles, unlike other professions.

 

Lawyers can be very expensive. They are highly trained professionals with in-demand skills that make them able to charge increasingly high fees for their time, knowledge, and services.However, lawyers offer a portion of their time with a willingness to help the less privileged. as well as protecting the rights of disadvantaged groups, especially women and children in Nigeria. For instance, punuka solicitors' help reaffirmed the right of the girl child to inherit her father’s property in UKEJE V UKEJE and won at all levels. 

 


In Nigeria, the majority of indigent people lack access to legal representation. This is where pro bono lawyers step in as it is available in different areas of law like defense of prisoners on death row, accused awaiting trials, those threatened with loss of their place of abode, widows seeking a grant in respect of their spouse's property or when seeking divorce, amongst others. 


In early 2020, Law 360 published a report that lawyers from more than 100 firms contributed nearly 5 million hours to pro bono services. Pro bono includes a broad range of volunteering with a legal angle. The most important reason to do pro bono work is to provide benefit to the community that might otherwise not be available. The cost of skilled legal services is very high and beyond the reach of many.

Pro bono work gives lawyers the opportunity to make their clients feel empowered and hopeful in situations that they thought were dire and hopeless.

Many lawyers refuse to take up pro bono cases because it can be tedious and cumbersome without pay without paying attention to the multiple advantages they will tend to enjoy. There are numerous reasons why you should take up pro bono representation in your legal practice as a lawyer. They include:

 

1. It is an opportunity for a legal professional to appear in court and manage cases. 

It offers room to benefit from realistic revel in the legal world. It's an excellent avenue to get to recognize judges. A lawyer’s legal practice can be improved with the aid of problem-solving abilities, strategic skills, research skills, writing capabilities, speaking abilities, and thinking abilities. It provides a lawyer with the invaluable benefit of face-to-face client contact, interviewing, research, and drafting capabilities. It can also expose you as a lawyer to novel views on social and cultural issues distant from your experience. This will help you in your career and in life generally. Taking up pro bono cases indirectly offers training to new lawyers to draft courtroom filings or contracts, draft legal arguments, and appear in administrative or courtroom hearings. as well as broaden communication, deliberation, and negotiation skills. Pro bono work commonly offers attorneys greater duty and prepares them for the hard choice-making they may stumble upon at some point in their careers. In summary, pro bono representation is an effective way for young lawyers to boost their development from law school graduates to professional lawyers.


2. It is an avenue for networking.

As a legal professional, engaging in pro bono cases is important to gain critical networking possibilities. It is a means of establishing contacts with members of the global legal network. Through networking, law firms involved in pro bono cases tend to build relationships with different firms around the globe through collaboration on multi-jurisdictional tasks. It is an avenue to meet alumni and different advocates who proportion your ardour for helping others. It permits you to use the law as a tool to assist the ones around you in need. despite the existence of opportunities to practice in areas outside their day-to-day work. It offers a chance to collaborate with other lawyers in your corporation. It promotes healthy relationships and passes-firm opportunities in the future. It also enables attorneys to build networks with different legal professionals who are also working for legal aid foundations. Such networking results in a firm's improvement, which in turn is of great advantage to the company.


3. To expand and amplify your career choices and horizons. 


Taking over pro bono cases as a legal professional will help you find and determine specific areas of practice you might not be aware of or have access to take part in, in addition to offering a basis for extra seasoned bono cases and expert opportunities. It promotes a variety of revel in as pro bono cases avail lawyers the opportunity to exercise in a place of regulation that isn’t their usual work and day-to-day activity. For instance, a property lawyer can absorb pro bono cases on human rights, which allows such an attorney to brush up on a law they haven’t had full awareness of since law school. It permits lawyers to experiment in new areas of law and extend their horizons. It is a great opportunity for lawyers to step out of their comfort zone. It's a fantastic opportunity to help those in need get justice while also gaining exposure to unique areas of law. This broader understanding of the law and society can help support a legal professional’s ability to efficiently suggest and be a better adviser for their paying clients.


4. To exhibit your Expertise

It is an avenue to demonstrate the value you bring to the table as a lawyer as well as showcase your level of competence in the legal profession, in addition to giving back to the community by catering to people who cannot afford legal representation. You can improve your practice's reputation by exhibiting your dedication, professionalism, legal knowledge, critical thinking skills, and originality.Taking up pro bono cases can further attract new paying clients, peer referrals, or possible business partners. as well as improve your skills, such that pro bono cases give less experienced lawyers the opportunity to hone the abilities they'll need in day-to-day legal practice. Interviewing witnesses, taking depositions, participating in hearings, and even conducting some trial work are just a few examples. It permits lawyers to gain confidence and prepare for larger positions in their commercial work by doing so. However, working with people who aren't your regular clients as a lawyer can also help you improve your ability to communicate effectively with both current and potential clients. It allows lawyers to gain abilities that they would not have been able to gain through study or theory and to put what they’ve learned in class into practice in real-life situations.It enables lawyers to capitalize on their prior experience and interests. Taking cases on a pro-bono basis guarantees that professional experience and interest will be developed in relation to your career path and ambitions. Pro bono work is a fantastic way to develop one's craft in this difficult environment. While enduring the economic downturn, taking on pro bono matters allows you to gain valuable experience and sharpen your skills for the future. It frequently provides opportunities for young litigators to develop skills in situations that they would not otherwise have access to through paid work, and it can provide experience in a much broader range of subjects than typical commercial litigation. The opportunity to lead actual trials or appeals is perhaps the most obvious benefit of pro bono work for lawyers.
 

5.It is an avenue for client interaction.


Pro bono work can give clients an early opportunity for extensive and meaningful direct interaction. Pro bono employment, in contrast to paid work, frequently allows for immediate and significant client contact. Client relations are often the domain of senior associates or partners on the team, as any junior associate who has worked on large-scale commercial litigation knows. And it's no secret that associates in many law firms, especially the larger ones, are dissatisfied with the limited engagement they have with the firm's large corporate clients and the lack of immediate impact their work has as a result of this isolation. Pro bono work, on the other hand, frequently allows young associates to communicate directly with their clients. Connecting with clients gives critical learning encounters for youthful partners and extraordinary openings to create abilities basic to the litigator’s weapons store, such as dynamic tuning in, viable face-to-face interpersonal communication, and, where fitting, overseeing desires. Moreover, client interaction can be by and by fulfilling, permitting the young to relate directly with the individual or individuals who will be promptly and specifically affected by the attorney’s work. Pro bono cases regularly display openings for face-to-face contact with clients and the chance to see firsthand the impact the work of the attorney has on the lives of clients.
 
 

Builds Skills of Younger Lawyers

While we are talking about younger talent, pro bono helps young lawyers gain experience and build their skill sets. Tapping into younger lawyers’ energy and desire to help others is a win-win.


Enhances the Firm’s Reputation

Doing pro bono work is good for the firm’s image. Nowadays, many if not most awards and recognitions for law firms require information about pro bono activity. If your firm can’t say it provides this community service, the likelihood of receiving such honors takes a dive.

 

Provides a Sense of Self-Fulfillment

This may be the most-important aspect of pro bono. Pro bono work frequently reminds lawyers that they are practicing law to help people. The energy frequently carries over into their regular practices as well.

 

Encourages Diversity of Experience

Pro bono work frequently affords lawyers an opportunity to practice in an area of law that isn’t their usual focus. For example, when partnering with a legal aid clinic, a firm receives a list of cases that need lawyers and a corporate litigator might work on a benefits case; an IP lawyer might help someone with immigration status. Lawyers have the opportunity to brush up on law that they might not have considered since law school. Most find it rewarding, and sometimes even fun.


Provides an Opportunity for Collaboration

Along with opportunities to practice in areas outside their day-to-day work, pro bono cases also give lawyers the chance to work with other lawyers in their firms whom they may not otherwise know. That creates relationships and cross-firm opportunities in the future. It also helps lawyers build networks with other lawyers who are also working for legal aid foundations. That networking leads to business development, which also benefits the firm.


Appeals to New Recruits

When your firm is recruiting new lawyers, particularly from younger generations, those potential new members frequently ask about the firm’s commitment to pro bono. You want to have at least a somewhat-active pro bono program if you hope to attract new talent in the next few years.



 



In conclusion, pro-bono work gives lawyers the opportunity to make their clients feel engaged and cheerful in circumstances that they thought were desperate and sad. as well as make you satisfied and fulfilled as a lawyer.
 




The Subject of Affidavit in Law

An affidavit is a sworn testimony containing facts. It is a testimony usually sworn under an oath or in affirmation into the court. Before an affidavit is approved, it must have been sworn before a registry clerk or lawyer (a judge, officer and another person duly authorized to take affidavit). The commissioner for oath’s presence is also needed to witness the swearing of the affidavit. Though the commissioner for oath is the only person before whom an affidavit can be deposed to, in practice, it is the commissioner for oath that regulates and conducts oath-taking.

The word “affidavit” means a written statement of facts voluntarily made by an affiant (otherwise known as “deponent”) under an oath or affirmation administered by a person authorized to do so by law. Thus, an affidavit is a written document signed by a deponent stating certain relevant facts within the direct or circumstantial knowledge of the deponent. An affidavit could be sworn in a court or within the office of a notary public authorized to administer oath on behalf of the public. Where the affidavit is done in a court, it must be signed and sealed by the commissioner for oath of the court. Further rules and practice procedure governing affidavit evidence generally can be found under the Evidence Act 2011.

In Nigeria, there are many instances where an affidavit is necessary and should be done by the deponent. For instance, where a deponent need to provides evidence of his or her age in the absence of certificate of birth, an affidavit of declaration of age becomes indispensable.

An affidavit can be done in respect of the underlisted situations:

  • Change of name; affidavit of service by sheriffs;
  • Change of ownership (especially in motor vehicles)
  • Affidavit of means; Affidavit in lieu of tenement rate
  • Trustees; Administrators; Executors’ affidavit.
  • Affidavit of Guardianship;
  • Proof of ownership;
  • Authorization cases
  • Power of Attorney
  • Lost Items/Documents of title;
  • Loss of Sim Card/Replacement
  • Affidavits used in general practice litigation such as witness statement on oaths, affidavit in support of motions, affidavit required through official papers, MOUs, commercial documents requiring notarization or oath, among other areas.

In Maraya Plastics Industries Ltd & Anor v. Inland Bank of Nigeria Plc, the court of appeal per Omage JCA, stated thus, an affidavit is averments contained in a paper which are sworn before the commissioner for oaths. The affidavit has to be filed in the court registry. It is the swearing that makes the document an affidavit. Where the document is not sworn to, it is only a piece of paper, not an affidavit. Without oath, therefore there is no affidavit. The above is a general rule and there are exceptions provided for in the Evidence Act. Hence, an affidavit may not be sworn to on:

  • Religious grounds
  • Age – immaturity.

The above must be indicated by the officer taking the oath. The person deposing to an affidavit becomes the deponent.

Structure of an Affidavit

The relevant fact must be contained in the body of the affidavit. An affidavit is best kept succinct before deciding necessary contents which would be used in its coating. Same principles also apply in sentences and paragraphs. In the process of summarising the affidavit, important notes should not be unlocked while ensuring it’s sentences are limited to 10 words as that would be the main interest of the legal practitioner. An affidavit is complete where it obeys the S.O.S(simple, organised and short)principle.

  • Style of Proceeding: This usually surfaces on the initial section of all legal files. It states who issues and gives also the file number. The style of proceeding appears constant throughout the life of the court case unless the legal leader drifts in plans. It also enables the court registry staff to put the document in the right document. 3 points must be outlined at the top right corner of the style of proceeding:
    • Total number of the affidavit done(might have been past one)
    • Name of deponent (your name)
    • Actual date of the drafted affidavit
  • Deponent’s Statement: An affidavit is made by deponent as such, you have to identify yourself as the person swearing to the stated facts in the affidavit. Example: I, TomJones, of 132 Main Street, in the City of Vancouver, Province of British Columbia, electrician, MAKE OATH AND SAY THAT:

This statement made by the deponent comes at the beginning of each identified affidavit. It is detailed and projects everything concerning the occupation of the deponent.

  • Knowledge Statement: This clearly records two things:
    • Owning to you being a plaintiff, defendant, petitioner, or respondent
    • Owning to having personal knowledge of the information penned in the affidavit.
  • Body of the Affidavit: This is the most important part.
  • Ending of the Affidavit
  • Exhibits

Format of an affidavit

Affidavit is meant to state the material facts and allow the court to draw the conclusion. Commissioner for Agriculture, the Court of Appeal stated that an affidavit is a statement of fact which the maker or deponent has personal knowledge or which are based on information which he believes to be true.

No legal argument, conclusion or other extraneous matter must be included. When an illiterate or a blind person deposes an affidavit, the fact that such person is unschooled shall be stated there and there must be a notice. Also, the language in which the affidavit was deposed should be attached to that translated into the language of the court (English language).

Note that a legal practitioner handling the action on behalf of the applicant can depose to an affidavit as no law provides otherwise. However, where there are affidavit and counter-affidavit which are held to be contradictory, there would be need for the court to call oral evidence. When the legal practitioner is then called as a witness, problem would arise as to who will examine and re-examine.

By virtue of the Evidence Act, the following are what an affidavit should contain.
Statements of facts

The source of statement of facts which could be personal knowledge or otherwise
An affidavit is not to contain extraneous matter by way of objection, prayer, legal argument or conclusion. When fact is from another person, the particulars of the person shall be stated and the time, place and circumstances of the information shall also be stated.
TYPES OF AFFIDAVIT

    Affidavit in support of application
    Affidavit of urgency
    Affidavit of service
    Counter-affidavit
    Further and better affidavit
    Further, further and better affidavit
    Affidavit for the record.

CONFLICTS IN AFFIDAVITS

Where there are conflicts in affidavits, the court may do any or all of the following
Call for oral evidence to resolve the conflict.

Resolve the conflict from the documentary evidence attached to the affidavits were available and sufficient to do so.
Affidavit is needed in the following application:

Originating motion/application, summons, petition excluding election petition. NOTE THAT IN ELECTION PETITION, NO NEED TO FILE AFFIDAVIT



Legislation

The relevant section of Nigeria's 2011 Evidence Act that deals with affidavits is Articles 107-120. Articles 108-111 of the Act state that:

108. Before an affidavit is used in the Court for any purpose, the original shall be filed in the court and the original or an office copy shall alone be recognised for any purpose in the court.
109. Any affidavit sworn before any judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the court in all cases where affidavits are admissible.
110. Any affidavit sworn in any country other than Nigeria before (a) a judge or magistrate, being authenticated by the official seal of the court to which he is attached, or by a notary public; (b) the duly authorised officer in the Nigerian Embassy, High Commission or Consulate in that country may be used in the court in all cases where affidavits are admissible.
111. The fact that an affidavit purports to have been sworn in the manner prescribed in the preceding sections shall be prima facie evidence of: the seal or signature, as the case may be, of any such court, judge, magistrate or other officer or person mentioned in, or appended or subscribed to, any such affidavit; and the authority of such court, judge, magistrate or other officer or person to administer oaths. (Nigeria 2011)


Article 10(1) of Nigeria's federal Oaths Act provides that:

10. (1) It shall be lawful for the Chief Justice of Nigeria, a Justice of the Supreme Court, The President and Justices of the Court of Appeal, and any judge of the Federal High Court, a notary public, and any commissioner for oaths, to administer any lawful oath or to take any lawful affirmation or affidavit which may be required to be taken or made for the purpose of complying with the requirements of any law for the time being in force throughout Nigeria or elsewhere, except where such procedure is expressly or by necessary implication manifestly excluded by the terms of such law as aforesaid and the presumption shall be against any such exclusion. (Nigeria 2003)

Types of Affidavits

Sources indicate that there are two categories of affidavits: those used in court proceedings and those used in non-court proceedings (Babalakin & Co. 15 Oct. 2014; Notary Public 16 Oct. 2014; NBA 20 Oct. 2014). In correspondence with the Research Directorate, a representative of Babalakin & Co., a Nigerian law firm specializing in commercial litigation and arbitration (Babalakin & Co. n.d.a), and whose partners include two Senior Advocates of Nigeria (SAN) [1] (ibid. n.d.b), indicated that the most common types of affidavits available in Nigeria include:


Written statements "which accompany processes used to initiate court proceedings in court in proof of a party's case before the court" (Babalakin & Co. 15 Oct. 2014);

Affidavits of facts "in support of applications filed in court which by the Rules of the court(s) must accompany all motions" (ibid.);

Affidavits of facts "which are generally filed to bring facts to the attention of a court" (ibid.);

Affidavits "verifying the loss of documents or other property" (ibid.);

Affidavits for a change of name;

Sworn declaration of age in lieu of a birth certificate; and

Affidavits "of good conduct" (ibid.).

In correspondence with the Research Directorate, a Deputy Chief Registrar of the Ogun State Judiciary noted the following two types of available affidavits:

Statement of facts "in support of cases in Court" (Ogun State 14 Oct. 2014). This is a "written deposition on oath in support of cases in Court, pursuant to High Court Procedure Rules" (ibid.).

"Loss of vital documents," for example "birth certificate, death certificate, shares certificate, drivers license, vehicle particulars, Identity cards, etc" (ibid).

3. Authorities Who Can Issue and Swear Affidavits

The Babalakin & Co. representative, affidavit indicated that, pursuant to Article 10 of the federal Oaths Act, the following persons are authorized to administer oaths and therefore issue affidavits under federal law in Nigeria:

Chief Justice of Nigeria;

Justices of the Supreme Court of Nigeria;

President and Justices of the Court of Appeal;

Judges of the Federal High Court;

Notaries Public; and

Commissioners for Oaths. (Babalakin & Co.15 Oct. 2014, 3)

Commissioners for Oaths are officers of the court designated to administer oaths (Ondo State n.d.; Notary Public 16 Oct. 2014). According to the Deputy Chief Registrar, any court registrar "not less than grade level 7" could act as a Commissioner for Oaths (Ogun State 20 Oct. 2014).

The Babalakin & Co. representative further explained that at the state level, pursuant to "oaths laws of the various states" (ibid.), affidavits are issued by the following categories of persons:

The Chief Judge of the State;

Judges of the High Court [of the state];

Magistrates;

Notaries Public; and

Commissioners for Oaths. (ibid.)

The same source indicated that "the rules, procedures, and persons before whom affidavits and oaths may be deposed are generally uniform in all states" (15 Oct. 2014, 5).

3.1 Affidavits for Court Proceedings

Article 109 of the 2011 Evidence Act provides that:

109. Any affidavit sworn before any judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the court in all cases where affidavits are admissible. (Nigeria 2011)

However, sources state that for matters of court proceedings, affidavits are sworn by a Commissioner for Oaths (Ondo State n.d.; NBA 20 Oct. 2014; Notary Public 16 Oct. 2014). In correspondence with the Research Directorate, a Notary Public based in Lagos state said that it is a "matter of practice" and "revenue drive" that affidavits used in court proceedings are "limited" to being issued by a Commissioner for Oaths (16 Oct. 2014). Similarly, an article published in the Nigerian newspaper the Punch reports that "[t]he basis for the practice (that a deponent must appear before the Commissioner for [O]aths to complete the process of an affidavit) [for court proceedings] seems to lie in practice directions issued to registrars and court officers" (The Punch 3 Mar. 2014). The Notary Public indicated that magistrates can also swear affidavits for use in court proceedings (16 Oct. 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

In correspondence with the Research Directorate, the Deputy Chief Registrar of the Ogun State Judiciary explained that affidavits sworn before the Commissioner for Oaths can be commissioned in the customary courts, magistrate courts, or the state's High Court of Justice; however, "written deposition on oaths which is in the form of statements of facts filed in court could only be done at the High Court" (Ogun State 14 Oct. 2014).

3.2 Affidavits for Non-Court Proceedings ('Private' or 'Personal' Affidavits)

According to sources, a Commissioner for Oaths and a Notary Public can both swear and issue private affidavits [affidavits used in non-court proceedings] (Nigeria 20 Oct. 2014; NBA 20 Oct. 2014; Notary Public 16 Oct. 2014). The Notary Public noted that notaries "mainly deal with private affidavits, not one[s] for use in judicial proceedings" (16 Oct. 2014).

4. Procedures to Obtain an Affidavit

Article 117(4) of the 2011 Evidence Act provides that

117(4). An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark, in the presence of the person before whom it is taken. (Nigeria 2011)

Similarly, sources report that deponents to an affidavit must appear in person before a Commissioner for Oaths (AllAfrica 14 Mar. 2011; NBA 20 Oct. 2014) or a Notary Public (ibid.).

Articles 108, 115 and 117-119 of the 2011 Evidence Act describe the procedural requirements for obtaining an affidavit and are attached to this Response, including Article 117(1)(b) which provides that deponents are required to state their full name, trade, profession, residence, and nationality (Nigeria 2011). In a telephone interview with the Research Directorate, a representative of the Nigerian Bar Association (NBA) explained that the procedure to obtain a sworn affidavit is as follows:

The deponent "will approach either a Commissioner for Oaths at the court, or a notary public," noting that affidavits for court proceedings are sworn by a Commissioner for Oaths (NBA 20 Oct. 2014).

The deponent "will pay the requisite fee and be issued a receipt," noting that a receipt will be given if the affidavit is done in a court.

The identity of the deponent "will be verified,". Notaries do this by checking a passport or national ID card". Also, the Commissioner for Oaths or Notary will verify "the facts of the deponent's statement by asking questions and requesting the deponent to present any evidence, as needed, to ascertain the facts".

The deponent "will swear to the information and sign the affidavit" and then the Commissioner for Oaths or Notary "will sign and seal the affidavit".

Affidavits are obtained by simply deposing to the contents before/in the presence of the designated officer/person(s) authorized to administer oaths/affidavits" (Babalakin & Co. 15 Oct. 2014). In correspondence with the Research Directorate, a Senior Advocate of Nigeria (SAN), who is also a Professor of Law at Ebonyi University, said that the procedure to obtain an affidavit either involves the person preparing the affidavit in advance, going to the court registry and swearing to the affidavit before the Commissioner for Oaths, or, if he has not prepared the affidavit in advance, he can have one typed out at the registry, which is then sworn before the Commissioner for Oaths (16 Oct. 2014). According to the SAN, people who are illiterate or do not have assistance to prepare their affidavits will use this method (ibid.). Article 119 of the 2011 Evidence Act provides that affidavits sworn by illiterate or blind persons must include a jurat that states that the contents of the affidavit have been read to, and understood by, the deponent (Nigeria 2011).

Examples of State-Specific Procedures to Obtain a Court-Issued Affidavit 

Ondo State Judiciary: The Ondo State Judiciary website provides information about how to obtain a sworn affidavit and indicates that an affidavit is sworn "by presentation of the document to the officer [Commissioner for Oaths] after payment of prescribed fees. It is important that a receipt is presented before the deponent".

Ogun State Judiciary: According to the Deputy Chief Registrar in Ogun state, the procedure to obtain an affidavit is as follows:

The person will state in a written form, his name, which must be in full not the initials.

His sex, tribe, address, religion and nationality.

The applicant will depose to the information that he wants to state, which must be facts and not law. It must be duly signed before the Registrar or Commissioner [for Oaths].

The Registrar must identify the person who is swearing to the oath. The identification of the deponent is very important; it must be ascertained before the affidavit is commissioned. (Ogun State 14 Oct. 2014)

The same source explains that the deponent is identified through personal identification documents such as a "National Identity Card, National Driver's Licence, International Passport, Voters Registration Card, Passport photographs, etc." (Ogun State 20 Oct. 2014). Once the deponent is identified by the Registrar, the Registrar obtains the requisite fees, and

issues a receipt, stamps the affidavit with the official stamp, he writes the receipt number on the stamp on the affidavit. The deponent is put on Oath and his document is later commissioned. The serial number of the receipt is quoted on the affidavit. (Ogun State 14 Oct. 2014)

According to the same source, there is no standard form to be used for a Statement of Facts used in court, but a passport photograph is displayed on this type of affidavit.

Provision of Identity Documents and Passport Photographs in the Issuance of Affidavits

6.1 Federal High Court Practices

According to an article published by AllAfrica, at the Federal High Courts throughout the country, the deponent to an affidavit must appear in person before the Commissioner for Oaths and attach two copies of their passport-sized photograph to the affidavit, before the Commissioner for Oaths signs the affidavit (AllAfrica 14 Mar. 2011). Similarly, the SAN indicated that in the Federal High Court the person must appear in person, and attach a passport photograph to the affidavit (SAN 16 Oct. 2014).

The Notary Public indicated that the Federal High Court in Abuja asks deponents for identification and that this is "strictly enforced" (Notary Public 16 Oct. 2014).

6.2 State and Federal Capital Territory (FCT) Court Practices

AllAfrica reports that the Federal High Court practice [of appearing in person and attaching passport photos to the affidavit] does not extend to state level high courts and magistrate courts (AllAfrica 14 Mar. 2011). Similarly, according to the SAN, "in the different jurisdictions of Nigeria ... some of the State High Courts do not require the deponent to appear. Anybody can appear with an affidavit and it can be sworn. The Commissioner for Oaths has no way of knowing who the deponent is" (SAN 16 Oct. 2014). Likewise, according to the Notary Public, "provision of deponent's identity is a necessary requirement but it is often not enforced by many court registries in Nigeria" such as Magistrate and High Courts in various states (Notary Public 16 Oct. 2014).

An Assistant Superintendent with the Nigeria Police Special Fraud Unit in Lagos, noted that in the FCT in Abuja, Commissioners for Oaths ask for identification from a deponent (Nigeria 18 Oct. 2014). The SAN indicated that in the FCT High Court in Abuja, the person must appear in person, and attach a passport photograph to the affidavit (SAN 16 Oct. 2014).

According to the NBA representative, the practice of asking the deponent for identification "does not happen in the court issued affidavits by Commissioners for Oaths, unless it's for court proceedings" (20 Oct. 2014).

According to the Assistant Superintendent, in Lagos and "other states," it is not a requirement that the Commissioner for Oaths ask for identification from the deponent, however, a passport photograph of the deponent is "usually required," (Nigeria 18 Oct. 2014). The Notary Public indicated that Lagos, Ogun, and Delta states require a passport photo be affixed to the affidavit prior to it being sworn to (16 Oct. 2014).

6.3 Notary Public Practices

According to the Notary Public, Notaries Public "strictly" enforce the requirement that a deponent provides identification (16 Oct. 2014). The NBA representative indicated that Notaries Public check identity documents such as the deponent's passport or identity card (16 Oct. 2014). In contrast, the Assistant Superintendent stated that notaries "do not ask for identification from the deponent" prior to swearing an affidavit (Nigeria 20 Oct. 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

7. Affidavit Fees and Issuance of Receipt

7.1 Court-Issued Affidavits

According to an article posted by AllAfrica, "the official fee for obtaining an affidavit in most magistrates and State High Courts is 250 Naira" [approximately C$1.70] (14 Mar. 2011). According to the Babalakin & Co. representative, affidavit fees vary depending on the court and the purpose of the affidavit (15 Oct. 2014). According to the SAN, a receipt is issued to the deponent and the court registry also keeps a copy of the receipt (SAN 16 October 2014). The Assistant Superintendent indicated that a fee will be paid and "revenue receipts are usually issued" (Nigeria 14 Oct. 2014).

7.2 Notary Public-Issued Affidavits

According to the NBA representative, notaries "do not usually issue receipts. They will mark on the affidavit that a fee has been paid and will sign it" (20 Oct. 2014). Similarly, according to the Assistant Superintendent, "it is not a common practice by the Notary Public to issue a receipt because the amount of money they do charge is not uniform" (Nigeria 20 Oct. 2014).
 

Verification of Affidavits: According to the Assistant Superintendent, the Police Special Fraud Unit relies on the "issuing authority to verify all documents," including affidavits (Nigeria 14 Oct. 2014). Similarly, the Notary Public indicated that for affidavits sworn in the courts, the Assistant Chief Registrar of the court is "usually the authority to confirm genuineness of any purported affidavit" and that for affidavits sworn by notaries, the Notary Public who issued the affidavit can be contacted for confirmation of the genuineness of the document (16 Oct. 2014).

Security Features on Court-Issued Affidavits: There are no security features on an affidavit (NBA 20 Oct. 2014; Nigeria 20 Oct. 2014; ibid. 14 Oct. 2014). According to the Assistant Superintendent, it is "almost impossible" to determine the authencity of a document by an "[on the] spot assessment" (ibid.) According to the NBA representative, an affidavit will carry "the signature of the deponent, the signature of the Commissioner for Oaths/Notary that swore the document, and the seal/stamp of the court/Notary" (NBA 20 Oct. 2014). For court-issued affidavits, the SAN indicated that every court has its own rubber or plastic seal, and the Commissioner for Oaths will affix the seal of the court to the affidavit, and sign his name at the bottom of the affidavit (16 Oct. 2014).


Notary Public-issued affidavits will carry the stamp of the notary that issued the affidavit (NBA 20 Oct. 2014; Nigeria 20 Oct. 2014) and "sometimes a seal and the name of the Notary Public" (ibid.). According to the Notary Public, a notary will "usually put his seal bearing his name and Supreme Court enrolment number" (16 Oct. 2014).

8.2 Receipts and Court Registry Verification of Court-Issued Affidavits

The representative of Babalakin & Co. indicated that judicial officers and other court officials are required to keep a record/copy of affidavits deposed before them, and the authenticity of an affidavit is verified by checking the records of the authority that administered the affidavit (15 Oct. 2014, 6). The Assistant Superintendent stated that "genuinely issued affidavits are usually properly documented" and can be "verified" as the Commissioner for Oaths "usually keeps a copy with the court registry," noting further that "the only way the court can determine the authenticity of an affidavit is to consult their records" (Nigeria 14 Oct. 2014.). The Deputy Chief Registrar of Ogun State indicated that in order to determine if an affidavit is genuine, the receipt number is confirmed in the court records, and the signature of the Commissioner of Oaths and the stamp on the receipt are verified (Ogun State 14 Oct. 2014).

8.3 Availability of Fraudulent and Irregularly-Issued Affidavits in Nigeria

According to the Babalakin & Co. representative, it is "difficult to empirically ascertain the prevalence of inauthentic affidavits. However, it is safe to say that a significant number of affidavits are procured on behalf of others" (Babalakin & Co. 15 Oct. 2014). The NBA representative stated that fraudulent affidavits are "widely available" (20 Oct. 2014). AllAfrica indicates that "touts" [2] and "court officials" procure affidavits for those who need them by charging "exorbitant fees" (14 Mar. 2011). The source reports that

[t]ypists hanging around the court premises with [makeshift] table and chairs alongside manual typewriters, charge each prospective declarant between N1,200 and N3,000 depending on the purpose of the affidavit, after which they ask their clients to wait around for them. They dash in, get the affidavit prepared, signed, sealed and ready to deliver. (ibid.)

The Assistant Superintendent noted that "the seal does not establish [an affidavit's] authenticity as all fake ones also do carry [the] seal" and that court staff involved in fraud will "pocket" a deponent's money, forge the signatures of the Commissioner for Oaths and return the affidavit with "signatures and seal" (18 Oct. 2014). The Notary Public noted that the official stamp and signature of the Commissioner for Oaths can "easily be forged" (16 Oct. 2014).

The Assistant Superintendent stated that court officials are involved in the procurement of affidavits for the purpose of private monetary gain (14 Oct. 2014). AllAfrica similarly reports that some court officials circumvent proper procedures in order to obtain money from applicants, noting that the practice of court officials procuring fraudulent affidavits occurs "openly" (AllAfrica 14 Nov. 2011). Likewise, the Babalakin & Co. representative indicated that it is "not unusual for persons to arrange to obtain affidavits by proxy without being physically present" and that "non-judicial staff of the courts have been known to arrange and procure affidavits for fees" (Babalakin & Co. 15 Oct. 2014, 6). The Assistant Superintendent stated that "the majority" of deponents do not "always" get to see the Commissioner for Oaths (Nigeria 18 Oct. 2014).

An article published by AllAfrica found that at the Ikeja High Court in Lagos, affidavits were obtained "by proxy" after the payment of a bribe to court clerks and office assistants (AllAfrica 14 Mar. 2011). The same article found that the practice also occurs:

At the magistrate court in Sabo-Yaba in Lagos state;

In the Bodija district in Ibadan state;

In Benue state at state and area courts within Makurdi, Otukpo, Ugbokpo, Gwer, Gboko and Katsina-Allah; and

In Kogi state (ibid.).

According to the Notary Public, affidavits are "rampantly forged" in Nigeria, particularly in the states of Lagos, Oyo, Delta, Ogun, and Osun (16 Oct. 2014). Similarly, the Assistant Superintendent notes the "massive procurement of fake documents, including affidavits," in the same states, as well as in Ondo state (Nigeria 18 Oct. 2014). The same source notes that the states of Ekiti and Kwara are also "known for irregular documents" (ibid.).

According to an article on the Nigerian media website Daily Newswatch, touts are visibly present outside the High Court in Lagos (Daily Newswatch 26 Oct. 2013). According to the article,

[f]or any customer that wants to purchase a sworn affidavit, the fee is N1,500, maybe as low as N750, depending on the customer's bargaining power. ... After agreeing on the fee, and providing the necessary information, the customer is made to wait under a tree or somewhere outside the court premises while the affidavit is 'manufactured' at a nearby kiosk with an unofficial stamp bearing the High Court seal. (ibid.)

The Nigerian newspaper the Punch reports that in Lagos, sworn affidavits, including "sureties, certificates of occupancy, tax clearance certificates" and documents for meeting bail conditions, can be obtained from touts on "very short notice" (The Punch 8 Dec. 2012).

9. Access to Genuine Affidavits

According to AllAfrica, some people obtain an affidavit from touts because they are not aware of the proper procedure to obtain an affidavit, while others wish to "avoid the perceived bureaucracy in the courts" (14 Mar. 2011). The Assistant Superintendent similarly indicated that when applying to obtain an affidavit, a person will sometimes approach the source with the intention of obtaining the affidavit genuinely; however, "because of [the] endemic nature of corruption in the system, the applicant can be given an affidavit that does not come from the right source and he or she will innocently collect it" due to the lack of security features on the affidavit (Nigeria 14 Oct. 2014).

According to the Assistant Superintendent, persons living in rural areas may not know how to obtain a sworn affidavit and "can fall victim [to] a document vendor" (Nigeria 18 Oct. 2014). The Babalakin & Co. representative indicated that persons in rural areas where there are few or no courts can face challenges in obtaining affidavits as there is a lack of availability of persons authorized to administer oaths (15 Oct. 2014).

10. Efforts by Authorities to Prevent Production of Fraudulent Affidavits

The Punch reports that, according to the Chief Registrar of the Ikeja High Court in Lagos, the court has posted public notices against the use of touts and has called in the police to remove them, but as the court is a "public place," there is a limit to what can be done (The Punch 8 Dec. 2012). AllAfrica reported on a 2011 interview with a High Court judge in Lagos who stated that the fraudulent practices at the court involve touts, court clerks and top court officials, and that state efforts to "check" the practice have "not yielded result[s]" (AllAfrica 14 Mar. 2011). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to an article by the Daily Times newspaper in Nigeria, the FCT High Court fired six workers in 2011 for their involvement in forging affidavits and declaration of age documents (Daily Times 12 Oct. 2011). The same article reports that, according to the Registrar of the FCT High Court, in an effort to stop the use of "fake forms," the Chief Judge of the High Court had arranged for the printing of "special affidavit forms" with "security markings" which were reportedly "rolled out for all the courts'" (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.



 

 

 

 

 

 How to Get an Affidavit in Nigeria  

An affidavit is a written or printed document that declares or states facts, voluntarily provided by the party and taken before a person authorized by law to administer such an oath or confirmation. Facts in an affidavit are confirmed by the oath.

Process of Affidavits
Before an affidavit is used in any Nigerian court for any purpose, the original document must be filed in the court. Only the original or office copy can be recognized for any purposes. Any affidavit sworn before any judge, officer or other authorized persons can be used in the court in all cases where an affidavit is needed. An affidavit must be signed under the authority of a court judge, magistrate or any other officer authorized to administer oaths.

Any affidavit sworn in any other country before an authorized person such as:

⦁    a judge or magistrate, and authenticated by the official seal of the notary public or court,
⦁    a duly authorized officer in the Nigerian Embassy, High Commission or Consulate in that country, can be used in court in all cases where affidavits are admissible.

As long as an affidavit has the seal or signature of a court, judge, magistrate or another officer, it is considered authentic and can be presented in any court.

TYPES OF AFFIDAVITS
⦁    Affidavits of facts: This is an affidavit filed to bring facts to the attention of a court for authorization
⦁    Affidavits that verify the loss of documents or other property
⦁    Affidavits for a change of name: This is used to declare a change of name
⦁    Affidavit showing declaration of age in place of a birth certificate
⦁    Affidavits that verify good conduct
⦁    Affidavit which state facts in support of cases in court: This is a written deposition on oath in support of cases in court
⦁    Affidavits to verify the loss of vital documents such as birth certificate, death certificate, shares certificate, drivers’ license, vehicle particulars, Identity cards, etc.

AUTHORIZED PERSONS TO ISSUE AND SWEAR AFFIDAVITS
Below is a list of people authorized to issue and swear affidavits in Nigeria:
⦁    Chief Justice of Nigeria
⦁    Justices of the Supreme Court of Nigeria
⦁    President and Justices of the Court of Appeal
⦁    Judges of the Federal High Court
⦁    Notaries Public
⦁    Commissioners for Oaths: These are court officials (court registrars) who are not below grade 7 and designated to administer oaths.

At the state levels in Nigeria, affidavits used for court proceedings can be issued by the
⦁    The Chief Judge of the State
⦁    Judges of the High Court (of the state)
⦁    Magistrates
⦁    Notaries Public
⦁    Commissioners for Oaths (Court officials)

The rules and procedures as well as the authorized officials before whom affidavits and oaths may be received are uniform in all Nigerian states.

AFFIDAVITS FOR NON-COURT PROCEEDINGS, OTHERWISE KNOWN AS PRIVATE OR PERSONAL AFFIDAVITS
Private or personal affidavits are those affidavits that are not used in judicial proceedings. A Commissioner for Oaths and a Notary Public are authorized to swear and issue private affidavits (used in non-court proceedings)

HOW TO GET AN AFFIDAVIT IN NIGERIA          
According to the Nigerian constitution, below are requirements to obtain an Affidavit:

An affidavit must be signed by the deponent when sworn. If he or she cannot write or is blind, it must be marked by him personally in the presence of the Commissioner for Oaths.

Deponents to an affidavit must appear in person before a Commissioner for Oaths

Deponents to an affidavit are required to state their full name, trade, profession, residence, and nationality

THE PROCEDURE TO OBTAIN A SWORN AFFIDAVIT IS AS FOLLOWS:
The deponent (person who wants to swear an affidavit) will approach either a Commissioner for Oaths at the court or a notary public. Note: Affidavits for court proceedings are sworn by a Commissioner for Oaths.

The deponent is required to pay the requisite fee and is issued a receipt. Note: An affidavit sworn at a court will always be given a receipt.

The notary or Commissioner for Oath must verify the identity of the deponent by checking a passport or national ID card

The Commissioner for Oaths or Notary must verify the facts of the deponent’s statement by asking questions and requesting the deponent to present any other evidence to ascertain the facts

The deponent will then swear to the information and sign the affidavit

The Commissioner for Oaths or Notary is required to sign and seal the affidavit

In summary, affidavits are obtained by simply affirming the contents in the presence of the authorized officials. The deponent goes to the court registry for swearing.

SECURITY FEATURES ON COURT-ISSUED AFFIDAVITS
Although there are no security features on an affidavit and it is almost impossible to determine the authenticity of a document right on the spot, there are certain elements that you can check on an affidavit to know if it is genuine or not.

An affidavit will include the following:

⦁    The signature of the deponent
⦁    The signature of the Commissioner for Oaths/Notary that swore the document
⦁    The seal/stamp of the court/Notary

Every court has its own rubber or plastic seal used on court-issued affidavits. The Commissioner for Oaths will affix the seal of the court to the affidavit, and sign his name at its bottom.

Notary Public-issued affidavits include the following:

⦁    The stamp of the notary that issued the affidavit
⦁    A seal and the name of the Notary Public
⦁    Supreme Court enrolment number


Biography of Dr. Babatunde Ajibade

One of the fine lawyers from the South West doing the nation proud is Dr Babatunde Ajibade. With a career spanning over 30 years, Ajibade is a perfect description of the ‘let your achievements speak for you’ kind of person. Humble, resilient and unassuming, Ajibade’s career is unarguably one of the few that stands tall amidst several noisy, controversial and corruption stained lawyers in the country.


Dr. Babatunde Ajibade, SAN is the Managing Partner of S. P. A. Ajibade & Co. He was called to the Nigerian Bar in December 1989 and elevated to the rank of Senior Advocate of Nigeria in December 2007. He was the first member of his Nigerian Law School set of 1989 to be so elevated.


Dr. Ajibade obtained an LL.B Degree from the University of Ife (now Obafemi Awolowo University) in 1988. He obtained an LL.M Degree in Corporate and Commercial Law from King’s College, University of London in October 1990 and a Ph.D Degree in Private International Law from the same university in October 1996.


Dr. Ajibade is a Fellow of the Institute of Advanced Legal Studies in London, an International Practice Fellow of the International Bar Association and a Fellow of the Chartered Institute of Arbitrators, United Kingdom.


He combines the role of an advocate, a corporate/commercial solicitor, an administrator and a reformer and has excelled in each of these areas.


Dr. Ajibade is happily married with four children.


Dr. Ajibade, SAN is a strong advocate of a united Bar. He is of the strong persuasion that to solve the many challenges facing the profession, we must be united. According to Dr. Ajibade, SAN, the dividing lines we draw between the Bench and the Bar, between corporate/commercial lawyers and advocates, between law officers and the traditional Bar, between in-house counsel and external counsel, between young lawyers and senior lawyers and even the divisions across nationalities and ethnicities hamper rather than aid the course of the legal profession in Nigeria. While different segments of the profession have peculiar challenges, Dr. Ajibade, SAN believes that to successfully fight off threats to the rule of law, encroachment into our profession by foreign lawyers and other professions in Nigeria, and a myriad of other problems the legal profession faces, we must take steps to unite the Bar.


Dr. Babatunde Ajibade, SAN is the Managing Partner of S. P. A. Ajibade & Co. Since his admission to the Nigerian Bar in 1989, Dr. Ajibade has been engaged in active and full-time corporate and commercial practice, save for time taken out to pursue his postgraduate education. His area of academic specialization is in the field of Private International Law, with particular interest in the law relating to the recognition and enforcement of foreign judgments.


Dr. Babatunde Ajibade, S.A.N., FCIArb is the Managing Partner of S. P. A. Ajibade & Co.  Dr. Ajibade’s area of academic specialisation is in the field of Private International Law, with particular interest in the law relating to the recognition and enforcement of foreign judgments.


Dr. Ajibade has been involved in all aspects of corporate and commercial dispute resolution in Nigeria, and has expertise in litigation involving the recognition and enforcement of foreign judgments, banking law, intra-company shareholder disputes, as well as insolvency and insurance litigation.  Dr. Ajibade also has extensive experience in all aspects of commercial arbitration, both domestic and international, as well as in investment treaty arbitration.


Significant Clients include Tidewater Marine International Inc, Technip S.A., Gitto Costruzioni Generali Limited, Cybele Cosmetics Limited


5.         Honeywell Group Limited


6.         7UP Bottling Company Plc


7.         Fan Milk Plc, First Bank of Nigeria Limited, Union Bank of Nigeria Plc and Sahara Group among others


Dr. Ajibade also has extensive experience in corporate commercial practice and company secretarial practice and has been involved in the Nigerian capital market as solicitor in several public offers of securities as well as in mergers and acquisitions. He is a founding member of the Capital Market Solicitors Association (CMSA). The CMSA was founded by Chief Anthony Idigbe, SAN in 2001 and Dr. Ajibade, SAN was its pioneer Secretary 2001 – 2007, its Vice-Chairman 2007 – 2011 and its Chairman 2011 – 2013. He was also a member of the Rules & Regulations Sub-Committee of SEC’s Capital Markets Committee from 2002 – 2004 and its Vice-Chairman from 2004-2010.


Some of the transactions he has been involved in are:

Led the team that acted as solicitors to Consolidated Breweries Plc in its merger with Nigerian Breweries Plc;

Led the team that represented SRM Partners Limited in its acquisition of First Registrars Limited, a wholly owned subsidiary of FBN Holdings Plc;

Represented Broad Communications in the divestment of its shareholding in Airtel Nigeria Plc;

Represented a Nigerian insurance brokerage company in its acquisition by and merger with a multinational insurance company;

Led the team that represented First Bank of Nigeria Plc in its suspended N500 Billion debt issuance programme.

 

Dr. Ajibade has been appointed to the Boards of a number of high profile companies and organisations, including Vee Mobile Nigeria Limited (now Airtel Plc), Ecobank Transnational Incorporated, Lome, Togo, Fan Milk Nigeria Plc (a wholly owned subsidiary of Danone France), and the International Chamber of Commerce, Nigeria.

As regards his service to the bar, Dr. Ajibade, SAN’s career has been characterised by quiet and efficient service to the legal profession. A few instances of his involvements are listed below:


Member of the NBA National Executive Committee (NEC) between 2016-2018 and from 2018 till date.


Member, NBA Legal Services Trade Mission to the United Kingdom, 2009.

Council Member, NBA-SBL 2014 to 2018.


Member, NBA Appointed SBL Council March 2011 – January 2012.

Chairman, Nominations Committee, NBA-SBL, 2011.


Chairman, Capital Market Solicitors Association between 2011-2013.

Member, NBA Liberalisation of Legal Services Working Group, 2012.


Chairman, Law Week Planning Committee NBA, Lagos Branch, 2014.

Chairman, Conference Planning Committee, NBA-SBL, 2016.


Vice-Chairman, NBA-SBL Committee on Banking, Finance and Insolvency, 2012 – 2016.

Chairman, Judiciary Relations Committee, NBA Lagos, 2019 till date.


https://spaajibade.com

Media Law Problems Faced by Creatives and Entrepreneurs

 Dear Creative & Entrepreneur,
You are likely facing these Media Law Problems

Top legal issues that today’s journalists, creators, and entrepreneurs have in common.

1. Defamation, Privacy, and Accuracy of Information – The best independent journalism projects, bloggers, filmmakers, early stage nonprofits, and artists share work that shines a light onto the practices of the most powerful individuals, businesses and governments in our world. But shining this light requires being accurate with the information that is published online, and compliance with a web of state and federal privacy laws. Without the services of an in-house legal department to do a pre-publication review, and often without an entity as a shield, many assume enormous personal legal liability when they share controversial work. Dealing with defamation and privacy issues before a work is published, and having somewhere to turn when disputes arise can help make sure a project doesn’t die on the vine.

2. Access to public records – It's clear that journalists need access to public records, but you may not realize that documentary filmmakers, researchers, historians, archivists, and a variety of entrepreneurs and nonprofits trying to take raw data and turn it into actionable information need it, too. Accessing this information requires untangling a complex web of state and federal law. Navigating this web be a bit easier with the help of attorneys. And in the case where a lawful request is denied; an attorney can bring formal litigation to ensure that the records are released.

3. Recording laws – When can you audio or video record someone secretly? When do you need a release? Then, once you make your recording, how are you able to reuse that recording and the image of any individuals?  Photos, video, and audio are the preeminent multimedia of our day, so knowing the rules around their creation and dissemination has become critical to everyone who shares multimedia online.   This is typically state law which means multiple lawyers may need to be consulted about laws in different states. Without an effective network creators can plug into for advice, all too often they “wing it”, only to end up running into expensive legal problems later.

4. Responding to illegitimate takedowns – We rely on a private intermediary services to share content with each other such as websites, apps, and webhosts.  Unfortunately, bogus content takedowns often falsely rely on copyright, trademark, and a variety of abusive terms of use violation claims.  Many intermediary services will quickly remove content to avoid liability. Navigating each service’s appeals process, and making the legal arguments to get your otherwise legal content restored is not always easy.  Negotiating with service providers and claimants to restore legitimate content often takes an experienced attorney explaining the user’s legal position.  Without that assistance, in addition to content removal and the risk of related lawsuits, a key consequence of takedowns is that a user can have their account permanently terminated, silencing their voice.

4. Intellectual Property and Licensing – Today’s independent artists, filmmakers, and journalists are plugging in to existing distribution channels, accessing audiences and sustaining their work through licensing deals.  Understanding how intellectual property law works, particularly copyright and trademark law, is one way that today’s journalists, creators, and entrepreneurs sustain and grow their work.  The Knight Foundation, in its report Gaining Ground: How nonprofit news ventures seek sustainability, recently noted that early stage nonprofit journalism projects appear to focus primarily on content production until they reach a budget of $500,000, where the larger portion of budgets start to go marketing, development, and technology expenses.  We can confirm this experience on the ground.  Many of our most successful nonprofit journalism clients, as well as creative clients like filmmakers, understand that one of their most important assets is their intellectual property, but they aren’t always experts in contracts or licensing.  Attorneys can help make sure that the deal presented in a contract actually reflects the client understanding and is appropriate given their business model.

This includes insurance contracts, foundation and government contracting agreements, fiscal sponsorships (when projects are incubated within larger nonprofits), software and API licenses (open source and proprietary), open source content licenses such as Creative Commons. Without easy access to knowledgeable counsel, many creators will sign unfair or even abusive contracts that could tie up their project for years.

1. Fair Use – Andy Warhol said “good artists borrow, great artists steal.”  It may not be as catchy of a quote, but many great journalists, creators, and startups understand their rights to reuse content without permission.  Understanding and exercising fair use allows us to engage in social, cultural, and political dialogue.  It’s a critical safety valve to the broad protection and extremely long duration of copyright law. But as far as laws go, it’s on the complicated side.  When journalists, artists, filmmakers, and startups want to share new perspectives and world-changing ideas, a quality fair use analysis can make that happen.  Moreover, many filmmakers and journalists need a fair use opinion from an attorney to obtain insurance and be picked up by distributors. But the reality is that only a small number of attorneys in the country are experts in fair use law, and when you narrow that list to folks willing to work on a reduced fee basis that number shrinks considerably and clients  never find the legal services they need.

Rather than treating journalists, artists, creators, and startups as silos, let’s recognize the common legal issues faced across all of these groups, and find ways to address the growing demand for legal services by building key legal infrastructure.



5 Reasons Why You Need SEO For Your Law Firm

The law space is very competitive and marketing for lawyers and law firms can be expensive. Digital marketing is a great way to waste money if it isn’t done right, and it’s costly even if you do everything perfectly. This is due to the highly competitive nature of the modern law industry, which leads to firms that are willing to pay hundreds of dollars per click for the most in-demand keywords.


This means that Google Adwords simply isn’t an option for small law firms with a limited marketing budget. You won’t be able to drive enough high converting visitors to your website using AdWords marketing to make it worth your time. Even if you can, there are better ways to spend your money.

Here are five out of many reasons why SEO is usually a better option than paid search engine marketing. Some of these include:
 

1. SEO Offers Great Value

Many law firm marketing experts will agree that search engine optimisation, or SEO, is a much better way to spend your money. Basically, SEO involves actions that can help improve your website’s organic search engine rankings for relevant keywords. For example, if you run a financial law firm in Melbourne, you might want to rank highly for a keyword like ‘Melbourne financial law’. If you can achieve the top spot on the search engine results page, you will find that you’re getting a lot of relevant visitors.

2. SEO is Less Expensive

A good SEO strategy for the average law firm doesn’t have to cost a fortune, especially if you’re willing to put a bit of work in yourself. Even if you don’t have time to spend on it yourself, employing an experienced SEO expert will usually be a very cost effective way to drive potential clients to your website.

3. SEO is a long-term strategy. 

Once you’ve spent money on things like AdWords marketing, it’s gone forever. If you didn’t get a conversion out of it, too bad. However, the money you spend on SEO will continue to drive results for months or years to come, potentially leading to a very low cost per visitor.
 

4. SEO is Less Difficult

SEO isn’t that hard. Once you understand how Google ranks websites and what you can do to improve your organic search ranking, you’ll see that SEO really isn’t that difficult.
 

If you don’t already have a comprehensive SEO strategy for your law firm, you might need to change what you’re doing. Consider speaking with an experienced SEO consultant who will be able to help you put together a clear, straightforward strategy for improving your search engine rankings. Trust me, it will be money well spent.
Alternatively, you could try and work on your law firm’s SEO by yourself. If you choose to go down this path, I would recommend taking some courses and learning at least the basics of SEO before you start. You might find that it’s a more cost effective use of your time to employ someone who knows what they’re doing.




Biography of Lord Denning

 

Lord Alfred Thompson Denning (1899-1999) was a Populist English judge whose career spanned 37 years. He was known as a fighter for the underdog and a protector of the little man's rights against big business. He served for 20 years as the head of the Court of Appeals, one of the most influential positions in the English legal system. Denning was a controversial judge who was often the dissenting voice on the bench. His decisions were based more on his religious and moral beliefs than the letter of the law and he was often criticized for his subjectivity. Denning retired from the bench in 1982 under a cloud of controversy regarding some racially insensitive views that he published. Denning continued to publish books during his retirement and died at the age of 100.

 
Early Education:-
Alfred Thompson (Tom) Denning was born on January 23, 1899, at Whitchurch in Hampshire, England. He was the youngest child of five born to Charles Denning and Clara Thompson. His father owned a draper's shop and his mother did the bookkeeping for the business. Denning attended elementary school at Whitchurch and then joined two of his brothers at Andover Grammar School. Denning excelled in both English and mathematics and won a scholarship to Magdalene College, Oxford.

After one year at Oxford, Denning was called to military service in the summer of 1917. He served a year and a half on the Western Front in the 151st Field Company of the Royal Engineers and then returned to his education. In 1920 Denning graduated First Class in mathematics. He then taught for a year at a prominent public school. However, as Jowell and McAuslan described in Lord Denning: The Judge and the Law, "he was ambitious and desired to be a man amongst men." Denning returned to Oxford on another scholarship and graduated First Class in the law school in 1922.

From the Bar to the Bench:-
In 1923 Denning was called to the Bar and began working in private practice. His early career consisted mainly of small civil work, such as landlord disputes and traffic accidents. Denning also began writing at this time. He published two articles in the Law Quarterly Review and co-edited a book on prominent common law cases. Denning married Mary Harvey, the daughter of the Vicar of Whitchurch, in 1932 and the couple had one son, Robert, who eventually became a professor of chemistry at Oxford University. In 1941 his wife died and Denning remarried four years later. His second wife, Joan Elliot Stuart, was a widow with three children who remained married to Denning until her death in 1992.

After fifteen years of private practice, Denning became king's counsel in 1938. When World War II broke out, he volunteered as a legal adviser to the Regional Commissioner of the North-East Region. After the war, he was appointed judge to the Probate, Divorce, and Admiralty Division. He was not very enthusiastic about the appointment because he considered divorce work inferior to other kinds of legal practice. However, he accepted the position with the hope that it would further his career. He was 45 years old when he started working as a judge. In October 1945 Denning was transferred to the King's Bench Division and became the Chairman of the Committee on Procedure in Matrimonial Causes. Three years later Denning was promoted to the Court of Appeals. Initially the court only handled civil appeals until criminal cases were allowed in 1967. Denning's career, however, focused mainly on civil matters.

Controversial Judgements:-
During the 1950s Denning began to earn a reputation for his controversial judgements, which were often at odds with the opinions of the other judges on the Court of Appeals. Despite the tension in the courtroom, Denning found the work to be very satisfying. On April 24, 1957, he was appointed to fill a vacancy among the Law Lords. The pace of the work was much slower in his new position and he did not enjoy the work as much as the appeals court. Five years later an opportunity arose for Denning to return to the Court of Appeals. The Master of the Rolls, the head of the Court of Appeals, wanted to step down because of the administrative burden of the position and Denning was appointed to take his place. Denning retained this role for 20 years until his retirement.

A year after being appointed Master of the Rolls, Denning heard a high profile case that bolstered his popularity among the general public. In 1963 he was assigned to investigate a sex scandal involving Secretary of State John D. Profumo. Profumo had had an affair with a young woman who was also involved with a Russian intelligence officer. Even though Denning did not find evidence that government secrets were compromised, his report on the Profumo Affair became a best-seller. Denning supplied the public with the racy details of the scandal and 10,000 copies of the report sold in two days. He also publicly criticized the Prime Minister for not properly handling the situation. A month after the publication was released, the conservative British Prime Minister Harold Macmillan resigned. While the public enjoyed reading about the scandal, many of Denning's colleagues believed that the level of detail in the report and the "gossipy" style were unprofessional.

Professional Legacy:-
Denning was a deeply religious man who allowed his personal ethics to influence his judgements. He was president of the Lawyers' Christian Fellowship and he noted that the book he read most often was the Bible. He had a strong view of what justice meant and achieving justice was more important to him than statutes or previous rulings. According to The Lawyer, Denning once said, "Unlike my brother judge here, who is concerned with the law, I am concerned with justice." This was more than just a philosophy for Denning, but rather was a way of life. In a 1974 speech entitled Let Justice Be Done, Denning concluded, "In our society, if we are to maintain civilization as we know it, it is essential that each one of us does all he can to 'Let Justice Be Done."' Despite such noble intentions, the subjectivity of Denning's decisions made him the target of much professional criticism. To respond to the controversy surrounding many of his decisions, Denning published The Discipline of Law in 1979 when he was 80 years old. In this book he explained that the law was outdated and it was up to judges to shape it to fit contemporary needs.

Though Denning was often the dissenting opinion on rulings, he nonetheless introduced important changes to the legal system. Denning impacted the language of the law through his emphasis on using simple sentences to communicate legal issues so that lay people could understand the law. He tried to communicate his points in a clear, direct manner and often liked to present facts in the form of a story. Many of his decisions were also of historic importance. According to his obituary in The New York Times, "He went on to build a reputation as the champion of the underdog, with decisions protecting individuals from exploitation by bureaucrats, large companies, and trade unions." In particular, he upheld the idea that oral contracts could be binding and he introduced the Mareva injunction, which freezes assets during litigation. Another notable decision was allowing Sir Freddie Laker the right to operate a transatlantic airline to New York, introducing competition to British Airways and sharply reducing the price of air travel across the Atlantic.

Denning also fought for the property rights of deserted wives and unmarried women. His judgements in these cases were not always upheld and many men wrote to him objecting to his interference in what was considered a personal matter. In a speech presented in 1959 for the Eleanor Rathbone Memorial Lecture entitled The Equality of Women, Denning elaborated his views on women in society. "There is no question of retracing our steps about the equality of women, nor would anyone wish to do so. If women are able to live up to the responsibilities which freedom entails, their equality is not only a matter of absolute justice, but is also capable of great benefits to the human race; and of all their responsibilities, the chief is to maintain a sound and healthy family life in the land."


The Rights of Widows in the Nigerian Society

A widow is simply a woman whose husband has died and has not remarried. Marriage for most couples as it is meant to be is till death do us part. Who goes or dies first in the marriage may be the topic for analysis another day, but often times a party goes first. When a man (husband) of the marriage dies, he leaves his wife a widow whether she has had children for him or not. A woman on the death of her husband is left in a state of confusion, sorrow and bereavement. As many African society particularly the Nigerian society tradition demands she is left at the mercy of her in- laws to decide her fate.
 
Nigerian Widow
Source: Abovewhispers.com

Upon the death of married man, the wife becomes the first suspect and she has to go  through some widowhood rites to prove her innocence to her husband’s family that she is not responsible for the cause of his death and also to the society at large who will always believe that she has a hand in the death of her husband. For a woman who is married under the customary law, she is more prone to the dictates of her in-laws on the death of her husband particularly where such a man dies without a will. What is however alarming is that even marriages under the Marriage  Act are not exempted from this kind of treatment particularly as it pertains to the sharing of the deceased man’s property. Widowhood practices all over Africa and particularly Nigeria have a lot of effects on the women involved. Whether negative or positive depending on the measure and level of treatment melted out to the victims who usually have nobody coming to their aid as even the widow’s personal family will advise the woman to quietly go through the process without complaining.

Generally, the treatment of widows around the world varies but unequal benefits and treatments generally received by widows compared to those received by widowers is alarming in most part of the world. A man that loses his wife do not have to go through proving his innocence but rather everybody becomes concerned about who will take care of  the man since his wife is no longer alive. However the reverse is the case in the instance of a woman when she loses her husband. Ordinarily, when a woman loses her husband, the society should rally round her and support her and her children but the reverse is what we see in most communities in Nigeria. Most widowhood practices in the Nigeria society are archaic, barbaric and very cruel. This is probably due to the fact that in some cultures, women are seen as mere chattels or properties of their husbands who do not have any form of right and can even be inherited on the demise of their husband by other male members of the family respectively. Most customs believe that if a woman is a property that can be inherited upon the death of her husband, then she cannot be seen to inherit her husband as a property cannot inherit a property.

Widowhood rites is a major issue that many women have to contend with at the death of their husbands.  Some of the widowhood rites and rituals practiced in the country varies depending on the locality and the community. Some of these practices include but not limited to the widow been made to sleep in the same room where the body of the dead husband is laid  for three to seven days, she is refused from having her bath or to have any clean up for seven days without having a change of cloths, made and forced to sleep on a mat for about seven days in a secluded room or a particular spot is created for her to stay during initial mourning period which could be for three to seven days depending on the locality. Some communities go to the extent of forcing the woman to drink the water used to bathe her late husband so as to prove her innocence to the general public.

  These communities treat widows like an outcasts as they are restrained from public movement, will have to wear dark or specific cloths for a period of three months to one  year or more. The woman is left at the mercy of the extended family members who will begin deliberation on how to share the children of the marriage among themselves and perhaps the widow herself becomes the target as the younger men in the family may want to marry her in the name of protecting their late brother. In as much as the remarriage may work in favour of the widow, often she has no option as to the issue of the remarriage since the interest of her children is at stake. These rites and rituals carried out will leave the woman’s sense of dignity demoralized and punctured for a long time.

The victims of these practices aside the widow are the children of the marriage if any who will have to face the harsh reality of life soon after the death of their father. Where the property of the deceased man has been carted and shared by the extended family members of the deceased, the financial and economic reality dawns on them and this might begin to affect the education of the children and social welfare especially where the children of the marriage are not of age. The effect of the harsh treatment melted on the woman in the presence of the children may also affect the children psychologically and also their relationship in the larger society.

The provisions of  chapter 4 of the 1999 constitution of Nigeria as amended provides for the fundamental human rights of the citizens of Nigeria. Section 34 (1) (a) of chapter 4 provides thus:

    “ Every individual is entitled to respect for the dignity of his person and accordingly
    (a)          No person shall be subjected to torture or to inhuman or degrading treatment.”


Widowhood rites and rituals in most communities in the Nigeria society is clearly a gross violation of  section 34(1)(a) of chapter 4 of the 1999 constitution as amended. A woman subjected to drinking the water used to bathe her deceased husband, had her head shaved, made to bathe on her husband’s grave by 12am in the midnight so as to prove her innocence on the death of her husband, cannot be subjected to anything more inhuman or more degrading than that.

Her dignity is punctured, her self worth is devalued, her person is injured. The trauma involved in all of these torture and inhuman and degrading treatment most times leave the women emotionally injured which might not heal for life or take a longer period to get herself back into the society. What is more alarming is that most times it is  the female folk that subject their fellow women to this inhuman treatment in the name of culture more particularly because they have also experienced it when their own husbands died. As such they take it upon themselves to subject other widows to the same treatment perhaps to vent the anger and retaliation from their own personal experiences.

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.

The Meaning, Evolution and Essence of Hire Purchase

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



 

 


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