The Meaning, Evolution and Essence of Hire Purchase

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

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

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

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

How does a Hire Purchase System Work?

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

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

Distinction between Hire Purchase and Similar Transactions

1. 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. 

2. 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 since the 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. 

3. 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.

4. 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 in common law. As such, there are no formal or rigid requirements for the law of hire purchase. Written and formal agreements 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
  

Read: The Legal Side to Understanding Company Liquidation

CIF

This happens when the buyer is to remit money for cost of insurance and freight

Duties of Parties under CIF Contract

The duties of the seller are:

• 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
  

 

 

The Creative Force of Entrepreneurship and Government Actions that Unhelp them

From Middle Ages’ Marco Polo to 17th century’s John Law down to 21st century’s Jeff  Bros, the comity of human-persons have, save for a diffident few Marxist-minded men, come to settle with the notion that well-to-do economies are driven on entrepreneurial wheels. The velocity, with which the spirit overwhelms nations these days, leaves no breathing space for the toleration of a communist-commuted administration of affairs. No wonder the Iron  Curtain has fallen so flat.

With the presence of an overtly civilized world enrobed by human rights provisions and buoyed by the activism of intellectuals, the practice of leaders ‘planning’ the lives of their peoples have become a thing-of-the-past.

THE GOVERNMENT IS HELPING THE ENTREPRENEURS.

Though the nadir of security quagmire and economic imbroglio in which Nigeria is situated frustrate a perfect praise of the government of the day in matters of entrepreneurship, nonetheless, there are some along-the-line programmes. For instance, ‘the Small and Medium Enterprises Development Agency of Nigeria (SMEDAN) aims at creating entrepreneurial consciousness and capacity at micro, small and medium scale levels among Nigerians. The agency also seeks to establish participants with self-owned businesses.’ [Eze2010]

Furthermore, functional are ‘The Small and Medium Enterprises Equity Investment Scheme (SMEEIS) which requires the Deposit Money Banks to secure some reserve of their treasury for the funding of SMEs; the Small and Medium Enterprises Credit Guarantee Scheme (SMECGS) completely financed by the CBN with a fund of N200billion with the object of providing access to credit by the SMEs; Small Scale Industries Credit Scheme, a joint effort of both state and federal governments for the finance and expansion of small-scale enterprises in the country’ [Eze2010]. 

 

Read: The Right of Widows in the Nigerian Society

In addition, currently, ‘the Bank of Industry (BoI) in conjunction with the After-School Graduating Development Centre (AGDC) is making some moves with the agenda of curbing widespread unemployment debacle ravaging the country.

Notably, with the introduction of the N-POWER programme the unemployment curve has been bent to an appreciable level.  Nothing could be further from the truth - efforts at building skills acquisition capabilities and professional deliverables in people can never be sidelined. Aside these programmes, the government has established diverse channels for the standard training of would-be entrepreneurs in the country. For instance, in virtually all higher institutions of learning, the Institute of Entrepreneurial and Development Studies (IEDS) exists. 

Making Change for the Better

Nonetheless, so that the government may avoid the incidence of being found hindering her low-key entrepreneurs perpetually, an aids-to-entrepreneurship analysis should be attended to with the requisite show of seriousness. What is called an aid-to-entrepreneurship chart serves as a one-stop response to entrepreneurial needs of any economy. For Oyekunle FCA, Former Chair, ICAN in her Entrepreneurship: Business Establishment and Management, ‘there is no doubt  that the economic growth and development and the nation’s entrepreneurship  are positively linked meaning that the better their entrepreneurship the more improved will its economy be ceteris paribus’.

Building on this strong point, an experiment of how an agenda of economic improvement could translate into entrepreneurial success, and vice-versa would be performed. Some of these aids are therefore highlighted: Federal Inland Revenue Service (FIRS) states that Jimoh Ibrahim’s firms owe N575m [FW, May2016ibid]; America has conceded to repatriate the almost N500m Abacha loot [The Nation Newspapers, May2016]; MTN is yet to clear its fine of over N1trillion; some penitent politicians are actually refunding the loots. All of these put together could not be said to mean a paltry sum. More essentially, with only this, Nigeria can float live-changing entrepreneur programmes. This idea mitigates the weakening remark of former Finance Minister, Adeosun, that Nigeria ‘now has the will but not the means’ [The Guardian, April 2016]. Even with this China caress (the loan sought), with sheer deliberateness hinged on sound superintendence there lies some prospects for entrepreneurial success.

Kasper’s (Kasper, 2005) denunciation of financial aid by government for enterprises alleging that ‘rent seeking tends to undermine genuine competition among suppliers’ is only relevant for large-scale ones. Industrial incubation and protectionism have proven positive tools for aiding SMEs world-wide. Nigeria must act likewise. Nigeria urgently needs to revisit her relevant business laws. Quality legal cum regulatory framework fans the embers of any purpose-driven, entrepreneurial-enabling activity.

A comprehensive competition and intellectual property regime is demanded as Dimgba (2013) emphasizes in his article, The Urgent Need for Anti-Trust Law, that

‘…half liberalization could in some cases be worse than no liberalization at all since it may engender hitherto unknown dangers, and any liberalization programme of Nigeria’s that is designed in such a way as to lack an essential component like a competition regime is fundamentally flawed and needs to be reconsidered.’ 

Curiously, the corruption monster must be trampled upon.

Export Processing Zones (EPZs), tax incentives and holidays, low-or-no-interest loaning could actually prove effective impetuses to aspiring entrepreneurs. The instance where the CBN allots a meagre 10% out of deposits borrowable to entrepreneurs for SMEs needs some re-adjustments.  

‘Kenya Uganda, Benin, Mauritania, Senegal’, (http://www.doingbusiness.com) and Rwanda pride themselves as hottest candidates for emulation in Africa in terms of implementing result-based policies that promote ease-of-doing-business mechanisms.

This has resulted in the presence of increased business units in relevant economies as reflected in the chart below.

The Nigerian government can address the business hitches to entrepreneurial activity by addressing dire issues like her fellow Afro-polities.

In Nigeria, the devalued oil price offers her the time-and-chance of diversifying its economy. Numerous Afro-economies make it other than on oil. Tourism, entertainment, air transport, solid minerals are areas of utmost pecuniary quintessence which the nation is yet to fully explore.

High population rate has proven one essential indicator for any economy that would thrive.  One thing should be clear. Nigeria has the twin pluses of being the largest and most populous Black economy the world over. Gov. Ambode, FCA (The Nation, ibid) speaking at the London School of Economics and Political Science (Africa Forum) pointed out that ___ of Africa lies uncultivated and that by 2050 Nigeria should be 9th most-populous.

Pitiably, it was gathered that Nigeria still spends over N1.5trillion on food import annually [ABC AgroLtd,2016]. Armed with technology, Nigeria can turn out her vast land for extractive and agricultural entrepreneurial endeavours. 

Should the 30% capital expenditure stated in the National Budget be candidly implemented, Nigeria should experience some step-up in her infrastructural estate.

The tax-GDP wide gap should no longer be. As ntel takes charge, the NCC must ensure rural telephony enjoys coverage as a large chunk of the nation’s business persons risk being cut short of communication which is very relevant for prosperity in their enterprises. Power failure must be appreciably eliminated.

The follow-up that was given the telecommunication industry which today makes it a success story may be replicated for other kinds of transaction when privatizing other key sectors in the economy.

Except for the purposes of safeguarding the interests of the less-privileged, particularly  in matters of health and education, some kind of deregulation policies, in commercializing the country’s over-bloated civil service swallowed in inefficiency, bureaucracy and incompetence must be confronted.

For Professor Asaolu (TheNation, Nov.2015) ‘the state may also enter into a Service Contract with private investors, whereby the state holds title to these public enterprises while the private investors manage the enterprise’. 

Insurance scheme awareness is another vital point. The popular Ladipo market-persons in Lagos whose property were razed down by fire lamented their oblivion claiming they would have benefitted from it [TheNation, April2016]. These are sure outlets by which the government can be of support to its populous MSMEs.

The government can offer some protection for SMEs by deploying high tariff and quotas on imported goods, and should even demonstrate enviable fondness for made-in-Nigeria products themselves. The test-driving of one of Innoson Motors by Senate President Saraki should not end there. The position of Makanjuola, (IbadanChamberNews, March2016) President, Ibadan Chamber of Commerce and Industry, that ‘luxurious consumption is likely to be taxed heavily’ may not tarry as a prophecy any longer.

According to the foreman, ‘VAT that is now 5% may be increased in line with international practice’ [ICN, ibid]. This may occasion considerable resort to the nation’s quality locally-made. 

Conclusion

For the implosion of the bogeyman of unemployment and the entrenchment of liberty essentials in Nigeria, it is urged that statesmen should expel tardiness and exploit extant suggested options. It must be noted that the South-Korean and Singaporean success stories cannot elicit enduring emulations as their economic excellence was obtained in a plainly horrific situation.

A commentator of Lee Kuan Yew’s From Third World to First, the Singapore Story: 1965-2000 (2000) records of him to be “aiming always ‘to be correct, not politically correct’”. Even the example of China’s Mao Tse’s ‘painful pill’ (The Guardian, April 2016) is inexpedient! Nigeria need not employ repressive policies while plying the route to entrepreneurial greatness; but by devising a design that welds both development and freedom fundamentals she is set for the plateau. Only by this would entrepreneurs be bestowed spread-wing opportunities that make for the appropriation of Leonard Read’s ‘a faith in free people’ what he describes as ‘an absolutely essential ingredient for freedom’s (Leonard, 1946).

Merging the possibilities of Nigerian and Indian Media Laws

Media law is the body of regulations that guide media production and use. It encompasses different forms including basic broadcast television, internet and print media amongst others. The practice of media law may involve all of the types of legal issues that might arise during the production or consumption of various types of media. In the same way, the media laws of different nations of the world vary on the basis of these legal issues.

World over, governments treat media types differently especially as regarding regulations and oversight. This is largely because of proliferation. Broadcast media has the largest regulation platforms. It basically includes media that’s intended for a general audience and mass consumption like radio and television, bill boards and other traditional information dissemination systems. However, by contrast, the internet, a most recent broadcast media has fewer regulations.

In Nigeria, apart from a direct regulation of the use of media, media law intersects other laws. One of the fields that’s often an issue in the use of media is intellectual property law. Issues of privacy, piracy and image reproduction are frequently treated today and in many cases, media producers and organizations struggle to protect their trademarks and copyrights. Media law also touches contract, criminal law, Torts, taxation, insurance and Environmental law amongst others.

No society can develop without the existence of these media laws as with other laws. However, the rise of new phases like freelancing and citizen journalism has posed a serious challenge to the observance of media laws owing to the fact that citizen journalists (both in Nigeria and other climes), with the aid of any digital device write, copy, download and upload as well as post pictures, information and videos as much as they want on the Internet. The official broadcast media are regulated by the Nigerian Broadcasting Corporation, National Communications Commission and other regulatory bodies (federal sgencies and lsboir unions alike) unlike these new phases of the media which until recent times have no umbrella regulations. A pointer is the recent findings which reveal an increased level of awareness of media laws (87%) among Nigerians (especially youths) leading to considerable level of familiarity of media laws. The findings indicate that Nigerian undergraduates observe media laws in posting stories in new media but do not observe the laws in posting pictures and downloading videos. The study among other things recommends concerted effort by all stakeholders in the new media era including the Nigerian Communications Commission, Internet Service Providers, GSM operators and mobile phone users to combat the erosion of media laws by citizen journalists.

The media in India is basically self-regulated. The existing bodies for regulation of media  such as the Press Council of India, which is a statutory body, and the News Broadcasting Standards Authority, a self-regulatory organisation, issue standards which are more operational like guidelines. In India, the Press is free but subject to few restrictions imposed by the Constitution of India, 1950, as amended. Before the impact of globalization was felt, media was controlled by the government, which let the media project only what the government wanted the public to see and in a way in which it wanted the public to see it. Today, the situation has undergone a drastic change.

Read: Biography of Chief Wole Olanipekun, OFR, SAN

By the recent times development and Implementation of media laws in Respective Climes, media law continues to change and grow. It is dynamic and a unique part of the developments in the legal system of any country. The reign of the internet and its neutrality is one hotspot debate concerning the media and this largely looks like the future for media in many countries of the world. This debate includes positions whether media outlets should be able to give priority level on some contents over others when they operate their networks.

Proponents place intellectual subscriptions to the net neutrality policy and say that giving preference based on content is tantamount to censorship. Opponents  however say that some consumers, like internet-based visual media company Netflix, use a disproportionately large amount of bandwidth that can slow down other users. Adding to uniquely local national media law issues, there are also international issues to be aware of. In that same way, some countries may have varying content limitations for media than others. That way, there are different rules and customs regarding piracy and intellectual property rights. For India, there should be an objective look into these varying laws to find a balance.

Popular media systems of the world vary from each other according to the economy, polity, religion and culture of different societies. In societies, which followed communism and totalitarianism, like the old USSR and China, there were limitations of what the media could say about the government. Almost everything that was said against the State was censored for fear of revolutions. On the other hand, in countries like USA, which have a Bourgeois Democracy, almost everything is allowed. In Nigeria, there is a protection for freedom of speech. However you cannot be guaranteed of freedom after speaking, especially if it's a talk against the government.

In such an era of media upsurge, it becomes an absolute necessity to impose certain legal checks and bounds on transmission and communication, plus a conscious effort to allow voices to air.

Conclusion

By Digital trends and media explosion, it is no wisdom to remain confined to the boundaries of traditional media. The media world has expanded its dimensions by encompassing within its orbit, the widening vistas of cyber media etc. In result, the laws governing them are also numerous with various important legislations affecting the branches of Media Communication, making citizens aware of their rights and its exercise within the framework of the law.

This article was first published by Its.Legal, an Indian legal platform for students and young lawyers.

The Relevance of Law and Morality in Contemporary Nigeria

After being willed into existence from Lord Lugard and Miss Shaw’s colonial laboratory of artificial insemination, Nigeria has had to deal with issues of morality and its objectives. Following the different transitions in the political and social structure of the Nigerian state – precolonial, colonial and post-colonial, these moralities have proved their dynamic structures and qualities, one that shows it as crucial in the Nigerian society. In this article, the radical objectives of morality in the Nigerian society shall be discussed, alongside its relevance and effects thus far in contemporary Nigeria.

Let’s meet Morality

Morality means a set of principles concerning right and wrong, good and bad as binding on the individual’s conscience. It is usually innate but could be on the other hand, passed from age to age by reason of the society, parental oratory and advice. Morality is a branch of philosophy known as “ethics”. Ethics simply means norms and is derived from the Greek equivalent, “ethos”. It is clear that morality involves norms because it is a conventional set of principles that regulates human mutual co-existence from age to age. Morality tends to emphasize duty on the part of the individual involved by its normative bonds. Duty is seen in the responsibility to uphold thee moral principles just as Kant states that morality regulates the inner mind of man and guides his motivations.
 

Law on the other hand is a concept that requires great understanding and should be examined with such. Into the bargain, it should be noted that:

Nobody including the lawyer has offered, nobody including the lawyer is offering, nobody including the lawyer will ever be able to offer a definition of law to end all definitions
 

Much as this is known, it is defied to get a base for showing morality and law in relation to contemporary Nigeria. So we would deduce after observing various theories of law that

Law is in its own sense, an agent of social control, a formal mechanism for the ultimate aim of causing societal harmony and tranquility.

Read: Arbitration as an Alternative Dispute Resolution Mechanism

NATURAL LAW AND MORALITY IN A RANDOM SOCIETY

In Knuller v. DPP, the judge, Lord Reid posed Viscound Simond’s judgment in Shaw v. DPP as wrong, following judicial precedents over a case involving the release of homosexual instincts through an advertisement. The defendant argued that the advert was meant for adult men who consented to having counterparts in the act to arrange meetings to practice such and not to corrupt public morals via the contra bonos mores- Magazine advertisement or to conspire to outrage public decency - (Section 1(1), Sexual Offences Aft 1967) Reg v. Bhagwan and Section 1, Theatres Act 1968 (Reg v. Calder & Boyars Ltd (1969) 1 Q.B. 151)

On November 10, 1970, at the central Criminal Court, (Judge Sutcliffe) the appellants were convicted of conspiracy tp corrupt public morals firstly snd secondly, conspiracy to outrage public decency (Reg v. Anderson 1972 1 Q.B. 304, Obscene Publications Act 1959). Knuller (Publishing, Printing and Promotions) Ltd was ordered to pay a fine of 1000 on first count and 500 on the second count and thereafter, 500 on costs of prosecution.
 

Much as the decision of Viscound Simond is widely appreciated in Shaw v. DPP, it was not used in Knuller v. DPP because another person’s moral must not be the basis for judging the others. The question is:

1. If morality is the basis for criminalizing people, whose morality shall we use? The liberal moralist thinks he is best and the religious moralist thinks so too. The paternalist and legal moralists are not left out. The Holy book aptly says in Matthew 5:48 KJV - “Be ye perfect even as your father which is in heaven is perfect”. It comes to conclusion that no man has moral standards so high that it be used as a measure for others. This is because infallibility is a feature of all, and in that is the morality for every society.
   
2. Should morality be legislated in the first place?

 

 

 

Obafemi Awolowo University Commercial Law Past Questions

These past questions are simply compiled here fore academic purposes. we do not own copyrights to the respective questions

2nd Semester, 2016/2017

• Amasa has just visited ALADANLA farms and he was impressed by what he saw. He immediately ordered for the purchase of 200 tubers of bumper yams for his "upcoming end of year Iyan festival". He also ordered for 30 bags of Spring Rice and 100 cartons of Cat-fish. All the items (except 50 tubers of yam which were yet to be harvested) are already earmarked and to be loaded on KARRY truck for onward transmission and delivery at Amasa's shop on 1st December, 2017, the day of the contract. KARRY truck was however intercepted by Road Safety marshals for improper vehicle  documentation, and was only released on the 15th of December, 2017 on the intervention of Chief Aladanla - owner of ALADANLA Farms. By the time the items were delivered, Amasa discovered that the fish had deteriorated terribly and were unfit for human consumption. Unknown to the parties, as at 1st December, 2017, the 50 tubers of yams were also affected by bad weather, already over grown and by the time they were harvested were unfit for the purpose of "end of year Iyan festival". Advise Amasa and ALADANLA farms.

• In a contemporary Nigerian situation where "branded" and "unbranded" items are sold in traffic jams, what is the import of the requirement of "merchantability"? How does the court arrive at what is of "merchantable quality" of goods in compliance with S14(2) and 15(2c) of the Sale of Goods Act 1893?

• A sold his Nissan Bluebird car to B for #500,000. B sold the car to C for #550,000. C sold it to D for #600,000. After D had used the car for 18 months, it was lawfully recovered by O - the original owner who claimed the car was stolen from him by A. D filed an action against C for breach of contract and implied undertakings as to title under the Sale of Goods Act.
• With the aid of authorities, lay the foundation for the chances of D's case against C.
• Can D recover the entire purchase price of #600,000 or can C set up a counter claim against that amount?

• Write short notes on the following
• Nemo dat Rule
• Res perit domino
• Right of stoppage in transit
  

• Discuss the major abuses and injustice that characterised the common law hire-purchase trading system. How far has the Hire-Purchase Act, Cap H4, Volume 7, LFN 2004 corrected the situation?
• Discuss the obligations of the owner and the hirer under the common law hire-purchase trading system. Has the Hire-Purchase Act Cap. H4, Volume 7 LFN 2004 incorporated any of these obligations?
• Examine the power of the owner to recover possession of the hired goods and that of the hirer to determine the hire purchase agreement under the Hire-Purchase Act Cap. H4, Volume 7 LFN 2004.
  

 

 

 

Sale of Goods in Nigeria

 Unascertained goods are

⦁    Yet to be manufactured

⦁    Purely generic

⦁    Yet to be agreed upon

Specific goods have been identified or agreed upon

Discharge of Contract by Frustration

This provision deals with perishing goods but there are certain issues to be noted:

⦁    The seller and buyer entered into a contract

⦁    The subject matter relates to specific goods

⦁    The goods have perished

⦁    Without the knowledge of the seller

⦁    The fact that the goods perished at the time of the contract of sale is an important fact

⦁    The result of such a contract is that it is a nullity/void

Not every frustrated contract is a nullity (Balfore v. UAC) where no right or remedy can be claimed by any party

S6 and S7 Sales of Goods Act

James Borough, Mort v. Carter – The court held that at the time of making the contract or before performance, the chattels are or must be in existence or must still be existing at the time of performance.

 

Read: Arbitration as an Alternative Dispute Resolution Mechanism

 

Observe that Section 6 deals particularly with specific goods . When the contract relates to unascertained goods, the parties would still be bound by their obligations.

⦁    The words “perish/have perished” are to be understood in a commercial sense and not necessarily to mean complete physical destruction.

⦁    It is also not necessary that the entire subject matter had disappeared. It is enough where they are substantially badly affected – Barrow, Lane & Ballad v. Philip and Co. Ltd.

Privacy Policies, Terms, Conditions: Pieces of the Legal Food.

The average online medium would encourage a user to read and accept certain policies, terms and conditions, or provide certain legal interactions between the user and the website. With the common saying, "where there is no law, there is no sin", there is a call for practically, everything that belongs to the digital and internet world to be governed by a policy. As such, it is a clear note that every blog, website, app or digital innovation must have policies that govern it's use. 

 

To form these policies, it's not enough to slap together a few sentences and be off to place it up, or possibly copy sample documents and paste with little or no significant tailored changes. For one, a privacy policy is a legal document that take into account all nuances of law. This discussion shall thus contain reasons why these policies exist and what effect they have on users.

Into the bargain, one reason why digital policies are advised to exist on internet platforms includes that a digital policy builds Trust in such innovation, blog, business, app or website. When a user sees a privacy policy, whether or not they read it, there is a subconscious belief and trust. Some websites display privacy safe trust seals in digital images to show visitors an up-to-date privacy policy. This is proven to have increased the level of trust between online businesses and their visitors. It also gives the visitor, peace of mind and security because, by explaining what you do with their personally identifiable information (PII), they feel comfortable, stay on your site longer, and may refer their friends and family to join your online platform.

Various states, countries, as well as organizations, require you to display a policy if you collect, store, use or share personal data like emails, names, or payment info. You need to explain what you plan to do with your visitors' and customers' personal data. As a consequence of running a platform without a comprehensive privacy policy, you risk the probability of being sued. In recent times, Facebook, Google and many more companies have all faced lawsuits over questionable privacy policies.

For facebook, a more recent case was the questioning where none of them seemed to really understand the issues to the full. They kept asking the same questions, paraphrased and Mark kept repeating himself. Senator John Kennedy said, "I don't feel we are connecting, Your user agreement sucks." Mark, calm and respectfully answered all the while. Senator Dick Durbin also asked,

"Would you be comfortable sharing with us the name of the hotel you stayed in last night?" the 72-year-old asked.

Mr Zuckerberg paused for a full eight seconds, chuckled and said, "Um, uh, no,"

The Senator asked again, "And "if you've messaged anybody this week would you share with us the names of the people you've messaged?" .

Again, Mark said, "Maybe not here in the public."

"I think that might be what this is all about," said Durbin, "Your right to privacy, the limits of your right to privacy, and how much you give away in modern America in the name of connecting people around the world."

Regulations are coming to the Social Media scene concerning privacy and user data. The problem is, if they are going to be the RIGHT regulations? Mark possibly fears OVER-REGULATION. These regulations, if adverse, may affect the guy who is presently thinking of the next Facebook, and especially trying to disrupt Social Media via Blockchain technology.

Mark also mentions that "There will always be a free version of Facebook". We may infer that a paid version is in the works- Like a no-ads pro version, bring more privacy issues to the table.

Digital policies also fulfill third-party requirements. Companies like Google and Apple require that you display a privacy policy on your website or app to certify their relations with you. Now, if you do not plan to personally collect sensitive personal data, using a third-party service to collect data or display ads, like Google Analytics or Adsense, still means that you're collecting personal information and the user has a right to be informed. If app users can't find your privacy policy for whatever reason, your app could be suspended or terminated. In some nations, hefty fines are another consequence, often enforced for not displaying an active privacy policy

Differentiating Privacy Policies, Terms, Conditions, Refund Policies and Licences.

Privacy Policy

A Privacy policy is a document that states what you plan to do with information that is not publicly available (this includes IP address, JavaScript status, flash version, etc.) It describes what data you collect from your users and how you use such data. A " privacy policy" differs from a "terms of use". It is your disclosure to your website users about how you collect and use their personal information. Some states, as California, require that you make this disclosure with an Online Privacy Protection Act that requires all website operators that collect "personally identifiable information" to post a privacy policy on their websites. As such even if your business is not based in California, unless you block all California users from your website, it is highly likely to be visited by California residents and therefore subject to "privacy policy" requirements.

Why Have Your Own Privacy Policy and Terms of Use?

While your web developer can supply your website with standard terms of use or a standard privacy policy, they are drafting contracts with your site users and it is unlikely that it will be tailored to suit your business. Web developers may simply copy terms of use and a privacy policy from another website and so are by no standards, supposed to create a policy or terms of use document for you.

For instance, if the privacy policy states that you do not share PII with anyone else, but your business model includes a joint venture with another company with whom you share your database, then you have violated your own privacy policy and could be subject to a claim of breach or misrepresentation. Also, you might use a privacy policy that states that your website collects cookies (a piece of information about a user) when your website does not, thus, discouraging some users from using your website.

Terms of use and privacy policies are copyright-protected documents. In other words, it is thus illegal to copy them without permission. If your agent - web developer or employee - copies the policies, you are legally responsible for their acts. For example, Piggybank and Cowrywise are online savings platforms in Nigeria. If Cowrywise copies Piggybank's Privacy policy and terms of use for her operations, Piggybank has a copyright claim.

Like other contracts, it is best to tailor the terms of use and privacy policy to your specific needs and consult a lawyer experienced in internet law since, the purpose of terms of use and privacy policies is to limit risk, not to increase it. 

Terms

"Terms of use" is a contract with users of your website that discusses rules expected of visitors to follow, requirements for submitting comments, posting content or making orders, membership information, disputes jurisdiction issues and provisions to protect you and your company from claims. For example, if users post content on your website, how do you know they have the rights to post that content? The user might steal someone else's photograph, video, song, poem or story and share it with the world by posting it on your website. It is very important that you have a policy in your "terms of use" that lets the true owner know how to reach you if they request removal of that content. It could include a disclaimer stating that each user of your website is solely responsible for whatever content he or she uploads. This policy makes the difference between being liable for copyright infringement or not.

Also, if you don't permit users to post content or comments on your website, "terms of use" are important. If you provide a service or sell goods from your website, you could be subjecting your company to a lawsuit in any state. Let's say you ship a widget to Mississippi and the purchaser gets hurt because of a defect in the widget. Or maybe your customer in Europe is unhappy with your widget. Having a statement in your "terms of use" that any disputes will be decided in Arizona courts can make the difference in whether you end up in court in Arizona, another state, or even another country. Your terms of use could include conditional statements, licensing, and refund policies as the case may be.

Touching refund policies, for websites that permit online exchange and currency transactions, a refund policy may be embedded to include details as to when and when not to refund a visitor based on certain actions. In cases like this, it is usually warned that such visitors enter their card details on only trusted websites with Site Security Lock (SSL) certificates. These sites show a padlock security sign upon load and are usually accompanied with an "http(s)" formula.

Conclusively, Blogs, Websites and online pages generally need these document pieces on their legal plates. Most blogs in this reign believe they could run without these documents, fortunately because the parent hosts, like blogger and WordPress have covered issues relating to privacy. But then, by the law, an extra mile should be taken. If you plan to sell your visitors or customers information, be upfront and state it in your policy. It may send a few people off, but it is better safe than sorry; even if it means losing a few customers. If you collect information without a policy stating what you do with that information, then you could be in some legal trouble. There are disclosure requirements for this type of information and there is essentially no reason not to create and include a privacy policy on your website. The implications of receiving a fine depends on the country/state of where you are located. But regardless of the severity, it just won't be good for business, as it may affect your site integrity.

The Evolution of the Effigy of Justice

As one major role of law in society is to uphold justice, the significance of the effigy of justice would mean to symbolise justice itself, its meaning and what it represents in the society today. As seen in many courts and judicial premises, Faculties or law and every point that there is a heavy presence of legally inclined individuals, the effigy has its history, meaning and representation in the society.

By origin, the goddess of Justice evolved to be the present day statue called the ''effigy''. History accounts in ancient Egypt, Greek and Roman records have slight relationship to its existence.

In Ancient Egypt, the lady of Justice was called ''Ma'at''. She is depicted by a lady with a sword and an Ostrich feather in her hair. In this account, she carries no scales, symbolizing the truth and justice. The term ''magistrate'' is derived from ''Ma'at'' because she assisted Osris in the judgement of the dead by weighing their hearts. Osiris was the Ancient Egyptian god of the dead and  resurrection into eternal life. He was the ruler, protector, and judge of the deceased.

To Ancient Greeks, the lady of Justice was referred to as Themis, meaning ''order''.

She originally organized communal affairs of humans and the talent of prophecy and foresight into the future. She soon became an oracle at Delphi. In the Greek classical representation, she is represented as an effigy without blindfolds. They believed that there was no need for blindfolds because of her prophecy and foresight. She also did not hold swords because Greeks believed in common consent and not coercion.

For Rome, the Romanian order calls the goddess of Justice, ''Justitia'', also meaning justice. She is portrayed as evenly balancing both scales with a sword and blindfold. She sometimes carried a fasces (a bundle of rods around an axe to symbolise judicial authority) in one hand and a flame in another to represent truth.

In analysis, Ma'at represents truth, balance and order while Themis represents wisdom and good advice. Justitia also represents virtue, prudence, fortitude and temperance. By these, the personality of the effigy as a woman is due to the story from earlier civilisations where they had to fight hard for civl rights. In this search, feminism and other schools that preached proper representation were birthed.

As an allegorical representation of the moral force in the judicial system, the effigy has its Scales of Justice.  These weight scales are just as useful in law as they are in commerce to weigh goods and determine sizes. The scale is seated at the left hand of the effigy to weigh evidence, the truth and lie. This is to help determine decisions and is significant in validating the ratio-decidendi in any case.

A blind man sees nothing. He is just as a man with a blindfold around his eyes. The effigy also has a blindfold running through to cover her eyes. This signifies objectivity in judgement, meted out without fear or favour and the absence of impartiality in judgement. However, just as sharp as every other sense, the insight is necessary (though the eyes are blindfolded) in every matter. This simply means that the blindfold (impartiality) should not make the judge blind (impair) justice by denying insight and a proper look in any case.

The Sword on another hand is an instrument used in war. Held by the right hand of the lady of Justice, it signifies punishment, coercion and correction. These are backings of the law. In war, the sword crushes any opposition as long as the bearer skillfully pilots it. In the same sense, the sword of Justice crushes any form of injustice.

Also, Lady Justitia’s bare feet shows the humility that is intrinsic to the legal profession. On proper observation, her feet are without shoes to properly depict humility. This is why it is a general believe that lawyers are not proud but noble.

Another feature is the woman. By metamorphosis, a young lady grows into a woman. The feminine nature is known to be represented with utmost care. The lady of Justice signifies care towards anyone who seeks redress and proper address in the court. She tries to show that the court will always provide solace when one’s rights are breached in any case and particularly show that justice will always take its course.

Lady Justitia’s pouch is found at the back of the figure of the effigy. The pouch has two significances as put. Some schools of thought believe that it represents the entitlements of the lawyer in a case while others believe it to be the knowledge and reasoning of a lawyer in the case.

The white flowing robe is another feature of the effigy of Justice that signifies transparency and righteousness in any cause. White symbolizes purity and righteousness in justice and as such, judgment must carry these two principles. The white robe is also a flowing one to signify continuity in upholding justice which is the cause of the law.
 

The crown is the last feature of the effigy. Sitting on the head of the lady of Justice, it portrays the supremacy of the law and that everyone is subdued by it. It shows the essence of the rule of law and it taking due course in any case of arbitration.
 

In total relevance, the effigy of Justice has contributed in no mean measure to the development of the legal society, interpreting in its own way, the essence of law.
 

A Brief of Corporate Criminal Liability

Commission of a crime by an individual is usual hearsay in our community and known universally. However, some instances show that the commission of a crime cannot be limited to individuals alone; it would seem unfair to allow corporations engaging in illegal conduct to escape all punishment. Therefore, over time there has been an extension of corporations being held liable for a crime committed through its human agents.

The two pillars of criminal liabilities are actus reus and the mens rea and so to establish corporate criminal liability confronted issues of the existence of actus reus and mens rea since a company was known to be an artificial body that had no physical existence, let alone a mind of its own to be subject to penalties prescribed. For instance, to say a company as a body should serve a term of imprisonment or death penalty is abstract as neither the whole staff (who have no mens rea) nor the physical structure of the company can be imprisoned to serve a jail term.

Now you ask, what are examples of crimes a company can commit, but before that, to determine the meaning of the subject matter 'corporate crimes' cannot be overemphasized.  Corporate crimes are defined as illegal acts, omissions or commissions by corporate organizations themselves, as social or legal entities or by employees of the corporations acting by the operative goals or standard, operating procedures and cultural norms of the organization, intended to benefit the organizations themselves. Examples of corporate crimes (white-collar crimes) that could be committed by companies include tax evasion, manipulation of sales, falsified financials and accounting fraud, security violations, and an environmental crime such as commercial pollution of air and water, especially for industrial corporations whose operations produce pollutants. The importance of imposition of corporate criminal liability inferred from the above is to protect the society because half the lives of citizens in a country depends on corporations; ranging from food to eat, the house we live in, the water we drink and the environment we inhabit. It follows without a doubt that our safety is more affected and depends largely on how corporations, large or small, conduct themselves. In the region of Niger Delta in Nigeria, the recklessness of multinational oil companies in the extraction of oil has almost destroyed the environment. These oil spillages destroy the aquatic life which is a source of livelihood and also possible lands that could be used for agricultural purposes. In the same vein, the destabilization of the stock market by corporate misconduct and misfeasance has led to the loss of billions in shareholders’ equities and the loss of hundreds of thousands of jobs. This unfortunate result has been renamed ‘economic meltdown’.

There are exceptions however to the strict liability imposed on a company in cases such as murder, rape or bigamy. This is because since the company does not have a physical existence, it would be difficult to subject it to receiving the attached penalties. For instance, the penalty of murder is a death sentence and since a corporation has no physical human existence, it might be difficult to subject it to punishment such as death sentence.  Therefore, the imposition of corporate liability in such instances would most times then be; double of ‘whatever’ fine amount the company would have been liable to in civil cases or the company would be dissolved to avoid future reoccurrence. The doctrine of lifting the veil makes it possible for the court to look beyond the corporate structure to individual agents such as the directors or officer who violates economic or regulatory statutes since a company can only operate through its human agents. The penal code of the American law institute makes it clear that a corporation should only be punished or held criminally liable for conduct authorized, performed or recklessly tolerated by its board of directors or by a high managerial agent acting on behalf of the company within the scope of employment.

The most common way a corporation can be punished or regulated, include heavy fines(a branch of IBM (international business machines corporation) was charged with exporting computers to a Russian nuclear lab that was believed to be testing, constructing and maintaining nuclear explosives. The fine was $8.5million), loss of business license, and regulation by government agencies (for example in Nigerian, certain laws regulate these: Food and Drug act, Standard Organization of Nigerian act, Federal Environmental Protection Agency Act, Oil in Navigable Waters Act).

In conclusion, the most effective, I believe of these punishments are the dissolution or loss of business license (in very serious cases) or the limitation of powers of the company. This action would serve a proper warning and example for other companies or corporations to learn from and deter them from the future commission of crimes rather than fines on another part that demands a very little percentage of the power of the revenue and profit these companies receive.

The Legal Inventory of Franchising in Nigeria

Economic development is an indispensable reality with every modern state. And in pursuit of this all-important phenomenon many pathways can be and indeed have been taken by individuals, companies and governments. These strategies do not exclude Foreign Direct Investment programmes, Public and Private Partnership agreements initiated by the governments all in a bid to foster economic transformation within the state economy. 

Franchising however appears to have been given an all-time low attention by the citizenry. Franchising is one avenue by which economic progress can be facilitated. And statistically, it has not been given a thoroughly maximal attitude by most people in the economy.  Among a plethora of top-notch opportunities that can be seized by developing countries like Nigeria is franchising. It must be given due recognition. 

Franchises exist in some bustling parts of Nigeria. However, relevant law and regulatory policies have not been put in place to ensure the optimum appropriation and monitoring of the emerging goldmine.

 

Franchise, in a literal sense, actually refers to a permit, authorization or license. But on a technical ground it is important to note that it is called ‘franchise’ and that for commercial purposes. The raison d’être for the adoption of franchising is not far-fetched. Indeed, franchising is sought by many entrepreneurs primarily because of the expensive and time-consuming nature of drawing business plans, deploying marketing strategies and building a viable trust link. All these needs have been well catered for under a workable franchise scheme. 

Other benefits to franchising include avoiding failed business attempts that end up frustrating an entrepreneurial spirit at the beginning as well as on the long run. Areas in which one can navigate successfully in franchise include restaurants, transport, mobile devices, telecommunications, petrol stations, textile and numerous others. These are franchise bases that help prospective franchisees or with connections to local as well as foreign outlets. All one need to ensure is connect to their websites and find out what their requirements are and make one’s decision if the environment designed is favourable.

With a bourgeoning population of nearly two hundred (200) million and the resulting under or non-employment in Nigeria there is a great need to work towards cultivating methods to curb the ugly trend. In Africa, Nigeria is yet the largest destination for Foreign Direct Investment. Recently, the National Bureau of Statistics says the country’s unemployment rate rose from 14.2% to 18.8%. It also maintained that Nigeria’s labour population increased from 83.9 million in the second quarter to 85.1 million in the third quarter of 2017, a difference of 1.2 million in additional workforce. It further stated that total unemployment and underemployment combined increased from 37.2% in the previous quarter to 40.0% in the third quarter.

It must be noted that certain impediments are there to operating a successful franchise scheme. Important and critical issues vis-a-vis franchising actually concerns meeting registration requirements from approved regulatory institutions, harnessing the legal cum intellectual property expertise to achieve compliance as well as management experts who are well-versed in the industry. The only legally approved agency seeing to the registration of franchises in the country presently is National Office for Technology Acquisition and Promotion (NOTAP). Berating the poor state of franchising in the Nigerian economy, Dr. A.O. Okongwu one-time DG of the NOTAP noted that; “International franchisors have not expanded into Nigeria (compared to their expansion into Asia) largely because of ignorance of immense market opportunities in Nigeria and the absence of a franchise-specific legal and regulatory requirement. Against this background, the legal and regulatory mechanism for establishing a franchise in Nigeria would be examined.

Franchise agreements typically involve the licensing of intellectual property (IP) to the franchisee. Trademarks, copyrights, trade secrets, and even patents and know-how may be transferred under a franchising agreement. The NOTAP Act mandates that all agreements for the transfer of foreign technology to Nigerian parties must be registered with NOTAP. The NOTAP Act is triggered whenever there is an agreement having effect in Nigeria for the transfer of foreign technology to Nigerian parties.

In the entire Federation, there is no specific legislation relating to the operations of franchise. Though, franchising as an activity could well be said to have occurred in the country no regulation is directly linked to monitor the legality of the process of franchising. This notwithstanding, several laws and policy statements have gone a long way in affecting franchise in Nigeria. This is to mean that though no arrowhead legal provision relates to franchise, some provisions of some laws nevertheless affect franchising in Nigeria. 

The legal principles that govern contractual and commercial transactions cannot provide an effective regulation for franchising in Nigeria. The dialectics of franchising in Nigeria are actually interlocked by investment laws, competition laws, company laws, intellectual property laws; labour laws, immigration laws and a couple of others.  

Exemplarily, this sort of laws principally include the Company and Allied Matters Act, the Immigration Act Cap 171 LFN 1990; the recent Competition and Consumer Protection Act 2018 (in view); Tax law;  the Investment and Securities Act 2007; the Trade Disputes Act and many relevant others.

Now, it equally needs to be appreciated that some laws having to do with the substantive laws of the major concern of the franchisee/ors would likewise be applicable. For instance, if an entrepreneur seeks to transact under the franchise of an international company majoring in electricity generation, transmission and distribution, no doubt they would have to consider relevant provisions from the Electric Power Sector Reform Act to determine their positions in a manner which is adverse to their legal interests and contractual commitments. So in essence, the laws governing the substantive issue must be acknowledged and duly researched. Ditto, though two different jurisdictions would be involved it would be the jurisdiction of the franchisee in situ.

Moreover, regarding the function, the NOTAP Act provides in clear terms for the regulation of franchise in the country. Indeed, the centerpiece of the functions of the Office was well adumbrated in S.4(d) of the NOTAP Act Cap 273 LFN 1990:

The registration of all contracts or agreements having effect in Nigeria on the date of the coming into force of this Act, and of all contracts and agreements hereafter entered into, for the transfer of foreign technology to Nigerian parties; and without prejudice to the generality of the foregoing, every such contract or agreement shall be so registrable if its purpose of intent is, in the opinion of the National Office, wholly or partially for or in connection with any of the following purposes,

Such purposes are pointedly enunciated in the subsections to relate to the use of trade-marks; the right to use patented inventions; the supply of technical expertise in the form of the preparation of plans, diagrams, operating manuals or any other form of technical assistance of any description whatsoever; the supply of basic or detailed engineering; the supply of machinery and plant, and; the provision of operating staff or managerial assistance and the training of personnel.

Again, it should be noted that no agency is established to regulate franchising in the country, the National Office of Technology Acquisition and Promotion (NOTAP) is playing the front row duty of registering certain technology transfer agreements(so is it dubbed). Other agencies that may become important only become so to the extent that the subject matter of the franchise determines and as a matter of incidence. Thereby, it would be realized as in the illustration given before now if a franchise has electric power as its subject matter then it means the Nigerian Electricity Regulatory Commission would have a proper standing. So also in matters of telecommunications the Nigerian Communications Commission would be relevant, the same also goes for food and pharmaceutical needs the National Agency for Food and Drugs Administration Control would in every way be involved. So while no agency is stricto sensu established it need must be appreciated that other agencies become indispensable for compliance and other related objectives in the event of registration of the franchise. These other agencies may also include the Nigerian Copyrights Commission, The Registrar of Trademarks, Patents and Industrial Design, Federal Ministry of Commerce, the Nigerian Investment Promotion Council and a host of others.

 

As mentioned earlier, the NOTAP Act simply regulates the legal as well as proper conduct of franchise agreements in the Federation. Its provisions serve as an effective guide to a workable transfer and management of technology arrangement between relevant parties. While the foregoing Act has provided in the average manner it can for franchise regulations in the country, there are palpable lacunae in Nigeria’s supposed legal machinery for franchising. Anti-competitive tendencies, restriction of prices, market dominance and other ignoble practices of franchising appear to have let out a can of worms for the effective legal as well as regulatory framework for the franchise industry. This unbecoming incidence has posed a lot of questions from several quarters, to wit, whether enacting a franchise specific legislation would suffice or would rather be a ‘dis-enabler’ on the long run. The enactment of a competition law is in the pipeline in Nigeria. It is hoped the law would provide valid, workable responses to the challenges and inhibitions to the problem of competition in the franchising country. As an aside, legal issues are not the only issues challenging franchise system in Nigeria. Indeed and apart from legal uncertainties it must be emphasized that many international franchises also take care of the problems of the proper management of their franchises. This is barraged by the worsening economic conditions.

For more about the legal requirements of the operations of NOTAP kindly consult here.

References

• Nigeria’s Unemployment Rate Rises from 14.2% to 18.8%, Dec 23, 2017 Vanguard Newspapers.
• Nigerian International Franchising Association Newsletter December 2013, Dr. Uche Eweluka Ofodile, Franchising Law in Nigeria.
• National Office For Technology Acquisition and Promotion Act CAP. N62 L.F.N. 2004.