Traditions and Principles of Crime Punishment in Yoruba Land

Ise Agbe nise ile wa
ENI KO SISE
A MAA JALE
Iwe kiko laisi oko ati ada
ko ipe o ko ipe o!

Translation:

(farming is the occupation of our society

ANYONE WHO DOES NOT WORK

WILL STEAL.

Formal education without hoe and cutlass is Incomplete).

The Yorùbá nation is one of the three major ethnic groups in Nigeria. A greater percentage are located in Ekiti, Lagos, Ondo, Ogun, Osun, and Oyo States, while some occupy parts of Kogi and Kwara States. Some also reside in the Republic of Benin, Cuba and Brazil. There are other Yorùbá people in Diaspora who either live outside Nigeria for greener pasture or as a result of the 18th century Trans-Atlantic slave trade that displaced so many Nigerians off their ancestral societies.

James F. Quinn notes that many policies concerning punishment introduced over centuries remain unquestioned today, where each idea appeared in a unique social and political setting and if a balanced contrast would be made with our current society, it must be examined in light of past and present experiences. However, knowing where and why these practices began can help us understand where we are today. The focus of this chapter is on the issues that concern punishment of crimes in precolonial Yoruba land, the South Western extraction of Nigeria. This chapter would also discuss the specific practices of culture in the crime punishment system.

The Origin of Punishment

The early society recognized punishment as a satisfaction to offended gods or families. Families were usually large, clan-like groups that exerted strict control over their members. The welfare of the group, not the quality of justice received by an individual, was their main concern. Crime was rare. When a wrong occurred, the victim’s family sought vengeance, creating a history of bloody feuds between clans. As cities developed, the family weakened as a primary source of social control. Hence, crime increased and lawlessness threatened to disrupt society. This led to a greater reliance on government efforts to control individual behavior. As crime became a problem, punishment became important as a method of controlling individuals, and formal legal codes appeared.  The code of Hammurabi, written in Mesopotamia about 1700 B.C.E., is one of the most famous of the ancient criminal codes. It used the principle of lex talionis, (equivalent retaliation) to limit the severity of revenge that could be taken by families.

Many ancient cultures used this principle as a basis for punishment. The Old Testament dictum of “An eye for an eye, a tooth for a tooth” resonates very well with proponents of this concept of revenge. Although used today as a justification for severe punishment, the original purpose was to limit vengeance to a retaliation that matched the offense. This helped to control feuds but did not eliminate them. Ancient societies had ideas about fairness that were very different. Until the time of the American Revolution, the status of the victim and offender were vital in setting the level and type of punishment. Crimes by slaves were severely punished than those of freemen; acts that hurt nobility were treated more harshly than those that injured peasants. These distinctions were seen as perfectly natural by their creators because they reflected the organization of those societies and their religious beliefs (Quinn, 1999)

YorÙbÁ Culture and Social Values

According to the Webster dictionary (2012), Culture is the sum total of attainments at any specific period, race or people including their implement, handicrafts, agriculture, economics, music, arts, religious beliefs, traditions, language and story. It encompasses material and non material attributes of a given people and society. In a much broader exposition of culture, it follows that to build houses, cultivate farms, construct bridges, manage successful formal education, manage successful business or organization, control population growth, prevent or cure sicknesses and diseases, ensure social trust, good governance, law and order etc, man needs an established albeit critically receptive body of ideas and beliefs, designs, techniques and methodologies, rules and regulations;- culture. This explains culture as the totality of man and his activities. The Yorùbá traditional society, being culturally endowed in all sphere of the societal structure has values. All human endeavours in any society are guided by principles or values which cover every aspect of human activities within the society.

Social value is the widely shared principle and standards in a society. The Yorùbás are guided by social values, the bedrock of their culture. This is because it covers religion, economics, politics, moral and so on. The Yoruba social values like all African social values are humanistic, hence makes them remain unshakable irrespective of the invasion of foreign values. The attributes of the Yorùbá social values include sense of good human relations, community, hospitality, respect for authority and elders, extended family relations and  religiosity which signifies the attributes of African social values.

The Yorùbá human relation recognizes the worth of every member of their community. Bearing in mind that each member has a role to play within the society no matter how small or irrespective of the social class and status, every member of the society relates together as one thereby describing them as brother’s keeper.

A Yoruba person is identified by his or her community. The African ideas of security and its value depend on personal identification with and within the community.  The community also instills in every individual the spirit of oneness and hard work.

The Yorùbá people are hospitable. They welcome visitors amidst them and try to guide them from danger as well as freedom to live as other members of the community. Social relations are strengthened through respect for authorities and the elders. The elders are assumed to have communal wisdom and are saddled with leadership in the affairs of the people. Respect is one of the major principles that guide behaviour of Yorùbá families.

Extended families aided cohesion and stability such that the security is not just for the old, but also the poor and disadvantaged members of the family, who have been seen to have made efforts but have not been successful. It implies that the extended family provided a comforting atmosphere for its member’s survival. Religion was also the basis on which moral values rest as it lends meaning and authority to values. It also strengthens social relations and makes man have respect for human life and dignity.

SOCIAL ORGANIZATION AND SOCIAL CONTROL AMIDST THE YORÙBÁ PEOPLE

The traditional social organization of the Yorùbá people is characterized by kinship relations who comprises of a number of kindred nuclear families. They lived a communal way of life such that they attached value to extended families. (Atanda, 1996). The social structure   was stratified in hierarchy, each under the jurisdiction of an appropriate chief. The Oba and his Igbimo (oba in council) were overarching rulers because they influenced  decisions within the society. Directly under them was the Adugbo (quarter), headed by an Olori Adugbo or Olori Itun, whose appointment was ratified and approved by the Oba. Below this stratum was the Agbo-Ile (extended family compound), headed by an Olori Ebi (head of the extended family). The lowest unit was the individual nuclear home, headed by Baba (father). The extended family members  appoints the Olori Ebi, because the oldest member of the extended family usually assumed this position.

Every married man assumed the position of his own home as the family was the basic unit of society's administration as well as a judicial unit. In other words, legal and political control was exercised mainly via the family and extended kin groups. Each household member played a significant part in social control by socializing children and motivating them to conform to social order and norms. The kinship affinity of the Yorùbá family was quite strong such that it regulated behaviour of it members and made members aware of the rule of conduct. Kinship solidarity accounted for institutional emphasis on the need for provision of social security and justice of large family members hence involved the acceptance of responsibility and obligations to the group to the extent that individuals were seen, primarily, as members of their particular families before they were understood as members of society at large. The people were able to effectively control social menace in the traditional institutions with the presence of norms and values that were characterized by their cultural heritage, for instance the ‘shame culture’ among the Yorùbá which was rooted in the fact that Yorùbá society condemns shameful behavior and, therefore, people are expected to avoid things which might put them and the members of their lineage into shame. As opined by Fadipe (1970): “the Yorùbá cannot afford to pretend to be indifferent to the public…and its opinion”.(cited in Adejumo, 2010)  This implies that if a member of a family or lineage errs with respect to the accepted norm, he and the members of his family will be publicly ridiculed; public ridicule is thus an important character-molding device.

Satire was another weapon for public ridicule used among the Yorùbá to checkmate erring members of the society. It is used as a form of traditional judicial system. Satirists are like traditional policemen, who bring deviants to book. They have the license to do so without being sued, that is, the Yorùbá principle of reconciliation, conflict resolution and societal harmony could be found in the use of satire.”(Adejumo 2007/2008) There were other forms of social control mechanisms that were inhibited in songs, storytelling, folklores, festivals, proverbs and so on. These values were passed on from the old to the young members of the community, because the elders were believed to be endowed with prestige and power such that they know the norms and the values of the community. This provided the reason why the older people with experience were the arbiter of the community.

SOCIAL CONTROL PERSPECTIVE

Hirschi buttressed his view that whether individuals are law abiding or deviant depends on the extent of variance from the four factors that are critical in bonding them to the society:

1. Attachment to parents, school and peers
2. Commitment to conventional lines of action
3. Involvement in conventional activities and
4. Belief in conventional values.

He argued that the belief in the goodness of certain values such as respect for the law and for the police and belief in wrongness of such actions as juvenile delinquency – operates as a brake on delinquency. This explains that for social control mechanisms to be effective, parents and teachers who are role models have to effectively inculcate values into individuals during the socialization process. This in a way explains the traditional Yoruba society where there is strong attachment to family such that individuals conform to norms and values because of their commitment to these cultural values as well as their family roles. The social structure of the Yoruba people also gets members involved in activities that will keep them busy and distract them from deviating from the norms of the society. For instance, the introductory song that tells about the occupation of the people and failure to get involved is tantamount to stealing.

This song exposes members of the society to hard work and discourages laziness as a way of life. It also makes the people conform to the norms and values of the land. The family nurtures the individual and the individual in return recognizes and understands the implication of not conforming to the laws of the society.

Punishment in Ancient Yoruba Society

Most punishments were corporal, financial, or capital. Corporal punishment involved inflicting physical pain on the offender, especially through caning. Fines and other economic penalties were sometimes used as a means of financial punishment; and capital punishment refers to  the death penalty. In addition to these, banishment or exile was an option. Banishment or exile was a kind of social death. In most early times, however, punishment meant killing or hurting the offender. Imprisonment was also possible based on the gravity of the crime.

Witchcraft was a crime of which proof beyond reasonable doubt was practically impossible. Also, witches caused great damage to the lives and crops of their enemies, drought, barrenness in both men and women and death of individuals. As such, Witchcraft was the most serious crime in the yoruba precolonial era. In the yoruba colonised society, treason and treachery assumed first rank order as the most serious crimes. In the present era, premeditated murder and armed robbery have become the most serious crimes. These changes in the law and the rank ordering of crime and the rank order of crime seriousness in the colonial era express a particular tilt: the maintenance needs of the oppressor. In the pre-colonial era, punishing the crime of witchcraft with death helped to protect life and property. In the colonial era, the tilt reflected what was regarded as most threatening to the survival and well-being of the colonial government. In the postcolonial era, punishing premeditated murder and armed robbery with death is to deter potential murderers and robbers, so the death penalty helps in protecting life and property, just as it did in dealing with witchcraft in the pre-colonial era. In other cases however, sentences of long term or life imprisonment serves in the alternative.

The Hierachy of Seriousness of Crime

• Witchcraft Premeditated Murder- Punished with death Expected to commit suicide or self-exile for 7 years, Sacrifice to the land on return
• Murder—Manslaughter, Paid heavy compensation to the injured party
• Treason, Stealing, Arson, Adultery and incest-Excommunication, caning and shaming, Restitution paid to the loser Shaming, bad songs

Crime in Contemporary Nigeria and its Challenges

Nigeria today is characterized by many social problems which includes criminality, socio-economic issues and the security question of the nation. In all of this, it is still referred to as the giant of Africa. The existing measures may not be enough to end criminal behaviours within our society. It is the responsibility of all because the hazard which modernisation caused the society needs to be revisited. Families today are no longer positive instruments of socialization as individualism has taken over the communal way of life where every member of the society is a watch-dog of one another. Wage labour has made so many parents spend limited time with their children while housemaids who are supposed to be undergoing various socialization processes assume the motherly role for the children in their custody. The elders who are supposed to pass norms and values across to the younger generations are themselves violators of the norms. The adage that acknowledges the elder as the forebearer of peace is no longer imbibed by the people.

Agba kii wa loja, ki ori omo tuntun wo
(Where there are good elders, there is orderliness).

A child who is not socialized into the values of hard work is not expected to grow and become a person who will achieve a goal through the societal approved means of goal getting. Modernization has affected all the norms and values embedded in our culture. The western world which is always a point of reference for us in measuring development and underdevelopment did not abandon their cultural heritage totally but rather dance to the rhythm of change by modernizing their old traditions to stand the test of time. In Nigeria it is rather different. The traditional african societies used social thought that were embedded in traditional, moral and ethical values directed ultimately at social and universal survival.

The Yoruba oral philosophy is used in the education and socialization of the young to teach and ‘build’ in them knowledge about the social and physical environments and the qualities of an Omoluabi (i.e. a good personality), whose actions comply with social norms and values.

The policing structures today are centralized, though there are private policing organizations that are also used to help put the society in order. The effectiveness of these policing structures is questionable because our society is not in order compared to the traditional societies where every locality had a way of policing its environment which was through norms and values embedded in the culture of the people that were base on truthfulness.

CONCLUSION

If we re-embrace our abandoned cultural heritage embedded in norms and values of the society, it would be a plus. The norms and values enhanced and empower it members and makes the society worth living. Sacredness was attached to human life such that killing and taking of human life were majorly during wars or if the traditions were violated, that attracts execution of the offender. Values and traditions were the determinants of people’s behaviour. But the social structure of the Yoruba society witnessed transformation through colonialism and capitalism. With westernization the better part of values that could make the society worthwhile were abandoned. Individuality became the norms of our society. Salvaging the situation becomes the duty of every family within the society. The family should create time for proper socialization process to make the young one grow with good values especially with the Yoruba social thought. If every family is in order within the society, then the society at large will be better. No doubt change is vital in every society, the tradition norms and values can be modernized to suite the present time. Our media houses and communication networks can be also used to propagate these values and norms in hearts.

The pre-colonial traditional societies were also peaceful despite the different Kingdoms that existed and irrespective of their cultural and social values their crime control mechanisms were effective due to the strong adherence to social and cultural values in place, specifically, esteemed hard work within the Yoruba indigenous community.

References

• Does Capital Punishment Deter?- Steven Goldberg's Article. Morality and Philosophy
• Agbaje, J.B. (2005): The place of Yoruba proverbs in the understanding of Yoruba philosophy and education. International Journal of African and African American Studies 1 (5): 48-54.  Cited in Omobowale A. O. 2008.
• Clientelism and social structure: an analysis of patronage in Yoruba social thought. Afrika Spectrum 43 (2008) 2: 203-224 © 2008 GIGA Institute of African Affairs, Hamburg
• Ajayi, B. (2004): Riddles and the child. In: Lawal N. S./Sadiku, M.N.O./Dopamu, P.A. (eds.), Understanding Yoruba life and culture.  Trenton: Africa World Press, Inc., 501-511. Cited in Omobowale A. O. 2008. Clientelism and social structure: an analysis of patronage in Yoruba social thought. Afrika Spectrum 43 (2008) 2: 203-224 © 2008 GIGA Institute of African Affairs, Hamburg
• Akinyemi, A. (2003): Yoruba oral literature: a source of indigenous education for children. Journal of African Cultural Studies 16 (2):161-179. Cited in Omobowale A. O. 2008. Clientelism and social structure: an analysis of patronage in Yoruba social thought. Afrika Spectrum 43 (2008) 2: 203-224 © 2008 GIGA Institute of African Affairs, Hamburg
• Atanda, J. Adebowale. The Yorùbá People: Their Origin, Culture and Civilization in Olatunde Olatunji, ed. The Yorùbá History, Cultureand Language. Ibadan: Ibadan University Press, 1996, 3-36.cited in Àrinpe Adejumo, ed A postcolonial analysis of the literary and cultural consequences of the abolition of the 18th century transatlantic slave trade on the yoruba of southwestern Nigeria: LUMINA, Vol. 21, No.2, October 2010, ISSN 2094-1188
• Fadipe, N.1970.  The Sociology of the Yorùbá. Ibadan University Press, 1970. Cited in Adejumo, 2010: A Postcolonial Analysis of the Literary and Cultural consequences of the Abolition of the 18th century transatlantic slave trade on the Yoruba of southwestern Nigeria. LUMINA, Vol. 21, No.2, October 2010, ISSN 2094-1188
• Hirschi T. 1969. Social control theory in Beirne and Messerschmidt’s book on criminology. Fourth edition,  copyright 2006 Roxbury publishing company Los Angeles,  California.
• Human Development Report 1994 - www.undp.org/hdro/e94over.htm. cited in Czesław Mesjasz 2004: Security as an analytical concept, paper presented at the 5th Pan-European conference on International Relations, in The Hague, 9-11 September 2004
• Kanu, M. A., 2011. The indispensability of the basic social values in African tradition: a philosophical appraisal
• Onadeko T. 2008. Yoruba traditional adjudicatory systems.
• The new international Webster’s comprehensive Dictionary of English language. Encyclopedic edition. Standard international media Holdings. Volume 1, 2012 edition.
• Udu Yakubu, “Cultural Erosion and the Crises of Development in Nigeria” in Journal of cultural studies, Vol. 4, No. 1, 2002, 1-10
• Redressing Security and Crime in Nigeria through Traditional Yoruba Social Values and Cultural Practices- Prof. Olu-Olu Olufayo Department of Sociology, Ekiti State University

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
  

 

 

Nigeria's historical need: Constitutional Amendment or Replacement?

After being willed into existence from Lord Lugard and Miss Shaw's colonial laboratory of artificial insemination, Nigeria has battled issues that concern her existence, one of which concerns constitutional matters. This piece thus seeks to explain what Nigeria needs as pertains her constitution- a total overhaul birthing a new constitution, or a facial rebranding of the former. Gabriel L. Negretto in his work on Latin America, (In Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America) confirms that replacement and amendment are two substantively different means of constitutional transformation. Without compariaon, no doubt, Nigeria, fusion in and out of different republics has involved either of these means of constitutional transformation. How the dynamics of time affects our stance and choice for the future hence comes to play.

image source: pexels

Like Equity to common law, Constitutional Amendment is a phrase to mean "a modification of the constitution of a nation or state.". Similarly, Constitutional replacement means a total look different from the existing body of rules. S9, 1999 CFRN deals with the process by which the constitution can be amended depending on the part of the constitution that is to be altered. There is a procedure for four-fifth majority of each member of the House of Assembly, stringent for alteration. The other procedure covers a two-third majority, and at least 24 State Houses of Assembly in Nigeria. Then, the President gives an assent.

 

Read: The Legal Side to Understanding Company Liquidation

 

The saying that there is no perfect Government structure or constitution is that such does not operate itself but by human beings that should have the sense of what is good or bad and judgement between right and wrong. Constitutional amendment is not a piecemeal exercise undertaken in each term of Government. Where you cannot bring about a brand new constitution, you carry out a holistic amendment. Analysts have blamed the People's Democratic Party (PDP) that controlled the Federal Government since May 1999 on the emergence of a new constitution, the means and machinery to have carried these, as they are today, were abundant in the country.

In constitutional amendment, it will be proper to touch areas like religion, properly define it and what it accommodates. Also, Government Structure should also shift emphasis from too much administration to direct means of production, clearly defining areas of responsibility of the tiers; minimised duplicity of function but what the Federal Government can delegate to Local Governments in the exclusive, concurrent and residual lists. The constitution should also adopt a Rotational Presidency system cut through regions, ethnics and religions to bridge discontent in the hearts off citizens

A restructure of the Police is highly essential. The current centralised system with one Inspector General at the national should change and positive policies be effected. State Government area Police should not be contemplated. The Governor and hierarchy of the State will covert the Police as their private army against their opponents. The potential abuse is too much to ignore. 

Generally, the immunity clause in the Constitution that covers the President and Governors should be edited. Also a four year term is enough for honest, serious and competent leaders to achieve results. A re-election should be based on a standard of performance. Again, the number of Traditional Rulers in Nigeria is about thrice that of the members of the National Assembly. Traditional Rulers should not be accorded constitutional recognition as it brings them to conflict with the secular society leading to their replacement with elected Mayors. Some Traditional Rulers do not have or maintain the tradition of succession by  hereditary. Some are only appointed- kings are born. In the northern Nigeria, the Emirs double as Traditional Rulers and heads of religious bodies. We do not want to maintain feudalism in dilution and abreast of democracy. Traditional Rulers are better recognised within their localities.

We should at this stage be able to bring about a new constitution or carry out a holistic amendment. Truth remains still that if a constitution is properly amended, there may be little or no need for a new one. However, If either of them comes forth, it should only be reviewed at specific intervals, say per 10 years. The National Assembly needs to reduce its annual vacation from six to three weeks, consolidate and streamline its operation in order to minimise cost. 

Constitutions are likely replaced when constitutional crises are frequent and political actors lack capacity to implement changes by amendments or judicial interpretation, or when a constitutional regime has a power-concentrating design. Arguably, the frequency of amendments depends on the length, detail of the constitution and the interaction between the rigidity of the amendment procedure and the fragmentised party systems. By normative implications of this analysis, constitutional amendments in Nigeria is long overdue. This is because Nigeria has pulled through all of these.

Conclusively, whether it is the case of constitution amendment or replacement in Nigeria, the fact still remains that the evil in the system would not permit true functionality of the process. For example, the commendable strides of the Bukola-Saraki led senate once mentioned certain clauses for amendment, ranging from Devolution of powers, the land use Act, affirmation action for women and state creation boundary adjustment amongst others. These were frustrated by the ethnic, political and religious interests of the law makers as well as a lack of understanding of the implications of some of these clauses if they are left untouched. There is the failure of the Senate, but then a new constitution would be appreciated.

The Concept of Judges Rule in Nigeria

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

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

In Nigeria there are nine main rules.

Rule 1: What Questions may be asked  

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

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

Rule 2: When to caution

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

Rule 3: Persons in Custody

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

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

Rule 5

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

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

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

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

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

Rule 7: Questions which may be asked of a prisoner  

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

Rule 8: Persons Jointly Charged  

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

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

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

Rule 9: Statements  

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

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

Application of the Judges Rule 

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

Read: The Right of Widows in the Nigerian Society

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

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

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

Read: The Legal Side to Understanding Company Liquidation

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

The Sources of Law in Nigeria

The body of Nigerian law is traced to many sources. They include

• English Law
• Nigerian Legislation
• Case Law
• Customary Law
• International Law
  

 

1. English Law

This originated from England, following the Norman Conquet of the 11th Century (1066BC) where King Willim I ruled. English law has an anglo-saxon origin and at the time, King Williams performed judicia; functopns before allocating these functions to able men placed over the Norman Royal Courts. These coursr include:

• The court of Common Pleas
• Exchequer
• Kings/Queen’s Bench
  

There was an introduction of writs. This writ system involved the use of formal documents stating your pleadings before the courts. They included the writs of Habeas Corpus, Subpoena, mandamus and a host of others (Read our article on the English Law system of writs in Nigeria)
The Lord Chancellor was appointed as an appeal for cases addressed improperly at the Royal Courts. He stood in place of the king. The Lord Chancellor however presided over no court until when principles of fairness and upholding justice came in causing conflicts between the judgements of the common court judges and those of the Lord Chancellor

The judicature Act of 1873 was also birthed and became practiceable in 1875.
The Lord Chancellor (Equity) modified the Common Courts (Common law). What then is the importance to Nigeria’s civilization? What is the relevance of English law to Nigeria?

• Because of Nigeria’s historical antecedent (colonial rule). By virtue of this, the English colonial masters as part of their administrative mechanism brought these statutes to their colonies (1861 annexation and enacted laws. These laws contained English laws because:
• There was an influx of the whites who traded and disputes rose up, leading to the existence of the law
• the customary law as unwritten - the European did not understand it. Itwas also hererogenic and had no specific seat.

There are two kinds of English Statutes. They are

1. Imperial Statutes: This was forced on us. These statutes were made by Acts of Parliament. This Act of Parliament was a Foreign jurisdiction Act which was in efffect through the Orders in COuncil made by the British Crown. It was classified into
• Just Gentum -Law of Nations
• Jus Naturale - Law of Nature
2. Received English Statutes: These are "reception statutes" which were adopted on their own accord into Nigerian laws.

The Statutes of General Application before 1914 (in Lagos, Southern and Northern Protectorates)

• 1914-1960
• 1960-1963 -- Northern, Southern, Western
• 1963 -- Mid-Eastern, Northern, Southern, Westerm
• 1976 (February 6) -- Nineteen States

The strength of the Reception clasuse shows its existence in Nigeria till date.

The Statutes of General Application

The SOGA

• Section 45 Interpretation Act (Lagos)
• Section 14-15 High Court Law (Eastern Nigeria)
• Section 28 High COurt Law (Northern Nigeria)
• Section 3 Law of England (Application) Law

In the Western Region, the English statutes is absent, although the principles of common law and equity remain.

Read: The Legal Side to Understanding Company Liquidation

Nigerian Legislation

This consists of local statutes made either by the Federal or State Legislature. It should  be borne in mind, the three levels of government in Nigeria (Federal State and Local Gevernment)

• Federal Legislature
• State Legislature
• Local Government Council

 

• Laws/Edicts
• Ordinances, Acts of the National Assembly, Decrees of the military government, Laws of State Legislature, Bye-laws
  

By 1960 Ordinances, Edicts (state legislature), Decrees (military regime)

Acts of National Assembly

Subsidiary Legislation

Bye-laws are subsidiary legislation. They are made by virtue of certain powers (delegation). These bye-laws deal with motor parks, markets, hawking and related activities.

Nigerian legislation is without diminishing strength as the English law. This is because the bulk of Nigerian laws come from Nigerian legislation.

Case Laws

These are judgements of the courts. Section 6 of the Constitution of the Federal Republic of Nigeria 1999 provides for the superiority of the courts. Case law is based on judicial precedent, a doctrine of the common law which is also predicated on the hierachy of courts. According to this hierachy, the courts are arranged as

1. Supreme Court of Nigeria
2. Court of Appeal
3. Federal High Court
4. National Industrial Court of Nigeria
5. State High Courts
6. District/Magistrate Courts
7. Customary Courts
   

Election tribunals are not law courts. They are constituted for election purposes.

3 Majors from the hierachy of Courts (Case law)

From the hierachy of courts, there are hkjdjkf ijfkcxn idso

1. The Principle of bindingness: Also known as the doctrine of stare decisis (stay by decision), this is a principle  of the common law stating that judges in a case before them would abide by a previous case by higher judges in same circumstances. This principle is rational because:
• It saves the judge the trouble of bringing up new ideas in new judgments.
• It brings certainty in the law (predictability)
• Litigants are not left with the whims and caprices of judges.
2. The Principle of  Persuasive Authority: This states that a previous decision that is not on binding authority can merely be of persuasive authority. An example is the decision of the Federl High Court being considered by a State High Court.
3. The Principle of Distinguishing: This states that "even though a previous decision may be very authiritative, perhaps, coming from a higher court in the judicial hierachy, nevertheless, there may be justifiable reasons on legal grounds why a later judge presiding on similar case may oblige or refuse such decision.
   

Case law based in judicial precedent and it borders around

• Hierachy of Courts
• Stare Decisis
• Distinguishing Cases
  

Customary Law

This involves the traditions and customs of the local people "recognised" as law. Not all traditions of the locality is reckoned with as law. Customary Law has the following features and characteristics:

• It is a picture of the people's belief because it is a living law and it must be in existence before it can be recognised.
• It is dynamic (i.e it changes)
• It is unwritten

Speed C.J in Lewis v. Bankole 

• Validity
• Repugnancy Test
• Test of Public Policy
• It must not be inconsistent with any written law
  

Establishing Customary Law

Proof before the Court

Judicial Notice

The Principle of Uberrima fides

Uberrima fides is a legal principle that originated in English law and has since been adopted in Nigerian law. It is a Latin phrase that means "utmost good faith" and is an essential aspect of contract law in Nigeria, particularly in the insurance industry.

In Nigeria, the principle of Uberrima fides is most commonly used in insurance contracts. It requires both the insurer and the insured to act in good faith and disclose all relevant information to each other. This principle ensures that both parties have a full and accurate understanding of the risks involved in the insurance contract.

In practice, the principle of Uberrima fides requires the insured to provide all relevant information to the insurer when applying for insurance. This includes information about the insured's personal history, the value of the insured property, and any other relevant information that could affect the insurance contract. The insurer, in turn, must provide clear and accurate information about the terms of the insurance policy.

If either party fails to disclose all relevant information or provides false information, the insurance contract may be voided. This means that the insurer may not be obligated to pay out any claims made by the insured, and the insured may not be entitled to any compensation.

The principle of Uberrima fides is particularly important in the insurance industry because insurers rely on accurate and complete information to determine the level of risk involved in the insurance contract. Without this information, insurers may not be able to accurately calculate premiums or assess the level of risk involved in the insurance contract. This can lead to a situation where the insurer is unable to pay out claims or the insured receives inadequate compensation.

In Nigeria, the principle of Uberrima fides is enshrined in the Insurance Act of 2003. This Act requires insurers to act in good faith and disclose all relevant information to the insured. It also provides for penalties for insurers that fail to comply with these requirements, including fines and revocation of their license.

Conclusion

In conclusion, the principle of Uberrima fides is an essential aspect of contract law in Nigeria, particularly in the insurance industry. It requires both parties to act in good faith and disclose all relevant information to each other. This principle helps to ensure that insurance contracts are based on accurate information and that both parties are aware of the risks involved. As such, it is crucial for insurers and the insured to understand and comply with this principle to avoid any legal issues or disputes that may arise.

Ex parte

Ex parte in Latin literally means 'On one side only', that is Done by, for, or on the application of one party alone.

 It is a Latin term that is gotten from the phrase from “one side to a dispute”. Ex parte is a legal term that is used to describe a court proceeding where only one party is present.

In legal ethics, ex parte refers to improper contact with a party or a judge. Ethical rules typically forbid a lawyer from contacting the judge or the opposing party without the other party's lawyer also being present.  A breach of these rules is referred to as improper ex parte contact.

In civil procedure, ex parte is used to refer to motions for orders that can be granted without waiting for a response from the other side. Generally, these are orders that are only in place until further hearings can be held, such as a temporary restraining order.   

There is Ex parte motion/application and Ex parte order. 

Ex parte orders are orders made by courts upon the application of a party to litigation and without hearing from the other side while Ex Parte Application is used for one party to ask the Court for an order without providing the other party(ies) the usual amount of notice or opportunity to write an opposition. 

Ex Parte Application is used for one party to ask the Court for an order without providing the other party(ies) the usual amount of notice or opportunity to write an opposition so as to preserve the important things in a case like land or money, as the case may be. For example, where a party is just about to conclude a transaction to sell a land one has the right title to, one can obtain an Ex parte order from a court to prevent such from happening.

It is an application or paper filed in court in an emergency situation and it does not need to be served on an opponent in a suit. It is normally used to obtain an interim order from a court

Where a motion/application is made ex parte, the Court may make or refuse to make the order sought or may grant an order to show cause why the order sought should not be made or may direct the motion to be made on notice to the parties to be affected thereby.

Ex parte orders are supposed to be temporary and are not to last more than 14 days.

Section 12 (1) of the Federal High Court (Civil Procedure Rules) 2000 states that “no order made on motion ex parte shall last for more than 14 days…or last for another 14 days after application to vary or discharge it has been argued”.

In other words, ex parte orders are not supposed to last more than 28 days, even if they are extended. This is because, by nature, they are only supposed to be temporary.

Unfortunately, Nigerian courts now generally issue ex parte orders for 90 days and up to 180 days, in the case of an extension.

Whenever a case citation starts with Ex parte, it usually indicates that the decision was made in the absence of one of the parties of the case. 

See: RE: Ex parte application of Tiberius Group AG and Gross, Ex Parte Kingston 3PLR/1871/1 (CA-E)

Why Do Lawyers Speak Legalese or Legal Jargons?

Legalese is a technical form of writing often used by lawyers and members of the legal community to discuss legal definitions, terms, laws, and contracts. It is the formal and technical language of legal documents. One example of legalese is the terms and conditions of a contract. 

Lawyers use words in their ordinary meaning just like every other member of the public on the one hand, and on the other hand, lawyers use words in a special/technical sense and thus give such a word a legal or uncommon meaning, such as "abate", which in law means to suppress a nuisance or to suspend a claim, or action, and a word like "bench" which in law means Judges or Magistrates collectively, etc.

The History of Legalese

Lawyers often use a lot of archaic or old words because much of the common law on which English law is based was developed in the 15th century when the commonly used words were Roman and Latin. 

Legalese can also be referred to as Legal jargon/terms so most laymen find it difficult to understand. 

In light of this, Lawyers refrain from using too much legal terms when relating with clients and laymen so as to further effective communication.