Justiciability of Chapter II of the Nigerian Constitution

Justiciability of Chapter II of the Nigerian Constitution

Have you ever heard anything about the justiciability of Chapter II of the Nigerian Constitution, 1999, which contains socio-economic rights?

Are you aware of the fact that these rights contained in the second chapter of the Nigerian constitution are not enforceable, or non-justiciable? This post is on this issue, and possible solution.

The Chapter II of the Constitution of the Federal Republic of Nigeria, 1999, is titled, and includes, ‘Fundamental Objectives and Directive Principles of State Policy.’ The provisions of this chapter of the Nigerian Constitution can also be called Socio-economic rights.

These socio-economic rights are different from the Fundamental Human Rights provided for in Chapter IV of the Constitution, titled ‘Fundamental Rights’. While the later are justiciable in Nigeria, with original jurisdiction to the High Court, the former are, however, unenforceable or non-justiciable.

This Chapter II of the constitution of the Federal Republic of Nigeria, 1999, houses sections (13)-(24) of the constitution, which provides, inter alia, for certain duties of the government for the benefit of the citizenry, as well as duties of the citizens of the state.

Section 18(3), in the Chapter, provides thus: Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide-

  • free, compulsory and universal primary education
  • free university education; and
  • free adult literacy programme

Also, Section 14(b)-(c) of the Chapter provides: ‘the security and welfare of the people shall be the primary purpose of the government; and’ ‘the participation by the people in their government shall be ensured in accordance with the provisions of this constitution.’

Of course, on the part of citizens, the Chapter also provides in Section 24(b), among other provisions of the section, as the duty of every citizen, to ‘help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;’

Do you find the aforementioned rights interesting? There are more. However, there is a caveat. This entire Chapter II of the constitution of Nigeria is unenforceable.

It can be further noted that Item 60 of the Second Schedule to the constitution, which is part of the Exclusive Legislative List, provides, therefore, that the National Assembly can legislative on ‘The establishment and regulation of authorities for the federation or any part thereof- 60(a) ‘to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution;’

See also: Definition and meaning of Law

However, the Constitution stipulates that the provisions of Chapter II of the constitution are unenforceable, by ousting the jurisdiction of the Nigerian courts from enforcing any of such provisions. This is according to Section 6(6)(c) of the Nigerian Constitution, which states, inter alia, that the judicial powers vested in the courts of the state ‘shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or so as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directives Principles of State Policy set out in Chapter II of this Constitution;’

Therefore, the provision of Section 6(6)(c) serves as an ouster clause, limiting the judicial powers of the courts as to enforcing the provisions or deciding upon whether the act or omission of any authority or person is in line with the Chapter II of the Constitution.

This provision has further been given judicial authority as it is so held in the case of Attorney General of Ondo State v. Attorney General of the Federation (2002) 9 NWLR Pt.772,and other like case(s).

However, in Olafisoye v. Federal Republic of Nigeria (2004) 4NWLR Pt.864, the court was seen to have shifted from this view, as in the case above, by holding that when Section 15(5) is read together with Item 60(a) of the Second Schedule, it can be justiciable.

Section 15(5), which is part of the Chapter II of the Constitution, provides that ‘The State shall abolish all corrupt practices and abuse of power.’

Arguably, however, it can therefore be postulated that the view the court in Olafisoye v. Federal Republic of Nigeria, should be followed and widened, going forward. Widened in the sense that no other provision of the constitution need be read with the provisions of Chapter II for them to be justiciable.

See also: Natural Law Theory

The provisions of Chapter II should not be read in isolation to that of Chapter IV of the constitution, but rather, as complementary. For a citizen cannot be said to hold and enjoy his right to life, when he does not have access to adequate health care system, good employment, satisfactory shelter and clothing, sufficient education for the century, decent environment, security, and others.

Simply put, the rights of the citizenry provided under Chapter II of the Constitution of the Federal Republic of Nigeria are more relatable to those which are provided under Chapter IV of the same constitution, than divided. In fact, divided they fall.

It should be noted that this kind of interpretation that promotes interrelatedness of human rights is not strange to some other known jurisdictions. In India, for example, while the Directive Principles of State Policy is provided for in Part IV of the constitution of the country of more than a billion citizens, Section 37 of the same chapter provides for their unenforceability.

However, there has been so much judicial activism in India to promote the inseparableness, indivisibility, and interrelatedness of human rights. And this has paid off.

Consequently, section 21 of the constitution of India, which is part of the Fundamental Rights, and specifically provides for right to life and personal liberty of the citizenry, has been interpreted as not just being right to physical life, but also to enjoy life, and that the state must ensure that citizens live a decent and fulfilling life.

See also: Legal Positivism: Positive Theory of Law

Therefore, in the Indian case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal & Anor (1996) 4 SCC 77, in which a man sued the state because he was denied a bed in a hospital which was full, after he had an injury in falling off a train, the Supreme court of India held that the right to life of a citizen included the provision of timely medical care in order to preserve the life.

Such decisions as is seen above should not be unheard of the Nigerian Judicial system, even in more express terms, as so much as possible, in order to bring to existence the provisions of Chapter II of the Nigerian constitution, and explicitly preserve that of Chapter IV.

What more can be said of South Africa, where the Socio-economic rights of the citizenry have been incorporated into the Fundamental rights. Therefore, while Section 27(1), as part of the Country’s ‘Bill of Rights’, provides that ‘Everyone has the right to have access to-’ health care services, sufficient food and water, and social security, Section 27(2) provides that ‘The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.’

It would be of utmost benefit to the state, in line with this issue, if this feat can be achieved in Nigeria. But even now, the legal system of the country can be fashioned to produce outstanding and sustainable development for the country by radical judicial activism, on both the parts of the bar and the bench.

The time is now. We should not stay under the shade of unavailability of resources, but press on to achieve the justiciability of our Socio-economic rights.

God bless Nigeria.

Credits

Wikipedia

Legit.ng

nigeria-law.org

Consideration in contract: Definition of Consideration & More

CONSIDERATION IN CONTRACT

For a party to be entitled to bring an action on an agreement, he must demonstrate that he contributed to the agreement. It is this contribution that is called consideration.
A more comprehensive definition of consideration was given by Lush J in (Currie v Misa)

“valuable consideration in the eye of the law may consist either in some rights, interests, profits, benefits accruing to one party, or some forbearance, responsibility or loss suffered or undertaken by the other. Thus, consideration does not only consist of profit by one party but also exists where the other party abandons some legal rights in the present or limits has legal freedom of action in the future as an inducement for the promise of the fort…”

In a simple language, consideration is the price for the contract. It is the advantage one party conforms on the other or the disadvantage he would suffer in exchange for what he would get from that other party.

While emphasizing the importance of consideration the court hold In (Best (Nigeria) Ltd V Blackwood Hodge (Nigeria) Ltd & Ors).

“It is basic that to constitute a binding contract there must be an agreement in which the parties are ad idem on essential terms and conditions thereof. The promise of each parties must be supported by consideration”

In a like manner the court held on (Pada Chabasaya v Joe Anwasi) thus “A contract in which consideration has not been met is one that can be said has been breached and is unenforceable, as consideration is one of the terms of a contract”

A promise which is not supported by consideration cannot be enforced. The party cannot rely on moral obligation to bring an action in court. This was laid down in 1840 in the case of (Eastwood V Kenyan) Eastwood was a guardian to Mrs. Kenyan whilst she was an infant. He had spent a considerable amount of his money in improving her estate and in bringing her up. When she reached maternity she promised to reimburses for his expenses. Her husband also promised to do so independently. When they failed to carry out their promises, he sued them.

The plaintiff relied on the defendant moral obligation to him to fulfill their promises.

The suit was dismissed and moral obligation was rejected as the basis of an action, Natural love and affection also cannot equate consideration. In (Faloughi v Faloughi) the court held thus “Love and affection is not valuable consideration in the eye of the law, as it cannot be quantified in terms of money value”

Rules Governing Consideration

A. CONSIDERATION MUST MOVE FROM THE PROMISEE

Only a person who has furnished consideration in a contract is the one that can bring an action to enforce a promise given by the defendant.
Conversely, a party that has furnished no consideration in a contract cannot bring an action to enforce that contract, else his action will fail for lack of consideration. In other words, the plaintiff must show what he gave in exchange for the promise given to him by the defendant.

Thus, in Tweddle v Atkinson. A couple was getting married. The father of the bride entered an agreement with the father of the groom that they would each pay the couple a sum of money. The father of the bride died without having paid. The father of the son also died and so was unable to sue on the agreement.
The groom made a claim against the executors of the will but the court held that the groom was not a party to the agreement and the consideration did not move from him. Therefore, he was not entitled to enforce the contract.

INSTANCES OF LACK OF CONSIDERATION

i Gratuitous Promise by defendant

A promisor can withdraw his promise at anytime without liability if the promisee has furnished no consideration to the promise that has been made to him, and any attempt to enforce the promise against the promisor will fail for lack of consideration.
The implication of this is that where a party cannot show what he promised or did in exchange for the promise of the other party, it would mean that the other party’s promise was gratuitous and not binding on the promise.

Thus, in (L.A Cardoso v The Execution of the Late J. A Doherty).
The plaintiff obtained various loans from the late Deherty using his properties as collateral for the loan. On his failure to repay the loans, the ownership of the properties passed to Doherty who proceeded to sell them leaving only the one which the plaintiff was living, with a promise that the plaintiff would be permitted to live in it for the rest of his life. Upon the Doherty’s death, the executors of his estate also reaffirmed the promise, but later changed their discussion and made sell the house.

The plaintiff sought a declaration that he was entitled to live on the property for the rest of his life, and an injunction restraining the defendants from selling it.

The West Africa court of Appeal held that the declaration and injunction would be refused on the ground that the plaintiff finished no consideration for the promise.

ii. Non-performance by the Plaintiff
In (BFI Group Corporation v Bureau of Public Enterprise), the court held
“A person seeking to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him”.
Going by the foregoing, it is the position of the law that he must have furnished consideration to the contract before attempting to enforce it under the law, otherwise, his action will fail.

In the case of (Banks of West Africa v Fagboyegun)
The defendant signed a contract of guarantees which he agreed to guarantee a debt owed by a third party to the bank. The third party could not pay the debt and the defendant repaid part of the debt to the bank. The bank then brought an action to recover the balance of the debt.

The court held that the plaintiff could not recover the balance because it did not furnish consideration for the guarantee. Apparently, the guarantee was made with an exchange of consideration that a further loan would be advanced to the third party but the bank has failed to perform.

iii. Where consideration is furnished by a third party and not the plaintiff
Where the plaintiff is relying on a consideration furnished by a third party, the action will fail and the consideration will be regarded as invalid to the contract.
This principle is a blend of the doctrine of privity of contract and the principle that consideration must move from the promisee to the promisor. By operation of the doctrine of privity of contract, only a party to a contract can of course bring an action to enforce it and the third party is regarded as a stranger to the contract between the plaintiff and the defendant.

Thus, in (Gbadamosi v Mbadiwe), the Action Group gave a loan to the defendant and his party (Democratic Party) in 1959 to fund the party’s contest in the federal elections of that year. The plaintiff who was then the federal treasurer of his party (Action group) sued in his personal capacity rather than in a representative capacity to recover the loan.
The court held that the plaintiff did not furnish any consideration in respect of the loan and so the action failed.

iv. Claim in excess of benefit provided for in an agreement
Where one of the parties to a contract confers an extra reward on the other party after the main contract itself has been concluded, it is assumed that a new contract has emerged which the beneficiary has to furnish consideration to in order to be able to enforce the extra reward.

The promisee cannot rely on the consideration furnished in the initial contract to lay claim to the extra benefit.
The principle was applied (Egware v shell BP petrol Development Co. of Nigeria) The defendant acquired land from the plaintiffs, paying in full for the acquisition of the land. In ancillary to this contract the plaintiff claimed they will allow the defendants to use the land for drilling purposes on the promise that all minor contract jobs would be awarded solely to the plaintiffs.

The court held that the promise could not be enforced against the defendants who had full rights over the land (upon full payment for the land) because the promise was not supported by any consideration from the plaintiff.

B. CONSIDERATION MAY BE EXECUTORY OR EXECUTED

Consideration is executory when the offer  and acceptance consist of promises, i.e. promise against promise. The offeree is making a promise in return for the offeror’s promise. Both parties become bound in the contract prior to actual performance. A contract is constituted by the exchange of promises.

On the other hand, a consideration which initially was executor becomes executed at the pointt where what was promised by a party to the contract has been carried out or fulfilled.
However, in a unilateral contract, a consideration becomes executed when it consists of actual performance in return for an offer.
It is taken that performance of the offeree consists both of acceptance and consideration.

C. CONSIDERATION MUST NOT BE PART

The consideration which the plaintiff is relying on while instituting an action must not be in the past, unless his action will fail subject to certain conditions.
A consideration is considered to be in the part when the act of consideration antedates the promise made by the other party i.e, he has performed the act prior to when the promise was made and was in fact not expecting the promise at all at the time he was performing the purported consideration. Such consideration will be deemed to be invalid.

Thus, in (Akenzua II Oba of Benin V Benin Divisional Council)
The defendant approached the plaintiff to help use his influence to persuade a company to release some forest areas over which the company had exclusive right. The company conceded as a gesture of goodwill. Later on, the plaintiff requested the defendants to release one of the four forest areas secured to him for exclusive, exploitation, and they agreed. They later withdraw their consent and the Oba instituted these proceedings for breach of contract.

The court held that the plaintiff’s consideration was past. His services in securing the release of the forest areas had been done before the defendant resolved to grant him exclusive use of one of the forest areas.

Similarly, in (Re McArdle) a deceased left a house jointly to his children. The wife of one of the children, who was living in the house with her husband spent a lot of money making improvements and carrying out alterations to the house. Later on, the other children jointly signed a document agreeing to pay a sum of money for her expense.

The court held that the promise to make payment was not binding as it was made after the consideration had been performed.
However, there are exceptions to the above principle subject to certain conditions, a past consideration can stand as a valid consideration in the cause of an action.

The exceptions or conditions include the following

  • 1 The act was done at the request of the promisor
  • 2 The parties understood that the act was to be remunerated whether by payment or the conferment of some other benefit.
  • 3 Payment, or the conferment of a benefit must have been legally enforceable had it been promised in advance.

Thus, in (Lamplaigh v Brathwat), the defendant who had killed someone requested the plaintiff to endeavor to obtain a pardon from the king for his offence. The plaintiff managed to get the pardon, in the course of which he spent many days riding and journeying at his own cost across the country to where the king was and back again.
The defendant then promised to pay him 100 pounds for his efforts but failed to pay.

The court grave judgment for the plaintiff holding that there was good consideration as the plaintiff acted upon the defendant’s request. The defendant original request which contained an implied promise to reward the plaintiff for his efforts and the subsequent promise to pay were to be treated as the same transaction.

See also: Termination of offer in contract

However, considering the above case, it would be observed that the exception principle more pronounced is that a mere prior request by the defendant constituted an exception to the principle of past consideration. If this is to be followed, it means the decision of the court on (Akenzua II Oba of Benin v Benin Divisional Council) is questionable as there was the occurrence of prior request too.

This led to the second exception of previous request that the parties must have understood that the act was to be renumerated, whether by payment or the conferment of some other benefits.

Thus in (Stewant v Casey), the defendant managed some patents owned by the plaintiffs. After Casey had worked on the patents for two years and completed most of the work, the plaintiff signed a document promising to award him one third share of the patents. Subsequently, the plaintiff claimed that the defendant was not entitled to the one third share because he furnished no consideration for the promise and if any, it was past.

The court held that the consideration was not past because at the time the defendant rendered the services to the owners of the patent, it was understood that the service would be paid for the work due not in a matter of goodwill but something a manager would have expected to be paid for. The subsequent promise was, therefore the affirmation of an already existing obligation.

4 Manufacturer’s Guarantee

In Commercial Transaction, guarantees are given most times to customers after the customer has bought the goods.
Scientifically following the rule of past consideration, the consideration given by the customer to the promise of guarantee of the manufacturer apparently falls to the part and should be considered invalid.

Nevertheless, it is still considered as valid and enforceable.
v. Application of the Limitation Act Sec 27(1) of the Bill of Exchange Act 1882 provider that valuable consideration for a bill may be constituted by
a. Any consideration sufficient to support a simple contract
b. An antecedent debt or inability

The implication of this is that a party can rely on a previous debt as a consideration to enforce a contract.

d. Consideration need not be adequate, but must be sufficient in law.

Adequacy of Consideration

It is not the business of the court to determine whether what a party is giving as a consideration for a promise is enough or adequate i.e. they do not compare the valves of consideration furnished by the plaintiff with the defendant’s promise because parties have the freedom to contract as they wish. This is what is meant by the ascertion that consideration need not be adequate.

In (BFI Group Corporation v Bureau of Public Enterprise), it was held thus
“Once consideration is of some value in the eye of the law, the courts have no jurisdiction to determine whether it is adequate or not”.
Thus , in (African Petroleum Ltd v Owodunni), the appellant provided accommodation for the respondent which was worth N65,000 per annum at market value but for which the parties agreed that he should be paying N400 per annum.

The court held that there was a consideration regardless of the adequacy or otherwise.
See also (Thomas v Thomas) Indeed, in the observe of any vitiating, such as fraud, duress, undue influence, mistake or misrepresentation, the court will be ready to enforce the contract.

In the presence of any vitiating element if provide the contract will be declared as invalid.

Sufficiency of Consideration

While consideration need not be adequate, it must however have some value in the eye of the law. It must comprise some element which can be regarded as the price of the defendant promise. It must be ascertainable and not vague, useless, unascertainable or meaningless.

Something of Value in the eye of the law

It has been unsettled as to what is meant by the expression “something of value in the eye of the law”. No judicial discussion has disclosed any principle that the court use to analyse the term on any certain way.

However, whatever act or promise that is offered as price for the promisor’s promise, it must not be illusory, it must carry some relatives meaning in itself.

Thus, in (Chappell & Co. Limited V Nestle Co. Ltd), the plaintiff owned the copyright of a popular tune which had been made into records. In order to promote the sales of their chocolates, the defendant company bought a large number of the records which they then retailed to the public at I shillings 6 pence plus 3 empty wrappings of their chocolate as against the normal retail price which was 6 shillings 8 pence.

The implication of this is that the royalty of 6.25% which the plaintiff were entitled to on the retail price will now be on the 1 shillings 6 pence and the 3 wrapping. The question therefore was whether the 3 wrappings which had no apparent economic value, formed part of the consideration for the

It was held that the chocolate wrapping form part of the consideration. They formed part of the price for each record as stipulated by the defendant. See also, (Youms v Chidiak).

However, in (White v Bluet) a son’s promise to his father to stop complaining that how the father had distributed his property among his children was held not to be a valid consideration for the father’s promise to discharge him from his debt he owed the father.

From the foregoing cases, it can be deduced that for something to be of value in the eye of the law the promise must show that at the request of the promisor he had parted with something he could have kept or refrained from exercising a right he could have assented.

Contributed by: Adedokun Samuel

Termination of Offer in Contract

TERMINATION OF OFFER

An offer in contract may be terminated by some means. Termination of offer may be by revocation, lapse of time, death of the offerror or offeree, or rejection.

1. By Revocation

An offer may be revoked any time before acceptance. The revocation of an offer before acceptance involves no liability on the part of the offeror even though he promises to keep the offer open for a specific period of time and nevertheless revokes the offer before the expiration of that period of time because such promise is not supported by any consideration from the offereee.

Thus, in (Routledge v. Grant) the defendant wrote to the plaintiff offering to purchase the lease of his house, “with a definite answer to be given within 6 weeks.’’ He however changed his mind about the purchase and wrote to the plaintiff once again that he has withdrawn the offer. After receiving the second letter (which has revoked the offer), the plaintiff purport to accept the defendant’s offer.

The court held that the first letter did not bind the defendant to keep the offer open for a full 6 weeks, and as such it had been validly withdrawn by the defendant, and the plaintiff’s purported acceptance was ineffective.

However, it would have been a different case if the promise to keep the offer open had been met by some consideration moving from the offeree, i.e. on the above case, had it been the plaintiff had finished consideration to the offeror to have him keep the offer open for the stipulated time, the offeror cannot validly revoke the offer before the expiration of that period.

Thus, in (Mountfond v Scott), the defendant granted the plaintiff an offeror to purchase his house within the period of 6 months. Mountford then gave 1 Pounds as consideration for the offer to be left for the 6 months.
Scott then purported to withdraw the offer before the expiration of the 6 months. The court held that other withdrawal or revocation was void and invalid.

Also, the revocation of offer must be brought to the notice of the offeree before he accepts the offer. A revocation of offer that was done subsequent to the communication of acceptance would be invalid.

The communication of revocation can also be carried out by a third party whether with the knowledge of the offeror or not. i.e, where the offeree finds out about the withdrawal of the offer from a reliable fluid party, the revocation is effective and the offeree can no longer claim to accept the offer.

In (Dickinson v Dodds) the defendant offered to sell some houses to the plaintiff, giving two days in which to accept. A day later someone told the plaintiff that the defendant was negotiating to sell the housed to a third party. Shortly after that, the plaintiff purported to accept the offer.

However, the defendant had already sold the houses to the third party before the plaintiff’s acceptance.
The court held that the offer had been effectively revoked before any acceptance by the offeree. And that a communication by a friend or other party that an offer had been withdrawn was valid and would be treated as if it came from the person themselves.

However, the revocation of unilateral contracts raises peculiar problems. It has been said that in unilateral contracts, the acceptance takes the form of performance.

Thus, acceptance is not complete until the offeree completes performance. If this is followed to its logical conclusion, it means that even though the offeree has commercial performance, the offeror can revoke the offer any time before its completion.

As against this logical conclusion, it has been held that once performance commences, acceptance is taken to have been made and although the offeree is not entitled to the reward until he completes the performance, the offeror no longer has power to revoke.

In (Errington v Errington), a father bought a house for his son and daughter to live or (on a mortgage arrangement). He paid 250 euros in cash and borrowed 500 euros from a building society on the security of the house, the loan being repayable with interest by installments a week. The house was in the father’s name and he was responsible to the building society for the payment of the installments. He told his daughter in law and son that if they repaid the loan, the house would be theirs.

They accordingly commenced payment of the installments, and a substantial part of the loan had been thus repaid before the father died. After his death, his widow purported to revoke the father’s promise and revert the house to the father’s estate. It was held that the father’s promise was a unilateral contract and therefore the widow could not revoke, since the father could not have revoked were he to be alive.

2. By Lapse of Time

An offer may be terminated if there is no acceptance after an appropriate lapse of time. Where the offeror states that the offer is open for a specific period of time then the offer will be terminated after the passage of that period of time.

Where no particular period was stated, an offer would still lapse after the expiration of a reasonable period of time; what is reasonable would be determined by the nature, subject matter, and the peculiar circumstances of the offer in each case.

Thus in (Ramsgate victoria Hotel v. Montefoire) the defendant offered to buy shares in the plaintiff’s company at a certain price and he paid a deposit to his bank account to beg them on June. He did not hear anything until November when the offer was accepted by the plaintiff. By this time, the value of shares has fallen and the defendant was no longer interested.

The court held that the offer was no longer open as due to the nature of the subject matter of the contract. The offer lapse over a reasonable period of time.

3. BY DEATH OF THE OFFEROR OR OFFEREE

Where the offeree has noticed of the death of an offeror before acceptance, he cannot validly accept the offer.
Where the offeree accepts without notice of the offerer’s death whether the acceptance will lead to a contract depends on the nature of the contact itself. If the contract is such that can be performed from the offerer’s estate, the offer will not lapse.

Thus in (Bradbury v Morgan), Jim Leigh wrote, requesting the plaintiff to give credit to his brother promising to guarantee the repayment of the credit peradventure there is any default. After Leigh died the plaintiffs, who were ignorant of his death continued to give credit to his brother.

The executions of Leigh’s estate refused to repay any debts resulting from credits given to the deceased brother.
The court held that since this was not a contract requiring personal performance from Leigh, it could be performed from his estate.

With regard to the death of the offeree on the other hand, an offer lapses if the offeree dies before he accounts it.

4. REJECTION

An offeree might reject an offer made to him by the offeror.
A rejection has no effect unless it is actually communicated to the offeror. A counter offer also operates as a rejection of the initial offer.

Contributor: Adedokun Samuel

ACCEPTANCE IN CONTRACT (Explanation, Invalid Forms & Communication)

ACCEPTANCE

Another constituent part of a contract is ‘Acceptance’, i.e, for there to be a contract, there has to be an acceptance. In (Zackem Construction Nig. Ltd v. Emmanuel Nneji), the court held thus: “An offer must be accepted in order for a transaction to crystalize into a contract”.

Acceptance can be defined as the final and unqualified expression of assent to the terms of an offer. It was defined in Akin Akinyemi v. Odu’A Investment Co. Ltd thus:
‘’ Acceptance is the agreement of the offeree to enter into a legally binding contract with the offeror in the terms of the offeror’s offer’’

To be effective and valid, an acceptance must be plain, unequivocal, unconditional and without variance of any sort to the offer. In (Bilante International Lrd v Nigeria deposit Insurance corporation), the court held: “An offer must be unconditionally and unequivocally accepted”.
any deviation or distraction from the terms of the offer does not amount to an acceptance.

In Dalek Nig Lrd v Ompadec), the court held that:
“A qualified acceptance of an offer cannot give rise to a binding agreement between the parties”.
Furthermore, an acceptance must be communicated either expressly or impliedly for it to be able to stand as valid or effective. Silence does not constitute Acceptance.

Thus, in (Felt House v Bindley), the court dismissed the application of the plaintiff to rely on a silence acceptance given by his Nephew who wants to sell a house to him.

An acceptance can however be impliedly accepted. In this situation, the court will have to determine objectively from the conduct of the parties whether there have been an acceptance to constitute a contract. In (Brodgen v Metropolitan Railway Co.), the court established that both parties had been acting on the terms of an unsigned contract over a reasonable period of time.

Invalid Forms of Acceptance

However, it has been established that some acceptance are invalid despite their purported form of validity. These include:

(a) COUNTER OFFER

In (Bilante International lrd v Nigeria Deposit Insurance Corporation), it has been established that an offer must be unconditionally and unqualifiedly be accepted.

A valid acceptance is one which does not vary the terms of the offer in any form. Where an offeree claims to accept an offer made to him by the offeror but it turns out that he did not totally agree with the term contained in the offer and goes further to subtract or add to the terms of the offer, it is known as a counter offer. In (Invite v Ferando Agro Consortium Ltd), the plaintiff replied an offer with:
“Thank you for the offer but we will kindly request that period of payment be extended”
It was held that the statement was a counter offer.

A counter offer when presented does two things. It destroys the previous offer and present a new offer.

Thus, in Hyde v Wrench, Wrench offered to sell his farm to Hyde for 1200 euros, an offer which Hyde declined. Days after, Wrench wrote to Hyde offering to sell the farm for 1000 euros, stating that it was the final offer. Hyde offered 950 euros which Wrench rejected. Hyde later accepted to buy the farm 1000 euros but Wrench refused.
The court held that when a counter offer is made, this destroys the original offer. A new offer is a new offer which follows the rule of offer and Acceptance.

B. CONDITIONAL ACCEPTANCE
A conditional acceptance is not a valid acceptance, when acceptance of an offer is predicated on a condition, there is no contract between the parties until the specified condition has been fulfilled. Conditional acceptance can be in two forms:

1. SUBJECT TO CONTRACT
In (I.T.I v Aderemi), it was held:
“When the phrase ‘subject to contract is employed in an appropriate situation, with a clear measure of intention, there cannot be valid contract until formal contracts are exchanged”
Based on the foregoing, where agreement is made “subject to contract”, a binding contract does not ensure between the parties until a formal contract has been executed between them. This is a rule of long standing and has been regularly applied since the 19th century.

In Win v Bull, the court held that the clause that makes the agreement subject to preparation of a formal contract prevents the contract from being enforced.

2. PROVISIONAL AGREEMENT
The interpretation of the term provisional agreement has been a source of some uncertainty, confusion and controversy due to the fact that the court has held it to constitute a non binding contract and binding contract in some other instances.

Thus, in (Brance v Cabarro), the defendant agreed to sell a farm to the plaintiff. The agreement contained the following clauses

“This is a provisional agreement until a fully legalized agreement drawn up by a solicitor and embodying all the conditions herein stated signed”.

The plaintiff cancelled the contract and brought this proceeding to recover the deposit he made on the ground that there was no concluded agreement.

It was held that the parties intended to be bound from beginning. This was based on the words used in conjunction with the term “provisional” and other factors like the payment of a deposit and the use of a witness to the agreement all which pointed towards the intention of the parties that the agreement should be binding from the beginning.

Also, in the Nigerian case of (Attorney General of the Federation v Awodu), an offer of scholarship was made to the defendant by the plaintiff with a clause which reads.
“your acceptance of the provisional award does not place you under any obligation whatsoever with the Federal Government until you sign and execute this bond to that effect”.

The defendant accepted on these terms, but did not sign the bond during the 4 years of his course of study. When he refused to observe the requirement of him serving the federal government, the plaintiff sued to recover the cost of his sponsorship. The court held that he was bound to make the refund that the word “provisional” in the agreement indicated that the agreement was binding from the beginning such that failure to sign the bond was immaterial.

The above court decision has led to various logical debates. Although the court relied on the decision in Branca V. Cabawo, it can be observed that the context which the word “provisional” is used in both cases are not similar. Hence, the decision of the High court of Lagos could be criticized.
On the other hand, a line of reasoning can also opine that since the defendant understood the terms of the offer to serve the Federal Government for 5 years after the completion of his scholarship and nevertheless accepted by his conduct, he cannot feign pretense of ignorance by playing on the words in the clause of the offer.
From the foregoing, it can be concluded that the word “provisional” in an agreement does not automatically make the agreement binding on the parties. The context of its usage should be carefully considered.

C. CROSS OFFERS
Cross offers occurs when two offers, identical in terms are sent by two parties to each other. When an offer proceeds from one party to another by some coincidence and in total ignorance by both parties, it is known as cross offers and there is no contract yet between the parties because for a contract to emerge, there must be a meeting of the minds (Consensus adidem).

In (Tinn v Hofman $ Co), the defendant wrote to the plaintiff offering to sell him 800 tons of iron at 69 shillings per ton. He requested a reply to this offer by post. On the same day without knowing of this offer, the plaintiff wrote to the defendant offering to buy 800 tons at 69 shillings per ton. The letters crossed in the part.
It was held that there was no contract. There must be offer and acceptance in order to have a valid contract.

D. ACCEPTANCE IN IGNORANCE OF OFFER
This is a situation where someone claims to accept an offer he was not aware of. Someone ignorantly acts based on the terms of an offer but he does not have the knowledge of the offer.

The problem arises mainly from the “reward” cases or unilateral contracts. There can be no acceptance in ignorance of offer, not even if what a person did was exactly what the offeror has requirement to be done in acceptance of his offer, it will amount to an invalid acceptance.

Therefore, in (Fitch v Snedaker), in consequence of the murder of a woman the defendant promised a monetary award to any person who gives information leading to the apprehension and conviction of the murderers. Jones, one of the plaintiffs claimed that he gave the information the day the woman was found dead. The court held that he was unaware of the offer, he did it for public good and therefore cannot lay claim to the benefits.

E. ACCEPTANCE OF TENDERS
Advertisement for tenders by contractors are known to be invitation to treat. The submission of the tender by a party is the offer. Acceptance is when the contractors chooses the bid. When it is communicated; a contract is thereby made.

However a distinction has been made between when a tender for the supply of a number of goods is specific and when it is not specific.

When it is specific, there would be a firm contract right from the beginning for the supply of the specified quantity.

In the other situation where it is not specific, there is no binding contract. The supplier’s tender is merely a standing offer and a contract merely comes into existence on each occasion the contractor makes a specific order. The implication of this is that in between order, any of the parties is at liberty to bring an end to the agreement but there must be notification.

In (Great Northern Railway v. Witham), the court held that the defendant failed to give notice of their refusal to supply the goods at the fixed price anymore. They are therefore bound by the contact.

COMMUNICATION OF ACCEPTANCE

1. WHERE PRESCRIBED
Where the offeror stipulated a particular means of communication of the acceptance, the offeree must comply with this mode if it is mandatory except the offeror is willing to wave his prescription. The mode of communication where stated by the offeror is part of the terms of the offer, it is not meant for the offeree to deviate from it by adopting another means of acceptance unless it will amount to something else other than acceptance.

In (Eliason v Henshaw), the court held that an offer is not meant to be qualified or deviated from when accepted. And that the offer were entitled to reject the acceptance since the offeree did not abide by the means of communication prescribed.

Although, the English law looks a bit different from this. Contrary to the position in Nigeria, English cases suggests that where a mode of acceptance is prescribed but the offeree choose to accept the offer by an equally faster means, the acceptance does not become invalid in so far as the means adopted is not less advantageous to the offeror.

In (Tinn v Hofman & Co), acceptance was requested by return post. The court held that it does not mean exclusively a reply by return post, but that you may reply by any other means not later than a letter written by return post.

2. WHERE MODE OF COMMUNICATION OF ACCEPTANCE IS NOT PRESCRIBED.
Where no form of communication of acceptance is prescribed by the offeror, it suffices if the offeree communicated the acceptance by the same means used by the offeror in making the offer. Thus, an oral offer implies an oral acceptance.

If the offer is by telegram, fax, or email then a prompt reply is indicated and acceptance should be by the same means.

In most cases, acceptance does not occur until received by the offeror.

ACCEPTANCE BY POST

Acceptance by post has been treated as a different form of acceptance entirely. Unlike other modes of acceptance where agreement does not take effect until communication of acceptance reaches the offeror, the rule with acceptance by post is that acceptance takes effect and therefore the contract comes into existence the moment a letter of acceptance is posted.

This rule was laid down in the locus classicus case of Adams v Linsell. The defendant, a wool merchant, through a letter on September 2 offered to sell a quantity of wool to the plaintiffs and required a reply by post. The defendant misdirected the letter and it did not reach the plaintiff until September 5.

That same day, the plaintiff posted a letter of acceptance which reached the defendant on September 9th Meanwhile on September 8, not having received a reply from the plaintiffs, the defendants sold the wool to another person. The plaintiff argued for breach of contract.

The question for the court to determine was whether a contract of sale had been entered into before 8 September when the wool was sold to the third party. The court held that in a contract concluded by post, the contract comes into existence the moment the letter of acceptance is ported and so a valid contract had come into existence on the 5th.

Subsequently, similar cases have been decided the same way. Thus, in (Household fire Insurance v Grant), the defendant applied for shares in the plaintiffs company. The shares were allotted and letter of allotment was duly posted.

The letter was lost in the post and never delivered and so the defendant was not aware that he was already a share holder in the plaintiff’s company. When the company went into liquidation, the defendant refused to pay for his shares claiming that he was not a shareholder.

The court held that acceptance of the defendant’s offer was held to be completed the instant the letter was ported and that the fact that the letter was never delivered did not change the legal position of both parties.
Generally, due to the error-prone nature of posting, acceptance of offer should not be communicated by post except it was stipulated in the terms of the offer.

Exceptions to the Rule in Adams v Lindsell include:

  1.  The rule will not apply where the offeror indicated, expressly or impliedly, that acceptance will not be effective until received.
  2. Where the application of the rule will produce manifest inconvenience and absurdity
  3. Where the letter of acceptance was wrongly addressed or inadequately stamped.
  4. Where the letter was not properly posted.
    Thus, in (Re London & Northern Bank, ex p. Jones), Dr. Jones makes an offer to the bank. At 7.00AM, a letter of acceptance was handed by the bank’s employee to a post man at a General Post Office who had no authority to receive letters. The post man posted it at a district office and the letter was not delivered till 7:80pm. Meanw3hile, earlier that day, Dr. Jones had written a letter withdrawing his offer. This letter was received at the bank at 9:30am. The court held that postal rule did not apply due to incorrect posting.

Contributor: Adedokun Samuel

OFFER IN CONTRACT & Invitation to Treat (Definitions, More)

OFFER

An offer may be defined as a definite undertaking or promise made by one party with the intention that it shall become binding on him (the maker) as soon as it is accepted by the party to whom it is addressed.

The person making the offer is known as the offeror while the person it is addressed to is known as the offeree.

See also: Contract in Law: Definition and Classification

In Sparkling Brewries Ltd & 5 Ors v Union Bank of Nigeria Ltd), the Supreme Court defined offer thus:
“An expression of readiness to contract on the terms specified by the offeror which when it is accepted by the offeree will give rise to a binding contract….”

An offer is meant to be definite and unambiguous, full and final. The offeror must place at the doorstep of the offeree an intention to enter into contract on clearly defined terms.

In (Neka BB Manufacturing C. Ltd v African Continental Bank Ltd), the court held:
“An offer capable of being converted into an agreement by acceptance must consist of a definite promise by the offeror to be bound , provided that certain specified terms are accepted.’’

An offer can be made to specific person or persons or to the whole would (Carlill v Carbolic Smoke Ball Co.)

An offer can be made expressly or impliedly by conduct (Buses at the bus stop with designated routes indicate invitation to treat, passengers makes the offer).

INVITATION TO TREAT

An invitation to treat is a preliminary move in negotiation which may produce a valid offer and thereafter lead to a contract. An invitation to treat is not an offer, it is a solicitation for an offer i.e. offers to receive offers.

Bowen L. J. Opined in (Carlill v Carbolic Smoke Ball Company) thus:
“In invitation to treat, … you offer to Negotiate, or you issue advertisement that you have a stock books to sell, or house to let in which case, this is no offer to be bound by any contract. Such advertisement are offers to negotiate. Offer to receive offers – offeres to chaffer …”

Invitation to treat is not capable of an acceptance which will result to a contract.

In (Olaopa v OAU), the defendant had discussions with the plaintiff as to the prospects of putting some landed property of the defendant in Ibadan to commercial use. On that basis the plaintiff prepared designs and sketch drawing, which he sent to the defendant. He followed this with a claim for damages for what he has done as the first stage of the project. The university did not pay and he sued.

The Supreme Court held that on the evidence adduced, what had taken place was a discussion preparing to the formation of a contract.
Invitation to Treat exists in different forms including:

1. DISPLAY OF GOODS IN A SUPERMARKET

It has been held that the display of goods in supermarket and shops is not an offer but in Invitation to Treat. A customer makes the offer when he picks up the goods and presents to the representation of the store, and contract occurs when the shopkeeper accepts the offer.

In (Lasky v. Economy Grocery Stores), the plaintiff picked a bottle labeled “tonic” in the store owned by the defendant. Whilst placing it in the carrier basket provided, it exploded and severely injured the plaintiff.
The court dismissed the case, holding that there was neither a sale nor an agreement to sell at the time the bottle exploded.

2. ADVERTISEMENT OF GOODS FOR SALE IN NEWSPAPER, TRADE CATALOGUE ETC

This is another instance of an invitation to treat. In Granger & Son v Gough), The defendant circulated a catalogue which contained price list for its product. The plaintiff ordered some bottles of wine from the catalogue and where the defendant refused to deliver those at stated price, the plaintiff alleged that a contract had been formed.

It was decided that the price list was an invitation to treat.

Also, in (Harri v Nickerson), the defendant advertised in a Newspaper about a public auction. The plaintiff went there not knowing that the auction has been cancelled. He then sued for everything he has expanded on the journey.

The court held that there was no binding contract because in the same way, a shop owner who closes her shop without notice will not be liable to an action by anyone who feels disappointed.

3. AUCTION

An auctioneer’s request for a bid is not an offer but an invitation to treat. The bid itself is the offer, and acceptance occurs where the auctioneer’s hammer falls – Payne v Cave

The auctioneer is bound to sell to the highest bidder if he has not indicated at the beginning that there is a reserved price attached to the goods.

Thus, in the case of Adebaje v Crude, The court held that an auctioneer did not indicate that the auction was subject to a reserved price, he is bound to sell to the highest bidder.

Also, what is known to be “referential bid have been held to be invalid bids. A referential bid as made when a bider makes a bid of a specified amount of money in addition to a bid of specified sum over another bid than his own. Thus, in Harvela Investments v Royal Trust Co. of Canada, The court invalidated the referential bid placed by one Sir Loenard and the court awarded the auction to Harvela, the original highest bidder.

4. BUSES, TAXES, TRAINS, ETC

The Bus at the park make an invitation to treat, by entering into the bus, one impliedly make an offer. Acceptance is made and a contract is concluded at the part when it is impracticable for the parties to withdraw from the transaction.

5. INVITATION TO TENDER

This is an invitation soliciting offers from interested parties. Therefore the highest bid for any goods on tender, or the lowest tender may be rejected without any legal consequences. The tender (bid) is only an offer which may be accepted or rejected.

See also: Termination of Offer in Contract

Contributor: Adedokun Samuel

Contract in Law: Definition and Classifications

Definition of Contract

A contract can be defined as an agreement which the law will recognize as affecting the legal rights and duties of parties. Tobi JCA defined contract thus: “An agreement between two or more parties which creates reciprocal legal obligations to do or not to do particular things”. 

Also, in (Akinyemi v. Odu’A Investment Co. Ltd), the Supreme Court defined contract according to black’s law dictionary thus:

“An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable under the law”

BARGAIN

As there is freedom of contact, there is also the freedom to bargain which involves Negotiations where both parties presents what he has to the table. Negotiation is necessary in order for both parties’ minds to meet otherwise known as Consensus ad idem. In (Bilante Nigerian Ltd v. Nigeria Deposit Insurance, the court held that: Contract between parties, there must be a meeting of the mind often referred to as consensus ad idem”

Furthermore, before a contract is made, it is always preceded by some forms of bargain by the parties. The court held thus in (Enuga Bawe v. O.B.C Limited):

“…where negotiations is in progress between the parties intending to enter into a contract, the whole of the negotiations must be considered as to determine whether or if not at all, the contract came into being”

In any given case, parties to a contract are at liberty to determine the terms of the contract. In (Nigerian Ports Authority Plc v Lotus plastic Ltd & Anor), the Supreme Court held:
“Parties are free to negotiate the term of their relationship“

However, as the law provides for freedom of contract there is also the sanctity of contract which means contracts are meant to be respected or hallowed. A breach of contract attracts punishment of specific performance or awarding of damages to be paid by the one who breaks the terms of the offer.

It is also noteworthy to mention that every contract is an agreement but not all agreements are contracts.

CLASSIFICATION OF CONTRACTS

The following are classifications of contracts:

1. FORMAL CONTRACT

A formal contract is always in writing. It is also known as contract under Seal or deed. It is executed and given full legal effect by the signing, Sealing and delivering of it by the party executing it.

The seal is the most important feature of a formal contract. It is known as authentication. Historically in Red Wax. Once this is done it become binding on the party who prepares the contract. In (Awojugbagbe light Ind. Ltd v. Chinuawe), the supreme court opined that:

“A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed sealed and delivered”

A formal contract is useful on land matters.

2. SIMPLE CONTRACT

On the other hand, these are contracts other than a formal contract. The major distinguishing factor between a simple contract and a formal contract is the seal. A simple contract can be in written or oral form (parole). Only a person who has furnished consideration can enforce a simple contract.

In (Odutola v Paper Sack Nig. Ltd), the Supreme Court held that: “A party alleging an oral agreement is duty to prove such agreement to the hilt’’

3. EXPRESS AND IMPLIED CONTRACTS

An express contract is one whose terms or contents are clearly and specifically stated and agreed upon by the parties.
Implied contact on the other hand is that type of contract which its terms are not expressly stated. The court therefore determines in this case whether there is a contract or not considering the conducts of the parties.

In (Brodgen v Metropolitan Railway Co), the defendant was held bound by a contract with the plaintiff in spite of the fact that the defendant failed to sign the document containing the contract. It was established that both parties had been acting on the terms of the unsigned contract over a reasonable period of time.

4. BILATERAL AND UNILATERAL CONTRACT

Bilateral contract is simply exchange of promise between parties. The offeror promises to do something or refrain from doing something in exchange for what the offeror promises to do in return. The consideration on both sides is known as Executory consideration. In Amana Suits Hotels Ltd v. PDP:

“A Bilateral contract consists of the offeror promising to do something else in exchange for the offeree promising to do something in return”

UNILATERAL CONTRACTS on the other hand exists where the consideration consists of an actual performance in return for a promise. The offeror makes a promise and becomes bound by the promise. The offeree is at liberty whether or not to do his own part. Once he does his own part, the offeror must fulfill his promise.

In the famous and celebrated case of Carlill v Carbolic Smoke ball Co. (1892), an advertisement was
made in the newspaper by the defendant to pay 100 euros to anyone, who uses a smoke ball as prescribed
and still succumbed to influenza … The Court of Appeal held that an advertisement which promised certain reward for the performance of certain terms constituted a unilateral offer which can be accepted by anyone who performs the terms.

Contributor: Adedokun Samuel (partly edited by Inioluwa Olaposi)

Historical Theory of Law: Meaning, Explanation, Arguments for and against

German Historical School of Jurisprudence

The Historical theory of law argues and states that law should be a product of the custom of the society.

As we can simply derive from the meaning of the word ‘history’ – the Historical school of jurisprudence is of the opinion that law should be a restatement of the history of the people.

The leader of this school is Friedrich Karl von Savigny, a German jurist and aristocrat.

The notion of the Natural Law School was spreading widely in the 17th and 18th century. Specifically in Europe, going so wide in overthrowing the monarchs.

And what more, creating egalitarian societies. Nevertheless, Savigny, being an aristocrat, was obviously interested in maintaining the status quo.

Friedrich Karl von Savigny

Friedrich Karl von Savigny (1776 – 1861) was a German jurist. He founded the German Historical School of Jurisprudence.

See also: Positive Theory of Law

This school holds the belief that the way to interpret and apply a law is by analysing its historical origin.
Savigny was born in Frankfurt am Main.

He started teaching at the University of Marburg, and was a professor at the University of Berlin from 1810 – 1842.

The tenets of the Historical school of Jurisprudence was announced by Friedrich Karl von Savigny in his work Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence, 1814, 2nd revised edition 1828) and also in an introductory article to the Zeitschrift für geschichtliche Rechtswissenschaft (Journal of Historical Jurisprudence, 1815-1850).

The Historical Theory of Law

According to the dictates of this theory, there is something called Volkgeist – the spirit of the people.

The theory believes that this binds the people of a society together and differentiates them from any other people.
For example, a German has a ‘National Spirit’.

This makes him think like a German, and not like a French, and vice versa.

In like manner, a spirit makes a Nigerian think like a Nigerian, and not like an American.

Apparently, this spirit is a product of the history, custom and life-system of the people.

Therefore, to a Historical law theorist, for a law to be valid, it must be in alignment with the history and custom of the people – which is their spirit.

Arguments for the Historical Theory of Law

A relatively large percentage of the people in a society know their custom.

Therefore, if laws are made according to these customs, the knowledge of law becomes relatively easy.

Based on the point raised above, it also becomes comparatively easy for the people of a society to keep the law. In a way, they can avoid harassment, unlawful practices, or dictatorship.

The points raised supra will give room for a faster development of the society. It will foster economic and political growth.

Arguments against the Historical Theory of Law

One good feature of law is dynamics. This means that law can be changed to suit the prevalent situation in the society.

Unfortunately, since customs are developed overtime, mostly unwritten, and relatively rigid, it is very hard or impossible to change them.

Also, the Historical school of jurisprudence validates a law based on its uniformity with the history of the people, rather than fairness, goodness, and justice.

So, a law can be unjust and tyrannical and still be valid, just because it supports the custom.

How can a theory be based on the assumption that the custom of a people is fair and just?

But the Historical theory of law does. And this is not really the case in real-life practice.

See also: Law definition and meaning

There are some customary rules and regulations that have been used to subject some class of people to the state of servitude. Others have prejudice women in inheritance and labour matters.

More arguments against Savigny’s Historical School of Jurisprudence

Moreover, having laws channelled by the past may hinder the establishment of some desirable radical reforms.

Mind you, the enforcement of these reforms may possess the capacity to transform the society for the better. So much progress may be hindered by following the dictates of the Historical law school.

Furthermore, what should be done in the case of cultural diversities? When there are more than one history or custom pattern in a society, which should the law follow?

In a country like Nigeria, there are about 250 ethnic groups. Following the dictates of the Historical law school is largely impractical.

Which of the customs should our laws follow? Or what happens when the customs clash?

Conclusion

The theory of the Historical School of Jurisprudence is a theory to learn. It stresses the importance of putting the history and custom of people into the making of laws.

And in this regards, it possess some advantages. Nevertheless, it advantages can also turn around to becomes its disadvantages.

In all, I think the definition of the Historical jurist is a weak point to view the definition and validity of law. Nonetheless, it is a strikingly nice one.

References:
‘Introduction to Nigerian Legal Method’ – Edited by Abiola Sanni
“Friedrich Karl von Savigny.” Microsoft® Encarta® 2009 [DVD]. Redmond, WA: Microsoft Corporation, 2008.

Classifications of Law should be the Lawyer’s Servant and not his Master

Classifications Of Law as servant Not Master

It is important to know this. That the classifications of law are the lawyer’s servant, not his master.

With simple semantic analysis, the classifications of law are the classes or groups into which laws have been divided or segmented, according to some common relations or attributes.

Some of these classifications of law include public and private law, civil and criminal law, municipal and international law, substantive and procedural law, among others.

See also: Meaning of Motion in Law: prayer and summons

It is crystal clear that law have been so classified in order to provide for orderliness in the process of applying them to various kinds of cases.

With these classifications of law at hand, it becomes extremely easy for the lawyer, as well as the court as a whole, to know what is what, and which is which.

In other words, the classifications of law are necessary for a simple, procedural, and even rigid judicial process. The classifications of law are therefore relatively inevitable in the modern judicial and legal process.

Legal Approach: Classifications of Law as servant not Master

However, the various classifications of law should be the lawyer’s servant and not his master. This means that in legal practice, the lawyer should not be so interested in classifying the laws in a legal proceeding, that he forgets his main obligation to either justify or clear his client.

In other words, the lawyer in practice should not find it as a deliberately mandatory exercise to classify the laws in his case under the different categories.

If a lawyer does this, he is making the classifications of law his master, rather than his servant. The lawyer in practice should be able to exercise adequate and knowledgeable mental propensity in the terms of the classifications of law.

See also: Law definitions and Meaning

That is to say, a lawyer in practice knows, merely seeing the fact of a case, the classification(s) of law exhibited in that case without subjecting himself to rigorous mental engagement on classifying the laws in a case.

This is the only way a lawyer can make the classifications of law his servant, and not his master.

Reason: Classification of Law as servant not Master

The reason why a lawyer must make the classifications of law his servant, and not his master, is very simple and straightforward.

One of these reasons is that distinguishing in practice between one classification of law and the other, may not be as clear-cut as it seems to appear in theory. So, a legal case can be subject to more than one classifications of law.

When this happens, it would not be meticulously phenomenal of a lawyer to lunch into distinguishing the various classifications of law.

See also: Natural theory of Law

The reason behind these clashes among the classifications of law is that they all may address different issues that arise from the same event. of course.

Example: Classifications of Law

A very good example of the classifications of law that clashes is the civil and criminal law.

The state designs the criminal law to protect the society, whose inhabitants the civil law also safeguards as a matter compulsion.

Hence, it is not usual to find out that these two classifications of law clash in cases relating to them.

Tuberville V Savage (1669): Classifications of Law

In the case of Tuberville V Savage (1669). Savage was charged for assault by Tuberville and was convicted for the tort of assault (an indication of civil law).

The dictum of the king’s Bench, which stated the requirement for assault and reasonable provocation to assault to be considered.

This precedent was valid for both civil and criminal law for the offence of assault. This case shows, to some extent, how criminal law overlaps civil law.

See also: Pure Theory of Law

Moreover, consider the mock case between Paso and kudiowo on page seventy-seven (77). ‘Introduction to Nigerian Legal Method’, edited by Abiola Sanni.

In this case, Paso is trying to force his late brother’s wife, Kudiowo, to marry him. This is on the basis of divine and customary rules. While Kudiowo opposes the idea, stating a part of the positive law.

Classification of Law as servant, not Master: Not ideal

Here, it would not be ideal for a lawyer to dive into trying to make classifications for each addressed form of law in the scenario.

The lawyer in practice needs to go into the efficiency of more specific issues. Mere classifications of the addressed laws may be a waste of time. Yes, it would not.

The words of the Abiola Sanni put the situation thus:
“…as we can see from the foregoing, there is no water tight classification of law. For example, so much of Nigerian land law is now public law with the enactment of the Land use Act. While the law of taxation is as much private law as it is public”

Conclusion: Classifications of Law should be the Lawyer’s servant.

We can therefore conclude here that the lawyer in practice should not ultimately find interest in classifying the laws in the case before him. Or turn the act of classification into a compulsory act.

But to be so built up to the state that when he merely sees the fact of a case, he could easily infer the related classifications of law. To put them to perfect use. And even to be able to bend the law to his benefit, if need be.

Any attempt outside of this, that makes the act of classifying laws a rigorous and compulsory tack, definitely makes the lawyer a servant of the classifications of law.

See also: Differences between the Natural and Positive Theory of Law

This approach is inappropriate. Why? The classifications of law should always be the lawyer’s servant and not his master.

Pure Theory of Law Meaning and Proving as the Most Acceptable Theory of Law

PURE THEORY OF LAW

Out of the multiple theories of law, I personally do love the Pure theory of Law.

I love the concept and reasoning behind it.

So, this post is not just about the Pure theory of Law, but to also prove it as the most acceptable theory of all. Stay tuned.

To start with, it is worthwhile to note that there are several accepted theories concerning the origin of law.

These theories have been propounded over decades and centuries by many legal and non-legal individuals, philosophers, academicians, etc.

A theory is a specific but comprehensive explanation about certain aspects of how our societies work.

That is to say, a theory of law deals with, specifically or comprehensively, how the society regards the statement(s) of law, and how the law is responsible, directly or by necessary implication, for the behaviour of the society.

See also: Meaning of Summon in Law: Motion and Prayer

These philosophers that have propounded certain theories of law have done so according to their various perspectives.

However a man’s perspective or point of view, is based on his sense experience and reasoning (logical and illogical).

Therefore these perspectives, in most cases, are not universally practicable.

So, it is not surprising to realise that every theory of law leaves a vacuum somewhere. Especially when subjected to critical argumentation, conceptual analysis, and universal scrutiny.

Foundation of other Law Theories: Pure Theory of Law

However, the Pure Theory of Law has shown to be the source and foundation of all other theories.

Pure theory of law states that the validity of a law is based this. The fact that a law is created, and can be traced to, a higher norm.

This school of thought, as propounded by Prof. Hans Kelson, says that law is a system of norms.

Hence, a norm can be traced to a higher norm, and then to another higher norm, to another greater norm, until we reach a non-law created entity, called the grundnorm.

In many countries, the constitution is regarded as this grundnorm, which determines that validity of any other norm made by any agency or body in the country.

Nevertheless, as opposed to this celebrated but controversial believe, many other people have argued that the constitution is, and should not be regarded as the grundnorm of any society.

Paraphrasing the words of Abiola Sanni, ‘the fiction that the constitution is the grundnorm is only a legal fiction.’ Note that this argument not to downgrade the Pure Theory of Law, but to prepare the ground for a greater evaluation.

Pure Theory of Law: The Process of Proof

The validity of a constitution is based on its promulgation into law as the act of the people. I will state The state of the grundnorm in due time, in the course of this work.

But as a matter of priority and importance, the reason for the proposition of the pure theory of law as the most accepted theory of law must be treated first, for it is the main aim of this work.

See also: Natural Theory of Law

Now, let me hasten to state this. The most realistic competitor of the pure theory of law is the Natural law school.

So many people will be of the opinion that the natural law is the foundation of every law. You know, including the pure theory of law.

But in a bid to give solution(s) to the problem of ‘multiple consciences’, things get rough. It is undeniable to state that a natural law/rule must be subject to some logical qualities and evaluations. You know, for us to regard it as law.

The Natural theory of Law poses the problem of Multiple Consciences.

Innate Principles as subject to Pure Theory of Law

Therefore, the principles that tells man what is right, fair, and just, are subject to a higher law.

Aside from this, these principles, which we know to be innate to man, are developed by man’s environment and societal socialization.

So, if we give birth to and a raise a child where fellow humans are killed as served as meals, he would see nothing absurd at all in carrying out, at his conscience convenience, the act we call ‘murder.’

See also: Positive Theory of Law

The child will even see it as a law of nature, too bad! So, these innate principles that define fairness, truthfulness, and justice in man are really subject to a higher norm that I call ‘Societal Behaviour.’

Conclusion on the Pure Theory of Law

Without much ado, it is clear that every other theory of law is, either directly or philosophically, a derivative of the Natural Law. And relies on it for its justification.

If we give critical analysis to The Positive law school, Historical law school, and sociological law school, we can trace them all back to Natural law.

And so can the Utilitarian, Realist, and Marxist theories.

Therefore, if the Natural law itself, which can be regarded as the father of all other theories, is a mere system of norms, then it is subject to the imperial Pure Theory of Law.

See also: Similarities and Differences between Natural and Positive Theory of Law

Referances:

Plato.stanford.edu/entries/lawphil-theory/

Natural and Positive theory of law (comparison and contrast)

Comparison and Contrast of Natural and Positive Theory of Law

These two are most likely the most popular of the theories of Law.

Perhaps, because they are simple and easy to understand.

Nevertheless, they can also be confusing or hard to get.

So, it is important that we know the similarities and differences between the two.

See also: Law meaning

This post is about the similarities and differences between Legal Positivism and Natural Theory of Law.

Differences Between Positive Law Theory and Natural Theory of Law

According to Heinrich A. Rommen, “Every generation, it is said, finds now reason for the study of Natural law.”

This assertion underscores enduring nature of the running battle between natural law and positive law.

Over the years, there has been an undeniable argument. This is among the protagonists of natural law, and those of positive law.

This argument has been based on the answer to a question. “What should determine the validity of a law?”

Should a law be valid because it is moral. Or because it is enacted by a body of persons (legislators) – promulgated and empowered to make such law?

A balance point can be met in the effort of giving these two theories detailed and valid explanation.

But, so many facts have shown that they contrast beyond any reasonable doubt.

And in order to get a good grasp of the differences of these two legal conceptions, a clear understanding of what they mean must be acquired.

Positive Law Theory: Legal Positivism

A law, in accordance to Positive Law, is the rule put, placed, or imposed upon the situations by the ruler.

According to John Austin, who appears to be one of the most prominent protagonists of the Positive Law Theory, in his book titled, ‘The Providence of Jurisprudence Determined,’ he defined law as, “a command set by a superior being to inferior beings and enforced by sanction.”

This definition is based upon his propounded ‘Command Theory of Law.’

According to him, the superior being is sovereign. We may describe the sovereign being as ‘The Uncommanded-Commander.” So, according to positive law, a law is valid because a person or body we empower to do so sanctions it. And such law is binding on all members of the society or state.

Natural Theory of Law

On the other hand, the Natural Theory of Law is a philosophical and legal belief that all humans govern themselves by basic innate laws. Or laws of nature. Which are separate and distinct from the legislated laws. This theory is somewhat an opposite of the positive law theory.

The Chief protagonists of this legal theory include Thomas Aquinas, Zeno, Socrates, Plato, Grotius, Aristotle, etc. It is difficult to give a precise concept of the theory of Natural law, because of the so many theoretical views attached to it.

However, the basic moral principles are unchanging, and they include the following. The idea that basic moral principles validate the law, the existence of Natural rights, and the ideology that just law(s) bind in conscience.

This theory, Natural Law, runs on the idea of perfect law based on equity, fairness, and reason. By which we can measure all man-made laws. And to which they must (as closely as possible) conform.

That is to say, according to Natural Law, any positive law must conform to the innate principles of man.

Differences between Legal Positivism and Natural Theory of Law

Here are some of the differences between the Positive and Natural theory of law.

1. The determination of validity of laws:

While the Positive Law states that a law is valid if a body that we empower to do so makes it. And binding on the subject.

The Natural Law Theory clearly states that a law is valid if and only if it conforms to the innate principles of man.

In the case of Holman V Johnson, the plaintiff sold tea to the defendant in Dunkirk_ France, with the full knowledge that the tea was to be smuggled into England.

According to the dictates of Positive Law Theory, the contract in the scenario above is legal, because in the principles of International law, ‘no country ever takes notice of the revenue laws of another country.’

See also: Meaning of Prayer in Law: Motion and Summon

However, when we subject it to the critical analysis of natural law, this contract is unfair, false, unjust, and should be held null and void.

2. Moral Principles

Natural law is typically based on moral principles, natural order, and ethical codes that people share as human beings. While we expect people to follow positive law as legal rules.

3. Good Reasoning

Natural law is, to a very great extent, based on good reasoning. While Positive law is based on enforced rules, which people follow enforce-fully.

See also: Pure Theory of Law

4. Multiple Conscience Problem

Also, Natural Law theory is subject to the problems of multiple consciences. This is almost impossible with positive law, where laws are relatively constant and definite.

5. While the Natural Law Stresses what we should do, rather than what we do. Positive law stresses what we do, and not what we should do.

Conclusion: Differences between Legal Positivism and Natural Theory of Law

It is noteworthy at this point that in spite of the running battle for supremacy, experience has shown that both the Natural Law and Positive law can co-exist within the same framework.


REFRENCES

1. Natural Law Vs Positive Law (comparison of contents and functions) by 130601052; web.

2. Introduction to Nigerian Legal Method, edited by Abiola Sanni.
3. Web; bartleby.cm-the difference between Natural Law and Legal Positivism Essay.

4. study.com/academy/lesson/natural-law-theory-definition-ethics-examples.html

5. philosophy.hku.hk/courses/law/Positive%20Law%20hnd.html