Thursday, August 13, 2020

Niger state school of heath form is out

NIGER STATE SCHOOL OF HEALTH TECHNOLOGY MINNA.


Online Application for Admission for the 2020/2021 Session will commence on the 17th of August 2020.

Due to the current social distancing guidelines, Application for admission and payment will strictly be online. Below is the procedure for application.

STEP 1.
Visit www.schoolofhealthtechnologyminna.com.ng and Click on Apply.

STEP 2.
Click On I am a new applicant. Fill in the required fields with * and click the "APPLY". Please note that you do not have the privilege to edit any submitted information here. You are therefore, advised to complete this process in full, truthfully and the best of your knowledge

STEP 3.
Copy the generated application number. You will be using it to login and complete your application process.

STEP 4.
Click on the “Continue with application” Button and Login with your application number

STEP 5.
Complete the Basic Qualification Info, O-Level Qualification, Higher Qualification Info and your Credentials. Please scan all your required documents & credentials and convert all into a SINGLE PDF file of not more than 2 MB. The single pdf file with all the credentials should then be uploaded.

STEP 6.
Proceed to the payment tab and click on Application fees. Click on the green-plus-sign at the top right  to generate new invoice for APPLICATION FEE payment.

STEP 7.
Click on the pay via remmita button. CONFIRM PAYMENT DETAILS, and click on yes Pay button

STEP 8.
Chose your payment type.
- To pay via bank branch print the RRR Slip and take it to any of the listed banks on the slip to pay.

- To pay via card select your card type and follow the instructions.

Please Note: If the payment receipt is not generated after payment in the bank or using the card, click on the transaction status button , then click on the requery button beside the invoice.

Step 9: 
after successful payment click on the final submission tab to submit your application.

Step 10:
click on print acknowledgement form button to print your acknowledgement form.
Continue reading

Wednesday, August 12, 2020

Law on Economic loss

THE LAW ON ECONOMIC LOSS

By: Dapuri M Cephas
Kings University College, Ghana
+233503789468
Email:Cephasdapuri018@gmail.com

Economic loss refers to financial loss or damage suffered by a person without any evidential physical damage to the person or property damage of the victim. Principally, economic loss was recoverable in tort if it resulted from damage of property or physical damage to the victim known as consequential economic loss. However, if the loss was independent of physical damage, thus, pure economic loss, it could not be litigated under the tort of negligence.

Also Read:
Total Negation of the fundamental human right

In the celebrated case of Spartan Steel Alloys Ltd. v. Martin & Co. Ltd, the Court of Appeal held that “even when a plaintiff is owed a duty in respect of physical damage to property, any pure economic loss suffered in addition to physical damage is unrecoverable as either too remote or outside the scope of the duty of care. However, economic losses consequential on the damage of property were recoverable”.

Consequentially, the decision in Spartan Steel (Supra) indicates that Pure Economic loss, thus, loss without physical damage could not be recovered as damages in law.

The law on pure economic loss is one that is tainted with several principles and exceptions as well as public policy. The learned judge, Burroughs J. in Richardson v. Mellish stated that “once you get astride it, you never know where it will carry you”. This Article tends to give clarifications on the law on economic loss and circumstances under which a plaintiff is most likely to succeed in an action of negligence for pure economic loss.

Pure economic loss most often than not, arises from negligent misstatement, negligent provision of service and loss resulting from defective buildings. The following categories of pure economic loss shall be discussed in light of Common law court decisions.

Also Read:
legal profession
A river of endless opportunity By S.L Funtua

Negligent Misstatement and negligent provision of service

A negligent misstatement is a statement of opinion, which may be honest, but made carelessly.

Negligent misstatement occurs if the maker of the statement breached the duty of care to give authenticated information which was relied on by the receiver of the information leading to some kind of economic loss to the disadvantage of the receiver of the information. Notably, negligent misstatement falls within pure economic loss since the loss is not a consequential effect of any physical or property damage. Until 1963, when the celebrated case of Hedley Byrne & Co. Ltd v. Heller & Partners Ltd. was decided, pure economic loss in such circumstances was not recoverable under the law of tort. This was held to be under the ambit of Contract law, and if a contractual relation existed, the victim could sue in Contract.

Also Read:
Law of Contract

In Candler v. Crane, Christmas & Co.an accountant negligently prepared a report for a company upon which a third party relied on to invest his money. The court was to decide whether the Accountant would be liable for the negligent preparation of the report to the third party for their loss. The court dismissed the action of the plaintiff holding that liabilities could not be imposed on the Accountant for his negligent preparation of the report since no contractual relationship existed between the parties.

However, the case of Hedley Byrne (Supra) establishes an exception to the general rule of pure economic loss. It is however a narrow principle allowing liabilities in few situations. Therefore, Hedley Byrne (Supra) allows liability in Tort for a pure economic loss but establishes conditions necessary for a successful claim. In Hedley Byrne (Supra), the defendant bank was negligent in preparing a report upon which the plaintiffs requested and subsequently relied on. The Court held that liabilities could be imposed in circumstances of this sought even without a contractual relation. In this particular case, there was no liability as there had been a disclaimer attached to the statement, so there had not been a ‘voluntary assumption of responsibility’. The distinction between Hedley Byrne (Supra) and Crane Christmas (Supra) is that the reliability in Crane Christmas was unforeseeable and unreasonable but in Hedley Byrne, the defendant bank had a special relationship with the Plaintiffs and knew or ought to have known that the information would be relied on by the claimants.

The case of Hedley Byrne, therefore, establishes liabilities for negligent misstatement on if the following conditions are met:
i) A Special Relationship must exist between the parties;
ii) the party giving the advice must voluntarily assume the risk;
iii) there has been a reliance on the advice by the other party;
iv) and finally the reliance should be reasonable in the circumstance.

A special relationship must exist between parties:

The courts have rejected only foreseeability of damage alone to establish liability, therefore, Hedley Byrne(supra), provides that there has to be a special relationship between the giver and recipient of the party to establish a duty of care. Lord Morris stated that “My Lords, I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise.”

Also Read:
Principles of fair Hearing

The Privy Council in Mutual Life and Citizens Assurance Co Ltd v Evatt sought to limit the special relationship to only business and where the defendant made it clear that he was claiming some special skill or competence. However, the position of the Privy Council had a majority rejection. In Esso Petroleum v Mardon, the defendants were liable even though they were not in the business of giving financial advice but they did have experience and special skill and knowledge compared to the plaintiffs. The position of the law therefore is that a special relationship exists if there is a fiduciary relationship of trust and confidence. A special relationship and a duty of care deem to exist in cases involving professional or business relationships even if there is no contract. But in situations like Esso Pardon (Supra), expert opinion of a defendant, if untrue and misleading, will be regarded as a negligent misstatement.

The House of Lords in Caparo Industries plc v. Dickman has thrown some clarification on the principle in Hedley Byrne Test. Lord Bridge stated the requirements a plaintiff must establish to satisfy the courts that there exists a special relationship sufficient enough for a duty of care to be owed by the representor of the information. Firstly, the defendant giving the advice is fully aware of the nature of the transaction which the plaintiff had in contemplation; secondly, the defendant knew the advice or information will be communicated directly or indirectly to the plaintiff; thirdly, the defendant knew the plaintiff will rely on the advice or information in deciding whether to invest or transact.

The party giving the advice must voluntarily assume the risk.

Duty does not arise where a party advises in a social capacity. However, where a party assumes the risk of advising in connection with a business, a duty arises (Chaudry v. Prabakhar).The current test for the assumption of risk is that which was established in Henderson v. Merrett Syndicates Ltd (No.1)but does not overrule the principle in Hedley Byrne (Supra).

There has been a reliance on advice from the other party.

There will be no liability if the claimants relied on their investigations other than the defendants' advice. Also, the defendant will not be liable if they indicated that they will not take official responsibility of giving the advice (Hedley Byrne)

The reliance should be reasonable in the circumstance:

In Hedley, the court stated that “When a party seeking information or advice from another – possessing a special skill- and trusting in him to exercise due care, and that party knew or ought to have known that the first party was relying on his skill and judgment, a duty of care will be implied”. Summarily, there must be the reliance of the other party on the advice of the representor and the reliance must be reasonable in the circumstance.

However, it is not infrequent to find the courts possibly use two or more precedents to achieve deciding a matter. In a recent case of Customs and Excise v. Barclays Bank plc the House of Lords applied a multi-test approach including a tripartite test set out by Lord Griffiths in Smith v. Bush, the assumption of responsibility test, and Lord Bridge's approach in Caparo.

Economic loss resulting from defective products:

As a general rule, the courts will not make provision for damages for economic loss of receiving/purchasing a defective product. The courts have cautiously decided cases outside the dictates of the general rule since. An attempt to expand tort law to cover economic loss relating to defective products will normally conflict with Contract law.

The locus classicus in this area is Anns v. Merton London Borough Council. The claimant was allowed to recover damages when due to the negligence of the defendants, a faulty building was purchased which lead to an economic loss. The position of the law was followed in Junior Books Ltd. v Veitchi Co. Ltd. in this particular case, the scope of Contract law could not possibly be applied due to privity problems. The claimant (the buyer of a factory) was not in direct contract with the builders. The building contract was between the builders and the original owners before sales to the claimant. Also, the faulty building had not collapsed nor caused any physical damage to the plaintiff buyer to satisfy a consequential damage suit.

The majority of the bench court held that the plaintiff will be successful in his suit for damages in negligence because he was unfortunate and could not bring an action in contract law. This was a kind of compensation given to the claimant rather than waiting until the building causes damage to life or property.

The position remained as Anns test until 1978 when the House of Lords declined from following Anns and holding that, the loss in Anns was not material nor physical but purely economic loss and therefore could not be sued under the heading of negligence (Murphy v. Brentwood District Council). However, the Anns test has widely influenced tort but has been modified. The position of the law therefore is that the recovery of damages under the circumstance of Anns would be successful only if there existed a physical injury before the suit.

Conclusively, the law on economic loss is associated with seemly but different principles. Even upon the similarities and differences that exist between the case laws, the courts have set out many exceptions. This has resulted in what is most likely to be called uncertainty, Burroughs J. stated in Richardson v. Mellish (Supra), stated that “once you get astride it, you never know where it will carry you”. It is worth knowing that even among the commonwealth jurisdictions; the law on pure economic loss varies. It is therefore important for legal systems to establish statutes to ensure certainty in the law. The law on economic loss may seem a little clear but for the growth of society, it will be idler for legislators to a well-established law regulation conducts falling within the ambit of economic loss.

REFERENCE

Catherine Elliott & Frances Quinn, Tort Law seventh edition (2009).

Richard Owen, Essential Tort Law third edition (2000).

Professor John Cooke, law of tort, ninth edition (2009).

Emily Finch And Stefan Fafinski, Law of Tort, sixth edition (2017).

Vivienne Harpwood, Principles of Tort Law, Fourth Edition (2000).

Continue reading

Total Negation of the Fundamental Human Rights of the client

VISITING THE SINS OF AN UNLICENSED LAWYER ON AN INNOCENT CLIENT - A TOTAL NEGATION OF THE FUNDAMENTAL HUMAN RIGHTS OF THE CLIENT

By: Anthony Goodnuff Appiah Larbi*

Notice:
For latest update Click to Subscribed to our channel

ABSTRACT

The purpose of this article is to analyze how human (clients) rights appear to be abused through the unintended consequences of certain judicial decisions. Of particular importance are the recent cases which have nullified the proceedings conducted by unlicensed Lawyers. This research is normative juridical research which is fortified with empirical data, using a statute and conceptual approach. The collected legal materials are then analyzed qualitatively and presented descriptively. The results show that 100% of the litigants who are also lawyers’ clients are always not happy when a blunder of a solicitor is transferred to them albeit indirectly. From a juridical perspective, it is not only produced unjust results but also tend to infringe on the fundamental human rights of innocent clients. In this regard, this medium is being used to provoke the intellectual debate on the subject, solicit and procure a fair resolution to the seemingly unjust situation. The paper also calls on human rights institutions to join the race and if possible, seek favorable interpretation at the Supreme Court. Now is “The Time for Change. The Need for Change. The Case for Change.”

This article examines key areas of human rights, the legal profession, and the concept of liability, and discusses how these issues must be examined concerning the problem statement. It further highlights vital issues that the Courts should take into consideration when determining issues concerning uninformed Clients. The article is divided into four sections. The first section introduces the article while the second section emphasizes the methodology used in coming out of this research piece. The third section delves into the legal profession, the concept of human rights, and the role of the Judiciary in the interpretation and enforcement of human rights in Ghana as well as perspectives on the concept of Solicitor and Client liability. The final section concludes the article and articulates some practical recommendations.

Also Read:
legal profession
A river of endless opportunity By S.L Funtua

SECTION 1: INTRODUCTION

As we face a new reality precipitated by the COVID-19 pandemic, the dreaded “microbiological weapon” as some conspiracists called it, shouldn’t intimidate us or quarantine the passion for our advocacy for the protection of the fundamental human rights of the citizenry. So far as the Constitution has not been suspended, learners and the learned alike still bear the duty to sustain this noble fight. This view, however, counters the view of some legal brains. Justice Alexander Osei Tutu in his article "Pandemic scare! – No time to waste on the coronaviruses said: "concentrating on legal issues at this crucial period is virtually an impossible task when survival remains our utmost priority”.

Every situation presents opportunities and threats. In this global pandemic, the cherished merit lies in the availability of ample time to read the backlog of cases and relevant literature necessary to challenge the status quo. This is a key character and attitude of Students of Law and budding Lawyers. The view of Ghana’s first President, Dr. Kwame Nkrumah remains instructive on the subject as follows:

“You must remember at all times that law does not operate in a vacuum. Its value and significance must be related to its impact and the overall importance of the people and the state.”

In recent years, some judgments of our Court appear to have the unintended consequence of visiting the sins of defaulting Solicitor on their innocent clients. This is feared to perpetuate an unhealthy situation if the status quo ante is allowed to be entrenched. Some clients have had their cases struck out by the Courts because their Solicitors failed or neglected to secure a valid practicing license. A case in point is that of Henry Nuertey Korboe v. Francis Amosa (2016 Unreported) is a locus classicus on the subject. In this case, the Supreme Court speaking through Her Ladyship Sophia Akuffo, a former Chief Justice of Ghana held as follows:

“if the Applicant (or any member of the public for that matter), whether out of diffidence or ignorance, fails to exercise his clear right to verify the credentials and legal capacity of his lawyer to perform the services he is engaged to undertake, that cannot give rise to an exceptional circumstance which has resulted in a miscarriage of justice such as would merit the exercise of our review jurisdiction". Though the principle to place the responsibility on Clients to ascertain the status of Lawyers before procuring their services, the discharge of this duty on a majority of Clients in a Developing Country such as ours may be seriously undermined, because of the high illiteracy level. To this, several questions may be posed.
(1) How does an illiterate Client differentiate a fake solicitor license from the genuine one?
(2) How does a Client who lacks knowledge of courtroom procedure assess the quality of his or her Lawyer’s performance?
(3) What is the likelihood that a “hungry” Lawyer would disclose his lack of capacity to perform legal services?

In our society, Lawyers are regarded in very high esteem. Lawyers are hard to find and as of today, Ghana's population per lawyer ratio stands at 7,900: 1. With the extremely low number of Lawyers in the country, finding a qualified Lawyer becomes an expensive venture. It appears that not much efforts are being made by the country to address the problem of scarcity of Lawyers. The former Chief Justice, Her ladyship Sophia Akuffo who also delivered the majority decision in the case of Henry Nuertey Korboe v. Francis Amosa (2016 Unreported) had the following to say when she addressed a Conference at Labadi Beach Hotel on the theme "The Changing Landscape in the Law-the Judge, the Lawyer and the Academic”: “Those of you Lawyers and those of you Lecturers who are busy advocating free scale, mass admissions into the professional law course, and mass production of lawyers, be careful what you wish for. “She further hinted that, “So long as I have anything to do with it, it won’t happen

SECTION 2: RESEARCH METHODS

This research is normative juridical research which is fortified with empirical data, as well as the 1992 constitution, Legal Profession Act, 1960 (Act 32), decided Ghanaian and foreign cases, biblical quotations, and conceptual approaches. The strength of this research is its basis in a series of in‐depth interviews conducted with Lawyers and Clients. In all, I conducted interviews with 20 Clients who had cases pending before divisions of the High Court. The other interview involved Lawyers and Clients before Circuit Courts. The secondary data used legal instruments, journals, books, legal research reports, articles, lecture notes, online media news among others. The collected legal materials are then scrutinized qualitatively, then presented descriptively to answer the problem in this piece.

The unholy “prophecies from our court” vis-à-vis the shackle for discussion is bound to have ripple effects on many Clients and the problem statement infra has become like a “coronavirus” in the laboratory of human rights Courts.

Problem Statement

The problem is whether or not visiting the sins of an unlicensed Lawyer on an innocent Client infringes on the latter’s fundamental human rights.

Also Read:
Principles of fair Hearing

SECTION 3: ANALYSIS

Whoever sows injustice (iniquity) shall reap vanity and the rod of his anger shall fail (Proverbs 22:8). The Judiciary as one of the three organs of government is responsible for interpretation and enforcement of laws. In so doing, the Courts are obligated to protect the human rights of citizens and they must refrain from interfering with or curtailing the enjoyment of human rights.

Their obligation to protect human rights requires them to protect individuals and groups against human rights abuses, including Clients whose only safe refuge lies in the Courts. This obligation further implies that the Courts must take positive action to facilitate the enjoyment of basic human rights especially in adjudicating matters concerning human rights. However, the seeming practice of dismissing cases on the ground of Lawyers' lack of valid license and thereby punishing Clients for the misconduct of their Lawyers is capable of eroding public confidence in the Courts. The good book in 2 Corinthians chapter 5 verse 10 instructs that “for we must all appear before the judgment seat of Christ, so that each one may be repaid according to practices he has practised….” This is further reiterated in Revelation 22:12 which posits that “each one must be paid according to his act or work” [emphasis mine]. From the above biblical quote, it would amount to perversion of justice to judge one based on what one has not practiced.

Read Also:
constitution right of an accused person

It is the case in our Courts that Clients whose cases are struck out due to the sins of their Lawyers are not always given the audience to express their thoughts before such harsh decision is made and that is against the rule of natural justice encapsulated in the legal maxims audi alteram partem (hear both sides, no party should be condemned unheard). Article 296 (a) and (b) of 1992 Constitution states: Discretionary power vested in the Judiciary must be exercised fairly and candidly and also shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be following due process of law [emphasis mine]. A case in point is Glynn v. Keele University where a breach of natural justice was held to have occurred when a student was fined by the University without first being told the reason or being granted a hearing. The decision of the Vice-Chancellor was dismissed on the ground that the power to suspend a student from the residence was quasi-judicial and not purely disciplinary one so that it had to be an exercise per the rules of natural justice. Also, in the case of Awuni v. West African Examination Council, the defendant, an examination body canceled the entire results of the plaintiff and his twelve colleagues on the ground that they had engaged in examination malpractices. An appeal by the plaintiff to the defendants for the reversal of the decision was refused. Plaintiff applied to the High Court by originating motion to seek redress under Article 33 (1) of the constitution, 1992. The defendant sought to justify its action on the ground that its rules made it unnecessary to invite the plaintiff to the proceedings. The High Court rejected the defendant’s defense and held that the council breached its duty to act fairly and reasonably under Article 23 of the constitution, 1992. Being dissatisfied, the defendant appealed to the court of Appeal. The appellate court reversed the High Court decision in favor of the defendant. The plaintiff thereafter appealed to the Supreme Court, which unanimously allowed the appeal on the ground that the defendant failed to observe the rules of natural justice as mandated by Article 23 of the Constitution, 1992.

Concerning the problem statement, the Judges should have considered listening to the affected client’s side of the story before making a decision.

Read Also:
Enforcement of fundamental human rights

Duty of Lawyers to obtain Valid Annual Licence

All Lawyers, except the Attorney-General and officials of his Department, are required to obtain a valid annual Solicitor's license to enable them to practice their trade. Section 8(1) of the Legal Profession Act, 1960 (Act 32) stipulates that:

“A person, other than the Attorney General, or an officer of the Attorney-General’s department, shall not ‘practice as a Solicitor’ unless that person has in respect of that practice, a valid annual Solicitor’s license issued by the Council duly stamped out in the second schedule.”

The Legal Profession Act, 1960 (Act 32) which is the principal statute, was enacted chiefly to regulate the legal profession and implant some discipline in the profession. It means from the section 8(1) supra that, apart from the Attorney-General or an officer in the Attorney-General's office, for a person to practice as a Solicitor, that person must have a valid Solicitors license issued by the General Legal Council. Section 8 (6) of the Act provides that: "(6) A person who practices in contravention of this section commits an offense and is liable on conviction to a fine not exceeding two hundred penalty units and shall not maintain an action for the recovery of fees, reward or disbursement on account of, or concerning, an act or proceeding did or taken in the course of that practice."

Read Also:
moot Court session

Practicing law without a practicing certificate is criminalized and a recent Techiman case is a lesson for those who impersonate themselves as lawyers and hold themselves as such.Click to see fake lawyer jailed two years

In the case of The Republic v. High Court; Ex parte Teriwaja & Korboe [2013-2014] (complete the citation) Anin Yeboah, JSC (as he was then called) said: "….The learned judge obviously would have erred under section 8(b) of Act 32 if he had granted the first applicant audience when he had not complied with the said section.” The legal profession keeps on the fight to uphold such esteem. The legal profession has been regarded as an honorable or noble profession by the world for several centuries. No other profession touches human life at so many points than law. It has always been held in high esteem and its members appear to have played an enviable role in public life than any other profession. It is different from other professions in that what the lawyers do affects not only an individual but also the administration of justice, which is the foundation of any civilized society. The Judiciary is estimable to keep on such good work.

Read Also:Indecent dressing amount to rape

Justice Yaw Apau’s contribution to upholding the legal profession has said: “The spirit of the Legal Profession Act is to instill discipline and order in the profession that is why penalties (both civil and criminal), have been prescribed in the law for members who breach the Act”. The act of practicing law without practicing a certificate is a criminal offense by the illegitimate Solicitor alone, and the same should not be transferred to his or her innocent Client. It, therefore, follows that nullifying the processes that belong to the Client is a harsh decision. This view is shared by Akoto-Bamfo JSC (as she then was) in Henry Korboe v Francis Amosa (Civil Appeal No.J4/56/2014) said: “it is my considered view that nullifying processes filed on behalf of clients by such errant lawyers, would be manifestly unjust to the said client.” In similarity to what Professor Date-Bah, JSC. said in his article “Enforcement of Third-Party Contractual Rights in Ghana (1971)”: "it is believed that legal doctrine should be used as a tool for achieving socially or commercially desirable results”. Correlating the above views from the two learned formal Supreme Court Judges, legal doctrines and decisions should not be an albatross on the neck of the people (Clients).

There is no modicum of doubt that, lawyers are also officers of the Courts. Lord Denning, MR in one of his pronouncements said “when an officer of the court itself makes a mistake, the consequences should not be visited on the unfortunate litigant, but they should be remedied by the court itself”.

To promote good governance and human rights, Lord Denning, MR again admonished Judges to heed to his advice given in R v Commissioner of Police of the Metropolis. His Lordship said “we will never use this jurisdiction as a means to uphold our dignity. That must rest on a surer foundation. Nor will we use to suppress… [Others]”. [Emphasis mine]. This advice is relevant and when Judges are adjudicating for the reputation of the legal profession, our noble Judges must make sure their decision never suppresses others [litigants] as cited supra.

Read Also:
How to protect your self from Rape

The Concept of Human Rights

“Justice must be upheld in society since God loves righteousness and justice” (Psalms 33:5). The idea of human rights is as simple as it is powerful – that people have the right to be treated with dignity. Human rights are inherent in all human beings; whatever their nationality, place of residence, gender, ethnic origin, color, religion, language, or any other status. Every individual is entitled to enjoy human rights without discrimination. These rights are all interrelated, interdependent, and indivisible. Rights are inherent in every human being and rights can be applied in every scope of life. Human rights are entitlements, which every human being possesses under his or her humanity. Human rights law guarantees the enjoyment of human rights and they are expressed in constitutions, treaties, bodies of principles, and customary international law.

Note that, rights that are not enshrined in law may be recognized by a natural law affiliate but not a positivist.

The 1992 constitution of the Republic of Ghana forms the bedrock for human rights in Ghana and is supported by other laws, as well as by human rights instruments to which Ghana is a signatory. The preamble to the Constitution upholds a guiding principle, “the protection and preservation of Fundamental Human Rights and Freedoms.” The central passage on human rights is Chapter Five ---“Fundamental Human Rights and Freedoms” sets out a range of rights to which “every person in Ghana” is entitled to.

Read Also:
youngest person to he executed

The Constitution further names the Supreme Court (see Article 2(1), (b)) as having “exclusive and original jurisdiction” in interpreting and enforcing the constitution but also states in Article 140(2) that, “the High Court shall have jurisdiction to enforce the Fundamental Human Rights and freedoms guaranteed by [the] Constitution.” It appears then that the constitution gives the High Court and the Supreme Court the primary responsibility to protect rights and address rights violations; however, in practice and by legal precedence, the High Court has its primary jurisdiction over matters of rights enforcement and redress, while the Supreme Court limited itself to questions of interpretation (Quashigah, 2007).

The supposed failure by the Supreme Court to lay down in Re Akoto the criteria for the protection of human rights and its interpretation under the Constitution as well as the arguments of J.B. Danquah did not fall on deaf ears. It was for this motive that Dr. S.K.B. Asante, said; “Although Danquah’s submission did not prevail in the Re Akoto case, they subsequently became the cornerstone of the juristic edifice which was erected after his death for the protection of human rights. All Constitutions promulgated after 1966 have faithfully incorporated Danquah’s arguments in the [Re Akoto Case].” The truism of this statement is that in Ghana since the 1960 Constitutions, all succeeding constitutions until this era made appropriate establishment for the protection of the fundamental human rights.

Equality before the law has no exemption.

Concerning equality and freedom from discrimination the constitution stated in Article 17 (1), (2) and (3);
All persons shall be equal before the law
A person shall not be discriminated against on grounds of gender, race, color, ethnic origin, religion, creed or social or economic status.
For this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, color, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not granted to persons of another description.

Sources of our laws include the common law (Article 11 (1) (e)) which comprises of decisions or orders determined by our Superior Court of Judicature (Article 11 (2)) and any law found to be inconsistent with any provision of this constitution (article 17 (1)) shall to the extent of this inconsistency, be void (Article 1(2)). Keeping the analysis in mind, a client must be equal before the law likewise his or her solicitor. but an instance where his or her processes (documents) that he or she initiates are struck out in court could be deemed as discriminatory.

Role of the Judiciary in Interpretation and Enforcement of Human Rights in Ghana.

The acceptable approach of interpretation is the Modern Purposive Approach (MOPA). In regards to the interpretation of the statute, it involves the process of ascertaining or finding the meaning of words or provisions in a statute or subsidiary legislation. Benjamin T. Antiedu (Reading the Law) said “… any method of interpreting the legislation should be to ascertain the intention of Parliament or what Parliament intended the words or provision to achieve”. Justice Marshall in one of his dicta said “it is emphatically the province and duty of the judicial department to say what the law is”. The Supreme Court solely has “exclusive and original jurisdiction” in interpreting and enforcing the constitution. Ghana’s Judiciary needs to be distinguished after over 20 years of constitutional instability under military regimes. The story of human rights development in Ghana cannot be effectively discussed without acknowledging the contribution of our superior courts in different areas of activism. But the fallibility of mankind sometimes leads our “prophets” in the “Sanhedrin” to think myopically forgetting the injuries the “stranger and innocent” client will incur. On 18 November 1980, Professor Adu Boahen (of blessed memory) in a contribution to a symposium on the concept and practice of Human Rights in Ghana organized by the Ghana Academy Arts and Sciences said: “one of the reasons why democracy has not done too well in this country and why human rights have often been trampled upon has been the rather timid and conservative role played by the Judiciary”. I can imagine that the case of In Re Akoto and 7 Others [1961] was what he was referring to.

A decision by the court to protect the fundamental rights and freedoms of the individual (clients) should not be narrowly construed in a manner that produces anomalies, inconsistencies, and infringements.

Dworkin (2003) argues that a conception of judicial interpretation must follow from a more general interpretation of what it means to interpret anything, be it a text or a work of art. In these latter cases, interpretation proceeds "from the inside out." To grasp the meaning of a play, for instance, one must understand what it means not only to the author but to the actors, director, audience, and critics, whose play it is. So, too, to understand a social practice such as the law, involves the attempt to understand it as a way of life created and sustained by its members, people who see themselves as part of a larger community ("a community of principle," "an interpretive community") held together by a commitment to the rule of law. And this means, Dworkin believes, that interpretation must involve more than discovering the intent of the author of a play or the drafters of a statute.

Justice Aikins (as he then was) said in Amuzu v Oklikah [1998-1999] concerning the interpretation of statutes that "after all we must construe the words of the section according to the ordinary canon of construction, that is to say by giving them the ordinary meaning in the English Language as applied to such a subject matter unless some gross and manifest absurdity or injustice or hardship would thereby be produced".
Interpretation must be constructive. Interpreters must see the play or the law in its best light, as the coherent embodiment of some theme or point. This is what might be called the realist's rule-skepticism: "The law consists of decisions, not of rules." The law is not a rigid body of fixed and unchanging rules but a shifting and flexible social institution, with sufficient play, sufficient give-and-take, to accommodate the balancing of competing interests within society.

In considering the majority decision in Henry Nortey Korboe v Francis Amosah's case, I observed that the learned Judge, Atuguba, JSC in his concurring decision emphasized much on the legal profession but failed to consider the repercussions of visiting the sins of the unlicensed Solicitor on the innocent client.

In our contemporary business entity, customers are given priorities in any matter. That is why we have a customer care unit in many businesses in the world. The aspiration and interest of the customers are paramount and decisions are not to hurt them. Any entity that fails to honor its customers, the competitors capitalize on that to penetrate on their side. Researchgate (2020).

Also Read:
Law of Contract

Concerning our judicialization, the litigants who are clients to the Solicitors are the court customers hence their aspirations and interests must be paramount in anything the court decides for them. If the judiciary thinks that being extremely strict (or raising the legal professional standard) would bring sanity for the litigant or solicitors' clients to suffer, a time will come when people might lose interest in the judiciary. People might take the law into their own hands and there would be a possibility of chaos in our country.

The Concept of Liability

In law, liability (in general) may be strict, absolute, vicarious, or based on fault. Where liability is based on fault, a person’s actions or omissions by themselves would not render him culpable unless he is morally blameworthy for that act or omission. Liability is said to be strict as long as it can be shown that a person’s act or omission has resulted in a particular undesired result. In this case, it is immaterial whether he was at fault or whether he is morally blameworthy. However, he is afforded defenses if any defense is available to him (Kissi Agyabeng)

Liability is absolute where the defendant's moral blameworthiness is immaterial and he is afforded no defense whatsoever. According to Catherine Elliote and Frances Quinn (2009), one person will be held legally liable for torts committed by someone else; this is known as vicarious liability. In the law of tort, it is trite law that, vicarious liability deals with a situation in which an individual has committed a tortious act whilst acting on behalf of another, in the gravamen of this paper, it is neither objectively nor subjectively applied in a situation where a client should be held vicariously liable to the penalties of his solicitor blameworthiness because there is no tortuous act the solicitor has committed for the client to be held liable. Even if that was so, the ratio decidendi of the decision from the majority side in Henry Nuertey Korboe v. Francis Amosa in the review motion and Republic v High Court; Ex parte Teriwaja & Korboe would have captured that.

In criminal law, the general rule is that there cannot be liability without fault or blameworthiness. Concerning the Lawyer and the Client, it will be awkward to blame the Client for the Lawyer’s crime. In respect of the offense of "compounding crime," it will be frail for the Client to suffer the harm since clients' are always ignorant of their solicitor's licensure undertakings. Each one must "carry his own load" as the Bible says. Innocent clients do not fall squarely in any of the liabilities discussed supra.

Justice Yaw Apau in his dissenting opinion in Henry Korboe v Francis Amosa, Review Motion made an intelligent dictum and I wish to quote him. He said “The question is; for what purpose was the Legal Profession Act, [Act 32] passed? In other words, who are the targets of the law? As the majority rightly stated, it was enacted for the regulation and discipline of the profession. It is meant to regulate the practice of law by members of the legal profession to avoid any abuse. This means that it is only members of the profession that have to suffer the consequences of any breach of its provisions, not outsiders. The learned supreme Court judge’s decision is tantamount to the Biblical quote in Jeremiah 17: 10 KJV, which states “I the LORD search the heart, I try the reins, even to give every man according to his ways, and according to the fruit of his doings.”[Emphasis mine].

It is trite fact that mankind is fallible. We embark on commercial bus and taxi without asking for a license, we allow medical practitioners like a surgeon to operate us without asking for their license, teachers teach us without asking of their certificate or license, all because of our confidence we have in them. Ordinary humans have inherent confidence in their systems which makes us ignore the rigor of scrutinizing certain details. So, it will be unfair for someone to be punished for another’s error.

The old law in respect of intestate succession before 1985 was similar to visiting the sins of a recalcitrant solicitor on the innocent client. In the olden days, the rights of innocent children of a deceased person were not the same. Innocent children who knew nothing about their parents' marriage were denied their succession right. This was gross injustice tot the rights to succeed the parents depending on the type of marriage contracted by their parents. If the parents were married under the Marriage Ordinance, Cap 127, the children were entitled to 7/9 of the estate. If a person was married under the Marriage Ordinance and had a child outside wedlock, such a child was regarded as “illegitimate” and was not entitled to any share of 7/9 of the estate, so it was decided by the Court of Appeal in Coleman v Shang [1959] GLR 390 CA which decision followed a Nigerian case that was decided by the Privy Council in London titled, Bambose v. Daniel [1952] 14 W.A.C.A 116 where a child was regarded “illegitimate” irrespective of the fact that the father might have during his life-time acknowledged paternity of the child and treated him equally with his other children born in wedlock.

It is an undeniable fact that children have no hand in themselves being brought into the world and it is not just biased but lacks logic that their rights of succession should depend on the mistakes made by their parents. To punish children by depriving them because of the injudiciousness of their parents is a classic example of the saying that - “The fathers have eaten sour grapes and the children’s teeth are set on edge” (Ezekiel 18:2). We have seen the growth and development of our Intestate Succession Laws since 1985 (PNDC LAW 111) which statutorily regulates rights to intestate succession in Ghana where the “illegitimate” child doesn’t suffer from his or her parents’ sins.

The laws of our land cannot be equated to our humdrum economy and must reflect the changing times of the global order. Sowah, JSC (as he then was) professed this stance in the landmark case of Tuffuor v Attorney-General [1980] GLR 637 at 647 about the Constitution when he accentuated that, "Indeed it is a living organism capable of growth and development”, as the Judges made laws of Ghana (Article 11 (2) of the Constitution) are capable of growth and development.

Scrubbing the sins of "recalcitrant” solicitors on innocent's clients will be like when the Israelites crossed the red sea. It was such an amazing moment for the Israelites when they saw that their enemies had been capsized. That released their fardel of hopelessness. We are hopeful to see this prophecy fulfilling in our Sanhedrin "in those days they will no longer say, 'the fathers ate sour grapes, but the teeth of the sons were set on edge. But then each one will die for his error. Any man-eating sour grapes will have his teeth set on edge" (Jeremiah 31:29, 30). As the Supreme Court is not bound by its own previous decisions (see Article 129 (3) of the Constitution) for the interest of peace and justice, it is the writer’s humble prayer to see and sense the growth of our laws where each one will suffer his error or wrong.

In the year 2017, the Hon. MP for Ashaiman Constituency, Mr. Ernest Norgbey, and the Hon. MP for Juaboso Constituency, Mr. Kwabena Mintah Akandoh filed a writ at the Apex Court challenging Madam Otiko Djaba's legality as a Minister because she had not done her National Service. The suit was dismissed because the lawyer for the two MPs Godwin Tamakloe had not renewed his solicitor’s license. The dismissal of the "Otiko Afisa Djaba case” represents a situation of what may be viewed as compromised justice, falling short of the absolute justice that may be expected by our LORDS of the land.

Is it a practice or even a legal obligation for clients to demand the license of a solicitor before they engage them to work on the client’s behalf? If I may ask. Imagine an illiterate peasant farmer from a very remote area like Assin Bepokoko who raises One Thousand Ghana Cedis (GH₵1,000.00) only during the cocoa season. Imagine such a farmer requests the services of a renowned lawyer, who sometimes the media engages to share opinions on legal subjects, and it is revealed that the popular lawyer had not renewed his Solicitor’s License for which the case is dismissed. Granted that this dismissal occurred after the farmer incurred some substantial costs, this could lower the farmer’s confidence in resorting to the Courts again. This decision can lead the poor farmer to depression and possibly trauma.

It is a life-threatening loftiness of injustice to make this poor farmer suffer the consequences of his defaulting lawyer when he could not, by any bit of fancy, have speculated that his lawyer had not complied with Section 8 (1) of Act 32. This means visiting the sins of a Lawyer on his Client is not only synonymous with a miscarriage of justice but an ignominy to our Judiciary.

CONCLUSION This article has tried to articulate several perspectives with regards to this Latin maxim res inter alios acta alteri no cere non-debet meaning “one person ought not to be injured by the acts of others to which he is a stranger”. It has also noted the contribution of the Courts towards enforcement of fundamental human rights enshrined in the Constitution and other laws.

This article essentially argues that the issue of visiting the sins of a Lawyer on innocent and unsuspecting Clients infringes on the client's fundamental human rights. The article also looked at the implications of clients when embarrassed by thrown-out suits when they are not heard. It is there imperative that when it comes to fundamental issues, the Courts should be circumspect in their adjudication.

Exculpating clients from offenses of their Solicitor will be observed as a fight against impunity aimed at ending litigants’ (human) rights abuses in our Courts. In this light, the author humbly calls on Human Rights Activists, Human Rights Institutions like Amnesty International (AI), Commission on Human Right and Administrative Justice (CHRAJ), Human Rights Watch (HRW) among others to add their voice to this infringement of clients’ rights in our “Sanhedrin”.

The writer would like to conclude this article on this Latin phrase Sapientia et Doctrina Stabilitas meaning “wisdom and knowledge should be the stability of these times”. In the interest of justice and moral verticals, it will be idoneous for Clients to enjoy immunity from their solicitor's guilt. Hence, our Judges should learn from the Great Judge [God] as the Psalmist defined him well at Psalms 62:12 “… for you [God] repay each one according to his deed”.

ACKNOWLEDGMENT

I am grateful to the following for their constant support and motivation, particularly in my legal academic journey.

Mr. Sadick Abubakar Yahya., Deputy Chief Registrar and the Substantive Court Registrar at the District Court, Assin Fosu. (You have been more than a father)

Lawyer Benjamin T. Antiedu, Author of the Book “Reading the Law”. (My inspirational and Mentor).

Prof. Raphael Nyarkotey Obu, Honorary professor of Holistic Medicine and the president of Nyarkotey College of Holistic Medicine, Tema Community 7, Ghana. (My Research Mentor)

Mrs. Regina Asiedu, the wife of Dr. Richard Asiedu of St. Andrews Group of Company, Assin Fosu. (God bless you, Mummy).

My parents Samuel Larbi Appiah and Esther Nkum (a.k.a Yaa Mantebea) (I am most grateful to your parental roles; I say Jehovah bless you all)

I owe debts of gratitude also to Benjamin T. Antiedu, Prof Raphael Nyakotey Obu, Frederick Kofi Tse, and Rahman Gyimah for spending time of their busy schedules to proof-read this piece.

ABOUT THE AUTHOR

The writer is an Activist, Independent Researcher and LLB Law Student, Faculty of Law, Governance and International Relations, Kings University College, Accra-Ghana. The writer can reach via:
Email:aappiahlarbi@gmail.com
Tel: 0549-657873 / 0591-040426
REFERENCES

Journals/Articles /Online News
Justice Alexander Osei Tutu on Pandemic Scare! – No Time to Waste on the Corona Virus

Message from Osagyefo Dr. Kwame Nkrumah, the President [1964] vol 1 no. 1 UGLJ 2—3. On the occasion of the enrolment of the first group of lawyers at the Ghana school of law—on Saturday, June 22, 1963.

The Corporate Responsibility to Respect Human Rights, An Interpretive Guide by United Nations Human Rights, Office of the High Commissioner.

Christopher Y Nyinevi, Spare the Sinner; Punish the Righteous”: A Review of the Supreme Court of Ghana Jurisprudence on International Business Transactions.

Civil Society Perspectives on the Criminal Chamber of the African Court of Justice and Human Rights by Benson Chinedu Olugbuo.

Disciplining the Lawyers: Law and Professional Ethics by G. Geethisha.

Article on Legal Positivism vs. Natural Law Theory

Dr. S.K.B. Asante, "Reflection on the constitution, Law, and Development" (J.B.Danquah Memorial Lecture Series. March 2002)

ResearchGate, (2020). Customer Service Orientation. Retrieved on 28th July 2020, from

https://www.researchgate.net/publication/268363066_Customer_services_A_part_of _market orientation

https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Overconfident-fake-lawyer-jailed-two-years-912823?channel=D

https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Supreme-Court-Case-Challenging-Otiko-Djaba-s-Legality-As-Minister-Dismissed-609384?channel=D1

Books or Legal Monographs referred Catherine Elliott & Frances Quinn, Tort Law seventh edition (2009).

Kissi Agyebeng Criminal Lecture Notes, Faculty of Law, University of Ghana, page 54, 55.

Seth Y. Bimpong-Buta, Dissertation on The Role of Supreme Court in the Development of Constitutional Law in Ghana, Chapter vii.

Fred Obikyere Legal Resource Book, page 420.

New World Translation of the Holy Scriptures (Study Edition).

Quashigah, Kofi (2007). Trends in the promotion and protection of human rights under the 1992 constitution, in K. Boafo-Arthur (ed.), Ghana: One decade of the liberal state. London: Zed Books, Senegal: CODESRIA.

Benjamin T. Antiedu, Esq. “Reading The Law” (2019).

Statutes

1992 Constitution of Republic of Ghana (Amendment) Act, 1996 (Act 527)

Legal Profession Act, 1960 (Act 32)

Intestate succession Act, 1985 (PNDC Law 111).

Cases

Awuni v. West African Examination Council [2003-2004] SCGLR 471

Amuzu v Oklikah [1998-99] SCGLR 141 at 159,160.

Henry Korboe v Francis Amosa, Review Motion, Suit No. J7/8/2016.

Henry Korboe v Francis Amosa Civil Appeal No. J4/56/2014.

Glynn v Keele University [1971] 2 All ER 89.

R v Commissioner of Police of the Metropolis [1968] 2 QB 150 at 154 quoted in op cit at pp 34-35.

Re:  Akoto and 7 Others, [1961] GLR 523-535

Tuffuor v Attorney General [1980] GLR 637 at 647

Coleman v Shang [1959] GLR 390 CA

Bambose v. Daniel [1952] 14 W.A.C.A 116

The Republic v High Court; Ex parte Teriwajah & Korboe [2013-2014] 2 SCGLR 1247

Continue reading

Sunday, August 2, 2020

Law of Contract

In this article we shall be discussing the followings:
What is Contract
What makes contract agreement?
What is Agreement
What make agreement negate contract?
What are the Elements of a Valid Contract?
What is Offer?
What is Acceptance?
Intention to create legal relations
Lawful consideration.
The capacity of parties.

EVERY CONTRACT IS AN AGREEMENT, BUT IT IS NOT EVERY AGREEMENT THAT QUALIFIES TO BE CALLED A CONTRACT

INTRODUCTION

During my first day in the Law of Contract Class, the caption of this article was given to us as our first assignment. As a beginner in Law, this topic gave me a serious headache which I visualized about it for long until the Salvation Golden Book (READING THE LAW) written by Benjamin T. Antiedu rescued me from such solemn ache.

“Contracts are made by people every day, whether the parties recognize it or not. Each time one spends money on anything a newspaper, a bus ticket, an airline ticket, a pair of shoes, a meal in a restaurant, laundry services, books, or signs a lease, one concludes a valid and legally binding contract.” Most of these events take place quite smoothly without any awareness of a contract having been made. We keep making a promise which is subject to agreement every day, young men keep proposing to ladies to espouse before and after breaking their virginity, promising of buying them cars, pizza, building mansions etc.
and to profoundly convince ladies, men sometimes buy them “promise” rings to keep their heart stable on them. It is usually not until disputes occur that the question of a possible contract arises.

You may Ask

What is Contract?

A contract is an agreement giving rise to obligations which are enforceable or recognized by law. The factor that distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties as defined by Trietel. Abiola (2005) defined Contract as an agreement made between two or more competent parties which the law will enforce. Pollock also defines a contract as a promise or set of promise which the law will enforce. America Restatement (second) of the law of contract defined Contract as “a promise or set of promise for the breach of which the law gives a remedy or the performance of which the law in some way recognizes as a duty.”

Also Read:
legal profession
A river of endless opportunity By S.L Funtua

An agreement is a form of cross-reference between different parties, which may be written, oral and lies upon the honour of the parties for its fulfilment rather than being in any way enforceable.

What makes contract agreement?

All contracts are agreement because there must be a mutual understanding between two parties for a contract to be formed. All parties should agree and adhere to the terms and conditions of an offer.

The following cases illustrate ways in which all contracts are agreements; In the case of an invitation to treat, where an invitation to treat is merely an invitation to make an offer. An invitation to treat is an indicator of a party's willingness to negotiate entry into a contract. It is a technique used by a party who desires another party to make an offer and cannot be construed or the terms are accepted as if it were a valid legal offer in itself. (Carlill v Carbolic Smoke Ball Company). The display of goods in a store is an invitation to treat. (Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd). An advertisement that gives information about goods for sale and their price will generally be an invitation to treat rather than an offer. (Partridge v Crittenden).

Also Read:
Principles of fair Hearing

When a firm's offer is accepted it results in a contract provided other elements of contracts are accepted. Considering Benard buying a Toyota Corolla (car) on hire purchase from Quaye who deals with cars. Both parties must come to a consensus (an agreement) on payment of monthly instalment within a specified period. Such an agreement result to speciality contract which a contract under seal.

What is Agreement

According to Best Law Dictionary, an Agreement is defined as "The consent of two or more persons concurring, respecting the transmission of some property, right or benefit, with a view of contracting an obligation”. “Every promise and every set of promises, forming the consideration for each other, is an agreement." Thus it is clear from this definition that a 'promise' is an agreement. Then, what at all is a 'promise'? The answer to this question is which defines the term.
“When the person to whom the proposal is made signifies his assent thereto the proposal is said to be accepted. A proposal, when accepted, becomes a promise." For example, Goodnuff proposes to Fafali to marry her and Fafali accepted, now the proposal has become a promise.

An agreement, therefore, comes into existence only when one party proposes or offer to the other party and that other party signifies his assent (that is, gives his acceptance) thereto. In short, an agreement is the sum total of 'offer' and 'acceptance'.

Read Also:
constitution right of an accused person

On analyzing the above definition, the following characteristics of an agreement become evident:
At least two persons. There must be two or more persons to agree because one person cannot agree with himself.
(b) Consensus-ad-idem (an agreement on the same thing). Both the parties to an agreement must agree about the subject matter of the agreement in the same sense and at the same time.

What agreement negate contract?

Agreement that doesn’t give room for legal obligation will make contract void. As stated above, an agreement to become a contract must give rise to a legal obligation that is a duty enforceable by law. If an agreement is incapable of creating a duty enforceable by law. It is not a contract.

Agreements of moral, religious or social nature, for example, Goodnuff promise Fafali to party together at Abigail’s house or to buy Fafali a Mercedes Benz after breaking her virginity are not contracts because they are not likely to create a duty enforceable by law for the simple reason that the parties never intended that they should be attended by legal consequences.

For an agreement to qualify as a contract, the law requires that, certain ingredients must be present.

Read Also:
Enforcement of fundamental human rights

These requirements or criteria are commonly called elements of a valid contract. For a contract to be formed an offer made must back the acceptance of which there must be a consideration.

Both parties involved must intend to create legal relation on a lawful matter which must be entered into freely and should be possible to perform.

You may Ask

What are the Elements of a Valid Contract? We Have five main elements of a valid contract and they are:

Offer
Acceptance
Intention to create legal relations
Capacity of parties and
Lawful consideration.

Read Also:
moot Court session by Nigerian law students

What is Offer?

Before a contract exist, there must be a 'lawful offer'. The adjective 'lawful' implies that the offer must satisfy the requirements of the contract act in relation thereto. “A statement or conduct indicating a willingness to contract on terms stated or on terms which can reasonably be inferred from conduct and made with the intention that it will become binding as soon as it is accepted”. (Treitel- Page 8)

An offer has also been succinctly defined by Dr Date-Bah JSC as he was then called in the case of Nthc Ltd v Antwi [2009] SCGLR 117 at 125
“Basically, an offer is an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in terms expressed in the offer, if the offeree communicated to the offeror his or her acceptance of those terms.

Accordingly, the offer has to be definite and final and must not leave significant terms that are essential to the bargain contemplated. It is important to emphasize the proposition that the mere acceptance of an offer is sufficient to turn the offer into a contract, if there is a consideration for it, together to create legal relations".

Read Also:
youngest person to he executed

From the above definitions, two elements must be present in every definition of an offer. The first is that, the offeror must make an indication either orally, by writing or by conduct that he is willing to bargain with the offeree. The second ingredient is the intention of the offeror when expressing his willingness to bargain, the intention being that he will be bound by his own terms as soon as it is accepted. (Reading the law page 47).

What is Acceptance?

In contract, there should be a 'lawful acceptance' of the lawful offer, thus resulting in an agreement a valid contract cannot come into existence before an offer is accepted. In summary, an acceptance is an unqualified and a definitive expression of assents to an offer. The issue of whether or not there has been an offer in a particular case is a question of facts to be determined on a case by case basis. Acceptance can be in the form by words orally or in writing, or it could be implied from conduct (HBF Dalgety v Morton).

Antiedu (Reading the Law) on page 51 defined Acceptance as manifestation by the offeree either in words or by conduct, indicating his consent to all the terms of the offeror’s offer. He explained further that, a valid acceptance is said to signify consensus ad idem, meaning that, the parties have agreed on the same thing.

Intention to create legal relations.

There must be an intention among the parties that the agreement should be attached by legal consequences and create legal obligations.

Agreements of a social or domestic nature do not contemplate legal relations, and as such, they do not give rise to a contract. An agreement to dine at a friend's house is not an agreement intended to create legal relations and therefore is not a contract. Agreements between husband and wife also lack the intention to create a legal relationship and thus do not result in contracts as stated in Balfour v. Balfour [1919] 2 KB 571- an action to enforce the promise of maintenance of E30 per month by the wife failed on grounds that it was a domestic arrangement with no intention to create legal relations.

Where the parties have the memorandum of understanding that the agreement is not intended to have any legal consequences, the court will uphold that intention by refusing to enforce it as indicated in Rose & Frank Co. v. Crompton Bros [1923] 2 KB 261. See Scrutton L.J.

Lawful consideration.

The third essential element of a valid contract is the presence of 'consideration'. Consideration has been defined as the price paid by one party for the promise of the other. An agreement is legally enforceable only when each of the parties to it gives something and gets something which is known as quid pro quo. The something given or obtained is the price for the promise and is called 'consideration' subject to certain exceptions; gratuitous promises are not enforceable at law.

The 'consideration' may be an act (doing something) or forbearance (not doing something) or a promise to do or not to do something as defined in the case of Curie v. Misa (1875) LR 10 Exch 153 that consideration “may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility which is given, suffered, or undertaken by the others”. It may be passed, present or future. But only those considerations are valid which are 'lawful'. Lord Dunedin in the case of Dunlop Pneumatic Tyre Co. Ltd v. Selfridge & Co. Ltd (1915) AC 847 gave a comprehensive definition of consideration as "an act or forbearance of one party, a promise thereof, is the price for which the promise of the other is bought … ".

The consideration is 'lawful' unless it is forbidden by law; or is of such a nature that, if permitted it would defeat the provisions of any law; or is fraudulent, or involves or implies injury to the person or property of another, or is immoral, or is opposed to public policy.

The capacity of parties. The parties to an agreement must be competent to contract. But the question that arises now is that what parties are competent and what is not. The contracting parties must be of the age of majority (which is twenty-one (21) years under the common law or eighteen (18) years under Ghanaian law) and of sound mind and must not be disqualified by any law to which they are subject. A company incorporated under the Companies Act, 2019, Act 992 automatically attains a contractual capacity. If any of the parties to the agreement suffers from minority, lunacy, idiocy, drunkenness, persons who are non-compos mentis, intoxicated etc. The agreement is not enforceable at law, except in some special cases e.g., in the case of necessaries supplied to a minor or lunatic, the supplier of goods is entitled to be reimbursed from their estate.

Thus in Chapel v. Cooper (1844) a minor’s contract to purchase a coffin to bury her husband was held as a contract for necessaries and she was liable. Under Ghanaian law 'necessaries' has been defined under section 2(3) of the Sale of Goods Act, 1962 (Act 137) it states “necessaries are goods suitable to the condition in life of the person to whom they are delivered and to his actual requirements at the time of delivery”.

Free consent: Free consent of all the parties to an agreement is another essential element. This concept has two aspects.

(1) Consent should be made and
(2) It should be free of any pressure or misunderstanding. 'Consent' means that the parties must have agreed upon the same thing in the same sense.

Read Also:
How to treat those who work for you

CONCLUSION

Before an agreement can be qualified as a valid contract, it should contain all the essential elements describe supra. What distinguishes a contract from a mere agreement is the fact that if one of the parties fails to honour or discharge his promises the other party may take legal action.

Based on the principle of law condensed in the maxim ex turpi causa non-oritur actionaction, that is, an action does not arise from a base cause; a court does not generally enforce a contract or transaction stained with illegality or antagonistic to public policy. Thus an agreement is a wider term than a contract. In the mathematical expression, I can unequivocally say Contract is a subset of Agreement. “All contracts are agreements but all agreements are not contracts".

Anthony Goodnuff Appiah Larbi*
Email:aappiahlarbi@gmail.com

*The writer is an independent researcher and LLB Law Student, Faculty of Law, Governance and International Relations, Kings University College, Accra - Ghana.

REFERENCES

Books Benjamin T. Antiedu “Reading the Law” (2019), Chapter 8

Christine Dowuona-Hammond The Law of Contract in Ghana (2011).

Law of Contract one (1) lecture handout prepared by OGOCHUKWU C. NWEKE

Statutes

Contract Act, 1960 (ACT 25)
Companies Act, 2019 (ACT 992)
Sale of Goods Act, 1962 (Act 137)

Cases

Nthc Ltd v Antwi [2009] SCGLR 117 at 125

Carlill v Carbolic Smoke Ball Company [1892]2 2 Q B 484.

Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd [1952] 2Q B 795

HBF Dalgety v Morton

Partridge v Crittenden [1968] 2 All ER 421

Balfour v. Balfour [1919] 2 KB 571

Rose & Frank Co. v. Crompton Bros [1923] 2 KB 261. See Scrutton L.J

Curie v. Misa (1875) LR 10 Exch 153

Dunlop Pneumatic Tyre Co. Ltd v. Selfridge & Co. Ltd (1915) AC 847

Chapel v. Cooper (1844)

Raffles v. Wichelhaus (1864) 1 H & C 906.

Continue reading

Saturday, August 1, 2020

What is fair hearing

What is Fair hearing In this article we shall be discussing the followings:

Meaning of fair hearing
What is the principle of fair hearing?
why is the right to a fair trial important?

Introduction

The Nigerian democratic society is governed with rules and regulations with a well-defined system of justice.

The court is an umpire holding evenly the scale of justice between the disputing parties. As a result of this, the court must ensure that justice is done to all matters and all parties before it. Justice must not only be served to the deserving party, but must also be seen to have been duly served. This is the hallmark of justice. In doing this, the court must ensure that the twin principles of natural justice are strictly adhered to in every litigation.

Meaning of fair hearing.

The term fair hearing is a compounding word that needs to be explicitly explained. Literally, the word “Fair” means treating people equally, justly, appropriately, moderately or politely. While on the other hand, “hearing” means an opportunity to state one's case. It connotes an act of listening to parties in dispute with all fairness.

Also Read:
legal profession
A river of endless opportunity By S.L Funtua

What is the principle of fair hearing?

The principle of fair hearing fair hearing in legal parlance solely rests on the twin pillars of natural justice encapsulated in the legal maxims: (a) Audi alteram partem (hear both sides, no party should be condemned unheard); and (b) nemo judex in casua sua (a person can't be a judge in his own case).

In practice, whenever an individual is arrested, he must, as a matter of law be informed of the crime, he has been accused of committing in the language he understands. For a hearing to be fair, it must be held before a court of competent jurisdiction. Fair hearing connotes that an accused person must be present from the beginning to the end of his trial; an accused cannot be tried in absentia.

To adhere to the natural justice principle of fair hearing, the accused person must be given the opportunity to be heard and put up a defense before he can be convicted for the alleged crime; denial of this constitutional right will render the entire proceedings nugatory and his conviction will be quashed on appeal.

Nigeria past ministers of justice

Person is charged with a crime shall be brought before a court of competent jurisdiction within a reasonable time, unless the charge is withdrawn, see S36(4) CFRN, 1999 as amended. See also the cases of Effiom vs the state (1995) 1 NWLR pg 373, P. 507 SC., Chinelu vs COP, Ekrebe vs Efeizomor, LPDC VS FAWEHINMI.

Notably there is no provision for “jungle justice”. As a result, any person who acts contrarily is said to have put the law into his own hands and shall be punished, thus “jungle justice” itself is a felony (a serious criminal offence) which shall be punished with fine, imprisonment exceeding a year or death as the case maybe. Also, any custom that denied an accused person the constitutional right of fair hearing is said to be repugnant to natural justice, good policy and good conscience. (see the case of Guri v Hadeija Native Authority)

It's paramount to know that no matter how serious an offence is, it's lighter in court of law and the accused person will still be presumed to be innocent until proved or has pleaded guilty of the offence. Reference to S36(5) of 1999 constitution of Federal Republic of Nigeria as amended. The cases of Adeyemi vs the state (1991) and The state vs Ajie (2000) also establish the presumption od innocence by the law.

Summarily, fair hearing gives a person who is charged with a criminal offence the right to; (a) be informed promptly in the language that he clearly understands and in detail peculiar to the offence committed; (b) be given adequate time to prepare for a defense against the charges; (c) defend himself in person or through legal representative of his choice; and (d) have interpreter to interpret if he cannot understand the language used at the trial (this service of interpretation is without any payment). (see S36(6) of CFRN.

list of chief Justice of Nigeria

You may ask?

why is the right to a fair trial important?

The Importance of fair hearing cannot be underestimated. The fundamental right helps to make judgement without any manipulation, hypocrisy, bias and partiality which will prevent innocent citizen life from being jeopardized and endangered.

For instance, not all matters involving killing may be murder, this is because the killing may be accidental and not willingly (manslaughter). Conversely, some maimed or killed to defend themselves (self-defense). So, if freedom of fair hearing is not assured, if the principle of fair hearing is curtailed, such defenses such as manslaughter and self-defense as seen murder cases cannot be of effect. Consequentially, it can be inferred that justice rushed is justice crushed.

Read Also:
constitution right of an accused person

In addition, fair hearing helps to decide case prudently by the court because both parties will present their cases and be heard.

Lastly, the principle of fair hearing is not in isolation but helps to maintain and consolidate the major principles of rule of law as propounded by Albert Venn Dicey viz; Supremacy of the law, equality before the law and fundamental human rights.

Conclusively, a judgement should base on due process, natural justice, equity, equality and impartiality without any form of negativism such as favoritism, nepotism, tribalism. Know your constitutional right of fair hearing and you shall be set free from any shackle of captivity because every individual is entitled to fair hearing otherwise known as due process of law, to determine his rights, duties or obligations in civil or criminal proceedings before a competent court or tribunal. (see section 6 of CFRN 1999 as amended).

By:
Wahab Hussain K
is a sophomore law student in Usmanu Danfodiyo University Sokoto. He can be reached via; WhatsApp :08146373580
GMAIL : wahabhussain323@gmail.com
Facebook : Kehinde Hussain Wahab.

Read Also:
Enforcement of fundamental human rights

Read Also:
For latest update Subscribed to our channel

Have you found this post useful or Inspiring?
Do let me your thought by commenting below.

If you want your article to be published in this website you can reach us:
Email: legalresearch.com.ng@gmail.com
Whatsapp +2347068749346

Continue reading

Thursday, July 30, 2020

Legal Profession

Legal Profession: A river of endless opportunities By S.L Funtua

In This article we shall be discussing the followings:

Legal profession
Who are the Legal Professionals?
Who is a lawyer?
Different Types of Lawyers
Importance of Lawyers
How much is lawyers salary in Nigeria?
Fields of employment
️Legal Guidance and Counselling
️Mitigation
️Preservation of Grundnorm and balance amongst the arms of Government
️Protection of Human rights
️Litigation and Representation
️Combating for Public Interest
Professional Career Opportunities Available For Lawyers In Nigeria

Abstract
Legal profession is unique from divergent angles constituting its glowing shape. The abundance of excellence and extravagance of intelligence and brilliance poured by its custodians are undesputably dissipating the arrogance of other professionals. Precisely, It nobly humbles the world with brains.

Introduction
Lawyers or aspiring law students get into legal career with a reason or passion, fruitful or fruitless. However, a wise and composed lawyer is like a driver with a mission of reaching a designed destination. He must have a goal to achieve on the right hand and converter on the other hand. Once the goal is missed, the converter turns the the missed goal into opportunity rather a latrine pit where it can't be a well. In Nigeria, we have a fused legal system; where once you are called into the bar you are saddled with concurrent jurisdiction of barristership and solicitorship.

What is Legal profession?
Defining the term ‘legal profession’ is more difficult than one may anticipate. It becomes apparent that the simplest definition is perhaps the most befitting. The legal profession is a ‘vocation that is based on expertise in the law and in its applications.’ Those who pursue these ‘vocations’ collectively form a ‘body of individuals who are qualified to practice law in particular jurisdictions. The learned occupation of these individuals is to study, promote, uphold and enforce the collection of rules imposed by the authority. They thus form a ‘legal profession.’

Who are the Legal Professionals?

There are essentially two main branches of the legal profession – solicitors and barristers. Solicitors advise individuals and organisations on legal matters and ensure that their clients act in accordance with the law.

Who is a lawyer?

According to wikipedia"A lawyer or attorney is a person who practices law , as an advocate , attorney at law , barrister, barrister-at-law, bar-at-law, canonist, canon lawyer, civil law notary, counsel, counselor, counsellor, solicitor, legal executive, or public servant preparing, interpreting and applying law, but not as a paralegal or charter executive secretary. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services. The role of the lawyer varies greatly across different legal jurisdictions.

Different Types of Lawyers

▪️Debt recovery Lawyering:

This is mainly with respect to banking debts. Banks engage the services of this type of lawyers to recover money owed by bad debtors.
The lawyers normally get their fees as a contingency on the money that they are able to recover from the debtor.

▪️Corporate Lawyering:

This type of lawyer deals with company incorporation and regulatory issues, and also primarily focuses on obtaining permits, licence, registrations etc from Government agencies and tax authorities, and ensuring that all the legally mandated requirements for operation of business of the client are met.

▪️Criminal Defence Lawyering:

For the first couple of years when a Nigerian lawyer is called to the bar, he/she is likely to get loads of comments by friends and well wishers saying‘ now that you are a lawyer I can go and look for trouble in town, and if they arrest me I will call you’. These people obviously don’t know much about the different types of lawyers that exist. This over-simplification of the role of lawyers as only limited to criminal issues, is largely because that is the impression which the media gives. In reality only a minority of lawyers ever get to deal with criminal matters in court, it is a very interesting and draining specialty as the lawyer is essentially responsible for ensuring the freedom of the client. It is an area of law that is not for the faint-hearted.

▪️Transactional Lawyering:

Lawyers in Nigeria who specialize in this are normally work for the big commercial law firms, they deal in things like Project finance, Public Private Partnerships, Mergers and Acquisitions, etc. They work mainly with other international law firms in these high value transactions. It is a very lucrative area for these types of lawyers, but also very difficult to break into as the nature of clients are massive conglomerates and international banks and investment banks.

▪️Property Lawyering:

Every Nigerian Lawyer is always open to this type of law, really because it is mainly straightforward, and lawyers are necessary for property transactions. Any transaction, which involves the transfer of an interest in land/property, needs a lawyer. Lawyers mainly charge for their fees as a percentage of the value of the transaction. A big land transaction is the proverbial ‘ Golden Fleece‘ for these types of lawyers. Even though there are different types of lawyers, this is one underlying area which lawyers are interested in getting involved in.

▪️Immigration Service Lawyering:

A growing number of lawyers in Nigeria are beginning to specialize in Immigration law. The bread and butter of this is making applications to the Nigeria Immigration Service for work permits and visas for employees of multinational companies. It is really an administrative process, however, it can be painstaking and time consuming for lawyers not familiar with the inner workings of the Immigration service. A subsection of lawyers who practice immigration law also is dealing with Immigration issues of other countries, for example they deal with appeals and judicial reviews when clients visa applications are rejected.

▪️Divorce Lawyering:

A worrying high number of marriages in Nigeria are being dissolved, and this area of law is a pretty lucrative one. The divorce lawyers in Nigeria typically prepares all the necessary court papers detailing the grounds for divorce, makes the necessary court appearances, and represents the client’s interests in any divorce negotiations or settlement discussions.

▪️Employment Lawyering:

Lawyers in Nigeria specializing in labour and employment law deal with things like non-payment of salaries, unfair dismissal, and harassment at the work place etc. The National Industrial Court has special jurisdiction for employment related matters, so lawyers focusing on this field are well versed in it’s practices.

▪️Public Interest Lawyering:

When people think about public interest law, one name above all springs to mind- Chief Gani Fawehinmi SAN, he was the soul of public interest litigation for many years, and he made a name for himself lending his skills to public interest matters. Public Interest litigation encompasses those areas of law, which as the name implies, are in the interest of the general public. It is not a very lucrative area of law (and is also a potentially very dangerous area of law), and that is probably why increasingly not many people are deciding to specialize in it. It includes things like human rights, civil rights, and challenging government illegality.

▪️Dispute Resolution Lawyering:
This is the broad area for all things that involved disputes and potentially end up in court or in arbitration.

Lawyers who wish to operate in this area and excel must be good orators, and very knowledgeable about the rules of court. This is the typical wig and gown lawyer, and the role involves primarily drafting court pleadings and processes, and making court appearances on behalf of clients.

Also Read
list of chief Justice of Nigeria

However, some other areas of law which the different types of lawyers in Nigeria are increasing specializing in include – Intellectual Property and Technology matters, Estate and Probate matters, and Media and Entertainment matters.Studying law sharpens your analytical, reasoning and critical thinking skills, giving you a new perspective of the world. Even if you do not want to practice as a counselor or a litigation lawyer, the skills you develop in law school and through practice can lead to new opportunities and serve as a stepping-stone to many other careers.

Read Also:
moot Court session

Similarly, alternative law-related positions are found in every employment industry sector, including:Executive positions in the private or nonprofit sectors: the leadership management training and problem solving skills acquired in law school and throughout their careers, prepare lawyers to fill these positions.

Importance of Lawyers

No pen or paper can exhaust the significance and usefulness of lawyers in the society so also the numerous opportunies availed to them.Thus, a few would be mentioned for the purpose of clarity and time factor. Namely;

How much is lawyers salary in Nigeria?

Lawyers salary depends on the organization he/she is working. But lawyers make up to N5million per month and even beyond.

Fields of employment

Courts
Government
Law firms
NGOs
Legal aid
Corporations

▪️Legal Guidance and Counselling:

Lawyers advise their clients on the right path and legal remedy to take, and at the same time help in achieving that remedy in the courts of law.Where people are in dire need of philosophical lawyers are the best consultants for expertise in analytical skills and experience for avoidance of falling into the traps of legal potholes.

Read Also:
Top 10 best universities that study law

▪️Mitigation:

Lawyers help in solving disputes between various entities, whether it be a feud between two individuals, between the governments, between the government and common people via the mechanisms of ADR (i.e alternative Dispute resolution).

▪️Preservation of Grundnorm and balance amongst the arms of Government:

Lawyers help in preserving the Grundnorm(i.e the constitution);and likewise help in maintaining a balance between the legislature, executive and judiciary. Thus, the Legal Profession is fundamentally important for the Administration of Justice in the country.

▪️Protection of Human rights:

Lawyers help the common people in upholding their basic rights,often, through pro bono or low bono cases which serves as deterrence against violation and infringement of other people's rights

▪️Litigation and Representation:

It is an opportunity to find representatives in any matter which you are either unavailable to hold or you are unable to haul. Lawyers spend sleepless nights toiling on books and facts, tapped from emperical interviews, and forensic investigation before battling with statutes and judicial precedents to build a skeleton of a legal represention and thereafter give a flesh of diligence in the court of law.

▪️Combating for Public Interest:

Late Chief Gani Fawehinmi, SAN is a clear epitome and a daily celebrity in this regards. He lived his life and died on this clamour;and left behind unquantifiable legacy rather occupied the role model citadel in this practice,exclusively. ▪️Etc...

Honestly, the list is unexhaustive rather just to mention a few.

Read Also:
Nigeria law school Campuses

Professional Career Opportunities Available For Lawyers In Nigeria

Barrister
Solicitor
Legislature
Judge
Court Registrar
Jurist
Advocate
Attorney
Legal executive
Prosecutor
Law clerk
Law professor
Politician
Legal Publisher
Public Service
Management Consultant
Management Consultant
Company Secretary
Legal Analyst
Stockbroker
Government Lawyers
Legal Data Analyst
Chartered Accountant

Conclusion
On 17th June, 2010, Felicia Eimunjeze, Deputy Director, Academics, Nigerian Law School, Lagos campus, was asked whether there were too much lawyers in Nigeria. She eloquently replied:

"It is just an illusion. There aren't too many lawyers in Nigeria. Rather, we don't have enough lawyers. It is surprising. The Nigerian law school was established in 1962 and till date, we have not trained up to 70,000 lawyers in Nigeria. This is for both the dead and alive."

This is impliedly entailing that we are currently having below one hundred thousands lawyers in Nigeria, dead and alive.In a busy country termed giant and heart of Africa where transactions,conflicts and development are daily rising and reading an estimated population of 206,139,589 people at mid year (i.e July 28,2020), as declared by UN data; more than two hundred thousand lawyers are demanded to bridge the apparent gap.The article is a response to the too much commotion and disquiet amidst Lawyers, Law students and laymen that legal practitioners are in excess, which is not rather a fallacious illusion in totality. Let me draw the curtain with this "lawyer is like a fire extinguisher which there should be one atleast in every home!"

Have you found this post useful or inspiring?
Do let me know your thought by commenting below.

If you want your article to be published in this website you can reach us through our email:
Legalresearch.com.ng@gmail.com or Whatsapp us +2347068749346

References:

1.https://lawpadi.com/different-types-of-lawyers-in-nigeria

2.https://www.worldometers.info/world-population/nigeria-population

3.https://m.thenigerianvoice.com/news/27276/since-1962-law-school-has-not-trained-up-to-70-000-lawyers

4.www.vanguardngr.com/2013/06/young-lawyers-unemployment-is-bars-greatest

Continue reading