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(OPINION) #CHILDNOTBRIDE CAMPAIGN: MISGUIDED OR MISUNDERSTOOD?
The social media was agog with so much frenzy when news of what transpired in the Senate in the past week hit the media streets. I have received not less than 50 broadcasts on bbm from people claiming to be massively involved in the fight against the passage of a bill to legalize under-age marriage. I was shocked when I read most of these broadcasts and was greatly depressed because I realized that we Nigerians are an ignorant lot!
If people spent half the time they do reading newspapers, listening to the news on the radio and watching news on TV or actually visiting google more often for current news headlines rather than reading gossip columns like Linda Ikeji’s blog and other gossip media, they would be more informed. For Linda Ikeji’s teeming fans, this is not a swipe at Linda Ikeji but a swipe at those of you who take her stories as the gospel truth. Y’all need to learn the difference between gossip and fact!
Contrary to what many people think as regards the issue, there wasn’t an actual bill to legalize under-age marriage. What happened was during the on-going constitutional amendment carried on by the National Assembly, with specific regard to Section 29 of the 1999 Constitution of the Federal Republic of Nigeria, the Senate Committee sought to amend the subsection.
Section 29 (1) provides thus;
“Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation”
Section 29 (4) further states thus;
“For the purposes of subsection (1) of this section
(a) “Full age” means the age of eighteen years and above;
(b) Any woman who is married shall be deemed to be of full age.” (Emphasis mine).
A probable but unwise implication of this subsection is that a girl who gets married at the age of 13 or less is of full age and can decide to change her citizenship regardless of her mental capacity. The Senate Committee was of the opinion that the provision should be expunged because of this ambiguity. This is where the problem started.
Senator Ahmed Yerima who we all know as a “staunch” defender of Sharia Law swung into action saying that the section was against the tenets of Islam. I am no expert in Islamic affairs, but this in my opinion however, was no defense of Islam but the defense of his lecherous whims especially in the light of his condemnable marriage to a 13 year old Egyptian girl in 2009. His view is that once a girl is married, she has full mental capacity to renounce her citizenship and understand the implication thereof.
This, my friends, is a shitload of bollocks! I’ll tell you why.
In all the hue and cry that followed, we all forgot something – and this is often the case when religion and emotions get involved in arguments; we skip the salient points; the subsection said “woman” and not “girl”. The wording of the sub-section is clear and unambiguous. Except “Hon”Yerima and the other Senators who missed this are trying to tell me that the word “woman” is a synonym for “girl”, what’s all the fuss about?
For the “unlearned”, any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute’s original intent, courts first look to the words of the statute and apply their usual and ordinary meanings. Only when that fails, can we deem such a statute to be ambiguous before recourse can be had to the intent of the legislature when making the law or other methods of statutory interpretation.
Amazingly, Ahmed Yerima gathered a few followers with this warped sense of logic and when it came up for a second vote, though the majority of senators voted that the subsection be expunged, they couldn’t get the required two-thirds majority to expunge as provided for by Section 9(2) of the constitution which states thus;
Section 9(2) “An Act of the National Assembly for the alteration of this Constitution… shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the states.”
Therefore, in this regard, the majority of the Senate only failed to expunge the subsection because of the requirement of the above mentioned Section 9(2) which basically gave Yerima and his cohorts the power to hold the rest of the Senate to ransom. However, this attempt to expunge the subsection, though noble is misguided.
That being said, The Child Rights Act was passed into law in 2003 and Section 277 defines a child as anyone below 18 years of age. Also, Sections 21 and 22 of the Act effectively criminalizes child marriage and betrothal in Nigeria. What needs to be done is to push for The Child Rights Act to be domesticated in every one of the 36 states in Nigeria.
As at today, 12 states are yet to domesticate The Child Act and apart from Enugu State, the rest of them are states from the North. This in my opinion, is a deliberate ploy to undermine the efficacy of the Act.
Furthermore, any court that makes the mistake of towing the line of the thoughts of our obviously “unlearned” senators who sought to expunge the Section 29(4)(b) of the Constitution poses a serious threat to the applicability and enforceability to the Act as all enacted laws that are inconsistent with the constitution are void the extent of their inconsistency because the Constitution is the grund norm of the nation and is supreme to any other law enacted.
Section 1(1) provides, “This Constitution and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.
In addition to this, Section 1(3) provides, “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void.”
For avid social media users, please be selective in the information that you consume and take as fact.
This is my two kobo on the issue.
Malcolm O. Ifi.
If people spent half the time they do reading newspapers, listening to the news on the radio and watching news on TV or actually visiting google more often for current news headlines rather than reading gossip columns like Linda Ikeji’s blog and other gossip media, they would be more informed. For Linda Ikeji’s teeming fans, this is not a swipe at Linda Ikeji but a swipe at those of you who take her stories as the gospel truth. Y’all need to learn the difference between gossip and fact!
Contrary to what many people think as regards the issue, there wasn’t an actual bill to legalize under-age marriage. What happened was during the on-going constitutional amendment carried on by the National Assembly, with specific regard to Section 29 of the 1999 Constitution of the Federal Republic of Nigeria, the Senate Committee sought to amend the subsection.
Section 29 (1) provides thus;
“Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation”
Section 29 (4) further states thus;
“For the purposes of subsection (1) of this section
(a) “Full age” means the age of eighteen years and above;
(b) Any woman who is married shall be deemed to be of full age.” (Emphasis mine).
A probable but unwise implication of this subsection is that a girl who gets married at the age of 13 or less is of full age and can decide to change her citizenship regardless of her mental capacity. The Senate Committee was of the opinion that the provision should be expunged because of this ambiguity. This is where the problem started.
Senator Ahmed Yerima who we all know as a “staunch” defender of Sharia Law swung into action saying that the section was against the tenets of Islam. I am no expert in Islamic affairs, but this in my opinion however, was no defense of Islam but the defense of his lecherous whims especially in the light of his condemnable marriage to a 13 year old Egyptian girl in 2009. His view is that once a girl is married, she has full mental capacity to renounce her citizenship and understand the implication thereof.
This, my friends, is a shitload of bollocks! I’ll tell you why.
In all the hue and cry that followed, we all forgot something – and this is often the case when religion and emotions get involved in arguments; we skip the salient points; the subsection said “woman” and not “girl”. The wording of the sub-section is clear and unambiguous. Except “Hon”Yerima and the other Senators who missed this are trying to tell me that the word “woman” is a synonym for “girl”, what’s all the fuss about?
For the “unlearned”, any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute’s original intent, courts first look to the words of the statute and apply their usual and ordinary meanings. Only when that fails, can we deem such a statute to be ambiguous before recourse can be had to the intent of the legislature when making the law or other methods of statutory interpretation.
Amazingly, Ahmed Yerima gathered a few followers with this warped sense of logic and when it came up for a second vote, though the majority of senators voted that the subsection be expunged, they couldn’t get the required two-thirds majority to expunge as provided for by Section 9(2) of the constitution which states thus;
Section 9(2) “An Act of the National Assembly for the alteration of this Constitution… shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the states.”
Therefore, in this regard, the majority of the Senate only failed to expunge the subsection because of the requirement of the above mentioned Section 9(2) which basically gave Yerima and his cohorts the power to hold the rest of the Senate to ransom. However, this attempt to expunge the subsection, though noble is misguided.
That being said, The Child Rights Act was passed into law in 2003 and Section 277 defines a child as anyone below 18 years of age. Also, Sections 21 and 22 of the Act effectively criminalizes child marriage and betrothal in Nigeria. What needs to be done is to push for The Child Rights Act to be domesticated in every one of the 36 states in Nigeria.
As at today, 12 states are yet to domesticate The Child Act and apart from Enugu State, the rest of them are states from the North. This in my opinion, is a deliberate ploy to undermine the efficacy of the Act.
Furthermore, any court that makes the mistake of towing the line of the thoughts of our obviously “unlearned” senators who sought to expunge the Section 29(4)(b) of the Constitution poses a serious threat to the applicability and enforceability to the Act as all enacted laws that are inconsistent with the constitution are void the extent of their inconsistency because the Constitution is the grund norm of the nation and is supreme to any other law enacted.
Section 1(1) provides, “This Constitution and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.
In addition to this, Section 1(3) provides, “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void.”
For avid social media users, please be selective in the information that you consume and take as fact.
This is my two kobo on the issue.
Malcolm O. Ifi.
GIVING EVIDENCE IN COURT
ARE YOU A WITNESS?
I must start by throwing more light on who a witness is. Witness in Law has a narrow meaning unlike its literal meaning as is the case with many other legal terms little wonder Patrick Delvin in his book, ‘the criminal prosecution’ once said, “every witness is an editor; he tells not everything he saw and heard for that would be impossible, but rather what he saw and heard and deem significant and what he finds significant depends on his preconceptions”
The term witness in its strict and narrow sense means one who gives evidence in a case before a court that may be the determinant of the judge’s judgment.
As a witness to a crime, your cooperation is essential to make the criminal justice system work or thrive better. I have taken to this discourse in an effort to lessen the inconveniences of would-be witnesses and to help them feel more comfortable in the court room.
WHEN TESTIFYING: here are some suggestions to keep in mind. What to say and what not to say as you prepare for your appearance.
· Always tell the truth. At trial as in all other matters, honesty is the best policy. If you tell the truth and tell it accordingly, nobody can cross you up. Do not guess or make up an answer. It is best to say, “I don’t know” if you are asked to explain a detail that you don’t know or remember, it issue best to say, “I don’t remember”. In a nutshell, it all boils down to the truth.
· Answer all questions directly and answer only the questions you are asked and then stop. Avoid “volunteering information” the court is not a Father Christmas and you must not make yourself a Santa Claus with answers.
· Beware of simple questions such as, “why are you here today?” hei! You have not come to volunteer information in order to convict. You are not voluntary organizations. It is safer to say, “you have appeared at trial in response to being served with a subpoena issued by the court”.
· Please at all times, give positive, definite answers whenever possible. Avoid saying, “I think, I believe, in my opinion” gentleman! The court will not entertain all those. As a witness, you testify to facts and not beliefs or opinions.
· Do not say, “That’s all that happened”, get more smart by saying, “that’s all I can recall”. Remember you are like an editor and not bound to remember everything. If possible, later in your testimony, you may remember more details.
In conclusion, the role of witnesses especially in any criminal prosecution cannot be over emphasized. It’s the bedrock of evidence law and most often, judgments are based on the testimony of witnesses since the court cannot be at two places at a time.
As I get to more study, I hope to throw more light on the roles of witnesses in criminal trials especially the Do’s and Don’ts.but before then, the most effective witness is one who can tell their ‘story’ comfortably. Just tell the truth and be yourself. Everything else I bet will be taken care of.
The contributor is a law student and tweets @yung_silky
HIRE PURCHASE AGREEMENTS
IF YOU WANT TO ENTER INTO A HIRE PURCHASE AGREMENT? KNOW YOUR RIGHTS.
The commercial life of society especially in a Nigerian setting where the not-too- rich constitute a great number of the society will become hardly tolerable if Hire Purchase commercial relationships do not exist for it will make the poor members of the society not to be able to obtain the use of certain expensive chattels or properties which they could not have the financial buoyancy to make an outright purchase.
Most higher purchase agreement have two or three parties usually the Owner of the property, the Financial Institution usually banks who broker the relationship and the Hirer who is the initiator of the whole transaction. However for emphasis reasons, I will attempt a brief but concise definition of the term Hire Purchase.
Hire Purchase agreement according to Master Hals bury, is “a contract of hire with an option of the hirer to purchase the subject-matter of the agreement after offsetting the entire cost of the goods in a number of agreed installments. But until the making of the last payment, the hirer cannot assume any legal ownership of the said property”.
What follows is the Right of the parties in a transaction of such nature:
1. RIGHT OF THE OWNER AGAINST THIRD PARTIES
Where a third party who is usually not a part of the hire purchase agreement has obtained a good title of the goods comprised in a hire purchase agreement by acting in good faith and honest intention, the owner has no right of recovery of the goods. But if the third party obtains not a good title to the goods, the owner may repossess the goods. In the second instance, the court will not consider whether the hirer has already paid all the installmental obligations under the contract.
2. THE RIGHT OF THE HIRER AGAINST THIRD PARTIES
The essential characteristic of the hire-purchase agreement is that as long as the agreement lasts, the legal title over the goods remains with the owner. But since the hirer has the possession of the goods during the subsistence of the agreement, he can sue anyone who interferes with his right of possession either in trespass, conversion or detinue. But when he obtains any damages in the process, he has to account to the owner. In other words, where the hirer is in possession of hired goods which are wrongfully detained or converted or negligently damaged or destroyed by a third party, the hirer has a legal right against such third parties. The hirer’s right against third parties who are not member of the Hire purchase agreement is not affected by reason of the termination of the agreement at the instance of the owner so long as the offence was committed when the hirer was still in possession of the goods.
3. RIGHT OF THIRD PARTIES
It is in the nature of the law to put everybody on equal footing and since the owner and hirer has certain rights; in the same vein the innocent third parties have also been accommodated by the law. If you ever find yourself in such corner that is, if you as a third party receives hired goods in circumstances where you never had the opportunity to know that the said goods are objects of a hire purchase agreement and thus do not obtain a good title at least by law, and have been dispossessed by the owner or the finance company, you have a right of action against the hirer for the value you paid for the goods
In conclusion, there is not a single law that exists without exceptions and that has been the beauty and ugliness of the law from time immemorial. As have been said, everybody is accommodated under the umbrella of the law little wonder the Law presumes the accused to be innocent until the contrary is proved. Therefore, from the foregoing if you ever want to enter into a hire purchase agreement or happen to be a victim of circumstance as ‘third parties’ in a hire purchase agreement, know that you have certain rights and presumable innocence under the Hire purchase Act.
Nkannebe Raymond is a law student and tweets @yung_silky
GUNS AND LICENSES: NIGERIAN FIREARMS ACT
The Nigerian Fire Arms Act (1990) provides that no person shall have in his possession or under his control any firearm or ammunition except such person has a license from the President or from the Inspector General of Police.
It states further that no license or permit to carry fire arms should be granted to applicants under the age of seventeen; persons who are of unsound mind; persons not fit to have possession of the firearm in question on account of defective eyesight;
persons of intemperate habits or anyone who has during the previous five years been convicted of an offence involving violence or the threat of violence.
Except for licensed fire arm dealers, it is unlawful for anyone to buy or sell fire arms or ammunitions. The same goes for fire arm manufacturing, only the Inspector – General of police can grant a license to make and repair fire arms in Nigeria, however such persons must be duly documented and registered.
Anyone who has in their possession unlicensed firearms; who imports or exports firearms or ammunition other than through prescribed ports or who manufactures, assembles, or repair of firearms and ammunition unlawfully shall be liable to a minimum sentence of ten years imprisonment.
It states further that no license or permit to carry fire arms should be granted to applicants under the age of seventeen; persons who are of unsound mind; persons not fit to have possession of the firearm in question on account of defective eyesight;
persons of intemperate habits or anyone who has during the previous five years been convicted of an offence involving violence or the threat of violence.
Except for licensed fire arm dealers, it is unlawful for anyone to buy or sell fire arms or ammunitions. The same goes for fire arm manufacturing, only the Inspector – General of police can grant a license to make and repair fire arms in Nigeria, however such persons must be duly documented and registered.
Anyone who has in their possession unlicensed firearms; who imports or exports firearms or ammunition other than through prescribed ports or who manufactures, assembles, or repair of firearms and ammunition unlawfully shall be liable to a minimum sentence of ten years imprisonment.
The list of prohibited firearms as stated in the law includes: artillery, apparatus for the discharge of any explosive or gas-diffusing projectile; rocket weapons; bombs and grenades; machine-guns and machine-pistols; military rifles, namely those of calibres 7.62 mm, 9 mm., .300 inches and .303 inches; revolvers and pistols whether rifled or unrifled (including flint-lock pistols and cap pistols).
Personal fire arms are also prohibited including shotguns other than- automatic and semi-automatic shotguns; shotguns provided with any kind of mechanical reloading device; sporting rifles, air-guns, air-rifles or air-pistols and humane killers of the captive bolt type. Dane-guns, flint-lock guns and cap guns are also included in the list.
The President if he thinks fit may at any time by proclamation prohibit the possession of or dealing in any firearms or ammunition, either throughout the Federation or in any part thereof, and either absolutely or except subject to such restrictions or conditions as may be specified.
Such proclamation from the President may require the surrender of firearms and ammunition within a specified time and to a specified authority, and any person neglecting to make such surrender, or being in possession of or dealing in any firearm or ammunition during the period that such proclamation is in force, shall be guilty of an offence and shall be liable to a penalty of one thousand naira or imprisonment for two years, or to both such fine and imprisonment.
The law allows for the establishment of rifle clubs on the condition that:
(a) That any such rifle club shall be constituted having a president and a secretary, and shall have a committee formally elected by the club members;
(b) That all members subscribe to and are bound by a set of rules duly drawn up by the committee;
(c) That the secretary shall submit to the authorised police officer a copy of the club rules together with a memorandum requesting permission for club members to hold rifle practices setting forth-
(i) the name, age, address and occupation of each club member, and the official position held in the club by such member,
(ii) the type of firearms intended to be used by the club,
(iii) a description of the type of practice intended to be held by the club,
(iv) the proposed venue of the club for such practices, and the times of such practices,
(v) the particulars of the ownership of any firearms belonging to the club, and of the licences to bear such firearms, or the source or sources from which it is intended to borrow firearms for the use of the club,
(vi) the name and address, and the qualifications, of a club member or associate nominated by the club committee to be the person responsible for the observance of the safety rules laid down by the club committee, or by the authorised police officer during any rifle practices held by the club,
(vii) the manner of safeguarding all firearms belonging to the club during the periods that such firearms are not in use by club members,
(viii) the method of transportation of such firearms to the venue of any rifle practice.
(d) That no rifle practice shall be held without the permission of the authorised police officer and unless such restrictions, terms and conditions as he may think fit are complied with.
Adedunmade Onibokun Esq.
ADVANCE FEE FRAUD
The Advance Fee Fraud and other Fraud Related Offences Act of 2006 is “An Act to Prohibit and punish certain offences pertaining to Advance Fee Fraud and other fraud related offences and to repeal other Acts related therewith.”
The law provides that any person who by any false pretence, and with intent to defraud obtains, from any other person for himself or any other person; induces any other person to deliver to any person; or obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.
The basis of the law is to prevent obtaining from others by false pretence and it does not matter whether the victim is in Nigeria or anywhere in the world. As long Mr A induces Mr C to confer a benefit on him by false pretence, Mr A will be liable under this act for committing the offence. It is also very important to note that anyone found guilty of this offence is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine (Section 1, Advance Fee Fraud and other Fraud Related Offences Act of 2006).
Section 2 of the Law also provides that people found guilty of money doubling i.e. people who with intent to defraud claim to be able to produce currency by washing paper in chemicals or through any invocation of juju and scientific means shall be liable on conviction to imprisonment for a term not more than 15 years and not less than five years without the option of a fine. This also includes anyone who gives out his property to be used for such purposes.
Conducting unlawful financial transactions is also an offence under this act and if the offender is a financial or corporation shall be liable to a fine of One Million Naira and where the financial institution or corporate body is unable to pay the fine, its assets to the value of the fine shall be confiscated and forfeited to the Federal Government; or in the case of a director, secretary or other officer of the financial institution or corporate body or any other person, to imprisonment for a term, not more than 10 years and not less than five years.
When as a result of negligence, or regulation in the internal control procedures, a financial institution fails to exercise due diligence as specified in the Banks and Other Financial Institutions Act, 1991 as amended or the Money Laundering (Prohibition) Act, 2004 in relation to the conduct of financial transactions which in fact involve the proceeds of unlawful activity- the financial institution commits an offence and is liable on conviction to refund the total amount involved in the financial transaction and not less than N100.000 sanction by the appropriate financial regulatory authority; a director, secretary, employee or other staff of the financial institution who facilitates, contributes or otherwise is involved in the failure to exercise due diligence as stipulated under this section, commits an offence and is liable on conviction to imprisonment for a term not less than three years and may also be liable to be banned indefinitely for a period of three years from exercising the profession which provided the opportunity for the offence to be committed.
The law in Section 12 also aims to regulate the practice of companies who conduct services by email or online, such companies shall be required to obtain from the customer or subscriber their full names; residential address, in the case of an individual; corporate address, in the case of corporate bodies and any customer or subscriber who- fails to furnish the information specified; or with the intent to deceive, supplies false information or conceals or disguises the information required under this section, commits an offence and is liable on conviction to imprisonment for a term of not less than three years or a fine of N100,000.Such companies, who fail to comply with the provisions of the law commits an offence and is liable on conviction to a fine of N100, 000 and forfeiture of the equipment or facility used in providing the service.
in addition, the law confers jurisdiction on the Federal Capital High Court and the State High Courts to try such alleged offenders.
Adedunmade Onibokun Esq.
@adedunmade
MAKING CONTRACTS
A contract is a legally binding agreement between two or more people to perform or to refrain from some act now or in the future.
A valid contract must contain the following:
1. An offer
2. An acceptance
3. Consideration which is the duty either party will be performing.
It is important to note that a contract comes into existence upon acceptance i.e. When the offer has been accepted by the other party.
Also the following factors must be satisfied as well:
Contractual Capacity/ competent parties: Both parties must be competent to enter into the agreement
Legality: The contract’s purpose must be to accomplish some goal that is legal and not against public policy;
Genuineness of Assent (Arguably part of agreement): The apparent consent of both parties must be genuine; and
Form: The agreement must be in whatever form (e.g., written, under seal, etc.) the law requires.Every contract involves at least two parties the offeror/ promisor, who makes the offer/promise to perform, and the offeree/promisee, to whom the offer/promise is made.
A contract could be an:
• Express Contract: A contract in which the terms of the agreement are fully and explicitly stated orally or in writing.
• Implied-in-Fact Contract: A contract formed in whole or in part by the conduct (as opposed to the words) of the parties. In order to establish an implied-in-fact contract,
(1) the plaintiff must have furnished some service or property to the defendant,
(2) the plaintiff must have reasonably expected to be paid and the defendant knew or should have known that a reasonable person in the plaintiff’s shoes would have expected to be paid for the service or property rendered by the plaintiff, and
(3) the defendant must have had the opportunity to reject the services or property and failed to do so.
• Quasi or Implied-in-Law Contract: A fictional contract imposed on parties by a court in the interests of fairness and justice, typically to prevent the unjust enrichment of one party at the expense of the other.
FORMAL AND INFORMAL CONTRACTS
• Formal Contract: A contract that requires a special form or method of formation (creation) in order to be enforceable.
• Contract Under Seal: A formalized writing with a special seal attached.
• Recognizance: An acknowledgment in court by a person that he or she will perform some specified obligation or pay a certain sum if he or she fails to perform (e.g., personal recognizance bond).
• Negotiable Instrument: A check, note, draft, or certificate of deposit — each of which requires certain formalities (to be discussed later).
• Letter of Credit: An agreement to pay that is contingent upon the receipt of documents (e.g., invoices and bills of lading) evidencing receipt of and title to goods shipped.
• Informal Contract: A contract that does not require a specified form or method of formation in order to be valid.
• The vast majority of contracts are informal (without a seal)
• An executory contract [4302.10]is a contract that has not yet been fully performed by one or more parties.
OTHER TERMS
• Valid Contract [4302.13]: A contract satisfying all of the requisites discussed earlier — agreement, consideration, capacity, legal purpose, assent, and form. By contrast;
· A void contract [4302.14]is a contract having no legal force or binding effect (e.g., a contract entered into for an illegal purpose);
· A voidable contract [4302.15] is an otherwise valid contract that may be legally avoided, cancelled, or annulled at the option of one of the parties (e.g., a contract entered into under duress or under false pretenses); and,
·An unenforceable contract is an otherwise valid contract rendered unenforceable by some statute or law (e.g., an oral contract that, due to the passage of time, must be in writing to be enforceable).
MEDIATION; A form of ADR
What is Mediation?
Mediation is a voluntary process in which two or more parties involved in a dispute work with an impartial party, the mediator, to generate solutions in settling their conflict. It is a type of Alternative Dispute Resolution (ADR) but unlike a Court or an arbitrator whose decisions subject one party to win and the other party to lose, mediation is about finding a solution that works for both parties.
Cases may be self-referred by anyone who is involved in the dispute or by counsel or judge by contacting the Centre for Conflict Resolution. There is a mediation centre in the Lagos State High Court, Igbosere Complex and also in the F.C.T High Court, Abuja.
Cases mediated upon are usually civil in nature, Mediation is not applicable to criminal matters under Nigerian Law. Mediations may involve tenants and landlords, families, neighbourhoods, juvenile offenders, the workplace, corporate, employment, construction, real estate, health care, church and community disputes. It is not necessary for cases to have legal issues and/or lawsuits pending.
Mediation is always an option if you are thinking about taking your dispute to court. It is a better option if you want to preserve a relationship being affected by the conflict, if the dispute is upsetting and affecting your daily life, if you cannot afford the time and cost involved with litigation, if you would like to speak to the other party so they may hear your concerns, or if you would like to resolve the dispute yourself without a third party judgment.
The Mediator
The mediator’s role is to facilitate communication between the parties, not to impose solutions. Mediators do not advise, take sides or render a judgment. Instead, the mediator will work with all the parties to help them reach a mutually acceptable resolution.
Mediators are certified, trained volunteers from various professional backgrounds including attorneys, social workers, human resources specialists, therapists, teachers, managers, executives, ministers, doctors, consultants, police officers and students.
The Mediation Process
The participants in the mediation are the actual parties involved in the dispute. At a minimum there are two parties involved; however, mediated disputes may include multiple parties. Participants of the mediation must have full authority to settle the case at the mediation session.
Stage 1: Mediator’s opening statement. After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
Stage 2: Disputants’ Opening Statements. Each party is invited to describe, in his or her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt.
Stage 3: Joint Discussion. The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed.
Stage 4: Private Caucuses. The private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position and new ideas for settlement. The mediator may caucus with each side just once, or several times, as needed. These private meetings are considered the guts of mediation.
Stage 5: Joint Negotiation. After caucuses, the mediator may bring the parties back together to negotiate directly.
Stage 6: Closure. This is the end of the mediation. If an agreement has been reached, the mediator may put its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties want to, they can write up and sign a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise every one of their options, such as meeting again later, going to arbitration, or going to court.
Adedunmade Onibokun Esq.
@adedunmade
GROUNDS FOR DIVORCE
Each time i attend family court, i am always saddened by the growing rate of divorce in Nigeria, don’t be fooled to think divorce proceedings are usually instituted by old couples, you had be surprised to learn that most divorce proceedings are instituted by young couples and i always wonder why they seem to be rushing out of the marriage.
Many lawyers have given reasons such as poverty and the inability of couples to determine if they really are mean’t for one another as responsible for the growing rate of divorce.
The Courts are usually adamant to grant a petition for divorce or dissolution of marriage and Judges usually ensure that parties exhaust all forms of reconciliation and dialogue in a bid to save the marriage especially if there are children involved,if however the court believes that the marriage has broken down irretrievably,it will go ahead to dissolve the marriage.
It is a general rule as provided in section 30 of the Matrimonial Causes Act that divorce proceedings cannot be executed within 2 years of marriage except by leave of court. By virtue of the Matrimonial Causes Act, a marraige may be considered not valid in certain circumstances which include:
1. when either parties at the time of the marraige are lawfully married to some other person.
2. If the parties are within the prohibited degrees of consanguinity.
3. When there is failure to comply with the requirements of the law with respect to solemnisation of marriages.
4. Also a marraige would be void if at the time of the marriage either party of the marriage is incapable of consumating the marriage.
5. Either party is of unsound mind, mentally defective or subject to recurrent attacks of insanity or epilepsy.
6. Either party is suffering from a venereal disease in a communicable form, or
7. The wife is pregnant for some one else other than the husband.
DISSOLUTION OF MARRIAGE
A party to a marriage may present a petition for dissolution of marriage to the court on the ground that the marriage has broken down irretrievably. The court on the other hand shall hold that the marriage has broken down only if the petitioner can prove one or more of the following facts:
A) that the other party has wilfully and persistently refused to consumate the marriage (I.e refused to have sex).
B) that the other party since the beginning of the marriage has committed adultery and the petitioner finds it intolerable to live with.
C) that the other party has behaved in such a way that the petitioner cannot be expected to live with them.
D) that the other party deserted the petitioner for a continous period of at least one year.
E) that both parties have lived apart for a period exceeding 2 (two) years.
F) that the other party has been absent for such a period of time that it will be safe to assume that they are dead.
G) if since the marriage, the other party has committed rape, sodomy or bestiality.
H) if since the marriage the other party has been an habitual drunkard or habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug.
I) If since the marriage, the other party has been in prison for a period of not less than 2 (three) years after conviction for an offence punishable by death or imprisonment for life.
The above conditions are not exhaustive and it is advised that one retains the services of a competent lawyer if one needs more legal advice on the subject of divorce.
I actually will love to use this opportunity to ask young Nigerians to get married for the right reasons and ignore the allure of the other party’s wealth or even peer and societal pressure because i fear that dicorce proceedings in Nigeria will soon explode exponentially.
Adedunmade Onibokun Esq.
PROCEDURE FOR REGISTRY MARRIAGE IN NIGERIA
Marriages in all religions and faiths is a sacred institution, a union of two who unite to become one, this not only promotes procreation as married couples more often than not have children, spending the rest of one’s life with that special significant other can lead to a life of happiness and maybe pain (as the case may be), but let’s not dwell on the emotions that tear at couples during their lifetime pact to remain by eachother, let’s focus rather on the rules and guidelines that the law prescribes for marraige. The Marriage Act is the law that makes provisions for the celebrations of marriages in Nigeria.
The Marriage act provides for the office the Principal Registrar for Marriages and a deputy for each marriage district. Whenever a person desires to marry, one of the parties of the intended marriage must sign and give to the registrar a notice of intention to marry. The registrar in turn shall enter the notice into the Marriage Notice Book and post a copy of the notice on the outer door of his office until after the marriage certificate is granted or for a 3 month period. If the marriage does not take place within the 3 month period, the notice shall lapse and any couple who intends to marry must fill another notice.
Before a Registrar can issue a certificate of marriage,he must be satisfied that:
– one of the parties has been resident within the district.
– that each party to the intended marriage is above 21 yrs and if below, that requisite consent has been obtained in writing.
– that the parties are not kins or relations of each other or any relationship of affinity.
– that neither of the intended parties are married to others.
If anyone knows a reason why the marriage must not take place,such person must write a caveat with the word “forbidden” opposite the notice and include his name, contact address and reasons why he believes the couple should not be married. Whenever a caveat is entered,it is the duty of the registrar to refer the matter to a judge of the High Court who shall invite all the parties and shall determine the case. If the judge decides that the certificate ought to be issued,he shall remove the caveat by cancelling the word forbidden in the notice book.
It is provided that no marriage in Nigeria shall be valid where either parties of the intended marriage is married under customary law to another person. It should be noted that it is a crime punishable by 5 years imprisonment for an unmarried person to knowingly marry another person who is married to someone else. Also, any one who tries to stop a marriage by falsely pretending that his consent was needed and not sought or that there is a legal reason why the parties should not be married shall be liable to imprisonment for 2 years.
– Adedunmade Onibokun Esq.
@adedunmade
dunmadeo@yahoo.com