Category Archives: Legal Parlance

Legal Parlance on PRINCIOLOGY.COM deals with posts about Law, and other law related topics.

LAW is a complex topic, and worth the discourse. When we learn more about Law, we better our standard of living, directly or indirectly.

Everything around us have their laws. Even our bodies. There is no system without a law, no not even one.

If we agree and say, “There’s no law to this.” Well, maybe we forgot that that is also a Law.

ACCEPTANCE IN CONTRACT (Explanation, Invalid Forms & Communication)

ACCEPTANCE

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

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

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

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

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

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

Invalid Forms of Acceptance

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

(a) COUNTER OFFER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COMMUNICATION OF ACCEPTANCE

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

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

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

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

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

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

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

ACCEPTANCE BY POST

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

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

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

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

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

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

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

Exceptions to the Rule in Adams v Lindsell include:

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

Contributor: Adedokun Samuel

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

OFFER

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

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

See also: Contract in Law: Definition and Classification

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

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

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

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

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

INVITATION TO TREAT

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

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

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

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

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

1. DISPLAY OF GOODS IN A SUPERMARKET

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

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

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

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

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

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

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

3. AUCTION

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

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

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

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

4. BUSES, TAXES, TRAINS, ETC

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

5. INVITATION TO TENDER

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

See also: Termination of Offer in Contract

 

Contributor: Adedokun Samuel

Contract in Law: Definition and Classification

Definition of Contract

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

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

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

BARGAIN

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

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

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

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

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

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

CLASSIFICATION OF CONTRACTS

The following are classifications of contracts:

1. FORMAL CONTRACT

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

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

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

A formal contract is useful on land matters.

2. SIMPLE CONTRACT

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

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

3. EXPRESS AND IMPLIED CONTRACTS

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

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

4. BILATERAL AND UNILATERAL CONTRACT

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

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

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

In the famous and celebrated case of Carlill v Carbolic smokeball CO., an advertisement was
made in the newspaper by the defendant to pay 100 euros to anyone, who uses a smoke ball as prescribed
and still succumbed to influenza.

 

Contributor: Adedokun Samuel

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

German Historical School of Jurisprudence

The Historical theory of law argues and states that law should be a product of the custom of the society. As we can simply derive from the meaning of the word ‘history’ – the Historical school of jurisprudence is of the opinion that law should be a restatement of the history of the people.

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

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

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

Friedrich Karl von Savigny

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

See also: Positive Theory of Law

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

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

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

The Historical Theory of Law

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

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

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

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

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

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

Arguments for the Historical Theory of Law

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

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

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

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

Arguments against the Historical Theory of Law

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

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

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

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

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

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

See also: Law definition and meaning

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

More arguments against Savigny’s Historical School of Jurisprudence

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

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

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

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

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

Conclusion

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

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

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

 

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

The difference between Procedural Justice and Substantive Justice

THE DIFFERENCE BETWEEN PROCEDURAL JUSTICE AND SUBSTANTIVE JUSTICE

Some terms can be really confusing, but a close view will help. This post seeks to explain the difference between procedural justice and substantive justice.

First and foremost, it is expressly important that we get a grasp of what is meant by justice.

Then, we can be in a good position to understand the stand of the two conceptions.

That is, procedural justice and substantive justice.
According to Merriam-Webster Dictionary, justice is the maintenance or administration of what is just especially be the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.

In the case of R v Sussex Justices, ex parte McCarthy, Lord Gordon said.”It is not merely of some importance, but it is of fundamental importance that, justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

See also: Cases for Theories of Law

Procedural Justice, as the name indicates, is a means of achieving justice through following strict procedures of fairness.

It is the idea of fairness in the process that resolves disputes and allocate resources.

Procedural and Substantive Justice: Meaning & Difference

It is primarily concerned with the fairness and the transparency of the process by which decisions are made. Procedural Justice holds that fair procedure leads to equitable outcome.

Hence, seeking justice in accordance with the details or procedures of the law is procedural justice.
On the other hand is Substantive Justice.

It maintains that the law to be used as a measure of justice must be just and fair. Substantive is a product of the word ‘substance’, which denotes – ‘of the essence or essential of a thing’.

So, Substantive justice is therefore the liberal and purposive interruption of laws, in order to do justice. Especially, where a formal, strict, and narrow application of the law will lead to hardship, absurdity, or injustice.

Hence, while Procedural Justice focuses on carrying out decisions according to the statement of the law, Substantive Justice is interested in probing whether or not the laws are just themselves.

In all, Procedural Justice follows the process of fairness. Substantive Justice, on the other hand, checks if the fairness of laws that led to the process.

I hope I helped with this explanation. Of course, you should do more research to get the full gist of what these terms mean.

Don’t forget to subscribe and drop your comment(s). Much love.

 

Credit:
Merriam Webster Dictionary
‘The Nigerian Legal Method’ by Ese Malemi

Meaning of Motion, Prayer, and Summon in law with examples

Meaning of Motion, Prayer and Summon in Law

Motion, prayer, and summons are common terms in the legal circle. They are of different meanings and distinct usage. This post addresses their basic meaning of motion, prayer, and summon in law.

Meaning of Motion in Law

I once heard a story of a person, an engineer or so, who was in trial without an attorney. And when the judge said, “Move your motion,” he started walking towards the judge, totally oblivious of what the phrase meant.

The meaning of Motion in the legal world is quite different from its meaning in the ordinary sense. Let’s get down to business very quickly.

Meaning of Motion in Law

Meaning of Motion in Law

According to Merriam-Webster Dictionary, a motion is an application made to a court or judge to obtain an order, ruling, or direction. In practice, it is an occasional application to a court by the parties or their counsel.

You know, to obtain some rule, that becomes necessary either in the advancement of a cause, or summarily and wholly disconnected with the entire proceedings.

In other words, a motion is a formal request we make to a judge for an order or judgement. We may make a motion to ask a court to do something, or to avoid doing something.

We may make motions for many reasons in legal practice. Perhaps, to request the postponement of a trial. Or to get the modification of an order. Or to get an application for a temporary child support, among others.

See also: Definitions and Meaning of Law

In most instances, we use a motion to settle an argument over a particular point in the case. So that the rest of the case proceed more effortlessly.

Forms of Motion in Law

Speaking of form, a motion may be in writing, oral, or both. Most motions require a written petition, a written brief, written notice to the attorney for the opposing party and a hearing before the court, chaired by a bench.

For instance, if in a civil case, the complaint is missing crucial information, a defendant may choose to file a motion to dismiss, rather than respond by filling an answer.

We may address examples of motion as follows. Motions of dismiss, discovery motions, summary judgement motions, and vacate default judgement motions.

We make use of a motion when a defendant or respondent asks the court to dismiss all or part to the case, rather than answering it.

With the motion of summary judgement, one side may ask the court to decide a case based on arguments made in court papers. If it is decided that there is no question of fact and the law, then it can be granted.

See also: Positive Theory of Law

We use Discovery motions uniquely to ask a court to make decision on any discovery problem.

Lastly, we use vacate default judgement motions to ask the court to cancel a default judgement.

In all, the use of motions is relatively indispensable in our courts of law.

Meaning of Prayer in Law

In its loose sense, a prayer is a request or petition.
In legal practice, a prayer is that part of the particulars of claim (brief or memorial), when a lawyer asks the court what he wants for his client, as directly as possible.

Meaning of prayer in law

Meaning of prayer in law

A prayer can also be seen as a direction of judgement the lawyer wants the court to follow, flowing from the conclusion of his argument.

So, the lawyer that uses a prayer must have already laid the basis for the prayer in the particulars of claim.
As stated above, the prayer must be specific enough to avoid confusion, difficult or even impossible enforcement.

According to Wikipedia, “a prayer of relief, in a law of civil procedure is a portion of a complaint in which the plaintiff describes the remedies that the plaintiff seeks from the court”.

We often find prayers at the end of case briefs or memorials.

For example, we can summarize the prayer for a civil case of Negligence as follows:

“Based on the argument canvased and the judicial authorities cited so far from the pleadings, it can be seen that the pleadings support an award of damages Relying strongly on the foregoing, the plaintiff prays that this court award to the plaintiff an award of damages.”

Legal meaning of Summons

A summon is a legal document, that a court or an administrative agency of government issues, for various purposes.

This term refers to the power of the court to order the presence of anybody, institution, or organization.

In other words, it is the document that officially starts a law suit. In legal parlance, it is a form the law governing procedure prescribes in the court involved.

Meaning of summons in law

Meaning of summons in law

The court issues it at the time we file a lawsuit. It states the names of litigants (plaintiff and defendant), the title and file number of the case.

We also know a summon as ‘Claim Form’ in England and Wales, and Court Attendance Notice (CAN) in the Australia State of New South Wales.

A summon announces the date in which the person(s) summoned must appear in court. Or respond in writing to the court, or the opposite party or parties (Wikipedia).

See also: Comparison and contrast between Natural and Positive theory of Law

A summon provides a legal note to a party about a lawsuit. It is the first official notice that a defendant receives to notify him or her that he or she or is being sued. It may or may not specify the date for the court proceeding.

Meaning of motion, prayer, and summon in Law

Meaning of motion, prayer, and summon in law

 

Credits:

Wikipedia

Dictionary.law.com

legal-dictionary.thefreedictionary.com

Judicial Precedents for Theories of Law

Case Laws: Judicial Precedents for Law Theories

In answering law questions, it is important that relevant case laws be mentioned to support points. Here are a number of case laws or judicial precedents for various theories of law.

See also: Meaning of Motion in Law

Case laws for theories of law in Nigeria

1. Positive Theory of Law

Uwaifo V A.G. Bendel State

In this case, some of the plaintiff’s landed properties were forfeited by an edict made by the state military governor. The Supreme Court held that the courts cannot inquire into the validity of decrees and edicts, as well as the competence of the governor to make them, nor inquire into whether or not a decree or edict was a “legislative judgement.”

Click here to read about the definitions of Law + My definition

2. Natural Theory of Law

Inasa V Oshodi
In this case, the court held that the ejection of an entire family from a land for the misbehaviour of one of the familiar members was not in accordance with natural law. Even if it was the custom, such a custom was contrary to natural justice.

3. Pure Theory of Law

FGN V Zamai Lekwot & four others
In this case, the defendants were sentenced to death, in accordance with a military decree.

4. Utilitarian Theory of Law

Nzekwu V Nzekwu
A custom which permitted that the head of a deceased husband’s family could singlehandedly inherit, or alienate the deceased’s property, while the wife was alive was held to be uncivilized and repugnant to natural justice, equity and good conscience.

Also see: Definition and Meaning of Law

5. Sociological Theory of Law

Agidigbi V Agidigbi
The Supreme Court reaffirmed that the Bini customary rule of inheritance which allows the eldest son to inherit his deceased father’s personal living house is not repugnant to natural justice, equity and good conscience.

6. Historical Theory of Law

Onobruchere V Esegine
The plaintiff sued for a parcel of land which was pledged to the defendants many years earlier. The defendants asserted that the land was sold to them. It was common ground that the land originally belonged to the plaintiffs. The Supreme Court held unanimously that under the principles of customary law, a pledger always retains the title to a pledged land, which cannot be defeated by a pledge. A pledger has a perpetual right to redeem a pledged land, no matter how long the land has been privileged.

7. Realist Theory of Law

R V Holland
The finger of the deceased was injured by the accused. A surgeon strongly recommended that the finger be amputated, but the deceased rejected the advice. The finger was later affected by lockjaw, and the finger was subsequently amputated, but it was already too late and the deceased died from the lockjaw. The accused was charged with murder and he contended that the refusal of the deceased to accept the advice to amputate the finger was the cause of his death. The court rejected this argument and held that the injury inflicted by the accused was the cause of death. The court convicted the accused for murder.

See also: Comparison and Contrast of the Natural Theory of Law and Legal Positivism

These are some of the many case laws that can be used to support works on or arguments for these theories of law. You could check out several more in law reports, textbooks, journals etc.

Note that these cases may overlap in the theories they apply to. The implication of this is that a case law that can be used to support the Natural theory of law can also be used for the Sociological theory, or Utilitarian theory.
Hence, if you learn these case laws very well, inter alia, writing about the theories of law would be a win-win project for you.

Should you have any question, do not hesitate to drop your comment below.

Credits:

Introduction to Nigerian Legal Method – Abiola Sanni

EZE Malemi – The Nigerian Legal Methods

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

Classifications Of Law as servant Not Master

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

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

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

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

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

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

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

Legal Approach: Classifications of Law as servant not Master

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

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

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

See also: Law definitions and Meaning

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

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

Reason: Classification of Law as servant not Master

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

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

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

See also: Natural theory of Law

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

Example: Classifications of Law

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

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

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

Tuberville V Savage (1669): Classifications of Law

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

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

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

See also: Pure Theory of Law

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

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

Classification of Law as servant, not Master: Not ideal

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

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

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

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

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

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

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

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

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

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

PURE THEORY OF LAW

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

I love the concept and reasoning behind it.

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

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

See also: Definition and Meaning of Law

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

Pure Theory of Law

Road sign

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

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

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

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

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

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

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

Foundation of other Law Theories: Pure Theory of Law

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

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

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

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

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

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

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

Pure Theory of Law: The Process of Proof

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

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

See also: Natural Theory of Law

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

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

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

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

Meaning of the Pure Theory of Law

Checking a Contract

Innate Principles as subject to Pure Theory of Law

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

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

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

See also: Positive Theory of Law

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

Conclusion on the Pure Theory of Law

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

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

Pure Theory of Law: Definition and Meaning

Road Traffic: Pure Theory of Law

And so can the Utilitarian, Realist, and Marxist.

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

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

 

Referances:

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

Natural and Positive theory of law: comparison and contrast

Comparison and Contrast of Natural and Positive Theory of Law

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

Perhaps, because they are simple and easy to understand.

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

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

See also: Law definition and Meaning

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

Differences Between Positive Law Theory and Natural Theory of Law

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

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

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

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

Differences between legal positivism and Natural theory of law

Legal Positivism & Natural Theory of Law

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

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

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

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

Positive Law Theory: Legal Positivism

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

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

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

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

Natural Theory of Law

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

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

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

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

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

Differences between Legal Positivism and Natural Theory of Law

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

1. The determination of validity of laws:

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

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

Differences between Positive theory and Natural theory of Law

Positive & Natural Theory of Law

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

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

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

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

2. Moral Principles

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

3. Good Reasoning

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

See also: Pure Theory of Law

4. Multiple Conscience Problem

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

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

Comparison & Differences: Legal positivism & Natural theory of Law

Similarities and Differences

Conclusion: Differences between Legal Positivism and Natural Theory of Law

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

 

REFRENCES

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

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

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

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