Sunday, 11 December 2016

QUOTE


THE LAW IS A  BEING. IT BREATHES AND FEEDS FROM THE DECISION OF JUDGES.

THE INGREDIENTS OF MURDER UNDER THE NIGERIAN CRIMINAL CODE.




The nature of Life is such that every culture and civilization submit to its sacredness . Hence in many jurisdictions, the willful termination of the life of a human being by another human being is viewed as a grievous offence. The offence both from the viewpoint of consequences

MANDIBA'S DECISION





"As a young man I decided to study law with a view to using what little talent I had in the service of justice and the cause of my people. Like many before me and those in my generation, I entered legal practice with a determination to employ my skills and training to atleast alleviate the suffering of the oppressed if not to reserve it"                                                                                                                      ––NELSON MANDELA                                                                           {Address presented at the Zionist Christian church Easter conference - 1994}


A COMPARISON OF CAUSATION IN HOMICIDE UNDER COMMON LAW AND NIGERIAN CRIMINAL CODE.


In every case where it is alleged that death has resulted from the act of a person, a causal link between that death and the act must be established and proved, in a criminal proceedings, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act (or omission) of the person alleged to have caused it

Thursday, 8 December 2016

War is in no way a relationship of man

War is in no way a relationship of man with man but a relationship between states, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to destroy the enemy state, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.
JEAN-JACQUES ROUSSEASU

Wednesday, 7 December 2016

Quote

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.

       Martin Luther King Jr. (1929-1968)        American black leader.

Monday, 5 December 2016

Corporate law; Business lawyer


Every business demands a business lawyer, so that one can run one's business successfully without facing any kind of hardships from others. Different companies have different rules that are set as per the requirement of their corporate guidelines and structure, hence the rules and regulations may vary from one company to the other. On the other hand, small businesses do not have complex set of rules, but it may be a necessity later on when a company grows itself and starts becoming a corporate. The lawyer plays an active role in forming up of such rules and makes sure that the regulations are properly abided without any fail. The lawyer also helps to deal with the legal complexities that are related with partnerships, networking, and joint ventures and also prepare against probable future lawsuits and build planned relationships with other trade industry.

Any legal problem or business dispute is not appreciated and is not welcomed at any stage and in any kind of business. Therefore, a company needs proper strategic planning so that one can avoid arising of such problems that may hamper the growth and reputation of the company. The lawyer who is responsible to look after the growth of one's business will take up the legal procedures with utmost care and concentrate on the growth of the business. A knowledgeable and wise business lawyer can easily avert situations which might engage huge expenditures in lawsuits, or take the matter into consideration and solve it accordingly before it takes a huge shape. There basic duty of a business lawyer is to review the problems and come up with proper and effective solutions. Business transaction lawyers are considered to be an asset for any organization if they are knowledgeable and professional in their field. The business lawyers have different kind of job roles, a lawyer needs to apply its powers and methods effectively so that it benefits the company and increases the growth perspective.

When a business is a small unit in the trade world, it is a daunting task to handle mergers and meetings with the big shots of the trade world. One's business transaction lawyer will help in this regard also, as they are well aware about the intricacies that a business has, and hence will have the best solution for every possibility that company faces during its execution period in such industry. A company should be perfectly resourceful and confident so that it is not exploited by its opponents, who will indeed have sufficient knowledge on matters of corporate sector. If an organization wishes to have a major business transaction, a business lawyer in case can make or break the deal as per the guidance that is provided by him. Such business lawyers also helps in preparing legal papers for any contract like gaining or expansion, or even advertising a company to merge with a larger organization, a business transaction lawyer helps out with the paper works that is needed and other finer issues that is concerned with it. By hiring a business lawyer, a person needs not to worry or invest one's time in the legal ins and outs and can actually concentrate on one's business and concentrate on its growth.

Saturday, 3 December 2016

Thursday, 1 December 2016

Quote


It is UNJUST for a law to not be JUST.
-Unknown

Quote

"Every law is an infraction of liberty."

"Lawyers are the only persons in whom ignorance of the law is not punished."

   Jeremy Bentham (1748-1832) British    philosopher.

Quote

"The legal system has been designed by governments and corporations to protect them from the common people."

    Steven Magee

Quote

"Protest beyond the law is not a departure from democracy; it is absolutely essential to it."
   
    Howard Zinn

Quote

" For there is but one essential justice which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked."

    Marcus Tullius Cicero , On the laws.

Quote

"We cannot expect people to have respect for law and order until we teach respect to those we have entrusted to enforce those laws."
   
    Hunter S. Thompson

Quotes

“ I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do."

    Robert A. Heinlein

Tuesday, 29 November 2016

Latin maxim

Les inter alies acta alteri nocere non debet; _A man ought not to be prejudice by what has happened between others

Saturday, 26 November 2016

LATIN MAXIMS

 COLLECTION OF LATIN  LEGAL MAXIMS.
Legal Maxims or Axioms are words or phrases which reflect legal principles or ideologies. They are words which serves as memory verses of legal principles and concepts. Legal maxims articulates the foundation upon which the law is built. They are thrust of great antiquity, tested, trusted,cherished and adopted by legal practitioners worldwide.

Ab Absurdo; an evidentiary suggestion or statutory interpretation that is, or leads to, an absurdity.
Aberratio Ictus; the accidental harm to a person; e.g. perpetrator aims at X but by chance or lack of skill hits Y.
Ab initio; from the start; from the beginning.
Acta Exteriora Indicant Interiora Secreta;The outward acts show the secret intentions.
Actio Personalis Moritur Cum Persona; any right of action dies with the person.
Actus Curiae Neminem Gravabit;
 An act of the court shall prejudice no one.
Actus Dei Nemini Facit Injuriam
Latin: An act of God causes legal injury to no one.
Actus Regis Nemini Est Damnosa;
 The law will not work a wrong.
Actus Reus; a prohibited act.
Actus Reus Non Facit Reum Nisi Mens Sit Rea;
conviction of a crime requires proof of a criminal act and intent.
Ad Colligendum Bona;                          for the collection of the goods of the deceased.
Ad Damnum; to the damage.
Ad Hoc;limited in time; to this point.
Ad Infinitum; forever; without limit; indefinitely.
Ad Litem;for the suit.
Ad Proximum Antecedens Fiat Relatio Nisi Impediatur Sententia;
 relative words must ordinarily be referred to the last antecedent, the last antecedent being the last word which can be made an antecedent so as to give a meaning.
Ad Quaestionem Facti Non Respondent Judices, Ad Quaestionem Juris Juratores
 The judge instructs on points of law and the jury decides matters of fact.
Aequum et bonum; what is right and just..
A fortiori; with all the more force.
Agnatio;
members of a group having a common male ancestor.
Alea jacta est; the die is cast.
Alia Enormia;
The catch-all phrase in trespass pleadings to refer to all such other harms and damages that may have been caused by the alleged trespasser other than those specified.
Alibi;
A defence to a criminal charge to the effect that the accused was elsewhere than at the scene of the alleged crime.
Alieni juris;
 under the legal authority of another.
Aliunde;otherwise
Amicus curiae; friend of the court.
Animus; intention.
Animus Contrahendi;
 an intention to contract.
Animus Furandi;an intent to do wrong.
Argumentum Ab Inconvenienti Plurimum Valet In Lege;
An argument drawn from inconvenience is forcible in law.
Audi Alteram Partem
 literally 'hear the other side'.
Audita Querela;
An application to a court after judgment seeking to avoid execution of that judgment because of some event intervening between judgment and execution which compromises the judgment creditor's entitlement to execution.
A Vinculo Matrimonii;of marriage.
Avunculus;a mother's brother.
Bona Fide;
good faith.
Bona Vacantia;
Property that belongs to no person, and which may be claimed by a finder.
Boni Judicis Est Ampliare Jurisdictionem;good justice is broad jurisdiction.
Bonus pater familias; the good family man.
Casus Foederis; treaty event.
Causa Causans;
The real, effective cause of damage.
Causa Proxima Et Non Remota Spectatur; the immediate, not the remote cause, is to be considered.
Causa Sine Qua Non;
An intervening cause of loss which, though not direct, may nonetheless contribute to the loss.
Caveat
 let him beware. A formal warning.
Caveat Emptor;
 buyer beware.
Certiorari;
A formal request to a court challenging a legal decision of an administrative tribunal, judicial office or organization (eg. government) alleging that the decision has been irregular or incomplete or if there has been an error of law.
Cessante Ratione Legis, Cessat Ipsa Lex;
 The reason for a law ceasing, the law itself ceases.
Cestui Que Trust or Cestui Que Use
 the beneficiary of a trust.
Ceteris Paribus;all things being equal or unchanged.
Comitatus; a contract of personal services between a land lord and his men.
Commodum Ex Injuria Sua Nemo Habere Debet; a wrongdoer should not be enabled by law to take any advantage from his actions.
Commorientes
Two or more persons dying at about the same time, usually in the same event, but in circumstances in which it is impossible to determine the order of death.
Communis Error Facit Jus;
 Common error makes right.
Consensus;
A decision achieved through negotiation whereby a hybrid resolution is arrived on an issue, dispute or disagreement, comprising typically of concessions made by all parties, and to which all parties then subscribe unanimously as an acceptable resolution.
Consensus Ad Idem; a meeting of the minds.
Consensus Tollit Errorem;
Consent obviates errors in the course of judicial proceedings.
Consortium
Companionship, love and affection and intimacy between husband and wife within a mariage.
Consuetudo Volentes Ducit, Lex Nolentes Trahit;
Customs leads the willing, law drags the unwilling.
Contemporanea Expositio;
That the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Corpus Delicti;the body of the offense.
Crimen Omnia Ex Se Nata Vitiat;
property obtained by crime is tainted (vitiated).
Cuicunque Aliquis Quid Concedit Concedere Videtur Et Id Sine Quo Res Ipsa Esse Non Poluit;
Whoever grants a thing is supposed also tacitly to grant that without which the grant itself would be of no effect.
Cuius Est Solum Ejus Est Usque Ad Caelum;
whose is the soil, his it is even to the skies and to the depths below.
Cuius Est Solum Ejus Est Usque Ad Coelum Et Ad Inferos; for whoever owns the soil, it is theirs up to heaven and down to hell.
Cujus Est Commodum Ejus Debet Esse Incommodum;
Whose is the advantage, his also should be the disadvantage.
Culpa Lata; gross negligence.
Cursus Curiae Est Lex Curiae;
The practice of the court is the law of the court.
Custodia Legis;
In the custody of the law; the taking, seizing or holding of something by lawful authority.
Damnum Absque Injuria;
 harm absent a wrong.
Damnum Injuria Datum;
 wrongful injury to the property of another.
De Bene Esse;
To take something for what it is worth, such as evidence collected for the time being, in the absence of, but in anticipation of, litigation, admissibility to be determined when such thing is sought to be used against another at trial.
De Bonis Non;
 assets not yet administered.
Decree Nisi;
A provisional decision of a court which does not have force or effect until a certain condition is met such as another petition brought before the court or after the passage of a period time.
Dedimus Potestatem de Attornato Faciendo;
 to substitute an attorney.
De Facto; in fact.
De Fide et Officio Judicis non Recipitur Quaestio, sed de Scientia Sive sit Eror Juris sive Facti;
The bona fides and honesty of purpose of a judge cannot be questioned, but his decision may be impugned for error of law or of fact.
De injuria sua propria absque tali causa;of his own wrong (or injury) without any other cause.
De Jure;of the law.
Delegatus Non Potest Delegare;
 a delegate cannot delegate.
Delict;
A civil law term which imposes liability on a person who causes injury to another, or for injury caused by a person or thing under his custody.
De Minimis Non Curat Lex;
 a common law principle whereby judges will not sit in judgment of extremely minor transgressions of the law.
De Non Apparentibus Et De Non Existentibus Eadem Est Ratio;
 What is not juridically presented cannot be judicially decided.
De Non Sane Memorie; of insane memory.
De Novo; new.
Dicta or Dictum;saying.
Dies Dominicus Non Est Juridicus;
Sunday is not a day for judicial or legal proceedings.
Divorce a Mensa et Thoro;
An obselete form of divorce order which did not end the marriage but allowed the parties to reside separate; in effect, a legal or judicially-sanctioned separation of two married persons.
Dolus Eventualis;
Awareness of the likely outcome of an action.
Dominion Utile;the property rights of a tenant; exclusive right to use a thing
Dominium Directum;
qualified ownership of a land: not having possession or use of property but retaining ownership.
Domitae Naturae;
Animals which are of a nature easily tamed and may be readily domesticated.
Domus Sua Cuique Est Tutissimum Refugium; Every man's house is his refuge.
Donatio Mortis Causa;
A death-bed gift, made by a dying person, with the intent that the person receiving the gift shall keep the thing if death ensues.
Duces Tecum;bring with you.
Dum Casta;for so long as she remains chaste.
Dum Sola;
 for so long as she remains unmarried.
Dum Sola et Casta Vixerit; for so long as she remains single (unmarried) and chaste.
Dum Vidua; for so long as she remains a widow.
Ejusdem or Eiusdem Generis;
Of the same kind or nature.
Emptio or Emtio; for 'purchase' or referring to the contract in which something is bought.
En banc;French; As a full bench.
Error In Objecto;
A mistake by a perpetrator as to the identity of the victim; an error as to the object of his act.
Erunt animae duae in carne una; two souls in one flesh.
Et. al.;and others.
Et Impotentia Excusat Legem;
The law excuses someone from doing the impossible.
Ex Aequo Et Bono; in justice and fairness.
Exceptio Non Adimpleti Contractus;
exception of a non-performed contract.
Ex Debito Justitiae; as of right.
Executio Juris Non Habet Injuriam;
 The execution of the law does no injury.
Ex Juris; outside of the jurisdiction.
Ex officio;by virtue of office.
Exordium;introduction.
Ex Parte; outside the awareness of a party; for one party only.
Ex Patriate;
A person who has abandoned his or her country of origin and citizenship and has become a subject or citizen of another country.
Ex Post Facto;after the fact.
Expressio Unius Est Exclusio Alterius;
the expression of one thing is the exclusion of the other.
Ex Rel;on the relation of, or the information of.
Ex Turpi Causa Non Oritur Actio;
Of an illegal cause there can be no lawsuit.
Falsa Demonstratio Non Nacet;
A wrong description of an item in a legal document (such as a will) will not necessarily void the gift if it can be determined from other facts.
Fiat Justitia Ruat Caelum;do justice though the heavens fall.
Fieri Facias;
 that you cause to be made. Mostly used to refer to a writ of judgment enforcement obtained under the old common law of England.
Functus Officio; an officer or agency whose mandate has expired either because of the arrival of an expiry date or because an agency has accomplished the purpose for which it was created.
Furiosi Nulla Voluntas Est; mentally impaired persons cannot validly sign a commit their will.
Furtum; theft or a thing stolen..
Habeas Corpus;a court petition which orders that a person being detained be produced before a judge for a hearing to decide whether the detention is lawful.
Hereditas; the estate of a deceased person.
Hereditas Damnosa; an inheritance that is more of a burden than a benefit.
Hereditas Jacens;an unclaimed estate.
Hostis Humani Generis; the enemy of mankind.
Ignorantia Juris Non Excusat;ignorance of the law is no excuse.
In Absentia; in the absence of.
In Camera
A closed and private session of Court or some other deliberating body.
In Fictione Juris Semper Aequitas Existit;With legal fictions, equity always exists.
In haec verba;verbatim.
In Jure Non Remota Causa Sed Proxima Spectatur;
 In law the near cause is looked to, not the remote one.
In Limine; at the beginning or on the threshold.
In Loco Parentis;
A person who, though not the natural parent, has acted as a parent to a child and may thus be liable to legal obligations as if he/she were a natural parent.
In Pari Delicto;both parties are equally at fault.
In Personam;regarding a person; a right, action, judgment or entitlement that is attached to a specific person(s).
In Rem;regarding a thing; proprietary in nature; a right or judgment related to the use or ownership of an item of property.
Inter Alia;'among other things', 'for example' or 'including'.
Interest Reipublicae Ut Sit Finis Litium
Latin: in the interest of society as a whole, litigation must come to an end.
Inter Partes;n between, among parties.
Interpretatio Cessat in Claris;Interpretation stops when a text is clear.
In Terrorem; in terror, fright, threat or warning.
Inter Se;as between or amongst themselves.
Inter Vivos;from one living person to another living person.
In tota fine erga omnes et omnia;for all purposes, in regards to all and everything.
In Toto; in total.
Intuitu Personae; Because of the person.
Ipso facto;By the act itself.
Ipso jure;by operation of law.
J. D.
Abbreviation for juris doctor or doctor; of jurisprudence and the formal name given to the university law degree in the United States.
Judex;
A form of judge in early Roman law.
Jura Regalia
Rights which belong to the Crown or to the Government.
Jurat;
The written certification by a judicial officer that a deponent or affiant recognizes and endorses all parts of an affidavit he or she proposes to sign, and confirms that an oath has been administered in this regard to the affiant.
Jure;by right, under legal authority.
Jure Coronae;
A right of the Crown.
Juris Utriusque Doctor; a combined law degree, in both civil and canon law.
Jus; the law or a legal right.
Jus Ad Bellum; the legal authority to wage war.
Jus Cogens;peremptory law.
Jus Detractus;The right to deduct.
Jus Disponendi; The right to dispose of a thing.
Jus Dispositivum;
Law adopted by consent.
Jus Ex Injuria Non Oritur;a legal right or entitlement cannot arise from an unlawful act or omission.
Jus Publicum; legal rights enjoyed by all citizens; more recently used in reference to the right of the public to access shorelines for fishing, boating, swimming, water skiing and other related purposes.
Jus Spatiandi Et Manendi;the right to stray and remain.
Justiciar;
An obsolete judicial position of English nobility; that of chief justice of the realm.
Jus Vitae Necisque; Power of life and death.
Leges Posteriores Priores Contrarias Abrogant;Later laws abrogate prior contrary laws.
Lex Causae; law of the cause.
Lex Fori; for the law of the forum.
Lex Loci Contractus;
the law of the place where the contract is made.
Lex Loci Delecti;the place of the wrong.
Lex Non Cogit Ad Impossibilia;
 The law does not compel a man to do that which is impossible.
lex non scripta, diuturni moresconsensus utensium comprobati; Law derived from custom must be firmly entrenched in practice and adopted and followed by tradition.
Lex Scripta;
Written law; statutes.
Lex Situs;
A conflict of law rule that selects the In Jure Non Remota Causa Sed Proxima Spectatur;applicable law based on the venue or location of something.
Lis Pendens; a dispute or matter which is the subject of ongoing or pending litigation.
Locus; the place; venue.
Locus Regit Actum; The law of the place where the facts occurred.
Locus Standi; legal standing before a court.
Lubricum Linquae Non Facile Trahendum Est In Poena;the law tends to overlook rash or inconsiderate language spoken in the heat of the moment.
Mala Fides; bad faith.
Malum in se;something wrong in itself.
Malum prohibitum; wrong because prohibited.
Mandamus;
A writ which commands an individual, organization (eg. government), administrative tribunal or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
Mansuetae Naturae; animals which are now generally domestic, presumed gentle and readily tamed, such as dogs, cats, cows and horses.
Mea Culpa;I am guilty.
Melius Est Petere Fontes Quam Sectari Rivulos;it is better to seek the sources than to follow the tributaries.
Mens Rea;guilty mind; guilty knowledge or intention to commit a prohibited act.
Mobilia Sequuntur Personam, Immobilia Situa;movables follow the person, immovables their locality.
Modus Operandi;method of operation.
Mortis Omnia Solvit;Death puts an end to everything.

LATIN MAXIMS

 COLLECTION OF LATIN  LEGAL MAXIMS.
Legal Maxims or Axioms are words or phrases which reflect legal principles or ideologies. They are words which serves as memory verses of legal principles and concepts. Legal maxims articulates the foundation upon which the law is built. They are thrust of great antiquity, tested, trusted,cherished and adopted by legal practitioners worldwide.

Ab Absurdo; an evidentiary suggestion or statutory interpretation that is, or leads to, an absurdity.
Aberratio Ictus; the accidental harm to a person; e.g. perpetrator aims at X but by chance or lack of skill hits Y.
Ab initio; from the start; from the beginning.
Acta Exteriora Indicant Interiora Secreta;The outward acts show the secret intentions.
Actio Personalis Moritur Cum Persona; any right of action dies with the person.
Actus Curiae Neminem Gravabit;
 An act of the court shall prejudice no one.
Actus Dei Nemini Facit Injuriam
Latin: An act of God causes legal injury to no one.
Actus Regis Nemini Est Damnosa;
 The law will not work a wrong.
Actus Reus; a prohibited act.
Actus Reus Non Facit Reum Nisi Mens Sit Rea;
conviction of a crime requires proof of a criminal act and intent.
Ad Colligendum Bona;                          for the collection of the goods of the deceased.
Ad Damnum; to the damage.
Ad Hoc;limited in time; to this point.
Ad Infinitum; forever; without limit; indefinitely.
Ad Litem;for the suit.
Ad Proximum Antecedens Fiat Relatio Nisi Impediatur Sententia;
 relative words must ordinarily be referred to the last antecedent, the last antecedent being the last word which can be made an antecedent so as to give a meaning.
Ad Quaestionem Facti Non Respondent Judices, Ad Quaestionem Juris Juratores
 The judge instructs on points of law and the jury decides matters of fact.
Aequum et bonum; what is right and just..
A fortiori; with all the more force.
Agnatio;
members of a group having a common male ancestor.
Alea jacta est; the die is cast.
Alia Enormia;
The catch-all phrase in trespass pleadings to refer to all such other harms and damages that may have been caused by the alleged trespasser other than those specified.
Alibi;
A defence to a criminal charge to the effect that the accused was elsewhere than at the scene of the alleged crime.
Alieni juris;
 under the legal authority of another.
Aliunde;otherwise
Amicus curiae; friend of the court.
Animus; intention.
Animus Contrahendi;
 an intention to contract.
Animus Furandi;an intent to do wrong.
Argumentum Ab Inconvenienti Plurimum Valet In Lege;
An argument drawn from inconvenience is forcible in law.
Audi Alteram Partem
 literally 'hear the other side'.
Audita Querela;
An application to a court after judgment seeking to avoid execution of that judgment because of some event intervening between judgment and execution which compromises the judgment creditor's entitlement to execution.
A Vinculo Matrimonii;of marriage.
Avunculus;a mother's brother.
Bona Fide;
good faith.
Bona Vacantia;
Property that belongs to no person, and which may be claimed by a finder.
Boni Judicis Est Ampliare Jurisdictionem;good justice is broad jurisdiction.
Bonus pater familias; the good family man.
Casus Foederis; treaty event.
Causa Causans;
The real, effective cause of damage.
Causa Proxima Et Non Remota Spectatur; the immediate, not the remote cause, is to be considered.
Causa Sine Qua Non;
An intervening cause of loss which, though not direct, may nonetheless contribute to the loss.
Caveat
 let him beware. A formal warning.
Caveat Emptor;
 buyer beware.
Certiorari;
A formal request to a court challenging a legal decision of an administrative tribunal, judicial office or organization (eg. government) alleging that the decision has been irregular or incomplete or if there has been an error of law.
Cessante Ratione Legis, Cessat Ipsa Lex;
 The reason for a law ceasing, the law itself ceases.
Cestui Que Trust or Cestui Que Use
 the beneficiary of a trust.
Ceteris Paribus;all things being equal or unchanged.
Comitatus; a contract of personal services between a land lord and his men.
Commodum Ex Injuria Sua Nemo Habere Debet; a wrongdoer should not be enabled by law to take any advantage from his actions.
Commorientes
Two or more persons dying at about the same time, usually in the same event, but in circumstances in which it is impossible to determine the order of death.
Communis Error Facit Jus;
 Common error makes right.
Consensus;
A decision achieved through negotiation whereby a hybrid resolution is arrived on an issue, dispute or disagreement, comprising typically of concessions made by all parties, and to which all parties then subscribe unanimously as an acceptable resolution.
Consensus Ad Idem; a meeting of the minds.
Consensus Tollit Errorem;
Consent obviates errors in the course of judicial proceedings.
Consortium
Companionship, love and affection and intimacy between husband and wife within a mariage.
Consuetudo Volentes Ducit, Lex Nolentes Trahit;
Customs leads the willing, law drags the unwilling.
Contemporanea Expositio;
That the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Corpus Delicti;the body of the offense.
Crimen Omnia Ex Se Nata Vitiat;
property obtained by crime is tainted (vitiated).
Cuicunque Aliquis Quid Concedit Concedere Videtur Et Id Sine Quo Res Ipsa Esse Non Poluit;
Whoever grants a thing is supposed also tacitly to grant that without which the grant itself would be of no effect.
Cuius Est Solum Ejus Est Usque Ad Caelum;
whose is the soil, his it is even to the skies and to the depths below.
Cuius Est Solum Ejus Est Usque Ad Coelum Et Ad Inferos; for whoever owns the soil, it is theirs up to heaven and down to hell.
Cujus Est Commodum Ejus Debet Esse Incommodum;
Whose is the advantage, his also should be the disadvantage.
Culpa Lata; gross negligence.
Cursus Curiae Est Lex Curiae;
The practice of the court is the law of the court.
Custodia Legis;
In the custody of the law; the taking, seizing or holding of something by lawful authority.
Damnum Absque Injuria;
 harm absent a wrong.
Damnum Injuria Datum;
 wrongful injury to the property of another.
De Bene Esse;
To take something for what it is worth, such as evidence collected for the time being, in the absence of, but in anticipation of, litigation, admissibility to be determined when such thing is sought to be used against another at trial.
De Bonis Non;
 assets not yet administered.
Decree Nisi;
A provisional decision of a court which does not have force or effect until a certain condition is met such as another petition brought before the court or after the passage of a period time.
Dedimus Potestatem de Attornato Faciendo;
 to substitute an attorney.
De Facto; in fact.
De Fide et Officio Judicis non Recipitur Quaestio, sed de Scientia Sive sit Eror Juris sive Facti;
The bona fides and honesty of purpose of a judge cannot be questioned, but his decision may be impugned for error of law or of fact.
De injuria sua propria absque tali causa;of his own wrong (or injury) without any other cause.
De Jure;of the law.
Delegatus Non Potest Delegare;
 a delegate cannot delegate.
Delict;
A civil law term which imposes liability on a person who causes injury to another, or for injury caused by a person or thing under his custody.
De Minimis Non Curat Lex;
 a common law principle whereby judges will not sit in judgment of extremely minor transgressions of the law.
De Non Apparentibus Et De Non Existentibus Eadem Est Ratio;
 What is not juridically presented cannot be judicially decided.
De Non Sane Memorie; of insane memory.
De Novo; new.
Dicta or Dictum;saying.
Dies Dominicus Non Est Juridicus;
Sunday is not a day for judicial or legal proceedings.
Divorce a Mensa et Thoro;
An obselete form of divorce order which did not end the marriage but allowed the parties to reside separate; in effect, a legal or judicially-sanctioned separation of two married persons.
Dolus Eventualis;
Awareness of the likely outcome of an action.
Dominion Utile;the property rights of a tenant; exclusive right to use a thing
Dominium Directum;
qualified ownership of a land: not having possession or use of property but retaining ownership.
Domitae Naturae;
Animals which are of a nature easily tamed and may be readily domesticated.
Domus Sua Cuique Est Tutissimum Refugium; Every man's house is his refuge.
Donatio Mortis Causa;
A death-bed gift, made by a dying person, with the intent that the person receiving the gift shall keep the thing if death ensues.
Duces Tecum;bring with you.
Dum Casta;for so long as she remains chaste.
Dum Sola;
 for so long as she remains unmarried.
Dum Sola et Casta Vixerit; for so long as she remains single (unmarried) and chaste.
Dum Vidua; for so long as she remains a widow.
Ejusdem or Eiusdem Generis;
Of the same kind or nature.
Emptio or Emtio; for 'purchase' or referring to the contract in which something is bought.
En banc;French; As a full bench.
Error In Objecto;
A mistake by a perpetrator as to the identity of the victim; an error as to the object of his act.
Erunt animae duae in carne una; two souls in one flesh.
Et. al.;and others.
Et Impotentia Excusat Legem;
The law excuses someone from doing the impossible.
Ex Aequo Et Bono; in justice and fairness.
Exceptio Non Adimpleti Contractus;
exception of a non-performed contract.
Ex Debito Justitiae; as of right.
Executio Juris Non Habet Injuriam;
 The execution of the law does no injury.
Ex Juris; outside of the jurisdiction.
Ex officio;by virtue of office.
Exordium;introduction.
Ex Parte; outside the awareness of a party; for one party only.
Ex Patriate;
A person who has abandoned his or her country of origin and citizenship and has become a subject or citizen of another country.
Ex Post Facto;after the fact.
Expressio Unius Est Exclusio Alterius;
the expression of one thing is the exclusion of the other.
Ex Rel;on the relation of, or the information of.
Ex Turpi Causa Non Oritur Actio;
Of an illegal cause there can be no lawsuit.
Falsa Demonstratio Non Nacet;
A wrong description of an item in a legal document (such as a will) will not necessarily void the gift if it can be determined from other facts.
Fiat Justitia Ruat Caelum;do justice though the heavens fall.
Fieri Facias;
 that you cause to be made. Mostly used to refer to a writ of judgment enforcement obtained under the old common law of England.
Functus Officio; an officer or agency whose mandate has expired either because of the arrival of an expiry date or because an agency has accomplished the purpose for which it was created.
Furiosi Nulla Voluntas Est; mentally impaired persons cannot validly sign a commit their will.
Furtum; theft or a thing stolen..
Habeas Corpus;a court petition which orders that a person being detained be produced before a judge for a hearing to decide whether the detention is lawful.
Hereditas; the estate of a deceased person.
Hereditas Damnosa; an inheritance that is more of a burden than a benefit.
Hereditas Jacens;an unclaimed estate.
Hostis Humani Generis; the enemy of mankind.
Ignorantia Juris Non Excusat;ignorance of the law is no excuse.
In Absentia; in the absence of.
In Camera
A closed and private session of Court or some other deliberating body.
In Fictione Juris Semper Aequitas Existit;With legal fictions, equity always exists.
In haec verba;verbatim.
In Jure Non Remota Causa Sed Proxima Spectatur;
 In law the near cause is looked to, not the remote one.
In Limine; at the beginning or on the threshold.
In Loco Parentis;
A person who, though not the natural parent, has acted as a parent to a child and may thus be liable to legal obligations as if he/she were a natural parent.
In Pari Delicto;both parties are equally at fault.
In Personam;regarding a person; a right, action, judgment or entitlement that is attached to a specific person(s).
In Rem;regarding a thing; proprietary in nature; a right or judgment related to the use or ownership of an item of property.
Inter Alia;'among other things', 'for example' or 'including'.
Interest Reipublicae Ut Sit Finis Litium
Latin: in the interest of society as a whole, litigation must come to an end.
Inter Partes;n between, among parties.
Interpretatio Cessat in Claris;Interpretation stops when a text is clear.
In Terrorem; in terror, fright, threat or warning.
Inter Se;as between or amongst themselves.
Inter Vivos;from one living person to another living person.
In tota fine erga omnes et omnia;for all purposes, in regards to all and everything.
In Toto; in total.
Intuitu Personae; Because of the person.
Ipso facto;By the act itself.
Ipso jure;by operation of law.
J. D.
Abbreviation for juris doctor or doctor; of jurisprudence and the formal name given to the university law degree in the United States.
Judex;
A form of judge in early Roman law.
Jura Regalia
Rights which belong to the Crown or to the Government.
Jurat;
The written certification by a judicial officer that a deponent or affiant recognizes and endorses all parts of an affidavit he or she proposes to sign, and confirms that an oath has been administered in this regard to the affiant.
Jure;by right, under legal authority.
Jure Coronae;
A right of the Crown.
Juris Utriusque Doctor; a combined law degree, in both civil and canon law.
Jus; the law or a legal right.
Jus Ad Bellum; the legal authority to wage war.
Jus Cogens;peremptory law.
Jus Detractus;The right to deduct.
Jus Disponendi; The right to dispose of a thing.
Jus Dispositivum;
Law adopted by consent.
Jus Ex Injuria Non Oritur;a legal right or entitlement cannot arise from an unlawful act or omission.
Jus Publicum; legal rights enjoyed by all citizens; more recently used in reference to the right of the public to access shorelines for fishing, boating, swimming, water skiing and other related purposes.
Jus Spatiandi Et Manendi;the right to stray and remain.
Justiciar;
An obsolete judicial position of English nobility; that of chief justice of the realm.
Jus Vitae Necisque; Power of life and death.
Leges Posteriores Priores Contrarias Abrogant;Later laws abrogate prior contrary laws.
Lex Causae; law of the cause.
Lex Fori; for the law of the forum.
Lex Loci Contractus;
the law of the place where the contract is made.
Lex Loci Delecti;the place of the wrong.
Lex Non Cogit Ad Impossibilia;
 The law does not compel a man to do that which is impossible.
lex non scripta, diuturni moresconsensus utensium comprobati; Law derived from custom must be firmly entrenched in practice and adopted and followed by tradition.
Lex Scripta;
Written law; statutes.
Lex Situs;
A conflict of law rule that selects the In Jure Non Remota Causa Sed Proxima Spectatur;applicable law based on the venue or location of something.
Lis Pendens; a dispute or matter which is the subject of ongoing or pending litigation.
Locus; the place; venue.
Locus Regit Actum; The law of the place where the facts occurred.
Locus Standi; legal standing before a court.
Lubricum Linquae Non Facile Trahendum Est In Poena;the law tends to overlook rash or inconsiderate language spoken in the heat of the moment.
Mala Fides; bad faith.
Malum in se;something wrong in itself.
Malum prohibitum; wrong because prohibited.
Mandamus;
A writ which commands an individual, organization (eg. government), administrative tribunal or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
Mansuetae Naturae; animals which are now generally domestic, presumed gentle and readily tamed, such as dogs, cats, cows and horses.
Mea Culpa;I am guilty.
Melius Est Petere Fontes Quam Sectari Rivulos;it is better to seek the sources than to follow the tributaries.
Mens Rea;guilty mind; guilty knowledge or intention to commit a prohibited act.
Mobilia Sequuntur Personam, Immobilia Situa;movables follow the person, immovables their locality.
Modus Operandi;method of operation.
Mortis Omnia Solvit;Death puts an end to everything.

Monday, 21 November 2016

LEGAL EXENT OF DUTY OF CARE.


  The law of Negligence is one vast area of law, with a lot of facets and areas that are yet to be litigated upon. To establish that a person, the tortfeasor, has been negligent and so claim damages for injury, the plaintiff must prove that:
(a) The defendant owes him a duty of care
(b) The defendant has breached that duty and
(c)  Damages have occurred.
    For there to be a right of action, these three elements must be proved. But the question that arises is to what extent the court would impute a duty of care. That is, who really is your neighbour?. the answer seems to be, persons who are reasonably foreseeable to be affected by our acts or omissions that they should be put into contemplation when taking such actions. This leaves a wide definition of who a neighbour is. For instance, if A pushes B and B drops a bag of explosives which destroys a lamp post and hits C?, Is C reasonably foreseen to suffer damage as a result of As action?. That is, does A owe C a duty of care? given that A did not know or is not reasonably expected to know or foresee that a mere shove to B would result in damages to C miles away. See PALSGRAF V. LONG ISLAND RAILWAY CO.( Let us not forget that the law of negligence was birthed by the tort of
   

Friday, 18 November 2016

HANNAH VS. PEEL

The defendant was the owner of a house which he had himself never occupied while the house was requisitioned the plaintiff a soldier found in a bedroom used as sick-bay,a brooch the owner of which was unknown. There was no evidence that the defendant had any knowledge of the existence of the brooch before it was found by the plaintiff, but the police to whom the the defendant handed the brooch to ascertain it owner delivered it to the defendant who claimed it being on the premises to which he was the owner. Held that plaintiff as a finder was entitled to the possession of the brooch as against all other than it true owner.

Estoppels

The rationale behind estoppel is to prevent injustice owing to inconsistency or Fraud. There are two general types of estoppel: equitable and legal.
Equitable Estoppel
EQUITABLE ESTOPPEL, sometimes known as estoppel in pais, protects one party from being harmed by another party's voluntary conduct. Voluntary conduct may be an action, silence,
Acquiescence, or concealment of material facts. One example of equitable estoppel due to a party's acquiescence is found in Lambertini v. Lambertini , 655 So. 2d 142 (Fla. 3d Dist. Ct. App. 1995). In the late 1950s, Olga, who was married to another man, and Frank Lambertini met and began living together in Argentina. Olga and Frank hired an attorney in Buenos Aires, who purported to Divorce Olga from her first husband and marry her to Frank pursuant to Mexican law. The Lambertinis began what they thought was a married life together, and soon produced two children. In 1968, they moved to the United States and became Florida residents.
In 1992, Olga sought a divorce from Frank. She petitioned the Florida court for sole possession of the marital home and temporary Alimony, which the court granted. Frank sought a rehearing, arguing that the Mexican marriage was not a valid legal marriage and was therefore void. Though Frank won with this argument in the trial court, the appellate court reversed, holding that Frank was equitably estopped from arguing that the Mexican marriage was invalid. According to the appellate court, Frank and Olga had held themselves out as a married couple for more than 30 years, lived together, raised two children, and owned property jointly. Both Frank and Olga apparently believed all along that the Mexican marriage was legal, and it was only when Olga filed for divorce that Frank discovered and chose to rely on its invalidity. The appellate court granted Olga her divorce, the house, and the temporary alimony. Frank's acquiescence for three decades—holding himself out as being married to Olga—prevented him from denying the marriage's existence.
There are several specific types of equitable estoppel. Promissory estoppel is a contract law doctrine. It occurs when a party reasonably relies on the promise of another party, and because of the reliance is injured or damaged. For example, suppose a restaurant agrees to pay a bakery to make 50 pies. The bakery has only two employees. It takes them two days to make the pies, and they are unable to bake or sell anything else during that time. Then, the restaurant decides not to buy the pies, leaving the bakery with many more pies than it can sell and a loss of profit from the time spent baking them. A court will likely apply the
Promissory Estoppel doctrine and require the restaurant to fulfill its promise and pay for the pies.An estoppel certificate is a written declaration signed by a party who attests, for the benefit of another party, to the accuracy of certain facts described in the declaration. The estoppel certificate prevents the party who signs it from later challenging the validity of those facts. This type of document is perhaps most common in the context of mortgages, or home loans. If one bank seeks to purchase mortgages owned by another bank, the purchasing bank may request the borrowers, or homeowners, to sign an estoppel certificate establishing (1) that the mortgage is valid, (2) the amount of principal and interest due as of the date of the certificate, and (3) that no defenses exist that would affect the value of the mortgage. After signing this certificate, the borrower cannot dispute those facts.
Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the concept of STATUTES OF LIMITATIONS, except that statutes of limitations set specific time limits for legal actions, whereas under Laches , generally there is no prescribed time that courts consider "proper." A defendant seeking the protection of laches must demonstrate that the plaintiff's inaction,
Misrepresentation , or silence prejudiced the defendant or induced the defendant to change positions for the worse.
The court applied the doctrine of laches in
People v. Heirens, 648 N.E.2d 260 (Ill. 1st Dist. Ct. App. 1995). William Heirens pleaded guilty, in 1946, to three murders, for which he received three consecutive life terms in prison. Heirens sought court relief numerous times in the ensuing years. In 1989, 43 years after his conviction, Heirens filed his second postconviction petition seeking, among other things, relief from his prison sentence due to ineffective counsel and the denial of DUE PROCESS at the time of his arrest. The court found that all the witnesses and attorneys involved in Heirens's case had since died. Laches precluded Heirens from bringing his action because, according to the court, it would be "difficult to imagine a case where the facts are more remote and where the state might be more prejudiced by the passage of time."
Legal Estoppel
Legal estoppel consists of estoppel by deed and estoppel by record. Under the doctrine of estoppel by deed, a party to a property deed is precluded from asserting, as against another party to the deed, any right or title in derogation of the deed, or from denying the truth of any material fact asserted in the deed. For example, suppose a father conveys a plot of land to his son by deed. Unbeknownst to the son, the father actually does not own the plot of land at the time of the conveyance; the father acquires title to the property only after the conveyance. Technically, the son is not the legal owner of the property because his father did not own and did not have the right to transfer the real estate at the time of the conveyance. But under the doctrine of estoppel by deed, the court may "make good" the imperfection of the poorly timed conveyance by finding the son to be the rightful owner of the plot of land (Zayka v. Giambro , 32 Mass. App. Ct. 748, 594 N.E.2d 894 [1992]).
The doctrine of estoppel by record precludes a party from denying the issues adjudicated by a court of competent jurisdiction (Collateral Estoppel ) or any matter spelled out in a judicial record (judicial estoppel).
Collateral estoppel, sometimes known as estoppel by judgment, prevents the re-argument of a factual or legal issue that has already been determined by a valid judgment in a prior case involving the same parties. For example, suppose Ms. Jones, who owns a business next to Mr. Smith's, sues Mr. Smith for damage to her property caused by the digging of a hole. Mr. Smith defends by arguing that the hole is on his land. After considering all the evidence, the court determines that Mr. Smith owns the land. Later that year, after a late night at work, Mr. Smith cuts across the back lot, falls into the hole, and is injured. He then sues Ms. Jones for negligent maintenance of her property. In this situation, the court will apply collateral estoppel, preventing Mr. Smith from re-litigating an issue that was already decided between the same parties in the prior proceeding.
The related doctrine of judicial estoppel binds a party to his or her judicial declarations, such as allegations contained in a lawsuit complaint or testimony given under oath at a previous trial. Judicial estoppel protects courts from litigants' using opposing theories in the attempt to prevail twice. For instance, a tenant trying to avoid liability to a property owner may not, in the tenant's
Bankruptcy case, successfully represent to a court that the property agreement is a lease and then later, when the property owner sues for nonpayment of rent, declare that the agreement is a mortgage rather than a lease (Port Authority v. Harstad , 531 N.W.2d 496 [Minn. Ct. App. 1995]).
Estoppel by record is frequently confused with the related doctrine of Res Judicata (a matter adjudged), which bars re-litigation of the same Cause of Action between the same parties once there has been a judgment. For example, if Mr. Chen sues Ms. Lopez for breach of contract and the court returns a decision, Ms. Lopez cannot later sue Mr. Chen for breach of the same contract. Ms. Lopez has the right to appeal the first decision, but she cannot bring a new lawsuit that raises the same claim.
Estoppel
n. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right, or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act, or judgment against the person in an identical legal case. Estoppel includes being barred by false representation or concealment (equitable estoppel), failure to take legal action until the other party is prejudiced by the delay (estoppel by laches), and a court ruling against the party on the same matter in a different case (collateral estoppel). (See: collateral estoppel,
equitable estoppel, estop , laches.
Related concepts: agency by estoppel,
collateral estoppel, equitable estoppel, estoppel by concealment, estoppel by conduct, estoppel by deed, estoppel by judgment, estoppel by laches, estoppel by matter in pais, estoppel by matter of accord, estoppel by recital, estoppel by record, estoppel by silence, estoppel by suppression, estoppel by verdict, estoppel letter, judicial estoppel, partnership by estoppel, ratification , stare decisis ,
waiver
Foreign phrases: Nemo contra factum suum venire potest.No man can contradict his own act or deed. Un ne doit prise advantage de son tort demesne. One ought not to take advantage of his own wrong.
See also: bar , check , halt, impediment ,
obstacle , obstruction , prohibition
Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.
estoppel a legal bar or obstruction which prevents a party changing his position. So a party may not be able to state something in court where he has said something different before. A person who has granted title in a deed may not be able to deny the position as stated in the deed. Promissory estoppel precludes the maker of a promise refusing to fulfil it where the promissee seeking to take advantage of the promise has acted to his detriment in reliance of it.
ESTOPPEL, pleading. An estoppel is a preclusion, in law, which prevents a man from alleging or denying a fact, in consequence o his own previous act, allegation or denial of a contrary tenor. Steph. Pl. 239. Lord Coke says, "an estoppel is, when a man is concluded by his own act or acceptance, to say the truth." Co. Litt. 352, a. And Blackstone defines "an estoppel to be a special plea in bar, which happens where a man has done some act, or executed some deed, which estops or precludes him from averring any thing to the contrary. 3 Cora. 308. Estoppels are odious in law; 1 Serg. & R. 444; they are not admitted in equity against the truth. Id. 442. Nor can jurors be estopped from saying the truth, because they are sworn to do so, although they are estopped from finding against the admission of the parties in their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. & Ald. 662; Angel on Water Courses, 228-9. See Co. Litt. 352, a, b, 351, a. notes.
2. An estoppel may, arise either from matter of record; from the deed of the party; or from matter in Pays; that is, matter of fact.
3. Thus, any confession or admission made in pleading, in a court of record, whether it be express, or implied from pleading over without a traverse, will forever preclude the party from afterwards contesting the same fact in any subsequent suit with his adversary. Com. Dig. Estoppel, A 1. This is an estoppel by matter of record.
4. As an instance of an estoppel by deed, may be mentioned the case of a bond reciting a certain fact. The party executing that bond, will be precluded from afterwards denying in any action brought upon that instrument, the fact, so recited. 5 Barn. & Ald. 682.
5. An example of an estoppel by matter in pays occurs when one man has accepted rent of another. He will be estopped from afterwards. denying, in any action, with that person, that he was, at the time of such acceptance, his tenant. Com. Dig. Estoppel, A 3 Co. Litt. 352, a.
6. This doctrine of law gives rise to a kind of pleading that is neither by way of traverse, nor confession. and avoidance: viz. a pleading, that, waiving any question of fact, relies merely on the estoppel, and, after stating the previous act, allegation, or denial, of the opposite party, prays judgment, if he shall be received or admitted to aver contrary to what he before did or said. This pleading is called pleading by way of estoppel. Steph. 240a
7. Every estoppel ought to be reciprocal, that is, to bind both parties: and this is the reason that regularly a stranger shall neither take advantage or be bound by an estoppel. It should be directly affirmative, and not by inference nor against an estoppel.  Edited.

Agency


Agency law refers to the relationship between a person, or “agent,” that acts on behalf of another person, company, or government, usually called the “master” or “principal.” An agency is formed when a principal asks an individual to make a delivery or names someone as an agent through a contract leading to the responsibility of the principal for actions made by the agent while the agent’s actions are akin to those of the principal. This form of agency can be, and often is, enforced by written agreements made through a power of attorney.
Creation of Agency Relationship
An agency relationship is generated by the consent of both the agent and the principal. No person can unwittingly become an agent for another. A written contract is common, but not necessarily essential when it is clear that both parties intend to act in their respective principal and agent roles. The intent of the parties can be inferred from their words or implied by their actions.
Control
An intricate element of the principal-agent relationship is the concept of control. The agent agrees to act under the direction of the principal. The agent's authority may be actual or apparent. If the principal deliberately advises express and implied powers to the agent to act for him or her, the agent has actual authority. When the agent exercises actual authority, it is as if the principal is acting, and the principal is bound by the agent's acts and is legally responsible for them. If the principal either knowingly or mistakenly, authorizes the agent or others to assume that the agent holds authority to carry out specific actions when such authority does not exist, this is known as apparent authority. If other persons believe in good faith that such right exists, the principal remains liable for the agent's actions and is unable to rely on the defense that no actual authority was established. The scope of an agent's authority, regardless of whether it is apparent or actual, is considered in determining an agent's legal responsibility for his or her actions. An agent cannot be individually liable to a third party for a contract the agent has entered into as a representative of the principal if the agent acted within the scope of authority and contracted as agent for the principal. If it so happens that the agent exceeded his or her authority by entering into the contract, the agent is then financially responsible to the principal for failing to uphold the fiduciary duty.
Termination
Termination of the agency relationship must be in accordance with the agency contract that initially fashioned the principal-agent relationship. A principal can retract an agent's authority at any time, but may be liable for damages if the termination violates the contract. Other happenings such as the death, mental state, or bankruptcy of the principal also end the principal-agent relationship by operation of law.
For more information about agency law, you may review the materials found on this page or contact one of the attorneys listed on our Law Firms page.

Attitude of the supreme court on fair hearing

ACTION CONGRESS OF NIGERIA VS. LAMIDO AND 4 OTHERS
“ It has long been settled that the test whether a party in a case was given a fair hearing is the impression of a reasonable person who was present at the trial or who was aware of the proceedings .” BODE RHODES- VIVOUR, JSC

Rules of evidence


Circumstantial Evidence : This is not what you would call "smoking gun" evidence, but rather some piece of information that strongly infers a set of circumstances. For instance, video surveillance showing that the defendant was on the same city block where a crime was committed at around the same time would be circumstantial evidence.
Corroborating Evidence : Evidence that strengthens another piece of evidence, even if it is not directly related to the crime. For example, a witness claims John was at the scene of the crime at a particular time. If another witness has proof that John failed to show up to work at that same time, then it could be considered corroborating evidence.
Hearsay: This is not given under oath or offered as official evidence, but merely stated. For example, Fred says he heard that John was in a street gang; but without any evidence, Fred's statement is merely hearsay (and not admissible).
Exclusionary Rule : This rule of evidence applies to that which was obtained in violation of the defendant's constitutional rights. Seizing property without a warrant often is considered a violation and thereby subject to the exclusionary rule.

Wednesday, 16 November 2016

Fact established without proof

A.G ABIA VS A.G FEDERATION.
It is thus clear that from the pleadinds that the main fact in this case are not in dispute as they are all admitted. Clearly when both parties have agreed about a particular matter in their pleading such fact are established without proof.

Where facts are not in dispute

A.G ABIA VS A.G FEDERATION.
It is thus clear that from the pleadinds that the main fact in this case are not in dispute as they are all admitted. Clearly when both parties have agreed about a particular matter in their pleading such fact are established without proof.

Ordor vs. Nwosu

The plaintiff/respondent instituted this action in abia high court against his wife as the 2nd defendant and lessor as the 1st defendant, claiming a declaration of title to a leasehold property and an order to set aside the purported lease made between the  1st and 2nd defendant/appellant in respect of the said property. At a certain stage during the trial, the learned trial judge decided to call the surveyor-general who was not called by either side to testify. There was overwhelming evidence in support of the 2nd appellant's claim which was however disbelieved by the trial judge, who found for the respondent. On appeal to the supreme court held;
1. That in civil proceedings a judge lack the power to call a witness without the consent of the parties;
2. That in exceptional circumstances, that is where confusion has arisen from the evidence before the court, the judge may with acquiescence of the parties, call a witness not called by either side for the purpose of throwing light on the case;
3. That if and when the power is exercised the party adversely affected by such testimony is entitled to cross-examine the witness;... .

Tuesday, 15 November 2016

Quote

He is no lawyer who cannot take two side.
         _ Charles Lamb_

Constitutional law- case

Constitutional law
MOHAMMED ABACHA VS. FEDERAL REPUBLIC OF NIGERIA
CONSTITUTIONAL LAW-IMMUNITY, COURT- JURISDICTION, INTERPRETATION OF STATUTES

SUMMARY OF FACT:
The Respondent through the Attorney General of the Federation instituted an action at the High court of the Federal Capital Territory, Abuja against the Appellant and one other for charges relating to offence of conspiracy, receiving stolen property dishonestly and concealing stolen money, all pursuant to Sections 97(i), 317 and 319 of the Penal Code. At the trial Court, the Appellant and the other filed several applications before their plea could be taken. One of which bordered on the jurisdiction of the trial Court to entertain the action. The application was dismissed and the trial court affirmed that it had jurisdiction to entertain same.  The Appellant also brought a motion of notice praying for the suspension of consideration of the application and delivery of its ruling thereof by the trial Court and to refer to the Court of Appeal three questions of law which were objected to by the Respondent. The application was granted by the trial court referring the questions to the lower court. The court answered the questions referred to it in the negative against the Appellant. Being dissatisfied the Appellant has brought this appeal before this court.
HELD
Appeal dismissed
ISSUES FOR DETERMINATION
Whether the Court of Appeal was right when it held that the Forfeiture of Assets etc. (Certain Persons) Decree No. 53 of 1999 did not absolve the appellant Mohammed Abacha and all other persons mentioned in the schedule to the said law from further prosecution in the face of the clearer wordings of the said legislation and the previous interpretation given in identical circumstances to the said law by the State? (Grounds 1, 2 and 3).
Whether the court below can be said to be correct when it rejected the appellant’s submission that the totality of the effect of Decree No. 53 of 1999 amounted to Executive or State promise not to prosecute any of the persons listed in the schedule to the said decree (Appellant inclusive) and that Government was thereby stopped from prosecuting in respect of any issue arising from compliance with the law in issue? (Grounds 4 and 5).
Whether the court below was right when it held that the office of the late Head of State – General Sani Abacha (deceased) the nature of his government, the privileges and immunity enjoyed by him did not have any bearing on the charges filed by the state against the appellant in this matter to the extent that they are made up of facts and allegations that PRIMA FACIE do not constitute any of the offences alleged? (Grounds 6, 7, 8 and 9)
RATIOS
“DEAL WITH”- MEANING OF THE PHRASE “DEAL WITH”
“The phrase – “deal with” means “to take action on, to be about or concern with” PER ARIWOOLA, J.S.C.
”FORFEITURE”- MEANING OF THE WORD “FORFEITURE”
”The word “forfeiture” means – “the divestiture of property without compensation. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”. It follows that, “title in those assets and properties forfeited is instantaneously transferred to another, such as the government”. PER ARIWOOLA, J.S.C.
”INDEMNIFY”- MEANING OF THE WORD ‘INDEMNIFY’
”To indemnify is to reimburse another for a loss suffered because of a third party’s or one’s own act or default. Or to promise to reimburse another for such a loss.” PER ARIWOOLA, J.S.C
AGGRIEVED PERSON-WHO IS AN AGGRIEVED PERSON
”To be aggrieved, a person must have legal rights that are adversely affected, having been harmed by an infringement of legal rights. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something ” PER ARIWOOLA, J.S.C
IMMUNITY-WHETHER THE IMMUNITY GRANTED THE PRESIDENT, VICE PRESIDENT, GOVERNOR AND DEPUTY GOVERNOR BY SECTION 308 OF THE 1999 CONSTITUTION IS FOR LIFE
”It is true that the Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure in office. See; Section 308 of the 1999 Constitution. Indeed, the provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. The immunity does not extend beyond the tenure in office, after which the official shall be liable to face trial. ” PER ARIWOOLA, J.S.C
IMMUNITY-THE PURPOSE OF IMMUNITY AS GUARANTEED BY SECTION 308 OF THE 1999 CONSTITUTION
”The purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment. The immunity, however, does not extend or cover the period immediately after leaving office neither does it extend to include his family members during and after the period of his incumbency.” PER ONNOGHEN, J.S.C
JURISDICTION- WHAT JURISDICTION ENTAILS
”Jurisdiction in contrast to judicial power is the authority or legal weapon which a Court must possess to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. ” PER ONNOGHEN, J.S.C
JURISDICTION- THE NATURE OF JURISDICTION
”Jurisdiction may be limited as to the kind and nature of actions which a particular court may entertain or as to the area over which its judicial powers extend, or both.  PER KEKERE-EKUN, J.S.C
RULE OF INTERPRETATION OF STATUTE-DUTY OF COURT TO INTERPRET THE PROVISIONS OF STATUTE CLEARLY BY GIVING THE PLAIN WORDINGS THEIR ORDINARY INTERPRETATION
”In the interpretation of Statutes, the cardinal rule is that where the provisions of a Statute is clear and unambiguous, the duty of the court is to simply interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a court of law to bend backwards to sympathise with a party in a case in the interpretation of a statute merely for the reason, that the language of the law seems harsh or is likely to cause, hardship. PER ARIWOOLA, J.S.C.

Quote

It isn't against the law to be an idiot
             _Cassandra Clare_

Legal quote

Hypocrite; the man who murdered his parents, and then pleaded for mercy on the ground that he was an orphan
_Abraham Lincoln_


Legal quotes

A judge is a law student who grades his own papers
         -Henry Luis Mencken

Fabian Nwaturuocha vs. The State


ALIBI: How same is established and when the plea will be discountenanced by the court.
Identification Parade : When same is not essential to grant conviction.
Concurrent findings of lower courts : when the Supreme Court will not tamper with same.
“ Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same .He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal ” Per Akinbiyi JSC.
“ Proof beyond reasonable doubt should not be stretched beyond reasonable limit. Otherwise it will cleave ” Per J.A. Fabiyi JSC.

Maxims of equity

             Maxims of Equity
1. EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY
Meaning
Where there is a right there is a remedy. This idea is expressed in the Latin Maxim ubi jus ibi remedium . It means that no wrong should go unredressed if it is capable of being remedied by courts. This maxim indicates the width of the scope and the basis of on which the structure of equity rests. This maxim imports that where the common law confers a right, it gives also a remedy or right of action for interference with or infringement of that right.
Application and cases
In Ashby v. White, wherein a qualified voter was not allowed to vote and who therefore sued the returning officer, it was held that if the law gives a man a right, he must have a means to maintain it, and a remedy, if he is injured in the enjoyment of it.
In cases where some document was with the defendant and it was necessary for the plaintiff to obtain its discovery or production, a recourse to the Chancery Courts had to be made for the Common Law becoming ‘wrongs without remedies’.
Limitation
a) If there is a breach of a moral right only.
b) If the right and remedy both were in within the jurisdiction of the Common Law Courts.
c) Where due to his own negligence a party either destroyed or allowed to be destroyed, the evidence in his own favour or waived his right to an equitable remedy.
Recognition
i) The Trust Act
ii) Section 9 of CPC- entitles a civil court to entertain all kinds of suits unless they are prohibited.
iii) The Specific Relief Act- provides for equitable remedies like specific performance of contracts, injunction, declaratory suits.
2. EQUITY FOLLOWS THE LAW
Meaning
The maxim indicates the discipline which the Chancery Courts observed while administering justice according to conscience. As has been observed by Jekyll. M.R: ‘The discretion of the court is governed by the rules of law and equity, which are not to oppose, but each, in turn, to be subservient to the other.” Maitland said, “Thus equity came not to destroy the law but to fulfill it, to supplement it, to explain it.” The goal of equity and law is the same, but due to their nature and due to historic accident they chose different paths. Equity respected every word of law and every right at law but where the law was defective, in those instances, these Common Law rights were controlled by recognition of equitable Rights. Snell therefore explained this maxim in slightly different way: “Equity follows the law, but not slavishly, nor always.”
Application and cases
At common law, where a person died intestate who owned an estate in fee-simple, leaving sons and daughters, the eldest son was entitled to the whole of the land to the exclusion of his younger brothers and sisters. This was unfair, yet no relief was granted by Equity Courts. But in this case it was held that if the son had induced his father not to make a will by agreeing to divide the estate with his brothers and sisters, equity would have interfered and compelled him to carry out hi promise, because it would have been against conscience to allow the son to keep the benefit of a legal estate which he obtained by reason of his promise. This decision was held in Stickland v. Aldridge.
Equity follows the law and even if by analogy law can be followed, it should be followed.
Limitation
i) Where a rule of law did not specifically and clearly apply
ii) Where even by analogy the rule of law did not apply
Recognition
Bangladesh has not recognized the well-known distinction between legal and equitable interests. Equity rules in
Bangladesh, therefore, cannot override the specific provisions of law. As for example, every suit in Bangladesh has to be brought within the limitation period and no judge can create an exception to this or can prolong the time-limit or stop the rule from taking effect on principles of equity. Such a decision was held in Indian Appa Narsappa Magdum case.
3. HE WHO SEEKS EQUITY MUST DO EQUITY
Meaning
The maxim means that to obtain an equitable relief the plaintiff must himself be prepared to do ‘equity’, that is, a plaintiff must recognize and submit to the right of his adversary. Scriptures of Islam also inform us to be conscientious:
“Woe to those who stint the measure:
Who when they take by measure from others, exact the full;
But when they mete to them or weigh to them, minish…”
Application and cases
This maxim has application in the following doctrines-
i) Illegal loans
ii) Doctrine of Election
iii) Consolidation of mortgages
iv) Notice to redeem mortgage
v) Wife’s equity to settlement
vi) Equitable estoppel
vii) Restitution of benefits on cancellation of transaction
viii) Set-off
i) Illegal loans: In Lodge v. National Union Investment Co. Ltd., the facts were as follows. One B borrowed money from M by mortgaging certain securities to him. M was a unregistered money-lender. Under the Money-lenders’ Act, 1900, the contract was illegal and therefore void. B sued M for return of the securities. The court refused to make an order except upon the terms that B should repay the money which had been advanced to him.
ii) Doctrine of election: Where a donor A gives his own property to B and in the same instrument purports to give B’s property to C, B will be put to an election, either accept the benefit granted to him by the donor and give away his own property to C or retain his own property and refuse to accept the property of A on condition. But B can not retain his property and at the same time take the property of A.
iii) Consolidation of mortgages: Where a person has become entitled to two mortgages from the same mortgagor, he may consolidate these mortgages and refuse to permit the mortgagee to exercise his equitable right to redeem one mortgage unless the other is redeemed. The right of consolidation now exists in England but after the enactment of the Law of Property Act, 1925, it can exist only by express reservation in one of the mortgage deeds.
iv) Notice to redeem mortgage: Notice to a mortgagor to redeem one’s mortgage is an equitable right of the mortgagor.
v) Wife’s equity to a settlement: There was a time when woman’s property was merged with that of her husband. She had no property of her own. Equity court imposed on the husband that he must make a reasonable provision for his wife and her children. But, now, Under the Law Reform (Married Women and Tortfeasors) Act, 1935, married women has full right on her property and it is not consolidated with her husband’s property.
vi) Equitable estoppel: A promissory estoppel arises where a party has expressly or impliedly, by conduct or by negligence, made a statement of fact, or so conducted himself, that another would reasonably understand that he made a promise thereon, then the party who made such promise has to carry out his promise.
vii) Restitution of benefits on cancellation of transaction: It is proper justice to return the benefits of a contract which was voidable, and, equity enforced this principles in cases where it granted relief of rescission of a contract. A party can not be allowed to take advantage of his own wrong.
viii) Set-off: Where there have been mutual credits, mutual debts or other natural dealings between the debtor and any creditor, the sum due from one party is to be set-off against any sum due from the other party, and only the balance of the account is to be claimed or paid on either side respectively.
Limitation
i) The demand for an equitable relief must arise from a suit that is pending.
ii) This maxim is applicable to a party who seeks an equitable relief.
Recognition
i) Under sec 19-A of the Contract Act, 1872 if a contract becomes voidable and the party who entered into the contract voids the contract, he has return the benefit of the contract.
ii) sec 35 of the Transfer of Property Act embodies the principle of election.
iii) Sec 51 and 54 of the Transfer of Property Act.
iv) In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized.
4. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS
Meaning
Equity demands fairness not only from the defendant but also from the plaintiff. It is therefore said that “he that hath committed an inequity, shall not have equity.” While applying this maxim the court believed that the behavior of the plaintiff was not against conscience before he came to the court.
Application and cases
In Highwaymen case , two robbers were partners in their own way. Due to a disagreement in shares one of them filed a bill against another for accounts of the profits of robbery. Courts of equity do grant relief in case of partnership but here was a case where the cause of action arose from an illegal occupation. So, the court refused to help them.
The working of this maxim could be seen while giving the relief of specific performance, injunction, rescission or cancellation.
Limitation
General or total conduct of the plaintiff is not to be considered. It will be seen whether he was of clean hands in the same suit he brought or not. Brandies J. in Loughran v. Loughran said that “Equity does not demand that its suitors shall have led blameless lives.”
Exception
i) If the transaction is a against public policy
ii) if the party repents for his conduct before his unjust plans are carried out.
Recognition
i) Section 23 of the Indian Trust Act- An infant can not setup a defence of the invalidity of the receipt given by him.
ii) Section 17, 18 and 20 of the Specific Relief Act, 1877 - Plaintiff’s unfair conduct will disentitle him to an equitable relief of specific performance of the contract.