Civil procedure is the process that determines how a civil case commences, how it is conducted and concluded in courts.

A civil case refers to liabilities or wrongs which are non-criminal.

Their resolution cannot lead to imprisonment or imposition of fine, though damages may be awarded in favour of a victorious party.
Other reliefs in a civil case include specific performance, injunctions and rescissions.

Examples of civil cases are breach of contract, defamation, land dispute, negligence, indebtedness, landlord/tenant dispute, among others.

Rules and laws governing civil procedure can be found in –

Rules of courts (eg High Court (Civil Procedure) Rules, and Magistrates’ Courts (Civil Procedure) Rules)

• High Court/ Magistrates’ Courts Laws
• The Constitution
• The Evidence Act
• Matrimonial Causes Rules

Writs – this is one of the methods by which civil cases can be commenced/initiated especially in High Court. It is technically known as Writs of Summons.

Writs of Summons is used where facts of a case are in contention.

For example, where in a case of negligence involving two motorists in which one hits the other’s car with his and none is admitting fault.
Facts are most likely to be in dispute because each of them will put up a narrative that stands in sharp contrast to the other’s.

Video version of this presentation is available at
https://www.youtube.com/watch?v=vAAdQDRZlwc&t=404s

It is a system of law that defines what acts or omissions constitute crimes and prescribes punishment for infraction. The primary objective of every system of criminal law is to specify what an offence is and what punishment is to be imposed.

Black’s Law Dictionary defines crime as “An act that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding.” (Bryan A. Garner, 9th edition, Black’s Law Dictionary, (Thomson Reuters, 2009) 427)

“Offence”, on the other hand, is defined in the same dictionary thus, “A violation of the law; a crime, often a minor one.” And it goes further to state, “The terms ‘crime’, ‘offence’, and ‘criminal offence’ are all said to be synonymous and ordinarily used interchangeably.” (Black’s Law Dictionary, 1186)

In other words, crime can be defined as “an act or omission which renders the person doing the act or making the omission liable to punishment” under a written law. S. 2 CC.

The 1999 Constitution of the Federal Republic of Nigeria in section 36 (12) provides - Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

In Nigeria, no person can be charged with any offence unless same is defined in a written law with definite punishment prescribed and such offence must not have been brought into being retrospectively.

Examples:

Section 358 CC -
Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years with or without whipping.

Section 327 CC –
Any person who attempts to kill himself is guilty of a misdemeanor, and is liable to imprisonment for one year.
In Aoko V. Fagbemi (1961) 1 All NLR 400, it was decided that adultery was not an offence known to law in the Southern part of Nigeria and therefore, the accused was discharged.

In essence, an act or omission does not constitute an offence unless it is stated as such in a written law and a definite penalty is prescribed.


INDICES CRIMINAL LAW CIVIL LAW
Parties State Individuals
Consequence Punishment Liability
Standard of Proof Beyond reasonable doubt Balance of probabilities
Terminologies Guilty, sentence, conviction,
arrest, detention, bail, arraignment,
prosecution Liable, win, lose
Mode of Commencement Charge,
complaint, information Writs of Summons, Petition



NOTE: Video version of this presentation is available on my YouTube channel via this link -
https://www.youtube.com/watch?v=thwpcNJfi3Y&t=15s


https://www.youtube.com/watch?v=vvUfv-nnyQ0&t=730s

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Oh, I just saw this after many years.

Yes, somebody who is married under the customary (traditional marriage) can do another marriage with another person under customary law which means that customary law allows polygamy but this is not possible if the first marriage was celebrated under the statute.

For anybody interested in going into business in Nigeria, there are different ways to go about it. You may opt for any of the following means to carry on your business:
i. Sole proprietorship
ii. Partnership
iii. Company
iv. Joint venture.

i. Sole proprietorship – This is the quickest and fastest means by which a business can be carried on. Anybody who wants to use this medium can conceive the idea today and start his business tomorrow because starting this kind of business does not require any form of registration. The amount of capital required to start off your business depends on the nature or type of product involved.

However, this does not mean that the business cannot be registered at all, if you want. The sole proprietor may decide to do what is called business name registration. Even if the sole proprietor wants to do business name registration, this does not imply that he cannot do so while the business is already going on.

For a business name, you may have names like Kemoct Concept, Bolly Ventures, Soli Enterprises, Ade & Sons, etc. A business name does not really have any special status in law. This explains why a business name cannot be used to sue nor can it be sued. In court papers, it is described this way, “Mr. Jay Ollo (trading under the name and style of Kemoct Concept) v. Inter Bank Ltd.” So what this means is that, even though Mr. Jay Ollo registered his business as Kemoct Concept , there is no difference between him and his business unlike “Inter Bank Ltd.” The same fate applies to a partnership with a registered business name. Nevertheless, it is advisable for people operating one-man business (sole proprietorship) to have a business name so that they may be able to open a bank account in the name of that business or use the business name in securing some government contracts or contracts from corporate organisations.

ii. Partnership – To carry on a business through the medium of partnership, there must be at least two people but they cannot exceed twenty except the partnership is formed by a group of lawyers, accountants or the partnership is for co-operative business.
Just like sole proprietorship, a partnership business may be and may not be registered but it is much more advisable that it is registered because the business involves more than one person.

In addition to a business name registration that should be done for a partnership business, it is equally advisable that a partnership agreement is drawn up by the partners because this will help greatly in case a conflict arises among the partners.

Partnership business is regulated by the Partnership Law or Act and where a partnership agreement does not exist, it is the provisions of this Law (or Act as the case may be) that will determine the rights and duties of the partners which may not be favourable to them. For instance, this law states that profits must be shared equally, irrespective of individual capital contribution of partners. For a partner whose contribution is not much, the Law is favourable but for partners who have contributed more capital, the law will be unfair.

However, this can be avoided where a partnership agreement (otherwise known as Articles or Deed of Partnership) is made which will state in clear terms how profits are to be shared (i.e. the ratio), signatories to bank accounts, salaries of staff, duration of the partnership, nature of business, names of partners, expulsion of partners, effect of death of a partner on the lifespan of the partnership, sharing of the assets of the partnership on dissolution and so on.

It should be noted that the fact that a partnership is registered and has an agreement does not confer any special status on the business at law. For example, in case of a business misfortune, all the partners are equally and jointly liable for the losses of the business. In fact, their liability is unlimited. In Lagos, however, partners may decide to register their partnership business under a law which gives partners limited liability like in the case of a company.

iii. Company – Companies and Allied Matters Act, 2004 (shortened as CAMA) is the law that regulates formation, registration, management and dissolution of companies in Nigeria. Now, unlike the two businesses mentioned above, a company cannot operate unless it is registered. A company must have a minimum of 2 members and each of them must not be less than 18 years. The maximum number of members that a company can have depends on the type of company. A company may be a company limited by shares, a company limited by guarantee or an unlimited company. Any of these companies may take the form of a private or public company. A private company must not have more than 50 members, while a public company does not have any limit as to the number of its members.
One unique advantage of doing business through the medium of a company is that, in case of any financial crisis, a member cannot lose more than the amount already contributed or allotted. In other words, the loss of a member is limited to the shares taken up by him, unlike sole proprietorship and partnership where liability may extend to personal belongings.
However, the procedure for setting up a company is more cumbersome and more expensive. For more details on companies, see Part XVI where some terms relating to companies have been explained in clear language.

iv. Joint venture – This medium is used where a company enters into a business partnership with another company for the purpose of carrying out a particular project or any other business transactions.

9.7.1 How to register a business name

Are you a sole proprietor or a partner in a partnership firm? If you are any of the two, then a business name is meant for you and the under-listed requirements are what you need to register your business name.

Step 1: Decide on a name that you want your business to bear. Better still, you may submit two names so that if one is not accepted for registration, the other may sail through.

Step 2: Consult a lawyer or you proceed to the Corporate Affairs Commission’s office yourself. A branch office of the Commission is usually located in states’ capitals. At the Commission, a form, known as Availability/Reservation of Name Form CAC 1, will be given to you at a cost. Then, you fill two names of your choice.

At this stage, a search will be conducted in order to know if the name you wish to use is not already being used by another person. If it is available for use, then you proceed to step 3 but if it is not available, you have to obtain another form.

Step 3: You will have to obtain an application form known as Form CAC/BN/A1 which has to be duly filled and completed by you. You will be required to staple your passport photograph to the relevant column of the form and pay the prescribed registration fee.

Step 4: Some other documents may be required in certain situations e.g. a qualifying certificate where the nature of business calls for some expertise.

Step 5: Once you are able to meet all the requirements from step 3 to 4 above without any query, a business name certificate will be issued and you are therefore qualified to use it. However, you may have to wait for a couple of weeks before the certificate is available for collection.

9.7.2 How to incorporate a company

A company is different from a business name. A company is a legal entity while a business name is not. A non-lawyer may handle the registration of a business name without involving a lawyer; it is not allowed for a non-lawyer (even in the case of a lawyer- he has to be accredited) to undertake incorporation of his prospective company without the services of a lawyer. It costs more to incorporate a company than registering a business name.

Notwithstanding what has been said, the requirements for registering a company are not beyond what a non-lawyer can understand. The requirements are explained below.

Step 1: At this stage, there are a number of preliminary issues you have to first settle. These preliminary issues are: 1. What name do you wish to give to your proposed company? Remember that your proposed name must end with either “Ltd” or “Plc.” So, you can have a name like “Advanced Concept Ltd.” A company cannot, however, bear a name like “Thirty09 Ltd.” A company’s name must be wholly in words not figures or a mixture of words and figures. 2. Is it a private or public company that you want to form? 3. What is your office address? 4. How much is your authorised share capital? 5. What kind of business activities do you want to venture into? Having decided on all these, you can now proceed to the Corporate Affairs Commission’s office.

Step 2: Proceed to the Commission’s office in your area and obtain FORM CAC1 (Reservation and availability of Name) which will be filled and submitted at the office. After some days, you will be informed on whether the name suggested by you is available for use or not.

Step 3: If the name you want the company to bear is not available for use which means that a company in existence is already using the same name or a name very similar to it, you will have to obtain another Form CAC1. But if the name is available for use, then you have to prepare and submit the following documents to the Commission: 1, notice of the address of the registered office of the company (otherwise known as Form CAC 2.2);
2, two copies of the Memorandum and Articles of Association (usually bound together and stamped). Stamp duty fee has to be paid;
3, a statement of the list and particulars of First Directors of the company together with their consent to be Directors (also known as Form CAC 2.3 and CAC 7);
4, a statement of the authorised share capital signed by at least one director (otherwise known as CAC 2.4);
5, a statutory declaration which must be prepared by a legal practitioner stating that you have complied with all the requirements for registration (This is also known as Form C.0.1);
6, particulars of a person to be appointed as the company secretary;
7, means of identification of the directors, shareholders and the company secretary must be stated which may be driver’s license, national ID or international passport.

NOTE: Names and addresses of directors and the secretary must be supplied. You may also have to supply their phone numbers as well.

Step 4: After you must have prepared all the above documents and submitted them to the Commission, you have some payments to make and the amount of money in this respect is not fixed. There are factors which would determine how much you incur. Some of these factors include what your authorised share capital is which may be a minimum of N 10,000 for a private company or N500, 000.00 for a public company. Both do not have a maximum in terms of share capital. However, in practice, the share capital of a private company is not usually less than N500, 000.00. How much you incur to register your company will be determined by the individual professional e.g. a lawyer, a chartered accountant or chartered secretary who is doing the registration for you and other official fees that may have to be paid.

Step 5: Once you comply with steps 1 to 4, then wait and expect a certificate of incorporation to be issued to you, provided that incorporation fee has been paid.

After a certificate is issued, it is expected of you to display your certificate in your registered office address and also that you quote your company registration number on your company’s letter-head papers.

Extracted from pages 170-176 of Kehinde Adegbite's LEARNING THE LAW IN NIGERIA, a book written in everyday language in order to bring the Nigerian law to the doorstep of non-lawyers. For more information on the book and additional hints on everyday legal issues faced by non-lawyers, visit the author's blog www.kehindeadegbite.com.ng

My YouTube channel - https://www.youtube.com/channel/UCm4Co7xMYyTQ__eyCn1Vmsg

The answer is no. Let us assume a man marries his first wife under the Yoruba Customary law and in spite of this marriage, he goes ahead to marry a second wife under the English law; this latter marriage is null and void. In real life, women who happen to be married as second wife in this kind of situation usually think their marriage under the English law is superior and legal, while the first Customary law marriage is not. In fact, this is against the law. Once a man is married under the Customary law, he cannot marry another woman under the English law.

In a nutshell, each form of marriage enjoys the same measure of recognition. One is not superior or inferior to the other. However, if a man marries his first wife under the Customary law and later marries another woman under the English law, the second marriage is not only inferior to the first one but also illegal and criminal. Anyone who does that risks 5 years’ imprisonment . It is also an offence for a person who is first married under the English law to enter into another marriage under the Customary law. The punishment is equally 5 years’ imprisonment. Each type of marriage has its merits and demerits. For instance, a marriage under the English law is monogamous which means a man cannot marry more than one wife. A marriage either under Customary or Islamic law, on the other hand, allows a man to marry more than one wife. In fact, under Customary law, a man can marry as many wives as he wants.

“Many people tend to think that only marriages under the
Act are legal. This is grossly erroneous. The three types of
marriage are legal.”

Folake Solanke

Above all, a marriage under the English law, otherwise known as the monogamous marriage, is more appealing to women who would not want their husband to marry another wife. Again, a monogamous marriage protects the interest of a woman whose husband dies without a will. She or her children can apply for Letters of Administration. This may not be the case with a woman married according to the Customary law. This is because under some customs, a woman is regarded as an object to be inherited rather than being a subject of inheritance, while in some others only sons have right to inherit their late fathers’ property; daughters are not so entitled. Specifically, in Igbo land, daughters are forbidden from inheriting their fathers’ property because it is believed that, upon marriage, a woman would transfer such property to her husband who is a stranger to her paternal family. However, Nigerian courts have frowned at such customs and declared them to be discriminatory especially in recent time .

Extracted from pages 92-93 of Kehinde Adegbite's LEARNING THE LAW IN NIGERIA, a book written in everyday language in order to bring the Nigerian law to the doorstep of non-lawyers. For more information on the book and additional hints on everyday legal issues faced by non-lawyers, visit the author's blog www.kehindeadegbite.com.ng

You can visit my YouTube at https://www.youtube.com/channel/UCm4Co7xMYyTQ__eyCn1Vmsg

A patient has rights which are expected to be respected by physicians and other healthcare providers that attend to him. Some of these rights are the following:
1. He has to be well-informed about his illness, the nature of treatments, likely outcomes and side-effects, if any.
2. His consent should be duly obtained before a surgical operation is carried out or any other special treatment is to be given to him. If he does not give his consent to a treatment, his decision must be respected. He may even reject blood transfusion . However, his care-giver has a duty to ensure that the patient is making an informed decision by explaining the likely consequence of his rejection of a prescribed treatment on his health.
3. His medical records and other sensitive personal information should be kept confidential, though they may be disclosed to a third party with his consent.
4. He has to be given quality services, subject to available medical facilities.
5. He has to be treated with care, professionalism and undivided attention. This means that a physician or any care-giver must not be negligent in attending to him. Treatment should be based on accurate diagnosis.
6. If his case requires specialist’s attention, he should be referred to the appropriate avenue to obtain such special treatment without any delay. A general medical practitioner may incur litigation if his handling of a patient who needs a specialist’s attention worsens the patient’s condition, even if he later refers.
7. He has to be discharged on his own request, unless he is in default of hospital bills.
8. He may take a legal action against a medical personnel or hospital management where negligence is committed against him.

Extracted from LEARNING THE LAW IN NIGERIA, a book written by Kehinde Adegbite, a Legal Practitioner, primarily designed to educate non-lawyers about basic issues of the Nigerian law which they need to know in order to get themselves empowered. For more legal hints, visit www.kehindeadegbite.com.ng

You can visit my YouTube channel at https://www.youtube.com/channel/UCm4Co7xMYyTQ__eyCn1Vmsg

The rate of corruption in Nigeria is alarming and globally notorious, especially official corruption. The executive is corrupt and so also is the legislature. In fact, the judiciary is not spared of this national malaise. Officials of each arm of government collect so much either as salaries or allowances and ordinary people are impoverished. Nevertheless, the jumbo pay has not been able to eradicate other illegitimate means by which they make more money. Nothing appears to be working in order to lessen the suffering of the masses. Economy is in the doldrums; yet law-makers live large. Even the newly inaugurated national legislators (otherwise known as the 8th Assembly) are eagerly expecting the payment of their wardrobe allowance which is in the realm of N17m for each “honourable” member and a little more for a senator. No wonder, some Nigerians are already agitating for the simplification of the seemingly cumbersome process of recalling these law-makers who do not appear to know that most of those who voted for them are living in abject poverty and as it seems clothing is no longer in the ordinary people’s list of basic necessities of life. All they want is FOOD. So, what is recall?

There are different ways by which elected representatives of the people may vacate their offices before the expiration of their terms of office. Impeachment, resignation, death, expulsion and recall are some of the major ways by which such vacation of elective offices (in some places it includes appointive ones) may take place. Recall is the only one which is vested in the electorate and which may be initiated by them. In Nigeria, recall does not apply to any other arm of government except the legislature. This means that only members of the legislature may be removed from office before the expiration of their tenure by the same people who elect them in the first place.

Under the 1999 Constitution of Nigeria, sections 69 and 110 provide for the manner by which recall may be effected in both federal and state legislative houses. For the purpose of clarity, it is important to reproduce verbatim this constitutional provision on recall. Section 69 states:
“A member of the Senate or of the House of representatives may be recalled as such a member if:

(a) there is presented to the Chairman of the Independent National Electoral Commission a petition in that behalf signed by more than one-half of the persons registered to vote in that member’s constituency alleging their loss of confidence in that member; and which signatures are duly verified by the Independent National Electoral Commission;
(b) the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote that in member’s constituency.”

For the sake of simplicity, the above provision is broken down into the following steps:
i. The electorate must come up with a petition alleging loss of confidence in a law-maker. It should be noted that what is “loss of confidence” is not defined in the Constitution and this means there is no need to accuse a law-maker of any wrong-doing or for a law-maker to be culpable of any misconduct before the electorate can say they have lost confidence in him;
ii. The petition must be signed by more than one-half of the registered voters in that member’s constituency. For example, if a member’s constituency has 1000 registered voters, not less than 501 registered voters must sign the petition;
iii. The petition must be submitted to the Chairman of the Independent National Electoral Commission;
iv. Upon submission, the Independent National Electoral Commission must do the following two things:
(a) It must verify the authenticity of the signatures;
(b) It must conduct a referendum within ninety days of the receipt of the petition in order to get it approved by a simple majority of the votes of registered persons in that constituency. For example, if only 500 out of 1000 registered voters turn out for the referendum, a simple majority of which may be anything from 251 votes upward will be enough to approve the petition.

Has Recall Ever Been Conclusively Used In Nigeria?

There is no information that it has ever been used successfully to remove a law-maker in Nigeria either at the federal or state level. This does not however mean that its retention in the Constitution is of no use. The mere fact that we have it in the Constitution promotes good governance and accountability because the law-makers know that there is a process which may be invoked to effect their removal, if they fail to satisfy their people. Although a process of recall was initiated against one Mrs. Hembadoon Amena representing Katsina-Ala West State Constituency in Benue State in 2013, it was later stalled in 2014. The civil unrest which resulted in the burning of some houses and destruction of property due to the move to recall this law-maker may not be unconnected to the truncation of the recall process.


Recall In Other Countries

Recall is recognized in such countries as Venezuela, Switzerland, Philippines, Canada and some others. However, in the US, there is no provision for recall in the country’s constitution. Senators and members of the House of Representatives in the American Congress cannot be recalled. Provisions for recall only exist under some states’ laws. Similarly, under the Indian Constitution, national and state law-makers cannot be recalled, though local government legislators may be recalled.

In California, for example, recall first gained recognition in the state’s laws in 1911 but even after more than three hundred attempts to effect recall of the successive governors, it was only successfully used in removing Governor Gray Davis in 2002 and the recall election that followed in 2003 brought in Arnold Schwarzenegger. Similarly, it was used to remove a governor in North Dakota in 1921.
It has also been used to remove some senators in the Californian senate. Unlike Nigeria, recall applies to the legislature, the judiciary as well as the executive in the state of California. Also in Venezuela, recall was introduced for the first time in 1999 and an attempt to use it to remove their late President, Hugo Chavez in 2004 was unsuccessful.

My Take On Recall

I am not in support of calls in some quarters for the amendment of sections 69 and 110 of the Nigerian Constitution in order to make it less cumbersome to remove our inactive and non-performing law-makers. I believe that those sections should be retained as we have them in the Constitution. For me, upon critical consideration, the process is not as cumbersome as it seems to appear when looked at casually. Even if individual voters find the process impracticable and unworkable, it is a question of time. With strong and vibrant civil society groups, the process may be successfully deployed to recall an errant law-maker. One obvious danger in simplifying the process is that it may also be used by mischief makers or defeated opponents to thwart the will of the people by invoking it to remove a performing, pro-people and anti-corruption law-maker. Leaving the section as it is will help to offer the law-makers some protection from unnecessary threats and distraction of recall. Law-makers need to be able to concentrate and perform their legislative duties without fear of being recalled through the whims and caprices of some powerful forces or power-brokers in their constituencies.

If any amendment is to be made at all, it must be to spell out in greater details how recall should be effected in practical terms. This is the case under the Californian law which requires a recall notice to be served on a law-maker who is to be recalled so that he may make a defence within a specified period of time. Disappointingly, the Nigerian constitutional provisions on recall lack such details and worse still, the Electoral Act is totally silent on the procedure to effect recall in practice. For example, nothing is said on when a recall election will hold or whether a recalled law-maker will have right to challenge his removal in court or not. As the law is presently in Nigeria on recall, it may be improperly employed to remove a law-maker, especially with the backing of a political godfather or any person who has what it takes.

Above all, it should be recognised that recall is a post-election measure and instead of dissipating energy and resources on such remedy, it will be in everybody’s interest if civil society groups and other non-governmental organisations intensify efforts to raise the political awareness and education of the electorate to the point that every voter understands the importance of electing quality and honest representatives. By electing persons of impeccable character and requisite intellect into our legislative houses, a lot of time, resources and energy, which would have otherwise been expended on recall, would therefore be saved for some other productive activities.

Written by Kehinde Adegbite

Kehinde Adegbite is an experienced lawyer and a writer. He is the author of HOW TO WRITE YOUR WILL WITH EASE and LEARNING THE LAW IN NIGERIA. He writes primarily for non-lawyers and may be reached via barrykehinde@yahoo.co.uk


For more legal hints, visit my blog - www.kehindeadegbite.com.ng

You can visit my YouTube channel at https://www.youtube.com/channel/UCm4Co7xMYyTQ__eyCn1Vmsg