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PREVIEW OF CIVIL LITIGATION. Commencing Civil Actions in the Lagos Magistrate Court : S. 28 (1) and (2) MCL

Lagos states the magistrate may hear actions in tort, contract, and recovery of

premises, appointment of guardians, sanitation injunctions, and Lotteries and

Environmental laws. The defendant or one of the defendants must reside in Lagos

and/or the cause of action must have arisen wholly or partly in Lagos. The Lagos State

Magistrate has no divisions and the financial ceiling is ten million naira. In a

liquidated money suit the plaintiff may for reasons of convenience abandon money

over the ten million mark so the court can have jurisdiction (this is called

abandonment of excess).

Normally a civil action in the Magistrate Court is commenced by claim and particulars

of claim or by originating application. But someone claiming an uncontested

liquidated sum may use summary summons. Summary summons is inapplicable to

infants, moneylenders, mortgages, one impaired mentally or physically, a government

department, or a person outside the court’s jurisdiction.

Summary summons lasts three months from the date of service and is not renewable.

WEEK FIVE: COMMENCING CIVIL ACTIONS IN THE HIGH COURT

Place of Commencement : Matters are commenced where they arose, or where the

defendant resides or does his business (in land matters--where the land is situate).

Company actions are commenced in the jurisdiction of the head office. An action

started in the wrong venue will continue until a counsel objects and the Judge directs

that it should be taken elsewhere.

Mode of Commencement : Ord. 1 R.1 Abuja Rules says civil actions may begin by

Writ of Summons (default mode; used for contentious matters), Originating

Summons (for non contentious matters and for interpretation of documents and

statutes), Originating Motion (only by statute), and Petition (dissolution of marriage

and company, winding up, election petition).

Writ of summons is accompanied by a statement of claim, list of witnesses, witnesses’

statements on oath, and copies of every document to be relied on at trial—in Abuja,

also by a certificate of pre-action counselling and in Lagos by a pre-action protocol

form to show ADR has been explored Order 3 Rule 2 Lagos, Order 4 Rule 15

Abuja.

Originating summons and originating motion are backed by affidavit, exhibit, written

address, and pre—action protocol form Order 3 Rule 8 Lagos.

Endorsement of Writ : a civil writ is endorsed when it bears a summary of the

complaint and reliefs sought on its back. Endorsement may be general or special

(particularized).

Pending actions are entered in the Cause Book.

Frontloading : all relevant documents must be filed along with the originating process

or the registrar will reject the originating process in Lagos. In Abuja the writ will not

be issued (signed by the registrar) Order 3 Rule 2 (2) Lagos, Order 4 Rule 17

Abuja. Neglecting to frontload a document to be relied has no effect as long as the

document was sufficiently pleaded.

Frontloading does not automatically vest the court with jurisdiction. Filing fees must

be paid, the processes must be served on the defendant, and the registrar must supply a

suit number and enter the suit in the Cause Book UBA v Mode.

Service of Originating Processes : could be personal, hybrid, or substituted (using a

motion ex-parte).

Service of Process on a Company : is always personal to a principal officer of the

company (director, secretary) or by leaving the process at the company’s head office

Mark v Eke,Section 78 CAMA, Order 6 Rule 8 FHC Rules1. Service on a minor

staff is void and will cancel the court’s jurisdiction upon an objection from the

opposing counsel MTN Communications Ltd v Bolingo Towers.

1 Service by dropping originating process at the head office is still personal service.

Note: A document not the originating process or forming part of the originating

process can be left at the head office or sent there by post. Service of process on a

foreign company is by its local agent (if any), otherwise by service outside jurisdiction

(using motion ex parte), or by post.

Leave of court is needed to serve a writ outside jurisdiction (except in Lagos—but the

writ will still be endorsed) or service will be invalid. Irregular service can be set aside

but not the writ (serve the same writ again). Again the defendant may waive irregular

service expressly or impliedly Ezomo v Oyakhire.

A defendant unwilling to collect the process should have it dropped in front of

him.

Civil writs are served from 6AM—6PM excluding Sundays and public holidays,

unless in exceptional circumstances (and even then by an order of court). Proof of

service is by affidavit. Non-compliance with this rule of service will leave the writ

merely voidable. Lack of service will prompt the court to adjourn to effect service.

A writ is defective when its content mismatches the form set out by the rules of

court.

The defendant may apply to set the defective writ aside, enter conditional appearance,

or raise a preliminary objection; the plaintiff can bring a motion on notice to amend

the defective writ.

Appearance : a defendant served with a writ of summons must file his memorandum of

appearance within 8 days of service in Abuja. In Lagos he must respond within 42

days along with his statement of defence. If he is outside jurisdiction, he must appear

within 30 days (or 42 in Lagos). The defendant’s appearance should be conditional if

he objects to service of the writ—unconditional appearance presumes he has waived

irregularities.

If the defendant does not appear the plaintiff can apply for judgement in default of

appearance, which the defendant can ask to have set aside on grounds of fraud, non-

service, and lack of jurisdiction. He may in turn ask to appear out of time and avoid

default judgement.

Service outside Jurisdiction : all of Nigeria is one jurisdiction under the Sheriff and

Civil Processes Act, so service outside jurisdiction usually means service abroad and

is always with leave of court (via motion ex parte) except in Lagos. Upon grant of the

motion, the process is sealed by the court and sent by the Chief Registrar to the

Solicitor--General, who further transmits it to the appropriate authority in the foreign

country along with a translation if the language of that country is not English. A

certificate or affidavit of service by diplomatic channels is enough proof of service

S.97 SCPA.

Life Span of a Writ : A writ of summons in Lagos is valid for 6 months, and can be

renewed twice 3 months each, for a total of 12 months Order 6 Rule 6 Lagos.

Renewal (in Lagos) used to be before expiration of the writ but this may have changed

following the ruling in Kolawole v Alberto. In Abuja a writ can be renewed before or

after expiration for twelve months on and on Or 4 R. 16. The writ must be served

while it is valid (unexpired) otherwise it becomes void.

WEEK SIX: INTERLOCUTORY APPLICATIONS.

Meaning: applications during a suit owing to…..

PREVIEW OF CORPORATE LAWWEEK TEN: COMPANY OFFICERS--DIRECTORS AND SECRETARIES2.

Director : is anyone appointed by the company to manage its affairs Section 244

CAMA. A director need not be a shareholder (member) unless there is share

qualification in the articles3. Every company must have at least 2 directors (maximum

is determined by the articles)4. Section 244 (2) CAMA, BENARD LONGE V FIRST

BANK OF NIGERIA PLC.

Position of the Director : He is an agent of the shareholders and trustee of the company

Section 283 CAMA.

2 Form CAC 7—Directors. Form CAC 2.1—Company Secretaries.

3 Section 251 CAMA—if there is share qualification, the director must subscribe to the shares within 2 months.

4 If only one director handles business for more than 60 days the veil of incorporation will be lifted and the director will be personally liable for any mismanagement.

Types of Directors : The Managing Director oversees day to day management. He

must

have been a director before appointment by the BOD, and remains so after his

removal

also by the BOD. The board of directors may delegate its functions to him.

The Executive or Special Director handles daily running of the company and

formulates

and implements company policies. Like the M.D, he is an employee of the company

via

the articles and his contract of employment.

The Non-Executive Director is unpaid but may be remunerated for his expenses on

the company. The chairman of the board (who is also chairman of meetings) is usually

a non-executive director.

The Life Director is exempted from rotation of directors but can be removed by

ordinary resolution Section 255 CAMA.

The Alternate Director5 takes the place of an actual executive director subject to

resolution at the general meeting and recognition in the articles. He is not a proxy 6 but

is counted as one with the actual director and steps down with him.

The Representative or Nominee Director occurs because a company cannot be

director and chooses someone (no special qualifications needed) to represent it.

First Directors being the initial directors of the company appointed in writing by the

subscribers to the Memo and/ or by being named in the articles Section 247 CAMA.

Casual Director is appointed after a death, resignation, retirement or removal of

some other director by the board, and approved by members in a general meeting7.

Shadow Director is one not duly appointed or having any benefits, rights or

liabilities, but whom the other directors are likely to obey Section 245 CAMA.

5 Used often for aliens. Alternate directors are paid.

6 Proxies may not be members of the company.

7 Casual vacancy is the only reason a board of directors will appoint another director.

Any person having the capacity of a director, by whatever other name he is called,

will be considered a director. Acts of a director appointed defectively bind the

company. If a

person not appointed at all put himself forward as a director to some third party who

suffered loss, that person (not the company) will be liable.

Disqualification of Directors Section 2 57 CAMA : an infant, lunatic or person of

unsound mind, insolvent, person convicted of fraudulent management of a company

(S.254) and a company itself shall not hold the post of director for any reason.

Vacation of Director’s Office Section 2 5 8 CAMA : occurs through death, liquidation,

disqualification when share qualification is stated in the articles, resignation in

writing, retirement, removal, insanity, and bankruptcy.

Appointment of Subsequent Directors Section 248 (1) CAMA : happens in five ways--

By Ordinary Resolution at a general meeting: By Board of Directors in a casual

vacancy: By Personal Representatives of dead directors or shareholders applying to

the Federal High Court for a general meeting of the representatives to appoint new

directors: By Creditors when personal representatives neglect to hold the meeting: By

any outsider empowered in the memo or by the FHC to appoint directors.

Quorum of Board of Directors Meeting : means the number of directors needed to start

and continue the meeting. Unless otherwise stated in the articles, the quorum shall be

2

directors when directors are fewer than 6 and one-third of directors when more than

six

or one-third of the nearest number if the number of directors is not a multiple of three.

Each director is entitled to one vote towards resolving any question that may arise by

simple majority8. If the quorum is not met the director’s meeting will be invalidated

but the general meeting could act on the matter9.

Rotation/Retirement of Directors : Section 259 CAMA states all directors except life

directors shall retire at the first AGM if the articles are silent about retirement. In

8 The chairman shall have a second casting of votes if there is a tie.

9 If the number falls short during the meeting, the chairman will decide whether to adjourn the meeting or not.

subsequent AGMs a third of directors will retire by rotation (first in, first out;

directors elected on the same day shall retire as determined among themselves or by

lots). A public company director of 70 should retire unless his reappointment is

approved in a general meeting where he disclosed his age. A retiring director who

offers himself for reelection is considered reelected unless there is a resolution

expressly rejecting him and another director is elected in his place. Before a retiring

director is reelected, his attendance at board meetings in the past year shall be

reviewed (must be up to 75%)10.

Removal of Director : is done statutorily (according to CAMA) no matter what--even if

the company’s articles and the director’s contract of employment state how to remove

him. A director can be removed at anytime notwithstanding any contrary agreement in

the articles or elsewhere.

Section 262 CAMA says he shall be removed by Requisition or by Ordinary

Resolution at the company’s general meeting11. A director removed by any other

method will have his removal deemed legally invalid Olufosoye v Fakorede12.

Requisition: shareholders of 1/10th paid--up capital send special notices of 28 days to

the directors asking to remove one of them; directors must respond within 21 days.

If directors do not respond, a simple majority of requisitionists will hold a meeting for

removal within 3 months of sending the notice. If the requisite quorum is not present

within one hour of this meeting, the meeting will be dissolved (not adjourned) and the

expenses of the meeting deducted from the pay of the directors.

Removal by the Company: A special notice is sent 28 days prior to the company and

the director concerned, who shall defend himself in writing or orally at the AGM.

Members at the AGM may relent or may pass an ordinary resolution for the director’s

removal, notice of which must be given to the CAC within 14 days.

10 Notice of Director’s Meeting must be given to every director within Nigeria 14 days to the meeting. Non-issuance of director’s notice will invalidate the meeting and whatever decision was reached at it.

11 The director removed may be replaced by BOD appointing a casual director.

12 A director cannot be summarily dismissed.

Remedies for a Director Removed : Damages for wrongful termination of

employment, declaration of nullity, order of reinstatement, compensation for breach

of contract and loss of office, and company compensation for a director it removed

wrongly.

Duties of a Director : fiduciary duties and duty of skill and care.

Fiduciary Duties : act bona fide (in good faith) towards the company: exercise power

properly: avoid conflict of interest: do not to fetter votes or make secret profit13:

Duty not to delegate power in such a way that will amount to abdication of duty: Duty

not to exploit company assets and information Section 279 (1) CAMA.

Duty of Skill and Care (Common Law Position) : A director shall perform his duties

with

the exact level of skill expected of someone with his experience14. He is not bound to

focus all his prowress or acumen on the company Re Equitable Fire Insurance

Company.

Duty of Skill and Care (CAMA) : prevails over the common law duty of skill and care.

Section 282 CAMA says a director shall exercise his powers and discharge his duties

in good faith and in the best interest of the company. He shall exercise the degree of

care, diligence, and skill a reasonable director would exercise in comparable

circumstances or be liable for negligence and breach of duty. A director is personally

liable when he misuses a loan or advance, fewer than 2 directors or members exist and

the company incurs debt, and when he commits fraud or a tort.

COMPANY SECRETARY: is ma………………………. KINDLY PURCHASE THE FULL VERSION.

PREVIEW OF PROPERTY LAW PRACTICE.WEEK EIGHT: LEASES.

13 Unsolicited gifts are acceptable if the director discloses them to the board.

14 A director (common law) is not bound to bring any special qualification or knowledge to his office. He may manage a business he knows nothing about. All he has to be is honest.

Lease : is the temporary demise of land from one person to another usually based on a

consideration called rent or on no consideration at all except the building flowing

from the landlord. The tenets of a lease are exclusive possession; for a certain term;

and reversion. ‘Lease’ could mean the lease document15 or a grant beyond three years.

The interest under lease is called term of years, leasehold interest, or simply also

lease.

Leases under Certificate of Occupancy Section 1 LUA are automatically sub—leases

(and must have recitals16). The main lease lasts 99 years and reverts to the Governor

holding land for citizens17.

Parties to a Lease : lessor/landlord, lessee/tenant, and sometimes guarantor (ensures

performance of lease covenants and is equally liable to pay rent). Lease by an infant is

voidable and can be voided by him when he attains maturity. But his parents,

guardian, and the High Court may create a valid tenancy on his behalf.

Companies enter and exit leases as their Memo-Articles permit.

Essentials of a Lease : Certainty of property, parties, term and rent; exclusive (and

lawful) possession; must be in writing and by deed if above three years UBA v

Tejumola

and Sons Ltd; Osho v Foreign Finance Corporation, Okechukwu v Onuorah.

Certainty of terms arises from the fact that leases cannot endure in perpetuity. Fixed

dates are preferred, but ascertainable dates and dates based on definite events are also

acceptable Bosah v Oji. An undated lease is void and considered a freehold.

Types of Lease : Periodic tenancy (automatically renewable); Lease for a fixed period

(needs no notice to quit upon expiration); Tenancy at will (tenant stays over with

landlord’s consent and pays no rent); Tenancy at sufferance (tenant stays on without

landlord’s consent); Yearly tenancy; Statutory tenancy (tenant spared eviction by

recovery of premises law).

15 The LESSOR’s lawyer drafts the lease document.

16 The landlord will be called SUB-LESSOR and the tenant SUB-LESSEE if it is a C of O lease.

17 Governor’s consent, stamping, and registration are required for leases above 3 years.

Creation of Leases : A lease may exist in law (the lease itself) or in equity (an

agreement to lease). Leases created orally for fewer than 3 years reserve the best rent

and take effect upon possession. A party alleging oral or parole lease must prove it to

the hilt Odutola v Papersack Nigeria Ltd; by tenancy agreement or by deed for

leases over three years. An agreement not yet under seal to create a lease is a lease.

Differences between a Lease and a Licence : A licence is a privilege from occupier of

land to a third person to do an act which would ordinarily amount to trespass. It

transfers no interest. Because the licensee has no exclusive possession, he cannot

bring an action in trespass and cannot sub-license or receive statutory notices. Death

of the licensor ends the license.

Differences between a Lease and an Assignment : Assignment is always by deed. The

entire interest in land is assigned forever (no reversion). Before an assignment title in

the property is investigated.

Connection: an assignment is the permanent transfer of what remains after a lease.

Rent : is either money or money’s worth given for enjoyment of property. It is

optional, but when paid should be certain or ascertainable Pitcher v Tovey.

The main feature of a lease is lawful occupation by a tenant who may or may not be

paying rent African Petroleum Ltd v Owodunni.

Types of Rent : Ground rent paid annually on the land itself to the Governor and

subject to review every five years, Rack or economic rent paid on the land and all

developments from it, and premium (lump sum considered a fine) paid in addition to

the above rents and prohibited in some states. Premium may be recovered by the

lessee.

Rent is paid in advance only when the covenant to pay rent specifies so, otherwise it

shall be paid in arrears G.B Ollivant v Alakija.

Rent is payable in advance for 1 year maximum for yearly tenants and 6 months for

monthly tenants in Lagos. A landlord who demands more or is offered more must

refuse Section 4 Lagos State Tenancy Law. Section 3 Personal Income Tax Act

allows landlords in other states to collect advance of up to five years without being

taxed. Rent is paid even when premises are not being used unless there is a rent

abatement clause.

Factors to be Considered in Fixing Rent : Tax, Rent Laws, and Inflation.

Relevance of Rent Review Clause (contained in the reddendum or schedule) : because

landed property appreciates overtime; this clause cushions the effect of inflation by

allowing the landlord to keep abreast of the market rates. Without it the court will

imply fair market or reasonable rent, both always matters of evidence.

Lagos State Tenancy Law, 2011 : usable in the Lagos High Court and Magistrates,

does not cover V.I, Ikoyi, GRA and Apapa. It applies to commercial and residential

buildings and is excluded from Hospitals and Schools. Mediation is attempted before

litigation. Rent is not paid more than a year or six months in advance. Landlord issues

separate receipts for rent and service charge. Fees of agent are paid by the party who

brought him.

WEEK NINE: COVENANTS IN A LEASE.

Lease Covenants : are agreements between landlord and tenant to do or not do a thing

pertaining to the lease during the lease. Such agreements are express, implied, or

usual.

Implied Covenants : are inferred or presumed by law even if the lease does not provide

for them. In order not to be inferred and accorded weight, implied covenants must be

expressly limited or excluded from the deed. There are two types: covenants implied

on the tenant, and covenants implied on the landlord.

Covenants Implied on a Tenant : A tenant will pay rent (not in all leases, and rent

may

be paid in cash or kind Pitcher v Tovey, Doe Edney v Benham). A tenant will pay

rates and taxes. A tenant will keep the leased property in repair (in good shape)

—he will not commit waste voluntarily or permissively (by neglect). Waste differs

from wear and tear arising from normal use of the property, for which the TENANT is

liable unless an express agreement says otherwise. A tenant will permit the landlord

to enter and view the condition of the property if the landlord is under any

obligation in the lease to repair premises.

Covenants Implied on the Landlord : The landlord will allow the tenant quiet

enjoyment of the property. Neither he nor his agent shall disrupt this enjoyment;

doing so will prompt damages. The landlord must not derogate from his grant—he

shall not take with his left hand what he granted with his right. He shall not make the

lease futile, or he will be liable to pay damages. The landlord of a dwelling house

shall ensure it is habitable. For him to be liable for a breach of this covenant he must

have noticed a defect in the property and done nothing about it. A landlord will

comply with the Recovery of Premises Act and any other relevant law in evicting

a tenant (unless fixed tenancy, where he issues only 7 days notice of intention to

recover premises) otherwise he will be liable for damages.

Usual Covenants : are shaped by the trade, custom, and frequency of usage. They may

also be determined by evidence presented to the court.

These are proper and common covenants that are reasonable and enforceable. In

some jurisdictions they are statutory, in others express, and in yet others implied.

Express Covenants : are terms reached by both parties after negotiation which must not

be contrary to law or public policy or immoral. If a conflict arises between express

and implied (even if statutory) covenants, the express covenants will prevail.

Covenant to Pay Rent: is a restatement of the implied covenant to pay rent. However

the express covenant to pay rent states clearly the amount to be paid, how it should be

paid, and when it should be paid in the reddendum. No landlord can enforce payment

of rent if the lease does not specify these things. The consequence of not paying rent is

forfeiture of premises by the tenant and re-entry by the landlord.

Covenant to Pay Outgoings (Rates, Levies, and Taxes): The tenant pays rates,

levies and taxes to the exclusion of new outgoings except new outgoings of the same

species as the outgoings that existed when the lease was created. Future outgoings of a

different kind may be paid by the tenant if the lease states ‘the tenant agrees to pay all

existing and future rates and taxes on the demised premises.’ If there is no express

agreement as to who will pay new outgoings, common or state tenancy laws will

decide who pays. In Lagos the tenant will pay all outgoings the landlord is not legally

obliged to pay.

No landlord in Nigeria can force a diplomat, consular, foreign envoy or representative

of a COMMONWEALTH country (including their domestic or official non-Nigerian

servants) to pay outgoings on leased property Section 9 Diplomatic Immunities and

Privileges Act.

Covenant not to Assign or Sublet: may be absolute or qualified; if absolute, the

tenant cannot sub-let the premises at all and the landlord is not bound to give a reason

for his refusal. If qualified then subletting is subject to the landlord’s written consent

and the head lease must provide for it. This covenant guards against express and

deliberate subletting, not incidental licences to relatives when the tenant is away or

deposit of title deeds in an equitable mortgage. A covenant worded ‘not to assign’

does not prevent the tenant from subletting and vice-versa. The covenant should be

worded both ways.

The middle ground (balanced/ ideal clause) is the tenant should not assign or underlet

the lease property or any part of it without obtaining the landlord’s written consent,

which the landlord should not withhold unreasonably in the case of a reasonable

assignee or under-tenant Section 7 (6) LSTL. When the landlord unreasonably

withholds his consent, the tenant may go ahead and sublease or assign without his

consent.

Consent may be refused because of the nature of the property, the personality of

the intended sub-tenant, the purpose of subletting which conflicts with the purpose

in the head lease, and serious breaches of the covenant to repair which the sub-tenant

will not remedy.

Note: sublease is a conveyance of part of the remainder of the main/ head lease, not

all of the remainder otherwise it becomes an assignment of the lease. If a sublease

grants an interest as great as the tenant’s own, the tenant will be presumed by law to

have

surrendered every right he had in the lease to the sub-tenant.

Covenant to Repair18: protects the landlord’s reversion from depreciation. At

common law the tenant is obliged to repair. For the tenant to avoid this onus an

agreement must be made shifting the burden of repair to the landlord. Again the

landlord may refuse the burden and insist the tenant should repair as per common law.

The covenant to repair is therefore apportioned not equally, but to the extent in which

either party is

18 Repair in leases is the replacement of subsidiary parts.

willing/ liable to repair.

The tenant usually repairs in shorter leases while the landlord repairs in longer leases.

It is advisable for the landlord to handle structural repairs--foundation, roof, exterior

walls excluding windows, pipes and sewers--and for the tenant to take care of the

other parts. To prevent ambiguity regarding who should repair what, specifics of

repair should be listed in the schedule.

Breach of the covenant to repair will occasion notice to repair, forfeiture and re-entry

where the default is continuous, specific performance, damages, and an action for loss

of rent. If the landlord breached this covenant the tenant may deduct the cost of repair

from the subsequent rent, though this will not excuse him from paying rent or justify

his quitting the premises.

Covenant not to Alter Premises: being addition, removal, or even slight changes to

the premises may be absolute or conditional. It is conditional (most likely in long

leases) if alteration is possible only after the landlord’s written consent has been

obtained, and absolute (short leases) if alteration cannot be done at all and the landlord

need not give a reason. The tenant in a conditional covenant to alter should alter

within the landlord’s consent and restore the premises to its original form at his own

cost when the lease ends. In an action for recovery of premises he can counterclaim

cost of alteration only if he had the landlord’s written consent to alter.

Covenant to Insure: can be performed by either the landlord or tenant via a standard

insurance clause specifying who should insure, the property to be insured, the

insurance company, insurance cover (being total cost of reinstatement), and use of the

insurance money. A landlord insurer cannot be compelled to use insurance money to

rebuild the premises. A tenant who insured can compel the landlord to use the

insurance money to reinstate the property, but cannot be compelled by the landlord to

reinstate.

If reinstatement is impossible, both parties will share the insurance money pro rata.

Breach of the covenant to insure will prompt damages against the person who ought

to have insured. If the property is destroyed by fire, the tenant can apply as an

interested person under the Insurance Act for reinstatement when the landlord insured.

User Covenant: when no restriction is imposed in the lease or by statute (C of O,

town planning laws), the tenant may use premises for any lawful purpose or for more

than one lawful purpose such as habitation and trading at once. The tenant should

ensure he does not breach this term or he will be liable in an action for injunction to

prevent contrary use of premises, damages, and forfeiture and re-entry if provided in

the lease. An example of user covenant is “for residential purpose only”.

Provisos in a Lease : qualify or limit the covenants.

Abatement of Rent—occurs through a rent abatement clause protecting a tenant who

could not enjoy premises because of a frustrating event beyond his control. It is

needed because ordinarily the doctrine of frustration does not apply to leases either.

The clause is to the effect that the tenant will not pay rent at all if he cannot use the

property.

Option to Renew—is an allowance for the tenant to take up premises again on the

same terms after he has informed the landlord in time of his intention to do so. The

offer to renew must be accepted wholly. If acceptance is qualified or reveals new

terms (not just that acceptance is slow to come) a counter-offer ensues.

Option to renew prevents drafting a new lease or tenancy agreement. A perpetually

renewable lease (leases renewed ‘from year to year’) should be avoided because leases

do not endure in perpetuity and rent in the new lease will be subject to the old rate Re

Hopkin’s Lease unless a rent review clause is added.

Forfeiture and Re-entry: must be expressly stated. This proviso is never implied

except in Lagos when rent is in arrears for 21 days. The landlord must prove that the

tenant breached certain covenants and that he (the landlord) has not waived his right to

re-enter.

Rent Review Clause: where not inserted leaves the landlord obliged to renew lease at

the present rent.

Purchase of Reversion: means buying the leased property.

A Lease may be Determined (Ended) : by effluxion of time in leases for a fixed period,

by notice to quit, forfeiture, surrender, frustration, disclaimer (when tenant claims he

owns the premises the landlord will have to end the lease); by purchase, and by

merger.

……………… Kindly purchase the full version.

PREVIEW OF PROFESSIONAL ETHICS.

WEEK THIRTEEN: LAW OFFICE MANAGEMENT; IT IN THE LAW OFFICE;

SOURCES FOR LEGAL RESEARCH.

Classification of Law Firms : Small, Medium, and Large firms. The bases for

classification are location, client base, facilities, status and number of lawyers.

Types of Law Office/Practice :

Sole Proprietorship: a single lawyer establishes the firm then employs other lawyers

to work for him19. The sole proprietor takes major decisions by himself, takes all profit

and credit for success of the firm, can specialize, and can easily pass the firm to

another. On the other hand, he bears all costs and risks, his decisions are not cross-

checked for logic and practicability by any partner, and the firm may collapse if he is

terminally ill.

Sole Practitioner: establishes his firm alone and does not employ any other lawyer

but may have ancillary staff (clerks, cleaners). Because the sole practitioner has

nobody to assist him with legal work, he may be burdened and deliver services late.

Associate-ship: two or more lawyers pool resources to set up a law office, employ

support staff, and equip the firm, but refuse to share profit, handle their affairs

separately, and keep their clients separate. Cost of set up and maintenance is eased on

each lawyer, though there is always the danger of poaching clients. Also support staff

may not know who to answer to, as each associate might want to be boss.

Partnership: being professional in this case may have more than 20 members without

registering. The nature of partnership, manner of profit and loss sharing, and mode of

withdrawing from partnership should be stated in the partnership agreement and

articles under seal. Note Rule 5 (1)—(5) RPC.

19 Most law firms in Nigeria are sole proprietorships.

Disadvantages: death of a partner may cause the partnership to crumble; ordinarily

partners are jointly liable Bank of Kuwait v Hammond; decision making could be

slow; rivalry, distrust, and disagreement of partners could lead to a break up.

Finding Accommodation for a Law Firm : can be by the lawyer searching personally,

using agents, friends, colleagues, placing advert in newspapers, and by word of

mouth.

Law Office Premises : home, purpose built office, and existing building. A lawyer

paying

rent is ill-advised to partition his home into an office.

Financing a Law Firm : money needed to establish (not maintain) the firm are:

personal funds (usually inadequate); borrowing from friends or a bank; contribution

from family.

Types of Staff in a Law Office : fee-earners and support staff (paralegals).

Types of Work in a Law Firm : legal (office and court) and non-legal work.

The Four Management Structures for Law Firms :

Management by Committee of Partners is suitable for large firms with many

partners.

Management by all Partners is common where few partners exist20.

Management by a Managing Partner when several partners are in place—the other

partners may be dealing with the legal work. The decision of the managing partner is

usually subject to ratification, but will bind the other partners where a third party acted

on that decision before they could ratify it.

Management by Sole Owner is common to sole proprietorships and sole

practitioners.

Mission and Vision Statements : mission statement = short term goals of the firm, such

as defence of indigent accused persons. Vision statement = long term goals of the

firm.

Law Firm Mgt Functions : are POCCE—planning, organizing, coordinating,

controlling, and evaluating.

20 Common in Nigerian firms too.

a.) Planning : is of three types. Strategic planning is for the long term, tactical planning

for the mid-term, and then short term. The external environments of planning are the

socio-political and economic environments. Items of planning are finance, facilities,

staff, client, and services.

Time Management: means the lawyer should focus on legal work such as drafting

letters and pleadings, and delegate non legal work to the support staff.

Priority of Work: means the lawyer should put court matters requiring presentation of

witnesses on the next adjourned date.

Reminder Systems: may be personal or firm-wide. Personal reminder systems (mobile

phones, diaries, laptops, and tablets) are sometimes carried around by lawyers. Firm-

wide reminder systems are pre-printed forms and office computers.

Filing System: may be alphabetical or non-alphabetical (requiring index).

Law Office Records: include staff register, periodicals register, visitor’s book,

telephone directory, office manuals.

b.) Organizing : entails allocating functions to lawyers and support staff, each side

according to the capacity or natural inclination of its members.

c.) Co-ordinating : is monitoring how the functions allocated are exercised to achieve the

strategic planning of the firm.

d.) Controlling : is overseeing each segment of the firm to ensure it conforms to the goals.

e.) Evaluating : is strictly financial and achieved through periodic auditing of the firm.

The partners will assess the firm’s performance and decide where to cut costs.

Law Office of an Applicant to the Rank of Senior Advocate of Nigeria : must be of

good size, have a good library, sufficient facilities; enough partners or junior lawyers,

and efficient support staff.

Law Office Machine : generator, vehicles, inverter.

Law Office Equipment : scanner, printer, photocopier, dictating machine, computer,

typewriter, rubber stamp, fridge, telephone, tables, chair, shelves, air conditioner.

Law Office Supplies : letter-headed paper, business cards, seals, envelopes, forms,

stapler, paper clips and file jacket, cello-tape.

Ways of Acquiring Equipment and Machine : by leasing or by purchasing.

Challenges of IT in Law Firms : electricity, illiteracy, computer virus, IT theft, and

weather conditions.

Electronic Devices Used in Managing Case Files : spread sheet, optical disks, modems,

and electronic diaries.

Use of IT in Law Firms : to store client information, electronic mail, virtual library,

internet and websites.

Sources of Materials in Legal Research : primary sources generated by government

such as case law, statutes, regulations, industry rules and bye-laws are binding;

secondary sources (textbooks, journals, law dictionaries, thesaurus, precedent books

and legal restatements are persuasive {treatises can be binding}); tertiary sources

help locate a primary or secondary source and are hardly cited in court (digests,

annotated statutes, case or law index, case citatory); hybrid sources are a mixture of

primary, secondary and tertiary sources and are not cited. It brings together all the

other sources for ease of reference (examples—loose leafs and proof of facts).

Closing Files : upon the conclusion of a matter, the file on it is archived in a warehouse

or optical disk. At this point it is deemed closed. A closed file remains the property of

the client and should be returned to him. If for any reason the file cannot be returned

to the client, the law firm will scan the file or store it virtually then destroy it. The firm

may also decide to preserve the file in its physical form until the client is ready to

collect it—in this way the client can assess the work done on his behalf.

Destroying Files : is a decision the firm takes subject to any law restricting destruction

and after notice has been given to the client. A file can be retained indefinitely. If a

law restricts destruction of certain files, keep the files for a year longer than the statute

bar. Most files are backed–up before destruction.

WEEK FIFTEEN: LEGAL PRACTITIONER’S ACCOUNT.

Relevant Law : Legal Practitioners Accounts Rule 1964 made by the bar council. The

main purpose of the accounts rules is to ensure lawyers keep all money had and

received for their client separate from their personal or partnership money.

Types of Account : Personal (pertaining to a person/client company) and impersonal

(subdivided into real {property and cash} and nominal {wages, discount, interest}).

Obligatory Accounts : client accounts, trust accounts, and lawyer’s

Personal/Individual/ Partnership account.

Client Account…..

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PREVIEW OF CRIMINAL LITIGATION.WEEK FOURTEEN: CRIMINAL APPEALS.

Appeal : is a person’s resort to a higher court or judicial body for review of a lower

court’s decision affecting him.

Right of Appeal : is always statutory; a law must permit it. The power of a court to

consider appeals is also statutory—no court has the inherent power to do so.

Nature of Appeal : Appeal is a re-hearing not a retrial21. It may be as of right or with

leave of court Section 241 and 242 CFRN, Nafiu Rabiu v State22.

What can be Appealed : Final decisions (Judgment) and Interlocutory rulings.

Who Appeals : an accused person appeals, and the prosecutor (who may be A.G Fed or

State or any other person prescribed by law) cross appeals. A person who is not the

accused or prosecutor has no right of appeal. The victim of a crime has no right of

appeal.

Abatement of Appeal : a criminal appeal not against a sentence of fine shall abate

(end) upon the death of the appellant.

Abandonment of Appeal : An appellant abandons his appeal by giving a written notice

of abandonment signed by himself or his counsel to the registrar of the lower court at

least two days before hearing. The lower court registrar will alert the higher court

registrar to the abandonment.

Appealing from Magistrates to High Courts : The prosecutor will appeal against the

decision of a magistrate to discharge or acquit an accused on the following grounds:

21 Additional evidence may be allowed on appeal if the evidence could not have been adduced during trial, if it is vital, and if the court can be convinced it is needed in the interest of justice—the additional evidence can be redirected to the lower court in light of which it may reconsider its decision.

22 Consent judgment is appealed with leave of court.

The Magistrate’s order is erroneous in law. The proceedings or part of it was outside

the jurisdiction of the Magistrate. The Magistrate went below or above the

mandated penalty Section 67 MCL Lagos23.

ACJA Grounds of Appeal : The accused may appeal that the lower court had no

jurisdiction or exceeded it. The decision of the lower court was fraudulent. The case

had been determined before by a court of competent jurisdiction. Admissible evidence

had been rejected and inadmissible evidence allowed. The decision is unreasonable

and has no evidence to support it24. The decision is erroneous in law. The sentence is

excessive except fixed by law. Illegalities were committed during proceedings25.

ACJL (Lagos) Grounds of Appeal : The Magistrate was personally interested in the

case; he was corrupt or acted maliciously.

Procedure: Appellant must file Notice of Appeal within 30 days of judgment to the

magistrate court registrar26. After the appellant has paid filing fees and provided

security for appeal, the magistrate court registrar forwards record of proceedings and

other documents to the High Court registrar. The HC registrar will serve hearing

notices on both parties. Appellant’s counsel will argue only what is stated in his

Notice of Appeal, and respondent’s counsel will reply based on that. If the higher

court decides (based on the appellant’s lawyer’s argument) that there is no reason to

interfere with the judgment of the Magistrate, it will dismiss the appeal summarily

without calling for the respondent’s reply27.

Form of Notice of Appeal 28 : it is written but in CPC could be given orally upon

pronouncement of judgment. When oral notice is given, it must still be reduced into

23 The prosecutor cannot appeal that punishment was inadequate and should not appeal grant of bail.

24 Omnibus ground. ‘Against the weight of evidence’ is strictly CIVIL.

25 A convict who pleaded guilty may appeal if the requisite expert witness was not called (Stevenson v State).

26 Leave of Magistrate will be required to file the Notice of Appeal after 30 days.

27 In Magistrate if accused appealing—Form 1. Prosecutor—Form 2.

28 No notice of appeal means no appeal at all.

writing by the registrar. A written notice is signed by the appellant only29 and deemed

filed on the day it is delivered to the prison warden. Every notice of appeal shall show

the grounds of appeal and be filed at least three days before hearing.

Time for Filing Notice of Appeal : Final judgments—within 30 days, Interlocutory

rulings—within 14 days, Sentence of caning—within 15 days.

An appellant filing notice of appeal out of time in the HC shall use a motion on

notice with affidavit stating why the appeal was not filed in time and that it has a

strong chance of success.

Time for filing begins to run from the date of judgment or the day the appellant in

custody had notice of judgment30.

Appeals from FHC and SHC 31 to COA 32 : is basically the same as from the COA to the

Supreme Court and depends on whether appeal is as of right or with leave33.

Appeals as of Right (without leave) : Final decisions of the SHC or FHC sitting at first

instance; questions of law strictly or interpretation of the constitution (specifically

whether a fundamental right has been contravened); appeal on death sentence34, and

liberty of a person or custody of an infant Section 241 CFRN.

Appeals with Leave 35 : consent judgment, judgment as to cost, double appeal36, and

29 The Lawyer may sign notice of appeal if the appellant is a company or of unsound mind, or in a Magistrate.

30 Appeals do not go from State High Courts to Federal High Court because both are of coordinate jurisdiction.

31 Appeal HC—at least 1 Judge sits (2 in the North; may be 3 in Lagos).

32 COA needs three sitting justices (five for constitutional matters).

33 Notice of appeal to the Supreme Court is filed within 30 days of COA’s judgment.

34 Filing a Notice of Appeal in a death sentence acts as stay of execution.

35 Where leave is required to appeal, the leave shall be made to the High Court first, with 15 days allowance, after which the appellant can approach the COA.

36 Double Appeal--appeals coming from Magistrate High CourtCourt of Appeal rather than originating in the court immediately below.

interlocutory decisions based on facts or mixed law and facts.37

Procedure to the Court of Appeal : The appellant will file Criminal Form 1 in the HC

or FHC registry within 90 days of judgment Section 24 COA ACT. The FHC or HC

registrar will forward the record of appeal to the COA registrar, who will serve both

parties with it. Upon receiving the record of appeal, appellant will file his brief within

60 days and respondent will file his brief within 45 days of receiving the appellant’s

brief. Parties will then present oral arguments to clarify the issues raised in their

briefs38.

Supreme Court appellant has 10 weeks to file his brief39, and respondent has within 8

weeks of service on him of the appellant’s brief40.

Case Stated : is a referral to a higher court for its OPINION on the interpretation of the

Constitution during trial by the A.G, the court, or the accused person.

Prohibition : of proceedings outside the jurisdiction of a lower court by a superior

court. Prohibition cannot be obtained from a court of coordinate jurisdiction.

Certiorari : High Court quashes the proceedings of a lower court where the lower court

acted without jurisdiction or irregularly. Certiorari cannot be issued against a

legislative or executive act.

Trinity Prayer : extension of time to seek leave to appeal, leave to appeal, and

extension of time to appeal.

WEEK………………………..

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37 Leave to appeal goes to the jurisdiction of the court.

38 A party who has filed his brief but presents no oral argument will be deemed to have argued his appeal. 40 minutes is allowed for oral arguments unless the court directs otherwise.

39 Brief is a succinct statement of the counsel’s argument, non-filing of which makes appeal open to dismissal.

40 Supreme Court Justices on appeal--5 or 7 for Constitutional matters.