Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

THE DIVERSITY OF LAW

Nnamdi Ebo 2Lawyer Zone  | By Nnamdi Ebo | The Diversity of Law.

Diversity means the condition or result of being changed. Law is characterized by change; constant change. Law has the condition of noticeable heterogeneity. Law has a diversity of possibilities and multifariousness. The range of law is amazing; law has a varied nature; the quality of being diverse and not comparable in kind. Some of these varied laws have been treated in various chapters of this book. This chapter serves only to highlight briefly, the diversity of law. Find below, the various genus of law:

Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organizations, such as the United Nations (which was established after the failure of the League of Nations to prevent World War II), the International Labor Organization, the World Trade Organization, or the International Monetary Fund. International law “consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”67

Private international law is the body of conventions, model laws, national laws, legal guides, and other documents and instruments that regulate private relationships across national borders. Private international law has a dualistic character; balancing international consensus with domestic recognition and implementation, as well as balancing sovereign actions with those of the private sector.68The job of private international law is to monitor the validity of judgments within any local and foreign courts. This private international law arrangement is also known as the conflict of laws since the Rome Convention of 1991.

European Union law: The primary source of EU law is the EU’s treaties. It is the first and, so far, only example of a supranational legal framework. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms against or for member states and citizens. The core of European Union economic and social policy is summed up under the idea of the four freedoms – free movement of goods, capital, services and persons. It has direct effect within the EU’s member states and, where conflict occurs, the EU law takes precedence over national law.

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67. Columbia Law School, McKeever, 2003 – Definition of International Law.

68. American Society of International Law (www.asil.org/pil1.cfm), Private Internationa Law, 21 Oct 2010.

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Constitutional and administrative law, govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States, Nigeria and France, have a single codified constitution, with a Bill of Rights. A few, like the United Kingdom, have no such document. A “constitution” is simply those laws which constitute the body politic, from statute, case law and convention. The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorized by law. Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil d’État set up in 1799, as Napoleon assumed power in France.

Criminal law: Criminal law is a branch of law which concerns crimes which are committed against the public authority. Murder, for example, is covered under criminal law, because although there is a specific victim, murder in general runs against the interests of the public. It is also known as penal law and pertains to crimes and punishment.69 Apprehending, Investigating, charging and trying suspected offenders are regulated by the law of criminal procedure.

reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed criminal, or actus reus (guilty act). Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However for so called “strict liability” crimes, an actus reus is enough. Examples of crimes apart from murder are assault, fraud and theft. In exceptional circumstances defenses can apply to specific acts, such as killing in self defense, or pleading insanity. An example is in the 19th century English case of R v Dudley and Stephens  [1884] 14 QBD 273 DC, which tested a defense of “necessity”. Criminal law offences are viewed as offences against not just individual victims, but the society at large.

The state and the police handle the prosecution of suspects/accused. In Nigeria, criminal law encompasses the rules and statutes written by the National Assembly dealing with any criminal activity that causes harm to the general public, with penalties. It also covers criminal procedure connected with charging, trying, sentencing and imprisoning defendants convicted of crimes. It regulates how suspects are investigated, charged and tried. In common law countries, cases are cited as “The State v…” “The People v…” or UK, “R (for Rex or Regina) v…”

Tort law is a branch of the law which covers civil wrongs, such as defamation and trespassing, among many other transgressions. Under tort law, if someone suffers a physical, legal, or economic harm, he or she may be entitled to bring suit. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right.

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69.  Cesare Beccaria’s seminal treatise of 1763–1764 is titled On Crimes and Punishments (Dei delitti e delle pene).

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Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for his injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson [1932] UKHL 100. A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue’s illness.

Lord Atkin took a distinctly moral approach, and said, The liability for negligence … is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay … The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? – receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. This became the basis for the four principles of negligence; (1) Mr Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2) he breached his duty of care (3) the harm would not have occurred but for his breach and (4) his act was the proximate cause, or not too remote a consequence, of her harm. Torts can also involve intentional acts, such as assault, battery or trespass. A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician’s reputation. More infamous are economic torts, which form the basis of labor law in some countries by making trade unions liable for strikes, when statute does not provide immunity. Tort law also covers issues like nuisances, such as noise pollution and loose livestock. In some countries, industrial pollution and releases of toxins are covered under tort law as “toxic torts”.

Property law is an area of law which governs the different types of real property and personal property ownership within the common law system. Real property, sometimes called ‘real estate’ refers to ownership of land and things attached to it. Personal property refers to everything else; movable objects, such as computers, cars, jewelry, and bread, or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licenses, covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. Some of the legal issues which can be addressed by the concepts of property law would include mortgages, property taxes, tax benefits, transfer of ownership and insurance policies. Property law is coming of age in Nigeria. In August 2010, Nigeria repealed the 119 years old archaic conveyance property Act Law70 which had been drafted for Lagos and forced down the throat of Nigerians by the colonial masters in 1881.

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70. PM NEWS Aug 24, 2010; pmnewsnigeria.com/2010/08/24/fashola

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Governor Babatunde Fashola of Lagos State signed the Lagos State Mortgage Board Bill into law thus making law-craft in mortgages and conveyancing more elaborate and streamlined.

Human rights law: Human Rights are defined as basic rights and freedoms to which all humans are entitled such as civil and political rights, the right to life and liberty, freedom of thought and expression, equality before the law, social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education. civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights (which founded the European Court of Human Rights) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Charter of Fundamental Rights of the European Union – Poland and the United Kingdom.

Evidence law: Legal scholars have long regarded evidence as being of central importance to the law. It involves which materials are admissible in courts for a case to be built. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. The law of evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, (e.g., a court of law). There is more elucidation in chapter 8, section 3, Page327.

Lawyer zoneImmigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals. Immigration law regarding the citizens of a country is regulated by international law. – “Where a person enters Nigeria as an exempted person under this Act and while in Nigeria thereafter ceases to be entitled to such exemption, he shall as soon as possible report the fact in writing to the Director of Immigration, and this Act shall have effect as if the person ceasing to be exempted were a person desirous of entering Nigeria for the first time and the Director of Immigration may, if he thinks fit, refer the case to the Minister (for internal Affairs) or may deal with the case himself”71

Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation. Family law is an area of the law that deals with family-related issues and domestic relations including:

  • the nature of marriage, civil unions, and domestic partnerships;
  • issues arising throughout marriage, including spousal abuse, legitimacy, adoption, surrogacy (U.S.), child abuse, and child abduction
  • the termination of the relationship and ancillary matters including divorce,  

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71. Immigration (Control of aliens) Regulations, Immigration Act, Chapter 171, Part I  Administration (3); Laws of the Federation of Nigeria 1990.

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  • annulment, property settlements, alimony, and parental responsibility orders (in the U.S., child custody and visitation, child support and alimony awards).
  • Native law and custom governing family matters (subject ofcourse to validity tests as innunciated).

Company law sprang from the law of trusts, on the principle of separating ownership of property and control. The law of the modern company began with the Joint Stock Companies Act 1856, passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation. The four defining characteristics of the modern corporation are:72

  • Separate Legal Personality of the corporation (the right to sue and be sued in its own name i.e. the law treats the company as a human being)
  • Limited Liability of the shareholders (so that when the company is insolvent, they only owe the money that they subscribed for in shares)
  • Shares (usually on a stock exchange, such as the London Stock Exchange, New York Stock Exchange or Euronext in Paris)
  • Delegated Management, in other words, control of the company placed in the hands of a board of directors

Commercial law is the body of law that governs the broad and sometimes vague areas of business, consumer transaction, and commerce. The application of commercial law has developed a specific set of laws that apply to commercial activities, pursuits, and transactions. This arm of civil law deals with issues both simple and complex that often relate to questions of both public and private sector laws. Commercial law governs sale and distribution of goods, and proper procedure for payment of transactions. It covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria. The Sale of Goods Act is an example of codified common law commercial principles.

Admiralty law or maritime law and the Law of the Sea lay a basic framework for free trade and commerce across the world’s oceans and seas, where outside of a country’s zone of control. Shipping companies operate through ordinary principles of commercial law, generalized for a global market. Admiralty law also encompasses specialized issues such as salvage, maritime liens, and injuries to passengers. Although each legal jurisdiction usually has its own enacted legislation governing maritime matters, admiralty law is characterized by a significant amount of international law developed in recent decades, including numerous multilateral treaties. Of all the opportunities that abound for Nigeria to exploit her status as a maritime nation, much attention is paid to the building of infrastructure. But beyond the building more ports and acquisition of new equipment is an emerging frontier that holds bright prospects.

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72. See RC Clark, Corporate Law (Aspen 1986) 2; H Hansmann et al, Anatomy of Corporate Law (2004) ch 1

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Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. These are legal rights (copyrights, trademarks, patents, and related rights) which result from intellectual activity in the industrial, literary and artistic fields. Nigerian law provides that a trademark can be registered only for goods or classes of goods in respect of which the owner of the mark has acquired or intends to acquire a reputation for dealing in within Nigeria. Copyright law and practice is governed in Nigeria by the Copyright Acts of 1970 & 1988, there have also been amendments introduced to the act in 1992 & 1999. There are also several treaties and international agreements on Copyright to which Nigeria is a party or signatory such as: THE BERNE CONVENTION 1886; THE UNIVERSAL COPYRIGHT CONVENTION 1952; ROME CONVENTION; TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS [TRIPS]; & THE WORLD INTELLECTUAL PROPERTY ORGANISATION [WIPO].

Tax law involves regulations that concern value added tax, corporate tax, income tax etc. In Nigeria, the taxation system dates back to 1904 when the personal income tax was introduced in northern Nigeria before the unification of the country by the colonial masters. It was later implemented through the Native Revenue Ordinances to the western and eastern regions in 1917 and 1928, respectively. The Nigerian tax system is basically structured as a tool for revenue collection. This is a legacy from the pre-independence government; which is based on the 1948 British tax laws; they have been mainly static since enactment. The need to tax personal incomes throughout the country prompted the Income Tax Management Act (ITMA) of 1961. In Nigeria, personal income tax (PIT) for salaried employment is based on a ‘pay as you earn’ (PAYE) system, and several amendments have been made to the 1961 ITMA Act.

Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the U.S. Wall Street Crash of 1929. Bank regulations are a form of government regulation which subject banks to certain requirements, restrictions and guidelines.

Consumer law could include anything from regulations to on unfair contractual terms and clauses to directives on airline baggage insurance and land transport insurance. Consumer law is a field of law which is designed to protect consumers and to provide them with formal legal means of obtaining reparations for damage caused by faulty products. The level of consumer awareness in Nigeria is relatively low. The result is that consumers are saddled with poor services and often subjected to unwarranted hardship over basic services.

Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalize polluters within domestic legal systems. The basis of environmental policy in Nigeria is contained in the 1999 Constitution of the Federal Republic of Nigeria. Pursuant to section 20 of the Constitution, the State is empowered to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria. In addition to this, section 2 of the Environmental Impact Assessment Act of 1992 (EIA Act) provides that the public or private sector of the economy shall not undertake or embark on or authorise projects or activities without prior consideration of the effect on the environment. The Federal Government of Nigeria has promulgated various laws and Regulations to safeguard the Nigerian environment. These include:

Federal Environmental Protection Agency Act of 1988 (FEPAAct). The following Regulations were made pursuant to the FEPAAct:

  • National Environmental Protection (Effluent Limitation) Regulations:
  • National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations; and
  • National Environmental Protection (Management of Solid and Hazardous Wastes) Regulations.
  • Environmental Impact Assessment Act of 1992 (EIA Act).
  • Harmful Wastes (Special Criminal Provisions etc.) Act of 1988 (Harmful Wastes Act).

Religious law “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”73 Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia – both of which translate as the “path to follow”—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses.

This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarizes some of the Talmud’s interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire’s Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognize Islam as the religion of the state, obliging legislature to adhere to Sharia. Saudi Arabia recognizes Quran as its constitution, and is governed on the basis of Islamic law.

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73. Article 18 of the Universal Declaration of Human Rights

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Legal Method . Book Cover 202x300 OBJECTIVES OF LAWCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012

Buy the book, Legal Method  |  Click  Bookshop

Nnamdi Ebo [email protected]  |  © 2014 Nnamdi Ebo . All Rights Reserved

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