In this short piece we will be telling you about next of kin and inheritance rights in Nigeria.
As usual, let us set the stage for our discussion –
What happens when Mrs Aai filled Chief Tuu’s name as her next of kin in her bank opening form and then Mrs Aai dies without a will? Does it mean that Chief Tuu as her next of kin can approach the Bank to get Mrs Aai’s money?
– Does filing a person’s name as next of kin in bank documents automatically mean that the person will have access to the account once the account owner dies?
A lot of people have the impression that a next of kin is automatically entitled to inherit or share from a deceased person’s property or bank account. That is not the case under Nigerian law. A person is not entitled to share in the property of a deceased person simply because he was named as a next of kin.
It is only when the next of kin has been named as a beneficiary under a will or trust that he would be entitled to have a share in the property or estate of the deceased person.
For clarity, we need to consider what does ‘next of kin’ mean and how is it different from being a beneficiary (under a will or trust).
The Black’s Law Dictionary defines the words ‘next of kin’ as the person or persons most closely related to a descendant by blood or affinity. A person’s next of kin is his closest living relative who will serve as first contact in the event of emergencies or eventualities. In most instances, he is empowered to make decisions for the person in times of need or where the person is not readily available or unable to make personal decisions in selected instances. That is where the buck stops for next of kins.
On the other hand, the Black’s Law Dictionary describes a beneficiary as one designated to receive something as a result of a legal arrangement or instrument.
Where a person made a will before dying, it is the will that determines who gets what from the properties of the deceased testator and not his appointment of next of kin. This means that appointing someone as your next of kin is not a substitute for making will. Also, that someone has been appointed as next of kin does not automatically mean that they share in your will or properties.
What happens when a person dies without leaving a will?
You might ask – is the situation any different where no will was made before death? In other words, if there was no will, does the next of kin automatically inherit the properties of the deceased? Well, the simple answer is – no. So if a person dies without making a will, his next of kin does not automatically inherit his properties or take over his bank account. Mbanu. Instead, the law of succession kicks in to determine how the properties will be shared[1].
What do we mean by the law of succession kicking in?
With all we have said, there is no nothing special under the law about next of kin. Your next of kin is merely the first contact person to be reached in case something happens to you.
Your next of Kin is not your automatic heir or automatically next to inherit your properties.
[1] More precisely, where a person who is subject to customary law contracts a marriage under the Marriage Act, there is a presumption that the Marriage Act shall regulate succession to his intestate estate. Essentially, it is the court’s duty to consider the personal law of the deceased and the nature of marriage contracted by the deceased person before his death; as the mode of sharing the deceased estate will be determined by the incidence of marriage of the deceased or his adopted personal law.
Thus, if the deceased person contracted marriage under the Marriage Act, customary law will not be applicable, and his estate will be distributed according to the provisions of either the English law or the applicable Administration of Estates Law in that jurisdiction.
However, where the marriage was contracted under the customary law, the customary law of the deceased person’s place will govern how the property will be shared and who is entitled or not entitled to the property. Furthermore, if the marriage was contracted under Islamic law, the Islamic laws and practices applicable to the distribution of property will be applicable to the deceased’s estate. –
Source Mondaq article already referenced above.
In this short piece we will be telling you about next of kin and inheritance rights in Nigeria. As usual, let us set the stage for our discussion – What happens when Mrs Aai filled Chief Tuu’s name as her next of kin in her bank opening form and then Mrs Aai dies without a will? Does it mean that
List of the Fundamental Rights Contained in Chapter 4 of the 1999 Nigerian Constitution
Section 33 – Right to life
section 34 – Right to dignity of human person
section 35 – Right to personal liberty
section 36 – Right to fair hearing
section 37 – Right to private and family life
section 38 – Right to freedom of thought, conscience and religion
section 39 – Right to freedom of expression and the press
section 40 – Right to peaceful assembly and association
section 41 – Right to freedom of movement
section 42 – Right to freedom from discrimination
section 43 – Right to acquire and own immovable property
section 44 – Right against compulsory acquisition of property
Section 33 – Right to Life
1. Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
2. A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary
a. for the defence of any person from unlawful violence or for the defence of property;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
c. for the purpose of suppressing a riot, insurrection or mutiny.
List of the Fundamental Rights Contained in Chapter 4 of the 1999 Nigerian Constitution Section 33 – Right to life section 34 – Right to dignity of human person section 35 – Right to personal liberty section 36 – Right to fair hearing section 37 – Right to private and family life section 38 – Right to freedom of thought,
Do you remember that popular line from Psquare’s hit song? – “Do me, I do you, man no go vex, step on the dance floor, man no go vex…”
Now P-square may have been quite clear, the doing (in the “do me, I do you”) was supposed to be on the dance floor (or maybe so we think). And because we are on the dance floor, abeg, person no go vex. We just drew inspiration from them for our remix – do me I do you, LAW no go vex.
Now, when the idea came up for this piece, we laughed at the idea. But as we ruminated on it further, we thought it would be an interesting topic of discuss. Let’s be clear, we won’t be pulpit thumping[1] here, neither will we go celestial in this write-up. And yes, we used P-Square to get your attention.
But let’s begin.
To start, you should know that there is a difference between a legal wrong and a moral wrong though most times both meet or converge. Something could be morally wrong or reprehensible[2] and it is still not a crime. For example, eyeing an elder would in the average Nigerian society be regarded as morally reprehensible. I mean, even the elder might be tempted to dash you five fingers and shout ‘your real papa’ because you eyed him or her. But it is not a crime. At least not at the time of this writing.
Another example we could draw your attention to is – adultery. Generally, adultery is not one of the favorite things to do a spouse. It is morally wrong. We can largely agree on that. But in the southern part of Nigeria, it is not a crime. In the Northern part of Nigeria, it is a crime – Aoko v Fagbemi (1961) All NLR 400. You see, fact that something is a moral wrong doesn’t automatically make it a crime. This is because of Section 36(12) of the Constitution which provides to the effect that an action is a crime when it is stated to be so (proscribed) in a written law. Therefore, unless and until there is a written law making the morally reprehensible act a crime, in the eyes of the law, it is not a crime and no one can be arrested or prosecuted for it.
Having laid that foundation, let us go a step further.
Now, if someone does something that you consider morally offensive, most times, you might be tempted to plan a revenge or to retaliate. You might face this temptation because of the idea that the person who wronged you deserves some moral retribution for his or her wrong. And you would or should be the one to mete out justice to him or her. In simple pidgin we would interpret this feeling to mean or say – e do me, I go do am back.
Let’s give one example that we will revisit in this piece.
Imagine that your girlfriend, the love of your life and apple of your right intestine, did the unimaginable. She served your breakfast after cheating on you with your best pal. Now that hurts. We feel your pain bruh. Maybe in the kind spirit of ‘doing her back’, you want to leak photos or videos of the intimate times you had with her. In other words, you want to distribute her nudes online. Now – that is where this piece comes in – does the hurtful breakfast served on you, legally justify your leaking her nudes? After all that would be paying her back in her own coin. Keep that picture in mind, we’d be back to this example later on in our discussion.
So, the ‘e do me, I go do am back’ feeling/argument, is it justified in law?
Can you in a court of law rely on the fact that someone hurt you as a defence for your criminal actions against the person? In other words, to what extent can retaliation or revenge bring unwanted legal consequences on you?
That is what we will be discussing.
Let’s start the gist by saying this – revenge is best served cold – but generally, the Law can cook hot soup from it. To say that differently, cold revenge can land you in hot legal soup of trouble. But in very limited cases, the fact that you were provoked and therefore retaliated might partly save you from a portion of legal trouble[3]. We must stress the partly save part of that last sentence. We must also stress the ‘a portion of legal trouble’. This is not to encourage you to retaliate or revenge – read on to learn everything.
Planning crime –
Let’s be clear, planning crime is itself a crime. We’ve explained that in a previous piece. That is the essence of Sections 516 to 518 of the Criminal Code as well as Sections 96 and 97 of the Penal Code which govern the offence of conspiracy in Nigeria.
Taking your time to plan and schedule a proper trashing (beating) of someone who offended you is a crime. Put differently, physically giving your enemy a red eye after careful planning is a crime. Two crimes actually. The Law doesn’t say it like we’ve just described but you can check up on the offence of criminal assault as well as the offence of conspiracy. We have written about this previously, you can check it out here.
Imagine that everyone was allowed to distribute a proper thrashing to everyone who has offended them. We bet even your dear self would have gotten a few kisses from an angry fist.
Self-defense and Provocation: When the Law fit no vex (or maybe vex small)
Remember we have stated that generally, beating up someone who has offended you to show him or her pepper is not lawful. But does this apply to a situation where you are getting beaten (or your life is threatened) and you need to defend yourself?
Remember also where we mentioned provocation and self defence? This is where we will elaborate on them.
Our focus here is the defence of self-defence[4] and that of provocation. We have previously explained in detail what self-defence is – if you want to read more about it, you can click here.
Self defence
Self defence arises when someone’s life (the accused person’s life) was in grave danger and the action he took which led to his assailant’s death was the only available option to save his life. You could liken it to the survival instinct where a man whose life is threatened would intentionally and naturally find a way to preserve it.
Self defence is a complete defence to a charge of murder and is allowed by Section 33(2)(a) of the 1999 Constitution.
Section 286 of the Criminal Code provides:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault:
Provided that the force used is not intended, and is not such as to cause reasonable apprehension of death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
The law in a sense allows you to ‘do your assailant back’ not simply for the purpose of deliberate and calculated retaliation or revenge but to defend yourself from the assault or attack. So, if it is in self defence, e do me, I do am back might avail you and the Law no go vex. But like we’ve mentioned before, there are a number of facts or considerations that must be present before self defence can come into the picture at all and eventually get the law ‘not vexed’. Read this earlier piece of ours on the issue of self defence.
“In the first place, the defence of provocation when raised by an accused person presupposes and amounts to an admission by the accused that the death of the deceased was a result of the act of the accused/appellant”
Supreme Court in Agu v State (2017) LPELR 41664
What is provocation?
For purposes of our discussion, provocation[6] has been defined as some act or series of acts done by the deceased to an accused person which would cause in any reasonable person, and actually caused in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind.
We must also mention that – the effect of a successful defence of provocation is to reduce a conviction for murder to one of manslaughter – Oko v The State. Provocation is not a complete defence to a charge for murder. In other words, it doesn’t get you off the law’s hook.
“The defence of provocation is raised to whittle down the fiery punishment of the law should the accused be found guilty of murder. It does not absolve him of criminal liability”
Court of Appeal in BELLO v. STATE (2021) LPELR-56316(CA)
The defence of provocation would also not be available when a person had sufficient time for his passion or anger to cool and after that period he goes ahead to retaliate and, in the process, kills someone (the person who offended him)[7]. In the case of IGWE v. QUEEN (1963) l SCNLR 307 where after the alleged provocative act of the deceased the appellant left the scene to his house, a mile away, and got hold of a matchet with which, on his return, he murdered the deceased. The defence of provocation was held not to avail him. Don’t forget the fact that someone provoked you is no legal justification to hurt another person (a different person from the one who provoked you). Also, whether or not provocation arises at all is always determined on a case-by-case basis.
To benefit from the defence of provocation…the provocation given must be grave and sudden and the retaliation must not be disproportionate to the provocation given.
– Court of Appeal in BAKARI v. STATE (2018) LPELR-46496(CA)
The Law frowns at self help
Generally, the fact that someone did something hurtful to you is no basis for you to take the law into your own hands[8]. In law, we have a fanciful way of describing ‘taking the law into your hands’ – we call it self-help. And the law frowns against self-help.
This position of the law on self help does not displace or detract from all we have already said in respect of self defence and provocation since those defences apply to criminal actions. Self-help applies more in civil relations or situations. For example the attempt by a Landlord to evict his tenant by force or without giving the relevant notices required by law. The tenant may have actually failed or refused to pay his rent (thereby ‘doing the landlord’ in the context of our present discussion) but that does not serve as justification for the Landlord to take the law into his own hands.
Have you seen that sticker? The one that reads “don’t get mad, get a Lawyer”. We suggest you take it seriously and don’t take law into your hands.
Leaking Nudes of an Estranged lover
Remember our breakfast example from earlier on this in article? We are back there again. Section 24 of the Cyber Crimes Act makes the leaking of nudes a crime. To be very clear, the section provides as follows –
(a) Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or
(b) he knows to be false for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act and shall be liable on conviction to a fine of not more than N7, 000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
From the Section, we have just quoted above, you could get arrested and if convicted, jailed or fined for leaking the nudes of the former love of your life (or any other person). Provocation won’t apply here to allow you walk away after leaking the nudes.
Beating up madam heartbreaker is also not an option the law smiles at too. The law on breach of promise to marry might be your consolation. You can read about it here.
Key take aways/Conclusion –
If someone has wronged you, seek proper redress through the law. If the person’s action is a civil wrong, you can sue the person. If the person’s action amounts to a crime, you can report the action to the police for proper investigation and prosecution. Generally, where you take the law into your hands, the defence of e do me, I do am back (revenge/retaliation) may not come through for you. But in limited circumstances acting in protection of yourself or retaliation might be legally allowed. These limited circumstances include where or when the defences of self defence and provocation apply. But like we’ve said, these are pretty slim ropes to walk on.
Hope you enjoyed reading this and you have learned something new[9].
Written by Frederick Nkobowo LLB, BL
[1] Thumping means to strike or beat with or as if with something thick or heavy so as to cause a dull sound.
[2] If someone’s action is reprehensible, it is extremely bad or unacceptable.
[3] Here is what we mean, in limited circumstances, you can rely on provocation (and self-defense) as a defence (or legal justification) for the criminal action you have carried out. But for these defences to come in at all, the action should not merely and only be done as a retaliatory act. Remember, these defences apply only in limited circumstances.
[4] Nature of Self defence in Law – “An essential feature of the defence of self-defence is that it involves a process of reasoning, the guiding principles being necessity and proportion. The person relying on it must be able to satisfy the court that he had reasonable grounds for believing that his life was in danger and that the action he took was the only available option to save his life. The test is objective. Some of the factors the court would consider are whether the force used by the accused person was proportionate to that used by the deceased, the circumstances in which the force was used, the part of the body hit in self-preservation by the accused, among others. See: Chukwu Vs The State (2012) LPELR-9829 SC @ 9 – 10 D -F: Kwaashir Vs The State (1995) 3 NWLR (Pt.386) 651: Omoreaie Vs The State (2008) 18 NWLR (Pt.1119) 464. It is also trite that where it is successfully made out, the defence is a complete defence to a charge of murder. See: Omoreaie Vs The State (supra): Apuao Vs The State (2006) 16 NWLR (Pt.1002) 227 @ 255 – 256 H – A: Baridam Vs The State (1994) 1 NWLR (Pt.320) 250 @ 262
“It is settled law that for a defence of provocation to succeed, it must be established by an accused person: (a) That the act relied upon by an accused person is obviously provocative. (b) That the provocative act had deprived the accused of self-control, that is to say, the provocative act is such as to let the accused person actually and reasonably lose self-control. (c) The provocative act came from the deceased; (g) The sudden fight between the accused and the deceased was continuous with no time for passion to cool down, that is, the retaliatory act to the provocation must be shown to be instantaneous to the act reacted against; (h) the force used by the accused in repelling the provocation is not disproportionate in the circumstance. Thus, it must be shown that the retaliatory act to the provocation must be proportionate to the act reacted against. All these ingredients set out above must co-exist to ground a plea of provocation. All these ingredients set out above must co-exist to ground a plea of provocation. In MUSA V STATE (2007) 11 NWLR (Prt 1045) 202 at 219 – it was held that in applying the tests in the defence of provocation, it is of particular importance to- (a) Consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) Take into account, the instrument with which the homicide was effected for to resort in the heat of passion induced by provocation by a simple blow is very different thing from making use of a deadly instrument like a conceded knife, and the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter – See Hassan v State (2017) LPELR 41994 CA.
[6]Meaning of provocation in law – A defence of provocation on the other hand involves the opposite of reasoning. The elements of the defence of provocation are:
(a) The act of provocation was done in the heat of passion.
(b) The loss of self control, both actual and reasonable, That is to say, the act was done before there was time for passion to cool.
(c) The retaliation was proportionate to the provocation…Provocation arises from an act or series of acts done by the deceased to the accused person, which would cause in a reasonable man, and did in fact cause in the accused person at the material time, a sudden and temporary loss of self control, rendering him so subject to passion as to make him or her for the moment not the master of his mind. See: Akalezi Vs The State (1993) 2 NWLR (Pt.273) 1: Stephen Vs The State f!986) 5 NWLR (Pt.46) 978: R V. Duffy (1949) 1 ALL ER 932: Oladiran Vs The State f!986) 1 NWLR fPt.14) 75. Provocation may be verbal or physical or both. What constitutes provocation is a question of fact to be determined based the circumstances of each case. See: Lado Vs The State (1999) 9 NWLR (Pt.619) 369 & 380 F – in Oko v State A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control and acts upon it on the sudden and before there is time for his passion to cool.” Per Sage in Oko v The State . Section 38 of the Penal Code.
[7]In all the cases where the defence of provocation was held to avail the accused, he did so in the heat of passion. Thus, in MOMEH V. STATE unreported: SC. 469/65 of 15th April, 1966 it was held that the accused who did not act in the heat of passion cannot successfully plead the defence of provocation. The defence would also fail if the act of retaliation was done after there had been sufficient time for the passion to cool down. See IGWE v. QUEEN (1963) l SCNLR 307 where after the alleged provocative act of the deceased the appellant left the scene to his house, a mile away, and got hold of a matchet with which, on his return, he murdered the deceased. The defence of provocation was held not to avail him. In this case, if Exhibit A had been believed and acted upon, it would have been a case of the accused, appellant, committing the murder of the deceased in a deliberate and calculated act of retaliation which would have denied him the defence of provocation. See MOMEH v. STATE (supra).
There is, in law, provocation if the victim by his conduct or act (which includes words or action) had incited the accused to impulsively do something harmful or injurious to the former.
The inciting act or conduct of the victim must be such as could cause the accused to lose his reasoning and self-control at the material time and before his passion could cool down; Oko v State
[8] The exceptions include the instances of self defence and provocation we have described already.
[9] Relevant statutory authorities for all we have described so far include – Section 283 of the Criminal Code, Section 38 and 222 (1) of the Penal Code, Sections 193, 194 and 195 of the Criminal Law of Lagos State, Section 36 (12) of the 1999 Constitution, Section 33 (2)(a) of the 1999 Constitution
Do you remember that popular line from Psquare’s hit song? – “Do me, I do you, man no go vex, step on the dance floor, man no go vex…” Now P-square may have been quite clear, the doing (in the “do me, I do you”) was supposed to be on the dance floor (or maybe so we think). And because
Gentlemen, welcome again. In this post, we will be dealing with how the divorce process works in Nigeria. At the end, you will know the steps you need to take if you want to get a divorce in Nigeria. We will also mention a few law firms that handle divorce cases in a later post – the list won’t be exhaustive by the way but it would be helpful.
Before we begin.
Have you watched any American movie where a couple got divorced? The process must have seemed so simple right? In one scene some white sheets of paper aka divorce papers appear. And it seems that by just signing the divorce papers, the marriage gets split in two and each spouse is free to go their separate ways (i.e. to their papa haus). You might think that that is how it also works in Nigeria – you just sign divorce papers and the marriage ends. We regret to inform you that it is not so.
We’d break down the divorce process in Nigeria summarily. Don’t forget this post doesn’t amount to legal advice. It is also not meant to replace legal advice. So, when you need to, please speak with a lawyer of your choice. So, let’s begin.
How soon can I get (or ask for) a divorce in Nigeria?
You can start the process for getting a divorce within a week of your having been married. Don’t be surprised please. And no, we don’t hope your marriage ends that quickly. It is just what the law currently provides.
However, if you want to get divorced in less than 2 years of the marriage, the procedure is not just that straight forward. This is because, generally, you would need the Court’s permission first to even begin the divorce process. To get that permission, the Court would have to be convinced that you will suffer ‘exceptional hardship if you are refused permission or that your spouse has displayed ‘exceptional depravity’ within the short period of the marriage. This general requirement for permission, does not always apply in some specific instances e.g, persistently refusing to consummate the marriage (that is have the first marital sex), committing adultery and the spouse finds this intolerable to live with, sodomy, bestiality etc. – Section 30(2) of the Matrimonial Causes Act.
If we were to say that with a little more legalese, we would quote parts of Section 30 of the Matrimonial Causes Act. Permit us to, we won’t quote any other weirdly lawyerly things after this one.
The Section states as follows
30(1) Subject to this Section, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the Court.
(2) Nothing in this section shall apply to the institution of proceedings based on any of the matters specified in section 15(2)(a) or (b) or 16(1)(a) of this Act or to the institution of proceedings for a decree of dissolution of marriage by way of cross proceedings.”
The rule (which is called the two-year rule) is clearly targeted at preventing people from hopping in and out of marriages at a hair’s breadth. If you however have to file for a divorce after two years, you would not need this initial permission from the Court.
We should also tell you that getting an order of Court is in most cases really a walk in the park. That’s not to scare you. Or better still, when scared – talk to a lawyer.
But on a serious note, you hardly would file for a divorce and get the order of Court on that same day. This is because, the divorce process in Nigeria takes sometime especially as it is largely a litigation process (that is a process that involves suing in Court). This notwithstanding, there exists the option of divorce mediation which can help save costs and time.
On what basis can I file for a divorce in Nigeria? (What are the grounds for divorce in Nigeria?)
There is only one legal reason (or ground) for which you can file for and be granted a divorce (or a dissolution of marriage) in Nigeria. The reason is this – the marriage has broken down irretrievably. Once you are able to show the Court that the marriage has broken down irretrievably, the Court will make a decree order nisi (a temporary decree). After three months, this decree of the Court becomes absolute or final and the marriage is ended. We will explain this decree order nisi and absolute subsequently.
But for now, back to the ground for asking for a divorce from the Court which is – that the marriage has broken down irretrievably.
To convince the Court of this irretrievable breakdown of the marriage that we’ve spoken about, you would be expected to prove that any one or more of these facts have happened in the marriage –
Your spouse has deliberately refused to have sex with you on a persistent basis (in other words your spouse has refused to consummate the marriage)
Your spouse has committed adultery and you find it intolerable to live with him or her
Your spouse has behaved in such a way that you cannot be reasonably expected to continue living with him or her. This can include various behaviors such as habitual drunkenness, committing rape etc.
Your spouse has abandoned you (i.e. deserted you) for a continuous period of 1 year immediately before your filing for divorce
You and your spouse have lived apart for a continued period of at least two years immediately before your filing for divorce and your spouse also wants the divorce (i.e. he or she does not oppose your petition for the divorce)
You and your spouse have lived apart for a continued period of at least three years immediately before your filing for divorce
Your spouse has for a period not less than one year failed to comply with an order of the court directing him or her to resume conjugal rights. Just to mention, Conjugal rights are the intimate rights of marriage including comfort, companionship, affection and sexual relations[1].
Your spouse has been absent from you for such a time and in circumstances that permit the reasonable presumption that he or she is dead.
On the issue of being abandoned or deserted by a spouse, it is necessary to mention that in some States, doing such a thing is a crime[2].
What if I don’t want a divorce immediately, I just want to take a break from the marriage?
What if you don’t intend to outrightly walk out of the marriage? Maybe you feel that it would be best for you and your spouse to spend some time apart and maybe think things through. Don’t worry, the law has got you covered. In a situation like this, you can approach the Court and ask for a decree of judicial separation.
When the Court grants your request for judicial separation, you are in law relieved from the obligation of co-habiting with your spouse. But this does not affect the legal status of the marriage. In other words, the marriage is still intact – in the eyes of the law.
Also, we should mention that if things don’t work out after the judicial separation has been granted, you (or your spouse) can begin the actual divorce process.
If on the other hand, things get rosy again between you and your beloved and you both resume living together (i.e. co-habiting), you can apply to Court to discharge the decree of judicial separation.
How much does it cost to get a divorce in Nigeria?
The cost of getting a divorce in Nigeria is not fixed since most divorce cases in Nigeria are often contentious. Like we have said it is a litigation process, which can be won or lost. Therefore, lawyers often charge based on various matrix. Since all lawyers do not charge the same amount, the legal/professional fee will vary from one lawyer to another.
Give me some practical steps on how exactly I should start the divorce process?
Consult a Lawyer – this is the first step to it all even after reading this article. Why? you might ask. Consulting a lawyer would help tell if your complaint about what has happened in the marriage is a ground (i.e. enough reason in law) to approach the Court for a divorce. For example, your husband’s loud snoring at night and intermittent messing of the air (farting) when he sleeps may not be reason enough to go to Court and ask for a divorce. Speaking with a lawyer would also determine a host of other things like –
if from the nature of your marriage you need to take steps to get a divorce (or dissolution) of your customary marriage (if there was any).
Which of the petitions best suit the situation you are in – i.e. whether you need to file for a decree of nullity of marriage, judicial separation, restitution of conjugal rights or dissolution of marriage etc.
Whether the two-year rule applies to your situation
The forum convenience for filing the divorce papers
Preparation of the divorce papers for filing in Court: after speaking with the Lawyer, the divorce papers can then be prepared by the Lawyer for filing in Court. Some documents would be needed for the filing eg. Your marriage certificate. Now it is also important to mention that while speaking with the Lawyer, you might discover that an outright divorce may not be the best option for your situation and you might consider rolling up your sleeves to give the marriage another bout of respiratory support. By that we mean, you might try getting the love burning again like wild fire. So, the first step is very important.
After the filing of the papers, the Court process will begin. Like we have said before, getting a divorce in Nigeria is largely a litigation process and so it would take a while for the Court to give its judgment. Like we mentioned before, once you are able to show the Court that the marriage has broken down irretrievably, the Court will make a decree order nisi (a temporary decree). After three months, this decree of the Court becomes absolute or final and the marriage is ended in other words, you’ve divorced your spouse.
[2] Sections 16, 47 and 48 of the Violence against persons prohibition Act 2015,
Gentlemen, welcome again. In this post, we will be dealing with how the divorce process works in Nigeria. At the end, you will know the steps you need to take if you want to get a divorce in Nigeria. We will also mention a few law firms that handle divorce cases in a later post – the list won’t be
In this post, we’d briefly discuss what every Nigerian at some point contemplates especially when it seems their good name is being dragged in the mud. It is the law on defamation (Libel vs Slander). And we’d keep it simple and short.
This definition is sufficient for our discussion in today’s piece but I should mention that a man who has no good reputation, there is nothing the law can protect for him.
To begin our discuss, you should know that the law protects every man’s right to his good name or reputation. At the same time the law gives every man the freedom to express himself. But both rights are not absolute (that is without any form of limitations).
This is where the law on defamation comes in. While the law is ideally aimed at not stopping free speech, no one should use free speech as an excuse to ruin the good reputation of another person without any basis whatsoever. And this is exactly what the law on defamation aims at curbing.
The law on defamation helps you protect your good name from the unfounded negative imputation of others so that your estimation is not reduced in the eyes of right-thinking members of the society[1].
Libel vs Slander: Do you know the Difference?
Libel is written or visual while slander is spoken or oral defamation.
More elaborately, Slander is an unjustifiable statement made in a non-permanent form such as by speech or gestures. If you believe that you have been slandered, you will be required have to prove that the harmful statement has caused some loss to you, which could be financial or moral.
Libel is an unjustifiable statement made in a permanent or written form such as books, newspapers, letters, paintings, photographs, film, radio or television broadcast. In a law suit for libel, you don’t have to prove that you suffered any loss.
With our definitions out of the way, I will mention a few take aways, you need to keep in mind when it comes to the law on defamation –
The defamatory words or expression must be based on untruth or falsity. This is because truth is a complete defence to defamation. So, if someone says something you consider could reduce your estimation before others, if it true, you have no remedy at law.
It is necessary to know that Defamation is also a crime – Section 373 of the Criminal Code; Section 24 of the Cybercrimes Act 2015, Sections 391 to 395 of the Penal Code for northern states and the FCT Abuja.
Not every vulgar or offensive word amounts to defamation. For example, uncouth words said during a heated argument or quarrel are generally not considered to amount to defamation.
Companies can also be defamed in Nigeria[2]. Therefore, a company can sue a blogger, individual or other entity it believes has unjustly disparaged its business, the management of its business or unjustly stated that the affairs of the company are conducted in a dishonest manner.
Where a person successfully sues another for defamation, he or she maybe awarded monetary compensation by the Court.
In a subsequent piece, we will revisit other aspects of this same aspect of the law that jealously guards your beautiful or hard-earned reputation. As usual, remember that nothing I have said here amounts to legal advice and when necessary, seek legal counsel from a lawyer of your choice.
[2]Zenith Plastics Industry Ltd. v. Samotech Limited (2007) LPELR-8260(CA) at Pp.37-38, Paras. F-B, Bassey Edem v Orpheo Nigeria Ltd (2003) 13 NWLR (Pt 838) 537
In this post, we’d briefly discuss what every Nigerian at some point contemplates especially when it seems their good name is being dragged in the mud. It is the law on defamation (Libel vs Slander). And we’d keep it simple and short. First, let’s start with some basic housekeeping – What is Defamation? Defamation has been defined as any unjustified
Okay, before we get to the many lessons that you will learn in this post that could potentially save you millions of Naira, let’s carry out a small exercise. I promise it’s a simple one.
But to begin you need to close your eyes. Oops! I almost forgot you will need your eyes open to read this post. Okay, leave them open and let’s continue with the exercise.
Now here it is – imagine yourself in Court. Yes, you are in Court. No, you haven’t committed any crime. Also, I know you have no plans to sue anyone yet. You don’t even want to sue your-not-so-nice landlord. But still, just imagine yourself in Court.
So, why are you in court in this imaginative exercise? The reason is simple – you bought a piece of land. And someone from the blues has sued you.
Now in Court, you’ve come to know the type of land you ended up buying. The seller never expressly said; “I get land for sale. Na shikini money you go pay but e get small Court case”, but as you stand before the Judge this morning, the message is very clear that that is exactly what you bought. A small piece of land with big avoidable legal palava. In hindsight, you ask – “how come I never suspected anything could go wrong?”
Exercise over. Let’s not get to the horrible part where the land case (or suit) drags on for years and you have to spend a lot in litigation fees.
Now rewind to this moment before that likely court case in your future and let’s work towards averting it. To do that I will in this post give you some very simple steps to take when buying your next land (or property). Mind you, this post does not replace legal advice when necessary.
That said, let’s get to it.
First off, you should know that the law doesn’t require the seller to tell you everything that is wrong with his ‘supposed’ ownership of the land. If I were to say that differently; I’d say the seller is only required by law to disclose latent defects in title. He has no duty to disclose obvious defects to his title (or ownership of the land). This therefore puts you as the buyer in a ‘shine your eye’ position.
And that is why the Latin Phrase – ‘caveat emptor’ which simply means ‘buyer beware’ comes in handy at this point. Also, we have another handy Latin maxim which is translated to mean ‘no one can give what he does not have’ (nemo dat quod non habet) – that sentence definitely applies to sellers or vendors of landed properties. That would loosely mean; if the seller no get am, he no fit sell am give you. So, you need to be sure that the ‘seller get am’. So that ‘he go fit sell am give you’ – without hitches.
POLO v. OJOR (2002) LPELR-6086(CA)
“It is well settled that a person who purports to dispose of a parcel of land which does not belong to him or in which he has no interest or which is encumbered to another person, the principle of nemo dat quod non habet applies, thereby making the purported sale void ab inito: See Akerele v. Atunrase & Ors. (1969) All NLR 195 at 202, Adelaja v. Fanoiki (1990) 2NWLR (Pt. 131) 137 at 151 and Olosunde v. Oladele (1991) 4 NWLR (Pt. 188) 713 at 726. In effect, a grantor or vendor can only convey to another what he has.
What should you look out for?
With the first point I’ve just made; your first stream of considerations should be –
In what capacity is the seller selling the land (aka does he really have powers to sell what he is marketing or offering to you? Or Does he have good title to the land?)
What are the legal effects of the seller’s capacity?
What is the nature of the property being sold?
All these questions sound a lot like asking – am I buying a poisoned apple?
There are other considerations, but I’d try to walk you through the ones I have listed above very briefly.
Sellers can come in different shapes and sizes (if you may) i.e., they could be selling in different capacities. Also, the nature of the property being offered for sale would likely not always be the same. Is the seller a Bank? And is the property a mortgaged property? Is the seller a community or family? And is the property a community or family property? Is the seller the administratrix or administrator of a deceased’s estate? And is the property part of the estate? Is the seller an agent? Is the seller selling on the basis of a C of O or a power of attorney? Is the land the subject of litigation (that is a Court case)? Is the seller a company that claims to own the land?
These questions are important. This is because ‘how the seller take get am’ will determine if he can validly transfer his ownership (if any at all) to you. It will equally affect what you should investigate before determining whether to buy the land or not. It will also determine how the seller is to ‘sell’ it (or convey his interest to you).
The Court of Appeal in – EJIGINI v. EZENWA & ORS (2003) LPELR-10329(CA) said:
…a purchaser must be careful to know full details about the land he is buying so as to acquire a good title by ensuring that the vendor has the necessary title to what he offers to sell. The rule is “caveat emptor” – let the buyer beware. It is a very old and useful rule. To quote Richard, C. B. in Purvis v. Rayer (1821) 9 Price 488 at 518: ‘It is a general rule in equity founded on principles of honesty and the dictates of good sense, that if a person generally speaking, offers anything for sale, the vendee, or he who becomes the purchaser, is entitled to see that the vendor has it with the qualification and in the way in which he, the vendee understood that he bought it; that is, so as to offer him an assurance of having bought what he wanted, and meant to buy, or at least what was offered or professed to be sold, or he may reject the contract”
Let me give some examples to show why these considerations are important.
Do you know that if the seller is a member of a family and the property belongs to the family and you buy that property without the consent of the family head, the transaction is void? (‘void’ simply means you practically bought thin air because, in the eyes of the law, there was no valid sale of the land to you).
Another example is this – do you know that a Certificate of Occupancy (C of O) is not conclusive proof that someone owns a piece of land? Should this get you scared? No, not yet. But that is what the law is for now. That someone shows you a C of O does not mean that he is the unchallengeable owner of the land; he merely has a right of occupancy over the land. And you should know that in proper circumstances, C of Os can be revoked (or set aside) and, in most cases, they have been revoked. So, a C of O is in most cases not enough to establish that a person exclusively owns a piece of land. For example where the root of title is defective, a certificate of occupancy will not cure it: ALALADE v. PRESIDENT OF THE OTA GRADE 1 CUSTOMARY COURT & ORS (2021) LPELR-55656(CA)
One last example please – do you know that if you bought a piece of land when there is a case in court over the ownership of the land, you have actually bought a special species of ‘uncertainty’. What do I mean by that? Your ownership of that land basically hangs in the air (or better put – it hangs in the balance). This means that your ownership of the land will depend on who wins the Court case. This is part of what the Supreme Court said in ENEKWE v. INT’L MERCHANT BANK OF NIG LTD. & ORS (2006) LPELR-1140(SC). Sounds like a situation of – you buy anyhow, you see anyhow – right?
Have you now seen how and why you are in the shine your eyes position? Please, don’t forget it. So, the stream of considerations I have listed above are all part of ensuring you know what you are really buying (aka shining your eyes). In a more formal writing, we’d call that; carrying out due diligence.
So the key lesson is – before buying any piece of land, carry out your due diligence. In other words, don’t buy a poisoned apple simply because it still looks red. Don’t forget, the law expects you to take all necessary precautions in order to avoid a bad or absolutely useless bargain.
Your due diligence should help you answer questions such as – Does the seller have a good root of title to the land or property in question? Has the land ever been part of any government acquisition? Is the land (or the use of the land) affected by any town planning laws or regulations? Is it suitable for the intended purpose of the purchase?
Apart from the considerations I have listed above, there are other ways to shine your eyes or carry out due diligence.
Visit the Land (or property) –
One major way is to visit the property. I can’t stress this enough – visit the land and see things for yourself. Ask the owners of the neighboring lands questions if you must. The first hint of trouble may be physically sitting on the land and waiting for you to visit. An example is if the land has a building on it on which a caveat emptor notice is written but you never visited. You never saw the building and you bought the land, with the building and the clear words boldly written in black or red paint – THIS LAND IS NOT FOR SALE.
A land with ‘Caveat Emptor Notice’
2. Carry out Searches as necessary;
Also, there are some technical steps you can take in the course of the transaction that would protect you as the buyer. I will leave this in my lawyer’s hat. Or maybe not. Apart from carrying out the physical inspection of the land, it is very wise to carry out searches on the land. Where you should conduct searches will depend on the nature of the property being sold. You might need to conduct searches at the land registry, the probate registry or the Corporate Affairs Commission.
Now I’d let the rabbit out of that lawyer’s hat already. It is necessary to note that depending on the circumstances, it is usually wise to enter into a contract of sale with the seller of the land before the main land document (Deed of assignment or conveyance) is signed. There are many advantages to doing this, especially for you as the buyer. I should give you premium gist about one advantage that comes from doing what I have just mentioned in a subsequent post.
3. Seek professional aid when necessary
On a final note, I’d say, get a lawyer involved – not just at the point of preparing the land documents but through the entire deal. Why is this important? The Lawyer would know what questions to ask and what investigations to carry out. This is to ensure that you are acquiring good title to the land. When we say good title, we mean ownership of the land that has no legal impediment or problems. What I have briefly stated above has its technicalities, the lawyer knows these and can protect your interest in the entire deal.
Just like you need your eyes open to read this post, you need to shine your eyes during your next land purchase. With this, I drop my pen but I hope this sincerely helps.
Written by Frederick Nkobowo LLB, B.L.
For further Reading:
OWOADE v. ASUBIOJO & ANOR (2013) LPELR-21447(CA)
IGWEBE v. SAIDASHS INTL. LTD & ANOR (2016) LPELR-41188(CA)
YARO v. MANU & ANOR (2014) LPELR-24181(CA)
Onyido v. Ajemba (1991) 4 NWLR (Pt. 184) 203 at p.228
Okay, before we get to the many lessons that you will learn in this post that could potentially save you millions of Naira, let’s carry out a small exercise. I promise it’s a simple one. But to begin you need to close your eyes. Oops! I almost forgot you will need your eyes open to read this post. Okay, leave
From time-to-time people get broke. And when they do, one way to solve their money problems is to take a loan. Maybe you have been in the same situation. And you have taken a loan to pay school fees or to pay your house rent or to settle medical bills. You may have taken the loan from a Bank or one of the fintech loan apps available today (Lcredit, fair money etc). But what if you take the loan and you are unable to pay back – could you get arrested for that? If we are going to ask that differently it would be – can you go to jail for not paying back your loan or debt?
Please note that our answer does not constitute legal advice and is not intended to pass as one. That said, we will cut straight to the answer.
It is not a crime to be in debt in Nigeria. There is no law that makes the owing of loans a criminal offence. At best, owing a loan and not paying it back on time or at all would constitute a civil dispute. Okay, we know that’s big grammar so we will explain.
What we mean when we say that owing a loan (or debt) could amount or constitute a civil dispute is simply that – you have a disagreement with someone or with an organization and the person you have the disagreement with can sue you. Like we said, the loan or debt in question may be due to a business deal that went bad or maybe some unforeseen circumstances that happened and your business partner or the company you owe may want its money back quickly. Therefore, they can sue you to get their money (the loan) back. But remember, this does not mean you have committed any crime.
Having cleared the air that being in debt is not a crime, we need to clarify something else that might be closely related.
What we want to clarify is this – while being in debt or not being able to timely repay your debt (or loan) is not a crime, there are instances where there are criminal activities arising from or relating to the debt. So, while the Police and other law enforcement agencies have no powers to act as debt recovery agents, they can investigate, arrest and prosecute any alleged offence that arises from or is related to the debt.
Let us explain with two examples, first, issuing a dud cheque is an offence. In the same vein obtaining by false pretense (popularly called 419) is a crime and Police officers can arrest on this ground. So, if the loan (money) was obtained by false pretense, the Police maybe involved and can arrest on this ground. Similarly, if the criminal act of issuing a dud cheque was done after the loan was gotten, the police can arrest on this ground.
The gist we have been driving at is this, owing a debt is not a crime. Also, failing to timely pay back a debt or loan is not a crime. The police do not have powers to act as debt collectors or debt recovery agents. That notwithstanding, some actions carried out either before or after collecting the loan or debt maybe criminal in nature and the police can investigate and arrest on the basis of such criminal actions. However, it is the law that the duties of the Police (and other law enforcement agents) do not include the use of the criminal process or their powers to resolve or influence the resolution of any civil dispute under the guise of investigating criminal features in such disputes.
Sadly, it is common to see the police and even creditors try to give debts and breach of contract cases a coloration of crime so that they can arrest debtors. This is more like giving a dog a bad name so as to hang it. Thankfully, the Court has held that the EFCC, the Police and other law enforcement agents have a duty to scrutinize all complaints that they receive, no matter how carefully crafted by the complaining party, and be bold enough to advise such complainants to seek appropriate/lawful means for resolving their disputes.
One question may agitate your mind from all we have said. Let us try assuming what your question is or better still lets us ask; apart from the Police, what of the Complainant who uses the Police to settle civil disputes – does he go scot free?
The answer to this question is No. This means that the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police. The Courts have held that a person who employs the police, or any law enforcement agency, to violate the fundamental rights of another citizen should be ready to face the consequences, either alone or with the misguided agency
With all we have said, don’t forget – The Police and other law enforcement agencies in Nigeria are not debt recovery agents or debt collectors. The Police are also not supposed to settle civil disputes or misunderstandings. It is illegal for the Police to do any of these things. Furthermore, where the police abuse the rights of a debtor because of the frivolous or misguided petition of his Creditor, both the Police and Creditor can be sued for breach of fundamental rights and the Court may find them liable.
To end the discuss, we only would add that if you are in debt, it is not wise to evade your Creditors. One thing you can do is agree on a repayment plan with your Creditor and gradually pay off the debt. In addition, where necessary ensure to seek professional help.
Written by Frederick Nkobowo LLB
Authorities and Further Readings
Section 4 of the Police Act 2020
NWADIUGWU v. IGP & ORS(2015) LPELR-26027(CA)
CP.,ONDO STATE & ORS v. KILADEJO (2020) LPELR-52286(CA)
EZEIGBO v. IKECHUKWU & ORS (2019) LPELR-48445(CA)
Nkpa v Nkume (2001) 6 NWLR Pt. 710 at Pg. 543
From time-to-time people get broke. And when they do, one way to solve their money problems is to take a loan. Maybe you have been in the same situation. And you have taken a loan to pay school fees or to pay your house rent or to settle medical bills. You may have taken the loan from a Bank or
The central duty of the Nigerian Police Force is to solve crime as well as maintain law and order. In the course of fulfilling this duty, the Police necessarily have to interview and even arrest suspects.
This leads us to the question under consideration in this article which is – what if the police come to arrest my father and cannot find him, do they have legal powers to arrest me; his son? Simply put – can the police arrest you in place of a suspect?
Our question bothers on arrest by proxy (also called arrest in lieu). Let’s simplify that. Arrest by proxy is a situation where the Police or any other law enforcement agency arrests one person for the offence of another person. A common example is where the relative or loved of a suspect is arrested instead of the suspect himself (or herself). This usually happens where the suspect cannot be found easily.
The justification often used for doing this is that the suspect would come out from his or her hiding once he gets to know that his loved one has been arrested by the Police. Situations like this are common around the country but let us give you an urgent example;
As reported by thecable.ng, on August 26, 2020, Johnson Kokumo, the then Edo state commissioner of police, paraded six suspects in connection with the rape and murder of Vera Omozuwa, a 100-level student of the University of Benin.
During the media interview session after Kokumo’s speech, one of the suspects, said she was arrested in the village after the police were unable to find her son.
“They (referring to police officers) said madam, “where is your child?” I told them I did not know his whereabouts. I was in the village and my son was in Benin. That is how I ended up in the cell,” the woman said.
Her testimony attracted public attention, especially on social media, as it appeared that she was arrested in place of her son who was the actual suspect.
Do the Police Have legal Powers to Arrest by Proxy in Nigeria?
So, what does the law say? Or like we asked before does the Police have legal powers to do this?
The simple answer is a sincere NO. To put that in a moderately long sentence – It is illegal for police or any security agency to arrest any person for an offence committed or suspected to have been committed by another person. No matter the offence. Criminal liabilities cannot be assumed, transferred, inherited or sexually transmitted.
Various provisions of the Law clearly make arrest by proxy illegal. They include –Section 7 of the Administration of Criminal Justice Act 2015 and Section 36 of the Police Act 2020.
The Courts have ruled severally to uphold the law that the Police do not have the powers to arrest by proxy.
Pardon that we have to type it again; It is illegal for the Police to arrest you for an offence you did not commit in place of another person (the real suspect).
Nkobowo Frederick Nkobowo LLB
The central duty of the Nigerian Police Force is to solve crime as well as maintain law and order. In the course of fulfilling this duty, the Police necessarily have to interview and even arrest suspects. This leads us to the question under consideration in this article which is – what if the police come to arrest my father and
Have you ever heard of the Employee’s Compensation Act? This crucial law will be the focus of this article. However, before we dive into the main discussion, as usual, lets place issues in context. In workplaces and offices across Nigeria, it is common to hear stories of workers or employees getting hurt, losing their lives or suffering from work related injuries or diseases while carrying out their duties[1]. These occurrences are usually traced to the risks or hazards associated with the jobs some of these workers are involved in or exposed to[2]. Sadly too, sometimes these workers suffer these injuries, diseases or disabilities without being compensated by their Employers. This is the exact situation that the Employee’s Compensation Act exists to correct.
The Employee’s Compensation Act applies to all employers and employees in Nigeria[3]. It does not matter whether they are employed in the private or public sectors. The only persons exempted from the provisions of this law are members of the Armed forces who are not employed in a Civilian capacity. It is also interesting to know that the provisions of this law apply to apprentices, part-time workers as well as workers/employees who are employed in the informal sector of the economy.
So please do not limit your mind to thinking that this law and what we will discuss here only applies to workers in big banks and factories. This law applies even to domestic servants helping out with house chores.
What should all Employers/Business Owners know under this law?
This law places a duty on all Employers/Business Owners in the Country to make a monthly financial contribution to the Employee’s Compensation Fund. The Employer is to contribute 1% of his total monthly payroll to the fund. The fund is managed by the National Social Insurance Trust Fund Management Board (the Board). This contribution is a compulsory one required by the Law[4] and it is not to be (directly or indirectly) deducted from the Employee’s Salary[5].
So when planning your next payroll as an Employer, do not forget to include this deduction for every Employee. The law will not exclude or forgive your ignorance.
If you need further assistance on how to calculate your payroll liabilities including the contribution to the fund we have just mentioned, Accountinghub.ng has an amazing resource on this subject that would guide you simply visit https://accountinghub.ng/online-courses/ . We are not affiliates to accounting up and the recommendation made is entirely value based. Also, we get no commissions from any purchases made on Accountinghub’s website.
Also every employer is duty bound under the Act to report to the Board, any disease or death that arises in the course of the employee’s carrying out his/her job. Failure to make this report is an offence – Section 5 of the Act.
If I suffer a work related injury/disease – am I entitled to compensation?
Yes, by provisions of the Employee Compensation Act, if as an employee, you suffer a work related injury or disease, you would be entitled to compensation. To state that more elaborately, all employees who suffer from mental stress, occupational injuries and diseases, as well as the dependents of an employee, who dies due to occupational injuries, are entitled to compensation by Law. This notwithstanding, the procedure for getting the compensation as provided by the Law must be followed, if not an injured employee stands the risk of losing out and not getting compensated.
If I have an accident while on my way to work – am I entitled to Compensation?
The circumstances of the individual accident would have to be carefully examined. This is one of the reasons we advise very clearly that once you suffer a work place injury, you endeavor to reach out to a lawyer who would appraise the circumstances of the injury and give you proper legal advice.
That said, to answer the question here, if one suffers an injury on the way to work, whether or not he or she will be compensated depends on the circumstances of the accident. The law is to the effect where an employee is entitled to compensation if suffers an accident while on the road or way between his place of work and
(a) the employee’s principal or secondary residence;
(b) the place where the employee usually takes his or her meals; or
(c) the place where he or she usually receives remuneration (that is payment),
provided that the employer has prior notification of such place. – Section 7 of the ECA
what if my work gives me mental stress – can I be paid compensation?
Shocking as it may sound, the Law provides for compensation when an Employee suffers mental stress as a result of the nature of the work[6]
If an Employee dies due to work related injury – are his family members entitled to compensation?
If an Employee dies due to a work related injury, even his/her family members are entitled to be paid compensation. The law has gone on to even provide a scale for the compensation of the bereaved family[7]. Again, the circumstances differ but in summary, the scale of compensation is a percentage of the salary of the deceased employee which is to be paid to the family on a monthly basis.
If I suffer a work related injury, what should I do?
As already mentioned, we advise that you contact a lawyer who would ensure you take the proper steps under the law to receive compensation for the work related injury.
That said, it is necessary to state again that the law (in this case the ECA) has provided for a procedure that anyone seeking compensation is to follow so as to get compensated. Where this procedure is not followed, such a person stands the risk of not being compensated.
Also, more importantly, it is necessary to mention that by the Law, the injured Employee or his dependents (in the case of death) are to inform the Employer of the injury within 14 days of its occurrence. Section 4 of the Act
This report of the injury or death to the Employer is to be made with all the details required by the law in Section 4 of the Act.
Once the Employer receives this report, he is to make a further report to the Board and the National Council for Occupational Safety and Health in the State within 7 days of the occurrence or of his being notified about it.
An application can then be made to the Board (that is the National Social Insurance Trust Fund Management Board) within 1 year after the occurrence of the injury.
The issue of compensation should be raised as early as possible by the injured employee. Why is this? It is because the Law requires that compensation (made under the ECA) claims are to be submitted to the NSITF board within One year of the occurrence of the accident. And in exceptional cases not more than THREE YEARS after the occurrence of the accident. If an injured employee does not submit his claim to the Board within the period stated above, he loses his right or opportunity to claim compensation from the board.
You may ask, so after three years, does it mean that an injured employee has no other remedy?
Not entirely. The three year period does not mean that the injured employee does not have a right to other legal remedies.
More precisely, depending on the circumstance of the case, the injured employee may still be able to sue his former Company or Employer and claim monetary compensation for negligence or sue to recover his benefits or unpaid gratuities. In either of these cases, it is very important to get the advice of a lawyer very timely.
Nkobowo Nkobowo BL
End note
Since 2010 when the Employee Compensation Act came into force, the Workmen’s Compensation Act was repealed (that is, it is officially no longer in force). Consequently, contracts, employee handbooks and other documents that are currently prepared for Companies/ Employers need to reflect or make reference to the Employee Compensation Act and not the Workmen’s Compensation Act.
Have you ever heard of the Employee’s Compensation Act? This crucial law will be the focus of this article. However, before we dive into the main discussion, as usual, lets place issues in context. In workplaces and offices across Nigeria, it is common to hear stories of workers or employees getting hurt, losing their lives or suffering from work related
A lot of people sign guarantor’s forms for loans collected by either their friend, family member or acquaintance without realizing the legal effect of the simple act of signing ‘as a guarantor’. Most times after signing, they feel that’s the end and they do not know what is primarily expected of them as guarantors. Some even feel or think that signing as guarantors is merely a way of offering a favor to a family member or friend who is taking a loan, starting out a job or under some other form of contractual obligation. This piece will enlighten you on these issues and much more.
What does it mean to be a guarantor?
According to Investopedia.com, a guarantor is a financial term describing an individual who promises to pay a borrower’s debt in the event that the borrower defaults on their loan obligation. The term “guarantor” is often interchanged with the term “surety.”
Guarantors are not only needed in loan agreements. In the circumstance a more encompassing definition would be; a guarantor also known as surety is an entity or person who agrees to be responsible for another party’s debt or performance under a contract, if the party fails to pay or perform.
So what is the legal effect of signing or acting as a Guarantor?
From the definition above, by signing as a guarantor, you are agreeing to repay the total amount owed if the borrower can’t pay what they owe.
Put differently, if for any reason the debtor taking the loan fails or is unable to pay back the debt, then as the guarantor, you immediately come under the burden to do so. Even the Supreme Court of Nigeria has made this point very clear. I will quote the words of the Court and proffer some further explanations;
“A guarantor is technically a debtor because where the principal debtor fails to pay his debt, the guarantor will be called upon to pay the money owed. However, the fact that the obligations of the guarantor arises only when the principal debtor has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal debtor or from the guarantor or give notice to the guarantor before the creditor can proceed against the guarantor; nor does the creditor have to commence proceedings, whether criminal or civil, against the principal debtor unless there is an express term in the contract requiring him to do so.” C.B.N. v. Interstella Comm. Ltd.
So from the quote above some things are clear;
As stated already, by acting as guarantor, you’re liable for that person’s loan if they don’t keep up with their payments. In other words, you have to make the payments instead.
Therefore, immediately the actual debtor fails to repay the loan or keep his part of the bargain, your liability as a guarantor arises immediately.
When this happens, especially in cases involving payment of money or repayment of loan, you as the guarantor, steps into the shoes of the debtor and become the debtor.
Once that happens, the Bank (or other oblige) can come after you directly for the repayment of the loan. They ordinarily do not even have to ask the original debtor (who has failed to make payment) to repay first before asking that you repay the loan.
From the foregoing, it is clear that there are many risks to being a guarantor for a loan. Because when you sign as a guarantor for any person it is tantamount to you accepting to bear the liabilities and debts that such a person owes someone else. However, the fear that you as a guarantor may be responsible for the loan payments shouldn’t deter you from helping the other party. It is only expected that you know certain facts and understand the risks involved before signing as a guarantor.
Who can be a guarantor?
Often certain criteria are to be met before a borrower borrows and similarly before a guarantor can stand in for a borrower. Among which include; the guarantor and borrower must be of age (adults), the guarantor must show that he/she has a sufficient and stable income that can provide for the payment of the loan if it ends up becoming the guarantor’s responsibility. The guarantor must also in like manner show that he has no outstanding debt as this can deter his ability to make repayment if the need arises. The guarantor will also have to prove his possession of assets as these can be used by the bank to pay off the balance of the loan.
Simple safeguards when acting or signing as a Guarantor
When signing or acting as a guarantor, it is important you know exactly what you are agreeing to. This is because by acting as a guarantor, you are accepting to be held responsible for the payment of the outstanding debt (or other obligation) if the borrower fails on his part to make payments. This invariably means your assets and income can be put at risk as they can be confiscated and used for the repayment of the debt.
Before committing yourself to guaranteeing someone’s loan, you should ensure it is in writing and properly signed. Before signing, you have to be satisfied with the terms stated therein which can range from the amount of money for which you may be liable, the circumstance in which you might have to pay and the duration of your obligation as a guarantor. You also have the right to discuss the loan with a lawyer before the signing of the documents. Make sure the lender offers you a copy of the loan agreement so that you know the payment schedule and other relevant information in relation to the loan.
Also endeavour to understand the reason why the borrower is being asked to get a guarantor. You should ensure that the borrower of the loan, you are acting or signing for, is actually capable of repaying the loan before you become part of the arrangement as a guarantor.
As a guarantor, you are also likely faced with the inability to get a loan for yourself since you are already signed up for a borrower. Your own loan eligibility will automatically reduce, hence, once you are sure of taking a loan in no distant period, then it is advisable not to stand in or sign up as a guarantor for anyone.
In summary, signing or acting as a guarantor comes with legal liabilities. It is not just pen on paper and nothing more. Hence, when next you are called to act as guarantor to any party in a contract/agreement, be meticulous before rushing into such an arrangement.
Proverbs 22 v 26 and 27
“Don’t agree to guarantee another person’s debt or put up security for someone else. If you can’t pay it, even your bed will be snatched from under you.”
Written by Oluboyo Taiwo Olamide LLB (in view)
Oluboyo Taiwo Olamide SAL is an undergraduate of law of the University of Benin. He is a prolific writer who has written several legal articles. He was awarded the “2022 South South Legal Writer of the Year” as a result of his writing skills. He is the Chief Editor of several published magazines; The LAWSAN(South-South) CONVERGENCE(2.0) Magazine, My Body & I Foundation Magazine among others.
He is also a sound advocate of law who has represented his school in a number of national moot and mock competitions. Recently, in the month of April 2023, he represented his school and the country at large in the Philip C Jessup International Law Moot Court Competition in Washington DC, USA. As a result of his advocacy prowess, he was recently elevated to the most revered and highest attainable rank for student advocates in the faculty of law, Uniben – Senior Advocate of Lawsa (SAL).
A lot of people sign guarantor’s forms for loans collected by either their friend, family member or acquaintance without realizing the legal effect of the simple act of signing ‘as a guarantor’. Most times after signing, they feel that’s the end and they do not know what is primarily expected of them as guarantors. Some even feel or think that
