LAWgically Speaking

What happens when a person dies without a will? Is there still a way of protecting his or her family’s interests in his/her assets and ensuring that family members are not cheated out or deprived of inheriting their late predecessor’s assets? First off, to commence my narration and place issues in perspective, kindly permit me to tell a short fictional story. Thank you. Permission accepted.

Chief Iwuezim OFR is a prominent titleholder in Nigeria and he is absolutely rich. In fact, simply saying that ‘Chief is rich’ is almost demeaning. The ‘length of his wealth’ is best described in these words of his native tongue- ‘Chief bu onya ego’ which is translated as – Chief is the trap of money. This native description does not encapsulate the entirety of Chief’s eminence; a board member of some prominent multinationals in the United States, owner of choice properties around the globe, business interests in many oil blocs and of course father to a community of children (both known and yet to be discovered) from his hamlet of ‘wives’, female companions and secretaries.

Rings a bell? Don’t worry, this is not a remix or retelling of the Chief DADDY movie. That is because this our dear Chief Iwuezim did not write a will before his untimely death last night[1]. Chief simply slept and has not blinked his eyelids as we speak. Now as you may have expected, the family is agog. As the news filters around town – Chief’s family, associates, and others are all gearing up.

Rita Iwuezim was the Chief’s only wife ‘within’ the house. The remaining ‘wives’ were actually the ceremonial sharers of her husband- the now late Chief Iwuezim. Rita knew these women were around though she was never had time to bother about catching them. Subconsciously, she had come to treat them as anyone would treat the secret service – you watch them in movies knowing that they surely exist somewhere but you never make it your business to look for a secret service agent as long as your life is going well. What shall Rita now do? Surely Chief’s younger brothers would be visiting with their individual sharing formulas for his properties. His previously unknown concubines will also want a portion of Chief’s wealth.

Thanks for reading my blockbuster story. I now resume my actual gist by mentioning two key points.

My first point is, you don’t want to be Chief Iwuezim by not making your will and I will explain why.

My second point is even where a will is not written or prepared, there is still a provision in the law that can safeguard the interests of your immediate family and loved ones. But for this safeguard to apply, there is one condition you must comply with (while alive). This condition will be addressed subsequently.

Before, going further into our discussion, I would love to explain some words you will meet as you read along;

When a person dies ‘testate’ – this means he made a will before he died

When a person dies ‘intestate’ – this means he died without making a will

A testator – is a person (male or female) who makes a will

Estate (as used in law) – this means all of someone’s money or property.

With those terms out of the way, I continue with my first point earlier raised –

Make your will while alive (put differently – die testate)

I know that this point should sound obvious. The truth is that many persons downplay the need to make a will. In fact, to some people, the suggestion to make a will means one is wishing them ill will or untimely death. I will kindly advise that you discard the thought if you are in either of these categories.

The truth is the advantages of making a will are so numerous that ‘not making a will’ is particularly risky. For the records, let me state very clearly that making a will is the most concrete way of protecting your assets and interests after death. This is because by making a will, you have done some ‘basic home-keeping’ and can dictate what should be carried out as your last wishes when you are no more. You also get to determine who should carry out your last wishes in the will.

In fact, to demonstrate the importance of making a will, I will borrow the words of the Supreme Court.  In Idehen v Idehen, the Court said a lot including this – ‘the Chief if not the only aim of making wills is to allow owners of property or rights to indicate how their affairs on their death could be arranged. This involves the person to whom their property could be given or those to succeed them otherwise. For instance… the testator can appoint as head of his family a person other than his eldest son, or extend the category of the beneficiaries beyond his nuclear family”

There are other advantages of making a will and we will address this in a fuller blog post.

Also, I must mention that there are still some restrictions on your ‘will-making superpower’. If I were to state that as a lawyer I would say- there are restrictions on your testamentary freedom. That really means, that in some cases, you might not be able to share all of your property using a will. For example, a person who is an adherent of the Islamic faith (in some states such as Kaduna, Oyo, Plateau, Jigawa, Kwara, and Bauchi States) cannot share his properties anyhow he desires but must comply with the tenets of Islamic law when making his will.

That said, in the unlikely event that you do not make a will after my brief TED talk above, I will go on to the second point I’ve already mentioned in passing. The point about the provision of the law that could still substantially safeguard the interest of your immediate family and loved ones where no will was made before death. For this provision of the law to apply, there is a fundamental condition that must be fulfilled which is – get married under the Marriage Act.

Get Married ‘under the Marriage Act’

Getting married under the Marriage Act is really not rocket science. To marry under the Marriage Act, the intending couple is expected to comply with the conditions provided by the law and they will be issued a certificate of marriage. To safely illustrate it, what is usually referred to as ‘Court Marriage’ is really an instance of marriage under the Marriage Act.

At this point, permit me to drop a shocker or spoiler alert. Here we go – did you know that most church weddings are not marriages under the Marriage Act? This in effect means that the protection offered by the Law to married couples does not apply to most marriages conducted in churches these days. But why is that so you ask? For a church to properly conduct a marriage under the Marriage Act, it must be a ‘licensed place of worship’ and there should be compliance with other requirements stated by the law especially Sections 7 to 17 of the Marriage Act. In practice, this is not done by most churches.

You can confirm churches that are licensed to conduct marriages in your local government area by visiting this portal created by the Ministry of Interior. https://ecitibiz.interior.gov.ng/worship/Placeofworshipsearch

Let’s proceed from our exposition above. Our focus now is – How does getting married under the Marriage Act help where someone dies without making a will. 

Where a person dies without making a will, if he was married under the Marriage Act, by operation of law, the interest of his family (especially his nuclear family) would be substantially protected. This is because his estate will be distributed according to the Administration of Estates Law and not his custom. This law provides a priority list of persons who can apply for ‘letters of administration’.

Let me give a foundational explanation at this point before I go further. Remember we mentioned earlier that when making a will you have (as the testator or maker of the will) the opportunity to appoint persons to carry on your last wishes. These persons are referred to as personal representatives. When a person dies testate, his personal representatives can easily be identified because they will be mentioned in the will and then they can take relevant steps to take control and administer the testator’s estate. Where the person dies intestate, persons who consider themselves as personal representatives are to apply for ‘letters of administration’. Until these letters of administration are granted, the law is that the deceased’s estate is ‘vested in the Court’. This means that survivors and family members of a man or woman who died without a Will have no power over his or her estate until letters of administration have been granted by the Court[2]. These letters of administration give authority to the personal representatives to take over, control, and distribute the deceased’s estate.

Like I mentioned previously, the Administration of Estates law gives a priority list of persons who are entitled to apply for letters of administration where a person dies intestate (Section 49 of the Administration of Estates Law of Lagos State).

Here is the priority list;

1. Surviving Spouse

2. Children of the Deceased or the issues of the children of the deceased (who died before the deceased)

3. Parents of the deceased

4. Brothers and sisters of the deceased of full blood and their surviving children

5. Brothers and Sisters of the deceased of half-blood and their surviving children that are sui juris

6. Grandparents of the deceased

7. Uncles and Aunties of whole blood or their surviving children

8. Creditors of the intestate estate[3]

You may ask – what effect does this list really have?

Because of the priority list, it is not any person that can or will just wake up and want to run affairs of the money or properties of a deceased person by applying to Court to given letters of administration.

A real example can be seen in the case of Obusez v Obusez; a case that got to the Supreme Court.

The long and short of what we have explained so far is –

1. Make a will to cater to the needs of your loved ones upon your death.
2. Where you haven’t made a will yet, ensure you are married under the Marriage Act.

Thanks for going through this long read.

Oh and kindly forgive me, I will keep you up to date with the current state of commotion at the Late Chief Iwuezim’s residence soon. In the meanwhile –

Nkobowo Nkobowo BL (Reporting)

As Usual, we have taken care to ensure the information above is correct but it is only provided for general information purposes and does not amount to legal advice or soliciting. This information is not intended to substitute the services of a lawyer, if you need legal advice, we advise that you consult your lawyer for your specific needs and peculiar circumstances. For any further information, you could send us a mail via contact@ls-ng.com

[1] In law, we would say, Chief died intestate.

[2] See the article by Ebun-Olu Adegboruwa SAN. It also makes for an interesting read on this issue- https://thenigerialawyer.com/administration-of-estates-law/.

[3] Sections 26 and 49(1) of the Administration of Estates Law of Lagos State have been the focus of this article.

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Various countries across the globe currently have legal frameworks that provide for different insurance policies. These frameworks outline different insurance covers/policies that aim at protecting an insured entity from losses that arise from the occurrence of a given risk. The discussion in this piece will deal with third party motor insurance policy – and this will be based on the law as applicable in Nigeria.

Just as a preliminary, it is necessary to mention that the overall aim of insurance is to financially guard against unpredictable life occurrences. In short, when you buy an insurance policy, you make monthly payments, called premiums, to purchase protection from monetary repercussions related to things like accidents, illness or even death.

Before we deal with the focal point of this piece,

WHAT IS THE MOTOR INSURANCE POLICY?

Motor insurance policy is an insurance policy which covers the insured in case of financial losses – resulting from an accident or other damages – sustained by the insured’s vehicle (car, lorry or bus etc). It is a policy fashioned to protect the policyholder – the insured – from loss of or damage to his vehicle, damage to third party’s property which might include bodily injury or even death of third parties.

WHAT DOES THE POLICY COVER?

Motor insurance policy protects the insured in the event of the occurrence of the following:

1) Damages and losses, resulting from natural calamities such as flood, volcano, earthquake, hurricane etc.

2)Damages and losses, resulting from human intervention, such as burglary, theft among others

3)Third party legal liabilities owing to damages – bodily injuries and death – caused to a third party as well as financial losses to a third party property.

Now to the focal point of the piece

WHAT IS THIRD PARTY MOTOR INSURANCE?

Third party motor insurance, which is the minimum insurance that owners or operators of motor vehicles plying Nigeria roads are required to have. It is a kind of insurance cover under which the insurance company agrees to indemnify the insured, if he is sued for injuries or damages done to a third party.

For instance

Mr Godswill’s Vehicle crashes into another car belonging to one Mr Okeke along the Lagos-Ibadan express way, and the accident unfortunately turns out to be Mr Godswill’s fault. With the third party motor insurance policy in place, Mr Godswill need not fidget as his liability to the driver of the other car – Mr Okeke- would be covered although he will not be able to claim monetary compensation for the damages to his own car.

As seen from the illustration above, the third party insurance policy takes care of the damage caused by the insured (policyholder) to the third party’s vehicle or property, also as the case may be, covers the third party’s medical expenses in the event of an accident, when the insured is at fault.

The foregoing explanation naturally raises the following questions;

Is the third party motor insurance policy mandatory for all car owners in Nigeria?

The question above attracts an affirmative reply as under the Nigerian law, every motor vehicle on the road must be insured against damage to the property of third parties. That is why every vehicle plying the Nigeria roads must have third party insurance. This is predicated on the provision of section 3(1) of the Motor Vehicles (Third Party Insurance) Act and Section 68 of the Insurance Act 2003. Hence it is a criminal offence not to possess a third party motor insurance policy.

Would anyone who fails to get his vehicle the minimum of the third party liability insurance cover be penalized?

Without mincing words, this also attracts an emphatic ‘Yes! ‘ as anyone found wanting in this regard shall be liable to conviction to a fine of four hundred naira or to imprisonment of one year or to both such fine and imprisonment and such person convicted of this offence shall be disqualified for holding or obtaining a driving license see section 3(2) of the Motor Vehicles (Third Party Insurance) Act of 1950. In addition to the punishment already mentioned, Section 68 of the Insurance Act, stipulates imprisonment of one year and/or a fine of N250,000.

What Does The Third Party Insurance Policy Cover?

Third party motor insurance covers the insured against :

1)Death or bodily injuries done to the third party

2)Accidental death of the third party

3)Damage to the third party property.

What Is Not Covered?

1)Using the scenario of Mr Godswill, it is pertinent to state that the insurance policy does not cover damages done to Mr Godswill’s Vehicle. Hence, the third party motor insurance does not cover your own vehicle’s damages and same way does not cover any injuries sustained by the insured (policyholder) in the course of any accident which he’s solely responsible for.

2) Damage by a person driving without a valid driver’s license. This is only applicable to the insured as if he’s bereft of a valid driver’s license, he can’t seek to have the policy in place to indemnify him if he’s sued for damages or injuries sustained by the third party.

3) Damage by a person under the influence of hard or narcotic drugs or alcohol. This is also only applicable to the insured (Mr Godswill in the hypothetical scenario) as if being under the influence of hard drugs or alcohol made him end up crashing the third party vehicle (Mr Okeke in the hypothetical scenario), the policy won’t have effect on the insured (Mr Godswill) as he will be left alone to decide his fate in the hands of the third party (Mr Okeke).

4) The third party insurance policy doesn’t cover any damage sustained by the insured vehicle during riots such as the recent #EndSars protest where hoodlums ended up setting ablaze some vehicles, during War and Mutiny.

From the foregoing, a profound discussion has been made on what motor insurance policy is and subsequently inform you about the Third Party Motor Insurance Policy.

Written by  Oluboyo Olamide Taiwo (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).

As Usual, we have taken care to ensure the information above is correct but it is only provided for general information purposes and does not amount to legal advice or soliciting. This information is not intended to substitute the services of a lawyer, if you need legal advice, we advise that you consult your lawyer for your specific needs and peculiar circumstances. For any further information, you could send us a mail via Contact@ls-ng.com  

It is the season where Cupid’s arrow is most active. It is known around the world as Valentine’s day. So if the arrow considers to strike two persons, does the law concern itself at all with Cupid’s business? Worthy question. And the answer is that the law does visit Cupid’s business too. So while the love portions or text messages are working, you would need some basic information too.

To deal with this, we have raised and answered some frequently asked questions bothering on Valentine’s day ‘shenanigans’.
Here we go.

Question 1-
What if from our Val’s day outing, he gets me pregnant and chooses not to care for me and my child?
The principal law that governs the care of children is the Child Rights Act as passed into law by the National Assembly. However, some States have also enacted their Child’s Rights Law.

From the very first section, the Child’s Rights Law expressly states that ‘the best interest of the child is its primary consideration.’ So how does it play out in this scenario? In ensuring the best interest of a child, the Child’s Right Law has made it clear that every child has the right to parental care. The right to parental care includes the right to be maintained by the father or mother of the child. The Child’s Right Act also gives the Court the power to order that the father of a child should make contributions towards the maintenance of that child.

The scope of the Child’s Rights Law also extends to cover the unborn child – Section 17 of the Child’s Right Act 2003. In reality, a likely situation where this could play out where the father of the unborn child not only refuses to take care of the unborn child or denies the responsibility of taking care of the child but also actively seeks to hurt the unborn child.

In addition to the provisions of the Child’s Rights Act/Laws is the provision of the Criminal Law of Lagos State (which applies only to Lagos State). It is a rather interesting provision of law. This provision of the law (Section 279) makes it a crime for a man to impregnate a woman or girl and refuse or neglect to contribute towards the lady’s necessaries like her medical and food expenses. Therefore in Lagos, the law is that once a man gets her pregnant, running from his responsibility is a crime. You might also be interested in seeing Section 278 of the Criminal Law of Lagos State.

Question 2 –
How about if a guy gives money to a lady to visit on Valentine’s day and she doesn’t turn up, is there remedy in law?

So, it’s Valentine’s day and you have asked to take this beautiful damsel you have been toasting for a while out for a treat. She indicates her desire to go out with you but complains of lack of funds for her transportation to the meeting venue. You are love struck, therefore you send the money to her to cover her transport expenses. Your lady receives the money and ‘bounces’ you. You’re now fuming with rage and even contemplating a legal action against her. Perhaps you’ve heard that contractual relationships are regulated by law and conclude that your situation should fall in that category.

Sorry to burst your bubbles. Your case doesn’t fall within the category and as such you don’t have a remedy under the law of contract. You can however seek for redress under the criminal law. Here you will have to make a complaint to the police (further details withheld). The police may then arrest the lady and charge her to court.

I doubt though that you would want to explore this option against someone you claim to love. But be it as it may, we have to discharge our duty by letting you know what the law is as it concerns your situation.

Question 3
Guys, I need help. My Fiancee broke up with me because I took another girl out on Valentine’s day.

On and after Feb 14th as usual, while some experienced their epic love story, some hearts were broken. Whether you felt loved or you got your heart broken, the good news is that you learnt your true position in your partner’s life. While a heartbroken boyfriend/girlfriend may not have remedies for heartbreaks under the law, a heartbroken fiancé/fiancée is protected under the law.
This is because a fiancé/fiancée relationship is one which there has been a promise to marry – engagement, and both parties agreed to be married at a later date.

A breach of this relationship may take one of two forms:

1. Non-performance – this is when one party fails/refuses to go ahead with the turn up, and marry the other. For instance, standing up your bride on the alter is a breach.
2. Anticipatory breach – here, the defaulting party either out rightly announces their intention to discontinue with the agreement to marry, or does an act that puts it out of his power to perform his obligation, like marrying another.

While adultery is one of the facts upon which a spouse can petition for divorce under section 15 (2)(b) of the Matrimonial Causes Act, that’s as far as it goes. Infidelity, unfaithfulness or promiscuity is arguably not a ground for calling off an engagement in itself. However, depending on circumstances, a heartbroken partner maybe able to justify the break off of the engagement on question of morality of the partner who cheated.

Last words –
The law affects relationships in Nigeria more than most persons know. We have addressed most of these in our previous articles dealing with how the law and relationships interact. They make an interesting read too.

It is also necessary to add that when it comes to sexual relations on Valentine’s day, the law on rape is still unharmed. In effect, forcing one’s way on a lady without her consent (whether in the heat of the day or not) is still an offense.

Happy Valentine’s Day from all of us at LAWgically Speaking Nigeria.

No, by Nigerian Law, a police report is no longer needed before a gunshot victim can be treated.

That is the simple and straightforward answer to the question posed by the heading of this write up. The law has since changed and presently, by law, no hospital is expected to refuse or delay the treatment of a gunshot wound victim on the ground that a police report should be gotten first.

In 2017 the Compulsory Treatment and Care for Gunshot Victims Act was enacted and this law is the game changer. Before the making of this law, it was the common practice that persons who had gunshot injuries were refused treatment by hospitals until a police report was gotten. This practice had many disadvantages though it was one carried out by the hospitals to save their own skin.

What did the Compulsory Treatment and Care for Gunshot Victims Act change and what are its key provisions?

Section 1 of the Act is to the effect that-

Every public or private Hospital in Nigeria is to immediately accept and adequately treat a person with a gunshot wound with or without a police clearance.

Interestingly too, Section 2(1) now places a responsibility on every citizen (and even Security personnel) to offer assistance to gunshot victims.  To quell fears, such volunteers that assist a gunshot victim are offered protection from unnecessary and embarrassing interrogation by Section 8 of the Act.

Furthermore, Section 2 (2)(a) of the Act also provides to the effect that a person with gunshot wounds is to be immediately received and adequately treated at any hospital with or without initial monetary deposit. This clearly means that every hospital is mandatorily required to treat victims of gunshot wounds even when no initial monetary deposit is made for the treatment. In addition, the gunshot victim is not to be treated in a degrading, inhumane manner or tortured by the Police and other security agents – Section 2(2)(b) of the Act.

Despite the fact that by Section 1 of the Act, all hospitals are now mandatorily required to accept and adequately treat gunshot victims, the Act goes on further to place a responsibility on the hospital that has received and is treating a gunshot victim.

Consequently, by Section 3(1) of the Act, where a hospital receives a gunshot victim for treatment, the hospital is duty bound to make a report of this fact to the nearest police station within 2 Hours of commencing the treatment. Failure to make this report, is a crime and the Hospital if found guilty will be made to pay a fine of N100,000 and the Doctor involved risks jail term of six months or a fine of N100,000.

Section 11 is also very important, permit me to quote it;

Any Person or authority including any police officer, other security agent or hospital who stands by and fails to perform his duty under this Act which results in the unnecessary-death of any person with gunshot wounds commits an offence and is liable on conviction to a fine of N500,000.00 or imprisonment for a term of five years or both.

The combined effect of these sections can be summarized as follows-

• the law does not stop public or private hospitals from receiving and treating gunshot victims until a police report is gotten. Rather, the law now makes it mandatory for all hospitals (whether public to private) to treat gunshot victims even without a police report.
• Once a hospital receives a gunshot victim, it is to report the fact that it has received and is treating a gunshot victim to the nearest Police Station within two hours. Failure to do this is an offence.
• Failure to perform the duties stated in the Act which results in the death of a gunshot victim is an offence.

Hope this article has given you substantial information on the subject discussed. We will be glad to offer any further clarifications that may be needed.

Thank you

Nkobowo Nkobowo BL

As Usual, we have taken care to ensure the information above is correct but it is only provided for general information purposes and does not amount to legal advice or soliciting. This information is not intended to substitute the services of a lawyer, if you need legal advice, we advise that you consult your lawyer for your specific needs and peculiar circumstances. For any further information, you could send us a mail via contact@ls-ng.com

In this piece we will be dealing with the effect of failing to honor a court’s invitation or summons in Nigeria.

What if I get a Court Summons?

Let’s paint the scenario briefly. So, you are relaxing on your cozy chair in your living room after the day’s activities, and you hear a knock on the door. You aren’t expecting any visitor. However you sluggishly get the door only to be greeted by a stony faced man with a document for you from the Court. “I have not taken any one to Court in my life nor has any one done same to me” you blurt out in astonishment.

You are now torn between attending Court on the basis of that document or staying away from Court since you are convinced that you have no business to be there. Kindly note that the situation described here is not one where you are arrested and ‘charged’ to Court for an alleged offence.

That said, relax as we aid you to reach a plausible decision before the D-day.

First allow me to get you acquainted with what that court document is. Depending on two determinants, that document could either be –

1. a witness summons or
2. a subpoena.

One of such determinants is the Court that issues the document. If the document was issued by a Superior Court such as the High Court, Court of Appeal or the Supreme Court, it would be either a witness summons or a subpoena.

On the other hand, where the document was issued by an Inferior court such as the Magistrate or District Court, it would be a witness summons. This is because, an inferior court cannot issue a subpoena.

For the second determinant, the document would be a witness summons if the individual for whom it is issued is a party or witness in a case that is pending before the Court. The document would however be a subpoena if the individual who is ordered to attend court is not a party or witness in the case pending before the Court, but the Court has reasons to believe that such individual will aid in the just determination of the case before it.

Now that it has been established that the Court document would be either a witness summons or a subpoena, what happens if you choose to ignore it?

Where a witness summons is issued for an individual to come and testify in court as regards a matter, and he or she fails to attend court on the specified date, the individual will be foreclosed (i.e prevented from giving evidence on any further date) in relation to the matter.

A stricter punishment awaits an individual who disobeys when subpoenaed to give evidence in Court or tender documents. Such disobedience of a Court order is a grievous offence which usually attracts sanction from court. Contempt proceedings (a form of criminal proceeding) may be instituted against the defaulter for disobeying the subpoena and if found guilty will liable to being punishment. Also, a warrant of arrest maybe issued to secure the defaulter’s attendance in court.

I am certain that by now you would have made up your mind on the right step to take in relation to that Court document. Try not to run foul of the law. It is your duty to answer when called, summoned or invited by the Court.

What if I am a Defendant in a case and I refuse to go to Court

If you have been sued in a case that is pending before the Court, it is important that you go to Court and get the services of a Lawyer to represent you. Why is this important? If as a Defendant, you refuse to attend Court and defend the case pending against you, the Court can give judgment against you even in your absence. This is called a default judgment and it is valid. This default Judgment can be enforced against you.

Thank you for reading.

Written By Queen Ukpo BL

In case, you enjoyed this piece, you could read any other of our ‘What if’ pieces here –

What If I issued a Dud or Bounced Cheque in Nigeria?

What if I Only Assisted in Planning The Crime…Am I Guilty?

Every effort has been made to ensure the accuracy of this publication at the time it was written. However, this publication is not intended to serve as legal advice, solicit for briefs or suggest a guaranteed outcome as individual situations will differ and the law may change from time to time. Readers considering legal action or needing legal support should consult with a lawyer to get proper advice affecting their specific circumstance or set of facts. For further information on the contents of our site and related topics, please send us an email via contact@ls-ng.com

In this article, we will be considering the issue of self-defense in Nigeria (especially as contained in the Constitution and other laws). Have you ever wondered – what if I had a pocket knife on me and got attacked and used it in self defence causing the attacker’s death. Would I be prosecuted?

Let’s make use of a hypothetical scenario. On Thursday last week, Odigie, accompanied his Dad to his business location -the abattoir. Odigie carried Fifty-Thousand naira (50,000) in a small bag. The bag was fastened to his waist and he planned to take it to the Bank later in the day. Unknown to him, he was monitored and followed by a hooligan right from home who saw him putting the money into the bag. This hooligan loitered outside the abattoir house waiting for an opportunity to accost Odigie. After a while, Odigie decided to leave the abattoir and get to the bank to deposit the money. When he came out of the abattoir, the hooligan bounced on him and challenged Odigie. He brandished weapons to threaten him into dropping the money with him or face his waterloo. Odigie happens to be of a stubborn nature, so he refused and struggled with the hooligan in a bid to free himself from the attack. All his struggles to escape proved abortive and having noticed, the hooligan became frustrated and was ready to injure and stab Odigie with the weapons in his possession. As a way of defence, Odigie quickly pulled out his pocket knife and stabbed his attacker. The hooligan as a result of the cut ran out of blood, lost consciousness and afterwards gave up the ghost. The question is did Odigie act in self Defense within the bounds of the law?

What is Self Defence?

Firstly, it is of utmost importance to give a succinct definition of what self defence as a principle is. Self defence is the use of force to protect oneself, one’s family or one’s property from real or threatened attack. In other words, it is the act of defending oneself against threatened injury. It is the right to protect oneself or one’s family from immediately threatened harm.

Self defence is a constitutionally recognized exception to the right to life enshrined in the 1999 constitution of the Federal Republic of Nigeria. Therefore, Section 33(2)(a) provides as follows: “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…”.

Self defence is also provided for under the Criminal code and the Penal code which applies to the Southern and Northern parts of Nigeria respectively. It is also provided for in the Criminal Law of Lagos State. Consequently, a person who is charged with murder and who successfully proves in Court that he acted in self defence as allowed by the Law, will be discharged and acquitted. In other words, He/She will be set free to go. In the case of Uwaekweghinya v State (2005) 9 NWLR (pt. 930)27, the Supreme Court said that ‘where a person kills another in defence of himself, such a killing is excused, and it does not amount to manslaughter under the criminal code or culpable homicide not punishable with death under the penal code’.

In any case in Court where the plea of self defence is raised, it will always be subjected to scrutiny and Court will decide whether the plea applies to the case at hand. As already mentioned, the right to self defence also provided for in section 32(3) of the Criminal Code (applicable in the southern states of Nigeria) which states as follows: ”

A person is not criminally responsible for an act or omission if he does or omits to do the act… when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence”.

A similar provision also exists in Section 59 of the penal code applicable in the Northern states of Nigeria and reads as follows:

“Nothing is an offence of which is done in the lawful exercise of the right to private defence”.

The law recognizes that everyone has the propensity to react to dangerous situations in a way to ensure self-preservation. This is clearly why the right to self defence exists. However there is need to ensure equilibrium, this is why the law also lays down certain limitations (which are better called exceptions) to one’s exercise of this right of self defence. This is paramount so as to prevent the society from degenerating into a state of nature.

Section 286 of the Nigerian criminal code states some of these limitations. One significant limitation placed on the exercise of self defence is the requirement that a person who is unlawfully assaulted should use only such force as is reasonably necessary to make an effectual defence against the assault. This means the force used to repel the attack should be proportionate to that used by the attacker.

This can be seen in the first paragraph of section 286 of the Nigerian Criminal code which provides that: “when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant and is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended and is not such as is likely to cause death or grievous bodily harm’. What harm or force is reasonably necessary is invariably a question of fact. In a case of brutal assault where a person’s life is in danger, such force may extend to the causing of death of the assailant’

The second paragraph of same Section 286 of the criminal code therefore provide as follows- “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 any such force to the assailant as is necessary for defence even though such force may cause death or grievous harm”. See also the similar provisions of Section 193 and 194 of the Criminal Law of Lagos State

In Akpan v State, the Supreme Court in interpreting section 286 of the Nigerian Criminal code stated as follows: 

‘when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force on the assailant as is reasonably necessary to make effectual defence against the assault. The force which may be used in such circumstances must not be intended, and should not be such as is likely to cause 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 any such force to the assailant as is necessary for defence even though such force may cause death or grievous harm’.

Proving Self Defence in Court – What must an accused person show?

Furthermore, for the plea of self defence to be successful in Court, the following must be in place and must be proved with credible evidence;

• the accused person must be free from fault in bringing about the encounter or attack,
• there must be present an impending peril to life or of great bodily harm either real or apparent as to create an honest belief of an existing necessity,
• there must be no safe or reasonable mode of escape by retreat,
• there must have been a necessity for taking life.

See Liya v state (1998) 2 NWLR (pt 538) 397 ; Omeregie v state (2008) 18 NWLR (pt 1119) 464 ; Kwaghshir v state (1995) 3 NWLR (pt 386) 651.

In addition, it is imperative to bring to mention that the plea of self defence is only available to an accused person where he proves that at the time of the killing, he was in reasonable apprehension of death or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve himself from the danger. The force used by the accused person must be proportionate to the force used or immediately threatened against him and reasonable in the circumstances in which it was used. If however the Assailant’s threat is disproportionate to the force used by the accused person in repelling it then self Defence cannot avail the accused person.

Also, there must be reasonable grounds for the accused person to believe that the only way he could escape death or grievous bodily harm to himself was to kill the assailant. Whether the defence of self defence will succeed depends on the facts of each case. That is why we advise that a lawyer’s advice be gotten in circumstances of this nature.

From the foregoing, it is our considered opinion that in our hypothetical scenario above, Odigie acted in self defence and would not be convicted going by the facts stated in the scenario.

Written by Oluboyo Taiwo LLB (in view)

For further reading

See Nwuzoke v State (1988) 1 NWLR (pt 72) 529; Omeregie v State (2008) 18 NWLR (pt 1119) 464.

Every effort has been made to ensure the accuracy of this publication at the time it was written. However, this publication is not intended to serve as legal advice, solicit for briefs or suggest a guaranteed outcome as individual situations will differ and the law may change from time to time. Readers considering legal action or needing legal support should consult with a lawyer to get proper advice affecting their specific circumstance or set of facts. For further information on the contents of our site and related topics, please send us an email via contact@ls-ng.com

Today, we will be considering the rights of the Nigerian Consumers as protected under the Federal Competition and Consumer Protection Act, 2018, (the FCCP Act). I bet some of us are unaware of some of the provisions of this law which is almost always applicable in the various purchases we carry out.

Who is a Consumer?

To put this discussion into proper perspective, we will start by defining who a “consumer” is. A consumer is an individual or organization who purchases and uses goods and services. Put differently, the activity of purchasing and using goods makes you or any other person or organization a consumer.

Some very important rights granted to all Nigerian consumers by the Federal Competition and Consumer Protection Act, 2018, are as follows;

1. Right to be Notified of Second hand goods/products

As a consumer, you have the right to know whether or not the goods you are about to buy are second hand or re-made goods. The law requires that businesses that sell or supply second hand products commonly known as “okirika” or “fairly used” must expressly state that fact to its consumers. Put differently, these businesses are to apply ‘conspicuous notice’ (that is a label or marking) on the goods or product stating that they have been re-used or are fairly used products. See Section 117 of the FCCP Act

2. Right to Return Unsafe and Defective Goods

The law gives you as a consumer the right to return unsafe or defective goods and get a full refund of the money you paid for the goods or product. This right is given for specific circumstances and they are stated in the FCCP Act. In both circumstances stated in the Act, the customer can return the goods within a reasonable time after they have been delivered to him. These circumstances are;

1. When the customer did not have the opportunity examine or look at the goods before the goods were delivered to him/her. The reasons for the return of the goods may include; the goods are not according to a prior description or sample or that they are not of the type or quality expected. This is especially important for goods ordered from e-commerce websites.
2. Where the goods were to be used for a particular purpose and the seller or supplier was informed of this but upon delivery it is discovered that the goods are not suitable for the intended purpose.

The specific circumstances stated in the Act do not affect validity of other laws where you have a similar right of disclosure.

3. Right to be given information about a product in plain and understandable language:

As a consumer, you are entitled to be given information about products or services in a manner prescribed by the law, and where the law does not provide a prescribed manner, you are to be given information about a product or service in a plain language. Plain language simply means language that an ordinary consumer of the class of persons for which such notice is for, is reasonably expected to understand. Section 114 of the FCCP Act

4. Right to cancel advance reservation, booking or order:

As a consumer, the law grants you the right to cancel advance bookings, reservations and orders made for goods/services. However, the law equally provides that as a consumer, you will have to pay a reasonable amount as charge for such cancellations. Section 120 FCCP Act.

5. Right to be given receipt or sale records: 

it is your right as a consumer to demand for and get a receipt; which is simply a written record of the transaction involving the sale of the product or service. This explains why you should always request for any purchase made by you or any service rendered to you for which you have paid some money. See Section 118 of the FCCP Act

6. Right to disclosure of price of goods and services:

By the FCCP Act, businesses (involved in producing or trading goods and services) are not to display goods and services for sale without attaching the price for such goods and services. Furthermore, consumers are not to pay a price more than what has been displayed for a particular good or service. Those of us who buy from online stores may want to hold on to this particular right. See Section 115 of the FCCP Act

Queen Ukpo BL

The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail via contact@ls-ng.com.

Ever wondered if the law protects your good name or reputation? Let’s imagine a situation where you know of a person who deliberately transmits or tells concocted lies with the intention of ‘rubbishing’ you before people. Can the law help you in such a situation?

The answer to the above question is an emphatic ‘yes”. That is to say the law actually protects your good name (we will call it – your reputation). In fact, although the law gives every Nigerian the Constitutional Right of freedom of expression, the law goes further to provide a balance to this Constitutional right. This is to prevent persons from ruining the reputation of others under the disguise of free speech or freedom of expression.

That said, the realm of the law that offers protection to your reputation is the ‘law on Defamation’. In few words; Defamation is any unjustified expression that destroys the reputation of another person in the eyes of right thinking members of the society. Just so we clear the air, don’t forget that where someone has no good reputation, there is nothing the law can protect for him. After all, no one can damage already damaged goods. Agreed?

The law on Defamation sure has its technicalities so we will discuss it here in general terms. Where you are faced with a situation like the one described in this article, do well to contact a lawyer so that the specifics of your individual case are well attended to. With that said, we resume.

Like we stated previously, defamation is any unjustified expression or statement by another person that destroys your reputation in the eyes of right thinking members of the society. The defamatory statement may have been in writing or it may have been made orally. Where it is in writing or produced in any hard copy form, it is called ‘Libel’. On the other hand; where the defamatory statement is made by word of mouth, it is called ‘slander’.

Generally, the mere fact that someone publishes a defamatory writing about you (libel) is enough for the Court to award some monetary compensation in your favor. This means you are not generally expected to show or prove how the defamatory publication or writing made you suffer any loss (put technically; libel is actionable per se). Don’t throw the party yet please, because getting compensation in a libel suit still depends on how well the necessary facts are proved in Court and if your case succeeds at all after the Court’s evaluation. These necessary facts in a libel suit usually include; the fact that the written/published statement is in fact defamatory (or has a defamatory imputation), the statement referred to you in particular, the statement was made public or published.

Where the defamation is done orally or using gestures (slander), it is a general rule that the hurt or damage caused by the slanderous words must be proved before you can claim monetary compensation from the Court (put technically; slander is not actionable per se) This is not always the case though (put differently there are exceptions to this general rule).

We also must mention that apart from the fact that you can sue anyone who defames your good name, defamation is also a criminal offense– Section 373 of the Criminal Code Act. This means that a person who defames another person can be arrested and charged to Court. Where this happens if such a person is found guilty, he or she can be sent off to prison.

Interestingly too, in this age and time of social media, it is also an offence to intentionally share false information in other to cause annoyance, danger, hatred, criminal intimidation, or needless anxiety to another person. If charged and convicted of this offence, the penalty is fine of not more than 7 million Naira or imprisonment of not more than three years or both fine and imprisonment-Section 24 of the Cybercrimes Act of 2015. We concede that there are no statistics to measure the implementation of this law but ignorance of the law is not an excuse. Please be guided.

Also Know that;

Generally, not every vulgar word or insult or annoying statement amounts to defamation or Slander. For example uncouth words said during a heated argument or quarrel are generally not considered to amount to defamation. Note that this is a general rule which means it can be different in some instances. That’s why we mentioned consulting a lawyer much earlier.

Even Companies can sue for Defamation. Surprised? Better don’t be. The law recognizes that defamatory information about can company can ruin its profits and customer goodwill.

Also there are many defenses available when one sues another for Defamation. Some examples are the defences of innocent dissemination and justification or truth.

What if, instead of attempting to ruin your good name by writing or talking, your ‘attacker’ takes a different approach. Let’s imagine that, the person (the attacker) threatens to release or post a video or picture in which you can be seeing doing ‘everything not meant for the public eye’ and demands for money in exchange for not releasing the video/picture and damaging/humiliating your good name. Can the Law help the victim of such a black mail? We will deal with this a subsequent article. Keep your fingers crossed and your eyes ready. Thanks for reading

N. F. Nkobowo BL

The information above is only provided for general information purposes and does not amount to legal advice or soliciting. Also, No Lawyer-client relationship has been created and neither can such a relationship be implied. This information is not intended to substitute the services of a lawyer, if you need legal advice, kindly consult a lawyer for your specific needs. For any further information, you could send us a mail via contact@ls-ng.com