Engineering Law 2012/2013 PDF

Engineering Law 2012/2013 J.O.A. Akintayo TOPIC 1 SOURCES OF NIGERIAN LAW Definition of law According to Lloyd, “much juristic ink has flowed in an endeavour...

Engineering Law 2012/2013 J.O.A. Akintayo TOPIC 1 SOURCES OF NIGERIAN LAW Definition of law According to Lloyd, “much juristic ink has flowed in an endeavour to provide a universally acceptable definition of law but with little sign of attaining that objective.” We do not intend to highlight these attempts in terms of the definitions of law proffered by writers and jurists. The law of a given community may be described as the body of rules regulating human conduct regarded as obligatory or binding by its members. (Elias, T.O. The Nature of African Customary Law, Manchester, Manchester Univ. Press, 1956) Practice of Engineering The practice of engineering as defined by the Engineers (Registration etc) Act, Cap. E 11, Laws of the Federation of Nigeria 2004 to include “any professional service or creative work requiring the application of special knowledge of mathematics, physics and engineering in form of consultation, invention, discovery, valuation, research and teaching in recognised engineering institutions, planning, operation, maintenance supervision of construction and installation involving investigating, advising, operating, evaluating, measuring, planning, designing, specifying, laying and directing, constructing, commissioning, inspecting or testing in connection with any public or private utilities, structures, buildings, machines, equipment, processes works or projects”. Scope of Engineering Law Engineering Law may be described as the branch of the law relating to the practice of engineering. The subject matter of Engineering law is very broad. A contract relating to an engineering activity or undertaking or one that involves an engineer in his capacity as such comes within the scope of the subject. In addition to contract, torts or civil law wrongs committed in the course of an engineering activity is also captured by Engineering law. The relationship between an engineer and his employer may also come within the scope of Engineering law including how the issue of invention and intellectual property rights. The law regulating the practice of engineering in Engineering is also an integral part of the subject. Sources of Nigerian Law The objective of the discussion on the Sources of Nigerian Law is to identify the sources that are relevant to Engineering Law among the sources of Nigerian law. This discussion will also expose an engineer in training to the different aspects of law in force in the Nigerian legal system. O.F. Robinson in his book, The Sources of Roman Law: Problems and Methods for Ancient Historians, said: A source of law in the lawyer’s sense is that to which someone- whether a legislator, jurist, law agent, or private individual goes to find out what the law is. The primary source of modern western law is statute. Indeed, a source of law is commonly both in Roman and in modern law, something in writing, but it need not be. (London & New York, Routledge, 1997, p. 25) By Nigerian law we mean the entire body of rules that are regarded as binding within the geographical entity known as Nigeria. The expression “Sources of Nigeria law” is capable of different interpretations. It relates partly to the origin or place from which a legal rule forms part of the body of rules accepted as binding in Nigeria. We will be restricted to the legal sources. Our focus here is to highlight the principal or main sources of Nigerian law. It must however be stressed that not all the sources of Nigerian law are particularly relevant to Engineering Law. Though the Sources of Nigerian law are (1) the Constitution (2) Nigerian Legislation (3) Nigerian Case Law (Judicial Precedents) (4) Customary law (5) Sharia/Islamic Law; and (6) Received English Law, the sources of Engineering Law in Nigeria generally exclude Customary law and Sharia/Islamic law. 1 Engineering Law 2012/2013 J.O.A. Akintayo iii. The Mischief Rule: This is also known as the Rule in Heydon’s case of interpretation by reference to the statutory purpose. Where there is ambiguity, vagueness or generally in a statute and the court intends to resolve this problem the statute will be considered as a whole to discover the original purpose which the legislature had in mind for raising it and interpret the statute in a way or manner that it will lead to the achievement of the original purpose. The court looks at the mischief the statute was intended to combat and interpret it in such a way that it will suppress the mischief or vice and advance the legislative remedy. Savannah Bank v. Ajilo ; I.B.W.A. v. Imano (Nig.) Ltd.. iv. Progress towards a Unitary Approach: This is a combination of the above approaches. Words are read in their entire context in their grammatical and ordinary and ordinary sense harmoniously with the scheme of the legislation, the object of the law and the intention of Parliament (the Legislature). Professor Driedger popularised this approach. See Mausell v. Olins A.C. 393. 3. Nigerian Case Law/Judicial Precedents A basic though unwritten principle of Nigerian law is that Judges should stand by their decisions and by those of their colleagues. The doctrine of judicial precedents or stare decisis is a system by which courts follow previous decisions when deciding cases. A precedent is a judgment cited as authority for making a decision in a case. Judicial precedent or case law consists of law found in judicial decisions. It is the principle consists of law found in judicial decisions. It is the principle of law on which a judicial decision is based. Within the context of Nigeria, Nigerian case law consists of the decisions of superior courts in the Nigerian legal system. The rules, which emerge from decisions of the courts, or rules of law made by the Judges while interpreting statutes in cases being decided by them constitute judicial precedents. Precedent promotes certainly in the law. Other advantages are possibility of growth, wealth of detailed rules and practicality. Its disadvantages include rigidity bulk and complexity and slowness of growth. This is because it depends on accident of litigation. Precedent may either be binding (authoritative) or persuasive precedent. Binding precedents are decisions that must be followed irrespective of what the Judge applying them thinks about their wisdom and correctness. Only the ratio decidendi (literally the reasons for the decision), that is, the underlying principle of law established in a case, is binding. A persuasive precedent is one, which is considered and may be followed when the Judge sitting over an instant case, approves of the reasoning in the case since there is no obligation to follow it. The obiter dicta (passing comments or remarks) of a decision may have persuasive effect though they do not form part of the ratio. Only pronouncement of law in relation to the material facts before a judge constitute ratio and hence a precedent. A Judge may refuse to follow a previous decision if that decision has been given per incuriam i.e. the court giving the omitted to consider some relevant statutory provisions or some decisions that were binding on it. A Judge may also avoid a precedent by distinguishing the instant case from the precedent i.e. identifying some material difference between the facts of the cases and using this exercise as basis for departing from the controlling influence of the precedent. This is only possible where the two cases are distinguishable. The operation of the doctrine of judicial precedents depends on the existence of a well-structured hierarchy of law and an up–to–date system of law reporting. For instance, the decisions of the Supreme Court of Nigeria, the highest court in Nigeria, constitute binding precedents to all lower courts. The decision of a High Court is binding on the Magistrates Courts. It must however be pointed out that the decisions of courts of co-ordinate jurisdiction e.g. Federal High Court and State High Courts or of a lower court to a higher court only constitute persuasive precedent. The decisions of courts outside the Nigerian legal system no matter how eminent are not binding on any court in 5 Engineering Law 2012/2013 J.O.A. Akintayo nilly and whether self-help was available to the appellants in recovering levies. The Supreme Court held that the alleged custom compelling the respondent to join the age group association was subject to the provisions of the Constitution relating to freedom of association and of religion. The Court said that the respondent was entitled to hold the tenets of his religion, thought and conscience, which prohibit him from joining the age grade and that any contrary custom is unconstitutional, null and void. (iii) Public Policy Test: This test is contained in the Evidence Act 2011. The Act provides that a custom shall not be enforced if it is contrary to public policy. Courts hardly make reference to this test while rejecting a rule of customary law. Based on the public policy test however, a custom permitting two women to get “married” to each other was denied enforcement in Meribe v. Egbu. In Cole v. Akinyele the rules of legitimation under the Legitimacy Act and customary law were considered. The rule of customary law was rejected on the ground of being contrary to public policy. This decision has been severely criticised. 6. Sharia/Islamic Law Sharia/Islamic Law is sometimes considered as part of customary law. There are however some distinguishing factors. First, Sharia Law is not indigenous to Nigeria as it was introduced as part of Islam. Secondly, Islamic Law is written. Islamic Law is administered as a variant of customary law particularly in the Southern States while the Northern States it operates as a distinct system. The sources of Islamic law include (i) the Holy Quran (ii) the Sunna – the facts of the life of the Prophet and his sayings (iii) Ijma – the consensus of ‘Islamic’ scholars; and (iv) Qujas – analogical reasoning from the Quran and Sunna. The version of Islamic law received into the Northern States is that of the Maliki School. Though the Sharia is an all-embracing system of law, it is predominant in matters regulated by the personal law like marriage, guardianship and inheritance. The Sharia is administered by Alkalis in the Area courts, Kadis in the Sharia Court of Appeal and Justices of the Supreme Court and the Court of Appeal and Justices of the Supreme Court and the Court of Appeal learned in Islamic Law. Islamic law as it operates in the Northern States is provisions of the Constitution. Conclusion It must be realised that not all the above-mentioned sources form part of the sources of particular area of Nigerian Law. For instance, both Customary Law and Islamic Law cannot be regarded as forming part of Engineering Law in Nigeria, because they do not have any significant contribution to the body of contemporary legal rules in this area. Practice Session Identify the sources of Nigerian law relevant to Engineering law? How relevant are trade practices and customs regulating the conduct of traditional engineering practitioners like builders, blacksmiths, goldsmiths etc, to modern Engineering law? 9 Engineering Law 2012/2013 J.O.A. Akintayo High Court of the F.C.T. may exercise both original and appellate/supervisory jurisdiction. Like the F.C.T. the Court is duly constituted if it consists of at least one Judge. E. The Sharia Court of Appeal of the Federal Capital Territory The S.C.A. of the F.C.T. is established by S.260(1) of the 1999 Constitution. The consists of a Grand Kadi of the S.C.A. and such number of Kadis of the S.C.A as may be prescribed by on Act of the National Assembly. The President makes the appointment of the Grand Kadi in identical terms as the Chief Judges of the F.H.C. and the High Court of the F.C.T. The President on the recommendation of the N.J.C. (S.261 (2) appoints the Kadis. The appointment qualifications of the Grand Kadi and Kadis of the S.C.A. are provided for in S.261 (3). To be qualified one must (a) be a legal practitioner with 10 years post-call experience and must have contained a recognised qualification in Islamic law from an institution approved by the N.J.C. and held the qualification for a period of not less than 12 years. A person appointed under the latter category must in addition have considerable experience in the practice of Islamic law or be a distinguished scholar of Islamic law. The S.C.A. has only appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law. These include any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage, family relationship and guardianship of an infant; where all the parties to the proceedings are Moslems any question related to the above, any question of Islamic personal law regarding a Wakf, gift, will or succession where the endower, donor, testator or deceased person is a Moslem, any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Moslem or the maintenance or the guardianship of a Moslem who is physically or mentally infirm; or where all the parties to the proceedings, being Moslems, have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question (S.262). The National Assembly may confer additional jurisdiction on the S.C.A of the F.C.T.. (S.262). The Court is duly constituted if it consists of at least three Kadis of the Court. F. The Customary Court of Appeal of the Federal Capital Territory Section 265 (1) of the 1999 Constitution establishes the C.C.A. of the F.C.T. The Court consists of a President of the C.C.A. and such number of Judges of the C.C.A. as may be prescribed by an Act of the National Assembly. The provisions on appointment of the President of the CCA and the Judges of the CCA in terms of procedure and organs responsible therefore are identical with the provisions on the S.C.A. of the F.C.T. highlighted above. (S.266 (1) and (2). A person shall not be qualified to hold office of President or a Judge of the CCA of the FCT, unless – (a) he is a legal practitioner in Nigeria with 10 years post-call experience, and in the opinion of the N.J.C. he has considerable knowledge and experience in the practice of Customary law. (S.266 (3). The National Assembly is empowered to prescribe additional qualifications. The C.C.A. of the FCT shall, in addition to such other jurisdiction is may be conferred upon it by Act of the National Assembly, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law (S.267). Three Judges of the Court are to sit to hear and determine cases before the Court (S.268). 13  Engineering Law 2012/2013 J.O.A. Akintayo (b) Express Contract/Implied Contract (c) Bilateral/Unilateral Contract (d) Executed/Executory Contract Formal Contract/Simple Contract A formal contract is also know as a specialty contract, a contract under seal or a deed. A deed is a document that is signed, sealed and delivered. A simple contract is any contract made otherwise than by deed and is sometimes called a parol contract. It may be oral, in writing or by conduct of the parties. Writing is in many cases unnecessary, and in others it is only used because it is required by some statutes as condition precedent to proof in court. Distinctions Between Specialty Contract and Simple Contract A contract under seal requires no consideration or return for a promise, to support it. Hence, although a gratuitous promise is not legal binding, a similar promise, if made by deed is binding upon the promisor. A contract under seal will ‘merge’ in itself that is, swallow up or supersede, a simple contract made between the same parties and containing the same terms. Statements made in a deed are absolutely conclusive against the maker of them, unless duress or fraud is proved. No evidence is admissible to deny or explain them, unless there is what is called a “Intent ambiguity”. A right of action arising out of a contract under seal is not barred for 12 years. The period allowed for taking action in the case of a simple contract is six years only. The computation of the limitation period begins from the time an actionable breach occurs. This rule contained in the Limitation Act and the Limitation Laws of various States is to ensure that actions are not perpetually maintainable. Note that when a deed is delivered subject to a condition, the deed is not to take effect if the condition is not fulfilled it is called an escrow. This conditional delivery is made to a person who is a party to the deed. Express Contract/Implied Contract A contract is express when the terms are stated clearly in words either orally or in writing. An implied contract on the other hand is one in which the terms are not clearly stated. Here agreement is manifested in conduct. Bilateral Contract/Unilateral Conduct A bilateral contract is one created by mutual promises from both parties. There is an exchange of promises. Where there is actual performance in consequence of a promise, the contract is unilateral: See the case of Carlill v. Carbonic Smoke Ball Company Ltd. (1893). Executed Contract and Executory Contract An executed contract is one in which the object of the contract is at once performed, while an executory contract is one in which one of the parties binds himself to do, or not to do, a given thing at a future time. Formation of Contract For a contract to come into existence the following essentials must be present: (1) Agreement offer and Acceptance); (2) Consideration; (3) Contractual Capacity (4) Intention to enter into legal relations (5) Compliance with the form prescribed by law if any (Formality) (6) Legality and possibility as regards the subject matter (7) Absence of vitiating factors i.e. circumstance which might show that the agreement entered into was not genuine. II AGREEMENT: (OFFER ARE ACCEPTANCE) 17  Engineering Law 2012/2013 J.O.A. Akintayo Ordinarily a promise. The law of contract is concerned with bargains not mere promises. If A for example promises to copy B’s lecture notes, the law will not allow any remedy if A breaks his promises. But if B promises to give A meal ticket in return so that A’s promise may turn the arrangement into a contract. A’s promise is said to be the consideration for B’s promise ad vice-versa. Consideration consists in interest, benefit, profit, advantage and detriment, loss, disadvantage. Currie v. Misa (1875). Rules as to Consideration 1. Consideration must have some value in the eyes of the law 2. Consideration need not be adequate but it must be sufficient. The law is concerned with the sufficiency of consideration and not its adequacy. 3. Consideration must be legal. A promise to commit a crime is not a real consideration. 4. Consideration must move from the promisee to the promisor Price v. Easton (1833). A party who wishes to enforce a contract must be able to show that he has furnished consideration for the promise of the other party. 5. Consideration may be executory or executed but it must not be past. Executory consideration is a promise given for a promise given for a promise e.g. Akin promises to deliver goods to Bola and Bola promises to pay for them on delivery. There is a binding agreement though performance remains for the future. Executed consideration on the other hand is an act of forbearance given for a promise that is the completed performance of one side of the bargain. Past consideration is when an act is done before the promise which is sought to be enforced is made, that is, promise is subsequent to the act and independent of it. In Roscorla v. Thomas the plaintiff sued the defendant on a warranty as to the soundness of a horse. In his statement of claim, he set out that the defendant had warranted the horse was sound in consideration that he (the plaintiff) had bought it. It was held that the consideration was past and could not support the defendant’s promise. In this case the promise that the horse was sound came after the conclusion of the sale. The act of buying the horse could not therefore constitute the consideration of that promise. Exceptions: (a) Where the act is performed at the express or immplied request of the promisor and the act is such that both parties would normally contemplate payment then the subsequent promise to pay will be regarded as merely fixing the price and part of the same transaction. The law was settled in the case of Lampleigh v. Brathwait (1615). B had killed one Patrick Mahume and had then asked L to do all he could to get a pardon for him from the king. L exerted himself to this end, ‘riding and journeying to and from London and Newmarket’ at his own expense, and B afterwards promised him ₤100 for his trouble. He failed to pay it and L sued him. It was argued that the consideration furnished by L was past, but the court found for the plaintiff on the ground that his services had been procured by the previous of the defendants. (b) A written acknowledgement of a debt barred by statute usually revives the right of action to recover such debt although no new consideration is given for it. S.38 Limitation Law (Lagos State). (c) The Bill of Exchange Act, Cap. B8 L.F.N. 2004 provides that any antecedent debt or liability may be an adequate consideration for a bill of exchange of a cheque. As part of the rule that consideration must have some value note that a promise to perform an existing obligation is not a valuable consideration. In Stilk v. Myrick (1809) a seaman sued for wages alleged to have been earned on a voyage from London to Baltic and back. In the course of the voyage two sailors had deserted, and as the captain, could not find any substitutes, he promised the rest of the crew extra wages if they would work the ship home short-handed. The action failed on the ground of absence of consideration. The court held that the crew were already bound by their contract to meet the normal exigencies of the voyage and were doing no more than their duty in working the ship home. Had they exceeded their duty, or if the course of events, by making the ship unseaworthy, had relieved them from its performance, the case would have been different. Thus in Hartley v. Ponsonby ( 1857) the shortage of labour was so great as to 21  Engineering Law 2012/2013 J.O.A. Akintayo If an infant fraudulently misrepresents his age by deceiving the other party that he is over 21 years, and if on that basis the other party contracts with the infants, the plea of infancy and all the privileges associated with it are still open to the dishonest infant. However, in certain cases, equity will grant relief against the infant by compelling him to restore his ill-gotten gains or to release the deceived party from obligations in law induced by fraud. The position is clear where the infant remains in possession of the goods but where he has parted with the goods, the position is not so certain. If he has sold the goods obtained by fraud he cannot be compelled through personal judgment to pay an equivalent sum out of pocket, For this would amount to enforcing a void contract. As Lord Sumner declared in Leslie v. Sheill (1914) “restitution stopped where repayment began”. However, in Stocks v. Wilson (1913) Lush J. took a contrary view when he held that an infant, who had obtained goods by misrepresenting his age and had later sold them, was accountable for the proceeds of sale. Note that although an infant cannot be bound by a void contract the other party may, however, be bound, if the infant has given consideration and money and goods given by an infant are only recoverable if there has been a total failure of consideration on the other side. Persons of Unsound Mind and Drunken Persons The contract of a person of unsound mind is voidable and not absolutely void. In order that anyone may claim the benefits of repudiation of a contract, which he has entered while in an unsound state of mind, show that his mental condition was known to the other party to the contract at the time of entering into it. During a lucid interval a person of unsound mind has the same capacity of contracting as any other person, and he may also then ratify and confirm any contract entered into while insane. As regards necessaries, he is only bound to pay a reasonable price. A druken person who is in such a condition as not to understand what he is doing is in the same position as to contracts as a person of unsound mind. IV. INTENTION TO CREATE LEGAL RELATIONS Although every contracts is an agreement, there are several agreements which are not contracts. Agreements may be classified into two broad categories: Domestic/Social Agreements and Commercial Agreements. The general rule for domestic agreement is that legal relation is not intended. In Balfour v. Balfour (1919) the defendant was a civil servant stationed in Ceylon. His wife alleged that, while they were both in England on leave and when it had become clear that she could not again accompany him abroad because of her health, he had promised to pay her ₤30 a month as maintenance during the time that they were thus forced to live apart. She sued for breach of this agreement. The English Court of Appeal held that no legal relations had been contemplated and that the wife’s action must fail. There may however be exception to this general rule. In Merritt v. Merritt (1970) the husband left the matrimonial home, which was in the joint names of husband and wife and subject to a building society mortgage, to live with another woman. The H & W met and had a discussion in the H’s car during which the H agreed to pay the wife ₤40 a month out of which she must pay the outstanding mortgage payments on the house. The wife refused to leave the car until the H recorded the agreement in writing and the H wrote and signed a piece of paper which state ‘in consideration of the fact that you will pay all charges in connection with the house… until such time as the mortgage repayment has been completed I will agree to transfer the property in to your sole ownership.’ After the wife had paid off the mortgage the H refused to 25  Engineering Law 2012/2013 J.O.A. Akintayo Cases of Rex Extincta and Res Sua provide us with good examples. In cases of Res Extincta, the subject-matter unknown to the parties is non-existent at the time of the contract. Thus in Conturier v. Haste (1850) a contract entered into for the sale of corn on a ship, which unknown to the parties had been sold by the Master of the ship because of its bad condition before the contract was held to be void for common mistake. Res Sua deals mistake as to title and this may arise when a person buys what he already owns. In Cooper v. Phibbs (1867), a lease obtained by the plaintiff of a fishery which was later discovered to be his own was held over. Also in Abraham v. Chief Oluwa (1944) the plaintiff who mistakenly bought at an auction a piece of land that previously belonged to him was held entitled to recover his money. But apart from cases falling within Res Extincta and Res Sua, the common law rule is that a contract is not void merely because the parties have made the same mistake, however fundamental the mistake may be. This was clearly enunciated in Bell v. Lever Brothers Ltd. (1932). L. who had a controlling interest in the Niger Co. appointing B Managing Director of the latter Co. for 5 years at an annual salary of ₤8,000. After 3 years the services of Bell became redundant owing to the amalgamation of the Niger Co. with a third company, and L. agreed to pay him ₤30,000 as compensation for the loss of his employment. After they had paid this money, they discovered for the first time that B had committed several breaches of duty during his directorship which would have justified his dismissal without compensation. They therefore sued for the recovery of ₤30,000 on the ground inter alia of common mistake, but they failed. The House of Lords held that the circumstances of the case itself disclosed no operative mistake. Mistake as to quality will not generally void a contract especially in the absence of fraud or any warranty. Mistake as to the Nature of the Document Signed Where a party signs a document which turns out to be different from what he intended to sign the signer may be able to plead non est factum i.e. it is not my deed – and thus render the document null and void. The signer to succeed must show:- (i) That he was fraudulently induced to sign; (ii) That the document was fraudulently different from what he thought he was signing; (iii) That he was not negligent. The above can be said to be exception to the general rule that in the absence of fraud or misrepresentation, a person is bound by a writing to which he has put his signature, whether he has read its contents or has chosen to leave them unread L.Estrange v. Graucoub (1934). Effect of Mistake In Equity Where the mistake as to the subject matter is not fundamental as to render the contract void, equity may intervene to grant remedy of relief in the form of rescission, rectification or refuse to order specific performance. Rescission is the right to have the contract set aside. The party claiming this remedy must show that he or she was not at fault in any way. Rectification: The court may order rectification of a document where by mistake the terms of a written document does not represent accurately what the parties orally agreed. This is at the discretion of the court. The court may refuse specific performance if one party has made a mistake which makes it unfair to enforce the contract against him. 2. Misrepresentation A representation is a statement made by one party to another before or at the time of the contract with regard to some existing fact or some past event which is one of the causes that induces the contract. It is an assertion of the truth that a fact exists or existed. It has no bearing on future events or promises. But where 29  Engineering Law 2012/2013 J.O.A. Akintayo (7) A party cannot invoke an exclusion clause where the party is guilty of fundamental breach. Ogwu v. Leventis Motors (1963); Boshali v. Allied Commercial Exporters Ltd. (1959). PRIVITY OF CONTRACT In the law of contract there is a basic rule that a person who is not originally a party to a contract, cannot be bound by its terms, nor can he receive any benefit from it. A contract thus creates rights and obligations only between the parties to it. It is a fundamental principle that only a person who is a party to a contract can sue on it. Tweddle v. Atkinson (1861). In consideration of an intended marriage between the plaintiff and the daughter of William Guy, a contract was made between Guy and the plaintiff’s father, whereby each promised to pay the plaintiff a sum of money. Guy failed to do so, and the plaintiff sued his executors. His action was dismissed because of the established rule that no stranger to the consideration can take advantage of a contract, although made for his benefits. There are however exceptions to this rule. They include (i) Assignment (ii) Novation (iii) Restrictive covenants on land (iv) Contract of Insurance (v) Trusts (vi) Agency (vii) Leases (viii) Ships under charter party (ix) Restrictions upon price. DISCHARGE OF CONTRACT Discharge of contract means the extinction of all contractual obligation and corresponding rights under a contract. (1) Discharge by Agreement: A contract formed by agreement may also be discharged by agreement. Where neither party has performed his obligation under the contract a mere agreement will be the release of the other from his promise (Executory Contracts). Where the contract on the other hand is executed i.e. one party has performed. The other party who has not performed but wishing to be released must provide the consideration in return for the other’s promise of release. This method of discharge by agreement is known as “accord and satisfaction”. ‘Accord’ is the new agreement to discharge the contract and “Satisfaction” is the consideration provided by the party seeking the release. One party may be deed unilaterally release the other party from his obligation. Novation is a means of replacing the original contract by a new contract either made by the same parties or made by one of them with a third party. Where the original contract itself contains a term providing that it should be discharged on the happening of a future event or the fulfillment or non-fulfilment of some conditions e.g. “for the duration of the ward. (2) Discharge by Performance: A contract is discharged if both parties have performed their respective undertakings under the contract. If one party tenders performance and this is without good reason rejected by the other party the affect will vary according to whether goods or money had been tendered. Where goods have been tendered in performance of a contract and they are not accepted, the party tendering will be discharged from his obligation. A tender of money not accepted by the creditor does not discharge the debtor and he may pay the sum into court. Chiozie v. UAC Ltd. (1956). (3) Discharge by Lapse of Time: A contract is discharged by lapse of time only where the contract has been entered into for a specific period of time e.g. a contract of employment for one year. (4) Discharge by Breach: Strictly speaking a contract is not discharge by a breach, but a breach gives the innocent party a right to treat the contract as discharged if he wishes to. Every breach entitles the innocent party to claim damages from the guilty party. Not every breach however entitles the innocent party to treat the contract as discharge. (5) Discharge of a Contract by Subsequent impossibility: If a person contracts to do something which can be done but he cannot do it the contract will be valid and he will have to accept the legal consequences 33 Engineering Law 2012/2013 J.O.A. Akintayo (ii) The Organisational/Integration Test: This is also known as the Business Test. This establishes that work constituting an integral part of the business indicates a contract of service. This test has proved useful where the servant exercises professional skill including hospital cases. In Cassidy v. Ministry of Health (1951), the plaintiff was operated at the defendants’ hospital by one of their whole-time medical officers. As a result of negligence in the course of the post-operational treatment the plaintiff’s hand was rendered useless and the defendants were held liable. The English Court of Appeal held that hospital authorities are liable for negligence in the course of their professional duties by their permanent staff, radiographers, resident house surgeons and physicians anaesthetists, pharmacists and nurses who are employed under a contract of service. If the patient selects and employs the doctor, the hospital is not liable because he is not employed by them. In Roe v. Minister of Health (1954) the English Court of Appeal held that an anaesthetist who carried on a private practice but was also under an obligation, with another anaesthetist, to provide a regular service for the hospital was a servant or agent of the hospital. Lord Justice Morris thought that anaesthetists wre members of the “organization” of the hospital. In Stevenson Jordan & Harrisons Ltd. v. McDonald and Evans (1952) Lord Denning took the view that whether a person is a servant depends on whether or not a person is part and parcel of the organization. This test takes account of the degree of integration and thus brings workers like hospital staff, consultants and other professionals within the theory. (iii)The Entrepreneurial Test: Where a worker is working on his own account his contract is likely to be one for services. An opportunity to make profit of incurs loss indicates self-employed status. See Ready Mixed Concrete v. Minister of Pension (1968). Vicarious Liability The principal significance of distinguishing a contract of service or a contract of employment from a contract for services lies in fact that the master as a general rule is liable for any tort which the servant commits in the course of his employment. The liability of a master for the torts of his servant is an example of vicarious liability in tort. This does not exonerate the servant for a person cannot excuse himself by saying that he was acting as the agent or servant of another. A self-employed person or an independent contractor is liable for a wrong he commits and the person taking benefit of his work is not vicariously liable. It has been said that a scientific reason for the vicarious liability of a master for the torts of his servant is hard to find but that “It seems to be based on mixture of ideas – that the master can usually pay while the servant cannot; that a master must conduct his business with due regard to the safety of others; that the master profit from the servant’s employment, and that by employing the servants has “set the whole thing in motion’. The rule would be an intolerable burden on the master but for the fact that he often covers his risk by insurance”. For the master to be liable the wrong done must fall within the courses of the servant’s employment. It is however often an extremely difficult question to decide whether conduct is or is not within the course of employment. In Marsh v. Moores (1949). Lynskey J. said: “It is well settled law that a master is liable even for acts which he has not authorized provided that they are so connected with the acts which acts which he has authorized that they may rightly be regarded as modes although improper modes, of doing them. On the other hand, if the unauthorized and wrongly act of the 37 Engineering Law 2012/2013 J.O.A. Akintayo with disobedience. Both common law and statute law brook no disobedience of lawful order from any servant, high and low, big or small. Such conduct normally and usually attracts the penalty of summary dismissal. Disobedience ranks as one of the worst form of misconduct in any establishment”. The appellant had been retired from the respondent’s employment for refusing to vacate the premises he occupied at Apapa (Company’s Quarters) after he had been permanently transferred to the Company’s Head Office at Funtua. (ii) An employee has a duty not to willfully disrupt his employer’s business. It is possible to lay down any hard and fast rules as to what constitutes disruption of employer’s own particular circumstances. (iii) An employee should reasonable care in the execution of his duties. Lister v. Romford Ice & Cold Storage Co. Ltd. (1957). This duty includes taking care of the master’s property. An employee is not an angel so only reasonable care is expected of him. However, the skill, knowledge and competence possessed by a employer will determine if in his own case he has exercised reasonable care. (iii)In addition to the above, there are also certain duties of good faith, of fidelity, of confidentiality and honesty known as fiduciary duties which an employee owes to his employer. An employee must not put himself in a position where his duty conflicts with his interest. He must not make secret profit or take bribe giving and taking of bribe are offences punishable under the Criminal Code. He must account for a deliver up to the master all property entrusted to him and all moneys received on his master’s account. He must not disclose confidential information to unauthorized persons for he has a duty of confidentiality. These duties do not end even when employment has ceased. See generally Boston Deep Sea Fishing & Ice Co. v. Farhham (1957). Common Law Duties of an Employer (i) An employee on piece work is entitled to earn a reasonable sum of money thus a reasonable amount of work must be put his way. Wages shall be payable in legal tender and not otherwise. See SS. 1-3 Labour Act. (ii) The traditional view is that if an employer provides pay, there is no obligation to provide work. The law not recognizes that the master is under a definite obligation to provide work in a few cases. For instance, it is essential for work to be available for an employee whose remuneration depends upon the amount of work done, or who is paid on commission basis; or in the case of one, like an actor, whose continued employment depends upon keeping his name before the public. Thus in Hebert Clayton and Jack Waller Ltd. v. Oliver (1930) the appellants, who were theoretical producers had engaged Oliver to play a lead in one of their productions, and he agreed not to appear elsewhere except with their consent. A part was offered which Oliver insisted was not a leading one, and he therefore refused to appear and brought an action for breach of contract. It was held by the House of Lords that he was entitled to succeed. The modern trend on the obligation of the employer to provide pay is associated with the employee’s right to work. Where work is not provided, an employee may contend constructive dismissal if his skills will deteriorate. Bosworth v. Angus Jowelt (1977). For the traditional view see Collier v. Sunday Referee Publishing Co. Ltd. (1940). 2kb647 (iii) The employer has a limited obligation to pay wages during illness. The Labour Act has confirmed this position. A worker is entitled to be paid wages up to 12 working days in any one calendar year during absence from work caused by temporary illness (S.15). (iv) An employer has an inalienable duty to exercise reasonable care regarding his employee’s safety. He has to ensure that his employees do not suffer injury in the course of their employment, either in consequence of the master’s personal negligence or through his failure properly to superintend and control the undertaking. This duty is inalienable because an employer cannot evade this duty by delegating his responsibility to a safety officer, for liability is strict. In Wilsons and 41 Engineering Law 2012/2013 J.O.A. Akintayo The Factories Act enjoins occupiers to remove all dust or fumes (S.45) provide protective clothing and appliances (S.47) and ensure protection of eyes in certain processes which entail electric arc welding (S.48). In view of the foregoing registration of new factories is regulated by S.3. The benefits of the above provisions to an employee are tremendous. The statutory provisions obviate with the need to prove negligence WNTC v. Ajao. The employer is however not without defences. These include remoteness of damage Latimer v. A.E.C. Ltd. (1953); contributory negligence Orekoya v. University of Ife (1972); and consent. Contributory Negligence: It the plaintiff’s negligence was one of the causes of his injury, then the Court will have regard to all the causes and will apportion the damages in accordance with the law. What is and what is not contributory negligence is a question of fact to be determined by the Court, and the onus of proof is on the defendant. For example, in Cakebread v. Hopping Bros. (Whetstone) Ltd. (1947) the plaintiff, an experience wood working machinist suffered injury to one of his fingers whilst operating a circular saw. There was evidence that the plaintiff did not adjust the saw provided with a guard the way it should and that the saw provided was not in accordance with the Wood Working Machinery Regulations. It was held that the employers had failed in their statutory duty to maintain a guard in an efficient state and in position, and to supervise the work of the factory, and these breached of duty contributed to the accident. It was held also that the workman’s duty, at common law, was to observe for his own safety that degree of care which an ordinary prudent man would have observed in the circumstances, and his failure to exercise this care contributed to the accident. For these reasons the damages were apportioned equally and the workman received half of the damages assessed. Consent The maxim of law is volenti non fit injuria (that to which a man consents cannot be considered an injury). In relation to cases of employer and employee the principle was explained by Lord Herschell in Smith v. Baker & Sons (1891) as follows: “Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it and cannot if he suffers, be permitted to complain that a wrong has been done to him, even though he cause from which he suffers might give to others a right of action. For example, one had agreed to take part in an operation necessitating the production of fumes injurious to health would have no cause of action in respect of bodily suffering or inconveniences resulting there from, through another person residing near seat of these operations might well maintain an action if he sustained such injuries from the same cause”. Where a servant is exposed to risks which are not in any way incidental to his employment or through incidental to his employment, is attributable to the master’s personal negligence, no consent on the servant’s part to take the risks upon himself is to be implied from the existence of the contract of employment. In Smith v. Baker & Sons the plaintiff had been working for some months drilling holes in the rock of cutting A crane worked by another man in the employment of the contractors was lifting stones nearby, and form time to time these were swung over the plaintiff’s head without warning. The plaintiff was fully aware of the danger to which he was exposed, and had in fact complained that she practice dangerous. Subsequently a stone fell from the crane and he was injured. It was held that the employer cannot invoke the aid of the maxim volenti non fit injuria to protect him from liability for his wrong in such a case, The plaintiff was therefore entitled to damages for the injuries he sustained. To rely on this doctrine, the master must show that the workman undertook that the risk should be on him. This will be easy to establish where there is a consideration in form of 45 Engineering Law 2012/2013 J.O.A. Akintayo (b) Where the workman does not leave any dependant wholly dependent on his earnings but leaves any dependant in part so dependent, the amount of compensation shall be such sum, in any case not exceeding the amount payable under paragraph (a) of this section as may determined by the Court to be reasonable and proportionate to the injury of the said dependant; (c) Where the workman leaves no dependant reasonable expenses commensurate with the last position held in his employment by the deceased shall be paid by the employer”. Section 5 deals with compensation in the case of permanent total incapacity. Where permanent total incapacity results from the injury, the amount of compensation shall be a sum equal to 54 months’ earning’ Section 6 makes provision for additional compensation. It states “Where an injury results in permanent total incapacity of such a nature that the injured workman must have the constant help of another person, additional compensation shall be paid amounting to one quarter of the amount which is otherwise payable under section 5 of the Act”. Section 7 is on compensation in the case of permanent partial incapacity. The Second Schedule to the Act deals with this. Medical assessors are to assist in this connection. Section 9 deals with compensation in the case of temporary incapacity. It must be stressed that a judgment given in favour of the plaintiff in proceeding under the Workmen’s Compensation Act is a bar to proceedings instituted by or on behalf of the plaintiff in respect of the same injury independently of the Act as it was held in Mrs. B. T. Segun v. Messrs West African Airways Corporation Ltd. (1957). CHAPTER 5 THE LEGAL FRAMEWORK OF INDUSTRIAL RELATIONS IN NIGERIA Introduction In their book, Industrial Law, Smith and Wood (1980) had this to say about the subject of Industrial Law, The subject of Industrial Law may be split for convenience if not for accuracy, into three principal areas - Industrial safety law, employment law and the law relating to industrial relations. Each has a different legal and social background, and until recently, the level (and type) of legal involvement was markedly different in each. The learned writers noted that Industrial safety law has a history of statutory intervention dating back to the beginning of the 19th century, with formidable volume of case law on the statutes and on the actions, which could be brought by an injured employee. Employment law, however, was based almost entirely upon the common law concept of the contract of employment; and it attracted little statutory intervention and even much of the common law, though extensive in theory, was a dead letter in practice, principally due to the inadequacies of the remedies for breach of the employment contract by the employer. Industrial relations law was characterized by the voluntary principle and the abstention of the law (once legislation had been used in the latter part of the 19th century and the 49  Engineering Law 2012/2013 J.O.A. Akintayo definition also underscores the principal purpose of trade unions and this is to regulate the terms and conditions of employment of workers. A combination does not cease to be a trade union if any of its purposes is in restraint of trade. Contracts in restraint of trade are contracts that place undue restraint freedom of individuals to contract. The traditional common law view is that such contracts are contrary to public policy and therefore void. This position has, however, been modified as such contracts are enforceable if reasonable with reference to the interests of the parties and the public. From the statutory definition of trade unions a combination of workers does not cease to be a trade union whether its purposes do or do not include the provision of benefits for its members. The Registrar of Trade Unions is required by section 5(7) of the Trade Unions Act, on the coming into effect of the section, to register the trade unions specified in Part A and Part C of the Third Schedule to the Act and on such registration, the said trade unions shall have all the powers and duties of a trade union registered under the Act. Trade unions not registered pursuant to the above provisions have to apply for registration. Application for registration of a trade union is to be made to the Registrar of Trade Unions in the prescribed form, which must be signed, by at least 50 members in the case of workers’ union and two members in the case of employers’ union (S.3). The application is to be accompanied by two copies of the rules of the union (i.e., the Constitution) which must make provisions for the matters specified in the First Schedule to the Trade Unions Act (T.U.A.), as amended, and a list showing the name, address, age and occupation of each of the persons by whom the application is signed and the official title, name, address, age and occupation of each official of the union. Section 2 of the Act prohibits the operation of an unregistered trade union except for the purposes connected with having the union registered. The Registrar is obliged to refuse the registration of a trade union ‘if it appears to him that any existing trade union is sufficiently representative of the interests of the class of persons whose interests the union is intended, to protect’ (section 5(4)). An appeal from the decision of the Registrar lie to the Minister of Employment, Labour and Productivity and the Minister’s decision is final (section 6(1) – (5)). In view of the provisions of the Trade Unions (Amendment) Act No. 4 of 1996 which made provisions for a scheme of merger of 41 unions into 29 and for the jurisdictional scope of the said unions, one may therefore argue that the Registrar’s power seems unfettered as respects a proposed trade union whose jurisdictional scope falls within that of any of the 29 industrial unions. The Registrar may, however, register as a workers’ union or a senior staff association, any trade union that satisfies the requirements of the law. The phrase ‘if it appears to him’ came up for judicial interpretation in the leading case of Adegbenro v. Akintola 1 All N.L.R.465 which turned on the interpretation of the provisions section 33(10) of the Constitution of the Western Nigeria which empowered the Governor to remove the Premier if ‘it appears to him that the Premier no longer commands the support of a majority of the House of Assembly’. The Judicial Committee of the Privy Council held by the words ‘it appears to him’ the maker of the Constitution intended that the judgment as to whether the Premier no longer commanded the support of a majority of the House was to be left to the Governor’s assessment without any limitation as to the material on which he was to base his judgment or the contacts to which he might resort for the purpose. A certificate of registration issued by the Registrar evidences the registration of a trade union. The registration of a trade union entails a number of things. A registered trade union may sue or be sued in its own name; it is exempted from the Personal Income Tax Act No. 104 of 1993, as amended; upon change of its trustees its property without further assurance vests in the new trustees. Once a trade union is registered the employers or the workers who are formed into the union must recognise the union. Section 24(1) of the T.U.A. provides: Subject to this section, where there is a trade union of which persons in the employment of an employer are members, that trade union shall, without further assurance, on registration in accordance with the provisions of this Act, be entitled to recognition by the employer. Where it is necessary the Minister may make a compulsory recognition order, which urges a named employer to recognise a trade union as representing a group of employees in an organisation. The recognition of a trade union enables it to deal with an employer for purposes, which include 53 Engineering Law 2012/2013 J.O.A. Akintayo for a definition of a member of a trade union as spelt out above, the Trade Unions (Amendment) Act No.1 of 1999 can be said to have retraced the step which the Trade Unions (Amendment) (No. 2) Decree No. 26 of 1996 took by defining a member as a card-carrying member of a trade union. The provisions of old section 33(8) inserted by Decree No.26 of 1996 which made it unlawful for any person, not being a card-carrying member of a trade union to participate and assume functional role in any of the policy or decision making organs, committees (or formulations by whatever name called) within the union or the Central Labour Organisation except if the function was strictly limited to administrative duties only, were repealed by Act No. 1 of 1999, thus giving union employees unrestrained power to participate. We have considered the implication of Section 40 of the 1999 Nigerian Constitution that guarantees the right of association and its general purport. It has also been shown that this constitutional provision is not absolute. In the light of this members of the armed forces, the police and civilian personnel therein, fire brigade, and staff of the Central Bank of Nigeria (CBN), Security and Minting Company, among others are prohibited from membership of trade unions. The T.U.A. excludes any person below the age of 16 from being a member and any person below the age of 21 from being an officer of a trade union. Also, no staff recognised, as a projection of management within the management structure of any organisation shall be a member of or hold office in a trade union. Section 3(4) states inter alia: A person may be recognised as a projection of management within a management structure if his status, authority, powers, duties and accountability which are reflected in his conditions of service are such as normally inherent in a person exercising executive authority (whether or not delegated within the organisation concerned). As it has been pointed out, the right to associate if liberally construed includes the right not to associate with a group of people. Membership of a trade union is therefore voluntary. This however does not affect the liability of a person to make contributions, to a trade union of which he is eligible to be a member, deducted from his salaries where the automatic and compulsory check-off system obtains. The right not to associate is recognised by the Labour Act section 9(6) of which states: No contract shall make it a condition of employment that a worker shall or shall not join a trade union or shall or shall not (a) relinquish membership of a trade union; or (b) cause the dismissal of, or otherwise prejudice a worker (i) by reason of trade union membership; or (ii) because of trade union activities outside working hours or, with the consent of the employer, within working hours; or (iii) by reason of the fact that he has lost or been deprived of membership of a trade union or has refused or been unable to become or for any other reason is not, a member of a trade union. Where there is disagreement as to the true meaning of the rules of a trade union, such dispute may be referred to the Industrial Arbitration Panel or the National Industrial Court for determination. A member who complains of a breach of a specific section or rule of the Union rules or Constitution may institute an action on the basis of the contract between him and the Union that the Constitution regulates. In Bonsor v. Musicians’ Union a member who was wrongfully expelled from a registered trade union successfully maintained an action for breach of contract against the union in its registered name. Amendment to the Constitution of a union must comply with the provisions contained therein. Such amendment must also be registered with the Registrar of Trade Unions before they can take effect. In Nigeria Civil Service Union v. Essien 3 N.W.L.R. 306, the Court of Appeal held that where an alteration or amendment of a Union in accordance with their Constitution is communicated to the Registrar in the usual manner and he having satisfied himself that the alteration or amendment does not contravene the provisions of the T.U.A. and records or takes note of the amendment or alteration in an official record kept for the purpose, the amendment or alteration is considered registered. The 57