Publication Archives: Articles

By: Ifunanya Anyene

In Nigeria, medical negligence cases are not uncommon. Medical practitioners and hospitals face the risk of being sued for medical malpractice, which can lead to heavy financial penalties and damage to their reputations. However, there are several defenses available to medical practitioners and hospitals in such cases.

One of the most common defenses is that of contributory negligence. This defense argues that the patient’s own negligence or actions contributed to their injury or condition. For example, if a patient fails to disclose important medical information to their doctor, and this leads to a misdiagnosis or improper treatment, the doctor may be able to argue that the patient’s own negligence contributed to the outcome.

Another defense available to medical practitioners and hospitals is that of causation. This defense argues that the injury or condition suffered by the patient was not caused by the medical treatment provided, but rather by some other factor. For example, if a patient develops an infection after surgery, the doctor may be able to argue that the infection was caused by factors outside of their control, such as the patient’s own immune system or exposure to bacteria in the environment.

A third defense available to medical practitioners and hospitals is that of informed consent. This defense argues that the patient was fully informed of the risks and potential complications associated with the medical treatment provided and that they gave their informed consent to undergo the treatment despite these risks.

It is important for medical practitioners and hospitals to be aware of these defenses, as well as to take steps to minimize the risk of medical negligence claims. This may include implementing proper protocols and procedures, providing adequate training to staff, and maintaining accurate and thorough medical records. By doing so, medical practitioners and hospitals can help protect themselves from the financial and reputational damage that can result from medical negligence claims.

By: Victory Sarah Opawoye

Trust relationships are formed when a trustee is obligated based on equity, to hold property, whether it is real or personal possessions. The essence of this relationship lies in ensuring that the benefits of the property do not accrue to the trustee, but rather to the beneficiaries or other designated individuals or entities.

Trust law is a powerful legal framework that plays a crucial role in safeguarding wealth. By establishing trusts, individuals and businesses can protect their assets, ensure efficient management and secure financial well-being for future generations.

Within a trust, the trustee assumes a position of confidence and is required to act in good faith, upholding the interests of the beneficiaries and safeguarding the trust property. It is crucial that the trustee refrains from engaging in actions that could jeopardize the beneficiaries’ interests.

Trusts exist in various forms and serve diverse purposes, often reflected in their names. Contrary to popular belief, trusts are not exclusively for the wealthy, but can also be established by individuals with limited means for their own benefits or those of others.

In this article we will delve into the significance of trust law and the roles of a trustee by exploring realistic examples that highlight its personal application and the positive impact.

The Okonjo family, a prominent business dynasty in Nigeria, for decades has built a vast empire spanning industries such as oil, real estates and telecommunications. However, as the family grew in size and complexity, concerns arose about the long-term preservation and succession of their wealth.

The Okonjo family sought the expertise of trust lawyers who crafted a comprehensive trust structure to safeguard their assets. By placing their wealth within trust, they created a legally binding arrangement that separated ownership from control. This not only protected their assets from potential risks and disputes but also ensured continuity and stability.

                                            ROLES OF A TRUSTEE

1. Fiduciary Duties: Trustees owe fiduciary duties to the beneficiaries, which encompass the responsibility to manage the trust in the best interests of the beneficiaries. The trustee must make decisions that prioritize the beneficiaries’ well-being, as they hold an equitable title to the property.

2. Duty to Administer Trust Assets: Trustees have the obligation to administer trust assets in accordance with the terms specified in the trust document.

3. Duty of Loyalty: This duty requires trustees to prioritize the interests of the beneficiaries over their personal interests when managing the trust property.

4. Duty to Act in Good Faith: Trustees are obligated to act with honesty and integrity in fulfilling their responsibilities, while being accountable to the beneficiaries.

5. Duty of Skill and Due Diligence: Trustees must exercise reasonable care, prudence, skill, and diligence in the administration of trust assets.

6. Responsibility for Asset Management: Trustees are responsible for managing trust assets with the same caution that a reasonable person would exercise in managing their own assets.

TYPES OF TRUSTS

1. Private Trust: These trusts are typically established for family members, relatives, or specifically identified individuals. In Knight v. Knight (1840) 49 ER 58, it was established that every trust must satisfy three certainties:

  a. Certainty of Intention: The settlor must demonstrate an intent to create a trust, which can be expressed in the arrangement’s terms.

  b. Certainty of Subject Matter: The property held under the trust must be identifiable and specified.

  c. Certainty of Object: The intended beneficiaries of the trust must be recognizable or ascertainable, or the trust will fail.

2. Public or Charitable Trust: These trusts are created for the benefit of the general public, with the beneficiaries not being selected based on personal relationships with the settlor. To qualify as a charitable trust, it must exhibit an element of public benefit. In RE CROMPTON [1945] ch.299, a trust created for the education of specific individuals’ descendants failed the test of public benefit.

LEGAL FRAMEWORK

The provisions of a trust arrangement can be enforced in any court of law when disputes arise.

1. Trustees Act of 1893: This significant legislation provides clarity and guidance to trustees regarding the administration of trusts. It outlines trustees’ responsibilities in managing trust funds properly and empowers them to invest trust funds, sell assets, and manage the trust affairs in the best interests of the beneficiaries. The act allows trustees to delegate certain functions to professionals or agents and provides protection by granting them discharge from liability when they act in accordance with the act’s provisions and the trust’s terms.

2. Trustee Investment Act: This act provides guidelines for trustees on the investment of trust funds, ensuring that they act prudently and in the best interests of the beneficiaries. It specifies permissible investments and criteria for their selection, emphasizing the need for care, skill, and due diligence in investment decision-making.

BENEFITS OF TRUSTEESHIP

1. Asset Protection: Trusts provide a legal structure that safeguards assets for the intended beneficiaries. Placing property in a trust is a common method of asset protection since trusts are not entities in their own right and are not subject to legal actions like individuals or companies.

2. Estate Planning: Individuals can create trusts to facilitate the orderly transfer of assets to their chosen beneficiaries, ensuring smoother succession and reducing potential disputes.

3. Charitable Purposes: Trustees can establish and manage charitable trusts to support various philanthropic causes, promoting social development and welfare.

4. Continuity: Trusteeship can span multiple generations, with appointed trustees overseeing asset administration and distribution over time, fostering stability and long-term planning.

5. Confidentiality: Trusteeship allows for discreet asset management, preserving individuals’ privacy and shielding their financial affairs from public scrutiny.

One of the key benefits of trust law became evident when the Okonjo family faced a sudden economic downturn. Due to careful planning and diversification of their assets through trust, they were able to weather the storm without jeopardizing their core financial security. The trust structure provided them with a resilient foundation to withstand economic challenges and emerge stronger.

Through the appointment of professional trustees, the family was able to tap into specialized expertise with experience in wealth management, investment and estate planning.

A well-structured trust specifies the conditions and gives instructions on the management of the trust property. It also ensures that the settlor’s asset can be preserved, protected from potential misuse while ensuring it is utilized responsibly.

Conclusion

Trusteeship law in Nigeria establishes a framework for the responsible and equitable management of trust assets. By adhering to fiduciary duties, trustees ensure the protection and benefit of the trust’s beneficiaries. Trusts offer numerous advantages, such as asset protection, estate planning facilitation, support for charitable causes, and continuity across generations, and confidentiality. The legal framework governing trusteeship provides guidance and safeguards for trustees, empowering them to carry out their duties effectively and in the best interests of the beneficiaries.

By harnessing the power of trust law, individuals and businesses in Nigeria cam create a solid foundation for long-term financial security and preserve their wealth for future generations.

By: Victory Sarah Opawoye

In the realm of relationships, divorce can emerge as a tempestuous storm, testing the strength of even the most steadfast couples.
When Emily and Mark made the painful choice to divorce, they found themselves caught in a maelstrom of emotions. The love that once united them is now mingled with hurt, anger, and confusion. What followed was a rollercoaster of emotions as they wrestled with the aftermath of their decision. (What will the society say? What becomes of our children? Who gets to keep custody? How do we split our assets? Does this affect our career?).
The comfort they once found in each other was replaced by the unfamiliar terrain of separation, leaving them to confront the void that had formed. Their journey through the divorce process was punctuated by moments of heartache and introspection. Yet, amidst the chaos, Mark and Emily demonstrated remarkable resilience. They sought therapy to help navigate the complexities of their evolving relationship, learning to communicate in new ways as co-parents and former partners. Their journey wasn’t without setbacks; tears were shed and tempers flared, but through it all, they displayed a shared commitment to minimizing the collateral damage for the sake of their children.
Mark and Emily’s story illustrates the intricate nature of divorce, revealing the emotional endurance required to disentangle lives once so deeply intertwined. Their case study underscores the necessity of seeking support, be it from therapists, friends, or support groups, as a means of finding the strength to weather the storm. By facing their vulnerabilities head-on, they paved the way for a new chapter—one defined by healing, growth, and the potential for renewed happiness. In a world where divorce can be shrouded in stigma and isolation, the tale of Mark and Emily encourages empathy and understanding. It serves as a reminder that beneath the legal proceedings lies a human narrative, fraught with complex emotions and the aspiration for a brighter future beyond the stormy seas of divorce.
A petition for the dissolution of marriage under the Matrimonial Causes Act is a suit of solemn nature requiring strict compliance and enjoining a high degree of proof.
Dissolution of marriage is the process of terminating a marriage, commonly known as divorce, which terminates the marital rights and responsibilities between couples.
In Nigeria, there are two types of marriage:

1. Statutory Marriage
2. Customary Marriage
   Statutory marriage is a union between a man and woman under the act. This is usually done at the court registry or at a licensed place of worship. The Supreme Court in the case of ANYAEGBUNAN v ANYAEBUNAN[1] held that a certificate of marriage issued by a church would not be evidence of marriage unless it can be shown that the required license for the registration of marriage was produced, and the certificate was in the form prescribed by the act.
   The major laws regulating the dissolution of marriage in Nigeria are:
   a. Matrimonial Causes Act CAP M7 LFN 2004
   b. Marriage Act CAP M6 (LFN 2004)
   In the Nigerian legal system, a marriage can only be dissolved by either the death of a partner or a court order. The divorce process is the procedure to follow to obtain a court order. This cannot be done without the services of a lawyer. Considering the two types of marriages established above, you must know the type of marriage you have, as this will determine which laws will apply to the termination of the marriage contract. The divorce process commences when a divorce petition is filed.
   PUBLIC OPINION ON DIVORCE
   The idea of divorce in our society is not a welcomed one, and married couples are expected to stay true to their vows, irrespective of any form of discrepancies. I call it a ‘Till death do us part’ Syndrome. Getting a divorce was not even an option due to the stigma from society, the gossip, and concerns about the welfare of the children. This has caused many to stay in abusive marriages.
   Public opinion on divorce has undergone a substantial evolution over the years, reflecting shifting societal norms and values. Once heavily stigmatized, divorce is now often viewed through a lens of acceptance and understanding. In contemporary society, a majority recognizes that relationships can be intricate, and not all unions are meant to last indefinitely. While a segment of the population still adheres to traditional values that emphasize the sanctity of marriage, there is a prevailing sentiment that individuals should have the autonomy to make choices that align with their personal well-being. Many perceive divorce as a means of escaping toxic or unfulfilling partnerships, particularly when efforts to reconcile have proven futile.
   However, despite growing acceptance, debates continue regarding the impact of divorce on families, especially children. Concerns about the emotional and psychological toll on children can lead some to hold reservations about divorce. Additionally, religious beliefs and cultural backgrounds can significantly shape attitudes, with some communities maintaining a more conservative outlook. In essence, public opinion on divorce is a complex interplay of modern ideals and age-old values. As society becomes more attuned to individual freedoms and personal happiness, divorce is increasingly viewed as a valid option in the tapestry of relationships.
   Yet, discussions around the implications for families and the broader social fabric persist, reflecting the nuanced perspectives that contribute to the ongoing discourse.
   As a result of changes in values and for safety reasons, divorce has slowly been accepted in Nigerian society. It is advisable to divorce your spouse if the marriage threatens your physical and mental health, for instance, in cases of domestic violence; it’s best to know when to walk away.
   Section 11 of the Matrimonial Causes Act mandates the court not to be hasty in dissolving a marriage. The court may set up mediation or arbitration counseling to see if the couples can sort out their differences. Where reconciliation is impossible, the petition will be granted by the court. For a marriage to be dissolved, the court must determine that the marriage has irretrievably broken down.
   If you’re considering divorce, seeking assistance from a law firm can be beneficial. A law firm with expertise in family law can provide valuable guidance through the legal aspects of the process, such as property division, child custody, and spousal support. They can help you understand your rights and responsibilities, and work to achieve a fair and equitable resolution. Additionally, a law firm can provide emotional support by guiding you through the complexities of divorce and helping you make informed decisions during a challenging time.
   Ultimately, whether divorce is a “bad thing” or not is subjective. It’s a significant life decision that should be made after careful consideration of all factors involved, including personal well-being, family dynamics, and legal implications. Seeking advice from professionals, such as lawyers and therapists, can help you navigate this process with clarity and support.