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Showing posts from September, 2016

AFRICAN JURISPRUDENCE

It is the contention of the western scholars that before the advent of colonialism in Africa, Africa possessed no articulate concepts of law neither were there elaborate judicial processes through which justice was dispensed. In fact, the Europeans consigned Africa's pre-colonial legal systems to the category of 'palm tree justice'. It has also been argued that under the traditional African legal systems, there was no distinction between criminal acts and civil wrongs neither was there any distinction between private and public law. 

PERCEPTION AND DOCTRINES OF THE LAW

Words have no meaning in themselves. A lawyer should be a scientist in the laboratory of words. He must know how to manipulate and exploit words. Words are the forms of expressing thoughts for apprehension and understanding.
            Words have four elements: a. the utterer who makes the statement b. the symbol which means the characteristics of what is defined c. the referrer which is the thing being defined d. the utteree who is the listener being able to apprehend.

JURISPRUDENCE AS THE PHILOSOPHY OR SCIENCE OF LAW

The subject-matter of jurisprudence asks about what is law, what is the law and an attempt to ask what should be the law. Our concern in this class is law in general.
            Philosophy of law tries to equip us with the power with which to investigate the value implications of describing something as ‘legal’. This is why Jurisprudence is said to include principles behind law that make the law. Science also tries to discover the scientific truth using scientific methods.  This writer is of the opinion that jurisprudence is assigned to philosophy because philosophy is the mother of all knowledge.

LEGAL REASONING AND LOGIC

Lawyers are often thought of as having logical minds. This gives the impression that legal reasoning itself is or should be governed by logic. Certainly, logic plays an important role in legal reasoning but as we will see, it is only part of the story.

THE NATURE OF JURISPRUDENCE

The difference between a lawyer and a philosopher can be seen from the discussion between Socrates and Theodora. A lawyer’s main interest is to win his case whether good or bad but a philosopher is interested in the propriety of the applicable rules his main interest being the truth or justice of the matter. As we will see later, a lawyer is largely interested in the law as it is (lex lata) while the philosopher is interested in what should be the law (lex ferenda).

UTILITARIANISM

Jeremy Bentham (1748-1832)
In his writings, Bentham suggested that the field of jurisprudence encompasses two types of study; expository jurisprudence (analysis of law as it is) and censorial jurisprudence (the science of legislation). 
Bentham published two books entitled FRAGMENT ON GOVERNMENT where he propounded the theory of utilitarianism and INTRODUCTION TO MORALS AND LEGISLATION where he fully expounded the theory. 

CORPORATE GIFTS AND POLITICAL DONATIONS

The Doctrine of State Capture & Corporate Social Responsibility
Under the common law, companies are allowed to make donations/grants to individuals, political parties and for researches provided that such grants are in furtherance of the objects of the companies. Hutton v West Cork Railway is a case which concerns the limits of a director’s discretion to spend company funds for the benefit of non-shareholders. In that case, the court noted that a company carrying on business has power, by the vote of a general meeting, to expend a portion of its funds in gratuities to servants or directors, provided such grants are made for the purpose of advancing the interests of the company. But this does not apply to a case where the company has transferred its undertaking to another company and is being wound up. The court on this basis held that the donation was invalid since it was not for the purpose of advancing the interests of the company. In essence, for such donation to be held valid, …

POWERS, AUTHORITIES AND LIABILITIES OF A COMPANY

The question here is who can be regarded as acting on behalf of a company and in what circumstances can they validly act?
Initially, acts which were authenticated by the company’s common seal were regarded as acts of the company. But there were situations where seals were affixed on acts without the company’s authority and this made the company not bound. Subsequently, the decisions of the majority of the members of the company in general meetings were regarded as the acts of the company. Because of the impossibility of taking all day-to-day decisions in general meetings, the powers were later delegated on a board of directors. Due to business expediency, the powers of the board are usually delegated to individual managing directors, officers and agents.

CAPACITY AND POWERS OF A COMPANY (Continuation)

ULTRA VIRES RULE            The rule is to the effect that a registered company has power only to carry out the objects stated in its memo and any attempt to go beyond these limits is declared ultra vires null and void. The essence is to ensure that a company is kept within its objects as stated in its memo. One resultant effect of this rule is that no right accrues to anybody or liabilities imposed on anyone as a result of the transaction. More so, the shareholders cannot ratify the act. Even where they purport to alter the object clause of the company, it cannot be given retrospective effect.

CAPACITY AND POWERS OF A COMPANY (Continuation)

Constructive Notice Rule
            In Company law, the doctrine of constructive notice is a doctrine where all persons dealing with a company are deemed to have knowledge of the company’s articles of association and memorandum of association. The doctrine deals with the capacity and authority of a company.

CAPACITY AND POWERS OF A COMPANY (Continuation)

ALTERATION OF MEMORANDUM OF ASSOCIATIONThe first point to note is that except the memorandum provides otherwise, the law is that every provision of the memorandum can be altered. However, the memorandum being the basic constitutional document can only be altered to the extent permissible by the CAMA. Every of its provision except the registered office clause, can be altered unless the memorandum expressly provides to the contrary.

CAPACITY AND POWERS OF A COMPANY

Introduction
One of the consequences of the artificial nature of a company is that decisions are inevitably made while actions are taken on its behalf by natural persons. A company can therefore be exploited and used to perpetuate fraud. In what situations can the decisions and actions be said to be attributable to the company?