GET 511

LECTURE NOTE

ON

GET 511
(ENGINEERING LAW)

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COURSE CODE: GET 511 - ENGINEERING LAW

COURSE CONTENT – 2 UNITS

1. LEGAL DEFINITIONS AND SPECIFICATIONS: Law, ethics and conduct in engineering;

2. LAW OF CONTRACT: engineering contracts and contract documents, enforceability of contracts.

3. INDUSTRIAL RELATIONS: employment law and unionism, terms and conditions of employment

4. INTELLECTUAL PROPERTY: patents, trademarks, copyrights, license and royalty; technology

transfer issues;

5. SAFETY AND ENVIRONMENTAL LAW: health and safety law, environmental guidelines and
laws; Technology impact assessment: responsibility and liabilities to worker and staff, users and
public.

6. LAW SUITS: court proceedings and Engineer as a witness

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MODULE 1
LEGAL DEFINITIONS AND SPECIFICATIONS
1.0 Definitions

i. Law: It is a set of rules that are created and enforced through governmental or social institutions
in order to regulate behavior and ensures that individuals or a community adhere to the will of the state.
In other words, it is a rule or mode of conduct or action that is prescribed or formally recognized as
binding by a supreme and controlling authority, or is made obligatory by a sanction (as an edict, decree,
order, ordinance, statute, rule, judicial decision) made, recognized, or enforced by the controlling
authority.
ii. Engineering law is the empirical study of the application of laws and legal strategy in
engineering. It is an applied law aimed to explain how law interacts with industry. Empirical evidence is
information that verifies the truth (which accurately corresponds to reality) or falsity (inaccuracy) of a
claim. Engineering is the creative application of scientific principles to design or develop of structures,
machines, apparatus, or manufacturing processes, or works utilizing them singly or in combination; or to
construct or operate the same with full cognizance of their design; or to forecast their behavior under
specific operating conditions; with regards to economics of operation and safety to life and property.
Hence, law that would regulate engineering profession and activities is importance to the operation and
safety of life and property
iii. Constitution: A constitution is an expression of the political will of the people, a statement, or an
agreement, as to how the people are to be governed, by whom, and with what responsibilities. A
constitution is a document, or a group of documents, laws or conventions, which outline the system of
government for that State/Country.
iv. Rule of Law: “The doctrine of English law expounded by Dicey, in Law of the Constitution, that
all men are equal before the law whether they are officials or not, so that the acts of officials in carrying
out the behests of the executive government are cognizable by the ordinary courts and judged by the
ordinary law. The rule of law is defined in the Encyclopedia Britannica as "the mechanism, process,
institution, practice, or norm that supports the equality of all citizens before the law, secures a
nonarbitrary form of government, and more generally prevents the arbitrary use of power. Hence, it is the
political philosophy that all citizens and institutions within a country, state, or community are
accountable to the same laws, including lawmakers and leaders.

1.2.1 Legal Institutions: The institutions which enforce and uphold this rule of law. In Nigeria, they
are the;
a. Legislature: which makes the laws
b. The Executive: which administers or enforce the laws, and
c. Judiciary: which interpret/declares the law, and what the rights of the individual are under the
law.

1.2.2. Legal System: A system has been defined as the principles or procedures for the classification of
laws, matters or procedure relating to them. It can also be defined as a body of rules including the
principles, rules or doctrines associated with them that have the force of law in a given society.
It should be noted that from a technical standpoint, there are as much legal systems as there are sovereign
independent countries. For example, Nigeria has its own legal system which has been said to consist of

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each totality of laws or the legal rules and machinery which operate within Nigeria as a sovereign and
independent African country. However, on a larger scale sovereign countries are grouped into larger legal
system classifications due to them sharing similar fundamental characteristics.
The grouping of countries into legal system doesn’t necessarily mean that all their laws are identical.
These individual systems are grouped into larger classifications because they share similar fundamental
principles. For example, one similar characteristic of common law legal system is the doctrine of judicial
precedent. Some of the legal systems practiced in the world today are:
a. International law
b. Constitutional and administrative law
c. Civil law
d. Common law
e. Criminal law
f. Contract law
g. Customary law
h. Tort law
i. Property law
j. Equity and trusts
k. Religious law such as Sharia law etc.

There are different types of laws to be considered. They are:

i. Divine Law
ii. Eternal Law
iii. Natural Law
iv. Human or Positive Law

i. Divine Law: Divine Law is referred to as laws made by Almighty God to govern the affairs of
man. A good example of divine law can be found in Christian laws as found in the Bible. These
laws are given by God in order to guide the affairs of man. The reason behind the use of divine
law stems from the fact that God, accepted as all knowing and all wise, is in the best position to
make laws for the use of mankind.
ii. Eternal Law: The word eternal means something that would last forever. Eternal laws are laws
that have been applied since the beginning of time and would exist till the end of time. These laws
cannot be changed. A very good example of eternal law is the law of gravity. From the inception
of time, it has been understood that what goes up must come down. This law would not be
changed and is thus right to be regarded as eternal.
iii. Natural Law: This law is said to be the law that is innate in all mankind and can be deduced
through the use of reason. For example, it is accepted in all cultures that murder is wrong and
should be punished. Natural law is said to be the guide which positive law must follow in order
for it to be valid. If Positive Law is at variance with natural law, it could lead to injustice in the
society.
iv. Positive or Human Law: Positive Law can also be regarded as human law. These are laws made
by man in order to guide the conduct of members of the society. They are laws made by persons

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given the authority to do so either directly or indirectly by the society. Once a law has been
enacted by persons in authority, it is valid.

1.2.3 Classifications of Law

The classifications of human law are the different categories into which all areas of law can be collated.
A particular classification of law encompasses all types of law but it distributes them according to a
particular unique characteristic. The following are the major classes of law:

1. Public and Private Law

2. Civil Law and Criminal Law
3. Substantive and Procedural Law
4. Municipal and International Law
5. Written and Unwritten Law
6. Common Law and Equity

1. Public and Private Law: Public Law is that aspect of Law that deals with the relationship between the
state, its citizens, and other states. It is one that governs the relationship between a higher party, the state
and a lower one, the citizens. Examples of public law include Constitutional Law, Administrative Law,
International Law and so on.
Private law, on the other hand, is that category of the law that concerns itself with the relationship
amongst private citizens. Examples include the Law of Torts, the Law of Contract, the Law of Trust and
so on.

2. Civil Law and Criminal Law: Civil law is that aspect of Law that deals with the relationship between
citizens and provides means for remedies if the right of a citizen is breached. Examples of civil law
include the Law of Contract, the Law of Torts, etc.
Criminal Law, on the other hand, can be referred to as that aspect of Law that regulates crime in the
society. It punishes actions which are considered harmful to the society at large. An example of criminal
law is the Criminal Code Act, which is applicable in Nigeria.
When treating a criminal case, the standard of proof to be used is proof beyond reasonable doubt; Section
135 Evidence Act 2011. What this means is that before a conviction can be gotten, the state has to prove
the commission of the crime to be beyond reasonable doubt.
On the other hand, in civil cases, the standard of proof is on the balance of probabilities; S.134 Evidence
Act 2011. Also, the burden of proof shifts between both parties when they need to establish their case.
Judgement normally goes in favour of the particular party that has been able to prove its case more
successfully. In all, Civil law differs from criminal law in that it applies to interactions between citizens.
Rather than dealing with crime, civil law deals with tort, or actions that are not necessarily illegal but can
be proven to be damaging in some way. For example, if you sue a neighbor for cutting down a tree and
letting it land on your premises that would be a civil case dealing with tort rather than a criminal case
dealing with crime.
In many legal cases, both civil wrong and criminal offence may be identified and it’s appropriate to use
certain attributes to distinguish them. We shall demonstrate this distinction with two hypothetical
examples.

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CASE I: Mr. A wishes to procure goods from a supermarket located in a city centre where Mr. B, a
custodian of personal items, has a rented space for keeping impedimenta under his care. After a while,
Mr. A comes back to take her impedimenta, looked for the caretaker and eventually realized to her
dismay that Mr. B had absconded. Now if Mr. B is eventually found, he would be made to face the
following charges:
i. Conversion, which is a criminal offence
ii. Breach of trust, which is a civil wrong.

CASE II : A Macho driver, Mr. D, of a commercial minibus beats traffic light and in an attempt to
escape being caught by traffic police, he rammed onto a car that has right of way, killing the driver and
wounding another passenger in the car. The traffic police charged Mr. D on one side on traffic light
infraction, reckless driving (civil wrong) and on the other manslaughter (criminal offence).
The point in these two cases is that true distinction lies not in the nature of the cases themselves but on
the legal consequences arising therefrom. We discern in both cases that crime and civil wrong are
involved.

3. Substantive and Procedural Law: Substantive law consists of written statutory rules passed by
legislature that govern how people behave. These rules, or laws, define crimes and set forth punishment.
They also define our rights and responsibilities as citizens. There are elements of substantive law in both
criminal and civil law. Substantive law is used to determine whether a crime or tort has been committed,
define what charges may apply and decide whether the evidence supports the charges. Let's say a person
is caught drunk driving. Substantive law says that it is a crime punishable by a term in prison.
The substance of charges, or elements of a crime or tort, must be carefully evaluated to determine
whether a crime or tort really exists. In other words, specific facts need to be proven true in order to
convict somebody of a crime or a tort. In the case of a person caught driving while intoxicated, a few
things would have to be proven:
 The person was driving the vehicle
 The person acted in ways that gave the police a reason to believe he or she was intoxicated
 The person was over the legal limit per a field sobriety and/or Breath analyzer test
 Once these things are proven, the person can be taken into custody. Next, procedural law will
determine the steps the case must take.
Procedural Law: Procedural law governs the mechanics of how a legal case flows, including steps to
process a case. Procedural law adheres to due process, which is a right granted to citizens. Due process
refers to the legal rights owed to a person in criminal and civil actions.
In the case of an arrest, one can be charged with a crime but still has rights to a speedy, fair and impartial
trial. Charges must be filed with the court within a specific time frame.

4. Municipal/Domestic and International Law: Municipal/Domestic law is the aspect of law which
emanates from and has effect on members of a specific state. An example of a municipal Nigerian law is
the Constitution of the Federal Republic of Nigeria 1999(as amended) which applies only in Nigeria.
International law, on the other hand, is the law between countries. It regulates the relationship between
different independent countries and is usually in the form of treaties, international customs, etc. Examples

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of International law include the Universal Declaration of Human Rights and the African Charter on
Human and People’s Rights.

5. Written and Unwritten Law: A law would not be regarded as written just because it is written down
in a document. Written laws are those laws that have been validly enacted by the legislature of a country.
Unwritten laws, on the other hand, are those laws that are not enacted by the legislature. They include
both customary and case law. Customary Law as part of its basic characteristic is generally unwritten.
Case law, though written down in a documentary format, would be regarded as unwritten law based on
the fact that it is not enacted by the legislature.
An example of this is the good neighbour principle established in the case of Donoghue vs. Stevenson.
The principle posits that manufacturers of products should take utmost care in their manufacturing
activities to ensure that the consumption of their product doesn’t result in harm to the consumer. This
principle is not enacted in a statute but is a case law which is applicable in Nigerian Courts.

6. Common Law and Equity: Common law typically refers to laws based on precedence and the rulings
of judges who hear a case in a courtroom. Equity, on the other hand, refers to laws that are similarly
established by court rulings but deal with judgment and justice through equitable decisions and fairness.
While proceedings regarding the two are somewhat similar today, in the past they were divided into two
different courts.
Both common law and equity stem from the judicial and legal history of England. These terms and
methods for justice have found their way into many legal systems with roots in the laws of England, such
as the US and other areas that were English colonies like Nigeria. Most cases in common law are heard
by a jury, with a judge as arbiter, and decisions can result in punishment or financial restitution. Equity
cases, however, are typically heard only by a judge who passes judgment on the case, which can take the
form of action or cessation of action by one party. For example, someone who steals a computer might be
ordered by a common law court to repay the value of the computer to the wronged party, which would be
just but may not be fair. A court of equity, on the other hand, could order the computer be returned to the
owner as a more equitable solution to the situation. Common Law is the system of law which is based on
judges' decisions and on custom rather than on written laws. It could imply that which is not from
legislation (statute). Statute is law made by the House of Assembly.
Thus, common law also known as judicial precedent or judge-made law is the body of law derived from
judicial decisions of courts and similar tribunals. The defining characteristic of "common law" is that it
arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to
past precedential decisions of relevant courts, and synthesizes the principles of those past cases as
applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually
bound to follow the reasoning used in the prior decision. If, however, the court finds that the current
dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and
legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to
resolve the issue (one party or the other has to win, judges make that decision). In equity, the body of
principles constituting what is fair and right. For example as per the company policies managers should
use equity in dealing with subordinate employees.

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Thus, in litigations, the knowledge will guide the litigant on the correct rule to employ. However, when
conflict arises in their application, equity prevails. In this way, it is obvious that interpretations are given
in appropriate atmosphere of either common law or equity.

Mr. A leased a premises from Mr. B (the owner), under equitable lease. In other words, it was not a
formal lease that would specify the conditions of lease. No formal documents were crafted to indicate the
rights and privileges arising therefrom. Shortly afterwards, Mr. A converts the premises to the use of his
company named Saxxon. The lessor Mr. B discovers this and claims that Mr. A (Isaacson) had breached
a fundamental element of the lease and then ejected him from the premises. Mr. A goes to court to seek
remedy under equity because he argued, using confession and avoidance plea, that although he breached
the agreement, but the name of his company (Saxxon) that he transferred the lease to is still himself
because as he ingenuously argued, Saxxon, the company’s name, is the latter part of the name, Isaacson,
in twisted form.

Held: Isaacson has erred. He breached the oral agreement by transferring the lease to his company.

1.3 The Social Significance of Law

The knowledge of law enlightens people on the legal right and duties which individuals need to exercise
in any given society. In this regard, when people in the society know their rights and obligations, the
society tends to operate with little trace of rancour. In this way, law is seen to cement society through the
enlightenment it offers.
Law, too, can provide basis for change in a society in that it establishes a system of jurisprudence which
forms a theoretical framework for evaluating conducts of people or groups. It sets standards for judgment
of individual or group behaviour. If an individual or a group conducts themselves in an unworthy manner
that is inimical to social justice, which if not addressed can promote disorderliness and social injustice.
The law is there to provide the right course of action. Thus law is an essential medium of change.
Besides, the knowledge of law provides understanding on the way public affairs are conducted. Moreso,
law is important in the following respects:
i. It promotes accuracy of expression
ii. The knowledge of law affords a person a natural ability to argue persuasively
iii. It also provides finely honed intuition for interpreting literary works because it deploys logic, social
values and systematic approach to analyzing issues and situations.

In view of the foregoing facts and points, engineers, being significant stakeholders in the society, need
ample knowledge of the law especially civil proceedings so that they can know how to act in the society
without getting entangled in litigations. The engineer is a professional businessman and therefore needs
to operate ethically in the society thereby command respect in the society.
It will be recalled that engineers, by virtue of their profession, are involved in research and innovation,
design and development of goods and services. In the course of undertaking these duties, they may
directly or tangentially get entangled with product liability issues that may amount to tortuous liability.
Thus basic legal knowledge could guide them on how best to deal with matters of that nature.
Again, many engineers, like some of their peers in other professions – medical doctors, lawyers,
accountants, architects etc. – had been charged for professional negligence with its attendant legal

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consequences. In that sense substantive law is needed to provide knowledge of engineer’s rights, duties,
liberties and powers. Taken together, there is justification to embody law in engineering curriculum.
However, the scope and depth of such law and knowledge need to be relevant to engineering practice so
that engineers can also serve well as expert witnesses in law suits. Beyond this, it has been emphasized
that engineers need humanities and social science knowledge to function as an accomplished
professionals.

1.3.1. Terminology of Proceedings

Proceeding whether civil wrong or criminal offence, has applicable terminology. We shall consider the
two sides separately.

i. Criminal Proceedings

In this, the following language is adopted. Prosecutor prosecutes a defendant and the outcome of the
prosecution, if successful is called conviction. Thus if an accused is convicted it means that a case of
alleged crime has been proved and the person is guilty of the accusation or allegation. The suspect now is
called a convict. There are legal consequences that may follow the conviction. The range of punishment
varies from life imprisonment to option of fine. In a case where the person is not found guilty, the suspect
is discharged and acquitted, thus declaring that they are free to go and not come back to answer the case
again. Again the suspect may be released on probation – discharged but not acquitted. Such an accused
could be summoned on the same issue if necessary. It means the person is on probation.

ii. Civil Proceedings

In this, there is the plaintiff, the person who brings a legal action in a court of law against another called
the defendant. Also, a plaintiff could be referred to as complainant or claimant. If the legal action
succeeds, judgement is entered in favour of the plaintiff and to be paid a determined amount by the
defendant. It may, on the other hand, involve transfer of property to the plaintiff, or require the defendant
to perform certain contracts. If however, the defendant is not pleased with the judgement, they may seek
judicial review of the judgement entered in favour of the plaintiff. Several approaches are available to the
defendant. All depending on the nature of the case. In appeal case like this, the defendant turns to be the
applicant and the plaintiff becomes the respondent. Further, the word guilty is preferred in criminal
proceedings, while liable is used for civil proceedings. Perhaps certain of these terms require definition:

a. Writ: the term refers to a document written by a court to summon or require someone to do or
refrain from doing something.
b. Writ of Centiorari: this concerns a written application, seeking Supreme Court decision to hear
an appeal from a lower court. Put in another way, it refers to a decision by the Supreme Court to
hear an appeal from a lower Court.
c. Prohibition: it refers to a law or decree to prohibit something (to say that an action is illegal).
d. Cert. denied: it is an abbreviation used in legal citation to indicate that the Supreme Court
denied a petition for writ of certiorari in the case being cited.

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e. Habeas Corpus: it denotes a writ requiring a prisoner to be brought into Court for a judge to
decide if their detention is legal.
f. Order of Mandamus: it is a writ or court order issued by a high court to a lower court or to a
tribunal, public official, etc. instructing it or them to perform a duty, especially one which it
should have performed.

1.3.2 The Dimension of Civil Wrong

Civil wrongs can be classified under four headings as follows:

i. Breach of Contract: the contract can be written or oral. Also, it should be noted that any time
we make, say, a simple transaction or perhaps board a vehicle, we are directly doing contract.
ii. Tort: Tort refers to any form of wrong. Thus tort implies the following wrongs;
- Assault
- Battery
- False imprisonment
- Trespass
- Conversion
- Defamation of character
- Negligence, and
- Nuisance
iii. Breach of Trust
Trust refers to enforceable obligation placed on a trustee by a settlor (testator) in the interest
of a beneficiary. Trust arises in situations like administration of will etc.

iv. Quasi-contract: this refers to what seems to be a contract that can morph into actual contract
under certain conditions such as when one seeks justice. Take for example a situation where
you use POS to make payment. One may give cash card to the seller who now keys the
amount and the buyer checks on their own to ascertain if there was over-payment in the
transaction. It could also happen that under-payment could result depending upon what the
seller punched in the POS. Any of these situations could make either party to demand justice
if they feel shortchanged particularly the payer when they get alert. Also, for the payee, if they
eventually realize underpayment, may seek that the balance should be made up by the payer
and where such justice is being denied, the seller may treat the case as a breach of quasi-
contract. We shall also note here that when the decision of a lower court is ruled against by
the Superior Court, the situation is variously referred to as:
- Decision of lower court being reversed
- Conviction being quashed
- Verdict of jury being set aside
In legal terminology, information refers to a document making a criminal charge before magistrate.

1.3.3 Pleadings

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It is considered also necessary that the engineer should understand the legal language of proceedings,
particularly civil proceedings under which Business Law is situated. On the issue of pleading of the
plaintiff (declaration) and that of the defendant (defence), it is said that any part of the declaration that
clearly stands alone as grounds for action is called a count. If the action of a plaintiff succeeds on any or
all of those counts, special, aggravated and/or general damage are entered into in favour of the plaintiff.
However, before the judgment, the defendant’s defence is pleaded. This can be crafted in three ways.

i. Pleads a Traverse: in this version, the defendant canvasses, albeit persuasively, to contradict
the facts provided by the plaintiff and thereby show that they are hollow and groundless.

ii. Pleads a Confession and Avoidance: in this, the defendant openly admits the allegation of
facts by the plaintiff and goes ahead to make void and porous those facts thereby whittle down
their legal effects. The defendant may even bring in plea of contributory negligence on the
part of the plaintiff.

iii. Objection in point of law: in this variety, the defendant may again admit the plaintiff’s
statement of fact but plead that in law those facts disclose no cause of action.

1.3.4 Jurisdiction
Jurisdiction means Power or right of a legal or political agency to exercise its authority over a person,
subject matter, or territory. Jurisdiction over a person relates to the authority to try him or her as a
defendant. Jurisdiction over a subject matter relates to authority derived from the country's constitution or
laws to consider a particular case. Jurisdiction over a territory relates to the geographic area over which a
court has the authority to decide cases. Concurrent jurisdiction exists where two courts have simultaneous
responsibility for the same case.

1.4 Sources of Nigerian Law

i. Customary Law: Customary law form an important sources of the Nigerian law because they govern
most of our personal laws (e.g. law of marriage, chieftaincy titles, etc.). However, for its validity the
customary law must be existing native law or custom and not the native law of ancient times. It must
be what the people are practicing now and not in the past. Secondly, the native law or custom must
not be a replacement for natural justice, equity and good conscience. Equity is exercised during
practice of the law, and there is no provision for it in the constitution. Thirdly, the native law and
custom must be compatible with any law of the land for the time is being enforced. Thus, an alleged
rule of customary law must not be in conflict with a valid judicial decision on the same subject
matter.
ii. English Law: First introduced into Lagos during the colonial administration and then into the rest of
the country. It includes the common law of England, the doctrines of equity and the status of general
application enforced in England.
iii. Local legislature: These are passed by the National Assembly or House of Assembly by the
procedure of the constitution. It is also referred to as the common law.
iv. Judicial Precedent: one of the consequences of the English common law is the adoption of the
doctrine of judicial precedent. It means that the decisions of the superior courts will be followed by

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the inferior courts in appropriate cases. Thus, the decision of the higher courts will be binding on all
other courts and it becomes the law of the land.
v.
1.4.1 Organization of Courts in Nigeria
Court is a place where legal cases are heard, in which evidence about crimes, disagreement, ete., is
presented to a judge and often a jury so that decisions can be made according to the law. In Nigeria courts
are organized or structured as follows:
i. Supreme Court: The Supreme Court is the topmost in the list. This is the highest court in the land. It
has the jurisdiction to hear and determine appeals from the Federal court of Appeal. In addition, it has
an original decision too. It arbitrates between the states and Federal Government. The Supreme Court
consists of Chief Justice, and Number of Justices not exceeding 15.
ii. Federal Court of Appeal: It has jurisdiction to hear and determine appeals from Federal High Courts,
State High Courts, Sharia Court and the Customary Courts of Appeal.
iii. High Court: The High Court is next in hierarchy. It consists of:
a.The Federal High Court
b. The State High Court
The Federal High Court has jurisdiction in such matters pertaining to or connected with the revenue of
the Government of the Federation and other federal matters. The State High Court has the jurisdiction
to try all kinds of civil and criminal offences. Almost at the same level with the high court is the
Islamic Court of Appeal.
iv. National Industrial Court: The National Industrial Court of Nigeria also known as NICN is a court
empowered to adjudicate trade disputes, labour practices, matters related to the Factories Act, Trade
Disputes Act, Trade Unions Act, Workmen’s Compensations Act and appeals from the Industrial
Arbitration Panel.
v. Customary Court of Appeal: This exercises appellant jurisdiction in civil proceedings involving
questions of personal laws; something which the constitution did not provide for in the magistrate
court. The states have the will to set these up all over the country. They have limited jurisdiction to hear
civil cases.
vi. Magistrate courts and District court: these courts are established by the State to consider law of tort
as essential for business settings and other related matters.
vii. Customary/Area/Sharia Courts

1.5 Code of Ethics and Conduct

A Code of Ethics governs decision-making, and a Code of Conduct governs actions. They both represent
two common ways that companies self-regulate. They are often associated with companies, and provide
direction to employees and establish a public image of good behavior, both of which benefit businesses
of any size. However, any company large or small, public or private will benefit from having a set of
documented rules in place where employees and other stakeholders can reference to ensure they are
performing in their positions as expected by the company. Code of Ethics referred to general principles to
help guide employee behaviour. The document outlines a set of principles that affect decision-making.
For example if an organization is committed to protecting the environment and "being green", the code of
ethics will state that there is an expectation for any employee faced with a problem, to choose the most
"green" solution. A Code of Conduct applies the Code of Ethics to a host of relevant situations. A

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particular rule in the Code of Ethics might state that all employees will obey the law. A Code of Conduct
might list several specific laws relevant to different areas of organizational operations, or industry, that
employees need to obey. The Code of Conduct outlines specific behaviours that are required or
prohibited as a condition of ongoing employment. For example, It might forbid sexual harassment, racial
intimidation or viewing inappropriate or unauthorized content on company computers.

i. Similarities between Code of Ethics and Conduct:

Both Codes are similar as they are used in an attempt to encourage specific forms of behavior by
employees. Ethics guidelines attempt to provide guidance about values and choices to influence decision
making. Conduct regulations assert that some specific actions are appropriate, others inappropriate. In
both cases, the organization's desire is to obtain a healthy range of acceptable behaviors from employees.

ii. Differences between Code of Ethics and Conduct:

Both are used in an attempt to regulate behavior in very different ways. Ethical standards generally are
wide-ranging and non-specific, designed to provide a set of values or decision-making approaches that
enable employees to make independent judgments about the most appropriate course of action. Conduct
standards generally require little judgment; you obey or incur a penalty, and the Code provides a fairly
clear set of expectations about which actions are required, acceptable or prohibited.

1.5.1 Engineering Ethics and Conduct

Engineering ethics is the field of moral principles that apply to the practice of engineering. The field
examines and sets the obligations by engineers to society, to their clients, and to the profession. Codes of
engineering ethics identify a specific precedence with respect to the engineer's consideration for the
public, clients, employers, and the profession.
Many engineering professional societies have prepared codes of ethics. These have been incorporated to
a greater or lesser degree into the regulatory laws of several jurisdictions. While these statements of
general principles served as a guide, engineers still require sound judgment to interpret how the code
would apply to specific circumstances. The general principles of the codes of ethics are largely similar
across the various engineering societies and chartering authorities of the world.
The fundamental principles of the code of Engineers are to uphold and advance the integrity, honor and
dignity of the engineering profession by:
i. using their knowledge and skill for the enhancement of human welfare;
ii. being honest and impartial, and servicing with fidelity the public, their employers and clients;
iii. striving to increase the competence and prestige of the engineering profession; and
iv. supporting the professional and technical societies of their disciplines.

The Fundamental Canons of Engineer’s codes of ethics are:

1. Engineers shall hold paramount the safety, health and welfare of the public in the performance of their
professional duties.
2. Engineers shall perform services only in the areas of their competence.
3. Engineers shall issue public statements only in an objective and truthful manner.
4. Engineers shall act in professional matters for each employer or client as faithful agents or trustees,
and shall avoid conflicts of interest.

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5. Engineers shall build their professional reputation on the merit of their services and shall not compete
unfairly with others.
6. Engineers shall act in such a manner as to uphold and enhance the honor, integrity and dignity of the
profession.
7. Engineers shall continue their professional development throughout their careers and shall provide
opportunities for the professional development of those engineers under their supervision.

1.5.2 Engineering Code of Conduct

There are several other ethical issues that engineers may face. Some have to do with technical practice,
but many others have to do with broader considerations of business conduct. The purpose of this Code is
to set standards of conduct for registered professional engineers, which
support the objective of the Professional Engineers Registration Act, to promote best practice in
providing professional engineering services. Among other matters, and in line with section 30(3) of the
Professional Engineers Registration Act, this Code includes obligations for registered professional
engineers “to act fairly, honestly and in the best interests of a client”.
i. Know and comply with the law: In providing professional engineering services, a registered
professional engineer must know and comply with-
(a) the Professional Engineers Registration Act and the regulations made under that Act; and
(b) any other laws relevant to the professional engineering services, the professional engineer provides in
the area or areas of engineering in which they are registered.
ii. Be honest and fair: A registered professional engineer who provides professional engineering
services must act with honesty, fairness and integrity.
(a) A registered professional engineer must not- misinform, mislead or deceive any parties when
providing professional engineering services; or
(b) permit their name to be used in relation to any work, document, presentation or publication to falsely
represent their authorship of, responsibility for or agreement with the content or form of the work,
document, presentation or publication.
(c) Deliver good practice of a professional engineering services
iii. A registered professional engineer:
(a) must exercise skill and diligence in the provision of professional engineering services; and
(b) must carry out professional engineering services with reasonable care to achieve the standard of the
services, and within a reasonable time according to the timeframes agreed between a client and a
professional engineer and, if employed, with their employer; and
(c) should seek peer review of the professional engineering services they provide, unless impractical to
do so.
(d) A registered professional engineer must not engage in conduct that is detrimental to the reputation of
the engineering profession or contrary to the public interest.
iv. Inform clients of the consequences of disregarded advice:
A registered professional engineer must take reasonable steps to inform a client and their employer, if
employed, of-
(a) their professional concerns regarding a particular action or project; and
(b) the likely consequences for affected parties if professional engineering advice, decisions, or
judgements are modified, overruled or disregarded.

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v. Act in the best interests of a client

A registered professional engineer must-
(a) act in the best interests of a client unless it would be unlawful, unreasonable, or improper
to do so; and
(b) refuse any services or products from a third party that are contrary to the best interests
of a client.
vi. Act in area of professional competence: A registered professional engineer must not provide
professional engineering services unless:
(a) the services are within their area or areas of competence; and
(b) they reasonably expect to be able to competently carry out the services.
(c) must not directly supervise an unregistered person unless that supervision is within the
registered professional engineer’s area or areas of competence; and
(d) must recognise where other professional advice is required and seek, or recommend the
client and, if employed, the registered professional engineer’s employer seek expert
advice in appropriate areas; and
(e) must be honest about the nature of their qualifications and experience and not make any statements or
publish any material that misleads or is likely to mislead a client or prospective client as to their
professional competence.
vii. Directly supervise: A registered professional engineer who directly supervises an unregistered
person:
(a) must not knowingly permit an unregistered person under their direct supervision to
provide professional engineering services that fall outside their area or areas of competence; and
(b) must be competent in, and have sufficient knowledge of, the professional engineering services being
carried out by the unregistered person; and
(c) must have sufficient control over any outputs of the professional engineering services to ensure that
the professional engineering services being carried out by the unregistered person are at the standard
expected of a registered professional engineer; and
(d) must take responsibility for the professional engineering services carried out by the unregistered
person under their direct supervision.
viii. Maintain confidentiality:
A registered professional engineer must not use or disclose any confidential information of a client or an
employer, if employed, unless-
(a) the client or employer authorises the use or disclosure; or
(b) the registered professional engineer is permitted or compelled by law to disclose the confidential
information.
ix. Manage conflicts of interest:
(a) Before providing professional engineering services to a client, a registered professional engineer
must disclose any actual, perceived or potential conflict with their personal interests or the interests of
another client to each party that may be related to or affected by the provision of the services.
(b) When providing professional engineering services, a registered professional engineer must
disclose any actual, perceived or potential conflict of interest to a client and employer, if employed, as
soon as practicable after discovering the actual, perceived or potential conflict of interest.

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(c) A registered professional engineer, who recommends the services of a third party to a client, must
disclose to the client any personal or business relationship between the registered professional
engineer and the third party.
x. Disclose endorsements and referrals:
A registered professional engineer must disclose to a client or prospective client-
(a) if the registered professional engineer receives, is likely to receive, or has been promised any
payment, gift or other material advantage to recommend, endorse or comment on a product or service that
is or is likely to be used in connection with the provision of professional engineering services to the client
or prospective client; and
(b) any arrangement entered into where the client or prospective client has been introduced or referred to
the registered professional engineer by a third party who the registered professional engineer has given or
offered to provide a fee or reward for the referral of clients or prospective clients.
xi. Be impartial and objective: A registered professional engineer must not-
(a) give or promise to give a client or prospective client any inducement intended to improperly influence
that person's decision-
(i) to engage the registered professional engineer to provide professional engineering services; or (ii)
regarding the professional engineering services being provided by the registered professional engineer; or
(b) accept from any person anything intended to improperly influence the advice provided, or decisions
made, by the registered professional engineer.
xii. Inform and communicate with clients: A registered professional engineer must-
(a) Take reasonable steps to ensure that a client is informed of decisions required of the client in respect
of professional engineering services; and
(b) provide sufficient relevant information within a reasonable time to enable a client to make an
informed decision in relation to the provision of professional engineering services; and
(c) respond, within a reasonable time, to a client's reasonable requests for information or other
communications about the provision of professional engineering services to the client; and
(d) take reasonable steps to ensure that all information and material provided to a client is accurate and
unambiguous.
(e) A registered professional engineer must communicate with a client or prospective client in a timely
and effective manner regarding professional engineering services, fees, costs, outcomes and risks.
xiii. Maintain client records: A registered professional engineer must take reasonable steps to
adequately protect, secure and store a client's paper and electronic records in relation to the provision of
professional engineering services.
xiv. Resolve disputes: A registered professional engineer must make every effort to minimise and
resolve complaints and disputes with a client that relate to the provision of professional engineering
services. If a client makes a complaint to a registered professional engineer about a professional
engineering service, the registered professional engineer must inform the person of the process that the
registered professional engineer or their employer, if employed, has in place
for resolving complaints and disputes as soon as practicable after the complaint is made.

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MODULE 2

LAW OF CONTRACT
2.0 Definition
This forms one of the first laws in business transaction and any transaction involves contract. Contract
may be defined as an agreement between parties intends to give rise to obligations enforceable by law.
There are two classes of contract.
a. Simple contract
b. Sealed contract
2.1 Simple Contract
These are agreements made either by words of mouth or in writing. As far as simple contract is
concerned, there are some elements that are essential to make it enforceable. And one of them is
agreement. The following conditions are essential for the validity of the simple contract
i. There must be offer and acceptance
ii. There must be consideration
iii. There must be the intention to create legal relation
iv. Capacity of the parties (i.e. they must be capable of contracting)
v. Legality and possibility (whatever we are contracting must be possible and allowed by law)
vi. There must be genuine consent.
When any of these elements is missing, the contract may be void ab initio or voidable. It is okay for the
contract to be cancelled if one of the parties no longer wants it.

2.2 Contract Under Sealed

A contract under seal is also termed as sealed contract, special contract, deed, covenant, specialty
contract or common-law specialty. A contract under seal is a formal contract which has the seal of the
signer attached. A contract under seal must be in writing or printed on paper. It is conclusive between the
parties when signed, sealed, and delivered.
Delivery is made either by actually handing it to the other party or by stating an intention that the deed be
operative even if it is retained in the possession of the party executing it. This is the only formal contract,
because it derives its validity from the form in which it is expressed and not from the fact of agreement,
or from the consideration.
Contracts under seal also bear little resemblance to ordinary contracts. A contract under seal is a written
promise or set of promises which derives its validity from the form, and the form alone, of the executing
instrument. The only requirements are that the deed should be intended and should be signed, sealed, and
delivered.

2.3 Offer and Acceptance

2.3.1 Offer
This is an expression of willingness to contract made with the intention that it shall become binding on
the person making it as soon as it is accepted by the person to whom it is addressed. To be capable of
acceptance, the offer must be definite or certain and unambiguous. Therefore, an offer that its terms are

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incomplete or vague cannot serve as the basis of a contract. An offer can be made to a particular
individual, to a group of persons or to the public at large. In the latter case, there could be an advert for
rewards for services rendered.
CASE: Carlill v Carbolic Smoke ball Co.[1892], it is an English contract law decision by the Court of
Appeal, which held an advertisement containing certain terms to get a reward constituted a binding
unilateral offer that could be accepted by anyone who performed its terms. The case concerned a flu
remedy called the "carbolic smoke ball". The manufacturer advertised that buyers who found it did not
work would be awarded £100, a considerable amount of money at the time. Mrs. Louisa Elizabeth Carlill
saw the advertisement, bought one of the balls and used it three times daily for nearly two months until
she contracted the flu on 17 January 1892. She wrote to claimed £100 from the Carbolic Smoke Ball
Company. They ignored two letters from her husband, a solicitor. On a third request for her reward, they
replied with an anonymous letter that if it is used properly the company had complete confidence in the
smoke ball's efficacy, but "to protect themselves against all fraudulent claims", they would need her to
come to their office to use the ball each day and be checked by the secretary. Mrs. Carlill brought a claim
to court. The barristers representing her argued that the advertisement and her reliance on it was a
contract between the company and her, so the company ought to pay. The company argued it was not a
serious contract.
The Carbolic Smoke Ball Company, represented by H. H. Asquith, lost its argument at the Queen's
Bench. It appealed straight away. The Court of Appeal unanimously rejected the company's arguments
and held that there was a fully binding contract for £100 with Mrs. Carlill. Among the reasons given by
the three judges were (1) that the advertisement was not a unilateral offer to all the world but an offer
restricted to those who acted upon the terms contained in the advertisement (2) that satisfying conditions
for using the smoke ball constituted acceptance of the offer (3) that purchasing or merely using the smoke
ball constituted good consideration, because it was a distinct detriment incurred at the behest of the
company and, furthermore, more people buying smoke balls by relying on the advertisement was a clear
benefit to Carbolic (4) that the company's claim that £1000 was deposited at the Alliance Bank showed
the serious intention to be legally bound. The judgments of the court were as follows:
The company was found to have been bound by its advertisement, which was construed as an offer which
the buyer, by using the smoke ball, accepted, creating a contract. The Court of Appeal held the essential
elements of a contract were all present, including offer and acceptance, consideration and an intention to
create legal relations.

2.3.2 Distinction between an Offer and the Invitation to Treat

An agreement can only be complete if the offeree (the person to whom an offer is made) indicates his
acceptance. On his part, the offeror (the person who made an offer) must have done things possible in the
formation of the contract. The offeror may merely initiate negotiations which may or may not ripen to an
agreement. By this reasoning, an invitation to treat is not an offer as such but represents a process of
negotiation that precedes the making of an offer. The issue of a catalogue for example or a display of
goods in shop window is nothing more than an inducement for offer or an invitation to treat or due to do
business and not an offer. This distinction also applies to auction sale in advert. If the auction sale does
not however eventually hold, the contractor is not liable to undertake the sale. It was only an invitation to
offer.

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2.3.3 Acceptance
This is the final expression or assent to the terms of an offer. Acceptance may be determined by word of
mouth where the offer was made orally. Open documents that have passed between the parties or may be
inferred from their conduct. The offeree must accept the offeror‟s offer in the same term. In other words,
he must unreservedly assent to the exact terms proposed by the offeror. But if instead of accepting the
offer as a whole, he the offeree introduces a new element or terms which the offeror has not had the
chance of examination, he is in fact making a counter offer. And the effect of this is that it destroys the
original offer and no one is bound.

Case: HYPE V WRENCH

For example, in case of HYPE V WRENCH: the defendant on June 6 offered to sell an estate for £1000.
On June 8, plaintiff went back to the defendant offering to buy the estate for £950. On June 27, the
defendant wrote the plaintiff rejecting the offer. Finally on June 29, the plaintiff wrote that he was now
prepared to pay £1000. But at that time of June 29, defendant is not ready to sell. The question to be
decided by the court was whether the defendant was obliged to sell the estate.
Held: The court held that no contract existed because the plaintiff letter on June 8 was a complete
rejection of the defendant offer of June 6 and therefore that offer having being destroyed no one was
bound. Plaintiff was no longer able to revive it by changing his mind and tendering a subsequent
acceptance.

2.3.4 Communication of Acceptance

Generally, there must be consensus ad idem (i.e. meeting of the mind) before a valid simple contract can
be concluded. Therefore, even if the offeree has made up his mind to the acceptance, the agreement is not
yet complete yet. There must be an external manifestation of assent i.e. some words spoken or act done
by the offeree or his authorized agent which the law can regard as the communication of the acceptance
to the offeror. Thus where the offeree has not communicated acceptance, his mere acquiesce in silence
may not be taken as constituting acceptance.

Case: Felthouse v Bindley

In this case the plaintiff wrote to his nephew offering to buy his horse for £13.15 and adding “if I hear no
more about him, I consider the horse mine at that price”. The nephew made no reply to this letter but
instructed his auctioneer to keep that particular horse out of safe. The auctioneer inadvertently sold the
horse and the plaintiff sued in conversion (conversion a civil wrong whereby some persons take
possession of another person’s).
The court held that the action must fail because his offer to buy a horse had not been accepted by his
nephew and the mere fact that the nephew instructed the auctioneer to set aside the particular horse and
communicating his acceptance to the plaintiff did not constitute acceptance.
Sometimes the offeror indicates the method of communication of acceptance.

2.3.4.1 Acceptance through the Post Office

What happens when no particular method of communication is prescribed and the particulars are not in
each other’s presence? For instance, where the negotiation had been conducted through the post. This

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question arose as far back as 1818AD in the famous case of Adams V Lindsell. In the case, defendants
and plaintiff were manufacturers and dealers in wool respectively. The defendant offered by post to sell
wool to the plaintiff on September 2. In fact the defendant had misdirected their letter and so it got to the
plaintiff on the evening of 5th September. That same night, plaintiff posted a letter of acceptance which
was delivered to the defendant on 9th September. If the original letter had been properly addressed, a
reply could have been expected by 7th September, but meanwhile on 8th September not having received
such a letter, the defendants went ahead and sold the wool to the 3rd party. Plaintiff sued for breach of
contract. The problem before the court was when might an offer made through the post be regarded as
acceptable?
1. Is it when the letter of acceptance is put in the post?
2. Is it when the letter has been received at the offeror’s address?
3. Is it when the letter has been brought to the actual notice of the offeror?

The court in this case preferred the first option. According to the court, there was sufficient act of
acceptance when the plaintiff put his letter on the post on 5th September. This is so even if the acceptance
letter never reaches the offeror because it is lost through an incident in the post or simply delayed.

2.3.5 Termination of an Offer

This can be achieved in the following:

i. By expressed revocation: The offeror may revoke the offer any time before it has been accepted. But
the revocation of the offer will be of no effect unless and until it has been communicated to the
offeree. There must be some overt act on the part of the offeror to withdraw the offer. The offeror
must not only prove that he has done some act which manifests his intention, but also the act was
brought to the knowledge of the offeree. But the offeror need not do this himself. It may be done by a
third party. What is important is that the revocation has been brought to the knowledge of the offeree.
ii. Lapse of time: An offer which expresses or states that it lasts for a specific time only. But when the
duration of the offer is not limited by expressed, the offer comes to an end after a reasonable time.
What is reasonable time depends on all the circumstances. For example, the nature of the subject
matter and on the means or methods used to communicate the offer.
iii. Subjected to the condition which fails to be satisfied: Failure of the condition subject to which an
offer is made. Where the offeror makes his offer subject to the fulfillment of a condition, failure on
the part of the offeree to fulfil the condition will prevent acceptance from taking place. Such a
condition may be implied from the circumstances of the case.
For example, in Financings Ltd. V Stimson (1962), it was held that regarding a customer’s offer to
take a motor car under hire purchase agreement, the offer being made to a finance company, was
subjected to an implied term that the car remained in the same condition up to the time of the
acceptance of the offer. In this case, the car was stolen from the dealer’s premises and damaged
before the finance company accepted the customer’s offer and in consequence, the customer was not
bound by any agreement.
iv. Death of one of the Parties: When one of the contracting parties dies before the offer has been
accepted, the fact of death will cause the offer to lapse. The offeree will be precluded from accepting
the offer if he had knowledge of the offeror‟s death. An important question is what if he (the offeree)

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had no knowledge of the death? Thus the death of the offeror or offeree sometimes causes the offer to
lapse. The position is not free from doubt, and may be summarized as follows:
The offer lapses when the offeree hears of the death of the offeror.
a. It seems that the death of the offeree will cause the offer to elapse. Duff’s Executors Case (1886):
D received an offer of some shares in return for certain shares held by Mr. D. Mr. D died without
accepting, but his executors purported to accept.
Held: The offer had elapsed on Mr. D’s death.

2.4 Consideration
Usually a contract under seal does not require consideration. Such a contract will be valid in the form in
which it has been expressed. Except of course it can be proved that it was procured by fraud, duress,
undue influence or that the contract was illegal. On the other hand, every sample of contract requires
consideration for its validity. The absence of consideration will render such a contract unenforceable.
Consideration is the price to which the others promise is brought. It means that English law does not
guarantee gratuitous promise. Something must have been given in return to the promise before the
promise will be enforced. For the employer on the building site, the consideration will be the price paid
or the promise to pay for the services rendered. For the contractor who is employed, the consideration
that he gives will be carrying out of the work. Where the consideration is an act, it is called executed
consideration. Where it is a promise to act, it is called executor consideration.
There are some certain technical rules which are applied to consideration and which decide whether or
not, the consideration is valuable enough to be relied on as the foundation of a contract. Some are as
follows;
a. Consideration is required for all simple contracts
b. Consideration must be of some value but need not be adequate. The general rule is that consideration
need not be adequate or equivalent to the promise but it must be of some value to the eye of the law.
It is not for the judge to enquire into the adequacy of consideration. In other words, it is not the
function of the court to measure the comparative value of the defendant’s promise in relation to the
act of promise given by the plaintiff in exchange for it. The parties must be left free to make their
own bargain and determine for themselves what they consider is the proper value of their acts or
promises.
c. Consideration must be legal. As a general rule, a contract cannot be enforced if the promise of one or
both parties is illegal. An illegal promise has no value in the eye of the law and therefore cannot
constitute consideration.
d. Consideration must not be in the past. Past consideration is one which is wholly executed or finished
before a promise is made. For example, X does not know how to swim. He goes to the swimming
pool to find some young children swimming. He says to himself if these children can swim how
about me. He undresses and dives into the pool and begins to swallow water. But Y sees X drowning
and dives to save him. When he recovers, he says to Y but for you I would have lost my life so X
promises to pay N1000.00 in consideration for saving him. But he never pays and Y sues for breach
of contract. The question is can he succeed. He cannot because X promise was made after the act. It
has been said therefore that past consideration is no consideration at all. At least a past consideration
runs as an expression of gratitude for past favours or service or may even be a gift.

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e. Consideration must move from the promisee to the promisor. This simply means that a person to
whom the promise is made must furnish with the consideration. The person therefore can only
enforce the promise if he himself provided consideration for it.
For example,
i. Mr. A, promised to pay a sum of money to Mr. B if Mr. C will do certain act. B cannot enforce
the promise.
ii. where somebody performs an act for which a reward was placed without his realizing this. If after
the act, he learns of this, the question is: Is the person entitled to the reward by law bearing in
mind that he did not furnish any consideration. As a matter of fact, and on point of law, since he
did not furnish any consideration, the contract is not enforceable.
iii. The next case is a situation where A owns B, N100.00. Suppose A has N50.00 only and asks B to
accept and where B does so, that might clear the obligation. Well, the general rule in law is that
any previous obligation before a contract or an act must be fully honoured (exactly and
completely). On the other hand, there is an excuse clause in law furnished by the law of Equity.
This makes use of the doctrine of Estoppel.

2.6 Intention to Create Legal Relation

Besides the elements of offer and acceptance and consideration, there must also be the intention to create
or enter into legal relation in order to bring about a valid simple contract. This is so even although the
arrangement is supported by consideration. It may for instance have been merely a domestic family or
social arrangements. In these cases there is a presumption that no legal relationship was intended.
For example, if A and B agree to have a lunch together and A promises to pay for the food if B will pay
for the drink. It is difficult to deny the presence of consideration in such an instance and yet it is equally
clear that no legal ties were contemplated or created. However in building, engineering and other
commercial agreement, there is a presumption that a legal relationship was intended by the parties. But it
is possible to exclude this presumption by including a clause that the agreement should not be binding in
law. It seems necessary therefore to regard the intention to create legal relation as a separate element in
law of contract.

2.7 Capacity to Contract

Capacity in law denotes the ability to incur legal liability or right. This automatically implies that some
persons do not possess the capacity to make a contract or at least have their capacity impaired. An
outstanding example is that of an infant or a minor. A minor is a person who has not reached the age of
maturity. On some countries, the age is 18 years. While certain contracts are binding upon a minor, others
are not. A minor has a capacity to enter into legal relationships and can be sued for necessaries.
Necessaries are goods suitable to the condition of life of such minor and to his actual requirements at the
time of sale and delivery. This is not confirmed to things which are required to maintain a bare existence
but also includes articles which are reasonably necessary to the minor having regards to his station in life.
Thus, apart from things like food, drinks, clothing and lodging, the term is used or is employed for
articles purchased for real use, so long as they are not merely ornamental or used as matters of comfort or
convenience only. A corporation also is legally capable of entering into such a contract. A company may
be created by an act of parliament or under the company’s Act. In the 1st instance, the contractual powers

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of the corporation will be limited by the act. Under the company’s act, the powers of the corporation to
enter into contract are usually governed by its memorandum or articles of association. Any act that the
corporation does outside this Act will be ultra vires (beyond its powers) and null and void.
Other examples of persons not possessing full capacity to contract are drunkards and mentally disordered
persons.

2.8 The Reality of Consent

The roots of a completed agreement lie in consent. If there is no consensus between the parties, generally
speaking there cannot be said to be a contract. Circumstances which may either be a mistake by one or
both parties because the assent of the parties was obliged through misrepresentation, duress or undue
influence.
i. Mistake: Mistake can be said to be an erroneous mental conception which influence a person to act
or to omit to act. Mistakes generally may be of two types:
a. Mutual mistake: Mutual mistake is one that is reciprocal and common to both parties to a
contract. At common law, contracts based on this type of mistake are void only in case of Res
Extincta and Res Sua. Res Extincta is where the subjected matter of the contract has ceased to
exist or has been destroyed prior to the date of the agreement but that fact is unknown to the
parties. Res Sua deals with mistake as to title and arises more often where a man enters into a
contract believing that the subject matter of the contract is the property of the other party whereas,
as a matter of fact, it is his own.
b. Unilateral mistake: This is the case where the mistake of one of the contracting parties is known
to the other. Ordinarily, a unilateral mistake does not affect the contract unless it is so
fundamental that it can be said that there is no offer and acceptance. The majority of cases in
which unilateral mistake has arisen have been cases of mistaken identity. The identity of the
person with whom one is contracting or proposing to contract is often immaterial. Sometimes,
however and for special reasons the identity of the person is material. In such a case there may be
no contract if a mistake has been made as to this.
For example, in the case of Cundy v. Lindsay, a fraud called Blenkarn wrote the plaintiffs offering to
buy certain goods. He so continued a signature to resemble that of Blenkron & Company a reputable firm
carrying on business in the same street. The plaintiffs dispatched the goods in the belief that they were
dealing with Blenkron & Company. These goods were in turn sold to the defendant who took them in
good faith. The plaintiff sued the defendant for conversion. The Court held that the mistake was one as to
the identity of the other contracting party and the contract was therefore void. Much more difficulties
arise where the parties deal face to face i.e. where the offer and acceptance is made by the parties in each
other‟s presence. In such a case, the offeror must be taken prima facia to have intended to contract
because a person in front of him is the real person and to nobody else. For example, in Phillips v. Brooks
case, another fraud called North entered the plaintiffs shop and selected several pieces of jewellery. He
then wrote out a cheque for the price saying, “You see who I am, I am Sir George Bullough of St. James
Square”. The plaintiff had heard of Bullough and upon consulting a Directory, he found that he was
living in the address given. Then he took the defendants who received it (jewellery) in good faith to
court. From the fact, there are two possible conclusions. The plaintiff either intended to sell to Bullough
and to nobody else.

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The court held that the plaintiff intended to contract with the person in the shop, so the plaintiff failed in
his action to recover the jewellery.
In the case of Ingram v. Little, the plaintiffs, three ladies, put up am advert to sell a car for £717. A
swindler tries to accept this offer. His identity is doubted by the ladies and therefore became wary of the
cheque the swindler offered in payment for the car. He claims to be Mr. Hutchinson of Stanstead Road,
Caterham, which name the ladies found on a telephone directory on cross-checking. The cheque is
accepted from him. Swindler takes the car. The cheque is dishonoured. The ladies sue Little who bought
the car from the swindler for conversion.
Held: Contract is void for mistake since the swindler got no title to the car and he could not therefore
pass a good title even to a purchaser in good faith. The general rule is nemo dat quod non habet – no one
can give a better title than he has.

Lewis v. Avery case: A man advertises the sale of a car. A rogue requests to test the car. The latter likes
the car and both went the former’s financee’s flat where the rogue introduced himself as Richard Greene
a film actor. The rogue writes a cheque of £450 for the agreed sum but the owner of the car refuses on the
ground that the cheque might be dishonoured. Where upon the rogue produced a special pass of
admission to Pinewood studios bearing the name of Richard A. Greene and a photograph of the rogue
claiming to be Greene. The car owner allows the rogue to take the car. The rogue sells it to a third party
for £200. The cheque is dishonoured and the original owner of the car now sues the third party claiming
damages for conversion.
Held: the fraud rendered the contract between the plaintiff and the rogue voidance and, accordingly, the
defendant obtained good title since he bought in good faith and without notice of the fraud, the plaintiff
having failed to avoid the contract in time.
ii. Misrepresentation
The actual conclusion of a contract is often preceded by negotiation between the interested parties.
During a preliminary negotiation between the contracting parties various statements might be made. If
the state made by the parties is intended to be acted upon, they are known as representations. But if such
statement is false, it is a misrepresentation and may give rise to a liability depending on whether it is
fraudulent or negligent. A misrepresentation is fraudulent when it is made knowingly without belief in its
truth or recklessly careless, without it being true or false. In this context, negligence in itself cannot
amount to fraud. If on the other hand no reasonable person would have believed in the truth of the
statement when making it, the court would tend to assume that the belief in the statement is not honestly
claimed and the statement would be treated as simply fraudulent. In the event of fraudulent
misrepresentation, the innocent party may treat the contract as terminated or he can waive the effect of
misrepresentation and complete the contract. He can also in either case obtained damage for decent.
Negligent misrepresentation is one which is made carelessly or without reasonable grounds for believing
it to be true. Apart from statute, a misrepresentation cannot be regarded as negligent unless the
representor (person making the misrepresentation) owed a duty to be careful to the representee.

2.9 Illegality

An agreement though possessing the essential ingredient in the formation of a contract may nevertheless
still be unenforceable because the object sought to be accomplished by the agreement is illegal. An illegal

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contract is one which calls for the illegal performance of illegal act by one of the parties. A contract may
be illegal because it is definitely forbidden by statute or law because it is contrary to the common law
principle of public policy.
When a statute totally prohibits the making of the contract, a disregard of the statute renders the contract
illegal. Statute here includes acts of parliament, presidential decrees, ministerial rules and regulations and
local authority rules and regulations authorized by the constitution or the parliament to make. Such a
statute may declare a contract illegal as a matter of form or illegal as to performance. And by as to a
matter of form, it is meant with regard to a case of procedure being gone through for the sake of legality
or convention. A contract is illegal as to formulation if its very creation is forbidden by the law. In such a
case, the contract is void ab initio (from the very beginning). It’s a complete nullity under which neither
party can enquire right whether there is an intention to break the law or not. A contract is illegal as
performed if though lawful in its formation it is performed by one of the parties in a manner prohibited
by statute.

2.10 Contract Illegal because of Common Law on Ground of Public Policy

Under the common law doctrine of public policy, illegal contracts may fall into two classes according to
the degree of mischief which they involve. If they violate no basic concept of morality but run counter
only to social or economic expediency, they are void. But if either as formed or as performed is so
inimical to the interest of the community that they offend basic conceptions of public policy, they are not
only void but also illegal.

Contract treated as illegal in common law on grounds of public policy are the more reprehensive types of
contract. An example of such are:
i. Contract to commit a tort, crime or fraud on a third party.
ii. Contracts that are sexually immoral
iii. Contracts that are prejudicial to the public safety
iv. Contracts that are prejudicial to the administration of justice
v. Contracts to defraud the revenue
vi. Contracts liable to corrupt public life, etc.

2.11 Discharge of Contract

The discharge of a contract occurs when the parties to the contract are free from their mutual obligation.
The extent of their freedom depends however upon the mode of discharge. Discharge may be affected by
the following ways.
a. Performance: A normal method of discharge is where both parties perform the obligation. In this
event the contract is completely extinguished in the sense that both parties are free from further
liabilities. As a general rule, the law does not regard a promisor as discharged unless he has
completely and precisely performed the exact thing that he agreed to do.
b. Express Agreement: What has been created by agreement may be extinguished by agreement.
This means that the parties to an existing contract can by another agreement extinguish the right
and obligation that has been created by the first contract.

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c. Discharge by frustration: Frustration is said to occur when subsequent to the making of a

contract a change of circumstances renders the contract legally or physically impossible of
performance. What the courts have held in such a case is that if some catastrophic events occur
for which neither parties is responsible, and if the result of that event is to destroy the very basis
of the contract, so that the venture to which the parties now find themselves committed is
radically different from that originally contemplated, then the contract is forthwith discharged. It
follows therefore that mere hardship or inconvenience to one of the parties is not sufficient to
imply discharge by frustration and furthermore where the act constituting frustration has been
self-induced the party at fault cannot rely on it. It is not to tabulate or classify all the
circumstances to which the doctrine of frustration applies in the following situations.
i. Destruction of the subject matter: Where the performance of the contract has been
rendered impossible by the destruction of the specific thing essential to the performance of
the contract, in this case the contract will be frustrated.
For example, case of Taylor v. Cadwell, A has agreed to give B the use of a music hall on
certain specified days for the purpose of holding concert. The hall was accidently
destroyed by fire six days before the contract day. It was held that the contract was
discharged.
ii. Personal incapacity: When the contract is for personal service, a subsequent incapacity
either by ill-health, death or a call for military service or imprisonment may discharge the
contract.
iii. Non-occurrence of an event: The doctrine of frustration applies to discharge of contract in
the case of the non-occurrence of an event which was regarded as the basis of the contract.
Recall the case of the coronation of a king in a hired hall or venue. The king eventually
dies. Because the coronation did not take place eventually, the contract is discharged.
iv. Interference by the Government: This is a common cause of frustration and happens
especially in time of war where for example the labour or material necessary for the
performance may be requisitioned or the premises upon which work is to be done is
temporarily ceased for public use. In such an event the contract is discharged.
v. Subsequent illegality: A subsequent change of law which renders the whole performance
of a contract illegal may also serve to discharge the contract. Parliament or another
authority may intervene by legislative act to affect the legal situation of the contracting
parties. When such a change renders the performance of a contract illegal, the contract is
discharged.

2.11.1 Effect of the Doctrine of Frustration

The position at common law is that the occurrence of the frustrating event brings the contract to an end
forthwith, without more ado, that is, automatically or immediately. Frustration only discharges the
contracting parties as to their future obligations under the contract. All legal discharges the contracting
parties as to their future obligations under the contract. All legal right already accrued to the parties or
money already paid by one party to the other before the frustrating event happens is left intact. But this
principle which means that any loss arising from the termination of the contract must lie where they have
fallen, might cause a hardship to one or the other of the parties.

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For example, in Chandler v. Webster case, X agreed to let a room to Y for the purpose of viewing the
coronation procession of 1902. The price was £141.15 payable immediately. Y paid £100.00 and still
owed the balance when the contract was discharged owing to the abandonment of the procession. It was
held that not only that Y has no right to recover to the sum of the £100.00 but also he remains liable for
the £41.00
The decision in that case caused general dissatisfaction and was over-ruled by the House of Lords.
Fibrosa Case. In the Fibrosa case, the ruling or the decision of the House of Lords states in essence that
money paid can be recovered when there has been a total failure of consideration. This rule in Fibrosa
case thus applies only in cases of total failure of consideration. Thus, where there has been an advance
payment and only in cases of total failure of consideration has occurred i.e. if the payer has received
some benefits under the contract no matter how small that benefit may be, it cannot recover what he has
been paid.

2.11.2 Discharge by Breach

There is a breach of contract whenever one or both parties failed to perform the obligation imposed upon
them under the contract. This may occur when one of the parties expressly or impliedly repudiates or
renounces the obligation in the contract or where a party by its own act or default renders his promise
impossible of performance. In such a case he is not entitled to treat the contract as discharged.

2.11.3 Remedies for Breach of Contract

In public law and contract, liabilities are clear cut. The legislative provisions tell the individual precisely
what he must not do. The terms of the contract that he has made define what his obligation under that
contract might be. But the individual has an obligation over and above these. These obligations that are
placed on him as a member of a society and through the legal systems, places obligation of civil nature
upon all members, the obligation not to injure another by our actions. The law thus imposes such a civil
obligation; a breach of that obligation may give rise to an action in damages by the injured parties. That
action is in tort.

1.12 Law of Tort

Tort then can be described as an act or omission to act which is unauthorized by law and which infringes
either on some absolute or qualified rights of another and gives rise to action for damage at the suit of the
injured party. No one has yet succeeded in formulating a perfectly satisfactory definition of tort but from
the above attempt, it will be seen that two distinct factors are necessary to constitute a tort. First, there
must be some act or omission, must not be authorized by law and secondly, this wrongful act or omission
must in some way inflict an injury, special, private and peculiar to the plaintiff as distinguished from an
inquiry or the public at large.

The law of tort has a very important part in the construction industry. The tort of negligence, nuisance,
trespass and strict liability rule under the doctrine laid down in Rylands v. Fletcher.
And other matters with regards to tortuous acts likely to affect person employed in the industry will
constitute the subject of our discussion here.

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But first we must make certain remarks concerning tortuous liabilities in general. First of all, the interests
protected by the law of tort consist of both personal and proprietary interests as is a
Person’s reputation or business interests, his family relationships and his rights to be free from unjustified
process of law.
Secondly, as a general rule, the person who commits the tort is the one who must pay damage as a result
of his action. But this is not always the case, for the law does recognize also the principle of Vicarious
Liability i.e. the principle that a man can be liable for actions done by another. For the man working in
the construction industry, this is of particular importance for two reasons. First, he will find that in many
instances, statutes places a particular obligation upon him and he alone carries the obligation and cannot
delegates the performance of his duty to anyone else. Thus if a contractor employs someone to carry
away some refuse to a certain site he will remain liable for its bad disposal if the lorry driver dumps it on
someone else’s property.
Secondly, the principle is of importance to the firm in the realm of employment law. The rule is that an
employer is to be regarded as liable for all actions of employees provided they were carried out within the
scope of that employee’s authority or employment.

2.12.1 Liability in Negligence

The law of negligence cuts across various topics in the law of tort. Negligence has been defined as a
breach if a legal duty to take care which results in damage undesired by the defendant to the plaintiff. To
found an action in negligence, three elements must be present:
 A legal duty imposed on the defendant to take care of the plaintiff. The question whether a duty
exists in such a case is decided by the court and numerous categories. Of such a situation for
example the maker of foils owes a duty to those who use them, a workman engaged in a skilled
occupation owes a duty to his client or a customer. The man who works on the highways owes a
duty to other highway users. The occupier of a property owes a duty to those who come upon his
property lawfully.
 Secondly, there must be a breach and
 thirdly a consequential damage to the plaintiff which arose from the breach.
In this, and all other circumstances involving negligence, once a duty is shown to exist it will cover
injury to all those persons who might foreseeably be injured by the negligent act.

2.12.2 Professional Negligence

Architects, surveyors, engineers and other professional men hold themselves out as possessing particular
skills. The law expects such person to display an average amount of competence associated with the
proper discharge of the duties attendant to their profession. It must be stressed that the law does not
demand the highest degree of skill shown by persons in that profession. It is reasonable competence only
that is expected. Qualified for some years, an Engineer may fall behind the time in the sense that he may
find himself less competent than more recently qualified men. The law demands that he keeps himself
reasonably up to date and so he should not obstinately carry on with the same old techniques if it has
been proved to be contrary to what is really substantial to the whole of formed opinion.
An unqualified may not be regarded as negligent if he uses practices which are commonly accepted
within his profession even if a large number of colleagues feel the practice or practices are not wise. The
basic question of whether he is ever negligent or not lies on the objective, standard of reasonableness and

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whether the care taken by the Engineer, Architect, Survey or other professional is reasonable or not will
depend upon the circumstances of every particular case.
An often reliable guide is that of standard of care and foresight applied in every trade as a matter of
general practice. The employee who is sued for negligence might be able to find a defence on the claim
that he has followed all the standard procedures in carrying out the work and should therefore not be
regarded as negligence. But this answer in itself is not always sufficient. It is open to the court to decide
that, standard of practice or not, it is still a practice which does not measure up to the general status of a
reasonable man.
Usually, it is necessary for the injured party to show that the defendant had been negligent. The duty of
care is first established and then breach of that duty give rise to liability.
But in some cases, the burden of proof is reversed and falls on the defendant so that it is for him to prove
that he was not negligent. This is in accordance with the doctrine of Res Ipsa Loquitor, (meaning the
facts speak for themselves). It applies in those situations where the harm is of the kind that does not just
happen on its own but was caused by something in the control of the defendant and therefore must first
be regarded as having been the result of the defendant’s negligence.
It will now be convenient to discuss the particular types of situation in which a person might find himself
faced with the action in negligence. This might be with reference to four classes viz:
i. Liability to defence chatter: From the point of view of construction industry, liability under this
head will largely arise from the methods used or tools supplied in the course of work. This
situation was neatly summarized by Cotton, L. J. in the case of Heaven v. Pender. He said
anyone who without due warning supplies to others for use an instrument or thing which to his
knowledge, from his construction or otherwise, in such condition as to cause (injury) danger is
liable for injury caused to others by reason of his negligent act. In that case H was employed by
an employed by an independent contractor who was engaged to paint a ship. The rope supplied by
the employer was defective and H was careless he did not know of the defect. The court held that
the employer was liable for injuries sustained as a result of the defective rope. The whole concept
of negligent behavior under the head was extended in the well-known case of Donoghue v.
Stevenson. The effect of the judgment in that case is that it does not base the duty of care on
reasonable foresight. In other words, there is a question of negligence only if it is established that
the likelihood of injury to the plaintiff can reasonably be foreseen. But where injury or damage is
so remote that the defendant cannot foresee that his act or omission will cause injury to the
plaintiff, he will be excused.
ii. Liability under the occupiers (Occupiers Liability Act 1957): This term occupier means anyone
having physical control or possession of the premises. It certainly covers building and
construction sites and those using fixed or movable structures such as lifts. There may indeed be
more than one occupier of the premises. For instance, the contractor will fall under the definition
on a construction site and so will be the employer. Similarly, a subcontractor may be regarded as
the occupier of the whole or part of the sight. The act regulates the duty of the occupier in relation
to structural defects or other dangers due to the state of the premises themselves. The act states
that the occupier has the common duty of care. Although, the duty is a common duty towards all
visitors, special reference is made to two particular cases viz:
a. An occupier must be prepared for children to be less careful than adults.

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b. An occupier may expect that a person, in the exercise of his business, will appreciate and
guide against any special risk ordinarily incident to it so far as the occupier leaves him free to
do so. E.g, A mere warning of a defect or danger on the premises is not enough in itself in all
circumstances particularly where that child is involved.

iii. Liability within the employer/employees relationship: In this relationship, there is a duty
which is personal to the employer to take reasonable care for the safety of his workmen whether
the employer be an individual, a firm or a company, and whether or not an employer takes the
share in the conduct of the operation. The employer will thus have an obligation personal in
nature towards the men that he employed on his site.
iv. Liability for negligent mis-statement: The tort of deceit is highly relevant in considering the
law of contract, as the liability to pay damages for a fraudulent misrepresentation arises
independently of contracts. The importance of this is that a person who was suffered damage as a
result of a fraudulent misrepresentation made to him can sue for damage not withstanding that he
is not in contractual relationship with a representer. So, a builder who suffers damage as a result
of Architect’s fraudulent misstatement can be sued to recover damages notwithstanding the
absence of any contract between them.
Although the court has always imposed a duty to avoid making careless statements which results in harm
to other person, yet it has always drawn a distinction between a careless statement that cause physical
injury to the person and that which cause financial or economic loss. In the former, a duty of care exists
while the court until the recent case of Hedley Bryne v. Heller consistently held that, in the latter, no duty
of care existed in the absence of fiduciary or contractual relationship. It is now clear as a result of this
decision that circumstances can exist
where an innocent but negligent mis-statement does give rise to a liability in damage notwithstanding the
absence of any contractual relationship between the parties.
In addition to the fact that the statement is inaccurate or false it must also be established that the person
making the statement was careless or negligent in making it and owed a duty to the person to whom it
was made.
It would appear therefore that the duty of care exists when a party seeking information from a party
seeking information from a party possessed of special skills or knowledge trusts him to exercise due care,
and that he knew or ought to have known that reliance was being placed on his skill and judgement. This
duty seems to extend to all professionals, Engineers, architects, etc.
A contractor who may be either an engineer or architect may also be liable to a third party because of the
damage to the property of the third party as a result of his building or Engineering operation. Such
liability under the rule in Rylands v. Fletcher or trespass to property such as land.

2.12.3 Nuisance

The essence of the tort of nuisance is that it involves an interference with the employment of land. The
interference may be by water, fire, smoke, smell, gas, noise, heat, disease or any such thing which may
cause such an inconvenience.

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Nuisance may be public or private. A public nuisance consist of some unlawful act or omission in the
discharge of some legal duty, which act or omission endanger the lives, safety, health or comfort of the
public or by which the public is obstructed in the exercise of some common rights.

Public nuisance covers not only those acts or omission which interfere with the definite public rights for
example obstruction of public highway but also which endanger the health, safety or comfort of the
public of the public generally. So, where a sanitary authority so manage their sewage disposal as to affect
the health or comfort of the public, they commit a public nuisance. So also does a person who allows
rubbish or filth to be deposited on his land so as to be injurious to the inhabitants of the neighbourhood.

It is however important to note that a private person can only bring an action for damage in respect of
public nuisance if he can show that he suffered some substantial damage peculiar to himself in his person
or trade over and above that suffered by the public at large. Thus a person who is merely prevented from
using the highway as a result of some obstruction suffers only the same damage as any other user of the
highway. But if on using the highway, he suffers damage peculiar to himself and has the right of action.
A person is said to have committed a tort of private nuisance when he is held to be responsible for
indirectly causing physical injury to land or substantially interfering with the use or enjoyment or an
interest in land, where in the light of all the surrounding circumstances, this injury is held to be
unreasonable.
The tort covers a very wide field. It covers physical injury to land by vibrations from building operation.
For instance the plaintiff may have to show that the vibrations make his work impossible to be carried out
or has damaged the foundation of his own building.
Occasionally, there may arise a conflict or injuries (injustice or unfairness) between neigbouring land
owners. The law of nuisance has thus readjusted the respective rights of those neighbours. Thus in
judging what constitutes nuisance in such a case a balance has to be maintained between the right of the
occupier to do what he likes with his own property and the right of his neighbour not to be interfered
with. It is impossible to give any precise or universal formula but it may broadly be said that a useful test
is what reasonable according to ordinary usages of living ina society or more correctly in a particular
society.
Therefore, to do something in sheer wantonness and with the proof intention (accumulated evidence on
which a verdict is based) to annoy such as deliberately and continuously making noise or firing guns in
the immediate neighbourhood of another‟s land is evident that the defendant is not using his property in a
legitimate manner and may therefore amount to a nuisance.
The Rule in Rylands v Fletcher: This rule states that a person who for his own purpose brings on his
land and collects and keeps there anything likely to do mischief if he escapes, must keep it at his perils
and is prima facia liable for the damage which is the natural consequences of his escape. This rule takes
name from the famous case of Rylands v. Fletcher, which is the leading authority in it. In that case, the
defendants employed independent contractors to build a reservoir on land. Through the negligence of the
contractors, disused shaft upon the site which communicated with the mine of the plaintiff beneath the
neighbor’s land was not locked up. Upon filling of the reservoirs, the water escaped down the shaft and
flooded the mine of the plaintiff. Although, the plaintiff was not negligent, he was held liable. But certain
requirements must be satisfied before the rule can apply. First, the rule applies for a person who for his

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own purpose brings on his land and collects and keeps the thing in question. What matters is whether a
particular thing has infact been accumulated there.
If therefore water flows from A’ underground tunnel to B’s mine whether by force of gravitation or by
percolation, A is not liable under the rule for that escape because the water was naturally on A’s land and
he did nothing to accumulate it there. So the rule applies only to things artificially brought or kept upon
the defendant’s land.
Secondly, there must be an escape from the place where the defendant has an occupation or control over
the land to a place which is outside his occupation or control.
Thirdly, damage must be proved. However, when the rule operates, the defendant may defend himself by
proving consent of the plaintiff. That is, if the plaintiff has expressly or impliedly permitted the defendant
to accumulate thing, the escape of which he complained of, then he cannot sue his escape.
Also, the defendant may show that the plaintiff was in one way or the other responsible too for the escape
which caused the damaged.
Furthermore, where the third party over whom the defendants articulately escaped, in the absence of
negligence on the part of the defendants, he is not liable for the damage resulting from the third person’s
action.

2.12.4 Trespass

Intentionally or negligently or remaining on or indirectly causing any physical matter to come in contact
with land in the possession of another is trespass. As a result of Engineering or Building Operation, one
may negligently enter or remain on or directly cause some physical matter to come into contact with the
land in the possession of another. This amounts to the tort of trespass and is auctionable. This tort
protects the interest of the plaintiff in having his land free from physical intrusion. In order to maintain an
action of trespass, the plaintiff must be in the possession of the land. Because trespass is an injury to
possession and not to little ownership. So all what the plaintiff has to prove in an action of trespass is that
he is in possession of the land. He needs not prove that he actually owns the land. Furthermore, as with
the other forms of trespass the immediate act must constitute a trespass he complained of. It is therefore
not trespass if the evasion of the plaintiffs’ land is merely consequential upon the act of the defendant.

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MODULE 3
INDUSTRIAL RELATIONS

3.1 Definition
Industrial relation refers to a relationship between the employers and employees. It also refers to a field
of study that examines these types of relationships, especially groups of workers in unions and their
employers. The employers are represented by management and employees are represented by unions
3.2 Employment law and unionism,
Employment law is the section of laws that govern the relationship between an employee and their
employer, including the rights and responsibilities of both parties. It helps to ensure that a workplace is
safe and appropriate to work in, govern the time/period that an employee can work and determine the
wages that an employee can receive. Included in employment law are many regulations from all levels of
government. Due to how extensive employment law is, it's often divided into different areas, such as
workplace safety, wages, benefits, family and medical leave, unemployment and workplace conduct.
3.2.1 Importance of Employment law
Employment law is designed to ensure that all parties in a business get treated fairly and ethically, which
can help to keep a business running efficiently. If both an employer and employee understand what their
rights and obligations are, they can be more prepared in certain situations, such as in a case of salary
misclassification. Employment law can also help to prevent work disruptions between employees and
management by setting standards to govern the workplace. Employment law can mitigate issues that may
arise in the workplace as employment discrimination (based on characteristics such as race, color,
religion, gender or national origin).
3.3 Unionism at Workplace
Unions are groups of workers organised together to win a better deal at work. In most workplaces where
unions are active, members will get together to talk about what’s going on – and any problems they are
having. The issues most likely to come up are pay, pensions, safety at work, unfair treatment, or simply
the way work is organised. The union members elect someone to speak for them, known as
Representative. In many workplaces, the union is legally recognised by the employer. In these
workplaces, the union reps have the right to formally negotiate with managers about pay and other terms
and conditions.
3.3.1 Freedom to Join and Form a Union
Constitution of Nigeria provides freedom to join and form unions. Every person is entitled to assemble
freely and form association with trade union or any other association for the protection of their rights,
with an exception to workers of armed forces; police; customs, Immigration and the prison service and
other special services. Labour law states that the contract of employment must not make it a condition of
employment to join or leave the trade union. An employer must not dismiss any worker due to his
association with the trade union and the activities of the union.

3.3.2 Trade union

A trade union is an organisation made up of members (a membership-based organisation) and its
membership must be made up mainly of workers. One of a trade union's main aims is to protect and
advance the interests of its members in the workplace. Most trade unions are independent of any

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employer. Also, the purpose of trade union is to regulate the terms and conditions of employment of
workers. Trade unions may not operate without being registered with the official registrar of trade unions,
provided that the application of registration is supported by at least fifty members of the union. This
registration must be approved by the government. Trade union may not be registered if a properly
functional union is already operating in the organisation. Trade unions must also have registered rules
that include provisions dealing with matters such as the union's purpose, funds, accounts, membership
dues, officers and discipline. The mandatory rule is that no member of the union may take part in a strike
unless all necessary options to dispute has failed to yield results and a majority of members of such union
duly supported the action.
However, trade unions try to develop close working relationships with employers. This can sometimes
take the form of a partnership agreement between the employer and the trade union which identifies their
common interests and objectives. The objectives of trade unions are to:
i. negotiate agreements with employers on pay and conditions
ii. discuss major changes to the workplace such as large scale redundancy
iii. discuss members' concerns with employers
iv. provide members with legal and financial advice
v. provide education facilities and certain consumer benefits such as discounted insurance, etc

3.3.3 Collective Bargaining

Labour Law defines collective bargaining as the process of arriving at, or attempting to arrive at, a
collective agreement. Collective agreement is an agreement in writing regarding working conditions and
terms of employment concluded between one or more trade unions or other organisations of workers (or
an association of such organisations). A collective agreement is interpreted by a National Industrial
Court. Collective bargaining takes place when a trade dispute arises. Trade unions elect a representative
to negotiate with the employer. Both parties must try to settle the dispute by any agreed dispute
resolution mechanism. In absence or failure of it, parties must appoint a mediator (mutually agreed on
and appointed by the parties), within seven days to settle the dispute.
If the mediator fails to settle the dispute, it is then reported to the Government. Government appoints a
mediator to bring about a settlement; otherwise the Government refers it to the Industrial Arbitration
Panel. The panel establishes an arbitration tribunal to make an award within twenty-one days.
Government can refer back an award for reconsideration. Once the award is accepted the parties have
seven days to object to the award. In case of no objection, the award is published and becomes binding in
the employers and workers to whom it relates.
In case of objection, the dispute is referred to the national Industrial Court for the final decision. Equally
too, the Government can refer directly to the court without going through arbitration tribunal stage.
The National Labour Advisory Council (NLAC) is the national tripartite consultative mechanism that
provides consultation and co-operation between the government and the organizations of workers and
employers at the national level on matters relating to social and labour policies and international labour
standards.

3.3.4 Right to Strike

Strike is the cessation of work by a body of employed persons acting in combination, or a concerted
refusal or a refusal under a common understanding of any number of persons employed to continue to

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work for an employer in consequence of a dispute, done as a means of compelling their employer, or to
aid other workers in compelling their employer or any persons or, to accept or not to accept terms of
employment and physical conditions of work.
No individual, trade union or employer may take part in a strike or lockout if that person, trade union or
employer is engaged in the provision of essential services; the strike or lockout concerns a labour dispute
that constitutes a dispute of right (rights already specified in law, collective agreement or employment
contract); the strike or lockout concerns a dispute arising from a collective and fundamental breach of
contract of employment or collective agreement on the part of the employee, trade union or employer;
and a ballot has been conducted in accordance with the rules and constitution of the trade union at which
a simple majority of all registered members voted to go on strike.

3.4 Terms and conditions of employment

The terms and conditions of employment relate to the requirements set out in an employee’s contract,
which include information on rights, responsibilities, duties, legislations, and work benefits, which must
clearly and fairly set out.
Without following the right procedure, you could end up facing an employment dispute/tribunal. Where
you might have to pay out compensation and have your decision reversed.
The right employment contract will depend on your company. Terms and condition for a small business
will be drastically different to larger enterprises. But in the end, having the legally correct form is vital
for all business owners.

3.4.1 Employment legislation

The main law which protects terms and conditions of employment come under the Employment Rights
Act. The act protects employment matters such as:
i. Contract of employment
ii. Pay
iii. Dismissal and grievances.
iv. Time off.
v. Pension.
vi. Studying and training.
vii. Maternity, paternity, and flexible working.
viii. Termination of employment.

Terms and conditions of a business are often found through written contracts. But they can also be found
through:
i. Written statement of employment.
ii. Verbal agreements.
iii. Offer letters.
vi. Employee handbooks/Condition of service.
vii. Business manuals.
viii. Legal regulations.
ix. Implied agreements.
x. Collective agreements.

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Be cautious when using non-documented agreements, like verbal contracts, as they can easily lead to
disagreements and legal issues. Employers should recognise the importance of terms and conditions
through written documents. This can reduce any chances of being held liable if contract terms are written,
especially when challenged with unfair claims and tribunal hearings. They can enhance clarity for your
terms, as well as reduce any chances of being held liable.
Terms and conditions within legal means often concerns matters like, workplace safety, healthcare, and
equal rights policies. General terms and conditions can sometimes be negotiable between employer and
employee. But some might be applied across the entire business, to set a standard or keep legal
compliance.
(a) Examples of job-specific terms and conditions are:
i. Job specifications and roles.
ii. Working hours and days.
iii. Exempt and non-exempt conditions.
iv. Benefits and compensations.
v. Dispute resolution processes.
(b) Examples of company-wide terms and conditions:
i. Dress code policies.
ii. Payment schedules.
iii. Basic employee benefit information (like healthcare, retirement plans, etc).
iv. Absence, holidays, leave procedures.
v. Performance and probation policies.
vi. Disciplinary procedures.

3.4.3 Change of terms and conditions of an employment contract

Employers can change terms and conditions of employment, but they must do it lawfully. Some common
reasons for changing terms can be reducing salaries, changing work hours, applying promotions, etc.
However, for written employment contracts, they must be agreed upon by both parties before actioning
any change. Otherwise the organisation could be held liable and risk facing employment hearings and
compensation penalties. This is necessary for anything with contractual force, not just the written
contract. For example, if the employee handbook is contractual, changes to terms must be agreed.

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MODULE 4
INTELLECTUAL PROPERTY
4.1 Definition
Usually, Intellectual Property (IP) covers products of intellectual creations, which the law ascribes the
exclusive right of appropriation to the designated owners. Intellectual Property law is a body of laws that
governs all the relevant aspects of intellectual property right, such as Patents, Copyrights, Trademarks,
License, Royalty, Ownership, Registration, etc. In Nigeria, several laws have a bearing on the protection
and administration of the different rights that make up intellectual property. However, the three main
statutes governing the intellectual property law in Nigeria are the Patents and Designs Act, Copyrights
Act, and the Trademarks Act. These laws govern the protection and administration of the predominant
Intellectual property protected in Nigeria as follows:

4.2 Patents:
Patents law is channelled towards protecting inventions that extend to things like machines, devices,
chemical compositions, and manufacturing processes. Essentially, the law protects the owner against the
independent development of the patented subject matter. It is a grant from a government that confers
upon an inventor the right to exclude others from making, using, selling, importing or offering an
invention for sale for a fixed period. This invention may be a new product or process. The patent protects
the inventor from others who may attempt to make, use, distribute or sell the invention without the patent
owner's consent.

Patentable inventions are inventions in respect of which the law will grant a patent. The Patent & Designs
Act Cap P2, Laws of the Federation of Nigeria, outlines conditions for an invention to be deemed
patentable. According to section 1(1) of the Patent & Designs Act, an invention is considered patentable
if it meets the following conditions;
i. It must be new
ii. It must be the result of an inventive step; and
iii. It must be capable of industrial application.

In Nigeria, Patents cannot be validly obtained in respect of:

(a) plant or animal varieties, or essentially biological processes for the production of plants or animals
(other than microbiological processes and their products); or
(b) inventions of exploitation of which would be contrary to public order or morality
Furthermore, the provisions of section 1(3) of the Patent & Designs Act states that any publication made
available to the public by oral disclosure, a document or a prior use will destroy the requirement of
novelty and ultimately make an invention non-patentable. However, provided that an invention is not
deemed to have been made available to the public merely because, within six months preceding the filing
of a patent application in respect of the invention, the inventor or his successor in title has exhibited it in
an official or officially recognised international exhibition.

Again, the rights conferred on a patentee are not automatic. They require the statutory formality of
registration as provided in section 2 of the Act to bring them into effect. This is done through the office
of the Registrar of Patents in the Federal Ministry of Industry, Trade and Investment. The Registrar has a

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duty under the Patents & Designs Act to examine all patent applications to ensure that they conform with
the provisions of the Act. However, it is essential to note that the examination here does not amount to an
analysis in substance but rather form. Mainly, in making an application, it is crucial for an applicant to
adequately state the specifications and claims of his invention, which he desires to protect in the patent
application. The reason for this is that the specification and claims are the heart of patent law. Claims
define the boundaries of the patent's property right that the patent confers. They clearly define a patent
owner's property right.

Overall, once an application satisfies all the Patents & Designs Act requirements, the Registrar will grant
the application without any further examination of the fact of patentability or non-patentability of the
subject matter of the application. The patent grant gives an inventor monopoly rights for a limited period
to make, use or apply the process or product of his inventive ingenuity. A patentee is entitled to the sole
ownership and profits arising from his invention during the patent's lifetime, usually twenty years (20
years) in Nigeria.

Industrial Designs: Industrial designs are those elements incorporated into mass-produced items that tend
to enhance attractiveness by their appearance. Industrial design protection covers designs that are original
and novel. It is called industrial design because for it to qualify for protection, the design must be capable
of application for mass or industrial reproduction. According to section 12 of the Patents & Designs Act,
industrial designs are created as models or patterns to be multiplied by an industrial process and not
intended to achieve a technical result, i.e. relate to or improve on the functional feature of a product
without which the product cannot perform its functions. Hence, if a design relates to a functional element
or enhances the functionality of a product, it will not be registrable as an industrial design and is more
suitable for patent protection. The net effect of this section is that a design need not be functional nor add
value to the ability or substance of the article. It suffices if all the design does is to attract attention or that
it is eye-catching to influence consumers. There are two fundamental conditions an industrial design must
fulfil before it can be registrable;
i. Newness
ii. Not contrary to public order or morality
iii. The right to protection of a registrable industrial design is based on the priority of registration, i.e. a
party who registers first receives priority. Section 14 of the Patent & Designs Act vests the right to
register the design in the statutory creator. A registered design protects the shape of the product, i.e. lines,
colours or any three-dimensional form.

The idea is to prevent others from reproducing the product's exterior design for industrial use. The owner
of a registered design can prevent others from copying, importing, illicitly profiting, selling or utilizing
for commercial purposes by reproducing the design. In Nigeria, a registered design is protected for five
years from the date of the application for the registration.

4.3 Copyright:
Copyright in an intellectual work is that exclusive right of the author of the original work to control or
enable the doing of certain expressly stated acts in respect of the whole or substantial part of the work

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either in its original form or in any other recognisably derived from the original form but subject to
certain statutory exceptions.

Therefore, the copyright laws refer to the law that seeks to protect the rights of authors of such works
that have been expressed in specific forms for the transformation or reproduction by persons who are
neither authorised nor licensed by the copyright owner.

Copyright is governed by the Copyright Act Cap 68, Laws of the Federation of Nigeria, 2004. Section
1(1) (a-f) of the Copyright Act provides for works protected by copyright which include;

i. Literary works
ii. Musical works
iii. Artistic works
iv. Cinematograph films
v. Sound recordings, etc.

Overall, there are two criteria by which a work is adjudged to be eligible for copyright protection in
Nigeria: originality and fixation. Thus, all copyright works must be original and expressed in a definite
medium to be protected under the law. This is because copyright does not protect ideas but rather how
ideas are expressed. By the provisions of section 1(2) of the Copyright Act, a literary, musical or artistic
work must satisfy the twin requirements of originality and fixation.
Finally, it is crucial to note that works that satisfy the above conditions enjoy automatic copyright
protection without registration or compliance with any formal rules. Nonetheless, the Nigerian Copyright
Commission (NCC) provides owners of copyrights the option to deposit a copy of their works with the
NCC and receive a certificate that serves as notification of the existence of the work to the general public.

4.4 Trademarks:
A Trademark is any mark, sign, or combination thereof that the owners' design to identify their product
and differentiate it from other manufacturers' products, especially competitors. There is a peculiar
measure of identity associated with your goods. Section 67 of the Trademarks Act Cap T3, Laws of the
Federation of Nigeria 2004, defines a trademark as: A word, letter, label, numeral, colour, signature,
device or any combinations of words, letters, labels, signatures that identify and distinguish the source of
the goods or services of one manufacturer from those of others in the course of trade.
Trademark distinctiveness is an essential concept in the law governing trademarks and service marks. A
trademark may be eligible for registration if it performs the critical trademark function indicated above
and is distinctive. An essential role of any brand is to point the consumer to the origin of the marked
goods and services; to do this, a trademark must distinguish the said goods or be capable of doing so.

Distinctiveness is critical for a trademark's registration. Distinctiveness connotes uniqueness, speciality,

peculiarity and a distinguishable feature of a particular mark from another. Distinctiveness impacts
everything from the registrability of a mark to its scope of protection, enforceability and continuing
validity once registered. Trademark distinctiveness is essential when assessing how strong the trademark
protection is against other competitors who may try to use trademarks as an instrument of deception,

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misdirection or deceit on the buyers or consumers of goods. Notwithstanding, one must note that
distinctiveness is not an automatic pass for registration as the Registrar of Trademark has the discretion
to refuse, albeit in line with the Trademarks Act. The Act provides that a mark can be rejected for being
deceptive, scandalous, contrary to public policy.

4.5 Technology Transfer Issues

International technology transfer is the process by which a technology, expertise, know-how or facilities
developed by one business organization is transferred to another business organization. There are many
issues associated with the international technology transfer. The most important international technology
transfer issues are; ways of technology acquisition, choice of technology, terms of technology transfer,
and creating local capability.
4.5.1 Modes of Technology Acquisition
One of the major issues in technology transfer relates to the mode of acquisition. Developing new
technology may conjure up visions of scientists and product developers working in Research &
Development (R&D) laboratories. In reality, new technology comes from many different sources,
including suppliers, manufactures, users, other industries, universities, government, etc. While every
source needs to be explored, each firm has specific sources for most of the new technologies. The
problems encountered in transfer of technology are:

i. A limited general understanding of the concept of technology, and the lack of a consistent framework
for its study.
ii. Lack of systematic planning for technology transfer in developing countries or misunderstanding of its
underlying philosophy.
iii. Lack of bilateral scientific/ technology advantages in the process of technology transfer (mutual
benefits).
iv. Lack of systematic and integrated engineering and socio-economic approach to the technology
transfer process.
v. Lack of a relevant quantitative framework/approach to the analysis and evaluation of technology
transfer to developing countries.

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MODULE 5
SAFETY AND ENVIRONMENTAL LAW

5.1 Definition
Health and Safety Law means law or requirement of any applicable Governmental Authority, and
applicable common law, relating to the protection of the health or safety of any person including
employees or persons performing activities on the behalf of the Company or any of its subsidiaries. it
means all laws regulating health and safety in the workplace, including but not limited to, laws governing
compensation for injuries sustained and illnesses suffered in the course and scope of employment.
Environmental law stands for all legal rules that are aimed at the protection and development of the
environment and its compartments as well as the protection of public health from harm, risks, and
nuisances arising from the environment and the human-made interaction with the environment.
5.2 Environmental Legislation/Regulatory Framework & Authorities
The key pieces of environmental legislation and their functions are the following:-
i. National Environmental Standards Regulations and Enforcement Agency (Establishment) Act 2007
(NESREAA). NESREA, is the major federal body responsible for protecting Nigeria’s environment. Its
responsible for enforcing all environmental laws, regulations, guidelines, and standards. This includes
enforcing environmental conventions, treaties and protocols to which Nigeria is a signatory.
ii. Environmental Impact Assessment Act (Cap E12 LFN 2004). This law sets out the general principles,
procedures and methods of environmental impact assessment in various sectors.
iii. Harmful Waste (Special Criminal Provisions etc) Act (Cap H1 LFN 2004). This law prohibits the
carrying, depositing and dumping of harmful waste on land and in territorial waters.
iv. Endangered Species (Control of International Trade and Traffic) Act (Cap E9 LFN 2004).This
provides for the conservation and management of wildlife and the protection of endangered species, as
required under certain international treaties.
v. National Oil Spill, Detection and Response Agency Act 2006 (NOSDRA). The objective of this law is
to put in place machinery for the co-ordination and implementation of the National Oil Spill Contingency
Plan for Nigeria to ensure safe, timely, effective and appropriate response to major or disastrous oil
pollution.
vi. National Park Services Act (Cap N65 LFN 2004).This makes provision for the conservation and
protection of natural resources and plants in national parks.
vii. Nigerian Minerals and Mining Act 2007.This is for the purpose of regulating the exploration of solid
minerals, among other purposes.
viii. Water Resources Act (Cap W2 LFN 2004). This aims at promoting the optimum development, use
and protection of water resources.
ix. Hydrocarbon Oil Refineries Act: The Act is concerned with the licensing and control of refining
activities.
x. Associated Gas re-injection Act: This law deals with gas flaring activities by oil and gas companies.
Prohibits, without lawful permission, any oil and gas company from flaring gas in Nigeria and stipulates
the penalty for breach of permit conditions.

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xi. Nuclear Safety and Radiation Protection Act: The Act regulates the use of radioactive substances and
equipment emitting and generating ionising radiation. In particular, it enables the making of regulations
for protecting the environment from the harmful effects of ionising radiation.
xii. Oil in Navigable Waters Act: This is concerned with the discharge of oil from ships. It prohibits the
discharge of oil from ships into territorial waters or shorelines.
Regulatory authorities
The National regulatory bodies include:
i. National Environmental Standards and Regulations Enforcement Agency (NESREA).
ii. National Oil Spill Detection and Response Agency.
iii. Federal Ministry of Environment.
iv. Directorate of Petroleum Resources (DPR).
v. Nigerian Nuclear Regulatory Authority.
vi. Federal Ministry of Water Resources
vii. National Oil spill Detection and Response Agency (NOSDRA)
viii. National Biosafety Management Agency
ix. Department of Climate Change
x. Energy Commission of Nigeria
xi. Drought and Desertification Agency, etc.
Each of the 36 states has its own environmental protection bodies. For example, the Lagos State
Environmental Protection Agency (LASEPA) law authorises officers to search and seize offending items
and to arrest offenders. Offences under the LASEPA law include: Discharge of raw untreated human
waste into any public drain, gorge, or any land. Discharge of any form of oil, grease, spent oil including
trade waste from manufacturing into any public drain, watercourse, gorge or road verge. Similar
provisions are contained in the Akwa Ibom State Environmental Protection and Waste Management Act
(EPWMA) which empowers inspectors to inspect premises and take samples of waste generated there.
The EPWMA also requires any person who commits an offence under the Act to be brought before the
Environmental Sanitation Court which can try offending individuals or organisations.
Offences under the EPWMA include: Burying or dumping expired drugs or chemicals without a permit.
Using pesticides, herbicides, insecticides or other chemicals to kill fish or any other aquatic life in rivers,
lakes and streams

5.3 Technology Impact Assessment

Technology impact assessment (TIA) is a scientific, interactive, and communicative process that aims to
contribute to the formation of public and governmental opinion on societal aspects of science and
technology. This is a means of assessing and rating the new technology from the time when it was first
developed to the time when it is potentially accepted by the public and authorities for further use. In
essence, TA could be defined as a form of policy research that examines short- and long term
consequences (for example, societal, economic, ethical, legal) of the application of technology. And the
impact of this technology to worker and staff, users and public.

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MODULE 6
LAW SUITS

6.1 Definition
A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties
(the defendant) in a civil court of law. A proceeding is legal action taken against someone. Hence, the
term "law suit" is used with respect to a civil action brought by a plaintiff (a party who claims to have
incurred loss as a result of a defendant's actions) who requests a legal remedy or equitable remedy from a
court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the
plaintiff is successful, judgment is entered in favor of the defendant. A variety of court orders may be
issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or
impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment
may be issued to prevent future legal disputes.
A lawsuit may involve resolution of disputes involving issues of private law between individuals,
business entities or non-profit organizations. A lawsuit may also involve issues of public law in the sense
that the state is treated as if it were a private party in a civil case, either as a plaintiff with a civil cause of
action to enforce certain laws, or as a defendant in actions contesting the legality of the state's laws or
seeking monetary damages for injuries caused by agents of the state. Conducting a civil action is called
litigation. The plaintiffs and defendants are called litigants and the attorneys representing them are called
litigators. The term litigation may also refer to the conducting of criminal actions.

6.1 Engineer as a witness

An engineering expert witness is a professional engineer who specializes in providing an expert opinion
to clients. This person often has clients ranging from law firms to insurance companies. Most experts
take on a neutral role when it comes to clients and can work for plaintiffs or defendants.
Some of the incidents that an engineering expert witness investigates for clients include train and
automotive engineering defects as well as construction equipment accidents. The engineer may also get
requests to review workplace accidents and industrial machinery injuries. One common accident that
insurance companies retain these experts for is to figure out liability in slip and fall injuries involving
sidewalks, stairs and escalators. When the engineer expert witness meets with a client, the expert will
review the facts of the case and any documentation that may be available. The expert will discuss the
incident with the client and tell the client his initial opinion and strategy. At this meeting, the expert will
also provide a list of his fees and services that he has available to investigate the case. Services that an
engineering expert witness can provide include determining the cause of an accident and providing a
failure analysis report. Other options that an engineer expert has include creating engineering models and
preparing simulations of accidents such as train or vehicle accidents. Sometimes a case may involve a
dispute over a warranty on a defective product so the engineer will take a video testing the product and
highlight any problems that may occur. Engineers also go to warehouses to inspect buildings, check the
building codes and photograph industrial hazards.
An engineering expert witness often gives expert testimony in a court of law. Most experts are willing to
testify in court about their findings and assist in trial preparation. The expert will have to submit exhibits
such as photographs, videos and written reports. There are different roles the engineer could play in
litigation such as expert witness, expert consultant and third-party engineer.

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