Introduction to Law and Governance Study Guide

SOURCES OF LAW AND THE CONSTITUTION

• The Constitution serves several critical roles in a country's legal framework:

  • Acts as the supreme law of the land, against which all other laws are tested for validity.

  • Defines the structure and functions of the three arms of government.

  • Outlines the fundamental rights and freedoms of individuals.

  • Establishes the organs of the state and their powers.

• Supremacy of the Constitution is manifested through:

  • The invalidity of any law inconsistent with its provisions.

  • Mandating that all state organs and persons are bound by its tenets.

  • Requiring a rigorous process for its amendment compared to ordinary legislation.

  • Ensuring that no person can claim or exercise state authority except as authorized by the Constitution.

• Sources of law include:

  • The Constitution.

  • Legislation (Acts of Parliament) and Delegated Legislation.

  • Judicial Precedence (Case Law).

  • African Customary Law.

  • Common Law.

  • Doctrines of Equity.

  • International Law (Treaties and Conventions).

  • Religious laws (e.g., Islamic law as applied in Kadhis' Courts).

• Criteria for African Customary Law to be enforceable:

  • It must be certain and reasonable.

  • It must have been observed as a matter of right.

  • It must not be repugnant to justice and morality.

  • It must not be inconsistent with any written law.

• Forms of law classification:

  • Public law versus Private law.

  • Substantive law versus Procedural law.

  • Civil law versus Criminal law.

  • Written law versus Unwritten law.

JUDICIAL PRECEDENCE AND STATUTORY INTERPRETATION

• Judicial Precedence involves the application of previous court decisions to current similar cases.

• Components of a Judgment:

  • Ratio Decidendi: The legal principle or reason for the decision, which is binding on lower courts.

  • Obiter Dicta: Remarks made by a judge "by the way" that are not essential to the decision and are only persuasive.

• Types of Precedents:

  • Binding precedents: Must be followed by lower courts within the same hierarchy.

  • Persuasive precedents: Not mandatory but may be considered (e.g., decisions from higher courts in other jurisdictions or obiter dicta).

  • Original precedents: Created when a court decides a point of law for the first time.

  • Declaratory precedents: Merely apply existing law to the facts.

• Advantages of Judicial Precedence:

  • Certainty and predictability in the legal system.

  • Consistency and fairness in treating similar cases.

  • Time-saving for judges and lawyers.

  • Flexibility as law can evolve through case law.

• Exceptions where subordinate courts are not bound by superior court decisions:

  • If the decision was made per incuriam (through lack of care or oversight of a statute).

  • If the facts of the current case are distinguishable from the precedent.

  • If the precedent has been overruled by a higher court or nullified by legislation.

• Rules of Statutory Interpretation:

  • Literal Rule: Words are given their plain, ordinary meaning.

  • Golden Rule: Applied to avoid an absurd result of the literal rule.

  • Mischief Rule: Focuses on the gap or "mischief" the statute was intended to fix.

  • Purposive Approach: Looks at the overall purpose of the legislation.

THE JUDICIARY AND ADMINISTRATIVE LAW

• Principles of Judicial Independence:

  • Security of tenure for judges.

  • Financial autonomy of the judiciary.

  • Immunity from legal action for official judicial acts.

  • Separation of judiciary from executive and legislative influence.

• Hierarchy and Structure of Courts:

  • Supreme Court: The apex court, hears presidential election petitions and advisory opinions.

  • Court of Appeal: Handles appeals from the High Court and other courts/tribunals.

  • High Court: Has unlimited original jurisdiction and supervisory powers over subordinate courts.

  • Environment and Land Court and Employment and Labour Relations Court: Specialized courts with the same status as the High Court.

  • Subordinate Courts: Magistrate's Courts, Kadhis' Courts, and Tribunals.

• Administrative Law and Principles of Natural Justice:

  • Nemo judex in causa sua: No one should be a judge in their own cause (rule against bias).

  • Audi alteram partem: Hear the other side (the right to a fair hearing).

• Grounds for Judicial Review:

  • Ultra vires (acting beyond legal authority).

  • Procedural impropriety.

  • Error of law on the face of the record.

  • Irrationality (Wednesbury unreasonableness).

• Remedies in Administrative Law (Writs):

  • Certiorari: Quashing an unlawful decision.

  • Mandamus: Compelling an official to perform a legal duty.

  • Prohibition: Stopping an ongoing unlawful process.

  • Habeas Corpus: Challenging unlawful detention.

LAW OF TORT

• Negligence requires proving:

  • A duty of care owed by the defendant to the plaintiff.

  • Breach of that duty by the defendant.

  • Loss or injury caused to the plaintiff as a result of the breach.

  • The damage suffered is not too remote (causation).

• Defamation elements:

  • Statement made was defamatory (injures reputation).

  • Refers specifically to the plaintiff.

  • Published to a third party.

  • Caused harm or damage.

• Defenses to Defamation:

  • Truth/Justification.

  • Fair comment on a matter of public interest.

  • Privilege (Absolute or Qualified).

  • Apology and offer of amends.

• The Rule in Rylands v. Fletcher (Strict Liability):

  • Bringing and keeping something on land not naturally there.

  • The thing is likely to do mischief if it escapes.

  • Actual escape of the thing occurs.

  • Non-natural use of the land.

• Occupier's Liability:

  • The duty an occupier of premises owes to visitors (and sometimes trespassers) to ensure they are reasonably safe.

• Trespass to Person include:

  • Assault: Creating a reasonable apprehension of immediate harmful or offensive contact.

  • Battery: The actual intentional application of force to another person.

  • False Imprisonment: Total restraint of a person's liberty without legal justification.

LAW OF CONTRACT

• Essentials of an Enforceable Contract:

  • Offer and Acceptance.

  • Intention to create legal relations.

  • Consideration.

  • Contractual capacity (e.g., age, sound mind).

  • Free consent (absence of duress or undue influence).

  • Legality of the object.

• Vitiating Factors:

  • Mistake (Common, Mutual, Unilateral).

  • Misrepresentation.

  • Duress.

  • Undue Influence.

• Discharge of Contract:

  • Performance (must be precise and complete).

  • Agreement between parties.

  • Breach (anticipatory or actual).

  • Frustration (impossibility of performance due to unforeseen events like death or subject matter destruction).

• Remedies for Breach of Contract:

  • Damages (Compensatory, Punitive, Nominal).

  • Specific Performance (court order to fulfill the contract).

  • Injunction (order to stop a breach).

  • Rescission (restoring parties to pre-contractual position).

• Exemption Clauses:

  • Clauses that limit or exclude liability. Courts may nullify them if they are not brought to the notice of the party before the contract or if they contravene public policy.

SALE OF GOODS AND HIRE PURCHASE

• Sale of Goods Concepts:

  • Property in goods (ownership) vs. Possession.

  • Symbolic delivery: Handing over something representing the goods (e.g., keys to a warehouse).

  • Rights of an Unpaid Seller: Right of lien, stoppage in transit, and right of resale.

  • Caveat Emptor: "Let the buyer beware" principle, though subject to implied conditions like fitness for purpose.

• Hire Purchase Agreements:

  • A contract where the owner lets goods on hire with an option for the hirer to purchase them after paying all installments.

  • Non-registration of a hire purchase agreement renders the agreement unenforceable against the hirer and the owner cannot recover the goods.

  • If the hirer has paid more than $1/3$ of the hire purchase price, the owner can only repossess the goods through a court order.

• International Trade Terms:

  • FAS (Free Alongside Ship): Seller delivers when goods are placed alongside the vessel at the named port.

  • FOB (Free On Board): Seller delivers once goods pass the ship's rail.

  • CIF (Cost, Insurance, and Freight): Seller pays for shipping and insurance to the destination port.

AGENCY AND PARTNERSHIP

• Agency Relationships:

  • Created through agreement, ratification, necessity, or estoppel.

  • Duties of an Agent: Perform personally, act in good faith, account for all monies, and not make secret profits.

  • Termination of Agency: By act of parties (revocation, renunciation) or by operation of law (death, bankruptcy, insanity).

• Partnerships:

  • Defined as the relation which subsists between persons carrying on a business in common with a view of profit.

  • Types: General Partnership, Limited Partnership, Limited Liability Partnership (LLP).

  • Rights of partners: Share in profits, participate in management, inspect books.

  • Dissolution: By court order (e.g., incapacity, misconduct) or without court (e.g., lapse of time, notice, death of a partner).

PROPERTY LAW AND INTELLECTUAL PROPERTY

• Rights in Land:

  • Freehold: Absolute ownership for an indefinite period.

  • Leasehold: Right to use land for a specified term in exchange for rent.

  • Joint Tenancy: Partners own the whole property together; right of survivorship applies.

  • Tenancy in Common: Partners own distinct shares; no right of survivorship.

  • Adverse Possession: Acquiring land title by occupying it openly and continuously for a statutory period (e.g., $12$ years) without the owner's permission.

• Intellectual Property Types:

  • Copyright: Protects original works of authorship (literary, artistic, musical).

  • Patents: Protects new inventions that are non-obvious and industrially applicable.

  • Trademarks: Protects brand names and logos used for source identification.

  • Industrial Designs: Protects the aesthetic appearance of a product.

  • Plant Breeders' Rights: Protects new varieties of plants.

NEGOTIABLE INSTRUMENTS AND INSURANCE

• Bills of Exchange:

  • Parties: Drawer (creates the bill), Drawee (ordered to pay), Payee (receives payment).

  • Holder in Due Course: Someone who takes a bill that is complete and regular on its face, before it is overdue, in good faith, and for value.

• Insurance Principles:

  • Utmost Good Faith (Uberrimae Fidei): Duty to disclose all material facts.

  • Insurable Interest: The insured must suffer financial loss from the event insured against.

  • Indemnity: Restoring the insured to the financial position they were in before the loss.

  • Subrogation: Insurer steps into the shoes of the insured to recover loss from a third party after paying the claim.

  • Contribution: If multiple policies cover the same risk, insurers share the loss proportionately.

  • Proximate Cause (Causa Proxima): The direct or most dominant cause of the loss.

GOVERNANCE, ETHICS, AND DISPUTE RESOLUTION

• Corporate Governance:

  • Principles include transparency, accountability, fairness, and responsibility.

  • Agency Theory: Conflict between shareholders (principals) and managers (agents).

  • Stewardship Theory: Managers act as responsible stewards of the company's assets.

• Alternative Dispute Resolution (ADR):

  • Negotiation: Direct discussion between parties.

  • Mediation: Neutral third party facilitates a solution but has no power to impose it.

  • Arbitration: Neutral third party (arbitrator) makes a binding decision (award).

• Professional Ethics:

  • Values that govern behavior in a professional setting, including integrity, objectivity, professional competence, and confidentiality.

  • Code of Ethics: A formal document outlining the ethical standards and rules for members of a professional body.

  • Differences between Morality (internal sense of right/wrong) and Etiquette (socially accepted manners).