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The thrills and frills of Christmas (2)

By Awa Kalu

A simple definition of ‘offer’ is the one made by Prof. Itse Sagay in his well known book, Nigerian  Law of Contract which makes an offer ‘a definite undertaking or promise made by one party with the intention that it shall become binding on the party making it as soon as it is accepted by the party to whom it is addressed’.

An offer, the learned Professor restates, must be precise and unequivocal, leaving no room for speculation or conjecture as to its real content. Guided by this simple but clear definition, a traveller who presents himself at a Bus station and buys a ticket surely intends that the owners of the Bus must take him to an agreed destination.

Accordingly, a person who pays the fare which is asked for is deemed to have accepted the offer. Therefore, when the Bus subsequently breaks down in the middle of no where, exposing the passengers to the elements, including major hazards, the driver must learn simply that he is in breach of an undertaking.

We have seen that an offer is a definite undertaking or promise made by one party with the intention that it shall become binding on the party making it as soon as it is accepted by the party to whom it is addressed.

Professor Itse Sagay who offered the above definition further argues that an offer must be precise and unequivocal leaving no room for speculation or conjecture as to its real content. We must note that this piece centres around the events which take place during the Christmas.

Mindful of this fact, we must similarly recall that in this country, most Nigerians see the Christmas season as an opportunity to make lots of money. For this reason, cheap merchandise (including drugs) are on offer for sale. On account of the increase in volume of passengers, transporters often revive their rickety vehicles and put them on the road.

It must also be remembered that Christmas is a near compulsive period especially in terms of families leaving their normal place of residence to travel to their remote villages. Thus persons may decide to travel even when they can ill afford such a trip.

Accordingly, when a passenger who has a lean purse sees a rickety bus (otherwise called Akpuruka) placed on our imaginary Lagos – Owerri route, what does the passenger have in mind? The slogan I am told, is that “Akpuruka must reach its destination no matter when”.

Will the passenger be presumed as having accepted the offer to be taken to his destination at snail speed and in less than wholesome condition?

You must at this stage remember that some of these buses that ply our roads bear very frightening and intimidating inscriptions such as ‘No telephone to Heaven’; ‘Beware of six feet’; ‘Many have gone, be careful’; ‘Don’t kiss my Nyash’; ‘Better be late than the late’; ‘Uwa wu Paw-Paw (the world is like Paw-Paw)’ and so on. Some offer you a promise -‘The Young Shall Grow’ while some others wax philosophical. ‘Ekene Dili Chukwu’ (Thanks be to God), ‘Chidi Ebere’ (God is merciful), ‘Lefam for God’ (Leave your faith in God’s hand) are clear examples.

There is yet another one – OSONDU (You do not tire if your life depends on a race). I recall that when we were trying to find our feet in Lagos, the prayer of my generation was for God’s intervention in our lives in such a way that our initial trip to Lagos would be in “Young Shall Grow” while our return would be in “Ekene Dili Chukwu”. Certainly, as a joke, no one wanted to be found in a bus bearing an inscription that wasn’t promising or prospective.

In the light of the foregoing, let the reader therefore imagine the low income passenger who tentatively approaches a rickety bus bearing the rather odd inscription ‘No telephone to Heaven’.

In the first place, such a passenger cannot afford a better bus but must travel anyway. Is such a passenger in a position to reject the offer to travel in the No telephone to Heaven bus?

These days, far too many passengers would of course travel with their mobile phones in their pockets or handbags but what is the prospect of knowing in advance that you cannot in any circumstance forward a telephone call to Heaven? In Orient Bank (Nig) Plc v. Bilante International Company Ltd. (1999) 8 NWLR (Pt. 515) p. 37, the Court of Appeal emphatically noted that an offer is a proposal which originates or emanates from the offeror to the offeree to enter into an agreement to do or not to do a particular thing.

Since the whole essence of offer is reciprocal acceptance, the Court further held, the offeror anticipates the expected acceptance and this he makes clearly in the offer. A valid offer, the Court said, must be precise and unequivocal, giving no room for speculation or conjecture as to its real content in the mind of the offeree.

The offeror must place at the doorstep of the offeree a clear intention and desire to enter into a contract with the offeree on clearly defined terms with an expectation of acceptance on the terms so defined or a possible counter offer, which could be a basis for further negotiation. The offeree also has the option of outright rejection of the offer.

In Alfontrin Ltd. V. Attorney General of the Federation (1996) 9 NWLR (Pt. 475) 634, it was held that an offer can be accepted in such a manner as may be implied by the nature of the offer. Thus, it may be accepted by the doing of the act which one is requested by terms of the offer to do. Accordingly, the performance of a condition is sufficient acceptance without the notification of it under circumstances where an offeror in his offer impliedly indicates that he does not require notification of the acceptance of the offer. Before we consider in fuller detail the legal position of the traveller who is offered a long distance ride in an Akpuruka bus, let the elements of a valid contract be stated.

In B.C.C. Plc v. Sky Insp. (Nig) Ltd (2000) 17 NWLR (Pt. 795) 86, it was held that for a contract to be valid, the following elements must exist, namely, that there must be an agreement which consists of offer and acceptance.

There must in addition be some consideration which is some right, interest or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other at his request.

It is not necessary that the promisor should benefit from the consideration and it is sufficient if the promisee does some act from which a third party benefits and which he would not have ordinarily done but for the promise.

There is yet a fourth requirement which is that there must be an intention to create legal relations between the parties as an agreement will not be enforced unless it evinces an intention to create legal relations. Such an intention will normally be inferred from the presence of consideration.

The reader, whether learned or not, should now be able to consider the legal position of the passenger whose intention is to board a bus which is not only in a suspect condition but bears the unusual inscriptions named above.

Once he has had a good look at the bus and sees its condition but nevertheless pays the low fare which this category of buses usually command, will he be right to complain if the bus breaks down after just a few kilometres or indeed gets involved in an accident? The discerning reader by now, must know that there are several angles to this hypothetical passenger’s situation.

It is the usual assumption in other jurisdictions that a transporter who puts out his vehicle for a long distance journey warrants that the vehicle which is offered for the journey is in a good condition. However, in this part of the world, you see vehicles that are not just over twenty years old but are ill maintained but still on the road. The transporter needs to make a living and the passenger who can hardly afford a standard bus opts for the Akpuruka level. This is clearly a complicated contractual situation irrespective of how simple it may seem.

Most often, our imaginary passenger cannot even afford a regular seat – he opts to be an “attachee”. Attachment is a technical term used to describe the situation whereby a passenger who cannot afford the prescribed fare for the entire journey is offered an uncomfortable low stool for his journey at a very low fare.

Usually, it is an agreement between the bus driver and the passenger but in specific instances it may be beneficial for another passenger who is willing to suffer some inconvenience.  The attachment passenger is allowed to perch on the arm of his conniving passenger’s chair or to lean on him or her in exchange for a drink, money or other considerations.

Notwithstanding the status of the attachment passenger, I have been told that since the arrangement is usually with the driver, the attachee gets a refund should the bus breakdown irretrievably. In the alternative, the driver would arrange with another driver to ferry the attachees to their ultimate destination.

I have also been told that on account of the age of some Akpuruka buses, the owner would have a loose arrangement with the driver whereby he receives no salary but is compensated with his income from attachment passengers and additional fare charged for excess luggage.

You will be surprised to learn that some attachment passengers agree to stand for the duration of their trip and in some cases, this is for several hours. While already inside the bus, you will learn in bold letters that ‘luggage is at owner’s risk’.

Yet another surprise is that a receipt is issued to the passenger in the Akpuruka bus and in small letters such receipts I am also told, bear exclusion or exemption clauses. Accordingly, the passenger is warned about the sanctity of the departure time. The warning is to the effect that a passenger who arrives late will receive no refund.

Furthermore, if you fail to travel on the date for which the fare is paid, no plea for refund will be entertained. There is the story of a ticketed passenger who arrived a few minutes after his celebrated Akpuruka bus had left its loading bay.

The passenger, upon being informed that his designated bus had just left, decided to be in hot pursuit on another intriguing commuter – an Okada (the commercial motor cycle). Luckily, it would seem, our dear passenger met his bus at a Petrol Filling Station where it was guzzling diesel.

Unfortunately, his seat had been sold to attachment passengers. He got nothing but an extended argument and was neither offered a seat nor a refund. The bus was full anyway. Grudgingly, he boarded another Okada which promptly collided with another vehicle.

Our dear would-be passenger was hospitalized for a long time. As must be clear at this juncture, a simple journey by road may lead to other legal situations. In some cases, there may be an accident which is often met by a feeble rescue attempt. In other cases, there may be stealing within the bus or at some point before the journey is logically terminated. Some passengers may take ill in circumstances related to claustrophobia, exhaustion or ordinary exposure to nature’s elements.

As already hinted, several passengers indulge themselves in munching all sorts of things and may be victims of diarrhoea, gastroenteritis, or dyspepsia. Simply put, dyspepsia is a condition characterized by belching, abdominal rumbling or discomfort and passage of flatus (farting). A passenger who finds himself in this condition may request or pressure the driver to stop to enable the passenger ease himself. There are cases where marauders found it convenient to strike in such situations. The discerning reader will find that these issues require further examination. This will be done soonest.

In the previous instalments of this piece we have seen that very often, a simple journey by bus or indeed any other means of transportation may lead to a result that carries varied legal consequences. Again, great reliance will be placed on our imaginary journey in an akpuruka bus.

The presumption is that that grade of bus is quite often, not in a road worthy condition and it would, in our hypothetical context, be fair to assume that putting such a bus on the highway in the busy season of Christmas will amount to negligence.

As Anderson B., noted in the leading case of Blyth v. Birmingham Waterworks Co. (1843 -60) All E.R. Rep. 478, “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.

Broken down in legal shorthand, a person will be held liable in an action founded in negligence if the act complained of results from a breach of duty owed by the defendant to the plaintiff. The presumption, in that connection, is that a duty of care was owed the plaintiff and a breach of that duty had occurred.


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