By Awa Kalu, SAN
The smell of Christmas, once more, is in the air. An annual reminder of the birth of Our Lord Jesus Christ, Christmas in not just a one day event. It encompasses a season and offers a comprehensive package of joy, festivities, jollification, merriment, etc.
The passenger who boards a vehicle, the shopper who enters a shop in order to make some purchases or even for window shopping, the would-be celebrant who books a band or disc jockey, the innocent bystander who witnesses an accident, the masquerade or other dancer who throws up a lot of dust while performing, or chases kids or women who in consequence collapse or scamper away in abject fear, the generator owner, who operates his dilapidated machinery endlessly in order to surpass his neighbour ( a new generation of those power generating monsters are now called I pass my neighbour),the musician who plays his music at the highest decibel and that visitor (invited or uninvited) who pays you a visit in the course of the yuletide all trigger activities that have a causal connection with the law.
In the days of the Ebola Virus Disease for instance,(otherwise called Ebola) many visitors may indeed have been unwelcome in some parts of the world and in West Africa particularly.
The weeks leading up to the ebola Christmas were revealing – what with a reported house to house search in certain areas of Sierra Leone to ferret out victims of Ebola who were in hiding and reported widespread looting of emergency centres in Liberia leading to fear and alarm. For football lovers, even nations were afraid of participating in tournaments as a mark of respect for Ebola.
Can Ebola or other events define how we celebrate Christmas? You only need to note that queues have already appeared again in petrol filling stations in order to answer this question.My intention in this piece is to look at the hustle and bustle of Christmas and recommend to the reader – especially those who are not learned in the law – how to cope with certain demands of Christmas which are in our kind of culture, taken for granted.
The average Nigerian will surely remember that Christmas is a period of desertion by domestic helps – drivers, house helps, including cooks, stewards, gardeners, mai guards and other sundry persons who make western gadgets unnecessary in the household. The amount of food and alcoholic beverages that are consumed within the period permits each of our neighbours to become emergency Medics – inspiring prescriptions that will make even homeopaths jealous. For us as lawyers the neighbour is not just your next door person nor your relation. Most Lawyers always remember that the neighbor principle in the law of Torts was distilled from Jesus’ injunction that one should love his neighbor as oneself. The highest thrill of Christmas is the experience of a massive celebration of love.
In the famous case of Donoghue v. Stevenson (1932) A. C. 562, Lord Atkin while stating the concept of the duty of care argued that ‘There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances.
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour?
The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’
In line with that principle, there are several persons who will pass the neighbour test and all you need do is to think of the myriad of activities in which you are engaged and you will not be in any difficulty in fathoming who could in most circumstances, be your neighbour.
In my part of Nigeria, Christmas is taken very seriously not necessarily for the religious opportunity which it provides for a calmer appreciation of our spiritual obligations both to mankind and God Almighty but for the spirit of conviviality which it generates. Most of my folk are reluctant to fix social events such as the consecration of marriages (and allied ceremonies), age grade ceremonies of all kinds, family and kindred meetings and other sundry celebrations outside the Christmas belt – the festive period in my part of the country starts in the second week of December and terminates about the end of January.
The inevitable outcome is that long journeys especially by road are undertaken.
Quite a large number of Christmas holiday makers travel by ‘public transport’ which means that the journey may involve the payment of skyrocketed fares. In addition, following the usual shortage of vehicles, passengers are induced to board vehicles that are no better than the proverbial ‘ramshackle box on four wheels’ with which every student becomes familiar early in the law of contract. Accidents are usually expected. Let us first discuss the implications of your road journey.
Road travelers in Nigeria clearly appreciate the sub-cultural traits of road transport workers. Perhaps, several readers will connect with the fact that a journey from, say, Lagos to Owerri, may last a couple of days that is, if the journey happens in the first place. One of my staff told me that having traveled by road on so many occasions, farting is to be expected (I beg your pardon) in the light of the fact that frequent stops are made to enable passengers buy an assortment of edibles – bread, boiled eggs, oranges, Gala, bush meat, suya, and boli. When these condiments are dexterously combined in the stomach, not even vomiting is strange. But this Christmas, you must be careful. Eat bush meat with care and if you plan to vomit, be armed with your own Thermometer if only to prove that your own vomiting is not a consequence of the Ebola Virus, Monkey pox, lassa fever or other strange ailments.Little wonder that even NAFDAC prohibited drugs are peddled on board these buses.
The peddlers’ selling points are many but should not concern us. Now to the road journey proper. The story goes like this. A Bus for instance will be stationed at the take off point in Lagos and passengers will usually struggle to pay in order to get a seat. Apart from sophisticated transport companies, it is usual not to have a pre-assigned seating arrangement.
Once all travelers have boarded, a freelance preacher materializes from the thin air and offers prayers for a safe journey. In most cases, he makes an appeal for funds to foster evangelism but once he disembarks, the would-be traveler begins to feel that the bus is on its way to its destination. The next scenario is that an Escort fires some gun shots into the thin air just to let any person lurking with hideous intent know that the Bus is escorted by well armed law enforcement agents. More than twice or thrice perhaps, the Bus would either puff and stall, in which case the journey would be delayed or may totally break down. Should the Bus just decide that it has had enough of the journey, of course all passengers even without being told, would get down and begin a rather tortuous and uncertain wait. If you decide that you have had enough and ask the driver for a refund of your fare, your reply is usually off-handed and offensive. You are in fact quizzed by the driver. “You pay me?”, “No be for our office you pay for Lagos?” If you are lucky you will get away without a minor shove.
Just about any law student armed with facts arising from the above scenario will realize the linkage between the imaginary journey and the elements of a valid contract – offer, acceptance and consideration including assault and battery. Starting with the offer, it may be argued that a transport company which makes available a Bus to enable passengers undertake a long distance journey makes an offer to all road users traveling in the Bus’ intended route.
In case you have no idea that an offer can be made to the whole world or even to an identifiable group, it is easy to recall that in the now famous case of Carbonic Smoke Ball Co. v. Carlill(1893) 1 Q.B. 256, Bowen, L.J., stated this principle emphatically when he noted as follows: ‘It was also said the contract is made with the whole world – that is with everybody; and that you cannot contract with everybody. It is not a contract made with all the world.That is the fallacy of the argument. It is an offer made to all the world; and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition?
It is an offer to become liable to anyone who, before it is retracted, performs the condition, and although the offer is made to the world, the contract is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement.”
A simple definition of ‘offer’ is the one made by Prof. ItseSagay 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 traveler 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. Whether or not this and other breaches may be remedied is a matter for another day.