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22 Jan

ETHICS WEEK 7 DRAFTING (1)

WEEK 7. DRAFTING 1: (I) BASIC DRAFTING PRINCIPLES; (II) LETTER WRITING

Drafting is a means of communicating in permanent form (through document) devoid of extrinsic aids like gesticulations, demeanour, etc. This is why construction may be problematic especially where certain principles of drafting were not adhered to by the drafter coupled with the fact that words means different things based on the context.

:: BASIC PRINCIPLES OF DRAFTING:

– Draftsman must be precise, clear, unambiguous, etc. to prevent ambiguities or confusion[1].

– Fitting for audience/recipient

– Cover instructions received.

– The general format like design, parts, chapters, clauses, order, should follow a logical sequence.

:: AID TO CLEARNESS AND ACCURACY: proper use of punctuations (Shell v FBIR). Like full stop, comma, colon, semi colon, apostrophe’, hyphen, etc.

Capital letters should be used when necessary (like for beginning of sentence, first letter of a law, titles, offices, institutions, etc. interpretation (failing which the interpretation Act shall apply). Proper use of brackets, repeat prepositions where necessary, use sub-headings, side notes, preferably use present tense, draft in singular, active voice, positive expression, paragraphs (breaks), nice structure, sentencing (combination of words which have a subject verb and object) and syntax.  Use short and uncomplicated sentences[2], ensure congruence and maintain consistency in nomenclature/designations, remembering gender sensitivity, logical flow, mechanical accuracy, cross check and re-check the draft with a colleague to ensure competence and erode bias.

:: HABITS TO AVOID IN DRAFTING: Avoid verbosity, archaic expressions, legalese, non-english expressions, etc. Also avoid past, passive expression, avoid needless repetition, syntactic ambiguity. Avoid unusual phrases, avoid misuse of certain words like (such, when, the, a, same, that, etc)-Mountfield v Ward. Avoid pronouns that would cause ambiguity. Proper use of must, will, may, should, shall, etc. as each has different level of compulsion-Ude v Nwara, Bucknor-Maclean v Inlak Ltd, Ogwuche v NBA. Improper use of and or-Tarka v DPP, avoid demeaning, vulgar, sexist, abusive or patronizing language.

:: CERTAIN WORDS AND PHRASES: “Subject to” introduces a condition/limitation-Tukur v Govt. of Gongola State. “Any” includes all things to which it relates. “And” has a conjunctive connotation. “Notwithstanding” means the provision is superior, “without prejudice to” means that the instant provision would not affect the other (named provision[3]), “Provisio” is a qualification or exception to a main provision- NDIC v Okem Enterprises (on proviso), Section 40 CFRN makes proviso on the right to freedom of assembly. Except, unless, save: meaning that a contrary provision would prevail. See Section 318 of the 1999 Constitution.

:: EXPRESSIONS RELATING TO TIME: “on” is inclusive of the named date. “From” excludes the named date, “after” also does exclude the main date, “Till” is quite ambiguous, “To” means between the named dates. From 1st Jan to 5th February… “by” implies on or before, “day” means 24 hours, clear day means 24 hours commencing from midnight, “month” means a calendar month, “year” means 12 calendar months (Section 18 Interpretation Act) Oyekoya v GB Olivant, “forthwith” connotes immediately/without delay, “within a reasonable time” means just what it is, “as soon as possible”, etc.

:: TYPES OF LETTERS:

  • Status Letters: gives report on the current state of things in relation to a transaction, case, and so on.
  • Confirming Letter: to re-affirm an oral discussion and clear uncertainty.
  • Demand Letters: a request on the other party to perform a legal obligation. E.g. pay debt, perform his part of the contract, etc.
  • Opinion Letters: offering advise to client.

:: PARTS OF A LETTER

May be written on plain paper or firm’s letterhead.

  • Letter Head or Writer’s Address: -Date (of writing); -Addressee’s details (Name/office designation, address); – Salutation “Dear Sir/Madam”; – Attention (to a particular person in an organization. E.g. Attention Mr Johnson Adams); – “Confidential” (if only addressee should read); – “Personal” (if writer contemplates addressee rather than his official position).
  • Reference Number: “Our Ref” “Your Ref”. useful in filing documents.
  • Content: Heading (concise statement of Subject matter); – Body (with paragraphs on Introduction/mandate, facts, demands/expectations, resolution/effect of non-compliance, appreciation).
  • Closure: Yours faithfully or Yours Sincerely for formal and informal letters respectively.
  • Signature: to give the letter legal effect. Signed with the name of the person signing it and then the name of the law firm-Okafor v Nweke. SCC (Nig) Ltd v Ekenma. As firm alone is not a legal personality.
  • Enclosure: where documents have been attached to the letter. “ENCL” or “ENCLS”.
  • Copies: “CC”. where some others have copy of the letter.

 

:: SUBJECT TO CONTRACT: Used to show that there is no intention to be bound until a formal contract is drawn up and duly executed by the parties-UBA v Tejumola & Sons Ltd[4].

:: ‘WITHOUT PREJUDICE’: that information and correspondences exchanged in the course of negotiation should not be given as evidence in court-Section 26 EA Parties may waive this privilege-Mole v Mole.

 

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[1] There is no need to start citing statutes and cases here yet.

[2] READ UP GEORGE COODE’S DEFINITION OF A SENTENCE. That legal action should always be the last in the sentence. First there is a case, then condition, then subject then action. His definition appears in favour of couching legal sentence in passive manner

[3] E.g. Section 317 of the 1999 Constitution says “without prejudice to the generality of Section 315 of this constitution”.

[4] Although in International Textiles Industries Ltd v Aderemi, the court noted that doing so may not suffice where there is nothing left to negotiate.

Isochukwu

Quite eccentric really

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