ABSTRACT

The outbreak of the Coronavirus
Disease- (COVID-19) has brought about unprecedented global downturn and adverse
impact on the Nigerian justice system and its activities. The pandemic had its
first show on human stage towards the end of 2019 in Wuhan which happens to be an
emerging business hub of China, this unprecedented disease outbreak is recorded
to have caused the untimely death of not less than 185,434 persons globally and
infected over seventy thousand individuals within the first fifty days of the
epidemic.[i]
This virus was reported to be a member of the β group of coronaviruses and
scientifically described as an infectious disease caused by severe
acute respiratory syndrome coronavirus 2 (SARS-CoV-2).[ii]  There is no doubt that the outbreak of
COVID-19 pandemic has  a negative effect
on the Nigerian Justice System, activities of judicial officers, legal
practitioners, law firms and the Nigerian Bar Association at large and this
paperwork seeks to consider the post Covid-19 pandemic challenges on both the Bench and the Bar and probable solutions to remedy
the situation.

 

INTRODUCTION

It is common news that the Nigerian Judiciary had made swift decisions to ensure the protection of justices, judges and
staffs of courts and further undertook 
preventive measures on the spread of 
CORONA VIRUS (COVID-19) . The Chief Justice of
Nigeria (CJN) and the Chairman of the Nigerian
Judicial Commission, HON. DR. JUSTICE I. TANKO  MOHAMMED, CFR, JSC had earlier
directed
all Heads of Courts by  circular No.
NJC/CIR/HOC/11/631 dated 23^rd March, 2020 to suspend Court sittings
for an initial period of two weeks from 24th March, 2020 except for the purpose
of dispensing matters that are urgent, essential or time bound in line with the
extant laws of Federal Republic of Nigeria.[iii]  A circular was further released to that
effect on the 6^th of April, 2020 , extending the suspension of Court
sittings till further notice, given the lockdown measure put in place by
Federal and some state governments to curb the spread of COVID-19.[iv]

Similarly, the Nigerian Bar Association
has also put up measures to ensure the protection and welfare of the members of
the bar, the chairman of the Nigerian bar Association Dr. Paul Usoro SAN had on
16^th of April, 2020 announced the 18 (eighteen) men welfare
committee to provide strategic insight on how to provide palliatives to
indigent registered members of the Bar and also made provisions for online
payment of the Bar Practicing Fee before the statutory March 31^st
deadline.

In the same light, the Lagos State Judiciary issued practice directions
to guide remote hearing of court cases in the state to ensure that cases are heard and disposed of
urgently. The Chief Judge, Hon Justice Kazeem Alogba remarked that the practice
directions were made pursuant to Section 6 subsection 6, Section 274 of the
1999 constitution as amended, Section 87 subsection 1 of the High Court of
Lagos 2015 and other enabling legislation. The guidelines which becomes
effective from 4^th of May 2020 makes reasonable provision for
preparation and conduct of remote hearings, electronic filing and service of
court processes, electronic payment of filing fees, remote hearings on Zoom,
Skype, or any other video communication approved by the court,  adoption of written addresses, and a notice
of delivery of rulings and judgments. He added that the practice direction
applies to new and urgent cases, pending cases involving urgent and time-bound
applications such as bail hearings, fundamental human rights matters, rulings,
judgments, and any other matter approved by the Chief Judge.[v]

It is noteworthy that even though the
governing authorities of the bench and bar had made applaudable attempt to
reduce the effect of the covid-19 pandemic on its members, they must also put
up measures for the post lockdown challenges as failure to do so will have
negative consequences on both members of the Bench and the Bar.

 

Ø
CHALLENGES

We will therefore consider some of the
post Covid-19 pandemic on the Nigerian justice system which are but not limited
to the following

·       
Backlog of Pending Cases

The Nigerian judicial system has over
time been known to have numerous pending cases before both the inferior and
superior courts of records taking cognizance of 
the inadequate number of judges in Nigerian courts, Cases today
certainly take longer time to be finalized leading to adjournment upon
adjournment before verdicts  are finally
passed unlike in cases where there are adequate number of judges to reduce the
average workload per judge.

It is glaring that despite the volume
of cases, the courts has had to proceed on an unavoidable indefinite suspension
of judicial activities since the 23^rd of March, 2020 and  as a result parties in pending cases would
show up around court buildings immediately after the lockdown is over.

In consideration of the prevailing
information about the inadequate number of judicial officers in Nigerian
courts, it is an infallible proposition that cases will certainly take longer
time to be finalized and verdicts passed.[vi]

·       
Plethora
of Cases from the effect of the pandemic

The Covid-19 pandemic is
generally noted to have negative effect on all spheres of life and the court
would expect to witness a massive spring forth of cases ranging from force
majeure clauses in contracts, employment relations, inability to execute
contracts due to the lockdown, lease and tenancy disputes owing  to inability to pay rent, approvals of mergers
and acquisition owing to inability to meet up with FCCPC[vii]
thresholds by corporate bodies, declaration of solvency, winding up
proceedings, and cases of gender violence and assault during the lockdown. 

 

·       
Suspension of large gathering

One of the many challenging effects of
the Covid-19 pandemic on the Nigerian Bar and Bench is the continuous
restriction on large gathering and this will inevitable reduce the number of
persons in court rooms if the social distancing preventive measure is observed,
the Annual General Conference  of the
Nigerian Bar Association may not hold owing to the expected number of attendees
if Nation is still unable to defeat the pandemic before August 2020, and  essential National Judicial Council meetings
where sensitive issues with regards to the governance of the Judiciary are
discussed may also not be held as expected.

 

·       
Technological Deficiencies

The former chief Justice of Nigeria
(CJN) Walter Samuel Onnoghen during the previous 2017/2018 legal year of the
Supreme Court reiterated the need to ensure progressive upgrade of the
judiciary especially in areas of administration, practice directions,
independence of the judiciary and contributing significantly to the fight
against corruption. He added that

“The
Rules of practice and procedure should make provision for concessionaires to
handle the service of court processes and documents. Also, the Rules of
Practice and procedure should provide for e-filing to be done either by courts
or by external management service providers, there is a need for regular updates of courts’ websites, and there must
be computerized records in each court.”

The former CJN said entries must also
be made and posted on the website of the judiciary, where information on the
type of cases, progress made, judgments etc., can be accessed anywhere in
Nigeria, weekly, monthly or quarterly.

It is
unfortunate that this astute recommendation has still not been completely
implemented and the judiciary is continually faced with the challenge of low
Input of Computer Technology.

 

Ø SOLUTION

ü
In mitigating challenge of numerous
backlog of cases, it is my humbly proposition that more judicial officers
should be appointed for speedy dispensation of justice, willful delay tactics
and unethical practices by counsel  to
parties to  prolong cases and make such
cases drag through ages should be discouraged. Furthermore, there should be
statutory time for every case before the court according to its peculiarity.

 

ü
Heads of superior courts should review the current rules of
courts and practice directions in order to accommodate speedy administration of
justice and further enlarge the scope of the fast track procedure.

In the case of Chief John Oyegun v.
Chief Francis A. Nzeribe[viii],
the Supreme Court of Nigeria held
that the heads of every cadre of superior court shall have the power to make
Rules of that Court. It is trite law that the power to make Rules of Court at
the Supreme court, Court of Appeal, and at High Court of various states and the
FCT are vested in the Chief Justice of Nigeria, President of the Court of
Appeal and the Chief Judge of the States and FCT respectively.. The relevant
sections of the 1999 Constitution of the federal republic of Nigeria are
Sections 236, 248 and 274.

ü
Provisions for virtual
conferences, webinars,  frontloading of
evidence electronically, and electronic trials should be made in the Rules of
Courts, practice directions, Nigerian Bar Association guidelines and other
procedural laws.[ix]

With e-justice and e-meetings, case
management will be automated, forms that simplify and streamline court
proceedings will be accessible to users online, and payment of fees made
through dedicated websites to reduce corruption.

The Lagos state Judiciary made astute
attempt in line with the aforementioned recommendation however, I found some of
the provisions in the guideline issued by My Lord the Hon Chief Judge of Lagos
not to attain fundamental standards for the following reasons[x]

(1) The
preamble states the scope of cases to which the Practice Directions apply and
these includes cases which are urgent or time bound. The scope of the guideline
should be extended to all cases as we do not know when will pandemic will be
conquered and an attempt to leave out other cases except for urgent and time
bound cases will have far reaching effect on the Nigerian Judicial System.

(2) The
guideline made no provision in situations where electronically filed processes
fail to be delivered due to network error or where it was erroneously sent to a
wrong channel or platform.

(3) The
guideline in paragraph 6 and 7 made provision for electronic filing and no
provision is made for electronic signature where a person is unable to do same
physically.

(4) The
guideline made no provision for the attendance of public in proceedings before
the court in line section 36 (3) (4) of the constitution of the Federal
Republic of Nigeria.

It must be noted that there is no legal
or statutory framework for electronic trials yet and both the legislature and
Judiciary are expected  to concordly work
towards the enactment of legislation to address the aforesaid in order to avoid
multiple appeals cases before the appellate courts.

Courts and NBA branches should also
ensure compliance with Nigeria Centre for Disease Control (NCDC) measures for
prevention and control of the Covid-19 pandemic by observing physical
distancing in court rooms and in NBA National/branch meetings, provide hand
sanitizers in all court rooms and compulsory use of the face mask.

ü
It is applaudable that the Supreme
Court is moving towards complete utilization of information technology; however
there is need for all law courts and Judicial Officers in Nigeria to be ICT
compliant, provision of consistent power supply and employment of the services
of more shrewd ICT experts to assist the Judiciary and members of the bar is
also necessary.  

Information and
Communication Technology (ICT) will enhance the justice system by ensuring that
information is digitally received, controlled and passed on adequately. With
this measures put in place Processes filed in court will be finalized, ready on
demand and transfer of data and information will not be desegregated. It is
however further advised that measures must be accompanied by enhanced capacity
of personnel and investments in cyber security.

CONCLUSION

The goal of every purpose driven
society is progress which allows for unrestrained growth, compliance
with rule of law and legal security for individuals, and even
development of its judicial system. The Covid-19 Pandemic is a threat to human
existence and particularly on the Nigerian Justice system at large and proactive
steps in mitigating its effect on both the Bench and the Bar highly required. As
patriotic citizens and ministers in the temple of Justice we are burdened with
the responsibility of ensuring compliance with the Rule of Law.

 

References

In a knowledge sharing session with members of the NBA, Ikorodu Branch, Dele Adesina SAN when asked about the characteristics he looks out for in an associate stated the following:

1.Vision  

An associate who has no dream, no goal will not matter to me even if he has a First Class at the LL.B and B.L. levels. So the first thing I watch out for in anyone is his or her vision in the Profession

The Associate must have a dream and a desire of what he or she wants to become in future. In other words, his vision must be clearly formulated and understood by him. He must be engrossed by the dream with passion. Nothing is as important in life as much as having a dream. Your dream is your goal. Unless your dream is clear to you, to pursue it would be difficult. It is worse if you have no dream. It means you are going nowhere. The scripture says that *”as far as you can see, God has given you for a possession.”* Once, his or her dream is clear, then the first hurdle is crossed.

2. Dedication 

The second characteristic is whether he or she is willing to be dedicated to that vision because I don’t want someone that would come to the Chambers today, is learning the rope of advocacy and after two or three years steps-out to take a Secretary appointment somewhere. Thereby wasting all his or her three years on the advocacy line

So the prospective Associate must be dedicated to his dream. To him nothing else must matter. Through thick and thin, he or she must hold on steadfastly to the dream. Not minding the pain because of the gain he sees ahead. He will also be ready to pay the *”price”* in order for him or her to win the *”prize”* in future.

3. Determination

The third characteristic I would watch out for is determination to succeed. Does the person siting before me have the tenacity to succeed in the Profession? Or is it somebody that will abandon the cause because of a temporary difficulty? To a determined individual, every obstacle is a stepping stone, every challenge is a hurdle to be surmounted. Every failure is only temporary. So the driving force to a determined person is the assurance of the light at the end of the tunnel and it is not difficult to know whether the person you are interviewing is a strong and determined personality.

4. Discipline 

Lastly, the fourth is Discipline. Your carrier/ vehicle that will translate your dream to accomplishment is *”DISCIPLINE”*. I won’t spend time on this. We all know what discipline in life means.

As part of our ESQ Practical Lawyer Academy Virtual Training programmes, we present to you a Masters Class on Financing Essentials in a Period of Crisis.

Course Overview
The course will examine the broad categories of financing and focus particularly on project financing and syndicated lending. It will draw on the experience of seasoned professionals in these fields and address some of the critical issues that will be on the front burner for corporate, bankers and other financiers during a period of financial stress.

The course will aim to equip participants with knowledge of:
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(c) critical flexibility and stress management provisions in typical financing documents; and
(c) proactive preparatory steps to be taken and analysis to be undertaken in periods of financial stress; and
(d) practical steps for companies / financiers involved in or considering liability management transactions.

SPEAKERS
Jason Kerr, Partner – White & Case LLP
Dr. Gabriel Onagoruwa, Associate – White & Case LLP
Date: May 12, 2020, Time: 11am
To Register: https://lnkd.in/guVqZd9q

Today, the 1st of May, 2020 marks International Worker’s Day, a day dedicated to celebrate workers and institutions the world over. It is also a day to celebrate the dignity that comes from hard work and the fruits of our labour.  
 
I celebrate all my fellow learned colleagues today, particularly those who have continued to chart a course for our nation through hardwork, diligence as well as promotion of the rule of law and democratic principles. The legal Profession has evolved over the years as a strong voice for the promotion of due process and rule of law in the country.
 
I recognize and salute the invaluable contributions of our great bar leaders both past and living, and distinguished Nigerian legal practitioners, in the struggle for a better society. Moreso, Nigerian lawyers play a leading role in our quest for a society that puts premium on selfless sacrifice and diligence in both the public and private sectors, and continues to be a worthy partner with stakeholders in Civil Society for our shared quest for greater appreciation of Nigerian workers.
 
I therefore, dedicate today to all the lawyers who have continued to use their expertise to create a better society for us all and contribute their quota in service to humanity and our great nation. On behalf of myself and colleagues at Dele Adesina LP, I wish all Nigerian lawyers  Happy Workers Day.
 
Dele Adesina SAN

Mr. Emperor Ogbona is a lawyer practising in the commercial city of Aba in Abia State. Information provided by the Executives of the branch Interim Committee confirm the following:

That Emperor Ogbonna Esq. was alleged to have made an online publication stating that the Governor of Abia State, Okezie Ikpeazu allegedly visited a shrine outside the country where he was said to have sworn to an oath of allegiance abd secrecy to the former Governor of the State.

That the online publication was alleged to have been  made on the Facebook page of Emperor Ogbonna. Mr. Ogbonna denied being the originator of the post but that he only re-shared it.

Further information revealed that the State Governor was alleged to have made a personal statement to the Police on the matter and therefore, he is a Prosecution Witness. Mr. Ogbonna was subsequently arrested by the officers of the Nigerian Police Force and charged before the Federal High Court, Umuahia with the offence of terrorism.

Inspite of all the deliberate obstacles put the way by the State government and the Prosecution to prevent the hearing and grant of the bail application, the Federal High Court eventually granted bail to Emperor Ogbonna Esq only on the condition that he be released to a lawyer of not less than 20 years at the bar.

This, according to information, infuriated officials of the Abia State government who crowded the court premises, and said to have been led by the Chief of Staff to the Governor, one Dr. A.C.B. Agbazuere, who incidentally is also a lawyer.

The Abia State government officials accompanied with officials of the State Security Service (DSS) made forceful attempt to re-arrest Emperor Ogbonna within the premises of the Federal High Court but this was resisted by the prison officials and lawyers present because the bail term was yet to be perfected.

We were informed that the premises of the Federal High Court was made almost riotous by the insistence of the Abia State government officials and the DSS (apparently acting in concert) to forcefully take Emperor Ogbonna from the custody of the prison officials; the bar leaders present had to advise the prison officials to take Emperor Ogbonna back to the prison and to remain there until they perfect the bail term. Still yet, the Abia State government officials and the DSS personnel followed the prison officials to the Federal Prison, Umuahia. The leaders of Aba branch ensured that Emperor Ogbonna was safely in the prison before they all left.

The NBA was further informed by the Interim Executives of Aba branch that, it therefore, came to them as a rude shock, when they got information that the  Prison authorities released Emperor Ogbonna Esq. to the DSS officials and officials of Abia State government allegedly on ‘order from above’.

The circumstances surrounding the arrest and re-arrest of Emperor Ogbonna by the DSS at the instance of the Abia State government are very disturbing. Without commenting on the merit of the charge, being subjudice, it is a fact that the matter has already been submitted to the jurisdiction of the Federal High Court, and the Court graciously granted Emperor Ogbonna bail. There was therefore no basis for the further involvement of the DSS apparently at the instigation by the officials of the Abia State government to continue denying Emperor Ogbonna his constitutional right to personal liberty. The forceful arrest and continued detention of Emperor Ogbonna has made it impossible for him to perfect his bail term, and therefore, the actions of the Abia State government and the DSS amount to flagrant disobedience to a valid order of a Federal High Court and violation of the constitutional rights of Emperor Ogbonna Esq.

The Nigerian Bar Association, therefore, demands that the State Security Service (DSS) and the Abia State Government immediately release Emperor Ogbonna Esq. to face his charge before the Federal High Court, for which plea has already been taken and the matter adjourned for hearing.

The NBA trusts that the Abia State Government and DSS would not give the impression that they are above the law of the land and do not have confidence in the credibility of their complaint before the Federal High Court. The NBA refuses to accept popular opinion that the harrassment of Emperor Ogbonna Esq could be a subtle attempt to intimidate him to kowtow to any untoward compromise; if it is true, then it amounts to interference with the judicial processes by State officials who should know better, and this would be highly frowned at.

While the Nigerian Bar Association commends the leadership and members of Aba branch of the NBA for ensuring that Emperor Ogbonna Esq is allowed the privileges and facilities provided by the Consititution of the Federal Republic of Nigeria, the NBA shall continue working with the relevant authorities to ensure the early release of Emperor Ogbonna Esq and encourage actions towards seeking redress for the violation of his constitutional rights.

*Kunle Edun*
National Publicity Secretary, Nigerian Bar Association.

 

Globally countries and their citizens are still contending with the Covid19 Pandemic and its effects on lifestyle, health and even the economy. Most cities all over the world have been on Lockdown and curfews have been imposed to flatten the curve and stop the spread of the Corona Virus. This has also been the case in Nigeria, with a Presidential directive that has kept Lagos, Abuja and Ogun State on Lockdown for about 4 weeks, not to mention other State Governments that also imposed lockdown such as Kaduna, Kano, Osun, Oyo and Rivers to mention a few.
However, for the sake of the economy, President Buhari has directed that a gradual ease of the lockdown commences from Monday, 4th May, 2020. This means we would be getting back to work and the following tips would help lawyers get back to business swiftly :

1.Sanitize and Disinfect your work place :-
The first and foremost thing every law firm should do is ensure that all your working locations are safe and properly sanitized ahead of marking the first day after the lockdown. For this disinfectants should be used to clean the office especially easy contact areas such as door knobs, office stationary, tables etc. Also alcohol based hand sanitizers and tissues should be placed at all the common areas around the workplace. At the same time, you must also ensure that these things are refilled or replaced from time to time.

2.Keep a social distancing policy :-
While at the office, all members of staff should keep a safe distance from one another, and if any member of staff is coughing or sneezing, such person should be asked to return home and isolate. If the firm has a high number of staff, management may want to consider having a work roaster to ensure the office space is not crowded all the time.
 

3. Track your court matters :-
After the one month period spent on lockdown, it is obvious lawyers would have missed many court dates, pre-scheduled appointments and other official duties. You can begin to write to those clients asking that meetings be re-scheduled and also confirm new dates for your court appearances.
 

4.Minimize business related travel :-
During the lockdown many lawyers were able to continue doing business with the help of internet enabled applications such as Zoom. Also many courts have introduced guidelines for electronic filings and hearings, as legal practitioners, we can continue to take advantage of these applications to minimize business related travel by scheduling video conferencing meetings.
 

5. Ensure Staff Hygiene :-
Despite the announcement that the lockdown would be eased, many states have directed the compulsory use of face masks in public. Lawyers should embrace this practice and ensure they use face masks at all times, continous washing of hands and hand sanitizers.
 
All lawyers and law firms should consider the above initiatives to prevent further spread of the pandemic or any further impact on our businesses.
 
 
Caroline Ibharuneafe, Mrs.
Past Vice – Chairman, NBA Ikeja Branch.
#Integrity+accuracy
carolibharuneafe.com.ng
 
 

The most significant incident to impact the planet
in the last 6 months has been the outbreak of COVID19 popularly known as the
novel coronavirus. This outbreak has reinforced the need for appropriate legal
and risk management measures and systems. The pandemic which has now spread to
146 countries and counting first emerged in Wuhan, Mainland China and yet the
world would never have imagined the extent to which the outbreak would travel;
becoming classified as a global pandemic by the World Health Organisation. It
has also caused global disruption of mobility and chaos on the lives of
billions around the world as well as had considerable negative impact on macro and
microeconomics.

 The threat the novel coronavirus presents on
various industries and business sectors has been numerous and far reaching;
from significant disruptions to essential services in banking and finance to
disruption to major fixtures in the international sporting calendar from the F1
Australian Grand Prix, cancellation and postponement of a number of high
profile sporting conferences and tournaments including the much awaited Edo
Sports Festival 2020, World Football Summit Africa 2020 and a host of others.
Over 110 showpiece sporting events across Europe and Asia stand cancelled or
postponed due to the COVID-19 outbreak: affecting over 2,000 highly anticipated
match-ups across various sports like football, NBA, Eurobasketball, Mixed
Martial Arts, Golf, Tennis, Formula One and so on[1]. The
progression or otherwise of the virus in the coming days will determine whether
the Olympics event scheduled to take place this summer would go on as planned.
The world of E-sports has also seen its fair share of cancellation and
postponement of events: The Software Association’s 2020 E3 Video Game
Convention and the annual Games Developers Conference have been cancelled due
to covid-19.

Famous sporting personalities have also been
infected by the virus. Danielle Rugani and Blaise Matuidi of Juventus, Rudy
Gobert of Utah Jazz, Ezequiel Garay and five other football players in the
Valencia CF roster to mention a few. The virus has also claimed the life of
Francisco Garcia, a Spanish Football coach after a pre-existing health
condition was exacerbated by the infection- The only casualty in the sporting
world as of today.

 

The entertainment industry has also felt the sting
of the virus as thousands of entertainment events have been called off: Music
concerts, tours and award shows like the GidiFest scheduled for this April in
Lagos, Tribeca Film Festival, Billboard Music Awards, Glastonbury Music
Festival, Coachella, Stormzy’s ‘Heavy is the Head’ album tour, The Kid’s choice
award among others. Movie productions and Premieres of highly anticipated movies
have been put on hold; theme Parks and Amusement parks are fast shutting down
in China, Korea and other hard-hit countries[2]. Top
celebrities like Tom Hanks, Rita Wilson and Idris Elba have also been tested
positive for the virus.

 

Beneath this mess of cancellations and
postponements are complex commercial and sentimental interests arising out of
various entertainment and sports contracts. Performance of contracts has become
near-impossible as at when due. To be specific, Fans who have bought tickets as
well as paid travel costs and made hotel reservations with respect to a certain
concert or movie premiere will definitely be affected by its cancellation or
rescheduling. Sporting clubs would be liable for possibly breaching their
contracts with Season ticket holders who would be robbed of the spectacle paid
for in the event of a cancellation, postponement or a decision to play matches
behind closed doors.

 

Suffice it to say most businesses around the world
big or small will by now be affected in some way by the novel coronavirus and
that being said it is still not too late for business owners , leaders,
etc  to 
take steps to mitigate the impact or prepare to insulate itself from
shocks at best. There will be legal ramifications and risks arising from the
pandemic which all individuals and businesses will now have to seriously
consider. It is highly probable that there will be fall outs and unfortunate
contractual disputes as a consequence of the health crisis the world is
currently facing: Non-Performance being a major fall out, as the ability to
perform contracts will be severely affected and tested in the next few months
considering the stringent regulatory policies now in place. These include
widespread lock downs which has curtailed mobility whether domestically or
internationally as well as the practice of social distancing to flatten the
curve and reduce the transmission rate.

 

As we will come to find out; the inclusion or
otherwise of a Force Majeure Clause in sports and entertainment contracts could
prove instrumental in periods like this. So the question is what exactly is a
force majeure? And what events will give rise to a force majeure or vis major
as it is also known?

 

 

Doctrine
of Force Majeure

 

The doctrine of Force Majeure takes root in English
common law and applies to situations where an external event or occurrence
outside reasonable control prevents parties or a party from performance of
obligations under a contract. It is expressly provided for as a term of the
contract between parties and usually lists out a number of acts, the occurrence
of which would constitute a force majeure with respect to the contract.

 

In the reported Nigerian case of Diamond Bank Ltd V Ugochukwu,[3]
the court held that for a Force Majeure to occur there must be an event which
significantly changes the nature of the contractual rights of the parties that
it would be unjust to expect the parties to perform those rights such as;

 

–      
Where the subject matter of the
contract has been destroyed, or is no longer available.

–      
Death or incapacity of a party to a
contract

–      
The contract has become illegal to
perform as a result of new legislation.

–      
A contract can be frustrated on the
outbreak of war.

–      
Where the commercial purpose of the
contract has failed.

 

The provision of Force Majeure is one that has
strict application and can only be relied on based on the express provision in
the contract and the qualifying events which successfully triggers the
provision.

 

The applicability of Force Majeure can cover any
situation provided that the provision has been made for it.

 

What
type of events can give rise to a Force Majeure?

 

Natural events also known as ‘Act of God’ can give
rise to a Force majeure.  Actus
Dei nemini facit injuriam: interpreted literally, an act of God injures
no one. To further buttress, the maxim simply stresses that no one is
responsible for an act of God and cannot be said to have injured an adverse
party by the occurrence of such. Acts of God can include adverse weather
conditions e.g. hurricanes, thunderstorms, earthquakes. These are unexpected
events which cannot be predicted by contracting parties to a large extent, nor
prevented by them.  

 

As this writer has earlier mentioned, Force majeure
is a term of the contract. This means, that it must be provided for expressly
in the contract. So, it is the practice for parties to include acts or events
which would generally inhibit performance of obligations in a contract or work
hardship in the process of performing same. These events may not be Acts of God
per se, but they are abnormal incidences which are inherently unfavorable to
the terms of the contract. These include, epidemics, pandemics and other man-made
or politically related events such as riots, civil unrest and war due to
instability in a government or national leadership or other ‘Acts of
Government’.

 

All in all these are events that can unduly occur
out of the control of the parties making it difficult or near impossible for
the parties to fulfill a contract. Impossibility in itself is subject to
interpretation given that the circumstances that arise in the event of a
medical pandemic will be quite different from that which arises during a riot.
Whereas during war there is a total shut down of operations and clearly normal
business affairs will be non-existent in the case of a medical pandemic
business operations , meetings, etc  will
be curtailed due to non-movement and not because the parties cannot perform
necessarily

 

An outbreak of highly Infectious diseases such as
Covid-19, H1N1 virus and/or the Ebola virus could fall under the category of
medical pandemic or epidemic in a Force Majeure. However, to qualify as such,
its category must be included in the Force Majeure clause especially where
other acts or events are listed, so as not to be caught up by the ejusdem
generis rule. The necessary Government regulations or directives which
have been promulgated as a result of the outbreak such as social distancing,
ban on large gatherings are strong performance barriers which could bring
Covid-19 under the category of Acts of Government in the ilk of the items
mentioned earlier. Careful construction of Force Majeure clauses therefore
require equally careful consideration and need to be wide enough to accommodate
events that may not be life threatening but clearly advisable to still carry on
normal business operations.

 

Parties
are also at liberty to state the consequences of a Force Majeure. This could
include suspension of Contractual obligations, renegotiation of terms,
non-liability, extension of time to fulfill obligations, mitigation of losses,
and termination of contracts amongst others. Considering the effect of Covid-19
on Sports and Entertainment events, where there is a Force Majeure Clause in
the contract, parties may trigger the same. Broadcasting companies like
Supersports which holds exclusive license to broadcast a wide array of sporting
events in West Africa could reach out to the organisers and reach a favorable
decision on the strength of the Force Majeure clause, Fans who have bought
tickets could demand a refund from organisers and athletes signed up to sports
clubs may rely on the Force Majeure clause to justify why it was impossible for
them to attend trainings or partake in games for their teams which would
ordinarily represent a breach of contract. Recently, Nigeria’s ex-Skipper,
Mikel Obi ended his contract with his former club, Trabzonspor of Turkey by
mutual termination days after he criticised the Turkish FA for allowing games
to go on in the circumstances. While the specific details of termination are
not yet public, one may infer from the situation that he would only have been
able to walk away from his contract without incurring heavy cost for breach if
there were relevant Force Majeure provisions in the player contract to that
effect.

 

However, in the absence of express Force Majeure
provisions in a contract, parties in Common Law jurisdictions have an
alternative which is the reliance on the common law doctrine of Frustration.

 

 

Doctrine
of Frustration

 

The doctrine of Frustration is based on the
English common law doctrine which seeks to set aside the obligation of parties
under a contract due to unforeseen events and it can apply in the following
circumstances where there is no underlying provision for Force Majeure. The
doctrine of frustration was well propagated in the case of Taylor v Caldwell[4]
From the
decision in this case; the following elements of Frustration may be gleaned
where:

 

–      
External events not contemplated by
the parties arise which are beyond their control.

–      
The event was unforeseeable and it
occurred post-formation of the contract.

–      
The unforeseeable events make the
contract impossible to perform

 

Thus where a force majeure clause has not been
included in a contract and no risk has been allocated by such a clause in the
occurrence of stated mishaps, where an unforeseeable event occurs which may
render the contract impossible to perform, parties may rely on the doctrine of
frustration to bring an end to the contract or obtain remedy from the court
where due. An example of such an event would be where the subject matter or the
crux or the main condition of the contract ceases to exist. This was
established in the celebrated case of Henry
v Krell,[5]
where the Coronation event, which was the foundation of the contract between
the parties, was cancelled due to the unexpected sickness of the incoming king;
the Courts deemed the contract as impossible to perform due to the
non-existence of the subject matter of the contract. Thus, parties were
excluded from any future obligations arising from the contract.

 

Also, frustration could also occur where there is
a delay or interruption which duration is indeterminate and was unforeseen by
contracting parties. This was the decision of the Court in The Sea Angel Case.[6]
Thus, when applied to sporting and entertainment events that have been
postponed indefinitely for now, this could constitute an act of frustration of
the contract. Fans could get refunds; Insurance policies for players could be
terminated with future obligations cancelled. Footballers who are in their last
few months of contracts with their clubs – especially clubs in the top five
leagues where the season ends in the summer- could exercise the option of
canceling their contracts to the club where the season is resumed and the
matches drag beyond June 30, the final day of contracts for most players. Event
planners of concerts may have to refund all or a part of the funds received
from artists and their managements due to cancellation of events. The fallouts
are endless.

 

A change of law can also qualify as an
unforeseeable event can also act as an additional layer to another
unforeseeable event such as a medical pandemic, a change of law may be
temporary or long lasting and can be passed such as the temporary imposition of
travel restrictions, self-isolation measures and quarantine to name a few which
can further make the contract impossible to perform; resulting in termination
of the contract.

 

The consequence of invoking the doctrine of
frustration is that it brings the contract automatically to an end and either
maintains the status quo or restores the parties to the status quo ante bellum
as the justice of the case demands.  In
the event a contract is frustrated, one party will be relieved of the
obligation to perform and another who would have relied on service or goods
emanating from the contract will be left disappointed. It is ideal that both
parties reach a mutual agreement and fair conclusion however the law of damages
which is normally applicable in contract will not be applicable under
frustration due to its strict Common law background.

 

CONCLUSIONS

 

The instance of COVID-19 gives rise to a series of
unpredictable and unfortunately dynamic changing events. So far, we have
witnessed industries notably the international aviation and sports industry
take initiatives to secure the health and safety of millions which would
otherwise be compromised through gatherings and continuous mobility. This means
businesses will need to take more care when entering into any contracts from
this point onwards until the threat abates especially whilst other obligations
persist such as payment of wages, medical insurance. Adopting a cautious
approach and obtaining full legal clearance on new contracts will be highly
advisable at this point.

 

It is evident that in one form or another,
individuals and businesses will be affected not only directly by COVID19 but also
by the disruption emanating from it.  Practical
steps  to stem this threat include:

 

1. Carefully
   reviewing all existing contracts. This applies to main and sub contracts
   with third parties to determine the level of risk exposure involved and
   what performance is expected. 

 

2. Review
   the contracts/agreements and check if the relevant force majeure clauses
   are already in place and determine if they are couched properly.

 

3. During
   the intense period of social distancing and travel bans, performance of
   contracts will likely be negatively impacted. It is necessary to ascertain
   to what degree performance is affected and what remedies are available.
   Can the contractual performance be delayed or postponed? Or will it have
   to be cancelled leading to significant reliance on force majeure contracts
   in order to minimise further liabilities or losses. This activity should
   typically be handled by the legal officer within your organisation or the
   company secretary.

 

4.  Prompt communication of non-performance
   must be made as soon as it is clear contractual obligations cannot be
   performed by one party to the other party in the contract. This is
   necessary to mitigate losses as well as seek remedies such as refunds, etc.

 

5. It is
   necessary to correctly ascertain whether the event arising falls under the
   provision of Force Majeure or frustration in order to be released from
   performing obligations under existing contracts.

6. There is
   also the need to explore ADR mechanisms, especially negotiation in case of
   conflicts over performance of contracts. Parties like sports clubs and
   player unions or Sports Organisations could also commence negotiations as
   a pre-emptive measure in order to arrive at solutions for more extreme
   situations.