by Legalnaija | Apr 17, 2020 | Uncategorized
The outbreak of the novel Coronavirus
Disease- (COVID-19) – has brought about a global economic downturn and negative
impact on global commercial activities with economies at the brink of a recession.
Generally, labour relations are governed by the labour legislation in different
countries and more specifically by contracts of employment, which spell out the
terms which have been agreed to by both employer and employees to govern their
relations during the term of employment.
A pandemic of this type is unprecedented
and it is not unlikely that most employers in drawing up employment contracts
would not have contemplated circumstances which would bring about this level of
interruption and disruption to work as we now have with the COVID -19. Businesses
now have to deal with issues of non-performance of obligations in employment
contracts and situations which employment contracts, company policies and
employee handbooks cannot deal with sufficiently. In this note, The Employment
and Labour Lawyers Association of Nigeria (ELLAN)[1] gives
some guidance on some common employment and labour related issues that have
been thrown up by the pandemic.
1. Can
An Employer Terminate An Employment Contract As A Result Of The
Impracticability Of The Employee To Do Work And Earn A Salary?
It is
the duty of the employer to provide remuneration for work done. Both the
employer and the employee can agree on the nature and scope of work to be done
by the employee as well as the amount the employer will pay as remuneration and
these among other terms is usually stated in an employment contract.
As a
result of the rapid spread of the COVID 19, many governments are enforcing
different measures to restrict movement in order to contain its spread with the
attendant effect of the enforcement of such measures having an extensive
negative impact on the economy and by extension labour relations. The most
dominant effect of COVID -19 on labour relations in every industry is the change
in the workspace – employees can no longer work from their offices as agreed
with the employer and where practicable, carry out/discharge the specific
duties from home/remotely – will have to adapt to working remotely. Whilst this
arrangement is not new to the world of work and many private organisations have
integrated the idea of working remotely into the employee’s work schedule, many
private and even public institutions (especially civil servants comprising
one-third of the working population in Nigeria) are yet to fully appreciate the concept of working
remotely. In Nigeria, many business models are still quite fixated on the
traditional models of work which require an employee to resume at a physical
office in order to carry out tasks usually between 8a.m to 6p.m. As a result of
this change in workspace (and cash flow expectations for the employer resulting
from economic recession) the employee may either not have work to do or the
tools may not be available at home to do the work efficiently as the employer
would have expected.
In
view of this evolving nature of work now occasioned by COVID-19, would an
employer be acting lawfully or within the terms of the contract between parties
if it terminates the contract with its employees on the basis that those
contracts have been frustrated because the pandemic has made it impossible for
parties to perform their obligations under the employment contracts?
Employment
contracts may be susceptible to termination by frustration due to those
occurrences beyond the control of the parties, which can be illness,
imprisonment, an outbreak of war, disease (in this case epidemic/pandemic),
change in law or regulations and the death of either party. Whilst any of these
occurrences may be termed a frustrating event capable of discharging the
parties from their contractual obligations, employers must be careful not to be
too quick to terminate employment contracts on the incidence of such
frustrating events. What is crucial is that both the employer and employee must
be seen to make reasonable adjustments to ensure there is a continued exercise
of rights and fulfillment of obligations as permitted in the circumstance.[2]
Some
considerations which an employer should take into account before deciding on
termination as a result of a frustrating event such as the COVID-19 pandemic
are: adjustments in expenditures to retain liquidity and working capital, the
nature of the job and whether the employee has developed translatable skills
that can be useful to the organisation during a recession, the nature, length
and effect of the event, whether in the circumstance a reasonable employer
could have been expected to wait any longer before terminating the employment, and has the employer made any reasonable
adjustments to ensure the continued existence of the contract?[3]
On the
other hand, where a contract of employment provides for a force majeure clause which contemplates the occurrence of a
specific supervening event or circumstance that impedes or prevents an employer
or the employee from performing one or more of their respective contractual
obligations, such force majeure clause
may be relied upon in consideration of suspending their rights and obligation
under the employment contract. In that
circumstance, the employer/employee will have to prove that:
a) such occurrence was reasonably unforeseeable
at the time of the conclusion of the contract
b) such
occurrence is beyond the control of the employer/employee and could not be
reasonably avoided, and
c) due
to the occurrence of such event, the employer/employee is incapable of
performing obligations under the employment contract.
Employers must
therefore be deliberate about spelling out what constitutes a force majeure
circumstance and the mechanism for remedies available to the parties in the
contract of employment. Failure to do so means that a supervening event
such as an epidemic which prevents performance of the contract will not (and
cannot) be described as a force majeure event, so as to provide relief from
performance – because it has not been named as a qualifying event in the
contract. In the event that the employment contract provides for the force majeure consideration, the
employer can invoke the clause by a written notification informing the employee
that the parties are absolved from carrying on their obligations from the date
of occurrence of the event. In such circumstance where the contract of
employment provides for termination in the event that an impediment arises, it
is important that the due process for termination (e.g. notice pay requirement,
severance packages, terminal benefits, or consultation with union
representatives) must be followed and the employer complies with international
best practices in compensating an employee for the loss of earnings incurred as
a consequence of the termination.[4]
It is
also important to state in the notice of termination that the pandemic is the
reason for termination. This is against the backdrop of the fact that it is
contrary to international best practices for any employer to terminate an employment
contract without giving the employee the reason for such termination[5] and such
termination has in some cases been interpreted by the National Industrial Court
to amount to an unfair labour practice.[6]
2. Can
an employer suspend the payment of salaries or reduce salaries as a result of
its inability to generate income due to the outbreak of the pandemic?
By the
principles of the law of contract, parties to a contract are bound by its terms
and cannot vary the terms and conditions of the contract except with the
consent of the other party. This extends to employer – employee relationship and the
general principles relating to the construction, termination, amendment and
enforcement of a contract will apply to an employment contract unless a
specific labour legislation provides for derogation from the general
principles. The National Industrial Court of
Nigeria (NICN) in determining controversies relating to the forfeiture of an
employment benefit following a variation of the terms of a contract will
usually find in favour of the employee.[7] Variation and material changes to an
employment contract must be communicated to employees well in advance of when
the same would be made/implemented and this is to promote industrial harmony
such that material changes are not unilaterally made by the employer and
imposed on the employees if such an amendment is made effective.[8] Every employer should
engage its employees before making such changes as salary suspension or
reduction.
3.
Can an employer mandate an employee to
proceed on paid /unpaid leave in view of the compulsory stay at home period?
The Nigerian Labour Act
provides for at least six days paid annual leave[9] and most
employment contracts state in clear terms the number of annual leave days which
can be taken by the employee. Due to the compulsory stay at home occasioned by
the outbreak of the pandemic, many organisations are considering restructuring
or bringing forward the scheduled leave days/period of employees such that the
leave days are supplanted by the period now being spent at home. We reckon that
this cannot be done unilaterally and every organisation must consider its
business process before enforcing such rescheduling. If the employees are
working from home, it is likely that the courts would consider it to be an unfair
labour practice for them to be compulsorily made to take their leave days when
they are turning in expected deliverables. It has been established that
employment relationships are generally characterised by the inequality of
bargaining power.[10] It is
thus important that whatever leave structure is being proposed by an
organisation must be agreed with the employees[11] before
enforcement, otherwise it can amount to an unfair labour practice for which the
court may see the need to protect and or avail the weaker party (the employee
in this case) extra contractual protections.
4.
Can an employer mandate its employees to
take a furlough leave as a result of the lockdown occasioned by the outbreak of
the pandemic?
A Furlough
is a mandatory suspension from work for either a short or long period of time.
An organization may furlough its employees where it lacks the financial
resources to keep paying them but does not want to lay them off. During the furlough
period, the employee is not expected to do any work and receives no salaries.
Furloughed employees retain their employment rights but can take advantage of
unemployment benefits, such as government allowances like wage subsidies.
This type of leave
does not apply as a principle of employment law in Nigeria and there is no
legal framework for its application. However, the principle can be applied in
Nigeria under the permitted practice of suspension of employment contracts upon
the agreement of both the employer and the employee. If it must be implemented,
it will require the consent of the employees and trade union officials for
unionized industries. The employer and employee would equally have to determine
the terms of the suspension; which benefits and obligations will remain in the
furlough period and which will be totally suspended and what remedies will be
available to each party where there is a breach of the agreed terms. Where such
furlough terms have not been previously agreed upon, the employer must again
engage with the employees as a unilateral enforcement of this type of
arrangement can amount to the employer undermining the rights of the employee
which may give rise to claims of constructive dismissal and unfair labour
practice against the employer.
5. Can
a company suspend the onboarding of new hires whose resumption dates falls
within the lockdown period to avoid paying salary for the period of the
lockdown?
It is
not unlikely that most new hires at this time have either signed their
employment contracts virtually or agreed to the terms expressly (including the
date of resumption), by way of e-mail, a phone call or text message. Whether or
not the new hire resumes at the business premise, the resumption date which now
forms part of the contractual term is binding. The new hire has rights even
prior to the start of the employment[12] or
resumption at the business office and these rights should not be
unilaterally taken away by the employer.
To all
intents and purposes, the new hire is an employee and s/he should undergo the
onboarding process. The Human Resource department/personnel can make good use
of available virtual interaction platforms -including Zoom, Skype for Business
and Microsoft Teams- to get work going. A new hire like any other employee can
work remotely under the instructions/guidance of the assigned line manager and
is entitled to earn a salary for work done.
Where
the work of the new hire cannot be done remotely and the resumption at the
office premises is crucial to the employment, the employer can embark on a
consultative process with such employees to agree on further terms
(re-negotiation of resumption date, payment of minimum wage, reduced
compensation or termination of the contract after an agreed period of time
where the situation remains). Sufficient notice should be given prior to any
suspension, review or amendment of the employment contracts of such new hires.
6. Can
a contract of an employee be terminated where the employee claims not to have
the necessary work tools?
It is
the duty of the employer to make available to the employee proper tools (e.g.
laptops, phones, internet facility, etc.) which will aid the work of the
employee[13]
and also to ensure that Information Technology (IT) systems support working
remotely. The employee will be acting within his right to demand for these
tools if not available where the employee has to work from home. The employer
should also notify the employee of the period of time for completing any
upgrade on the IT infrastructure (e.g. creation of employee files on the internet
cloud to monitor work progression,
inclusion of sign in/out feature) especially if it would interfere with the
work deliverables of the employee.
A
termination of a contract by the employer on the basis that an employee could
not deliver on key performance objectives can amount to a breach of contract
where such employee raises the defence that s/he was not given the appropriate
tools to work with remotely. To ensure the employee has all necessary tools required
for working remotely, both the employer and employee can make reasonable
adjustments For instance, the employer
and employee can agree on the reallocation of sums which make up the salary (e.g.
part of the transport allowance (not currently expended on commuting due to the
lockdown) can be agreed to be used to procure the tools or a soft loan be given
to the employee to procure such tools or any other resource important to
efficiently deliver on his tasks while working remotely from home (e.g. fuel,
online subscriptions for e-learning or virtual interaction platforms).
7. Can
an organization defer promotions and bonuses in view of the effect of covid-19
on income generation?
Promotions are
not employment rights but conditional entitlements of employees and an
organization is at liberty to create the parameters for assessing performance
and consequently promoting deserving individuals in any given circumstance. On
the other hand, bonuses can be a part of contractual
terms (where it is inserted in the
employment contracts or in policies
which form part of the employment contract)
and such terms can be binding
on the employer.
For instance, 13th
month salary is a type of bonus which can be part of a contractual term or
where such has become a customary practice of an organization, it creates an expectation interest. An expectation
interest is capable of creating an entitlement or vesting a
right in an employee and may be recoverable against the employer and the NICN has ruled that such benefits should
not be arbitrarily deferred.
Where an expectation interest of the employee is recognised, the courts will enforce the same in favour of the
employee even where the employer gives in its defence adverse economic impact.[14]
A deferment of such bonuses by the employer without
consulting with the employee may amount to a unilateral variation of the
employment contract for which an employer can be liable for a breach. A deferment of a
promotion on the other hand will have to be considered on a case by case basis.
Where an employee has become entitled to a promotion upon an assessment of his
performance, the employer should have a consultative dialogue with such
employee so as to give the basis for possible deferments of the promotion.
8. Should
human resource policies be formulated/ implemented to reflect the control of
covid-19 infection in the workplace?
In
order to contain the spread of COVID-19 in Nigeria, the President issued the COVID-19 Regulations 2020[15] and the
Governor of Lagos state (having recorded the highest incidences) issued the
Infectious Disease (Emergency Prevention) Regulations 2020 implementing a total
lockdown of activities and a ban on all public gatherings, exempting only
essential services personnel from the restrictions. In essence, such essential
services personnel are employees who are at the risk of contracting the disease
and it is the obligation of the employers to ensure their health and safety. It is important that any organisation
carrying on its business should immediately adopt these regulations as health
and safety measures in the workplace as well as incorporate the necessary
provisions of the Regulation in the existing HR policies.
For the purpose of preventing
the spread of COVID‑19, the prescribed sanitary practices issued by the
National Centre for Disease Control should be maintained during the control period and every
employer or principal must minimize interactions by observing social distancing
practices, ensure that resumption time is alternated among staff, and make
thermometers available for taking staff temperature at the point of entry. Sitting
arrangements in an open plan office should be structured in such a way that at
least 2 metres space is maintained between two individuals. Where individuals
at the workplace form a queue or remain in an area (including a
pantry, waiting area or room, or an area with changing or sanitary facilities
or any point of convergence) for any reason, then every individual on the
queue or at the said area should maintain at least one metre distance away from
any other individual within that area. The safety policy should also highlight
that individuals other than staff who supply services to employees in the
office premises should maintain social distancing at the reception and do not
arrive the workplace at the same time with the staff. Such suppliers should not
remain in the workplace for a longer period than necessary. Physical meeting
with other employees, clients and other third parties should be kept at the
barest minimum and conferencing arrangements should be made available as
alternatives to physical meetings.
HR policies should also give considerations to emergency leave policies
that allow staff to take time off to get tested, offer paid sick days to
affected staff and discourage any form of discrimination in the workplace that
could affect the mental health of sick staff after recovery. Organisations whose
employees are currently observing the stay at home policy should implement and
give effect to these regulations and policies post COVID-19.
9. Are
there any data protection requirements that employers should consider in
relation to covid-19?
Employers
in collecting and processing
data of its employees especially as regards the health status of its employees
who have tested positive to COVID 19 should consider its obligations under the
Nigerian Data Protection Regulations (NDPR), 2019. Such employee data should
only be processed for the purpose of protecting the health interest of others,
performing a task mandated by public health officials or in compliance with a
legal obligation.[16] Public
health laws may however override the provisions of the regulations regarding
consent where applicable. For instance, public health interests will supersede
the employee’s right to consent to the processing of his personal health
information in situations where the employee needs to be compelled to be
quarantined, or tested or forced to receive medical treatment to prevent the
transmission of an infection or communicable disease.[17]
10.
Will injury
sustained while working remotely at home be considered as work injury for which
the employee can be compensated?
The disruptive forces
of technology have made working remotely possible and practicable and the
flexibility of work schedules facilitated by the use of technology are now being
considered in drafting the terms of engagement for an employee. As a
consequence, employment contracts will also have to address injury done to the
employee in the course of his employment, howbeit from a remote workplace.
The Employee
Compensation Act, 2010, the law which provides for the compensation for death
or injury, disease or disability suffered by an employee in the course of
employment defines workplace as any place a person performs work or is required
to be in the course of employment.[18] We are
of the opinion that this wide definition could cover places where remote work
is done even though not specifically mentioned. The unique facts of every death
occasioned or injury done will be considered in determining liability for
injury suffered whilst working remotely as well as the compensation the
employee is entitled to. Employment contracts which set out clear provisions on
injury in remote workplaces will enable both parties define and identify injury
which can be attributable to work being done remotely as well as the remedies
applicable.
Conclusion
Indeed the economic impact of the outbreak
of the COVID 19 has
been devastating and the consequential impact of the outbreak on the world of
work cannot be exhaustively discussed. What is crucial in these times
is for employers to continuously engage and dialogue with
their employees before any decision which can be seen to alter the employer’s
obligations or the employees’ rights is taken by the employer. Both the
employer and the employee must be seen to reasonably adjust to the harsh
realities which we now have to face in the present circumstance to ensure that
labour and employment relations do not break down post COVID-19.
This information provided by ELLAN is not a
legal opinion and should not be relied upon without seeking advice from
professional advisers. Requests for further enquiries should
be sent to ellannigeria@gmail.com
END NOTES
[1] ELLAN is a registered
NGO made up of Nigerian lawyers with expertise in employment and labour
relations. This note is a product of the Publications Committee of ELLAN
with contributions from John Asokhia, Tomilola Tobun and Adeola Osifeko.
2 In the UK case of Warner v Armfield Retail & Leisure Ltd [2013]Eq LR 122, the Employment
Appeal Tribunal held that there was no room for the application of the doctrine
of frustration once the duty of reasonable adjustment arose (as applicable by
the UK Equality Act of 2010).
3
Marshall v Harland & Wolff [1972] IRLR 90; Eggstores (Stamford
Hill) Limited [1976] IRLR 51
4 ILO Employment Promotion
and Protection against Unemployment Convention, 1988 (No. 168).
5
Section 254 (1) (f) and (h) of the 1999 Constitution of the
Federal Republic of Nigeria (Third Alteration) permits the Court to apply
international best practices or interpretation of international labour
standards. See also Section 7(6) of the National Industrial Court Act 2006, Industrial Court Act 2006 and the International Labour
Organization (ILO) Termination of Employment Convention 1982 (No. 158).
6
See Aloysius v. Diamond Bank
Plc [2015] 58 NLLR (Pt. 199) 92 at 134 where the National Industrial Court of
Nigeria took the view that reason for termination must be given. The Supreme
Court has a divergent view. In Obanye v
Union Bank of Nigeria Plc (2018) LPELR 44702 (SC), the Court maintained the
Common Law position that an employer need not justify the reason for a
termination.
7
Ajah v
Fidelity Bank (Unreported Suit No. NICN/LA/588/2017,
judgment delivered on 14th May 2019)
8
JOHESU v. Federal Ministry of Health (2016) 65 NLLR (Pt. 229) 84 NIC
9 Section 19 of the Nigerian
Labour Act Cap L1, Laws of the Federation of Nigeria 2004.
[1]0 ISCARE Nigeria
Limited v. Mrs. Victoria Akinsanya & Anor NIC/LA/484/2012.
[1]1 ILO Holidays with Pay Convention (Revised)
1970 (No. 132).
[1]2 First Bank of Nigeria Plc.
v Nnaemeka Eminike, Unreported Suit No. NICN/ABJ/195/2018, judgment delivered
on 12th April 2019.
[1]3 Lovell v Blundells and T.A
Crompton & co (1943) 77 LI.L Rep 340.
[1]4 Registered
Trustees of Union Bank Pensioners Association v Union Bank and 2 others (NICN/LA/555/2012)
[1]5 Pursuant to the Quarantine
Act, CAP Q2 Laws of the Federation of Nigeria, 2004.
[1]6 Section 2 NDPR Regulations
2019.
[1]7 Section 25 of the Public
Health Law of Lagos State,2015 CAP P16,
Laws of Lagos State.
[1]8 Section 73 of the Employee
Compensation Act, 2010.
by Legalnaija | Apr 17, 2020 | Uncategorized
The Secretariat of the Body of Senior Advocates of Nigeria has announced the transition of Alhaji Aliyu Umar SAN.
He died in the early hours of this morning, Friday 17, April 2020. Alhaji Aliyu Umar SAN was a former Attorney-General of Kano State, former Chairman of Nigerian Bar Association (NBA) Kano Branch between 1990 – 1993 and a very active Bar leader. He was Chairman of NBA Kano Branch when I was the Secretary of NBA Ikeja Branch. Consequently, both of us were members of the National Executive Committee (NEC) of the NBA at the same period.
Alhaji Aliyu Umar SAN was a Bar leader per excellence, peace-loving and very engaging. He served the Bar to the best of his ability in all capacities including the private Bar, the official Bar and of course the inner Bar. For his gentle spirit and selfless services, he will live in our hearts for many years to come recognising as I do that to be in the hearts of men is not to die.
My condolence goes to his family, NBA Kano Branch, the Body of Senior Advocates of Nigeria, the Government of Kano State and the President and members of the NBA.
May his gentle soul rest in perfect peace.
Dele Adesina SAN
by Legalnaija | Apr 16, 2020 | Uncategorized
Yesterday, 13th April, 2020, His Excellency, President Muhammadu Buhari in order to flatten the curve of Covid – 19 pandemic directed that Lagos, Abuja and Ogun state remain on lockdown for an additional period of 14days.
It is no longer news that our world is facing challenges like never before, individuals, businesses and entire countries need to stay together at this time and be there for each other. As at 9.50pm, yesterday, 13th April, 2020, the number of confirmed cases in Nigeria according to the Nigerian Centre for Disease Control was 383, however, there is succor in the reports that about 91 people have also recovered from the virus and have been discharged.
I commend all our front line workers such as medical professionals, security agencies and essential service providers who are on the forefront of the fight to rid our country of this dreaded virus and I suggest that we all do our best to help the vulnerable around us, while strictly observing the lockdown directives, remember we must #STAYHOME to #STAYSAFE.
As Legal Practitioners, we must not forget the principle of being our brothers keepers as I believe this is the only way we can survive this pandemic together. Do not forget to educate your neighbours about the Lockdown directives, isolation procedures and also proper hygiene.
I am positive that we shall overcome if we combat this together.
God bless Nigeria and the Nigerian Bar Association.
Caroline Ibharuneafe Esq.
Immediate Past Chairman
NBA Ikeja Branch
#integrity+accountability
by Legalnaija | Apr 16, 2020 | Uncategorized
For sometimes now, my colleagues and I from Ilorin Bar have been engaging learned colleagues, both within and outside jurisdiction, on the need to buy into the ideas and indeed candidacy of Mr Dele Adesina, SAN.
We observed that most of our colleagues have become disillusioned about the state of NBA, while others who showed sprinkle of interest wondered what makes Mr Dele Adesina SAN different from the rest. “Is he not the same of the same”, one of them asked rhetorically.
Believe me, convincing people who have lost faith in a system because of repeated failures isn’t a walk in the park, but like soldiers who believe in the mandate of their commander, we are convinced this is a task that must be accomplished. Like we have been saying for the past few days, Dele Adesina SAN is DIFFERENT for the following reasons:
1. Dele Adesina SAN is not running for the gig to acquire wealth because to an appreciable extent God has blessed his private practice. Besides and more importantly, that is against his faith as a Deacon. He is only out to serve, nothing more.
2. Dele Adesina SAN is not out to pursue a sectional agenda. He would be president of all, including every Musa, Kolawole and Emeka.
3. The candidacy of Dele Adesina SAN is dedicated to repositioning the Bar to its glorious days so that the NBA can play its leading role in fighting injustices in the land according to the laws.
4. Dele Adesina SAN would ensure that lawyers maximise the potentials/opportunities of the profession. His administration would put a stop to government & private institutions taking over the jobs of lawyers.
5. He promises to ensure that young lawyers play significant role in the affairs of NBA and also put in place mechanisms to promote their welfare.
6. He promises to take bold steps in protecting the dignity of lawyers from brutalisation and assault by security agents.
The candidacy of Dele Adesina SAN is like a new day with great promises to be fulfilled. It would be done if we believe. Let’s work together to make it happen. NBA will be great again!
Alatise Taofeeq Nasir,
Ilorin Bar
by Legalnaija | Apr 14, 2020 | Uncategorized
There
is no gainsaying that the entire planet earth has been held hostage by the
novel Corona Virus pandemic which has spread across the different continents
and has caused its human population to run into hiding in a concerted bid to
halt the spread of the virus. The various lockdown orders issued by governments
all over the world has compelled citizens to spend entirety of their time
indoors and nearly idle, with many having little to do but scavenge the
internet in search for updates on the war against the pandemic. The increasing
idleness occasioned by the stay-at-home orders worldwide, coupled with
widespread panic and the nearing collapse of several economies have led to the surge
and development of fake news relating to the cause and effect of the virus all
over the world. Several individuals and organizations have resorted to
manufacturing and spreading fake news largely bordering on conspiracy theories
to advance their selfish interests. The continuous activities of these fake
news merchants have begun to take its toll on the global battle against the
pandemic outbreak.
Freedom
of expression and the press have always been distinguishing hallmarks of any
democratic society. Without these fundamental liberties, a government which
purports to be of the people, by the people, and for the people cannot function
as such. The practice of democracy in a populous nation is best utilized
through the use of the representative system wherein some persons are appointed
or elected to make and implement policies on behalf of the citizenry. These
representatives need to know the wishes of their constituents. Likewise, the
citizens also need feedback on the performance of their leaders. The media
provides a bridge through which the needs of the citizens are communicated to
their leaders, and vice-versa. The media therefore plays a very crucial role in
the sustenance of any democratic society.
The
media can however be sabotaged to suit the selfish interests of a select few
through the dissemination of unverified or manufactured information also known
as fake news. These selfish interest may be fueled by either pecuniary gain or
some other political benefits. Fake news is often employed to shake the
citizens’ trust in their elected representatives by discrediting the
achievements and exaggerating the shortcomings of the government. This crafty
use of fabricated news is known to have toppled past governments. Nigerian coup
plotters understand the power of the media in controlling a government, hence
they tend to take-over the media houses simultaneously as power is seized from
the Head of State.
Following
the discovery of the index case of Corona Virus in Nigeria, several citizens
characteristically took to social media to re-affirm their absolute distrust
and loss of confidence in the efforts of the Buhari-led Federal Government to
combat the spread of the virus in Nigeria. Some political miscreants and
troublemakers saw the pandemic as an opportunity to score cheap political
points as they attempted to undermine public confidence in the federal and
states governments. However, as the Federal Government reeled out its plans for
the battle against the outbreak, some persons also seized the initiative to
resort to the incessant use of fake news to frustrate the Federal Government’s
effort in the battle against the outbreak.
Dissemination
of fake news has always been a threat to the existence of any society. The
threat is more pronounced in a democratic society, given the presence of a
near-absolute freedom of expression and the press. With the advent of the
internet and the social media, the threat has aggravated to even greater
proportions. Fake news was previously curtailed under military rule by
censoring the media houses and monitoring information disseminated therefrom.
Editors-in-chief of newspapers were held accountable for their publications.
Libel suits were common as aggrieved individuals whose interests had been
slighted by fake news merchants sought succor from the courts. The duty of care
on the media to verify information was very high due to fear of the
repercussions of peddling fake news. This fear however affected the quality of
news released, as news merchants were sometimes intimidated into disguising the
truth in order to please those in power.
In
the democratic era, the constitutional freedom given to the press to
disseminate information has made the battle against fake news challenging. The
internet and social media has further been utilized by fake news merchants who
benefit from the anonymity granted by the internet to continue their
news-fabrication activities. The Nigerian government has likened the effect of
fake news on our multi-ethnic and multi-religious society to a time bomb
waiting to explode. Several campaigns have been launched to curtail the spread
of fake news capable of undermining the peace and national unity of the nation.
The
battle against fake news is met with stiff resistance from the news merchants
who are often sponsored by opposition politicians benefitting immensely from
the societal unrest created by such fabricated news. They feed on the
gullibility of innocent citizens who accelerate the dissemination of unverified
speculations through the aggressive use of social media share buttons. This can
result in widespread anarchy and societal instability which consequently leads
to democratic overthrow and a return to authoritarianism. The 1966 coup which
ushered in military rule in Nigeria was preceded by such propaganda-induced
ethnic violence.
However,
given the wide-reaching effects of the Federal Government’s Lockdown Order, the
tactics employed by previous administrations in the battle against fake news
cannot succeed in the present socio-economic clime in the wake of the outbreak
for a number of reasons. Firstly, majority of the fake news being spread about
the virus, although being carefully crafted by mischief makers are not being
disseminated through the traditional means of media via which attribution can
be easily ascertained. The sponsors of the fake news have chosen to employ the
anonymity of the internet and the social media to spread such harmful and bogus
information which is almost untraceable to them. WhatsApp BC’s, voice notes and
videos have become a favourite weapon in the arsenal of fake news peddlers who
are assured that such nefarious publications cannot be traced back to them.
Another
unsavory factor which has seriously hampered the government’s efforts in the
fight against fake news in this pandemic era is the mass ignorance and
illiteracy which has threatened to envelope the Nigerian public. Sadly, this
ignorance which is fueled by rising panic appears to have transcended beyond
the borders of Nigeria, as citizens of other Countries have also begun to
construct conspiracy theories on the outbreak and spread of the virus. In the
first week of April alone, the United Kingdom authorities were confronted with
the task of disputing the relationship between Corona Virus and 5G technology.
The UK authorities who were not quick to combat this conspiracy theory sadly
suffered casualties as several 5G installations around the Kingdom were
attacked by ignorant citizens in a series of what they termed “reprisal
attacks” against the virus. The United States has also been faced with a
similar battle against several theories linking the cause of the outbreak to
biological and economic warfare by the Chinese. Although some of these theories
have neither been conclusively proved nor disproved in the home countries where
they emanated, snippets of these theories have crept into the Nigerian
territory and the Nigerian Federal Government has an added burden of disputing
these conspiracies whilst they persevere in their efforts to halt the spread of
the virus.
The
effects of the spread of fake news in Nigeria during the pandemic has been
massive. The chief result of fake news is loss of public confidence in the
government. This in turn leads to dire consequences such as willful disobedience
to the directives of the government on preventive measures of social distancing
and personal hygiene which can degenerate to a massive spread of the virus.
Another effect of fake news which is currently being felt in Lagos and Ogun
States is public unrest which has threatened the security of some border towns
along the two states. Some selfish Nigerians have inspired other citizens to view
the lockdown order with resentment, thus creating grave security implications.
The spate of armed robbery incidents and cult clashes which can be directly
linked to information about the lockdown order have tremendously tripled in the
affected states in the past weeks. Several mischief makers also thrive on
fueling further insecurity and panic in the affected areas by sharing false
reports of robbery attacks, thus frustrating the efforts of the security forces
who are tasked with the challenge of sieving genuine cries for help from false
alarms.
The
Nigerian economy is also suffering an indirect consequence of the activities of
fake news, as some indigenous and foreign businesses are the targets of
sponsored campaigns built on false information. It is not uncommon to see an
army of Social Media Influencers leading a harshtag campaign for the boycott of
a particular brand due to reasons not unconnected to the Corona Virus pandemic.
The extent of the effect of fake news on the Nigerian economy would be greater
appreciated in the post-COVID-19 era, when we would have greater flexibility in
assessing the extensive damage suffered by each sector of the economy.
The
best way to combat fake news is by simply disbelieving the information peddled.
This is possible when the level of literacy and political tolerance is high. A
joint effort by the government, digital and traditional media agencies is
needed to educate Nigerians not to believe everything they hear and read
without verifying the source of such information. The Federal Ministry of
Communications and Digital Economy led by the tech-savvy Dr. Isa Pantami has
been remarkable in its efforts to lead the frontline in discrediting fake news
spread digitally, however, it needs to take more proactive steps to educate
Nigerians on the activities of fake news merchants and the effect of fake news on
the war against the pandemic. Furthermore, media practitioners, especially
verified digital media operators, should resist the temptation of resorting to
unsubstantiated sensationalism in exchange for quick pecuniary gains. When
objective honesty is its’ watchword, the media plays a key role in the
sustenance of democracy. Social Media stakeholders also have a crucial role to
play in ensuring that their platforms are not utilized to share fake
information. This would albeit be difficult, but not unattainable, given the
near-absolute right to information which exists in the international community.
WhatsApp has announced plans to limit the use of its “Forwarding” functionality
to limit the spread of fake news which is primarily spread by forwarding and
copying on its platform. It is suggested that other Social Media Sites like
Facebook and Twitter take similar proactive steps which include but are not
limited to deleting posts which other users have identified to be fake,
banning/suspending known peddlers and distributors of fake information from the
use of their platform, until this outbreak is over.
The
war against the Corona Virus pandemic requires active participation from
everyone. With all hands on deck to battle the counter-attack of fake news, we
can eliminate the avoidable effects of fake news and make considerable wins in
the global war against COVID-19.
Nonso Anyasi
by Legalnaija | Apr 14, 2020 | Uncategorized
The Coronavirus (Covid-19) pandemic
continues to chart a devastating course on the globe, leaving in its wake, a
trail of illness, death, overwhelmed health institutions and crumbling
economies. Governments, organisations and individuals are increasingly
constrained to deploy strategies to mitigate its impact. Nigeria is not spared
as President Muhammadu Buhari on 30th March 2020 announced a two
week lockdown in states that have recorded the highest numbers of coronavirus
cases till date, at the lapse of which was immediately extended for a further
two-week period.[ii]
Organisations have also been forced to suspend physical operations and resort to
remote working, thus altering the commercial landscape. The processing of vital
personal information for the purpose of managing risks, identifying infected
persons and contact tracing, is important in the fight against the pandemic.
Hence, the privacy and data protection implications of the situation cannot be ignored.
In view of the toughening regime for the
processing of personal data, there is a general concern as to whether the high
standards of compliance created in the operative privacy framework, is likely
to preclude the optimal implementation of requisite measures. Stakeholders[iii]
are wary of requesting and processing certain sensitive data in pursuit of anti-coronavirus objectives without
running afoul of the law. Some of the issues that have been highlighted include
but are not limited to whether employers can: (i) request specifics about
employees’ travel histories, illnesses or current symptoms or compel them to
fill health status questionnaires; (ii) demand for medical certificates to
augment responses to health related questions; (iii) disclose the health status
of employees to colleagues, third parties or the authorities; (iv) send workers
home on suspicions or confirmation of infection; (v) respond to data subjects’
requests within the stipulated timelines given the closure of physical office
spaces; and (vi) whether hospitals and health workers can disclose the
confidential information of patients to third parties and the authorities.
It is important to address these issues because
while privacy and data protection laws do not stand in the way of the management of public health, there are
important points that should be considered when handling personal data in these
contexts, particularly health and other sensitive data.
The Legal
Framework
The processing of personal data in Nigeria
falls within the purview of a rapidly developing Privacy Framework strengthened
by the coming into force of the Nigerian Data Protection Regulation (NDPR) in
2019, and comprising other sectoral laws. While the NDPR is not in itself a
superintending and exhaustive data protection law, it is a modest attempt to
raise the Nigerian data protection framework to global standards and was
inspired by its European counterpart, the General Data Protection Regulation of
May 2018 (GDPR). It pushes entities to unprecedented standards of compliance
and avails to the benefit of Nigerians, irrespective of their geographic
locations. In addition to the stated objectives of the law[iv],
it is engendering transparency in the processing of personal data, and granting
to Nigerians, control over how their personal data is requested and processed.
The NDPR defines “Personal Data” as:
“any
information relating to an identified
or identifiable natural person (‘data subject’); an identifiable natural
person is one who can be identified, directly or indirectly, in particular by
reference to an identifier such as a name, an identification number, location
data, an online identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of that
natural person”[v].
“Sensitive Personal Data” is
identified as:
Data relating to religious or other beliefs, sexual tendencies, health, race, ethnicity,
political views, trades union membership, criminal records or any other
sensitive personal information;
“Processing” is described as:
“any operation or set of operations which is performed on personal data
or on sets of personal data, whether or not by automated means, such as
collection, recording, organisation, structuring, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination,
restriction, erasure or destruction”[vi].
It would appear from the above definitions
that any personal information collected by an entity from a data subject for
the purpose of devising and implementing requisite measures against the coronavirus
pandemic would fall under the scope of the NDPR. For health related matters,
supplemental provisions relating to the processing of personal data are
contained in the National Health Act[vii].
Data Processing
The NDPR identifies five (5) independent
conditions on the basis of which an organisation can lawfully process personal data[viii].
These derive from the principle of lawful processing and are commonly referred
to as legal bases. They are:
i.
Consent
of the data subject for a specified purpose(s). Such consent must not have been
obtained with fraud, coercion or undue influence[ix]
ii.
Necessary
for the performance of a contract to which the data subject is a party
iii.
Compliance
with a legal obligation of which the controller is a subject
iv.
Protection
of the vital interests of the data subject or other natural persons
v.
Performance
of a task carried out in the public interest or in the exercise of official
public mandate
In addition to the above, relevant
stakeholders are obliged to take into cognizance, the principles enshrined in
the NDPR i.e. data processing must accord with a specific and legitimate
purpose (purpose limitation); it must be conducted adequately (minimization) and
accurately (accuracy); data collected must be stored for a reasonable period
(storage limitation); and must be protected from foreseeable hazards
(confidentiality & integrity). Data Processing also creates a fiduciary
relationship between the controller and the data subject (duty of care), with
the former being obliged to demonstrate compliance with these principles
(accountability). It should be noted that while personal data can be processed
on the strength of at least one legal basis, the principles in the NDPR are
cumulative and must all be complied with for valid processing.
MATTERS ARISING
Can employers request
specifics about employees’ travel histories, illnesses or current symptoms or
compel them to fill questionnaires revealing these information?
Employers have an immutable obligation to
provide a safe working environment and protect the health of their employees.
In the pursuit of these objectives, the collection and processing of personal
data relating to health and travel histories would be justified provided they
are premised on one or more legal bases. If employees’ consent is sought to be
relied upon, such consent must be specific, informed and freely given, and the
employee must be informed of his right to to withdraw this consent at any time[x].
The use of additional measures e.g. a questionnaire, would have to be
justified, taking into consideration the evaluation of risk and the necessity
and proportionality of the measure.
Alternately, the protection of the vital
interest of the data subject or other natural persons, compliance with a legal
obligation by the controller and public interest concerns[xi]
can be conveniently relied upon as legal bases for processing personal
information in the circumstance.
Can employers demand for
medical reports to augment responses to health related questions?
The obligation of employers to protect the
health of employees also extends to other persons who may have legitimate
reasons to be present in the workplace. Requesting a medical report to augment
health related responses of employees’ in this circumstance would therefore
fall within the scope of this objective as to justify such demand. However,
cognizance must be taken of the confidentiality obligation foisted on any
entity who may be in possession of a document of this nature[xii],
the waiver of which can only be justified on the grounds of consent, order of
court and public interest[xiii].
Can data controllers disclose
health status of employees to colleagues, third parties or the authorities?
Health information is classified as
“sensitive personal data” which requires a high degree of confidentiality.
Therefore, while an employer may notify its staff of a suspected case of
coronavirus in the organisation, the identity of the affected individual must
not be disclosed without a legal basis otherwise the employer would be in
breach of privacy laws and in extension, the confidentiality clause in the
employee’s terms of employment, where applicable. Similarly, disclosure to
third parties and the authorities should only be effected in reliance on one or
more of the legal bases indicated in the NDPR and the National Health Act.
Can employers send employees
home on suspicions or confirmation of infection?
In the protection of employees’ health, employers
reserve the discretion to control access to the working premises. In a
situation where there is a suspicion or confirmation of coronavirus, the
employer can lawfully restrict the employee from gaining access to the
premises. In any event, this issue would seem to fall within the scope of
labour and employment laws, and not data protection law, and may impact on the
status of the employee’s job, remuneration and sickness benefits as per the
contractual terms of engagement.
Can data controllers respond
to data subjects’ requests beyond the stipulated timelines in view of closure
of physical office spaces?
The NDPR creates a mechanism for individuals
to request a copy of their data under a formal process. The Controller is bound
to accede to this request in a concise, transparent, intelligible and easily
accessible form, using clear and plain language. It is understandable that the
ongoing global health crises may impede the capacity of organisations to
process data subjects’ requests promptly given the challenges of operating
remotely. However, in the event of inability or failure to take action in
respect of any such request, the data controller must, not later than one month
from the date of the request, inform the data subject of the reasons for default
and a right to recourse to supervisory authorities[xiv].
Given that the NDPR does not expressly provide a specific timeline within which
a data subject’s request must be processed, it is unclear what the consequences
for breach would be.
Can hospitals can disclose the
confidential information of patients to third parties and the authorities?
The National Health Act cloaks the medical
records of all patients with confidentiality and further imposes a strict
obligation of non-disclosure to third parties. However, confidentiality can be
waived where the patient has consented in writing to the disclosure of such
medical records, or a court of competent jurisdiction has ordered the
disclosure of same, or non-disclosure would constitute a grave threat to public
health. In addition, a public health worker who may be in possession of such
confidential records may disclose same if it is necessary for a legitimate
purpose within the ordinary course and scope of his or her duties where such
disclosure is in the interest of the patient[xv].
CONCLUSION
It should be reiterated that privacy and
data protection laws aim to encourage transparency in the processing of
personal data and grant control to individuals over how their personal data is
to be requested and processed. While their construction primarily serves the
purpose of advancing the interest of data subjects, they will not operate to
impede measures necessary for the protection of public interest or health. Hence,
the existence of varied independent legal bases for processing personal data other
than the consent of the data subject. The severity of the coronavirus pandemic
is undoubtedly of a public concern and therefore, protection of data subjects’
interests, public interest and legal obligation(s) of the data controller can
conveniently avail as legal bases for processing, assuming without conceding
that the consent of the data subject cannot be reasonably procured.
Nevertheless, an organisation seeking to request
and process personal data in reliance on one or more legal bases, must
necessarily apply the fundamental principles enshrined in the NDPR. It must
ensure that the legal basis on which it seeks to rely lawfully avails it in the
circumstances and must show specificity of purpose. The collected data should
be limited to what is required and must be protected from breach and
unauthorized disclosure. The controller must refrain from abusing the existent
fiduciary relationship and must be able to clearly demonstrate compliance with
its obligations under the law, failure of which could incur liability for
breach and sanctions[xvi].
[i] Temitayo Ogunmokun is a Regulatory Compliance,
Corporate Governance and Privacy Counsel. He is an Advanced LLM Candidate of
International & European Law with specialization in Data Law at the
Institute of European Studies, Vrije Universiteit Brussels, Member of the
Internet Society (Belgium Chapter), Consultant for TechHive Advisory (Official
Training Partner of the IAPP in Nigeria) and a Volunteer at the Brussels
Privacy Hub. He writes from Brussels, Belgium.
[iii] Data Controllers, Data
Administrators, Recipients and Third Parties – see Article 1.3 of the NDPR
[vii] National Health Act, 2014 (Act No. 8
of 2014)
[ix] Section 2.3(ii) of the NDPR
[x] Section 2.3(ii)(c) of the NDPR
[xi] See
Section 26(2)(e) of the National Health Act
[xii] Section 26(1) of the National Health
Act
[xiii] Section 26(2)(a)-(e) of the National
Health Act
[xiv] Section
2.13.2 of the NDPR
[xv] Section 27
of the National Health Act
[xvi] Section
2.10 NDPR
Photo credit – www.advisory21.com
by Legalnaija | Apr 13, 2020 | Uncategorized
In
2020, who would have thought that the world would be faced with such a global
threat that is not a nuclear war instigated by North Korea, or an Alien
Invasion but an invincible biological threat where we now seem to cherish the
comfort of staying indoors, government and employers advising their employees
to work from home, Mums yelling at their kids to go outside and get a life are
now being encouraged to stay indoors not to risk contracting the deadly Virus.
It is no surprise that this Disease (COVID-19), has disrupted various
commercial and operational activities, interrupted Supply chains, and made
contractual obligations impossible to perform as many countries have been
forced to impose restrictions on movements, international and domestic flights,
shutdown of workplaces, sporting events, industries, ports, markets, and public
places generally which tend to pull a large crowd of people.
As
a result of these recent developments, it has become impossible for many
business owners, companies and relevant stakeholders to perform their
contractual obligations in a Contract which then introduces the application of
Force Majeure clauses in a contract or the Common Law principle of Frustration
of Contract to help mitigate or excuse delay or non-performance of the
contract.
This article will discuss the applicability of Force Majeure and Frustration, their
effects on Contracts amidst the outbreak of COVID-19, how to invoke or enforce
them and suggestions on the application of Force Majeure and Frustration on
Contracts in the future.
Force Majeure:
This is a Clause included during the
drafting of a contract to state that a party shall not be liable for the failure
of or any delay in performing his own obligations in the contract so far as the
failure or delay is as a result of an event beyond the reasonable control of a party
and could not reasonably have been foreseen or provided against. However, such failure to perform will not be
excused for failure or delay resulting from only general economic conditions or
other general market effects such as an increase in the cost of delivery as a
result of the event.[1]
The
purpose of this clause is to protect parties from events that are outside the
normal risks associated with the business, and to put the parties on notice of
events that may excuse or suspend performance.
It is important to point out that the
distinguishing factor between Force Majeure and Frustration is that the act
which seeks to delay or cause either party not to perform their contractual
obligations must be specified in the Force Majeure Clause in the contract while
the parties only need to meet the necessary tests for frustration to apply.
This Clause is often
interpreted narrowly, and the party invoking the force majeure clause to excuse
performance must prove the event in question falls within the scope of the
clause. For example, Act of God, War, Riot. However, in the instant circumstance,
parties may have failed to include a term that will sufficiently cover the
recent outbreak of COVID-19 but where parties include general terms such as
Disease, Epidemic, pandemic, or Government action which the COVID-19 or events
arising from COVID-19 may fall under, would enable parties to invoke the Force
Majeure Clause to excuse the delay or non-performance of their contractual
obligations in order to avoid a breach of the contract[2]
There are certain factors the Courts take into consideration
when interpreting or determining if the Force Majeure Clause is properly
invoked by a party and these are;
·
Does the Force Majeure
Clause capture the event the party seeks to invoke
·
Was the event unforeseeable at the time of
entering the contract,
·
Whether the risk of
non-performance could be mitigated?
·
Whether the event has
rendered performance impossible, or merely expensive?
The Force Majeure Clause also provides for some remedies
which could be specific to the listed events in the clause. Such as the party
is excused from liability or damages, an extension of time within which to
perform his contractual obligations, or termination of the contract where the
purpose of the contract can no longer be achieved.[3]
Frustration:
The doctrine of frustration can be traced back to the English
common Law as a principle which will generally come into effect and apply to a
contract that has been made impossible for parties to perform their obligations
in the contract. This means that a contract’s performance will be rendered
impossible because of some intervening or supervening event after the contract
has been made.
Under the English
common law, frustration will result in the contract being terminated so that
the parties are excused from further performance or any liability. A party
faced with an external occurrence or event that may make its performance under
a contract impractical, onerous or even impossible might seek to rely on the
principle that the contract has been frustrated. This principle was laid out in
the Locus Classicus case of Taylor V Cadwell where the Court held
that “when an opera house, which was rented for holding concerts was
destroyed by fire, the contract was frustrated. This was because the very thing
on which the contract depended on ceased to exist or if a certain thing
happened. Thus it was held that for the doctrine of frustration it must be so
that the nature of contract is such that it would not operate if a thing ceased
to exist.” It is also important to
note that frustration will not apply where the non-performance of a party’s
obligations is as a result of his own decision or negligence.[4]
The Courts would have to consider the following factors in
determining if the doctrine of frustration will apply;
·
That the event in
question must be unforeseen,
·
It must have occurred
without the fault of either party to the contract and
·
It must either make
the contract’s performance impossible or
·
It must destroy the
fundamental purpose of the contract.
The distinguishing factor between the Application of
Frustration in a Contract and the Force Majeure Clause is that where a contract
fails to integrate a Force Majeure Clause, the doctrine of frustration would
apply to the non-performance of the contract upon meeting the necessary tests
listed above. The reason being that frustration applies in case of events which
happen after the contract is made and for which neither any party is
responsible nor can they prevent it from happening.
The application of the
doctrine of frustration has the effect of terminating the contract and
relieving both parties from their contractual obligations. In such circumstances, Section 8(2) of the
Law Reform (Contracts) Law of Lagos State, provides that all sums paid to a
party in accordance with the contract shall be recoverable by the person who
made the payment. However, Section 8(3) of the same law states that if
the party to whom the payment was made has incurred expenses for the
performance of the contract before the frustrating event occurred, the court
may, if it considers it just to do so, allow the retention of the portion of
the sums paid to him or her that have been so expended.[5]
Further to the above, section
120 of the Federal Competition and Consumer Protection Act provides for the
protection of consumers who may find themselves on the defaulting side of a consumer
contract and gives them the right to “cancel
any advance booking, reservation or order for any goods and services, subject
to a reasonable charge for cancellation of the order or the reservation by the
supplier or service provider.”
For example, before the outbreak of COVID -19, it is normal for parties
to have booked or made a reservation for travel tickets with domestic and
international Airlines but due to the sudden outbreak, parties will be forced
to change their plans to either travel at an earlier date or decide not to make
use of such flight reservations again. The Competition and Consumer Protection
Act would then give the consumer the right to cancel such advance booking,
reservation or order for any goods and services. Airlines also have the right
to charge a reasonable fee for the cancellation of the reservation or services,
but recent reports and outcry by consumers on social media have stated that the
domestic airlines have refused and/or failed to adhere to the provisions of the
Federal Competition and Consumer Protection Act.
How
to Invoke a Force
Majeure Clause
and/or Frustration in a contract
In light of the
outbreak of the COVID-19, a party can take the following steps to invoke the
Force majeure Clause:
1. Check whether the Force Majeure clause in the contract
provides for the Outbreak and other events which came about as a result of
such. The FM clause might have not specifically mentioned the Corona Virus
Disease but might fall under one of the general terms usually inserted in force
Majeure clauses such as “Disease”, “Pandemic”, “epidemic” or “Government
Action.”
2.
The party would also
consider whether the risk of his non-performance could have been mitigated. The
party seeking to invoke the FM clause is under an obligation to have taken
reasonable steps to mitigate the foreseeable risks of its non-performance.
3.
Lastly, the party
would have to show that his contractual obligations or performance have been
impossible to execute as a result of the Outbreak. For example, where an
Industrial company has a contractual target to produce a certain amount of
Chairs to be delivered on a particular date, but due to the Government
restrictions and shutdown as a means of preventing the widespread of the
disease, the workers are required to stay at their respective homes for a
certain or indefinite period will make it impossible for the party to meet up
with the delivery date.
In
the event where a claim of Force Majeure will not apply, the next consideration
is whether any of the following established
grounds to founding a successful claim of frustration apply:
·
Temporary
unavailability – where a person or object that
is essential for performance of the contract is temporarily unavailable.
·
Method
of performance impossible – this will usually occur where
there has been a ban or restriction of movement e.g., a contract for Courier
services by Air where a travel restrictions is in place as is the current case
in the world where Airlines have been grounded pending the passing of the
outbreak. However, a contract will not be frustrated where performance is
possible by a different method, and the difference between the two methods of
performance is not sufficiently fundamental.
·
Failure
of a specific source – this occurs where a contract to
import goods from a particular country is now subject to a travel ban and/or
restriction. E.g. the restrictions on importation of Masks and other protective
gears from China due to conspiracy theories of such masks being contaminated.[6]
The application of Force Majeure and Frustration on
Contracts in the future.
In high and positive
spirit of a pro Covid-19 era, there are certain actions parties to a contract are
advised to take into consideration in order to best protect their interests in
the event of a severe outbreak or event which is likely to render the
performance of contractual obligations impossible.
The parties are to;
1.
Check the definition
and scope of the force majeure Clause and whether the event in question falls
within such scope;
2.
Check the contract’s
notice requirements and whether they have been or may be triggered
3.
Write to your counterparty and require
(i) evidence of the circumstances it relies on, (ii) a full explanation of why
its performance is now physically/legally impossible, (iii) evidence of steps
it is taking to mitigate and (iv) regular updates as to its efforts to resume performance.
4.
Check the governing
law provisions and impact that such law will have on interpreting the contract
5.
Check whether
mitigation steps or alternative means of performance can reasonably be taken in
respect of the contract
6.
Consider the potential
consequences of a breach and/or default of the contract
7.
Can consider entering
into a written variation to the Contract or seek Alternative Dispute resolution
mechanisms.
In essence, Force
Majeure clauses are inserted in a Contract to protect parties and help parties lessen
or avoid their contractual obligations in the event of a phenomenon which is
out of the control of both parties. Where this Force Majeure Clause is not
inserted in a Contract, then the general Common Law Principle of Frustration
will apply upon meeting certain criteria and alleviate both parties from their
contractual obligations. The outbreak of COVID-19 is an unexpected event that
hit the whole world and has put a hinge on so many contracts, and business
operations. Parties are advised to negotiate and look for amicable ways to fulfil
or remedy their own contractual obligations as it will be counter-productive
for parties to play the blame game which could possibly ruin business
relationships.
by Legalnaija | Apr 9, 2020 | Uncategorized
While sitting with some friends and fellow colleagues a couple of days ago, I broached the subject of the upcoming NBA 2020 elections and almost everyone in the group waived the topic aside, all of them disinterested. I tried one more time to stimulate their interests by naming some of the candidates vying for the office of the NBA President but this brings forth an entirely different result, a feeling of resentment and apathy for the NBA, an association they believe has done little or nothing to help their respective practices.
These are lawyers who manage their own firms and are partners in some of the top tier firms in the country, they work very hard and according to them cannot state how the NBA has helped boost their careers or promote their practice. In a nutshell, they cannot state what the NBA has done for them.
“What has the NBA done about expanding the frontiers of practice in real terms;
“How have they prevented the encroachment on the jobs of lawyers;
“What have they done to rectify the poor salaries earned by many junior lawyers;
“How have they protected the human rights of lawyers, many of whom have been assaulted severally by the police;
“What has the NBA done asides holding conferences where all they do is talk and issue statements that have no effect whatsoever; and
“How have they upheld the Rule of Law, remember Onnoghen, how come the NBA could not prevent such shameful exploitation of the Rule of Law;
All at once, they drilled me with questions. It is obvious that many lawyers feel this way and a large number of practitioners have stayed away from the NBA totally save for paying their practicing fees and branch dues. However, unperturbed by their non – challant attitude, I felt the need to engage them a little further and state my case.
Gentlemen, I begin, I understand how you feel but if some of our best minds in the profession choose to ignore the growth and promotion of our collective welfare through the Nigerian Bar Association, little wonder many of us are not as satisfied with the current position of things. All this however can change if we ensure we get the right kind of leadership that can continue to build on the achievements of the past administrations and help us to promote the welfare of lawyers and help secure the future of the profession.
Most sincerely, I appreciate that the Paul Usoro administration may not be perfect but it has never failed to challenge any attack on the Rule of Law, nor to secure the obedience to the fundamental rights provided for lawyers and everyone else according to the Constitution. Could the PUSAN administration have done things better, most definitely, however perfection is not a destination but a journey and by voting the right person for the job, going forward we may be able to build on the foundations laid by the current and past administrations.
“So who is the right leader you may ask?”
Over the past few weeks many have postulated a formula for determining who the next NBA President should be. While many have postulated that it should be the man with the biggest law firm, others have said it should be the lawyer who pays his lawyers the highest. All these in my opinion are the wrong factors to consider. I recall during the last election that ushered in Paul Usoro SAN, there was debate about how much he pays his lawyers compared to other candidates and how his firm, Paul Usoro and Co., was bigger.
My question for this class of lawyers is that in the past two years, has the amount Paul Usoro SAN pays his lawyers or the size of his firm increased your salary in any way? Has it resulted into a minimum wage for lawyers? Or has it brought briefs to your firm? I am sure the answer is no. This means most definitely that all these should have no bearing on who leads the NBA as its President.
There are other things I will like to consider such as track record, long term contribution to the Bar, leadership qualities and a thorough understanding of how the Nigerian Bar Association works. I have evaluated the candidacy of the top 3 candidates vying for the office of the President of the NBA and while I agree that all 3 of them are very successful lawyers, only one of them meets all my under listed requirements. I in no way claim that others are bad for the job, I only recommend that we choose not only the best man for the job but the right man as well. That man is Dele Adesina SAN and I will tell you why.
The Deacon as Mr. Dele Adesina SAN is fondly called by lawyers all over the nation has a track record of long term contribution to the Bar, leadership qualities and a thorough understanding of how the Nigerian Bar Association works. I will now pick my reasons one after the other.
Track Record
The Deacon has held a number of offices in the NBA, he was the Chairman of NBA Ikeja Branch during the military era and was instrumental to many of the victories won against the Military regime. As Femi Falana SAN put it, there was no time I called Dele that the NBA needed to make a statement or put it to the military regime of the day that he ever refused.
The Deacon was also the General Secretary of the NBA between 2002 – 2004 under the leadership of Chief Wole Olanipekun SAN, where he was instrumental to many of the wins of that administration. Dele Adesina SAN is also a Life Member of the Distinguished Body Of Benchers, the highest regulatory body of the Legal Profession, a member of the Governing Council, Lagos State Multi-Door Court, High Court Of Justice, Lagos State, Life Member of The National Executive Committee Nigerian Bar Association and was the Chairman, NBA Electoral Committee in the 2008 NBA National Elections just to mention a few.
Long Term Contribution
During his time as the General Secretary of the NBA, the Deacon was instrumental to a number of innovations now experienced within the NBA, including providing life insurance cover for lawyers, introducing the various Sections of the NBA and also being the only lawyer who was successful in moving a motion for a minimum salary for lawyers at the NBA NEC, among other things.
Understanding of the NBA
Recently, former Chairman of the Nigerian Bar Association (NBA) Section on Public interest and Development Law (SPIDEL) Chief J.K Gadzama SAN, described Mr. Dele Adesina SAN as unbeatable in terms of his leadership capacity at the Bar. Furthermore, D.D. Dodo SAN stated that Mr. Adesina’s track record and respect for the tradition of the Bar makes Dele Adesina the best candidate to provide leadership for the association at the moment.
Another highly respected and respectable member of the Association Prof Fabian Ajogwu SAN, the Chairman of the Body of Senior Advocates of Nigeria ‘s Annual Lecture Committee spoke of Dele Adesina SAN who is also the Chairman of the Scholarship Committee of the Body of Senior Advocate of Nigeria as a thorough professional with a well known passion for the Bar and the Profession. The learned Professor said further that the views and position of Dele Adesina SAN on Rule of Law and how to advance the cause of justice administration in this country is well known.
Moreso, in an exclusive interview with DNL Legal and Style published on the 11th of December, 2019, when the Deacon was asked about his past activities in the NBA, he had this to say, “I have been active in the affairs of NBA since 1986. Between 1987 and 1989 I was one of the ardent followers of Alao Aka-Bashorun. We elected him President of the Bar in 1987. In 1990 or thereabout, I became the Secretary of Ikeja branch and in 1998 I was elected the Chairman of the branch. Since that 1990, I have remained at the National Executive Council of the NBA till today.”
I am sure Titans of the profession such as J.K Gadzama and D.D Dodo SAN must know what they are talking about when they refer to Mr. Dele Adesina SAN as the best and right person to lead the Bar at this time. Most importantly, I agree with them totally.
It is time to secure the future of the Bar and with Dele Adesina SAN will secure the future of the Bar.
by Legalnaija | Apr 9, 2020 | Uncategorized
ABSTRACT
As part of measures put in place to
contain the spread of the ongoing pandemic COVID-19, the Nigerian government
has ordered the total shutdown of all businesses and organizations excluding
those providing essential services for a period of two weeks in states such as
Lagos, Ogun and also the Federal Capital Territory. Although the government, in recognition of the
financial hardship this lockdown is likely to cause has put in place steps such
as the injection of one trillion naira into the economy, reduction in the price
of petrol, and supply of foodstuffs etc.
all to be a form of relief to its citizens, it does not mitigate the
hitch in the operations of private businesses and its attendant financial
detriment. One of the sectors
particularly affected is the legal sector especially following the directive of
the Chief Justice of the Supreme Court, Ibrahim Tanko Muhammad, to suspend all
court hearings till further notice. Lawyers might be rendered incapable of
attending to their clients, but not if they embrace Information Technology
(IT). This work aims to expose the concept
of IT and mention a few of the ways in which it could be beneficial to the 21st
century lawyer.
INTRODUCTION
“Information
technology” was coined in 1958 by Harold J. Leavitt and Thomas L. Whisler in a
Harvard Business Review article because the new technology did not have an
established name and comprised several parts.[1] Even though, at that time the potentials of this technology was yet to be
understood, there was however no doubt in the minds of the authors that it
wielded a life-changing ability.[2] A cursory glance might misbelieve
IT to be one with computer science,
however they differ in scope. For while computer science deals with the
effective programming of computer hardware and software which in turn births
subfields such as artificial intelligence (the programming of robots to act
like humans), information technology is the application of technology to
diverse sectors of the society.[3] It is described by Roger
Carter to be ‘the use of technology to aid the capture, storage, retrieval,
analysis, and communication of information whether in the form of data, text,
image or voice.’[4] IT is in fact the collection of
equipment that aid the organization and analysis of data.[5] It thus encompasses such
things as televisions, smartphones, computers, printers and other computer
peripherals. What is essential is that such device must be able to manipulate
data.
Over
the years, the significant impact of IT has become undeniable. IT has become an
integral part of our lives that rarely, do we have to do anything manually
anymore. For instance, it has aided the media sector in the transmitting and
broadcasting of programs. We have access to news across the globe 24hours each day and this
wouldn’t have been feasible were it not for IT.[6] The invention of railways, aircrafts, and automobiles were
largely promoted by IT and this has facilitated the transporting of people from
even very remote places to any destination in the world, no matter the
distance. Health care has also benefited by the discovery, improvement of
vaccines and equipment to combat even the deadliest of ailments. The banking system could not be so automated
and tightly secured if IT did not lend its services. What more of the business sector which can
now manage data with ease, interact cordially with customer and even monitor
returns. How about the legal sector?
LAW AND INFORMATION TECHNOLOGY
The
relationship between IT and law may seem obscure since the nature of IT is “fast, schematic
and futuristic” while that of lawyers
are “cautious, verbose and old-fashioned.”[7] But it must be remembered that law entails the processing of
information. It is thus intertwined with
information. In fact, they’re both inseparable,
they’re Siamese twins.[8] As such, IT should play the important role
of managing and organizing such
information to ensure availability and easy access. Fortunately, there has been
a collaboration between these two disciplines. An earliest example of this development can be
traced to the transition from handwritten scrolls to typewritten documents via
a typewriter. This has also progressed
now into the drafting of legal documents with software such as Microsoft Word
and its printing with a printer.
Legal research took on an electronic face when
in the United States (US), the computer assisted legal research (CALR) promoted
the development of websites such as Westlaw and Lexis which stores several
judicial decisions, articles that in order to aid lawyers, jurists, professors
and law student in carrying out quality research.[9] This move has been adopted
in other jurisdictions, including Nigeria where here is the existence of
websites such as LawPavillion and Legalpedia providing a similar service. Electronic
casebooks have also been introduced by the storage of large volume of cases on
a CD-ROM. Individually, Law firms have also utilized the internet by creating
blogs where they write articles, commentaries etc. all to educate their
clients. In fact firms like Aluko&Oyebode and Banwo& Ighodalo, issue a newsletter
monthly to educate the public.[10] Law firms have also created on their official websites, online form by which their actual and
potential clients can reach out to them, in order to eliminate the barrier of
distance or time constraints.
Videoconferencing
has also been applied effectively to bridge the problem of physical barrier and
it has been found quite suitable for arbitration proceedings. In addition to
this, many Online Dispute Resolution (ODR) platforms, simply put online form of
Alternative Dispute Resolution (ADR) abound for the effective and efficient
resolution of disputes. Social media applications such as Linkedln, Facebook,
Whatsapp etc. and email also help lawyers network and share files even in a
court sitting. The legal education is not entirely left out as now there exists
in the Nigerian Law Schools an e-handbook to make studying easier for students.
With
the presence of all of these, it might sound absurd to still pick it as a
subject for discussion, however an investigation into how often IT is embraced
by lawyers reveals that lawyers pose
somewhat resistant IT. Why? I’m not too sure but it might be because law
as we all know is conservative and as such lawyers are encouraged to be sober
members of the society. Perhaps this explains the preference for the old ways
and reluctance to accept new trends. For instance, it is reported that back in the mid-2000s, law firms opposed the
idea of an email,[11] and even now that you
could believe that every lawyer owns a smartphone, the American Bar Association (ABA), reports
that 98% of them do not use these phones to its full potential; usage for them does
not extend beyond calls, texts and emails.[12] There are even stories flying round about
lawyers accusing colleagues patronizing e-libraries of lacking comprehensive
understanding of the law. To the former, the presence of a printed material is
an essential. Removal of that and there just isn’t commendable research.
WHY A LAWYER SHOULD EMBRACE IT IN
WORKPLACE
With
the present situation, ranging from closure of law firms to suspension of
court-sittings, IT is one medium by which a lawyer can continue to offer her
services. Here are a few reasons why IT should be embraced by every lawyer:
1. Flexible
working time: rather than complain about how
exhausting, monotonous and boring a 9-5 job can be, IT affords a lawyer the
opportunity to work from everywhere, including their homes on days they cannot
be at the firm. This would even aid to reduce traffic on the roads and make
movement easier for lawyers who must appear in court.
2. Efficient
and Speedy Research:
there is a whole lot of information on the internet that can be
harnessed by the lawyer as he carries out his research. What’s even better is
that there is no geographical boundary to the availability of this information
and as such utilization of them produces a quality, time, energy and money
saving research. In addition to this,
lawyers can create a blog or website where they can upload their
well-researched opinions as this would also earn recognition.
3. Client
Satisfaction: when a lawyer can provide up-to-date
information, maintain contact with clients and speedily execute tasks, it is
only natural that clients would be pleased and of course a strong client-base
would pull in more clients. IT applications such as Zoom can be used to hold
meetings with clients in order to avoid the difficulty that cones with
scheduling a physical meeting.
4.
An extra skill:
In the midst of the intense competition out there amongst lawyers, the “infotech conscious” lawyer definitely has an edge over the “infotech
unconscious” lawyer.[13] Russ Abney agrees with this by saying that : these technologies are a must for
litigators. Whichever on the go solution you choose; you will have an edge over
opponents who still lug their paper files into court[14]
5. Networking:
no man is an island of knowledge, and as such no lawyer can have every
information at his/her disposal. There is always something to learn from a
colleague or senor at the bar. You never
can tell, you might require a file urgently someday in court and then you would
wish you had your fellow’s email address so you can easily text him for
this. Most importantly, lawyers we occupy
a very prestigious position in the society, and so should be there for one
another
6. IT
provides so many mediums through which a lawyer can store thousands of files,
move them around conveniently and even access them. They include laptops, flash
drives. Hard disks, CD-ROMs and even Cloud.
7. Intellectual
property lawyers can easily monitor the works of their clients in cyberspace
and be informed of any infringement at once.
CONCLUSION
As Paliwala puts it, ‘…The
development of the global legal practice means that lawyers need to be globally
aware in ways which are beyond the limits of traditional law libraries and
books.’[15] As new areas of law
continue to spring up, it necessitates a shift from the old ways in order to
provide solution to the new issues that
arise in these areas. Only an informed lawyer can do this and IT offers a whole
lot of information. Therefore, lawyers cannot continue to deny the relevance of
IT especially where they live in a society propelled by technology. The
yardstick for determining a well completed legal education and also a successful
lawyer lies in how well he/she has been able to apply his legal education in
addressing individual/societal problems. Lawyers must now take the pains of
understanding IT and applying it lest they find themselves incompetent in face
of situations such as the present closure of businesses.
*Assunpta
is a student of the Faculty of Law, University of Lagos.
[1]
Harold J. Leavitt and Thomas L. Whisler, ‘Management in the 1980’s’, Harvard Business Review, November, 1958,
https://hbr.org/1958/11/management-in-the-1980s
(accessed 1st April 2020).
[4]
CARTER, R., Students Guide to Information
Technology, London: Heinemann Newner, 1990, pp. 2-3. Cited in Nwachukwu Chukwuma E., Application of information technology to
legal practice: perspectives, problems and prospects www.academia.edu.
(accessed 6th April 2020)
[7] Arno
R. Lodder, Anja Oskamp, (eds.), Information Technology & Lawyers research.vu.ni
[8] Com.
Ibrahim Babayidi Maikasuwa, ‘ICT and legal profession in Nigeria-an impact
analysis’ Nigerian Law Claz blog, 24th
June 2017,
https://nigerianlawclaz.blogspot.com/2017/06/ict-and-legal-profession-in-nigeria.html?m=1
[10] accessible
at their websites
[13] Bernard ’Femi Jemilohun, ‘The
information communications technology revolution: Imperatives for the 21st
century Nigerian lawyer’ www.academia,edu. (accessed 6th
April 2020)
[14] Russ Abney ‘Take Your Data With
You’ Texas Bar Journal Vol. 68 No 3 p.200 cited in Bernard ’Femi Jemilohun, ‘The
information communications technology revolution: Imperatives for the 21st
century Nigerian lawyer’ www.academia,edu. (accessed 6th
April 2020)
[15] A
Paliwala: ‘Learning in Cyberspace’ The Journal of Information, Law and
Technology (JILT) cited in Bernard ’Femi Jemilohun, ‘The information
communications technology revolution: Imperatives for the 21st
century Nigerian lawyer’ www.academia,edu. (accessed 6th
April 2020)
by Legalnaija | Apr 8, 2020 | Uncategorized
In 2019, china recorded the outbreak of coronavirus also known as covid-19, and countries all over the world has had their fair share of the spread of the disease. The World Health Organization has declared that the Covid-19 is pandemic and countries in a way of ensuring safety are closing their borders, restricting travel, locking down cities and banning gatherings.
Countries have recorded low economic growth due to the spread of the virus and the maritime industry is not left behind from the negative impact ranging from dry-bulk market to the tanker and from ship repair business especially in china.
The maritime Industry is timely in nature i.e all activities must be done within a particular time and failure to do this will incur cost and demmurrage against the hirer or chatterer and the wide spread of the covid-19 has delayed the activities and in a time charter, the delay is usually borne by the charterer in the absence of any contrary term. In a way to salvage the risk borne by the charterer, there are some terms that may be introduced in to the time charter, and the essence is to allow a charterer not to pay hire if delay is caused to the operation of the ship. One of the clauses is termed ‘Off Hire Clause’. Off-hire clause is the clause that is included in a time charter that entitles a hirer to stop paying hire when there is delay in the operation of the ship.
Off hire clause can fall into two categories, i) Net loss of time ii) Period.
The net loss of time is the clause that states that in the event of of loss of time from the deficiency of men, breakdown of the hull or machinery, or cargo drydocking for the purpose of examination or painting of bottom or any other cause that prevent the full working of the vessel, the payment of hire will cease for the time lost. while the ‘Period’ clause is wider, it provides that the hirer will cease the payment of hire until the ship is ready and in an efficient state to resume her business.
It should be noted that the types of off hire clause provide for when there is breakdown of the ship and when the ship is not efficient to resume business. Using the literally interpretation, this off hire clause do not provide for where there is economic restriction on the vessel as in recent outbreak of the covid-19 virus. however, when one can establish that the full working of the vessel has been prevented it is necessary to examine whether it falls under the the causes discussed above or ‘Any other Cause’ but interpreting this phrase, one has to examine that the ‘Any Other Cause’ will be relevant if it is a cause that can be attached to the specific causes mentioned in the off- hire clause.
The big question is, does Economic and Political reasons trigger the off- hire clause? Yes, it does, as long as the restrictions prevent the ship from carrying out her duties.
CONCLUSION
It is very important to conduct due diligence on a time charter before approving and appending signatures in order to exhaust all the remedies available as to prevent excess payment of hire.
Pelumi Ajekiigbe is a graduate of University of Ibadan and Nigerian Law School where she bagged a First Class.
She is an associate in Olawoyin & Olawoyin, where she is currently observing her National Youth Service Corps programme. She has interest in Maritime and Aviation Law.
