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.
by Legalnaija | Apr 6, 2020 | Uncategorized
1. 0 INTRODUCTION
In the period of 20 years, China has taken
the World through a gruesome path, twice. After being criticized for
a slow response to SARS, China is once again facing global scrutiny for its
handling of the new ‘Coronavirus’. China repeated the obstruction
of information that worsened the SARS crisis 18 years earlier. In
that case, China tried to cover up the SARS epidemic, which led WHO member states to adopt the new
International Health Regulations in 2005. In both cases, China and the world
would have been spared thousands of unnecessary deaths had China acted
forthrightly and in accordance with its legal obligations.
The events to date has shaken confidence in the Chinese Communist Party at home and
abroad. China’s initial response to the crisis was less than impressive. The
Wuhan government was secretive and self-serving. The Chinese state made
evidently intentional misrepresentations to its people concerning the outbreak.
Reports showed that the Chinese Government silenced doctors who raised the
alarm of the virus, minimizing the danger to the public even as they were
bewildered and overwhelmed. State media also suppressed information about the
virus. Although authorities closed the Wuhan “wet market”, the epicenter of the
contagion, they did not take further steps to stop the wildlife trade, where
scientists traced the virus to.
The Covid-19 pandemic has affected all systems. Financial
markets have shuddered and have been pulled into all kinds of uncharted
territories, commodity prices have fallen, especially oil prices. According to
the International Monetary Fund, the global economy is now in a recession. Schools
have been closed globally, religious and social gatherings have been
restricted. There is now this new trend of ‘Working from home’. Summarily, the
whole world is in a lockdown, mildly say- a compulsory holiday.
This article addresses the possible arguments that International
law imposes an obligation on China to make reparation for COVID-19-related
harms or say damages.
2.0 CHINA’S OBLIGATION UNDER INTERNATIONAL LAW
The scale of the damage, Worldwide, has
prompted arguments of whether or not, China bears international legal
responsibility for the pandemic and should compensate countries harmed by the
outbreak.
China is one of the 194 states, party to the
2005 International Health Regulations, which is legally binding. China has a
duty to rapidly gather information about and contribute to a common
understanding of what may constitute a public health emergency with potential
international implications. The legally binding International Health
Regulations were adopted by the World Health Assembly in 1969, to control six
infectious diseases: cholera, plague, yellow fever, smallpox, relapsing fever,
and typhus. The 2005 revision added smallpox, poliomyelitis due to wild-type
poliovirus, SARS, and cases of human influenza caused by a new subtype, set
forth in the second annex.[1] Annex 2 of the IHR
provides for: “Any event of potential
international public health concern, including those of unknown causes or
sources and those involving other events or diseases than those listed”.
Obviously, Covid-19 falls under this category.
States are expected to provide expedited, timely, accurate, and sufficiently detailed information to
the World Health Organization about the
potential public health emergencies identified in the second annex in order to
galvanize efforts to prevent pandemics, according to Article 6 of the IHR.
Article 7 also provides that “any unexpected
or unusual public health event within a country’s territory, irrespective of origin or
source”, should be reported to the WHO. The body (WHO) also has a mandate in Article 10 to seek
verification from states with respect to unofficial reports of pathogenic
microorganisms. States are required to provide timely and transparent
information as requested within 24 hours, and to participate in collaborative
assessments of the risks presented. Yet China rejected repeated offers of
epidemic investigation assistance from WHO in late January (and the U.S.
Centers for Disease Control and Prevention in early February), without
explanation. The Washington Post concluded in a story on February 26 2020 that
China was not sending the details that WHO officials and other experts expected
and needed.
3.0 CHINA’S LEGAL RESPONSIBILITY
It can be seen that China had violated international law on
infectious diseases and, under the International
legal principles of state responsibility, has an obligation to make full
reparation for the harm done. None of the treaties addressing the international
spread of infectious diseases dating back to the nineteenth century have rules
requiring payment of compensation for damage in other countries associated with
violations of treaty rules. The leading contemporary treaty, the International Health Regulations
(2005) (IHR), has no provisions on this issue. This situation is
not unusual. Most treaties do not address whether the violation of their rules
creates an obligation to compensate those states parties adversely affected by
harms caused by the violation.[2]
A state violating international law has “an
obligation to make full reparation for the injury caused by the internationally
wrong act”, under Customary
international law on state responsibility. This customary rule has played no discernable role in
disease outbreaks over the long history of international health cooperation,
even when states have argued that countries violated applicable treaties.
States have not seriously pursued compensation against countries accused of
breaching treaty obligations to report disease events or refrain from imposing
trade or travel measures that have no scientific basis.
States have not been keen
to use ‘customary law on state responsibility in the infectious disease context’
because of how political and epidemiological considerations align. Fulfilling
treaty obligations to report disease outbreaks involves challenging scientific
and public health questions and difficult political calculations. Pathogenic
threats with the potential for cross-border spread can appear in any country.
For example, although the origin of the devastating influenza pandemic of 1918-19 remains unclear, the
United States is on the list of potential countries of origin. The H1N1 virus
that caused an influenza pandemic in 2009 was first detected in the United
States. This reality creates a shared interest among states not to litigate
disease notification issues. Likewise, a state experiencing an outbreak will
complain about irrational trade or travel measures, other countries impose.
However, next year, that same state might want to implement similar measures
when another nation suffers an outbreak, which reveals reciprocal interests
among states not to seek reparations for violating treaty rules on trade and
travel measures.[3]
States understand that, tomorrow, the shoe could be on the other foot, which
creates a collective incentive among countries to avoid being legalistic about
reporting obligations.
Article 56 of the IHR
(2005) requires an injured state to first explore negotiation or any other
peaceful means of their choice including good offices, mediation, or
conciliation, to settle any dispute involving treaty interpretation and
application. Failing that, the parties may refer the dispute to the WHO
director general or parties to the dispute may agree to compulsory arbitration
in which the arbitral award shall be binding.
Under
the principles of state responsibility, States have the obligation to make
reparation for the damage caused by their wrongful act. Thus, China may be
liable to pay reparations over its failure to promptly notify the WHO about the
outbreak. Reparations involve restitution, and where that is no longer
possible, the offending state pays compensation “for loss sustained which would
not be covered by restitution in kind or payment in place of it” (Chorzow
Factory,1927). Such assessment of damages may also come with an award of
satisfaction, or a formal apology and an assurance that its unlawful conduct
will not be repeated (LaGrand Case, 2001).[4]
However,
countries have never used the dispute settlement provisions in infectious
disease treaties from the nineteenth century through today — an indication that
states have no interest in legal remedies in this area.
4.0
CONCLUSION
Under the principles of
state responsibility, separating what damage is attributable to China’s delayed
reporting and what harms arose because other governments botched their
responses to COVID-19 would be difficult. Such causation issues also help
explain why states have, historically, not pursued reparations for damage
associated with alleged violations of treaties on infectious diseases.
Many countries now struggling with COVID-19
had time to prepare for the pathogen’s transboundary spread after China
reported its outbreak under the IHR.
At
the moment, no state party has alleged that China violated its IHR notification
obligations but two class actions have been filed against China for
“damages suffered as the result of the coronavirus pandemic” before
the U.S. District Court in Florida and Texas, shocking the Chinese legal community.
There
have been clamours that China should be held responsible this time, for the
Covid-19 pandemic so as to protect the future.
[1] https://warontherocks.com/2020/03/china-is-legally-responsible-for-covid-19-damage-and-claims-could-be-in-the-trillions/(accessed
30 March 2020)
[2] https://www.justsecurity.org/69394/covid-19-and-international-law-must-china-compensate-countries-for-the-damage-international-health-regulations/
(accessed 30 March 2020)
[4] https://opinion.inquirer.net/128226/china-international-law-and-covid-19#ixzz6IPMcilCd/
(accessed 31 March 2020)
by Legalnaija | Apr 6, 2020 | Uncategorized
As I pen down my thoughts this morning, the 5th day of April, 2020, I am not in animal spirits, as the pandemic Coronavirus (COVID-19) continues to increasingly spread like wildfire across Nigeria and also globally. Like a bull in the china shop, it is threatening to decimate and ravage the world’s population gradually. The virus has literally held the world populace hostage, as the only means of escaping from its blood testy jaws is to hibernate in our respective abodes and maintain strict hygiene by washing our hands with soap and water (as there is no vaccine available yet), amongst other preventive measures issued by the World Health Organization (WHO) and the Nigeria Centre for Disease Control (NCDC).
The essence of this write-up is not to criticise the Federal Government of Nigeria, but to urge the Government to do the needful by ensuring the health sector is properly funded. The era of the Government at all levels paying lip service to the health sector, in terms of adequate funding, going forward should be gone with the wind. Clearly, the world was/is largely unprepared for the outbreak of this plague-like virus, as even first-world countries, with well-funded health sectors are battling tooth and nail to checkmate the spread of the virus. This fact should serve as a wake-up call to Nigeria, whose successive leaders have over the years under funded the health sector.
While surfing the internet for information relating to disease prevention, I was jolted by the heart wrenching caption of This Day Newspaper of 5th March, 2020 which stated: “FG Budgets 8 Naira for Disease Prevention of Each Nigerian in 2020”. I must say that the said newspaper article is a must-read for all Nigerians to appreciate the extent of the retrogression of the Nigerian health sector. Our health sector is still in the wilderness, going round in circles with no hope in sight of reaching Canaan land anytime soon. The article revealed that only a paltry sum of N1, 673, 486, 127 was allocated to the Nigeria Centre for Disease Control (NCDC), the country’s national public health institute (established in 2011), essentially saddled with the responsibility of epidemic preparedness, detection and response to infectious disease outbreaks and public health emergencies for over 200 million Nigerians. Unfortunately, a visit to the website of the NCDC would reveal that the above mentioned budgeted sum will be expended on preventing and managing Lassa fever, Ebola, Coronavirus (COVID-19) Yellow fever, Cholera, Meningitis, Measles etc; running, funding and maintenance of the six Departments (four of which are technical Departments) created by the NCDC namely the: Surveillance and Epidemiology Department, Public Health Laboratory Services Department, Health Emergency Preparedness and Response Department, Prevention Programmes and Knowledge Management Department, Administration and Human Resources Department and the Finance and Accounts Department. In order to appreciate the dire straits, foisted upon the Nigerian health sector by meagre funding over the years, I would proceed to quote copiously, portions of the pungent This Day Newspaper article earlier referred to which served as a catalyst to my writing this article. The said article stated in part as follows:
“…NCDC’s counterpart in the United States, the Centre for Disease Control (CDC) will spend $6.594 billion on epidemic preparedness this year, which is about N2.34 trillion, an amount that exceeds Nigeria’s entire Federal Ministry of Health allocation for five years. This means, if the CDC budget is spread across the population, the centre will spend at least 20 dollars (N7, 200) on epidemic preparedness for every American resident, while Nigeria, a country which prides itself as the giant of Africa and the economic hub of the black continent, will spend eight naira on same disease prevention and management in a full year per citizen…. The health sector generally has had one of the lowest budget allocations in the country, even far lower than sectors relatively not as crucial as the health sector. This is despite the pledge made by the country in April 2001 during the ‘Abuja Declaration’ where it, along with other heads of state under the African Union platform, declared to increase health budget allocation to 15 per cent of the entire national budget every year. Since the Declaration, the highest health allocation for Nigeria was in 2012 where 5.95 per cent was allotted to the sector. In 2014, it allocated N216.40 billion to healthcare, representing 4.4 per cent. In 2015, it was N237 billion, which represents 5.5 per cent of the entire budget, same with 2016 (4.23 per cent), 2017 (4.16 per cent), 2018 at 340.5 billion (3.9 per cent), and 2019 at N315.6 billion (4.1 per cent)…the Nigerian government, again in 2020, followed the same trend with only 4.14 per cent of the entire budget allocated to the health sector, amounting to N427 billion; an allocation less than 25 per cent of what CDC alone will spend on epidemic preparedness. But the World Health Organisation (WHO) says for Nigeria to be seen to have prioritised healthcare, it must at least spend a minimum of N6, 908 per Nigerian in a year, which when multiplied by 200 million people will amount to N1.38 trillion, which is around 12 per cent of Nigeria’s entire budget for 2020… For instance, Rwanda reportedly devoted 18 per cent of its total 2016 budget to healthcare. Botswana budgeted 17.8 per cent to health; Malawi, 17.1 per cent, Zambia, 16.4 per cent and Burkina Faso, 15.8 per cent. But Nigeria still lags behind in this regard, which has had direct consequences on the funding capacity of the Health Ministry and its affiliated agencies and parastatals, thereby making the fight against poor healthcare very unrealistic.”
The above quoted portions of the article perfectly reflect the unfortunate doldrums that the Nigerian health sector is enmeshed in due to lack of proper funding. There is no gainsaying the fact that there is no use crying over spilt milk. It is time for the Government to seize the bull by the horn by adequately funding the health sector in tandem with global best practices. The outbreak of the deadly pandemic Coronavirus has shown that we cannot always resort to medical tourism to meet our medical needs. It is apparently clear that the Government must go back to the drawing board to re-strategize and chart a way forward, in order to revive our comatose health sector. To my mind, the only way forward is for the Government to prioritize and adequately fund the health sector. Fortunately, the Federal Government of Nigeria can resort to its 359-page blue-print National Action on Health Security (2018-2022), which is a “comprehensive multi-sectoral plan that integrates multiple work plans including REDISSE, NCDC Strategy Plan, AMR Action Plan, and immunizations plans, addressing the major gaps identified by the Joint External Evaluation (2017) and Performance of Veterinary Services (2010) assessments, and prioritizing them by national strategies and risks. As such, the NAPHS is an “overarching” plan and can be used to create linkages and monitor progress of major health security initiatives.”
Flowing from the above, can the Federal Government religiously, diligently and steadfastly implement the NAPHS, in order to ensure the Nigerian health sector is revamped, revitalised and repositioned to meet the health needs of all Nigerians? Most humbly and with all due respect, I must state that Nigeria is a country, whereby successive Governments have expended so much funds in drawing up plans, without the will to implement them. In this wise, I must plead that in relation to the health sector (and in fact all sectors), it can no longer be business as usual, bearing in mind the words of the 34th President of the United States of America, Dwight D. Eisenhower ” In preparing for battle I have always found that plans are useless, but planning is indispensable.”
by Legalnaija | Apr 3, 2020 | Uncategorized
It is no longer news that on the wake of the Coronavirus pandemic, the Federal Government of Nigeria and various State Governments put in place some drastic measures to prevent the spread of the life-threatening scourge. The danger posed to humanity and Nigerian citizens inclusive, by the ravaging pandemic has been taken very seriously by governments all over the world. For this purpose, the President of the Federal Republic of Nigeria announced a total lockdown of Lagos, Abuja and Ogun States in the national broadcast of March 29, 2020. Other State Governments have followed suit through the announcement of various restrictions and stay-at-home Orders by Executive Orders and/or regulations pursuant to their powers under the relevant enabling Quarantine Act.
The concern of this write-up is the manner of enforcement of such Executive Orders, restrictions and regulations by the law enforcement agencies and men of the Nigerian Army which has brought with it Police brutalisation, dehumanization and outright death of the citizens. The Tribune of today published the story of someone that was killed in Ogunnu, a suburb of Warri in Delta State, while driving for refusing to stop when he was reportedly flagged down by the security personnel. These various acts of brutalisation and dehumanization of citizens must be condemned in its entirety. It is an extra-judicial killing, it is illegal and absolutely unconstitutional.
It needs to be emphasised that the very reason for the announcement of these stay-at-home Orders and other restrictions on movements is essentially to save lives. Hence, the phrase: stay-at-home to stay safe. If the objective of a policy is to save lives, it is therefore totally illogical and inherently contradictory to kill in order to enforce safety measures. Indeed the point must be made for the umpteenth time that it is the business of the regular Police to enforce and maintain law and Order in the society as distinct from the Armed Forces whose duty is to protect the nation against external aggression and internal insurrection. The objective of the measures will be defeated if human lives are wasted, treated with disdain and their Human Rights violated with reckless abandon.
We saw a good example of how to enforce law and Order by the reported arraignment and conviction of twelve (12) persons for violating the provisions of Ekiti State Coronavirus Prevention of Infection Regulations 2020. The violators were tried and fined by the Chief Magistrate Court of Ekiti State. We advise everyone involved in the enforcement of these Orders in the different States of the Federation to take que from this example by arresting the violators and arraigning them before the appropriate Court for trial and sanction if found guilty. To do otherwise is to resort to self-help which is a product of executive lawlessness, an anathema and abomination in a constitutional democracy such as ours.
I call on the civil populace to see the reason behind the restrictions and other safety measures and directives to put up with the momentary inconvenience in order to experience the long term gain for ourselves, our families, the Nation and in the interest of public health and public safety. May I also say that any further act of brutalisation, dehumanization and unprofessional conduct on the part of the law enforcement agencies should be reported to the nearest Nigerian Bar Association Branch or directly to the Inspector-General of Police for necessary actions. With regards to the Armed Forces, report should be directed to the Defence Headquarters by sending text or WhatsApp messages through the telephone numbers provided by the Headquarters of the Nigerian Army.
Let us join hands together in unity of purpose to fight the Coronavirus war and live after the guaranteed victory.
Dated April 3, 2020.
Dele Adesina SAN
