Tuesday, 19 May 2020

Contronyms

contronyms: 1.

1. Apology: A statement of contrition for an action, or a defense of one

2. Aught: All, or nothing

3. Bill: A payment, or an invoice for payment

4. Bolt: To secure, or to flee

5. Bound: Heading to a destination, or restrained from movement

6. Buckle: To connect, or to break or collapse

7. Cleave: To adhere, or to separate

8. Clip: To fasten, or detach

9. Consult: To offer advice, or to obtain it

10. Continue: To keep doing an action, or to
 suspend an action

11. Custom: A common practice, or a special treatment

12. Dike: A wall to prevent flooding, or a ditch

13. Discursive: Moving in an orderly fashion among topics, or proceeding aimlessly in a discussion

14. Dollop: A large amount (British English), or a small amount

15. Dust: To add fine particles, or to remove them

16. Enjoin: To impose, or to prohibit

17. Fast: Quick, or stuck or made stable

18. Fine: Excellent, or acceptable or good enough

19. Finished: Completed, or ended or destroyed

20. First degree: Most severe in the case of a murder charge, or least severe in reference to a burn

21. Fix: To repair, or to castrate

22. Flog: To promote persistently, or to criticize or beat

23. Garnish: To furnish, as with food preparation, or to take away, as with wages

24. Give out: To provide, or to stop because of a lack of supply

25. Go: To proceed or succeed, or to weaken or fail

26. Grade: A degree of slope, or a horizontal line or position

27. Handicap: An advantage provided to ensure equality, or a disadvantage that prevents equal achievement

28. Help: To assist, or to prevent or (in negative constructions) restrain

29. Hold up: To support, or to impede

30. Lease: To offer property for rent, or to hold such property

Friday, 1 May 2020

THE IMPORTANCE OF CERTIFICATE OF REGISTRATION OF COPYRIGHT IN A COPYRIGHT INFRINGEMENT SUIT: COMPARISON BETWEEN NIGERIA AND UNITED STATES JURISDICTIONS.


THE IMPORTANCE OF CERTIFICATE OF REGISTRATION OF COPYRIGHT IN A COPYRIGHT INFRINGEMENT SUIT:

INTRODUCTION

Copyright as the name implies, simply means the right to copy. It can be defined as the exclusive right and protection given to a creator of a creative work exclusively to protect his work. Copyright helps you prevent others from using your work without your permission. The consent rights conferred to a creator includes: (a)Right to reproduce the work (b) Distribute copies of the work (c)Perform the work publicly (d) Make a derivative work. Thus, a third party cannot exercise any of the above rights in regards a work without the consent of the creator or the copyright holder.  Various countries have enacted their individual Copy right Act to protect creatives within their jurisdiction and also works that were published within their jurisdiction. Under these copyright enactments, the common features include: (i) The definition of what entails copyright infringement (ii) The penalties for this Copyright infringement (iii) The right of the copyright holder to an action in court for enforcement.
However, there has been a lot of uncertainties in regard the importance of a certificate of registration to instituting copyright infringement cases. The common practice in copyright infringement suits in all jurisdictions is the ability of the plaintiff to prove two basic elements, (a) That the work is an original composition of the creator (b) And that it was presented in a tangible form through a medium that is generally known to the society.
INSTITUTION OF COPYRIGHT SUIT IN THE UNITED STATES OF AMERICA
Traditionally, for an aggrieved party to bring an action for copyright infringement in the United States, the basic practice was that he needs to prove certain elements and they include:
  • ·         That the work was copyright-able. To be classified as such, the work has to be an original work and not copied from another composition. This test is subjective and is decided on a case to case basis. Rentmeester v. Nike, Inc, 883 F.3d 1111 (2018).
  • ·         It must be in a tangible form.
  •       The plaintiff must be able to prove striking similarities between his work and that of the defendant. In most cases, the court contracts the service of a musicologists to determine this.
  • ·         Failure to prove this striking similarities means the plaintiff is required to prove substantial similarities. And this element requires proving that the defendant has access to your work. And in this technological era, it is not difficult to prove this again.

IMPORTANCE OF CERTIFICATE OF REGISTRATION IN THE UNITED STATES
Previously, the importance of certificate of registration of copyright was not clearly stated. While some legal scholars states that there is a need to register the copyright with the Copyright office before filing such suit.  Some scholars posed a different opinion, they claim that certificate of registration is not substantial for a copyright holder to bring a suit for infringement. The rationale behind their opinion is that copyright comes with every work provided the two basic ingredients are proven, original composition and tangible form. This opinion was supported by the decision of the Supreme Court in Reed Elsevier, Inc v, Muchnick, 559 U.S. 154 (2010). Where the court held that failure to register a copyright under section 411(a) of the United States Copyright Act does not limit a Federal Court’s jurisdiction over claims of infringement regarding unregistered works. Section 411(a) of the Copyright Act provides that: “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title”. Thus, an aggrieved party can bring an action of copyright without prior registration or certificate of registration.  

Recently, this controversy has been laid to rest by the Supreme Court decision in Fourth Estate Public Benefits Corp. v. Wall-Street.com 17 U.S.C 411(a) 2019, where the court asserted that certificate of registration of copyright is fundamental to all copyright suit and that copyright holders should register their copyright with the U.S Copyright Office before instituting the action, mere application for registration will not suffice. The exceptions to this decision includes: ‘moral right suits’ and ‘foreign works’. In these two cases, a copyright holder of such work can institute the action even though the copyright has not been registered. The court further defined ‘registration’ of copyright as "the effective date of registration, once the registration is actually processed by the Copyright Office and not when the application is filed with the Copyright Office". This means that though an artiste does not need money on copyrighting his work, as creative works enjoy automatic copyright protection, if he plans to sue someone or enforce such copyright, there will be a need to register the work with U.S Copyright office and have a certificate of registration. Note that the originality requirement and the fact that it must be put in a fixed or tangible medium of expression was also considered in this case.


INSTITUTION OF COPYRIGHT SUIT IN NIGERIA
 Just like in other jurisdictions, the works that are subject to copyright protection includes: (a) musical works (b) literary works (c) cinematographic works (d) artistic works (e) broadcasts (f)sound recordings.  However, section 1(2) of the Nigeria Copyright Act states that for an artistic, literary or musical work to be eligible for copyright protection, it must contain two basic elements (a) It must be an original composition (b) It must be in tangible medium from which it can be perceived or reproduced. From the provision, this entails that for other works like cinematography, broadcasts and sound recordings, there is no need to prove whether the work is an original composition or in tangible form. This a provision that needs to be resolved to state clear the actual requirements.


IMPORTANCE OF CERTIFICATE OF REGISTRATION IN NIGERIA
The relevance of certificate of registration in the institution of a suit is not stated nor mentioned. However, the Act makes provision for a presumption that copyright subsists in any work which is an alleged subject of infringement and that the plaintiff is deemed to be the owner of the copyright work (section 35[a, b]).
CONCLUSION
While the legal framework of the United States has made it clear in regards the relevance of a certificate of registration to a copyright infringement suit, hence, putting to death the earlier controversy that existed. Nigeria Copyright Act did not make any reference to certificate of registration as seen in Section 411 of the Copyright Act of the United States nor did it state what role such document plays in a copyright infringement suit. Hence, there are lot of lessons that Nigeria jurisdiction needs to learn from the United States procedural structure when it comes to relevance of certificate of registration in a copyright suit.
In the writers’ opinion, although registering a work in the copyright office isn’t a prerequisite to enjoy copyright protection, the advantages of registering a work are numerous; so it is advised that a person seeking to enforce his rights either now or in the future should take the required steps to get the work copyrighted. This also mean that the Copyright Act of Nigeria should be amended to state categorically the duties, importance and value attached to a certificate of registration especially as it relates to copyright infringement suits.

Article written by:
 UBANI, OBINNA & WUKU, AYEBAFIRIMOTE

BILL FOR THE PROHIBITION AND CONTROL OF INFECTIOUS DISEASES;A SATANIC LAW INITIATED TO DESTROY CIVIL AND HUMAN RIGHTS OF NIGERIANS UNDER GUISE IF INFECTIOUS DISEASES CONTROL: AM OVERVIEW (2020 FG PLAN TO SHUT UP THE COURT) BY SENATOR DINO MALAYE (SDM)

THE PROPOSED  BILL  FOR THE PROHIBITION AND CONTROL OF INFECTIOUS DISEASES; AN EVIL AND SATANIC LAW  INITIATED TO DESTROY  CIVIL AND HUMAN RIGHTS OF NIGERIANS, UNDER THE GUISE OF INFECTIOUS DISEASES CONTROL: AN OVERVIEW

BY SENATOR DINO MELAYE (SDM)

Nigeria, as a democratic society, is built and run on the values of civil rights and democratic principles. Consequent upon this, fundamental rights which are codified in numerous international treaties, are accepted as inalienable to every human. These rights are enshrined in the Constitution of the Federal Republic of Nigeria, which is the grundnorm of the land.

Among these fundamental human rights are; rights to life, personal liberty, freedom from degrading and inhuman treatment,  private and family life, privacy, right to acquire and own property, freedom of movement, freedom of religion, etc. These rights are held sacred and inviolable except on clearly defined occasions as provided for, by the Constitution of the Federal Republic of Nigeria.Thus, the courts in Nigeria, on numerous occasions, have struck down Acts of Parliament and legislation, including executive orders of government, which do violence to any of the fundamental rights provided for in the constitution.

With the above understanding, and looking at the contents and provisions of this proposed Bill, one wonders whether our lawmakers or indeed the sponsor of the said Bill, who swore to protect and uphold the constitution of Nigeria, are interested in keeping the pledge they made. A critical assessment of this Bill and the timing of it’s tabling before the green Chambers, makes one wonder what the true intention of the promoters of this Bill, and what they are truly after. Certainly, the promoters of this Bill are not interested in any sincere control or prohibition of infectious diseases in Nigeria.

The world is presently battling a virus that has devastated several nations with no officially announced cure yet. Palpable fear has been stirred up in the minds of people across the globe, by the media, about the destructive effect of this disease. It is this fear that the agents of darkness who are behind this Bill wanted to ride on, in their celerity to pass this Bill into a law. After all, it ought to be a highly sellable proposition, to present the Bill as a legal instrument that will help Nigeria fight and defeat the COVID 19 pandemic. Behind this seemingly laudable objective, is the sinister objective to subjugate Nigerians by this instrument, to forceful vaccination in respect of a disease which has no known cure yet. Why the rush in passing a bill in the middle of a pandemic which has no known cure? Why make provisions for the forceful injection of unknown vaccinations for unknown diseases in the Bill?

A CRITICAL ANALYSIS OF THE PROVISIONS OF THE BILL

In the first place, apart from the first 3 sections of the Bill, which made mention of declaration by the president of Nigeria, of public health emergency, like the Covid 19, all the other over 77 sections of the Bill talk about matters and or issues that are not of any urgent public importance now. It is therefore shocking that the elected members of the  National Assembly, would break the lockdown order, with the attendant risks to themselves and their immediate family members and their various communities at large, to gather in Abuja, to surreptitiously pass the law without any input by public health workers and other stakeholders in Nigeria.


SOME STRANGE PROVISIONS OF THE BILL.

1. Section 3(8) of the Bill which empowers the DG of NCDC by himself or any officer under him or a police officer on his direction, to enter into any premises or gathering of people in an area declared by the president as  a public health restricted zone, without a warrant is clearly in breach of the right of Nigerians to freedom of assembly, right to liberty, etc. This kind of power in the hands of an overzealous police officer or NCDC official can cause serious civil unrest.

2. Section 5(3) of the Bill empowers the DG to compel any person SUSPECTED by him, of having an infectious disease, to take medical examination or test he(DG) prescribes and allow the DG to take blood or other samples from the person for purposes of public health surveillance. This, of course, is in breach of the constitutional right of every Nigerian to his privacy and right to respect of the dignity of his human person. It must be noted that this section, like the other provisions of this Bill, has nothing to do with whether there is a public health emergency or not. It is meant to be the permanent provision of the law exercisable at any time at the whims of the DG, even the minister of health. A person who refuses to allow the DG to take his samples or do the prescribed test is guilty of an offence. Sect 6 also has a similar provision. This is dangerous. Even in the developed world, testing for COVID 19 is voluntary despite the ravaging effect of the deadly virus on the health and lives of people. These Developed nations, which are by far, worst affected by this pandemic, are yet to pass any such devilish legislation as now being introduced by our own lawmakers in Nigeria.

3. Section 8 makes it obligatory for health personnel treating anybody to release to the DG, his client’s medical details and records, without any regards to the age-long norm and professional code of confidentiality between a doctor and his patient. It is a crime to refuse to release the information requested. This is against the ethics of medical practice and an infringement upon the fundamental rights of Nigerians and must also be resisted.

4. Section 13 EMPOWERS THE DG UPON MERE SUSPICION, NOT INFORMATION, that a person is infected with an infectious disease and or recovered from an infectious disease, to arrest the person and detain him for as long as he deems necessary without a warrant or court order at any isolation centre of his choice. It is an offence to resist the DG. Again this section infringes on the fundamental rights of Nigerians.

5. Section 15 of the Bill,  empowers the Minister of Health, to declare any premises whether public or private as an isolation centre and the moment this declaration is made, nobody is allowed to enter or leave the premises without the authorization of the minister. The right to property of Nigerians is thereby taken away without compensation as required by the constitution. This provision too is in conflict with constitutional provisions.

6. By section 16 of the Bill, the DG can declare any building or gathering as overcrowded and without any court order or warrant, enter the premises using such force as he deems necessary to disperse the group and may also close the building. A similar provision is in section 17. This section gives the DG unlimited powers to make such declarations any time it wills. These unlimited powers are prone to gross abuse.

7. SECT 19 empowers the DG to close any meeting or public gathering or event he considers to likely increase the spread of infectious disease without any court order.

8. Section 23 of the Bill authorizes the DG or an enforcement officer of his agency or police, to seize anybody walking on the street whom he SUSPECTS of having an infectious disease without any warrant. This also portends danger to the fundamental rights of Nigerians.

9. Section 30 of the Bill makes vaccination, for no known specific disease, compulsory if you are either leaving or arriving in Nigeria.

10. Section 47 of the Bill Empowers the DG to direct compulsory vaccination in an outbreak or a suspected outbreak.


OTHER POINTS

1. Throughout the different sections of the Bill, any failure to comply with the directives of the DG of NCDC is a criminal offence. THE ESSENCE OF THIS IS THAT THE BILL SEEKS TO TURN THE AVERAGE NIGERIAN into a Criminal on a sensitive issue of health.

2. The Bill, specifically in section 9, will make the donation of blood a very difficult issue in future,  as it criminalizes blood donation tainted with so-called misinformation or misleading information. This section is notwithstanding the fact that any blood donated by donors, is subjected to screening.

3. The Bill gave so much power to the NCDC Director -General with the attendant risk of gross abuse by the occupier of that position and the officers of NCDC.

4. The Bill fails to take into consideration the federal status of the country with the overbearing powers given to NCDC DIRECTOR -GENERAL and the Minister of Health on all issues without any form of control or checks by either the legislature or the judiciary.

5. The Power to take over the PRIVATE PROPERTY OF NIGERIANS and turn into ISOLATION CENTER in Section 15 of the Bill  at the instance of the DG and the Minister of Health in any part of the Federation is a banana peel and potential abuse of the rights of Nigerians to property and also an abuse of the powers of states government and Local Government as guaranteed under the constitution.

LASTLY, THIS LAW SAYS THAT ANYBODY WHO IS AGGRIEVED WITH ANY DECISION OF THE DG OR HIS ORDER CAN ONLY APPEAL TO THE MINISTER AND THAT THE MINISTER’S DECISION ON THE MATTER IS FINAL. THAT IS TO SAY, LIKE DECREE 4 THE JURISDICTION OF THE COURTS ARE OUSTED.

ENGLISH FOR LAWYERS

*English for Lawyers (EFL)*
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*THE 58 MOST COMMONLY MISUSED WORDS AND PHRASES*
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*PART ONE *
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(You might be shocked by how many words you've been very slightly misusing)
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Whether you're trying to sound sophisticated or simply repeating what you've heard, word fails are all too common and can make smart people sound dumb. ▪️In his latest book, "The Sense of Style," Harvard cognitive scientist and linguist Steven Pinker explores the most common words and phrases that people stumble over....majority of the words and phrases he identifies are agreed upon and can help your writing and speaking.

*Here are the main ones to look out for:*

(1) Adverse means detrimental and does not mean averse or disinclined.

Correct: "There were adverse effects." / "I'm not averse to doing that."

(2) Appraise means to ascertain the value of and does not mean to apprise or to inform.

Correct: "I appraised the jewels." / "I apprised him of the situation."

(3) As far as means the same as but cannot be used the same way as as for.

Correct: "As far as the money is concerned ..." / As for the money ...

(4) Begs the question* means assumes what it should be proving and does not mean raises the question.

Correct: "When I asked the dealer why I should pay more for the German car, he said I would be getting 'German quality,' but that just begs the question."

(5). Bemused* means bewildered and does not mean amused.

Correct: The unnecessarily complex plot left me bemused. / The silly comedy amused me.

(6). Cliché is a noun and is not an adjective.

Correct: "Shakespeare used a lot of clichés." / The plot was so clichéd.

• (7) Credible means believable and does not mean credulous or gullible.

Correct: His sales pitch was not credible. / The con man took advantage of credulous people.

• (8) Criteria is the plural, not the singular of criterion.

Correct: These are important criteria.

• (9)Data is a plural count noun not, standardly speaking, a mass noun. [Note: "Data is rarely used as a plural today, just as candelabra and agenda long ago ceased to be plurals," Pinker writes. "But I still like it."]

Correct: "This datum supports the theory, but many of the other data refute it."

• (10) Depreciate means to decrease in value and does not mean to deprecate or to disparage.

Correct: My car has depreciated a lot over the years. / She deprecated his efforts.

• (11). Dichotomy means two mutually exclusive alternatives and does not mean difference or discrepancy.

Correct: There is a dichotomy between even and odd numbers. / There is a discrepancy between what we see and what is really there.

(12). Disinterested means unbiasedand does not mean uninterested.

Correct: "The dispute should be resolved by a disinterested judge." / Why are you so uninterested in my story?

•(13). Enervate means to sap or to weaken and does not mean to energize.

Correct: That was an enervating rush hour commute. / That was an energizing cappuccino.

• (14). Enormity means extreme evil and does not mean enormousness. [Note: It is acceptable to use it to mean a deplorable enormousness.]

(15). Flaunt means to show off and does not mean to flout.

Correct: "She flaunted her abs." / "She flouted the rules."

(16). Flounder means to flop around ineffectually and does not mean to founder or to sink to the bottom.

Correct: "The indecisive chairman floundered." / "The headstrong chairman foundered."

(17). Fortuitous means coincidental or unplanned and does not mean fortunate.

Correct: Running into my old friend was fortuitous. / It was fortunate that I had a good amount of savings after losing my job.

(18). Fulsome means unctuous or excessively or insincerely complimentary and does not mean full or copious.

Correct: She didn't believe his fulsome love letter. / The bass guitar had a full sound.

(19). Homogeneous is pronounced as homo-genius and "homogenous" is not a word but a corruption of homogenized.

Correct: The population was not homogeneous; it was a melting pot.

(20). Hone means to sharpen and does not mean to home in on or to converge upon.

Correct: She honed her writing skills. / We're homing in on a solution.

(21). Hot button means an emotional, divisive controversy and does not mean a hot topic.

Correct: "She tried to stay away from the hot button of abortion." / Drones are a hot topic in the tech world.

(22). Hung means suspended and does not mean suspended from the neck until dead.

Correct: I hung the picture on my wall. / The prisoner was hanged.

(23). Intern (verb) means to detain or to imprison and does not mean to inter or to bury.

Correct: The rebels were interned in the military jail. / The king was interred with his jewels.

(24). Ironic means uncannily incongruent and does not mean inconvenientor unfortunate.

Correct: "It was ironic that I forgot my textbook on human memory." / It was unfortunate that I forgot my textbook the night before the quiz.

(25). Irregardless is not a word but a portmanteau of regardlessand irrespective. [Note: Pinker acknowledges that certain schools of thought regard "irregardless" as simply non-standard, but he insists it should not even be granted that.]

Correct: Regardless of how you feel, it's objectively the wrong decision. / Everyone gets a vote, irrespective of their position.

(26). Literally means in actual fact and does not mean figuratively.

Correct: I didn't mean for you to literally run over here. / I'd rather die than listen to another one of his lectures — figuratively speaking, of course!

(27). Luxuriant means abundant or florid and does not mean luxurious.

Correct: The poet has a luxuriant imagination. / The car's fine leather seats were luxurious.

(28). Meretricious means tawdry or offensively insincere and does not mean meritorious.

Correct: We rolled our eyes at the meretricious speech. / The city applauded the meritorious mayor.

(29). Mitigate means to alleviate and does not mean to militate or to provide reasons for.

Correct: The spray should mitigate the bug problem. / Their inconceivable differences will militate against the treaty.

(30). New Age means spiritualistic, holistic and does not mean modern, futuristic.

Correct: He is a fan of New Age mindfulness techniques. / That TV screen is made from a high-end modern glass.

(31). Noisome means smelly and does not mean noisy.

Correct: I covered my nose when I walked past the noisome dump. / I covered my ears when I heard the noisy motorcycle speed by.
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Source:
www.independent.co.uk
TO BE CONTINUED.
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Courtesy
*SYLVESTER UDEMEZUE*
englishforawyersng@gmail.com.

Thursday, 30 April 2020

STANBIC IBTC HOLDING PLC v. FINANCIAL REPORTING COUNCIL OF NIGERIA & ANOR. (2018) LPELR-46507 (CA) Case analysis

STANBIC IBTC HOLDING PLC vs. FINANCIAL REPORTING COUNCIL OF NIGERIA & ANOR.(2018)LPELR-46507(CA)
                             
                           
                             
                           
ISSUE: SECTION 7 OF THE NATIONAL OFFICE FOR TECHNOLOGY ACQUISITION AND PROMOTION ACT, 1979-Interpretation of Section 7 of the National Office for Technology Acquisition and Promotion Act, 1979 as regards effect of failure to register an agreement that is registrable under the same Act
                                                 
                                               
                                             
                                               
PRINCIPLE:
"At the heart of the arguments by the parties on the issue, is Section 7 of the NOTAP Act which provides thus: "Subject to Section 8 of this Act, no payment shall be made in Nigeria to the
credit of any person outside Nigeria by or on the authority of the Federal Ministry of Finance, the Central Bank of Nigeria or any licensed bank in Nigeria in respect of any payments due
under a contract or agreement mentioned in Section 4(d) of this Act is presented by the party or parties concerned together with a copy of the contract or agreement certified by the
National Office in that behalf." There are two fundamental things to be noted in these provisions, the first of which is that they are very clear, plain and unambiguous in language and words
used by legislature in setting out and expressing their tenor and purport. On the authority of the cases cited on the point earlier, and more, the interpretative duty of a Court would not arise
in the ascertainment of the true and real intention of the legislature in enacting the provisions, as the only duty of a Court is to ascribe and assign the ordinary, grammatical and natural
meanings to the words specifically and deliberately chosen and used by the legislature, which best bring out and say the intention of the law maker and giver. The second fundamental
thing to be noted is that the simple, plain and clear provisions of Section 7 are made "subject to Section 8 of this Act." In the case of NDIC (Liquidator of Allied Bank of Nigeria Plc.) v.
Okem Ent. Limited (2004) 18 NCSQR, 42 (2004) 10 NWLR (880) 107, Uwaifo, JSC, relying on Oke v. Oke (1974) 1 ALLNLR (1) 443 @ 450, defined the effect of the use of the phrase "subject
to" in a statute. He stated that: - "It must therefore be understood that "subject to" introduces a condition, a restriction, a limitation, a proviso: it subordinates the provisions of the subject
Section to the Section empowered by reference thereto and which is intended to be diminished by the subject Section." In the later case of Oloruntoba-Oba v. Abdulraheem (2009) 13 NWLR
(1157) 83 the apex Court, per Adekeye, JSC, enunciated on the above position that: "wherever the phrase "subject to" is used in a statute, the intention, purpose and legal effect is to make
the provisions of the Section inferior, dependent on, or limited and restricted in application to the Section to which they are made subject to. In other words, the provisions of the latter
Section shall govern, control and prevail over the provision of the Section made subject to it. It renders the provision of the subject Section subservient." Labiyi v. Anretiola (1992) 8 NWLR
(258) 139; Tukur v. Governor, Gongola State (1989) 4 NWLR (117) 517 and FRN v. Osahon (2006) 5 NWLR (973) 261 were referred to by the Learned and Erudite Law Lord for the effect of
the phrase. Since the provisions of Section 7 have been made subject to, inferior and subordinate to Section 8 in application, it is expedient to see what the provisions of the latter Section
say and this is it: -
"8. Cancellation of registration
(1) Where the director is satisfied that any contract or agreement has, subsequent to the registration thereof, been amended or modified in contravention of the provisions of this Act, he
shall give notice in writing to the parties concerned of his intention to cancel the certificate of registration and the provisions of Section 9 of this Act relating to appeals shall apply to any
such notice as if it were a notice to reject an application for registration.
(2) Where no appeal is lodged as provided under subsection (1) of this Section, the Director shall, with the approval of the Council, cancel the certificate of the party concerned."
Simply put, the provisions say that where any contract or agreement registered was subsequently or later amended, altered or modified in contravention of or contrary to the provisions of
the Act, a notice of intention to cancel the certification of registration shall be issued to the parties concerned and where no appeal was lodged, the certificate of registration of the said
contract or agreement, shall be cancelled. The provisions are on the cancellation of a certificate of registration of contracts or agreement, amended, modified or altered after the
registration, in contravention of the provisions of the Act. Because we are under this issue not concerned with the situation provided for under Section 8, the provisions of Section 7 are
therefore free of the encumbrances of Section 8 for our purpose here. Turning back to the words and provisions of Section 7, in their ordinary, grammatical and natural meanings in the
context of Section 4(d) of the Act, they explicitly say that: -
"(a). No payment, in whatever currency, must be made in Nigeria to the credit of any person outside Nigeria, by or on the authority of: -
i. Federal Ministry of Finance,
(ii) Central Bank of Nigeria or
(iii) Any licenced bank, in respect of:
(b) Payments due under all registrable contracts or agreements having effect in Nigeria for the transfer of foreign technology to Nigerian parties, unless -
(c) A certificate of registration of such contracts or agreements issued under the Act is presented by the party or parties concerned together with copies of the contracts or agreements,
certified by the 2nd Respondent."
In essence and essential/material particulars, the provisions not only intend to, but provide for conditions to be met by parties to a registrable and registered contract or agreement for the
transfer of foreign technology to Nigerian parties, for any payment to be made in Nigeria to the credit of any person outside Nigeria (foreigner or Nigerian) by or on the authority of any of
the three (3) institutions named and stipulated therein. Primarily, the provisions are on and deal with conditions precedent for the payments due on any registered contract or agreement
for the transfer of foreign technology to Nigerian parties by or on the authority of institutions named specifically, therein. The provisions do not talk of about or have within reasonable
contemplation or purview, the validity or legality of either of "any payments due under" or "a contract or agreement mentioned under Section 4(d)" of the Act. In their pure, unadulterated
and plain meanings and proper context, the provisions only seek and mean to regulate payments due on such contracts or agreements by the named public institutions by setting out the
conditions to be satisfied by the parties before any payments of financial obligation due under the contracts or agreements were to be made or authorized as prescribed therein. In this
regard, the provisions do not even pretend to impose a general sanction for non-registration of a registrable contract or agreement under Section, but merely say that no payment shall be
made or authorized by the named institutions unless a certificate of registration of the contract or agreement in question is presented along with a certified copy of such a contract or
agreement. So even if a contract or agreement was in fact registered and a certificate thereof issued in accordance with the provision of Section 6(1) of the Act, unless it presented as
required under the provisions of Section 7, no payment for due obligations under the said contract or agreement by the party or parties concerned, shall be made or authorized by the
institutions. I am in no doubt that the provisions of Section 7 of the NOTAP Act, do not deal with or provide for the validity, legality or lawfulness of unregistered or non-registration of a
registrable contract or agreement under Section 4(d) of the Act or render such a contract or agreement invalid, illegal, null and void. The Beacham case, in which pronouncement was made
on provisions of Section 7 of Decree No. 70 of 1979, which are impair materia with the provisions of Section 7 of the NOTAP Act, supports this position and is a binding or at least a guiding
statement in the ascertainment of the real and correct purport and intention of the legislature in the enactment of the provisions. I dare say that the provisions of Section 7, in their plain
and ordinary meanings, do not even render such a contract or agreement unenforceable between the parties since all they do is to prevent performance, settlement or payment of due
financial obligations of the parties thereunder, through and by or on the authority of the public institutions named. A Court cannot; that is, has no judicial power and
authority to import into and assign unusual and distorted meanings to words of a statute which are plain, clear and unambiguous on the basis of sentiments in order to attain a supposed
objective for the Court or any of the parties. The apex Court has succinctly and poignantly put the position of the law in, the case of ... when it stated that: "The duty of the Court is to
interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the Court or to the parties or one of the parties. Even
where the provisions of a statute is hard in the sense that they will do some inconvenience to the parties, the Court is bound to interpret the provisions once they are clear unambiguous. It
is not the duty of the Court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties outside the contemplation of the
lawmaker. That will be tantamount to travelling outside the statute on a voyage of discovery. This Court cannot embark upon such a journey. The primary function of the Court is to search
for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, as it is in this case, the Court in the exercise of its interpretative jurisdiction
must stop where the statute stops. In other words, a Court of has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a Court of law
intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the Court changes place with the lawmaker. In view of the fact that that will
be against the doctrine of separation of powers entrenched in the Constitution, a Court of law will not embark on such unconstitutional act. In Adewunmi v. A.G. Ekiti State (2002) 2 NWLR
(Pt. 751) 474. Wali, JSC, said at page 512: ... Under our jurisprudence, the presumption is that ill-considered or unwise legislation will be corrected through democratic process. A
Court is not permitted to distort a statute's meaning in order to make it conform with the judge's own views of sound policy." With respect due to the Lower Court, it did not heed the above
exhortation by the apex Court on its primary duty of ascribing and assigning the plain, clear and unambiguous words of Section 7 of the NOTAP Act, when in the name of purposeful judicial
creativity and meaningful interpretation, it created and imported into the words meanings which re-write them in order to conform with its view of sound social and economic policy, when it
held that the provisions render non-registered registrable contracts or agreements, illegal, null, void and unenforceable, merely on ground of the non-registration. That decision is not
sustainable in law, is not correct and so cannot stand. I am a proponent of judicial activism in interpretation and application of statutes, but my firm belief is that it must be within the
confines and limits of the statutes or laws which the Courts can only expound but not expand or balloon out of their clear and plain context or sphere which does not admit of any ambiguity.
Since the plain provisions of Section 7 of NOTAP Act do not prohibit contracts or agreements for the transfer of foreign technology to Nigerian parties but only say that such contracts or
agreements are registrable and where not so registered, no payment shall be made in Nigeria by or on the authority of the public institutions named therein, for any due financial
obligations arising therefrom, it would clearly be stepping out of the limits of the provisions to hold that such contracts or agreements are illegal, null and void or even unenforceable on the
ground of the non-registration. The provisions are different from the provisions of statutes or subsidiary Legislations/Regulations/Rules which expressly or by necessary implication, prohibit
certain actions or omission, as in the cases cited and relied on by the Lower Court and the Respondents on the point. The law remains extant that parties cannot contract out express
provisions of a statute or be allowed to benefit from their flagrant disobedience or non-compliance with provisions of a statute as demonstrated in those cases. That is not the situation
under the provisions of Section 7 since the Appellant did not contract out or seek to benefit from non-compliance with or disobedience to the provisions of the section. In addition to the
above, I find no other provision of the NOTAP Act which deals with or provides that non-registration of registrable contract or agreement under the Act renders it illegal, null and void in law.
As a result, all the cases on the effect of non-compliance with or disobedience to statutory provisions are not applicable to non-registration of a registrable contract or agreement under the
NOTAP Act, for it to be declared illegal, null and void. To have such contracts or agreements to be declared illegal, null and void, the provisions of Section 7 or other Sections of the NOTAP
Act need to be amended, altered or modified by the lawmaker, the legislature to provide for mandatory registration of the contracts or agreements and render them unenforceable between
the parties, where not so registered. The mere fact the Act in Section 4(d) provides as one of the functions of the 2nd Respondent, registration of such contracts or agreements having
effect in Nigeria that such contracts are registrable, does not mean that the registration of such contracts or agreements is mandatory or that failure to or non-registration would, ipso facto,
render them illegal, null and void. The provisions in Section 4(d) cannot be expanded, extended or enlarged beyond their literal, ordinary and plain meanings since they are clear,
unambiguous and plain, in both words and language. In the above premises, my answer to the Appellant's issue C (3) is that the effect of failure to register an agreement that is registrable
under the NOTAP Act, 1979, is that no payment shall be made in Nigeria, by or on the authority of the Federal Ministry of Finance, Central Bank of Nigeria or any licensed bank in Nigeria, to
the credit of any person outside Nigeria, for payment due under the contract or agreement. The effect of failure to register or non-registration of a registrable contract or agreement under
the NOTAP Act, 1979 is not to render such contract or agreement illegal, null and void, but to prevent any payment in Nigeria, of the financial obligations of the parties thereunder to the
credit of any person outside Nigeria, by the named institutions in the provisions of Section 7 thereof. In the final result, I find merit in this appeal and allow it.
Accordingly, the part of the judgement of the Lower Court that the export of Nigerian technology from Nigeria to a foreign country outside Nigeria is registrable and requires registration
under the provisions of NOTAP Act, 1979 and that agreements or contracts for such export are illegal, null and void for failure to obtain approval from 2nd Respondent is hereby set aside.
Similarly, the part of the Lower Court's judgment that failure to register a registrable contract or agreement under the NOTAP Act renders such contract or agreement illegal, null, void and
unenforceable, is also set aside. Consequently, it is declared that: -
(i) The failure to register a registrable contract or agreement under the NOTAP Act, 1979, is not a criminal offence.
(ii) The failure to register a registrable contract or agreement under the NOTAP Act, 1979 does not render the contract or agreement illegal, null and void or unenforceable, and;
(iii) That the effect of non-registration of a registrable contract or agreement under the NOTAP Act, 1979 is to prevent payment of money in Nigeria to the credit of any person outside
Nigeria, in respect of financial obligations of the parties under the contract or agreement, by or on the Authority of the Federal Ministry of Finance, Central Bank of Nigeria or any bank
licenced in Nigeria, as plainly and clearly stated in Section 7 thereof." Per GARBA, JCA.(Pp.64-79,Paras.F-B).

                                                     
                                                         
                                                       
ISSUE: NATIONAL OFFICE FOR TECHNOLOGY ACQUISITION AND PROMOTION ACT, 1979-Interpretation of the National Office for Technology Acquisition and Promotion Act, 1979 as regards whether the Act applies to agreement for export of technology from Nigeria to a foreign country
                                               
                                               
                                             

PRINCIPLE:
"The issue is one which asks a seemingly simple and straight forward question of whether the NOTAP Act, 1979 applies to agreement for export of technology from Nigeria to a foreign
country. This calls for the interpretation of the Act as a whole in order to find out the primary and secondary objectives the legislature intended to achieve and the purpose for which it was
enacted.
In the case of Cotecna Int. Ltd. v. Churchgate Nig. Ltd (2010) 18 NWLR (1225) 246, it was held by Supreme Court in lead judgement by Galadima, JSC, that: - "The fundamental principle of
interpretation of a statue is that every statute is to be expounded to its manifest and expressed intention. Where the words of a statute are clearly expressed, the Court is duty bound to
give the words their literal meaning." The apex Court, in Odutola Holdings Ltd. v. Ladejobi (2006) ALL FWLR (322) 1393, per Ejiwunmi, JSC; had said that: -
"It is undoubtedly good law that in order to interprete an Act and/or a Section of an Act, it is necessary to read the entire provisions together in order to discover the intention of the
legislator in enacting the said provisions of the Act or Section of it." The primary purpose and object of interpretation of statutes by a Court is therefore to discover or find out, from the
words used or employed therein, the real intention of the legislature in making the provisions of the statute and the purpose it sets out to achieve thereby. It is said that the intention of the
legislature in or for enacting a statute and the purpose for which the provisions are made, lie in and can best be discovered by or through the express words and language used in the
provisions of the statute, in the context in which they were employed or used. Words in a statute must be read and interpreted without presumptuous intention, but generally, constructed
or interpreted according to their ordinary and plain meanings which best convey the real intention of the legislature in enacting the statute. See, generally on duty of the Court in
interpretation of statute, Eze v. FRN (1987) 1 SCNJ, 76; Ojokolobo v. Alamu (1987) 7 SCNJ, 98; Ansaldo Nigeria Limited v. NPFMB (1991) 2 NWLR (174) 392; Idehen v. Idehen (1991) 6
NWLR (198) 382; Amadi v. NNPC (2000) FWLR (2009) 1521; Ajuebor v. A.G., Edo State (2001) FWLR (173) 11; Ndoma-Egba v. Chukwuogor (2004) ALLFWLR (203) 2043, 2062, (2004)
ALLFWLR (217) 735 @ 754-5. In the attempt to discover the intention of the legislature in enacting a statute, the law allows the Court to look at and take into account or consideration, the
preamble or recitals which contains the concise purpose behind the provisions of the statute as well as the marginal notes which may provide the purport of specific provisions thereof. See
Uwaifo v. A.G., Bendel State (1982) 7 SC, 24 @ 187; Adewunmi v. A.G., Ondo State (1996) 8 NWLR (464) 73. Proceeding in the premises of the established and recognized principles of law
on judicial interpretation of statutes, I would look at the NOTAP ACT, 1979 and its relevant provisions that call for interpretation under the issue.
The short heading or title of the Act, assigned to it in Section 23, which is also the last Section of the Act) is "National Office for Technology Acquisition and Promotion Act."
The title clearly shows that what the Act intended and in law did; in Section 1(1), was to establish the 2nd Respondent in this appeal for the express purpose for technology acquisition and
promotion in Nigeria and assigned the functions set out in Section 4 to it. The title, establishment and the functions, all expressly stated and provided for by the Act, show plainly, the
intention of the legislature in enacting the statute and the purpose for which it was enacted; technology acquisition and promotion in Nigeria. The provisions of Section 4 of the Act put the
position beyond argument by setting out the functions of the 2nd Respondent. They are as follows: -
"4. Functions of the National Office
Subject to Section 2(1) of this Act, the National Office shall carry out the following functions-
(a) The encouragement of a more efficient process for the identification and selection of foreign technology;
(b) The development of the negotiation skills of Nigerians with a view to ensuring the acquirement of the best contractual terms and conditions by Nigerian parties entering into any
contract or agreement for the transfer of foreign technology;
(c) The provision of a more efficient process for the adaptation of imported technology;
(d) The registration of all contracts or agreements having effect in Nigeria on the date of the coming into force of this Act, and of all contracts and agreements hereafter entered into, for the
transfer of foreign technology to Nigerian parties; and without prejudice to the generality of the foregoing, every such contract or agreement shall be so registrable if its purpose or intent is,
in the opinion of the National Office, wholly or partially for or in connection with any of the following purpose, that is to say-
(i) the use of trademark;
(ii) the right to use patented inventions;
(iii) the supply of technical expertise in the form of the preparation of plans, diagrams, operating manuals or any other form of technical assistance of any description whatsoever;
(iv) the supply of basic or detailed engineering;
(v) the supply of machinery and plant; and
(vi) the provision of operating staff or managerial assistance and the training of personnel; and
(e) The monitoring, on a continuous basis, of the execution of any contract or agreement registered pursuant to this Act."
These provisions are in very plain clear and unambiguous words and legislative language such that they do not require any interpretation, but ascription of their ordinary, grammatical and
natural meanings without any glosses or interpolations by a Court. See Kalu v. Odili (1992) 5 NWLR (240) 130 @ 193-4; Ibrahim v. Ojomo (2004) 1 SC (Pt. II) 136; CCCT & CS Limited v.
Ekpo (2008) 6 NWLR (1083) 362; Uwazurike v. A.G., Federation (2007) 2 SC, 169, (2007) 8 NWLR (1035) 1; Nigeria Army v. Dodo (2012) 18 NWLR (1331) 151; Buhari v. Yabo (2018) 9 NWLR
(1623) 197 @ 210; Abubakar v. Nasamu (2012) LPELR-7826 (SC).
By the provisions in paragraphs a, b and c of Section 4 above, the primary functions of the 2nd Respondent are to: -
(a) Encourage a more efficient process for identification and selection of foreign technology for the purpose of acquisition by importation in to Nigeria;
(b) continuous development of negotiating skills of Nigerians with a view to ensuring that they negotiate, get or acquire the best contractual terms and conditions in contracts or
agreements for the transfer of foreign technology into Nigeria; and
(c) provide a more efficient process or practice and procedure for the adoption of foreign technology imported in to Nigeria. These functions undoubtedly are and relate to all, for the
purpose of foreign technology to be or imported into Nigeria or importation of foreign technology into Nigeria, as expressly provided therein. Although the Act does not define the words
"foreign technology", there can be no dispute that they factually mean technology which is not Nigerian, not indigenous to Nigeria, not of Nigerian origin, not invented by Nigerians in
Nigeria, but technology invented outside the Nigerian state, invented in another country independent of Nigeria or of origin which is not Nigerian. The word "foreign" is defined at page 719
of the Black's Law Dictionary, 9th Edition, as: -
"1. of or relating to another country."
It is because the foreign technology stated in the paragraphs is one of origin in another country outside Nigeria that it is called in paragraph c; "imported technology".
Again, the Act does not define the words "imported technology" but it does not mean anything else but technology brought into Nigeria from another country outside Nigeria; from a foreign
country. "Importation" is defined at paragraph 824 of the Black's Law Dictionary, 9th Edition as:
"The bringing of goods into a country from another country."
From their plain, grammatical and natural meanings, the words used or employed by the legislature in paragraphs a, b and c of Section 4, the clear and unambiguous intention of the
Legislature is to provide the 2nd Respondent functions set out therein in respect of, connected with and related to the importation of foreign technology into Nigeria.
On its part, paragraph d. of Section 4 primarily, provides for the registration by the 2nd Respondent of all contracts or agreements entered into by parties for the transfer of foreign
technology to Nigerian parties, if such contracts or agreements are wholly or partially for or in connection with, any of the purposes set out in items (i) - (iv) thereunder.
Again plainly, paragraph d is in respect of, connected with or related to contracts or agreements entered into by parties for the transfer of foreign technology to Nigerian parties in Nigeria. It
is provided for contracts or agreements for the importation of foreign technology into Nigeria for purpose, wholly or partially, for or connected with any of the purposes enumerated.
Paragraph 'e' provides that the 2nd Respondent shall on a continuous basis; monitor the execution by the parties, of any contract or agreement registered pursuant the provisions in
paragraph 'd'.
Viewed wholistically, the title, establishment and functions assigned under Section 4 of the Act, leave no doubt that the purpose for which the 2nd Respondent was established, is to
regulate and monitor the execution of contracts or agreements entered into by parties, for the importation into Nigeria and acquisition of foreign technology in order to protect the best
interests of Nigeria and Nigerians in the transfer from outside the country. I have calmly perused the other Sections of the 23 Sections of the NOTAP Act,1979 in addition to Section 4 which I
have dealt with above, but did not see any one of them which talks about or even makes the slightest reference to the transfer of indigenous, local or Nigerian technology by Nigerians to
another country outside Nigeria or agreements or contracts entered into by Nigerian parties non-Nigerians or foreign parties outside Nigeria. Put shortly, none of the provisions of the Act
deals or even makes any reference, howsoever, to the exportation of Nigerian technology to another country outside Nigeria or a foreign country. Since there is no such provision in the Act,
the law is that a Court lacks the requisite judicial power and authority in the guise or pretext of adopting any of the established and accepted rules of interpretation of statutes to read into a
statute what is not there or read out what is clearly provided for therein, import or export words or provisions that are not in or out of the statute.
See Sobamowo v. Elemuren (2008) LPELR-5166 (CA); Ewunola v. CBN (2006) 14 NWLR (1000) 292; Owoniboys Technical Service Limited v. UBN Limited (2003) 15 NWLR (844) 545; Johnson
v. Mobil Product Nigeria United (2010) NWLR (1194) 462; NSITFMS v. Klifo Nigeria Limited (2010) 13 NWLR (1211) 307. The law is also trite that the duty of a Court is to interprete the
law as it is and not as it ought to be. Amaechi v. INEC (2008) 5 NWLR (1080) 227 @ 437; A.G. Federation v. A.G., Lagos State (2013) LPELR-2097 (SC); Ogunlaji v. A.G., Rivers State (1997) 6
NWLR (508) 209; Ojokolobo v. Alamu (supra). In addition, the specific mention of "foreign technology" "imported technology" in Section 4 paragraphs a, b, c and d. of the Act clearly
excludes "local, indigenous or Nigeria technology" and "exported technology" within the contemplation and purview of the provisions. The principle of law is "expressio unis exclusio
ulterius" in latin, which means that by rules of interpretation, the express mention of a particular thing, excludes that which is not so mentioned on the basis that what is not stated in a
statute, is deemed excluded. See Ayowe v. Obasanjo (2006) ALL FWLR (334) 1967 @ 1979; Ojukwu v. Obasanjo (2004) 12 NWLR (886) 169; Obi v. INEC (2007) 11 NWLR (1046) 436.
The above apart, since the words of Section 4 are very clear, plain and unambiguous and are to be ascribed their ordinary, grammatical and natural meanings, the interpretative duty and
function of a Court would not arise to be an avenue for the use or employment of any of the known principles of interpretation of statutes for the purposes of the application of the
provisions. As was stated by the apex Court in the case of Uwazurike v. A.G., Federation (supra); per Ogbuagu, JSC, : -
"It needs be stressed at this stage that where the language of a statute is plain, clear and unambiguous, the task of interpretation can hardly arise. It is therefore the duty of the Courts in
such a situation, to give the words their ordinary, natural and grammatical construction ---". In the later case of Abubakar v. Nasamu (2012) LPELR-7826 (SC), Onnoghen, JSC, (now CJN) put
the position in the lead judgement, as follows: - "Therefore where words used in the constitutional provisions are clear and unambiguous they must be given their ordinary plain meaning so
as to avoid reading into the provisions meanings not intended by the law makers. The above clearly means that where the words used in the provision are clear and unambiguous, the
question of interpretation becomes a non-issue as there is nothing to be interpreted or constructed as the Court is duty bound to assign the words used in the provisions their ordinary plain
meanings."
In the absence of the need for and duty of the lower Court to interprete the plain, clear and unambiguous words of Section 4 of the Act, the lower Court was in error to have imported into
the words what they do not contain or what is clearly not mentioned, stated or even envisaged and contemplated by their ordinary, grammatical and natural meanings. If the legislature had
intended to include the export or exportation of local, indigenous or Nigerian technology from Nigeria to a foreign country outside of Nigeria, in the provisions of Section 4 or any other
Sections of the NOTAP Act, it would have specifically and expressly mentioned or stated so in the provisions of the Act. The fact that no such mention was made or stated in the provisions
and the entire provisions of the Act leaves no doubt that it was not the intention of the legislature to have included the application of the provisions of the Section or the Act to the export,
exportation or transfer of Nigerian indigenous technology from Nigeria to a foreign country outside Nigeria or to any agreements or contracts in respect of such transactions by Nigerians
and other parties. In the result, for the aforenamed reasons, the Lower Court was not right and it erred in law to have held that the provisions of Section 4(d) or any other provisions of the
NOTAP Act, 1979, apply to agreements or contracts entered into by Nigerians and other parties for the export, exportation or transfer of Nigerian indigenous technology from Nigeria to a
foreign country outside Nigeria." Per GARBA, JCA.(Pp.34-48,Paras.F-B).

Monday, 6 April 2020

The Legal Implications of Covid-19 Pandemic on Existing Contractual Obligations: Force Majeure and Frustration of Contract


By Larry C. Nkwor Esq.

Introduction
The world is currently experiencing a pandemic of an infectious disease called coronavirus, (“Covid-19”).  Covid 19 is said to have originated from a seafood market in the city of Wuhan in China in late December of 2019. Covid 19 is at the center of every discussion today. Its rapid spread has had devastating effects on world economies, tax obligations and contractual obligations. The proliferation of the virus has led to the frustration of domestic and international contractual obligations. The virus has forced many cities around the globe to a total lockdown. As at Monday, 6th of April, 2020 there were about 1,329,825 confirmed cases (Covid 19) with over 73,839 deaths worldwide.[1]
This article analyses the legal implications of the Covid-19 Pandemic on existing contractual obligations and the applicability of the force Majeure clause and the doctrine of frustration of contract.

Force Majeure and the Doctrine of Frustration of Contract
"Generally, a force majeure event is an event that is beyond the affected party’s reasonable control, and could not have been foreseen, or, if the event could have been foreseen, is an event that was unavoidable."  say Alexandro Padrés and Alyssa Cowley.[2]
 Force majeure is an event that could not have been contemplated at the time parties entered into a contract. A force majeure clause is a contractual term that relieves parties from their contractual obligations when an event outside their control occurs and which makes performance of their contractual obligations impossible. In contrast with the definition of Alexandro Padrés and Alyssa Cowley, the event must both be unforeseeable and unavoidable.
"Force majeure provisions will be construed strictly and in the event of any ambiguity the contra proferentem rule will apply. Contra proferentem literally means "against the party putting forward". In this context, it means that the clause will be interpreted against the interests of the party that drafted it. The parties may contract out of this rule."[3]
It is the doctrine that, in interpreting documents, ambiguities are to be construed unfavourably against the maker. Flowing from the above, where there is any equivocation of the force majeure clause inserted in a contract, the clause will be construed strictly against the party relying on it.

Frustration of a contract is the legal termination of a contract due to unforeseen circumstances that prevent achievement of its objectives, render its performance illegal, or make it practically impossible to execute. It could be caused by reasons such as an accident, change in law, fire, sickness of one of the parties, third-party interference, epidemic etc.[4] Frustration of a contract excuses non-performance and automatically discharges the contract. However, frustration is not acceptable as an excuse where the circumstance was foreseeable, and is not applicable to certain types of contracts such as insurance policies.[5]
In Common law jurisdictions, such as Nigeria, force majeure is a creature of contract and it is not a general legal concept. For a party to rely on force majeure, the contract executed must contain a force majeure clause. In the absence of a force majeure clause, parties to a contract are left to the mercy of the common law contract doctrine of frustration.[6] It is therefore advisable for parties to incorporate into their contract a carefully negotiated force majeure clause to specifically address any crisis that might occur such as the Covid-19 pandemic.
Applicability of Force Majeure and Frustration of Contract
Every force majeure clause ought to be considered and construed separately in light of the contract executed and existing circumstances.  For force majeure to discharge contractual liabilities in the aftermath of the Covid-19 crisis, the first thing to consider is whether the clause contains a provision that covers a crisis like Covid-19.  It might be tricky and a bit technical if the clause is a general or broad one, which fails to list any specific events with particularity. Nevertheless, where specific events are mentioned, and a pandemic or epidemic is not listed amongst the specific events, a party may not be able to rely on force majeure to discharge contractual liabilities on account of Covid-19. In this instance, the Expressio Unius Est Exclusio Alterius rule will apply. This simply means, to express one thing is to exclude another. Rodara, Justice defined Latin maxim Expressio Unius Est Exclusio Alterius as follows:

“…... a maxim of interpretation meaning that the expression of one thing is the exclusion of the other. When certain persons or things are specified in a Law, Contract or Will, an intention to exclude all others from its operation may be inferred. In this case, the reference to the assignment to a financial institution excludes assignment to any other entity.”

The term epidemic or pandemic covers Covid-19. Thus, where a pandemic or epidemic is not captured in the force majeure clause, a party cannot successfully rely on force majeure on account of Covid-19 pandemic.

In order to make a successful case for force majeure, the party relying on it has to establish some elements. The elements are as follows:
1) External to the Parties; the event or situation was not caused by the actions or inactions of the party seeking to rely on force majeure.
2) Irresistibility; the impediment nor its consequences could not have been avoided or prevented by the non-performing party.
3) Unforeseeability; the event could not have reasonably been foreseen by the parties at the time of conclusion of the contract and was beyond the party’s control.
4) Impossibility; the event must have made performance an impossibility and not merely more difficult or impracticable.

The elements are conjunctive and the absence of any, destroys a case built on force majeure. The elements are dicey and are not as straight forward as they appear.
On the question of External to the Parties, Covid-19 and its consequences seem to be external. It couldn’t have been caused by a party’s actions or inactions. Covid-19 appears to be an Act of God. However, some persons in certain quarters have argued that COVID-19 is man-made. Even If this theory is true, it doesn’t change the fact that it is external to the parties unless it is proven otherwise that the party relying on it caused the virus and its scourge, which is very unlikely.
On Irresistibility, it appears that the occurrence of Covid-19 and its scourge could not have been prevented by a party that may seek to rely on force majeure. As earlier mentioned, Covid-19 appears to be an Act of God.
Considering Unforeseeability, while it may appear that Covid-19 and its scourge couldn’t have reasonably been foreseen or contemplated by parties, conversely, one might be led to argue that it was foreseeable, having regards to the timing of the contract. In the Australian unreported case of Asia Pacific Resources Pty Ltd. v Forestry Tasmania (No. 2) (1998) Aust Contract R 90 – 095, it was noted that
as a general rule, a party cannot invoke a force majeure clause due to ”circumstances beyond the control of the parties” which, to the knowledge of the party seeking to rely upon the clause, were in existence at the time of the contract.”
 Caution must be taken as to the time of the conclusion of the contract. Furthermore, Kerr J in Trade and Transport Inc v Iion Kaiun Kaisha Ltd, The Angelia [1973] 2 All ER 144 stated that:
 Ordinarily a party would be debarred from relying upon a pre-existing causes as an excepted peril if:
(i) The pre-existing cause was inevitably doomed to operate on the contract
(ii) The existence of facts that show that the excepted cause is bound to operate is known to the parties at the time of contract, or at least to the party who seeks to rely on the exception.
His Honour then added as an alternative to (ii);
(iii) If the existence of such facts should reasonably have been known to the party seeking to rely upon them and would have been expected by the other party to the contract to be so known.”
The foregoing infers that, causes beyond the control of the parties that were known or should reasonably have been known at the date of contracting cannot excuse performance. It is noteworthy that adequate care must be taken by the Courts in the interpretation of this ingredient.
Lastly, on the question of Impossibility, the party seeking to rely on force majeure must satisfactorily prove that the Covid-19 pandemic rendered performance of the contract impossible and not merely impracticable. It is not enough that the contract became more difficult. This element is a tricky one, as it is questionable whether Covid-19 is capable of rendering a contract an impossibility and whether are there contracts that COVID-19 might not be able to affect performance of. Nonetheless, given the lockdown of cities and shutdown of various operations and entities around the globe, it is likely that a Court will find that Covid-19 is a force majeure event. This is however subject to the facts and intricacies of each case.
Where the contract doesn’t contain a force majeure clause or where the clause doesn’t capture a pandemic/epidemic amongst the listed events, the only viable option would be to rely on the doctrine of frustration of contract. Just like, force majeure, the party relying on frustration has to establish that Covid-19 and its scourge could not have reasonably been foreseen at the time of the contract and the performance of the contract must have become impossible, and not merely impracticable. The party must show that the contract was frustrated and it would be unjust for the party to be held liable in light of the existing circumstances.[7]
Conclusion
The complexities and circumstances of each contract and case will determine whether or not a successful case can be made on force majeure or frustration of contract.





[1]  Worldometer, "Covid-19 Coronavirus Pandemic", https://www.worldometers.info/coronavirus/ (Accessed 6th April 2020)


[2] Partner and Associate respectively, in the Project  Development & Finance Practice from Shearman and Sterling an email, https://www.fastcompany.com/90482640/what-is-force-majeure-the-legal-term-youll-be-hearing-a-lot-during-the-coronavirus-crisis (Accessed 3rd April 2020).


[3] Damian McNair, "Force Majeure Clauses", Asia Pacific Projects Update, DLA Piper.


[4] Bussiness Dictionary, http://www.businessdictionary.com/definition/automatically.html (Accessed 3rd April 2020)


[5] Ibid.


[6] Janice M. Ryan, “Understanding Force Majure Cluases”, https:www.venable.com/insights/publications/2011/02/understanding-force-majure-clauses  (Accessed 3rd April 2020).


[7] Eris S. Block, "The Impact of COVID-19 on Contractual Obligations: Force Majeure and Frustration", https://www.mccarthy.ca/en/insights/articles/impact-covid-19-contractual-obligations-force-majeure-and-frustration Accessed 4th April 2020)