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)