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A Careful Perusal on the Applicability of Force Majeure Clause in Contractual Agreement Vis-a-Vis Covid-19

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Force Majeure clauses are contractual clauses which alter parties obligations and/or liabilities under a contract when an extraordinary event or circumstances beyond their control prevents one or all of them from fulfilling those obligations.
The Court of Appeal in GLOBE MILLS SPINNING V. RELIANCE TEXTILE (2017)AELR 40623 defined Force Majeure as unpredictable natural events, circumstances beyond the control of the party concerned and resulting in or causing a failure or delay by or hindrace to or interference with such party in the fulfillment wholly or in part of any of it’s obligation under this agreement which circumstance cannot be prevented or overcome by the exercise of due diligence of the party concerned.
Depending on the drafting of Force Majeure clauses,they may have a variety of consequences,including excusing the affected party from performing the contract in whole or in part,excusing that party from delay in performance,entitling them to suspend or claim an extension of time for performance or giving that party a right to terminate.
In English and Scots Law,Force Majeure is a creature of contract and not of the general common law. It therefore differs from some other legal systems where force Majeure is a general legal concept and where courts may declare that a particular event such as a pandemic like Covid-19 is a force Majeure. As a result, whether a particular Clause relieves a party of contractual liability will under English and Scots Law depend on the precise wording used in the clause,the allocation of risk between the parties provided for by the contract as a whole the circumstances in which the parties entered into the contract,and the situation that has arisen. It is for the party seeking to rely on a force Majeure clause in order to excuse it’s non performance or late performance is to satisfy a court or a trubunal that this is the effect of the clause.

IS COVID-19 A FORCE MAJEURE EVENT?
Having gone through the concept of Force Majeure,the question that comes to mind is whether the deadly pandemic ‘Covid-19’ is a Force Majeure event thereby invoking the Force Majeure clauses to alter the obligations of parties to a contract?
As the impact of COVID-19 builds by the day,supply chains are being significantly disrupted and businesses rights and obligations under contract are coming into sharp focus.
Force Majeure clauses will generally adopt one of the following approaches to define the type of event which may,depending on the circumstances of each case.
1)Listing specific events
These may include events such as war,terrorism, earthquakes,hurricanes,acts of government,plagues or epidemics,Where the term ‘epidemic or pandemic’ has been used,that will clearly cover COVID-19.
Moreso,an act of government will have occurred where a government body has imposed travel restrictions,quaranties,or trade embargkin,or has closed the buildings or borders, however the position is less clear where the government make recommendations rather than makes orders using Legal powers.
Where no relevant event is specifically mentioned,it is a question of interpretation of the clause whether the parties intended such an event to be covered. Thus involves considering whether the list of events included was intended to be exhaustive or non exhaustive.
Contracts might for example refer to events or circumstances “beyond the parties reasonable control “. Determining whether this covers issues arising from COVID-19 is a question of interpretation and fact specific. However,parties who intended to rely on Force Majeure clause as a result if COVID-19 will need to show that their non performance or late performance was truly outside their control and could not have been prevented or mitigated.
Given the almost unprecedented nature of the COVID-19 outbreak and/or actions of government around the world in response,it’s likely that COVID-19 would constitute a force Majeure event under many force Majeure clauses. However just because a Force Majeure event has occurred does not necessarily mean that all parties will be protected from liability for failing or delay in performance.
Even if the COVID-19 pandemic or a related consequences such as government action is a type of event coverrd by the Force Majeure clause in question,the next question to consider is the impact on the affected party’s ability to perform it’s contracted obligations. It is common for force Majeure clauses to specify the impact that the event or circumstances in Question must have in order for the clause to be triggered.
To that effect,a party seeking to rely on a Force Majeure clause must also show that:
1)The force Majeure event was the cause of the inablilty to perform or delayed performance
2)Their non performance was due to circumstances beyond their control
3)There was no reasonable steps that they could have taken to avoid or mitigate the event or it’s consequences.
As a result, where a party anticipates falling into difficulty with meeting it’s obligations,for example due to staff shortages through self isolation in accordance with government guidelines or issues with the supply of materials. It is crucial to explore whether alternatives such as alternatives sources of labour or materials are reasonably unavailable including at higher cost,unless this involves breaching existing contracts,Also the usual remedy if a force Majeure clause is invoked is for one or more of the parties to be excused from it’s obligations and/or liability under the contract.

WHAT IF THERE IS NO FORCE MAJEURE CLAUSE?
It is general law that if there’s no force Majeure clause,and affected party will have to look to other provisions of the contract for potential routes out of it’s difficulties. If the contract does not provide any such routes,it may in certain circumstances be possible to rely on the doctrine of frustration of contract.
However it is very difficult to show that a contract has been frustarted. Frustration requires that an unforeseen subsequent event outside the control of the parties has made the contract impossible to perform,or has transformed performance of the obligations under the contract into something so radically different from that which the parties intended that it would be unfair to hold parties on that obligations. In addition ,it is questionable whether an epidemuc or even a pandemic would be considered to be unforeseeanble given previous recent epidemics and warnings that further epidemics or pandemics are likely to occur. However it might be possible to argue that the extent of the global government enforced lockdown was unforeseeanble.
Frustration may also be commercially undesirable in some circumstances, since it’s effect,regardless of the wishes of the parties’ obligations under the contract to an end immediately.

CONCLUSION
Relying on the foregoing,it is the writer’s view that COVID-19 I a force Majeure event and the force Majeure clause can be invoked but intending parties relying on the clause will have to prove beyond balance of probabilities,following provisions of the law that their inability to perform the contract is as a result of the deadly pandemic ‘Covid-19’.

ABOUT THE WRITER
Anthony Kabiru Abubakar is a 200level student of the Faculty of Law,Ambrose Alli University,EKPOMA
Gmail:
anthonykabiru52@gmail.com
Phone num:
08133949687
Facebook ID:
Anthony Lex Luther
IG Handle:
official_anthonyabubakar
LinkedIn:
Anthony Abubakar

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Rape Myths And Victims; Reforming Rape Laws In Nigeria

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Rape is denounceable and condemnable. It is inhumane and ruthless. It is an unjustifiable act that needs to be expunged. Simply put, rape is nonconsensual sexual intercourse.
Under the Criminal Code of Nigeria; Rape is defined as having unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false act or in case of a married woman, be personating her husband. The offence is punishable by imprisonment for life with or without caning (see sec 357 and 358 of the Criminal Code Cap ‘38’ Laws of the Federation, 2004). The Criminal Code is applicable in the Southern Part of Nigeria, it is restrictive in its interpretation. Its only made provisions for female rape victims segregating male.

Under the Penal Code (applicable in Northern part of Nigeria) Rape is when a man has sexual intercourse with a woman against her will, without her consent or with incorrectly obtained consent; when the consent is obtained by putting her in fear or death or of hurt. It goes further to say even when the girl is a wife of the person, such person will be guilty of rape if she has not attained puberty (see sec 282 of the Penal Code). This code is restrictive just like the Criminal Code. It only recognizes female rape victims excluding male victims.

Under the Violence Against Persons Prohibition Act (sec1) states “a person commits the offence of rape if he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his/her body or anything else without consent, or the consent is obtained by force”. The VAPP Act is a federal law, a progressive piece of legislation. It is expansive in its interpretation, as it makes provisions for both male and female sexual offenders and victims. Unfortunately, this Act is only applicable in FCT, Abuja and by virtue of its domestication it is also applicable in Lagos, Anambra, Ebonyi and Oyo States respectively.

In the case of Popoola v. State(2013) 17 NWLR (pt1382)p. 100 per Muntaka-Coomasie J.S.C at page 120 paras G-H on rape said “the offence appeared to be heinous and heartless. The sentence meted out by the trial court amounts to abdicating its role as a judicial officer. I condemn such type of sentence. The sentence is unnecessary lenient and loose”. In other words rape is a despicable act, the severity of the offence cannot be over emphasized. It is a serious crime that needs to be backed up with grievous sanctions.

Victims of rape are made to suffer unquantifiable anguish, post traumatic stress disorder, eating disorder, emotional disorder, dissociation from reality, depersonalization, physical violence, sexually transmitted diseases, unwanted pregnancy amongst other ills. Rape has been categorized into various categories namely acquaintance rape, command rape, fraud rape, date rape, incestuous rape, underage rape, statutory rape, gang rape and marital rape.

Modern realities and cases have shown us that the legal and statutory definition of rape is now ineffective and inadequate because it does not define rape in its entirety. The statutory definition of rape gave us the understanding that rape can only be committed against a female, that is its definition is gendered based. I am of the opinion that rape could happen to anyone, no matter your age, sexual orientation, or gender identity. In recent times, men and boys can also be raped, but they are faced with some challenges because of social attitudes and stereotypes about men and masculinity. Some persons sees male rape as ridiculous and impossible because of the belief that a man can never be vulnerable. The assumption that only female can be raped is based on stereotypes and wrong belief. Male could be raped by females or by male. In 1978, it was reported that a certain lady named Joyce McKinney in the case of “Mormon sex in chains” scandal was convicted for chaining a man and forcing him to have sexual intercourse with her. That is to show that a male can also be a rape victim. In Africa, no man is allowed to be vulnerable. As a man, you have to be masculine and strong. You should never break down or cry. He is meant to be a leader and provides for the whole family. When he fails to reach that set standard, society perceives that there is something wrong. This stereotypical belief has caused much harm and part of the harm is that male are not believed to be rape victims because of their supposed invulnerability. We much understand that victims of rape is not only limited to female it also involves male.

Conclusively, rape is an act that affects its victims psychologically, physically and emotionally. Our laws are said to be progressive, dynamic and never static. Therefore, it should review its statutory provisions for rape and incorporate modern changes in society including provisions for male rape victims . Rape is a serious crime against the dignity and sexual rights of an individual, it can happen to anyone including male and females. A more inclusive and all encompassing definition of rape should be included in our laws and serve as parameters to determine acts which can be classified as rape.
Statutory laws on rape should be reformed and reviewed in other to curb the menace of rape.

Joy Johnny
200l Constituency
Class of Legal Erudites
Faculty of Law, Ambrose Alli University, Ekpoma.

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