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An Appraisal On The Conflict Of The Doctrine Of Locus Standi In Nigeria

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Locus Standi is a threshold issue that has direct bearing on the right of access to the court, the approach to the application
of locus standi by the apex court need to shift from that in the Adesanya v President, Federal Republic of
Nigeria
to the approach that has been avowedly acknowledged to be restrictive by the Justices of the apex court in
Fawehinmi v Akilu
We call upon the Supreme Court to clarify its approach by either reconciling its
decisions in the two cases or adopting the liberalized approach in the latter case and overrule the former. In the
same vein, the apex court must disentangle section 6(6)(b) of the Constitution from locus standi and expunge justiciability out of
locus standi.
The sufficient interest test need to be upgraded to meet the demands of constitutional and administrative law,
especially in public interest litigation if locus standi is not to become an instrument of keeping governmental
maladministration and corruption out of public scrutiny and oversight.
On the whole the following recommendations are proffered to enhance the clarity of the courts approach in the
application of locus standi in Nigeria:

  1. The Supreme Court must resolve the seeming conflicting approach adopted by it in the two cases of
    Adesanya v President, Federal Republic of Nigeria and Fawehinmi v Akilu, and if need be overrule its
    approach in the former;
  2. The Supreme Court need to clarify the underlying principle of locus standi in relation to section
    6(6)(b)
    and justiciability;
  3. Clearly there is the urgent need to clarify and liberalize the locus standi in public litigation/ actio popularis matters to achieve the ends of administrative law to achieve rule of law, accountability and
    development;
  4. The sufficient interest test need to be upgraded to meet the demands of constitutional and
    administrative law.

About the Author

✍✍✍
A.K Abubakar is a 200level student from the Faculty of Law,Ambrose Alli University, EKPOMA.

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Articles and Journals

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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