By Ebun-Olu Adegboruwa SAN

The place of arbitration in agreements

The term ‘arbitration’ has been defined by the authors of Black’s Law Dictionary, Eighth Edition as a method of dispute resolution involving one or more neutral third parties who are agreed to by the disputing parties, and whose decision is binding. An arbitration agreement is an agreement by which two or more parties agree that present or future disputes shall be resolved by arbitration. An arbitration clause is often included as part of the terms of a broader contract.

When parties, by their contractual agreement, provide for a resort to arbitration first and only after failure of agreement on arbitral award, can a party pursue a cause of action in court without first exhausting option of arbitration? This has greatly agitated legal minds, including the courts. In this regard, time starts running, for purpose of limitation, from the date of the award. This is not to say that the parties by their agreement could oust the Court’s jurisdiction; far from it. It only postpones resort to litigation before the court in order to exhaust option for arbitration. After all, it is the mutual agreement of the parties to first explore the option of arbitration. In these types of cases, the clause to stay access to the court commonly referred to as “Scott v. Avery Clause” defers the application of statute of limitation to the date of arbitral award. In the absence of such a clause the time starts to run, for the purpose of limitation statute, from the date of the breach of contract. This is based on common sense of respecting the intention of the parties as contained in the contract signed by them. See the dictum of SALIHU MODIBBO ALFA BELGORE, JSC in CITY ENGINEERING (NIG) LTD v. FHA (1997) LPELR-868(SC) (pp. 41 – 42 Paras F – B).

It must be mentioned however, that the incorporation of an arbitration clause in an agreement does not Ipso facto mean that the suit filed consequent to the terms of the agreement must be referred to arbitration in all cases. The clause simply put, is meant to provide for a platform for the parties to settle any dispute that may arise from the terms of the agreement, if they so wish. See KWARA STATE GOVT. & ORS. V. GUTHRIE (NIG) LTD (2022) LPELR – 57678 (SC).

As diverse as real estate transactions may be, so are the legal instruments for securing or consummating such transactions. Real estate transactions could be evidenced by contract of sale, deed of assignment or lease or sublease or tenancy agreement, or other suitable deeds or agreements, upon which a real estate lawyer will render useful legal advice after taking into consideration the peculiarities of the transaction and the governing law.

Whatever agreement a lawyer or party adopts for a real estate transaction, certain clauses are essential not only to protect the investment and avoid losses in case of defect in title or other defects that are prevalent in real estate transactions, but also to protect the parties from liabilities that may arise from improper consideration of all the relevant issues. Whatever the parties insert in their agreement will be construed when any dispute arises and nobody will be allowed to import into the agreement what is not contained in it. Some of the essential clauses are: provisions relating to capacity of the parties, consideration for the real property, provision for service charge, Land Use Charge, taxes and dues, indemnity clause, specific covenants to set out in real estate transaction agreements. The implication of this is that where the parties fail to provide such express covenants, the law shall imply same into the agreement.

The naira redesign policy

Speaking strictly legally, all policies and programmes of government should be tailored towards the provisions of section 14 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 which state that the security and welfare of the people shall be the primary purpose of government. In other words, all plans and actions of government at any point in time should be targeted towards achieving the common good. In this regard, once the programmes and policies of any administration lead to hardship, suffering, sorrows, calamity and general disenchantment, then that administration is not fulfilling the purpose of pursuing the security and welfare of the people that it was elected to serve. Bringing this home with the redesign of the Naira, let me speak from my own personal experiences.

I had to travel outside Lagos on a professional engagement. The starting point was the transport hailing service. They always prefer cash payment. My carrier pleaded with me that he needed the money to be able to buy fuel to keep his car on the road. On getting to my destination eventually, I tried to feel the pulse of the common people by patronizing a public restaurant. I was told point blank that the management of the restaurant has outlawed online transfers and their POS was out of service too. To be able to eat in that restaurant, you need cash. You cannot blame the management really. Imagine a situation whereby the customer has been served good food only to realize much later that the sum of money transferred was not delivered due to network issues from the banks. I tried another restaurant, which I considered a bit more established. Having consumed what I considered a good meal, I became worried when the POS declined my payment request through my ATM card. I then resorted to online transfer which was successful after after the second attempt but I was instantly debited by my bank twice. I actually was not so much bothered about my loss so long as the company got paid. It was not until the following day when I arrived Lagos after my assignment that I got two credit alerts from my bank indicating that my transaction had been reversed and I was credited, twice. Good enough I had the contact of the restaurant and so I was able to reach out to them and we eventually sorted things out.

At another time I needed to buy some medications from a well-established pharmacy. The POS declined my transaction but my bank debited me nonetheless. The attendant would have none of it, since the boss could not confirm my payment. I rushed back to scramble for some cash to pay for the items already selected for me. I later confirmed from my bank that the transfer to the pharmacy was successful but it took three days for the pharmacy to confirm it and I have not been able to go back there to collect my money as I did not feel safe sending my bank details for such refund. It was also end of the long month of January, when members of staff eagerly await their monthly salaries after all the December expenses. I was told by our bank that the network could not process our request, for about a week. Payment through internet banking was also not so successful. In some cases, the firm’s bank account was debited but some members of staff did not receive value for the online transfer and this went on for days. It was a difficult time for us.

No matter the rationale for the cashless policy by the Central Bank of Nigeria or indeed the federal government, once the end result is agony, suffering and even death in certain cases, it should be reconsidered. The proper implementation envisaged under section 20 of the Central Bank Act is for the old and new notes to run concurrently until such a time that there will be a seamless alignment. To mop up the old notes in the absence of the new notes is disaster waiting to happen. The cashless policy should be supported with requisite infrastructure to make it work. Whilst it is crystal clear that it will take the banks months to fully grapple with the policy, the end result is that customers would have to bear the hardship for that period, which is totally unfair unacceptable and unwarranted. Banking transaction is more of a contract between the bank and the customer and there can be no justification for the breach of that contract whereby the bank is unable to honour the request of the customer for the use and enjoyment of his/her money already deposited with the bank.

The proper thing for the federal government to do in this instance is to allow the old notes to continue to circulate whilst the banks develop and upgrade their infrastructure to cope with the deluge of online transactions between customers. At the same time, the CBN would have enough time to print the new notes for mass distribution to the banks and ultimately to their customers. By the time the schools are closed down for the general elections, many families will have serious challenges surviving without cash. This surely cannot be the design that the federal government envisaged. In so far as the judiciary has intervened to secure some temporary reprieve for the people, the proper thing is for the federal government to meet with the governors of the states and other stakeholders for the purpose of working out an implementation strategy that will accommodate the yearnings of the masses of our people, especially small-scale business owners, those in the rural areas with no access to any bank and indeed the generality of our people. Cases of deaths resulting from spontaneous protests against the policy were clearly avoidable had there been proper consultations in the formulation and implementation of the cashless policy. Government policies should be implemented for the benefit of the people.

Concluded