Thursday, 7th December 2023

President is guilty as charged – Part 2

By Ebun-Olu Adegboruwa
28 February 2023   |   3:40 am
The President not only reviewed the order of the Supreme Court but he actually overruled it, by setting a deadline of April 10, 2023 for the validity of the N200 old notes and declaring the N500 and N1000 notes as expired.

The President not only reviewed the order of the Supreme Court but he actually overruled it, by setting a deadline of April 10, 2023 for the validity of the N200 old notes and declaring the N500 and N1000 notes as expired. No arm of government has the powers to do that which the President has done in his broadcast. And it portends very grave danger to our democratic experience, where such a bad precedent is set that the executive arm of government is at liberty to undermine the judiciary at will.

The other point is that the President took an oath of office to defend and uphold the Constitution, from which he derives his powers as the head of the executive arm of government. That same Constitution enjoins the President to obey and give effect to all orders and decisions of the Supreme Court. And what is the issue at stake really? Nigerians were misled by the President and the Central Bank of Nigeria that if they surrendered their old notes to the banks, they will have access to the new notes in exchange, which has not been the case. The CBN cleverly deceived us into giving up our old notes when it had no plans to print enough new notes to go round.

This has now led to hardship for the people, wherein citizens are forced to sleep at ATM centres and stay in the banks for hours, just to collect their money. It has also affected business transactions and it has impacted upon the economy very negatively, where some workers now stay at home because they cannot access money to transport them from one location to another.

We have experienced protests against the policy of the federal government, which has led to the death of many. Surely this cannot be the intention of the President. Section 14 (2) (b) of the Constitution prescribes that the primary purpose of government should be the security and welfare of the people. Thus, any policy of the government that leads to suffering, death, hardship and poverty, cannot be in the interest of the welfare of the people. Consequently, the President bears the onus to review the policy in such a way that it will benefit the people, ultimately.

Furthermore, the President must inspire confidence in the institutions of democracy, in particular the judiciary. Once we get to the stage when citizens are free to decide which portion of the order of any court they will obey, then we are approaching the dangerous bend of a breakdown of law and order. If left unchecked, what the President has done is nothing less than executive rascality and brazen disregard for and contempt of the Supreme Court.

The President should reverse his directive and ask the CBN and all financial institutions to obey the subsisting order of the Supreme Court to continue to accept, use and transact business with the old N200, N500 and N1000 notes. It is gratifying that the case came up before the Supreme Court on February 22, 2023 when it was adjourned to March 3, 2023, when their Lordships will have the golden opportunity to assert their constitutional authority by reversing the directives contained in the broadcast of the President. Anything short of this will rob that Court of its legitimacy and authority. It will also render all other courts subordinate to the Supreme Court as mere talk shops whose orders and decisions will no longer be taken seriously by the citizens. Above all, it will leave the common man helpless and vulnerable.

The place of arbitration in agreements
(Being the concluding part of Ebun-Olu Adegboruwa’s series on ‘Agreements in property acquisition and development’, last published in this column on February 14, 2023)
The term ‘arbitration’ has been defined by the authors of Black’s Law Dictionary, Eight 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.

Adegboruwa is a Senior Advocate of Nigeria (SAN)