May 9, 2020
EXECUTION OF CONTRACTS IN THE FACE OF MOVEMENT RESTRICTIONS AND PHYSICAL DISTANCING: THE POSITION OF NIGERIAN LAW
By Sylva Ogwemoh, SAN, FCIArb (Senior Partner) and Akorede Folarin (Associate).
1.0 Introduction
It is no longer news that the current COVID-19 pandemic ravaging the world has created a “new normal” in doing business in Nigeria and indeed the whole world, following the enactment of new laws and executive orders for the enforcement of movement restriction, lockdown and social/physical distancing in order to curb the continued spread of the dreaded pandemic. In light of the current realities in the world and in Nigeria, and to ensure continuity of commercial activities, business owners, private and public enterprises and government agencies have resorted to the use of technology in conducting business meetings and even in the execution of contractual documents.
However, the question that agitates the minds of all and sundry is whether there exists adequate protection under Nigerian law for contracts and documents, and other businesses negotiated and executed with the aid of modern technology and/or electronically without the parties meeting physically to negotiate and ultimately execute those contracts. This article will attempt to discuss the various issues that have been thrown up by what is now termed the “new normal” vis-à-vis the current position of Nigerian law.
2.0 Formation/Formalities of an Electronic Contract
Generally, under Nigerian law, a contract may be created electronically by online communications and electronic data interchange, and the electronic record of that transaction satisfies any legal requirement that a contract be “in writing.” As the Court succinctly puts it in U.B.N. Plc. v. Ogunsiji; “It is elementary law that a contract may be demonstrated by the conduct of the parties as well as by their words and deeds or by the documents that have passed between them.”
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