Emerging Issues And Practicable Legal Approach In The Face Of Covid-19: A Demand To Expand The Technological Framework In Nigeria By Cynthia Chukwufumnanya Izu Esq.

INTRODUCTION

It is no longer news that the entire globe is faced with a global pandemic known as COVID-19. What has left the world aghast is the rate at which thevirus spreads across the globe, number of persons being infected daily and the manner in which the virus canbe transmitted from one person to another. The rapid outbreak of coronavirus presents an alarming health crisis, legal issue, business threat and a crippling effecton the world economy. Coronavirus is a virus that is found in animals and humans and spreads from person to person.Most people infected with the virus will experience mild to moderate respiratory illnesssuch as coughing, difficulty in breathing,sore throat and fever.COVID-19, Middle East Respiratory Syndrome (MERS-COV) and Severe Acute Respiratory System (SARS) are variants of coronavirus.  Coronavirus was not considered to be highly pathogenic to humans until the outbreak of Severe Acute Respiratory Syndrome (SARS) in 2002 and 2003 in Guagdong province, China.However, COVID – 19 as one of the variants of coronavirus was first notified to the World Health Organisation (WHO) in December 2019. Since then, the WHO has declared ‘COVID-19’ a public health threat of international concern. Since the notification, the virus has spread within China to other countries including Nigeria, Italy, Ghana, Germany, France, Russia and so on. As a result of the spread of this virus, schools have been shut down, public places noticeably empty andthe health of individuals contaminated.  This ugly mishap has threatened the well-being and activities of citizens in various sectors within the educational, financial, health and legal horizon.

Convincingly, this phase will eventually fade and pass away as in the past some viruses such as Ebola, bird flu and Severe Acute Respiratory Syndrome(SARS)have threatened human existence.There is need to prepare for the aftermath of COVID-19 as no one knows ‘what comes next’ and ‘there might be a likelihood or possibility of another devastating outbreak surfacing again’ especially in the face of various environmental challenges arisingevery day.  In the past days, citizens of various countries have been subjected to self quarantine, self-distancing and self-isolation. The crippling effect of the virus is gradually taking a toll on production and citizens’ activities. The fear of the virus andthe wake of adopting measures to curtail the spread has led government around the world to place restrictions on citizens’ movement. This restriction in various ways have affected the supply chains of big companies, oil has slumped to its lowest price, travel agencies and aviation sector have been challenged with airlines cutting their flights and tourists cancelling their flights.

With the spread of this pandemic, businesses have been negatively impacted due to the government lockdown hence many companies, organizations have been auctioning work from home. From the legal standpoint, law firms are amongst the much challenged organizations in the world today. Law firms are at risk as they are not immune to the economic effect of the pandemic. Law firms basically carry out legal practice through litigation, commercial law practice, Alternative Dispute Resolutions, maritime practice and so on. The ability of law firms to even carry out their work in this pandemic is greatly threatened and work hindered.  Memos and circulars have been released from the Judiciary demanding for a lockdown in order to ensure thatthe health of court personnel, court users and counsels are safe guarded from contacting the virus and this has created a paradigm shift in the human history.  Also, it is no news that the spread of COVID-19 is creating room for people to work at home.The question is how can law firms strive in legal practice with this opposing difficulty if the crisis intensifies?   Unfortunately, litigation and commercial legal practice being the core practice of every law firm is not spared. Despite this economic and devastating effect, the good news is that commercial lawyers in the face of the looming lockdown can prepare documents and execute contracts with e-signature. This can be done by lawyers working from home even with the lock down and self isolation. Although some parts of the world are already practicing it, Nigerians are yet to fully adopt it for example, Corporate Affairs Commission (CAC) which provides for online registration is still operating with manual signatures despite the provision in our laws.  Invariably, Commercial lawyers have to move with the tide to adopt e-signatures inthe preparation of documents as against the manual appendage ofsignature to documents. In the world today, the emergence of e-commerce, e-contract, e-governance is altering the traditional notion of signing of documents and this has been received by various legislation in Nigeria.  Section 17 of the Cybercrimes (Prohibition and Prevention) Act, 2015 provides that electronic signature in respect of goods and any other transaction shall be binding.

Section 93 (2) of Evidence Act 2011 also acknowledges that an electronic signature satisfies therule of law as E-signature. Obviously, from the above existing primary legislations, E-signature is binding on Nigerian’s courts as long as Sections 84, 93(3) of Evidence Act are duly adhered to.  Tools like Docusigns, signing hub are enabling tools useful for E-signature of documents to aid business transaction and other legal documentation. Legal documentations like Creation and execution of wills, codicils, notices, issuance of court orders, official court documents such as affidavits, pleadings, motions amongst others can be done in the confines of our home. Although the above mentioned were exempted by the Cyber crime Act. With the increase and growth in internet usage, there is need for an upgrade in filling of court processes to become fully automated and service of processes to be done through emails to ease stress and ward off any uncertain happenings in the future. In the case of Esso West Africa Inc v. T. Oyegbola (1969) NMLR, the Supreme court held that: “the law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer”.

The growth of information technology has encouraged various online practices and Nigeria is slowly growing with the tide. In my view, the COVID-19 surprisingly, is a wake up call to Nigerians andmore so, lawyersto leverageon the use oftechnological framework.

Also, Contract has gone beyond physical transactions to online transactions. Contracts may be formed online where parties exchange emails which consists of an offer and acceptance. In the case of Metibaye v. Narelli Int’l ltd (2009) 16 NWLR (or 1167) 325, Aboki JCA, held that “acceptance must be manifested in a positive way either by words, in writing or by electronic means such as emails or conduct.”In the case of Continental Sales Ltd v. R Shipping Inc.(2012) All FWLR (PT 630) P. 1377, the court was faced with the issue of whether email was permissive means of communication as envisioned under section 76(3) of the English Arbitration Act, 1996, which stipulated that a notice or other documents may be served on a person by any effective means. The court discountenanced the argument which sought to exclude the evidence as one of such effective means. It further held thus:

that email is a form of communication that is set down in writing and the fact that electronic is immaterial adding that, it can be downloaded and it is as real as a hard copy of the letter of email. Although Nigeria has made much progress, there is need to put in place robust, effective, and enforceable legal instrument to foster public online transactions and create awareness on the usage of E- signatures in all legal documents and contracts.

With the above, commercial law firms can solely within the confines of their homes conclude contracts through online means or platforms.

In addition, the pandemic CONVID-19 has the likelihood of causing a breach incontracts. The fear of CONVID-19 can create a breakdown in the relationship betweenemployees and their employers, For example, employer and employee relationship can be breached because no employer wants to expose itself to the threats of the pandemic. Quite a number of issues may arise such as employer’s refusal to go to work in order not to be infected, employer’s inability to provide conducive and healthy working environment, employees entitlement to pay and so on.  In the entertainment industry, films stipulated to be performed and completed may be excused, cancelled or postponed. Also, events may be cancelled or postponed where speakers, event managers have made necessary preparations concerning such events. The spread of COVID-19 is an eye opener that lawyers must always input clauses for unforseen contingency while preparing contract agreements.

However, for contractual obligations to strive amidst this global pandemic, a common clause usually inserted in agreement is now expedient. It is typical for commercial contracts to have force majeure clauses.  In contractual terms, ‘force majeure’ is recognized as an unexpected event/events beyond the control of either contracting party which disrupts the operation of the contract such that the contracting parties are excused from their liabilities and/or obligations under the contract. The force majeure clause allows extra time to perform the contract due to the force majeure event. When the event ends, the partiescan resume their obligations under the contract. Force majeure clauses operate to suspend the time for performance of contracts during the intervening period, when it is impracticable to perform their obligations under the contract. Itis a legal contract that’s binding and after all, removes liability from natural and unavoidable catastrophe. Some force majeure clauses allow termination of the contract if the intervening event/circumstances continues for a specified period of time. In the Nigerian case of Diamond Bank Ltd v. Ugochukwu (2008) 1 NWLR (pt.1069), the court held thus:

that where force majeure clauses are drafted into a contract, there must be an event which significantly changes the contractual obligation/rights of the parties that it would be unjust to expect the parties to perform these rights.

While the specifics of a force majeure clause will depend on the contract in question, we typically see agreements that contain instances such as acts of God, extreme weather events, riot, war or invasion, government or regulatory action including strikes, terrorism, or the imposition of an embargo and in some instances pandemics or epidemics such asthe current COVID -19. The above mentioned are probable force majeure events.  On January 2020, shell declared force Majeure on Nigeria Bonny Light Crude Exports after the shutdown of the Nembe Creek Trunk Line (NCTL).

Justifiably, the common law provision of frustration can be invoked in the face of such supervening circumstances. The test for a frustrated contract was defined by Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 thus:

…frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. … It was not this that I promised to do.

The doctrine of frustration is not lightly invoked. When events entirely overtake the deal, the doctrine of frustration has its place. It means that there must be an intervening event/circumstancesthat brings about a break in the period when the contract is to be performed, and its performance in the new circumstances. The test is deceptively simple on its own, for a few reason, each case is assessed on its own merits. Previous legal cases and decisions dealing with frustration have little value as frustration doesn’t protect against “imprudent commercial bargains”. That is one of the downsides to a plea of frustration. The contract might be “wide enough” to apply to the new situation, in which case the contract will not be frustrated. For example, the parties may owe a contractual duty to one another to prevent the frustrating event from occurring or had already planned for it. However, frustration is still a matter of litigation as parties usually can be head over heels as it is borne out of destruction of subject matter while force majeure is the timely prevention of performance and access to subject matter. Unlike force majeure which post pones or ends a contract timeously, a party may plead frustration when the other party has done a part performance of the contract and this at the end of the day becomes a legal issue for determination in court.

Furthermore, responding to COVID-19 pandemic may require organizations across all sectors to collect, use and disclose personal information in order to comply with Health and Safety Regulations. Data privacy and protection rights of individuals through this process may be breached as prominent members of the society and other citizens have been disclosed to be affected and contaminated with the virus. Data protection is a means by which the privacy rights of individuals are safeguarded in relation to the processing of their personal data. Personal data according to NDPR means:

Any information relating to an identified or identifiable natural person (data subjects); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; it can be anything from  a name, address, a photo, an email address, bank details, post on social networking websites, medical information, and other unique identifier such as but not limited to MAC address, IP address, IMEI number, IMSI number, SIM, Personal Identifiable Information (PII) and others.

Under the NDPR, personal information/data ought not to be disclosed without consent of the data subjects. The above can create room for litigation when the crisis finally abates. Organizations seeking to collect such health data for coronavirus containment must ensure and adhere to the following existing principles

• Lawfulness: the legal basis for using data should be identified on a case by case basis.
• Sensitive data: GDPR defines health data as any information relating to individual’s physical or mental health and other health related issues. In considering the sensitivity of personal information and the intended use of the data, how serious is the risk of harm to the individual’s rights, reputation, or material circumstance are to be put in mind. If such data is sensitive enough, then implied consent can be relied upon.
• Transparency: data subjects whose personal data are to be collected should receive a privacy notice, before or at the collection.

Also,  under corporate law, companies are expected to hold their meetings be it Annual General Meetings(AGM), Extra Ordinary General Meetings and Statutory meetings at a stipulated period under Companies and Allied Matters Act (2004). Under CAMA, a public company must hold an AGM within six months of the end of its relevant financial year.  The outbreak of coronavirus and the preventivemeans of curtailing the spread have pose restrictions on such meetings. Inadvertedly, due to the compulsory time frame imposed by CAMA, companies can engage in virtual meetings (hybrid meetings) through technological platforms such as zoom, Skype, Webex meetings, Google hangouts and so on. It is imperative that companies include hybrid meetings in their articles  in case of further contingencies that may arise in future like the COVID-19.

CONCLUSION

Long after this health crisis orchestrated by this pandemic, court will be grappling with a huge number of litigation disputes concerning parties whose right of privacy have been breached, parties excused from performance of their contractual obligations during the period of the COVID-19. It is however sad that the world is distressed with  this crisis at a time like this, but it has come and when it abates, lessons must be learnt and one of such is the high demand for expand on the technological framework in Nigeria to boost sectors especially the legal sector.

Cynthia Chukwufumnanya Izu Esq.is a Lawyer, Researcher and a Girl-child /Women Rights Advocate. You can contact her on cynthia10693@gmail.com.