As a passionate lawyer, I am always happy to give my retort to the statement that all lawyers are liars. In two sentences: 1) the tool of a lawyer is language with which he meanders its malleability to suit purpose; 2) truth is relative and accords itself validity with the factual realities we are exposed to per time. As smart or funny as those sentences may sound, if you take some time to read and understand them, you would conclude on the reason why your contracts must be read by a lawyer before you proceed with execution and performance.
In Nigeria, our laws are largely influenced by the English legal system; our lingua franca is the English language; most educated Nigerians have English as their first language; it would therefore be suicidal to draft and sign a contract without proper understanding of the English language. Amongst the plethora of cases that exist, Mohammed Ojengbede v M.O. Esan & Anor (2001) 18 NWLR (pt 746) 771 is very instructive on this position. The courts have expressed no doubt that the official language of superior courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by competent witnesses called by the party to the proceedings who needs them to prove his case or by the official interpreter of the court.
You must therefore pay attention to the letters and wording of your contracts. They not only represent the clear intention of the parties, they also serve as proof of such intentions and would form the premise upon which enforcement of the contract can be made. It would be difficult to make amendments when a bad position has been provoked in the favor of one of the parties and usually disputes would arise from such occurrences.
Where disputes arise, a good dispute resolution clause would usually provide for the method of resolving the dispute. Litigation is the traditional way of settling dispute; it is the major hinge of the door of the judiciary. It simply entails strict application of legally established procedural methods in interpreting the law and legal principles in the resolution of disputes before a Court. While this system has its merits, the alternative dispute resolution mechanisms have become very popular as a result of the privacy, control and predictability that they permit. Even wider acceptance has been accorded to them because of the possibility of the enforcement of awards or judgments derived from the process. A great clause would list the process, usually ensuring that the parties explore, engage and extinguish all internal processes before engaging third party appointees to mediate, negotiate, conciliate or arbitrate.
The clause, would go further to set this method of resolution within a time frame. Another major distaste for litigation is the uncertainty of time involved and the long process it might take from conflict to filing and then determination by the courts and then extra time to appeal. This time factor in the clause however, represents conflict to commencement of the process of dispute resolution. The wordings would provide for how long parties should have exhausted all other options towards settling the dispute before embarking on the route of ADR.
The seat, the language and judges to sit on the panel should also form part of the draft of the ideal dispute resolution clause. It is important for you to know the place of dispute settlement; an understanding of the laws of this place and a knowledge of expertise in the particular area of trade is important during the negotiation of this clause. Interestingly, the law of contracts allows parties the right of the choice of governing law and choice of seat of settlement. This luxury does not exist in litigation, as courts’ jurisdiction vests by subject matter and or geography (i.e. the place of business of the parties or residence of the parties or where the dispute occurred). This place of settlement of disputes is what is referred to as the “seat”. Linked to this, is the language of the proceedings for settlement. Interestingly, you can by agreement decide to settle a conflicggt in Hong Kong using Spanish and applying the rules of the International Chamber of Commerce to your proceedings. The choice of procedural language informs the nature of judges that would seat on the panel.
Early communications can also be facilitated in this language towards speed and quality of dispute settlement. Where the parties speak different languages and have to resolve disputes without having agreed on a particular language, then proceedings may have to be done with an interpreter which may affect cost and duration of the proceedings.
Where in doubt of anything in your dispute settlement clause, please ask a lawyer.
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