Nigerian Contract Law: The Straitjacket of an Imported Tradition
Construction jurisprudence as presently understood and practiced is a conceptual artefact of the industrialised universe, which in the 19th century developed peculiar sorts of legal governments and understandings in order to suit the increasing complexness and specialisation of contractually-bound building undertakings. In Britain, for illustration, building jurisprudence evolved in such a manner as to congratulate local patterns, traditions, and fortunes. However, Britain’s colonial policy and inevitable post-colonial influence grafted a once-local building legal system on to foreign environments such as Nigeria. After accomplishing independency in 1960, Nigeria retained elements of British building jurisprudence, to the hurt of both the legal and commercial environment of the Nigerian building industry. Nigeria’s basically British building jurisprudence has proven to be an unequal model for the contract disposal, dispute adjudication and arbitration, and standardisation demands of a underdeveloped state with its ain particular exigencies. The decision is that the building jurisprudence of developing states, particularly post-colonial states such as Nigeria, must aline with and esteem local demands in order to stay both relevant and respectable.
Nigerian building jurisprudence is best understood in the larger context of the past century of Nigeria’s colonial and post-colonial history. Nigeria became capable to the colonialist aspirations of Britain, France, and Germany in the late 19th century, but deft British steering brought the district under the Union Jack in 1901. Over the subsequent 59 old ages, Britain engaged in extended nation-building in the part, non least by enforcing its ain Torahs. In 1960, when Nigeria gained independency, the British theoretical account of building law—considered as a subset of contract law—was one of many colonial influences that survived the passage to post-colonialism. Today, “Nigerian contract jurisprudence consists of the standard English jurisprudence, philosophy of equity, applicable English laws…” ( World Bank 2007, p. 46 )
This manifestation of English jurisprudence has hampered Nigerian building non because its rules are someway hurtful, but because of its specificity to the British and European experience of building. For illustration, Ravetz ( 1980, p. 167 ) notes “the outgrowth of the general contractor” in the 19th century as a key precursor to the formation of British contract jurisprudence. Thomas Cubitt was one of the earliest such general contractors, functioning as a individual point of legal and organizational answerability between the client and the assorted sub-contractors—architects, applied scientists, stonemasons, etc.—required for any important building undertaking. With capitalist manners of production bring forthing increasing specialization among workers ( Marx 1867, p. 388 ) , building undertakings acquiring larger, and the co-operation of an increasing figure of stakeholders brought together by capital outgos, the outgrowth of a complementary organic structure of building jurisprudence was both natural and good for concern involvements. Meanwhile, the building industry of developing states such as Nigeria exhibits markedly different features than those that gave rise to British building jurisprudence. Ofori ( 1994, p. 9 ) makes the valuable point that building companies in developing states are in factlessspecialised, as they “own small works and equipment, and may be involved in several other activities apart from building. Therefore, their committedness to the industry is limited….some decry the big figure of such houses found in the developing countries…” This fact is highly of import, as it signifies the absence of basic late capitalist economic constructions in Nigeria—and other developing countries—that would back up British-style contractual jurisprudence on a structural footing.
There are, of class, more specific illustrations of how Nigerian building jurisprudence interruptions down in the local context. Aniekwu and Okpala ( 1988, p. 178 ) point out that, in Nigerian building jurisprudence, “provisions [ are ] nonreversible in favor of the employer, since he [ sic ] can use liquidated amendss and so is non forced to find the contract as his [ sic ] merely remedy….the employer is more at autonomy to scoff conditions or default in payments without inauspicious consequences.” A specific illustration comes in the signifier of employer presentment of alterations to be made to a program. Aniekwu and Okpala ( 1988, p. 179 ) province that “the contractor is required before the behavior of the plants to give notice to the designer and if within 7 yearss there is no answer from the designer to continue with the work it shall be deemed a fluctuation required by the architect.” Thus, contractors could easy be forced to handle major alterations to a design program as mere “variations” merely by virtuousness of non reacting to the designer on clip. These sorts of commissariats guarantee that many Nigerian houses with something to lose will non come in into, or farther professionalise, their engagement in building.
Contract disposal is an unbalanced procedure, with Aniekwu and Okpala ( ibid. ) proposing that, in Nigeria, employer defaults “should…convert to loans to the employer by the contractor with the appropriate involvement rates built in.” Even in such a instance, nevertheless, it is deserving observing, as the writers do, that authoritiess tend to be the largest employers of building contractors in the underdeveloped universe. In such a context, what Sangmpam ( 2007, p. 128 ) evocatively calls “the overpoliticized state” is capable to neither constitutional nor popular bounds on its ability to work building contractors. By contrast, the British province is no longer a prevailing building employer: “Prior to the 1980s, the State was both an employer and an of import client of the industry… .the British authorities followed a longstanding policy of steadily buying public lodging units….This authorities policy was replaced by a policy of advancing single place ownership” ( Bosch and Philips 2003, p. 20 ) . Nor does British building jurisprudence extraordinarily favor the employer. See that, in alleged contractor design contracts, “the contractor’s liability for the design is non affected by whether or non the contractor really carries out the design” ( Ramseyet Al2007, p. 180 ) . The decision is hence that, while British contract jurisprudence moved on from the pre-nineteenth century “unilateral impression of a promise” ( Furmstonet Al2000, p. 14 ) towards freely bilateral contract, Nigeria retained the more antique British impression of the contractor-furnished promise as the drift behind contract jurisprudence, therefore compromising the indispensable equity that must underlie and regulate contract disposal.
In footings of difference adjudication and arbitration, British building jurisprudence benefits from trust on a long tradition: “In fact, the words ‘English Law—arbitration, if any, London harmonizing ICC rules’ , has been held to represent a valid arbitration agreement” ( Gould 1999, p. 86 ) . Gould intimates that the assorted participants involved in arbitration understand and esteem the regulations, and the full legal setup stands ready to implement the result of arbitration. In theory, Nigeria espouses the same arbitration construction, but, as Uche ( 1971, p. 82 ) argues, existent pattern renders enforcement impossible: “…in Ghana and Nigeria…the Torahs are complicated by statutory acknowledgments of customary and Islamic laws…the term ‘agreement’ removed as it seemingly is from the trifles of the term ‘contract’ in English jurisprudence, is evidently a more convenient manner of analyzing contractual situations.” This is a reminder that, while developing states may borrow legal rules from the former colonial powers, the conceptual luggage of the attach toing constructs varies harmonizing to local pattern and apprehension. Even when the missive of the jurisprudence is the same, societal norms complicate attachment:
While an American or a German would see the breakage of a written contract as ethically unacceptable…a Russian or a Nigerian would lose small slumber over it—not because they have no scruples but instead because the social position of a contract attaches no great ethical stigma to interrupting it… ( Mitchell and Curry 2003, p. 13 )
An illustration of this attitude arose when the Nigerian authorities, holding antecedently agreed to be bound by arbitration in its traffics with private company Ipitrade, claimed at the last minute that it was non bound by the arbitration understanding ( Bankas 2005, p. 124 ) . This is non to reason that Nigeria is culturally lacking. In fact, every bit far as the legal issue of arbitration goes, it is deserving size uping the English law’s ain cultural premises. For illustration, Geary’s ( 1965, p. 291 ) statement that “If aliens to a contract effort to bring on any of the parties thereto to interrupt the contract, it is actionable.” This assumes a peculiar definition ofalienthat does non use in the Nigerian construct. For illustration, tribal jurisprudence countenances what Joseph ( 1997 ) calls prebendalism, or individuals’ outlooks that they are owed some portion of authorities or public gross by virtuousness of their relationship to an functionary or other of import personage. Given the huge size of folks and other drawn-out family and client constructions, it is non simple to denominate any peculiar party as a alien to a Nigerian contract, particularly ifcontractis taken to intend something kindred to Uche’s ( 1971, p. 82 ) sense of “agreement.”
Finally, the indistinctness around the inquiry of relationships and rights extends to the standardisation of Nigerian building and contract jurisprudence, which is officially borrowed from Britain but which in pattern is compromised by Nigeria’s acknowledgment of other legal systems, such as those of Islamic Law ( Sharia ) and traditional Yoruba pattern. For this ground, the World Bank ( 2007, p. 46 ) explains that Nigerian legal traditions and grants to communities governed by other signifiers of jurisprudence complicate the country’s effort to standardise around a individual, centrally-administered system of contract jurisprudence. This renders the legal and commercial environment of Nigerian building even more hard.
In decision, it is deserving retrieving that the restrictions of building and contract jurisprudence in Nigeria are portion of a larger cloth of restrictions. Nigeria, like other developing states, offers limited recognition chances to little and moderate-sized companies, does non bask the advanced substructure of industrialised states, and has non had the luxury of centuries-long consensus-building on all right issues of jurisprudence, contract, and commercial public presentation. Indeed, for over a century, Nigeria’s experience has been one of denominationalism and military regulation. The intent of building jurisprudence reform in such an environment is non to transform the state, but to aline the jurisprudence with what really takes topographic point in the Nigerian market place ; the jurisprudence can thereby do an incremental, if non radical, part to the commercial success of Nigeria. Based on the grounds presented in this paper, such stairss could include: a reconciliation of the power distribution between employer and contractor, so that the relationship becomes genuinely bilateral ; acknowledgment that contractors can non populate up to the exacting criterions ( such as rapid response to planned alterations ) ; and incorporation of non-English legal traditions into contract jurisprudence. Taking these stairss may help in altering the current deficiency of regard for written contracts displayed by many Nigerians. In acknowledging something closer to place in the contract jurisprudence, they might get the inducement to take contracts more earnestly.
Aniekwu, Anny Nathaniel and Okpala, C. Daniel 1988, ‘The consequence of systemic factors on contract services in Nigeria’ , inConstruction Management and Economicss, vol. 6, I. 2, pp. 171-182.
Bankas, Ernest Kwasi 2005,The province unsusceptibility contention in international jurisprudence, Springer, Berlin.
Bosch, Gerhard and Philips, Peter 2003,The building industry: An international comparing, Routledge, London.
Furmston, M.P.et Al2006,Cheshire, Fifoot and Furmston’s jurisprudence of contract( 15Thursdayedition ) , Oxford University Press, Oxford.
Geary, William Nevill Montgomerie 1965,Nigeriaunder British regulation, Routledge, London.
Gould, Nicholas 1999,Dispute declaration in the building industry, Thomas Telford, London.
Joseph, Richard A. 1987,Democracy and prebendal political relations inNigeria: The rise and autumn of the 2nd democracy, Cambridge University Press, Cambridge.
Marx, Karl 1867,Capital, 1906 edition, trans. Samuel Mooreet Al, The Modern Library, New York.
Mitchell, Charles and Curry, Jeffrey E. 2003,A short class in international concern moralss, World Trade Press, Petaluma, California.
Ofori, George 1994,Pull offing building industry development: Lessons fromSingapore’s experience, NUS Press, Singapore.
Ramsey, Sir Vivianet Al2007,Construction jurisprudence enchiridion, Thomas Telford, London.
Ravetz, Alison 1980,Remaking metropoliss: Contradictions of the recent urban environment, Croom Helm, London.
Sangmpam, S.N. 2007,Comparing apples and Mangifera indicas: The overpoliticized province in developing states, SUNY Press, Albany, New York.
Uche, U.U. 1971,Contractual duties inGhanaandNigeria, Routledge, London.
World Bank 2007, ‘Nigeria fight and growing: Country economic memoranda volume III: Technical and statistical extensions ; study no. 36483-NG’ , retrieved June 15, 2008 from & lt ; hypertext transfer protocol: //www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2007/09/17/000020953_20070917144646/Rendered/PDF/364830v3.pdf & gt ; .