By M. O. Idam, Esq.
In Nigeria, most people pay little or no attention to details of contract documents when transacting with other parties. They often skim through and simply proceed to signing (execution), without paying attention or seeking explanation to the terms and clauses inserted in the contract document.
Sadly, several economic rights have been lost as a result of poor or lack of attention to terms and clauses contained in contractual documents by contracting parties, and the courts have rightly not intervened, as they are lawfully bound to faithfully construe the letters in an agreement and righteously give effect to the meaning expressed in the agreement. Provided that such an agreement is voluntarily entered into by parties, despite how lopsided or manifestly disadvantageous to a party, the courts cannot change it to suit anyone.
The courts cannot, during trial, rewrite, correct, alter, vary or even reprimand a cheater party for drafting a contractual term solely favorable to him. As long as such a contract is reduced in writing and executed by parties, the Agreement must be kept or “Agreement is Agreement” (Pacta Sunt Savanda).
In ADETOUN OLADEJI (NIG.) LTD. vs. NIGERIA BREWERIES PLC (2007) 1 SCNJ 375, it was held that where there is a contract regulating any arrangement between the parties, the main duty of the Court is to give effect to the wishes of the parties as expressed in the contract documented. Similarly, in OGUNDEPO vs. OLUMESAN (2011) 2 SC (Pt. 1) 39; it is not the business of the Court to rewrite parties’ contract for them, but to interpret the contract as contained in the instrument made by the parties on their free volition.
Nevertheless, no court will enforce a contract whose subject is illegal, such contract is as follows:
Contract to Commit a Crime
Any agreement to commit an unlawful act such as stealing, drug trafficking, or fraud is illegal and unenforceable.
Example: A contract between a cyber fraudster (“Yahoo boy”) and his cashier cannot be enforced by any court.
Contracts Against Public Policy
Agreements that seek to harm society or violate accepted moral or legal standards are void.
Example: Any agreement that undermines public order or governance, such as the one allegedly referenced in the Wike vs. Fubara matter, remains unenforceable.
Contracts to Defraud or Deceive
Any contract entered into with the intention to deceive an individual or the public is illegal and cannot be enforced.
Contracts with Immoral Purpose
Agreements connected to immoral activities such as prostitution, or sharing proceeds therefrom (whether as a pimp or hotel operator), are illegal and unenforceable.
Contracts Contrary to Statutory Provisions
Any contract that violates an existing law or statutory provision is void and unenforceable.
Gambling or Wagering Contracts
Except where expressly permitted by statute, contracts based solely on betting or gambling are unenforceable.
The attitude of the Courts to such contract is reflected in the Judgment of Dongbam-Memsen, J.C.A in Dr. Shirish Tanksale v. Rubee Medical Centre Limited (2013) LPELR-21445(CA). In that case His lordship, referring to the case of Nnadozie v. Mbabwu (2008) ALL FWLR (Pt. 405) 1613 at 1639 held thus –
“A contract or an agreement rooted in illegality must not be pleaded and if pleaded, it cannot be enforced by any court of law. An agreement is illegal if the consideration or the promise involves doing something illegal or contrary to public policy. In the instant case, the plaintiff’s evidence of proclamation of ownership of the land by an oracle was wrong in law and the trial court erred to have given it any legal recognition which was rightly set aside on appeal” See also Onyiuke v. Okeke (1976) 10 NSCC 146, Onwuchekwa v. N.D.I.C (2002) FWLR (Pt. 101) 1615. (2002) 5 NWLR (Pt. 760) 371, Olaniyan v. Aroyechun (1991) 5 NWLR (Pt.194) 652 @ 656. Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505 @ 535.”
CONCLUSION
Where a party is merely handed a contract document to sign, it is important that such a party engages a legal practitioner to study and advise him accordingly on the document before executing same.
M.O.Idam
m.o.idamattorneys@gmail.com
In this article