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PARTIES BOUND BY AGREEMENT

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It is trite law that persons of full age and sound mind are bound by any agreement lawfully entered into by them. – Kutigi JSC. Okonkwo v. Cooperative Bank (2003)

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DRAFTING MAJOR COMMERCIAL CONTRACTS INVOLVING A STATE

585. It was a complete imbalance in the contributions of the parties that enabled the GSPA to be in the form it was. Many reading this judgment will recognise that, although in the present case bribery and corruption were behind that imbalance, it happens in other cases without bribery and corruption but simply where experience, expertise or resources are grossly unequal. This underlines the importance of professional standards and ethics in the work of contract drafting, including in the approach to other parties to the proposed contract. It is why some contributions of pro bono work by leading law firms to support some states challenged for resources (this is not to say, one way or the other, that Nigeria is one of those) is so valuable, in the interests of their, often vulnerable, people. In the present case there were other contracts too, with different counterparties. Their terms and circumstances are not identical, but the overall risk could have been a multiple of the US$11 billion now involved in the present case.

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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PARTIES ARE BOUND BY AGREEMENT ENTERED INTO

Parties are bound by the terms of the agreement they have voluntarily entered into. The only function of the court is to interprete the agreement in enforceable terms without more.
[Kurubo v. Zach-Motison (Nig.) Ltd (1992) 5 NWLR (Pt. 239) 102; National Salt Co. (Nig.) Ltd v. Innis -Palnier (1992) 1 NWLR (Pt. 218) 422; Union Batik of Nigeria Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Shettiniari v. Nwokoye (1991) 9 NWLR (Pt. 213) 60]. – L.A. Ayanlere v. Federal Mortgage Bank of Nig. Ltd. (1998) – CA/K/186/96

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MEANING OF THE TERM ‘CONTRACT’

A contract may be defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. In effect a contract is a bilateral affair which needs the ad idem of the parties, therefore where the parties are not ad idem, the court will find as a matter of law that an agreement or contract was not duly made between the parties. Odutola v. Papersack (Nigeria) Limited (2006) 18 NWLR Pt. 1012 pg.470. Olowofoyeku v. A-G. Oyo State (1990) 2 NWLR Pt. 132 pg. 369 Oreint Bank (Nigeria) Plc. v. Bilante International Limited (1997) 8 NWLR Pt. 515 pg. 37 Societe General Bank (Nigeria) v. Safa Steel and Chemical Manufacturing Limited (1998) 5 NWLR Pt. 548 pg. 168.

— Adekeye, JSC. Best Ltd. v. Blackwood Hodge (2011) – SC

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PARTY LIABLE OF A FUNDAMENTAL TERM WILL NOT BE GRANTED RELIEF IN EXCLUSION CLAUSES

It is settled from a number of decisions that a party in breach of a fundamental term of his contract with a third party will not be allowed to benefit from or resort to exclusion clauses: PINNOCK BROTHERS v. LEWIS & PEAT LTD (1956) 2 ALL E.R. 866; ADEL BOSHALLI v. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917 at 922; OWNERS OF NV GONGOLA HOPE v. S.C. (NIG). LTD. The rationale for the principle is that a party who is guilty of breach of a fundamental term of contract could/should not benefit from his own wrong doing by resorting to exclusionary clauses in order to limit his liability. This is moreso, when a contract of carriage by air is brazenly breached and no explanation is offered, as in the instant case. In which case there is a total failure of consideration and the central purpose or essence of the contract has wholly disappeared.

– Ejembi Eko, J.S.C. Mekwunye v. Emirates (2018) – SC.488/2014

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COURTS DO NOT MAKE CONTRACT FOR THE PARTIES

It is not the function of the court to make contracts between the parties. The courts duty is to construe the surrounding circumstances including written or oral statements so as attest the intention of the parties. Where the correspondence exchanged between the parties are read together, it can be assumed that the parties have come to an agreement.

– Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

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REPUDIATION OF CONTRACT CANNOT BE DONE BY ONE PARTY ALONE

Contracts are made by parties and the Court interprets same. Repudiation of contract cannot be done by one party, see ADENIYI VS GOVERNING COUNCIL OF YABA TECH (1993) LPELR-128(SC) held thus; “But repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation on the one side, and acceptance of the repudiation on the other.”

— Nimpar, JCA. Ekpo v GTB (2018) – CA/C/324/2013

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