Government contract with Chinese companies

September 1, 2020
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I have listened to several newspaper reviews on the radio stations on the contract the various African countries’ governments, particularly Nigerian government, entered into with the Chinese government as to the interpretation of one of the clauses of the agreement which seems to have contravened some sections of the constitution.

There is no way you can interpret the clause without reference to Private International Law, otherwise called Conflict of Law Books, particularly, sections dealing with the creation and performance of contracts.

The law applicable to the performance of contract is the law of the country where the contract is to be performed,which are the laws of Nigeria in this case. Therefore, if any part of the clauses of the contract contravenes any section of our constitution, that part only of the contract is void by public policy.

Therefore, none of the countries is permitted to enter into such clause of the contract. I do not see any big deal on such clause that is void. The whole (main) contract stands to be performed in any way i.e the debt has to be paid.

Note that the above is applicable only where the parties did not state categorically the law to be applicable to the contract. My advice therefore to our legislators is always to consult lawyers on any matter, rather than taking upon themselves such interpretation or what steps to be taken on such matter.

I can remember when President Umar Yaradua was sick in India when he was not supposed to have left the country without delivering a letter allowing the vice president, Goodluck Jonathan, to act during his absence from the country. After the country had been informed by former President Olusegun Obasanjo, that he met President Yaradua lifeless when he visited him, it was therefore strange for the National Assembly to order that a letter be obtained from the president for them to act upon.

The National Assembly could not see through that problem until I wrote to tell them that if president Yaradua did not send them such a letter, the law presumed that he had done so, as it did not lie in his mouth to say he had not or would not do so. That was what the National Assembly, then in their decision, termed the Law of Necessity and not the presumption of law, by which it is generally called.

Same also was the situation of Bakassi when the country decided to contest the issue involved in the matter at the International Court of Law, instead of solving the issue by referendum as contained in the letter I sent to the press on the matter. Our government should henceforth stop portraying the people of this country as nonentities who know nothing.

J.O.A. Ajakaiye,

Ibadan.

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