Fourth in the “Commercial Disputes” Series
Introduction
Business thrives on planning, but reality rarely moves in a straight line. A signed contract might set out every deadline, delivery schedule, and payment term in precise detail, only for the world to throw in a twist no one saw coming. Floods can halt production. Border closures can choke supply chains. A sudden change in law can turn a lawful activity into a prohibited one overnight.
When events like these occur, should a party still be held to its promise, even if performance has become impossible? Force majeure clauses answer that question by setting out when extraordinary events can excuse performance, and on what terms.
Under Nigerian law, the scope and effect of force majeure depend on the exact words of the contract and how courts interpret them. Understanding these clauses can be the difference between surviving disruption and facing a costly breach.
Force Majeure under Nigerian Law
Under Nigerian law, “force majeure” describes extraordinary events that no party can reasonably predict or control, which make performance impossible, not merely inconvenient. The Court of Appeal in C.G.G. (Nig.) Ltd v Augustine & Ors (2010) LPELR-8592(CA) defined it as:
“An event or effect that can neither be anticipated nor controlled. It includes both natural and human acts. The human acts may be of political in nature including riots, strikes or war.”
These events typically fall into two categories:
• Natural occurrences – floods, earthquakes, fires, epidemics.
• Human or political actions – wars, riots, strikes, government-imposed restrictions.
Force majeure is not a blanket excuse for non-performance. Nigerian courts reject claims based on foreseeable business risks, market downturns, inflation, or supply chain problems that could have been managed with planning or alternatives. Increased cost or reduced profitability does not qualify.
The protection depends entirely on the clause’s wording. Force majeure is not implied by default, a party must prove the event was beyond its control and the direct cause of its inability to perform.
How Force Majeure Clauses Operate
Most force majeure clauses combine two elements: a specific list of events (e.g., “acts of God,” “war,” “pandemic,” “government action”) and a catch-all phrase for any event “beyond the reasonable control of the parties.” The list brings certainty and the catch-all adds flexibility.
The threshold wording is significant. “Prevents” sets a high bar, performance must be impossible. “Hinders” or “delays” lowers the bar, covering cases where performance is still possible but significantly more difficult or time-consuming. Courts apply these thresholds strictly.
Causation is equally critical. Courts often use the “effective cause” test, the event must be the real reason for non-performance. A “but for” analysis may also apply: but for the event, would performance have occurred? If another factor would have caused failure anyway, the clause will not apply.
In Globe Spinning Mills (Nig.) Plc v Reliance Textile Industries Ltd (2017) LPELR-41433(CA), the supplier cited illegal imports, gas shortages, and liquidity issues. The court rejected this, some causes were pre-existing, others foreseeable, and some could have been mitigated (e.g., alternative energy sources). The supplier also failed to give the required 48-hour notice, which was fatal to its case.
Lesson: A force majeure clause only works if the event fits the definition, meets the agreed threshold, is the genuine cause of non-performance, and all procedural steps are followed.
Procedural Requirements: Notice & Mitigation
Force majeure clauses usually make procedure part of the protection. Two requirements dominate: prompt notice and reasonable mitigation.
Notice – Many contracts require written notice within a short window, 24–72 hours, five business days, or “as soon as reasonably practicable”, and regular updates on duration and impact. Late or vague notices can nullify the right to relief.
Mitigation – The affected party must take reasonable steps to reduce the impact, finding alternative suppliers, rerouting shipments, adjusting schedules, and keep records of what was tried and why.
Failure to meet these procedural steps can sink a claim, even if the event itself qualifies, as the Court of Appeal confirmed in Globe Spinning Mills v Reliance Textile.
Common Pitfalls & Misconceptions
Force majeure does not cover every setback. Economic hardship, currency fluctuations, or reduced demand, no matter how severe, are unlikely to qualify. Nor will risks known or foreseeable at the time of contracting.
Another weakness is poor drafting. Clauses that are too vague create uncertainty; those that are too broad risk restrictive interpretation. Precision in naming events and setting thresholds is key.
Lessons from COVID-19
The pandemic exposed the strengths and weaknesses of force majeure clauses. Clauses naming “pandemic” or “public health emergency” left little doubt. Others relied on broad phrases like “events beyond reasonable control,” with success hinging on whether COVID-19 met the clause’s criteria and on compliance with notice and mitigation obligations.
Some claims failed because performance was still possible, albeit differently, or because procedural requirements were ignored. The takeaway is for parties to tailor clauses to likely risks, be ready to act quickly and document your response when the unexpected occurs.
Practical Drafting Checklist
The more precisely a force majeure clause is drafted, the more likely it will work when you need it. Here are some points to consider:
• Be specific — Name the events most relevant to your business, from floods and pandemics to regulatory shutdowns or cyber-attacks. Keep a “catch-all” only for genuinely unforeseeable risks.
• Set clear notice rules — Spell out how and when notice must be given, often within a short window, and what details it should include: the event, its impact, and how long it’s likely to last.
• Build in a duty to mitigate — Require the affected party to take reasonable steps to limit the disruption and get back on track.
• Exclusions — Make clear that market downturns, rising costs, or poor planning don’t qualify.
• Define termination triggers — Decide how long performance can be suspended before either side can walk away, and whether that period must be continuous or cumulative.
• Tailor to your industry — Match the list to your sector’s real vulnerabilities, whether that’s port closures in shipping, supply shortages in manufacturing, or policy shifts in finance.
Conclusion
Force majeure is a shield for genuinely unforeseeable events, not a shortcut for escaping a difficult bargain. Its value lies in careful preparation before the contract is signed and disciplined compliance when an event occurs. A well-drafted clause, matched to your business realities, can preserve relationships and limit losses in turbulent times. But even the best wording fails if notice is late or mitigation is neglected. In uncertain markets, foresight and follow-through are the real safeguards, ensuring that when disruption occurs, your contract bends without breaking.
About the Authors
This guide was prepared by the Dispute Resolution team at Broderick Bozimo & Company. The team advises on contractual disputes, commercial litigation, and arbitration, drawing on decades of experience representing clients in high stakes matters across Nigeria.
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Broderick Bozimo & Company
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Wuse 2, Abuja F.C.T.
Nigeria
Email: insights@broderickbozimo.com
Website: www.broderickbozimo.com
Disclaimer
This publication provides general information and does not constitute legal advice. You should not act or refrain from acting based on its content without seeking professional advice. Contacting us does not create a solicitor-client relationship. We can only act once we have completed a conflict check and both parties have signed a formal engagement agreement.
