Can the Association of Nigerian Electricity Distributors declare force majeure?

By Dr Ayodele Oni

Generally, the principle of privity of contract ensures that (except in very limited cases) the enforcement of the terms and conditions of contracts may be by only the parties thereto.

Unless a specific contract/legislation allows a specified third party to benefit therefrom, only parties to a contract can benefit under same. Thus, generally, a stranger to the contract cannot, therefore, invoke any of the covenants contained in it.

Based on this principle, ANED (as an association) cannot seek or declare a force majeure, as it would lack the standing in enforcement of any obligations under the agreement, as ANED is not a party under the Performance Agreement.

Based on the Performance Agreement, not likely that ANED could prove interest sufficient to declare or seek to declare Force Majeure. Individual Discos could, but are not likely to succeed in court- see my previous analysis. These points are summaries of extensive research.

*Oni is a commercial and international energy lawyer