15 June 2016
A commercial law student learning about agency is usually taught about ways of establishing an agency relationship.
Two of the principles that form an agency relationship are estoppel and ratification. Mainly ratification can be applied to the present day situation of our nation Nigeria.
An agent is generally one who stands for a principal and is authorised to act on behalf of the principal. He can contract and has legal power to act in ways that should be beneficial to the principal, if he is a good agent anyway.
The government of today, a supposedly democratic one is set up by the people and armed with authority to act on their behalf in ways that are legally binding.
Going back to law of contract and what we learnt from it, an agency relationship is established mainly by contract. Sometimes though by other means like estoppel and ratification.
In these two similar ways of establishing agency, an agency relationship will be held to exist even where there was no express contract for such when the principal by his inaction fails to renounce a prior action on his behalf by a pretend agent.
By his silence such agency becomes a fact and he is estopped from denying the existence of such a relationship. In ratification, the agent may take an unauthorised action which becomes authorised when the principal comes into awareness of the action but fails to overturn it.
One might wonder at the rationale for keeping silent and allowing another to pass themselves off as one’s agent. This could be laid at the door of craftiness and fell cunning.
People sometimes fail to protest an action made in their name if it benefits them unaware that this ratifies the act and creates a legit agency relationship that leaves them vulnerable to future acts that may and is often not to their benefit.
How does all this tie in with the situation of our nation Nigeria? Sometime ago, a law was passed illegalising relations and marriage between partners of the same sex. This was a law that could be said to be largely irrelevant.
On the issue of same sex marriage, our customary norms and values were in themselves enough to deter such an act.
I can confidently say that no Nigerian would take home to momma a member of the same sex and a marriage ceremony would be conducted either customarily, in a church or a mosque.
So a law was made to outlaw a practically nonexistent act.
On the issue of preventing sexual relations between people of the same sex, this seriously infringes on fundamental human rights as contained in chapters IV of the 1999 constitution.
It also happens that the LGBT issue is one that happens to be hotly debated the world over and in more advanced nations as being possibly a biological or mental problem.
This would mean that should that turn out to be the case, the government would be subjecting a group of people to the hefty punishment of a fourteen year jail term for something entirely outside their control.
Even if it were willful, and by conscious choice, its criminalisation is still a violation of fundamental human rights and an overreaching of the agent’s authority to represent his principal.
Shortly after the criminalisation of same sex marriage and relations did the Nigerian people protest the overstepping of the mandate it gave its agents? No. Because perhaps we personally abhorred same sex relations, and it was an action that benefited us and satisfied our desire to condemn others and be sanctimonious and self righteous.
So we failed to protest the overstepping of the government’s authority. We ratified their decision. We allowed them to legislate on matters they had no prerogative to.
This showed a collective lack of wisdom on the part of the public. If one attempted to point out the fact that this law was repugnant to natural justice, one was quickly shouted down and called gay.
We allowed ourselves to forget what the issue was. And it was not about ‘gay’. It was about gay RIGHTs. We forgot the rights in a bid to appear upright.
So we allowed a group of innocent people to be jailed for fourteen years for nothing other than how they chose to live their private lives. Of course as at the time and up till date no one has attempted to marry or take the relationships to the next level.
One should generally not tolerate a thief’s incursion to one’s place of abode not because of the value of the item taken but for the mere fact that there was an invasion.
Should the item taken be small the first time and one kept mum, no doubt the consequences would be larger the next and this is what happened in the case of Nigeria.
Shortly after this, we heard of another law being considered for passing – the social media bill, which would deny the general public the right to criticise or speak derisively of the government on social media platforms.
This was met with rumblings of dissension. Words like fundamental human rights, freedom of speech were thrown about.
One was tempted to wonder if it was not the same fundamental human rights that were given away so joyfully a while back.
We kept silent and allowed the government make away with our rights. We allowed them to legislate in a matter that the were not authorised to, because it benefited us. Also because it gave us someone to look down on.
We also ratified the government’s action in order to appear morally upright as a nation. Never mind fornication a serious moral vice was uncriminalised. Corruption was allowed and stealing was encouraged.
While doing this though, we gave away our humanity and indeed it would be inhuman if it turned out we were punishing a people for something beyond their ken.
It goes to show our selfishness that we protest the mere right to be abusive now yet allowed others to have the privacy of their personal lives invaded and their liberty withdrawn for fourteen years with nary a word in their defence.
While some might argue that this is real life, not law of contract, these legal principles are meant to hold our lives and the fabric of society together, not just be argued in court.
They hold true too in our everyday lives if we can but spot the ways in which these principles affect us.
I do believe that it is a question worth considering if we can still protest the actions of our agents now at this late hour or if we have ratified their illegal agency.
Nigerian people would do well not to sleep on their rights next time, whether it’s flouting proves to be beneficial or not.
As the maxims of equity would have it, delay defeats equity and equity aids the vigilant and not the indolent.
Author: Ekpeki Donald Pen Prince
Ekpeki Chovwe Donald styled the PenPrince is a writer and lawyer in equity. He has an unhealthy interest in wit, pun and poetry. When he’s not writing, he’s reading and when he’s not reading, he’s breathing. He breathes words.