I already alluded this week to my irritation when it comes to seeing African fashion businesses, in particular, air their dirty laundry in public. I don’t see this as prevalent in Africa’s music and film industries. When it comes to fashion, however, when there is an existing dispute between two businesses or individuals, it seems industry professionals are so quick to add “un” to the word unprofessional.
The following case below which raised so much drama up till last week Friday illustrates my point. I am focused only on what has been published on the world wide web and on blogs for all to see. Let’s get into this case and I seriously hope you all take notes and be a part of curtailing what is nothing short of ridiculous pattern and practice by industry professionals. There are mediators and lawyers within and outside of the continent, in your respective countries, to take your disputes to. The internet is not your courtroom. Also from a brand management and public relations perspective, your public dramas are archived indefinitely, on google, and your existing customers or potential customers do not feel as confident to take their hard earned monies to you.
Disclaimer: Ladybrille has sponsored Le Petit Marche which is co-owned by one of the L’Espace founders.
Fashion Designer: Wana Sambo of Wana Sambo Clothing
Blogger & Sibling to Wana Sambo: Terrence Sambo of One Nigerian Boy
The Legal Brouhaha
As Explained by Wana Sambo: Wana Sambo claims L’Espace breached their legal agreement when they terminated her retail contract with no notice and no legal basis to do so.
The L’Espace Facts as Published by Terrence Sambo on March 31st, 2012 in what he dubbed “Exclusive L’Espace Model Contract Termination” that Served as Basis for Termination.
“Dear Ms Sambo,
By our very nature we are a private organisation and we find it quite distasteful to have to take to social media platforms to defend our fledgling brand against a guerilla internet attack containing many broad and largely inaccurate assertions, made by one Terence Sambo which we understandably assume was sanctioned by you.
In our opinion, ‘for both our reputations’ sake this does not constitute sorting the issue out ‘ as neatly as possible’.
We are more than happy to terminate.
Your stock will be taken off the shop floor at 11am today.
Please direct us as to what you would like us to do with it as well as your refund.
Good luck with everything.
Date: Thu, Mar 29, 2012 at 9:14 AM
(Terrence Sambo) Note: This here people according to L’Espace is the kind of contract termination letter you send to a client all based on an assumption.”
The Facts by Wana Sambo as Published on Terrence Sambo’s Blog With his Commentary
“On the 15th of Feb, 2012, Wana Sambo Clothing, a Womens wear brand, received an e-mail from L’espace, a multi-brand concept store/retail outlet located in Victoria Island, Lagos, Nigeria, inviting Wana Sambo Clothing to retail at their store through a new revenue model they were testing.
On the 22nd of February, an agreement was entered stating Wana Sambo Clothing was to pay the following to be a part of L’espace:
a) N50,000 as monthly rent
b) N15,000 as monthly service charge
c) Choose from either a 3 months or 6 months upfront payment option
Wana Sambo Clothing chose the 3months upfront option and paid the sum of N195,000 on the 1st of march, 2012.
Wana Sambo clothing started retailing at L’espace 15th of March and on the 17th of March 2012, a sales report ending 17th of March 2012 was sent to Wana Sambo Clothing with a total of sales for that week.
By the 28th of March, Wana Sambo Clothing received a 2nd sales report ending the 24th of march and it stated the amount of sales made that week with a new term added to it: a 20% commission being taken off sales. Also attached to that e-mail was an amended version of the first invoice WSC received which now had the total sales plus a 20% commission taken off it. This meant that a 20% commission would be deducted weekly. Once this e-mail was received, Wana Sambo contacted L’espace to query this new term/development as this had never been stated in any of our written or verbal agreements and L’espace replied saying (a quote from the e-mail) “…the 20% commission was not included in the agreement because we are still testing the new revenue model…” I asked them to put a hold to any payments into my bank account from sales until I get back into the country, as they were aware I was away for a period of time. L’espace replied me the next day with a contract termination notice, making mention of their assumptions that One Nigerian Boy, a fashion blogger, who is also my brother, was sanctioned by my brand to launch a “guerilla attack” against them on twitter.
First of all, It was not stated by L’espace at any point that I would be paying a 20% WEEKLY commission on sales after my rent and service charge had been paid in full. I run my studio at No 11 Augustine Anozie street, Lekki Phase 1, Nigeria, agreeing to retail at L’espace was a way of giving clientele another point of purchase and it seemed a smart way to push for the growth my business.
I would like to make clear that I, Wana Sambo of Wana Sambo Clothing can not influence the topic of Fashion Blogger(s) either as a sister or as a designer in the Nigerian Fashion Industry. Terence Sambo of ONB is a Fashion Blogger and he is within his rights to discuss whatever issues concerning/affecting the fashion industry as he pleases, I cannot ask him to not do his job neither can I tell him how to do it. Mentioning the Wana Sambo brand in a press release about his tweets when he clearly made no mention of Wana Sambo Clothing as the source of his information, simply because he is my brother was most unprofessional.
In reference to a portion of their press release, L’espace attempted to slander the Wana Sambo brand, making all sorts of insinuations about the brand’s financial strength and moneys already paid to them.
L’espace publicly terminated our contract without facts and without giving notice based on the terms of the agreement by both parties. Wana Sambo Clothing has upheld every part of the agreement and L’espace has no right to terminate the contract. L’espace on the other hand has constantly violated the terms of the contract agreement by firstly taking a 20% commission from WSC sales without prior notice, secondly on the same day sending an e-mail saying “Your stock will be taken off the shop floor at 11am today” and “we are more than happy to terminate.” (Please note that I received this e-mail after they had already issued out a press release.)
I sent L’espace an e-mail asking them to take down the press release as it was wrongly aimed but they still have not up until now, 30th March, 2012 at 1:53am. Wana Sambo Clothing has also not gotten a reply to the e-mail sent to L’espace addressing this issue.
ONB Comment: Clearly most of you who saw my tweets know i did not mention any designer but L’Espace goes ahead and ‘Assumed’ i was tweeting cos they had an unresolved issue with my sister. Ideally a company that respects it clients would have at least asked politely if his/her client had anything to do with it and not go ahead and splash the clients name in a malicious press release and tweet stuff like …
AFRICA FASHION LAW ON LADYBRILLE
MS. UDUAK’S VIEW
First, it is important for the Ladybrille business owners reading this and similarly interested parties to always have a confidentiality clause in your agreements. It is simply nobody’s business the kind of business relationships/terms you enter into with others.
It is not uncommon for parties in any business relationship to disagree. How they resolve their issues is entirely up to them. Where a third party encroaches on the confidential agreement, then we have a problem. The confidentiality clause keeps things private and makes it a breach of contract to breach such clause, barring situations such as a lawsuit that requires you reveal terms of the contract during the legal dispute filed in a court of law.
Arguably, but for Terrence Sambo forcing himself into the transaction of the aforementioned parties by tweeting about confidential matters between two businesses on twitter, the world would not know about the business transaction of these two.
Further, Terrence claims he was not tweeting about the privileged relationship between his sister and L’Espace. However, how then does Terrence explain the exclusive termination contract that he published on his website that has since been archived on google, among other platforms? Given his knowledge of the issue between his sister and L’Espace, as a blogger, wouldn’t it have been prudent to put a disclaimer so people know?
In addition, even if Wana Sambo is not the person he refers to, the legal relationship between L’Espace and their designers is their business. If a story on retailers who allegedly dupe small designers was intended, then it should be given deference, designers interviewed and a full story developed for the benefit of all, considering the gravity of such an article or blog post on a business like L’Espace.
Interference With Business Contractual Relations & Defamation Legal Claims
Bloggers, non-bloggers, industry professionals, if you interfere in the business relationship of another, depending on the facts and the law in your respective countries, you could be held liable under a claim of the “tortious interference with business relations.”
This particular cause of action allows you to sue a person if they “interfere with a valid contractual relationship” you have with a third party or your “valid business expectancy” i.e. money or similar benefits in a business deal. In the USA, for example, in general, such cause of action would require the Plaintiff show a valid contractual relationship existed between the Plaintiff and a third party, the Defendant knew of this relationship, the Defendant intentionally interfered and either induced a breach of contract OR a termination of the legal relationship between the Plaintiff and the third party and that it caused harm/damages. Damages must be shown i.e. money lost. In addition, depending on the facts, a Plaintiff can recover for mental distress and also punitive (punishment) damages, if applicable.
In addition, if you get on twitter and go off the handle saying things that are simply inaccurate and false, you move to the realm of defamation/libel. It is wise to be prudent where the livelihood of others are involved. Fashion might be sexy but there is nothing sexy about being slapped with a lawsuit.
Okay, let’s briefly look at the breach of contract claim based on all of the published documents, releases etc. to the world wide web by the aforementioned parties. Without addressing any of the back and forth as I am more interested in cutting straight to the chase, there are two ways to look at this.
Option #1: Wana Sambo Is Right
If the facts as related by Wana Sambo are indeed what they appear to be, then Wana Sambo could be quite right on her claim of a breach of contract by L’Espace. First, a unilateral change of the terms of a contract without a clause in the contract granting the power to one party to change such a contract is problematic; and can very well be a breach of contract. It all depends on what the contract says.
Most well written contracts require all parties to the contract to make any amendments in writing with a required signature by all parties. The amendment is then incorporated into the existing contract.
Second, even if a change to the terms occurred, Wana Samabo’s point on the lack of notice is critical. Notice is at the cornerstone of most, if not all, legal relationships. You can’t just kick your tenant, technically speaking, out of your retail store without notice. That’s like a really badly scripted Nollywood (Nigerian movie industry) film.
Third, Wana Sambo paid all she was asked to pay, according to her. L’Espace changed the terms with no notice and breached her contract. They admit they changed the terms, per Wana Sambo’s statement quoting L’Espace in her release, “…the 20% commission was not included in the agreement because we are still testing the new revenue model…” Okay, whose problem is it that you are “testing the new revenue model?” That, according to Wana Sambo, was not what she signed.
Fourth and finally, Wana Sambo’s point regarding insinuations could also be valid although Terrence Sambo’s possession of the so called “termination of contract,” sent to Wana Sambo’s email undermines that argument. In any event, barring that, why is Wana Sambo seemingly being punished for a distasteful behavior by Terrence Sambo based on an assumption? This is a legally binding relationship and if it will be terminated, proof is needed, not assumptions.
Option #2: L’Espace is Right . . .
L’Espace could very well be right in terminating the agreement but they do not get around breach of the terms of agreement by adding terms that was never negotiated, per Wana Sambo’s press release.
Independent of that key fact, if they could show that Wana Sambo indeed sanctioned Terrence Sambo’s behavior, then of course, arguably, it was in their best interest to immediately and swiftly move to terminate the relationship.
Overall, for lack of a better word, this is one of the silliest cases to flow onto the internet because there was no necessity for it to be shown to the world. It could have been handled respectfully and privately. Both brands are respected, they are emerging brands and there are just more important things to do with one’s time than bickering on the internet. This brings me back to my major point of this article that I do NOT want you all to lose. Terrence Sambo simply had no business meddling in the contractual relationship of the two companies. He is not an agent of Wana Sambo. To the degree Wana Sambo shared with her brother her frustration about a business dealing with L’Espace, it was not a license for Terrence Sambo to take to twitter and do what he did and then follow up with so called “exclusive” publishing of private emails between the two, given the clear bias he holds as a sibling.
This, to me, is really what is at the heart of this dispute/escalation among these parties.
I really would like to see the African fashion industry put the brakes on this specific conduct that happens far too often. I could list cases that have gone viral from this kind of conduct by third parties or affected parties. If people will insist on taking confidential matters that are clearly marked confidential and are governed by legal contracts to the public which results in economic, mental and emotional injury (among others), then they should be slapped so hard by the injured party with a lawsuit that they forget what actually hit them, when they wake up from the legal drama that ensues.
FYI: Basic Structure of a Breach of Contract Claim
- There was a valid contract between Plaintiff and Defendant
- Defendant Failed to Pefrom
- There was no legally valid reason for the lack of performance
- The failure of Defendant to perform made it impossible for Plaintiff to fulfill its obligations; and
- The Plaintiff has been injured i.e. out of money etc.
Ms. Uduak Oduok is the Founder and Editor-in-Chief of Ladybrille® Magazine. An industry insider with almost two decades of hands on extensive experience in the fashion and entertainment industry, she is also a trial lawyer and has counseled a range of clients from musicians, models, actors and actresses to designers on numerous areas of the law including contracts, business law, fashion and entertainment law, copyright, trademark i.e. intellectual property law. She can be reached at ([email protected]) to share/pitch your Africa Fashion Law™ related stories with her. All other inquiries, please visit the www.ladybrillemag.com/contact for appropriate contact email.
DISCLAIMER: Nothing herein forms an attorney-client relationship. The legal commentary provided is for informational purposes only and is not meant nor should be construed to be legal advice, advertisement, or solicitation for business.
Ms. Uduak is best known as an advocate who uses the tools of media and the law to help creatives and businesses clearly articulate their true brand identities, and communicate it to the world through their products and services, to maximize profits. She is a lawyer, speaker, author, journalist, and recognized thought leader, and trailblazer for her work on Africa’s emerging global fashion and entertainment markets, and the niche practice of fashion law in the United States. She is also the founder and publisher of Ladybrille® Magazine, and an Attorney and Partner at Ebitu Law Group, P.C, where her practice focuses on Fashion, Business, & Entertainment Law and Trials. For more information about her, visit www.msuduak.com.