ANSWERS TO THE TASK ON CIVIL LITIGATION (WEEK 3) GROUP 2

NIGERIAN LAW SCHOOL

LAGOS CAMPUS

2015/2016 (NOVEMBER) SESSION

ANSWERS TO THE TASK ON CIVIL LITIGATION (WEEK 3)

GROUP 2

QUESTION 1

i.                    Arbitration

ii.                  Conciliation

iii.                Mediation

iv.                Negotiation

i.                    Arbitration: - This is a means of dispute resolution whereby two parties to a contract agree that whenever a dispute arises during the course of their contractual relationship, a third party (usually called the arbitrator), or a group of third parties (the arbitral tribunal), will resolve such dispute by hearing both parties and rendering an award (judgment) to that effect. In Nigeria, arbitration is generally governed by the Arbitration and conciliation Act (A 18 LFN 2004), while in Lagos, it is generally governed by the Arbitration Law of Lagos 2009.

Advantages

·         Arbitration is more flexible than litigation. The parties are often encouraged to participate in the resolution process. Also, arbitral hearings are scheduled to meet the concerns of busy parties. Negotiating within the framework of a cooperative process may well lead to a mutually beneficial solution to a disagreement.

·         Arbitration is typically cheaper than traditional litigation.

·         Arbitration is usually resolved speedily and more expediently.

·         The arbitrator is usually vast in the area of the dispute, since he is appointed on the basis of his technical expertise of the subject.

·         The parties to the arbitration have the luxury of appointing arbitrators upon a consensus.

Disadvantages

·         The cost of arbitration could be expensive especially where there is a panel of arbitrators

·         The arbitral award, like a court judgment, has limited rights of appeal.

·         An arbitrator may make an award based on the broad principles of justice and equity, and not necessarily on the rules of law or evidence.

·         There sometimes, exist the possibility of compromise.

·         It is not an ideal method to get to the truth of the matter, unlike in a courtroom where lawyers have various tools to get people to testify and produce evidence.

ii.                  Conciliation: - this involves disputing parties and a neutral third party who seeks to determine how the disputes should be resolved. The conciliator after examining the case of the parties and hearing them, if necessary, proceeds to prepare a draft term of the settlement and submits it to both parties for their consideration. If accepted by the parties, it is signed by both parties and the parties will become bound by the agreement.

Advantages

·         It helps parties to focus on the issue, using a conciliator with knowledge and expertise in the dispute area, helps facilitate a resolution and it can become binding if agreed by both parties.

·         The parties can choose the timing, language, place, structure and content og the conciliation proceedings.

·         It is time and cost efficient due to its informal and flexible nature.

·         It ensures confidentiality.

Disadvantages

·         There is no set time limit.

·         The process of conciliation might require several sessions, thus, increasing the cost and time.

iii.                Mediation: - This is a process whereby the parties to a dispute come together in confidence, with a neutral third party in order to explore how to resolve the dispute amicably. The mediator just facilitates the arrival of a solution pleasing to both parties. If mediation fails to resolve the dispute, both parties are free to pursue another means of dispute resolution.

Advantages

·         It is quicker, easier and less expensive. It can provide a more complete solution than going to court.

·         Parties also have the opportunity of selecting a mediator with substantive knowledge.

·         The process is voluntary, except where mandated by contract or legislation.

·         Agreement reached binds the parties.

·         Communication is without prejudice, and if no agreement is reached, parties can pursue other options.

·         Even though a settlement is not reached, it assists in clarifying and narrowing issues. It also fosters a climate of openness, cooperation and collaboration.

·         Disadvantages

·         Strong-willed or incompetent mediator can exercise too much control.

·         Disclosure of information and truthfulness of communication depends on good faith of the parties, as mediation cannot compel good faith.

·         This form of dispute resolution may not adequately protect parties’ legal rights.

iv.                Negotiation: - It entails parties discussing and agreeing to terms, or reaching certain agreements without the aid or intervention of a third party. There are two types of negotiation, namely: competitive or positional strategy (win or lose option) and; co-operative or problem solving strategy (win-win approach). The former is a hostile negotiation in which the parties have set their minds not to change their stand or compromise, while the latter, enables the parties to focus on their interests and pick from several options that will resolve the matter amicably.

Advantages

·         Speedy and informal resolution of disputes.

·         Confidentiality and avoidance of publicity.

·         It may improve communication between parties, thereby preserving or enhancing relationships between parties.

·         Parties create their own process and draft their own agreement.

·         The process is voluntary.

Disadvantages

·         Parties are not compelled to continue with negotiation.

·         It does not produce legal precedents.

·         It may not adequately protect parties’ legal rights.

QUESTION 2

1.      The sources of civil procedure include:

·         Rules of Courts

·         Statutes creating courts

·         1999 constitution

·         Judicial decisions

·         Practice directions

·         Special statues on procedure

·         Rules of ‘courts: - the various courts in Nigeria, have their rules of civil practice and procedure subject to the operation of the Constitution of the Federal Republic of Nigeria, 1999, or some other written laws or for the greater interest of justice. Examples are: Supreme Court Rules 1985; Court of Appeal Rules 2011, etc. It governs the conducts of trials and appeals.

·         Statutes creating courts: - the statute establishing the courts is also a source in that such statutes may specifically provide for the procedure to be adopted. For example, the time within which an appeal may be lodged both at the court of Appeal and the Supreme Court. Where rules are made under the enabling provisions of statutes creating the courts, they become subsidiary legislation under the statute or constitution. Rules made under the enabling provisions of the constitution overrides statutory provisions whenever a conflict arises.

·         Judicial decisions: - Some rules of civil procedure arise from decisions of superior courts or practice of superior courts as handed down in judicial decisions. An example is the requirement that a trial judge should invite the parties or their counsel to address him on the propriety or otherwise of making an order on non-suits, was until very recently, not provided for in the rules but a formation of the courts.

·         Practice directions: - These are directions given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed and obeyed. In this role, it may be consulted for a fuller understanding of the rule. The appropriate authority is the authority vested with the power to issue practice direction, and more often, the same body vested with rule making authority is usually the Chief Judge of each High court.

·         Special statutes on procedure: - Although rules of court apply to civil proceedings, there are certain aspects of procedure that may not be covered in the rules. There are therefore specific rules governing specific procedures and proceedings. Example is the Companies Winding Up Rules 2001, for winding up proceedings of companies.

QUESTION 3

Case study 1-

The case should be filed at the Lagos state high court because it is a simple contract and as such, the state high court has exclusive jurisdiction as was decided by the Supreme Court in Onuoha v K.R.P.C [2005] All FWLR pt. 256, 1356. As regards the composition of the State High Court, section 270 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), establishes the High Court of each state. Section 270(2) of same Constitution states that the High Court of a state shall consist of (a) a Chief Judge of the state and (b) Such number of judges of the High Court as may be prescribed by a law of the House of Assembly of the State. As regards the constitution, a high court of a State shall be properly constituted if it consists of at least one judge –Section 273 of the Constitution.

As regards the procedure for appointment, the governor of the state (Lagos state in this instant) acting on the recommendation of the National Judicial Council, shall appoint the judge, this is on the authority of Section 271(2). Also, a person that will be appointed as a judge must be a legal practitioner of at least 10 years post call experience in the bar [section 271 (3)].

As regards the removal of the Chief Judge or a Judge in Lagos state High Court, section 21 (d) of the Part 1 of the Third Schedule to the Constitution was emphatic and it states that “the National Judicial Council shall have power to recommend to the Governor, the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph and to exercise disciplinary control over such officers”

Case Study 2                                                                                                                               

The High Court of Enugu state has jurisdiction on the matter as it is a matter of tort of defamation of which states High Courts have exclusive jurisdiction by virtue of section 272(1). The composition, constitution, appointment and removal has been dealt with above (case study 1)

Case Study 3

The court that has jurisdiction on this matter is the High Court of the Federal Capital Territory. As regards the composition of the High Court of the Federal Capital Territory, section 255(1) of the Constitution establishes the Court. Section 255 (2) of same Constitution states that the High Court of the Federal Capital Territory, Abuja shall consist of (a) a Chief Judge of the Federal Capital Territory, Abuja and (b) Such number of judges of the High Court as may be prescribed by an Act of the National Assembly. As regards the constitution, a High Court of the Federal Capital Territory shall be properly constituted if it consists of at least one judge of that court -section 258 of the Constitution.

As regards the procedure for appointment, the President,  on the recommendation of the National Judicial Council shall appoint the judge [Section 256 (2) of the Constitution] also, a person that will be appointed as a judge must be a legal practitioner of at least 10 years post call experience in the bar [section 256 (3) of the Constitution]. Also, Part 1 of the Third Schedule to the Constitution section 21 (a) (ii) states that “the National Judicial Council shall have power to recommend to the President from among the list of persons submitted to it by the Judicial Service Committee of the Federal Capital Territory, Abuja, persons or appointment to the offices of the Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja...”

 As regards the removal of the Chief Judge or a Judge in High Court of the Federal Capital Territory, Abuja, section 21 (b) of the Part 1 of the Third Schedule to the Constitution was emphatic and it states that “the National Judicial Council shall have power to recommend to the President, the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph and to exercise disciplinary control over such officers”

Case Study 4                                     

The Court with the requisite jurisdiction here is the National Industrial Court as the matter relates strictly to employment matters which the National Industrial Court as established by section 254A of the Constitution.

Section 254A (2) of same Constitution states that the National Industrial Court shall consist of the President of the National Industrial Court and Such number of judges of the National Industrial Court as may be prescribed by an Act of the National Assembly. As regards the constitution, Section 254E of the Constitution stated that the National Industrial Court shall be properly constituted if it consists of a single judge or not more than 3 judges as the President of the National Industrial Court may direct.

As regards the procedure for appointment, the President, on the recommendation of the National Judicial Council shall appoint the judge [Section 254B (2) of the Constitution] also, a person that will be appointed as a judge must be a legal practitioner for a period of not less than10 years and has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria [section 254B (3) of the Constitution]. Also, Part 1 of the Third Schedule to the Constitution section 21 (a) (i) states that “the National Judicial Council shall have power to recommend to the President from among the list of persons submitted to it by the Federal Judicial Service Commission, persons for appointment to the offices of the President and Judge of the High Court of the National Industrial Court”

 As regards the removal of the President or a judge of the National Industrial Court section 21 (b) of the Part 1 of the Third Schedule to the Constitution was emphatic and it states that “the National Judicial Council shall have power to recommend to the President, the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph and to exercise disciplinary control over such officers”

Case Study 5

In as much as there is a Conciliation agreement prior to litigation by the parties, then no court has jurisdiction on the matter until and unless the conciliation process has been dispensed with. Hence the objection of the counsel to K & T is well founded and has basis in law.

Case Study 6

The Court that has jurisdiction on this matter is the National Assembly Election Petition Tribunal of Delta State as was expressly provided for and established by section 285 (1) (a) of the Constitution. The composition of the national and state house of assembly election tribunal and the governorship election tribunal respectively is set out in the sixth schedule.

As regards the constitution, it is provided in the sixth schedule sub 1 (1) that a national and state house of assembly election tribunal shall consist of a chairman and two other members, (2) provides that the chairman who shall be a judge of a high court and the two other members shall be appointed from among judges of a high court, kadis of a sharia court of appeal, judge of a customary court of appeal or other members of the judiciary not below the rank of a chief magistrate. This appointment shall be made by the president of the court of appeal in consultation with the chief judge of the state, the grand kadi of the sharia court of appeal of the state or the president of the customary court of appeal of the state as the case may be as provided in (3) of the sixth schedule. As to removal we are of the position that the president of the court of appeal can remove since he who hires can fire as provided in section 11(1)(b) of the Interpretation Act CAP I23 LFN 2004 which states that “where an enactment confers the power to appoint a person either to an office or to exercise any function whether for a specified period or not the power includes-power to remove or suspend him”.

Case Study 7

The Federal High court has jurisdiction in this matter by virtue of section 251 (1) (i) of the Constitution which grants exclusive jurisdiction to the Federal High Court in such matters.

As regards the composition of the Federal High Court, section 249 (1) of the Constitution establishes the Court. Section 249 (2) further states that the Federal High Court shall consist of a Chief Judge of the Federal High Court  and such number of Judges as may be prescribed by an Act of the National Assembly. The Federal High Court shall be properly constituted if it consists of at least one judge in that court –Section 253 of the Constitution.

As regards the procedure for appointment, the President,  on the recommendation of the National Judicial Council shall appoint the judge [Section 250 (2) of the Constitution] also, a person that will be appointed as a judge must be a legal practitioner of at least 10 years post call experience in the bar [section 250 (3) of the Constitution]. Also, Part 1 of the Third Schedule to the Constitution section 21 (a) (i) states that the National Judicial Council shall have the power to recommend to the President from among the list of persons submitted to it by the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Judge and Judge of the Federal High Court.

 As regards the removal of the Chief Judge or a Judge in the Federal High Court, section 21 (b) of the Part 1 of the Third Schedule to the Constitution was emphatic when it stated that “the National Judicial Council shall have power to recommend to the President, the removal from office of the judicial officers. This is also stated in section 292 (1)(a)(i) and (b).

Case study 8

Federal High Court has exclusive jurisdiction on matters bordering on Maritime. This is provided for in Section 251 (g). As regards the establishment, constitution, appointment and removal, it has been handled in case study 7 above.

Case Study 9                                                                                

In this scenario, the Lagos state High Court has jurisdiction by virtue of
Section 257 of the Constitution. As regards the establishment, constitution, appointment and removal, it has been handled in case study 1 above.

QUESTION 4

Ethical issues arising from

a.       Wrong use of the rules of the Court:

i.        It is unethical and unprofessional for a lawyer to misuse the rules of a court as it may obstruct the course of justice, or rub the courts off its jurisdiction. The legal practitioner in question will be in breach of rule 30 of the Rules of Professional Conduct for Legal Practitioners 2007, which provides that a lawyer shall not do an act that may obstruct or adversely affect the administration of justice.

ii.      It shows incompetence/unprofessionalism on the part of the lawyer.

iii.    The rules of the court are meant to be obeyed as was laid down in the locus classicus case of Williams V Hope rising Funds Society (1982) 2 SC 145, where the court held that the rules of the courts are meant to be obeyed by all parties before the court, and no favour should be shown for not obeying same.

b.      Wrong choice of court:

                                i.            It shows professional incompetence.

c.       Consequential sanctions:

i.                    Consequence of bringing a case to the wrong court: -

·         The court will strike out the suit for lacking jurisdiction. See Madukolu V Nkemdilim.

·         The court may transfer the case to the court that has jurisdiction.

ii.                  Consequence of applying the wrong rules of court:

·         Generally, the rules of court must be obeyed, and the court may sanction the party infringing the rules of court by setting aside, either wholly or in part, the processes brought before it.

·         The court may ignore the error in a bid to do substantive justice if it is a mere error in technicality.

·         The court may give room for amendment, or order such cost to be paid to regularise the proceedings.