Note it’s very wide so you have to devote the time to study it.

 

Outcomes

At the end of the lesson, students should be able to:

1. Discuss the scope of the Civil Litigation course;
2. Discuss the different civil disputes settlement mechanisms;
3. Identify and explain the sources of the law of Civil Litigation and discuss the relevance of each source to Civil Processes.
4. Explain and discuss the aims, scope and application of rules of court.
5. Understand the legal and ethical implication of not advising/encouraging the parties to use Alternative Dispute Resolution (ADR).
6. Identify the ethical issues relating to wrong use of rules of court.

 

Scope of civil litigation

Generally law can be classified into two categories:

• Substantive law – this defines the rights, duties and liabilities of persons.
• Adjectival or procedural law – this consist of practice andprocedure which regulates the way these rights, duties and liabilities are enforced or defended in court.

Civil litigation is classified as procedural law. It consists of rules of practice and procedure that govern civil proceedings in court. In this course it consistsof jurisdiction of the court, commencement of action, interlocutory applications, pre trial issues, pleadings, trial proceedings, advocacy, judgments, enforcement of judgments, interlocutory order pending appeals, appeals, sanctions and costs. This list also represents the scope of the course.

 

There are also other irregular procedures e.g. Enforcement of fundamental rights Matrimonial Causes, recovery of premises, election petition etc.

 

Nature of civil litigation  - It is recourse to the court for resolution of disputes between parties as it concerns their legal rights, duties and status.

 

ALTERNATIVE DISPUTE RESOLUTION

This is another mechanism of resolving disputes without having recourse to the law courts. It may be court connected or non-court connected/private.

It may be private/non-connected in the sense that parties can use any form of it upon an agreement reached between them and go by themselves to private institutions, however it can also be court connected. It may be court connected in the sense that ADR can be practiced in the court by the court encouraging the parties to use ADR.

Court annexed ADR centres include Lagos Multi-door Courthouse and Abuja Multi-door Courthouse. We are only focusing on these two jurisdictions because the law school curriculum is only focused on civil litigation in these two jurisdictions. Multi-door Courthouses are court annexed because they are ADR centres where ADR is being practiced not because they have buildings that ADR is being practised in.

 

Mode of commencement of ADR at Multi-door Courthouse:

• By walk in
• By court Referral: This is when a matter has been instituted in court but the judge is of the opinion that the matter can be resolved by ADR and be referred to Multi-door Courthouse See Order 3 rule 11 &Order 25 rule 2(l) Lagos High Court Rules 2012; Order 17 Abuja High Court rules 2004
• By Direct Intervention: ADR has been introduced by the courts as a means of resolving disputes. It means the Multi-door Courthouse can intervene in disputes – they can approach the parties and encourage them to use any of the ADR facilities. Lawyers are duty bound to inform their parties of ADR options. See Rule 1(c) &2(a) of preamble to Lagos High Court Rules 2012; order 25 rule 1(2) (c) Lagos high court rules; order 17 Abuja High Court Rules 2004
• Duty of the court to encourage parties to settle their dispute outside the court. Order 25 (7)

 

TYPES OF ADR MECHANISM

1. Negotiation

Here disputing parties meet voluntarily to bargain among themselves to settle their disputes. It’s about bargaining, there is no 3^rd party facilitator/ intervention. Parties can negotiate either with their lawyers present or without them. Lawyers can also negotiate on behalf of their client. Negotiation does not present a good method for persons with weak bargaining power.

Negotiation strategy can be:

• Competitive or positional approach (win – lose approach)
• Co-operative or problem solving approach (win-win approach)

 

2. Mediation

This is a voluntary process whereby the disputing parties try to settle their disputes with the assistance of an independent third party neutral known as Mediator.

The mediator only facilitates settlement and does not decide the dispute for the parties. He only encourages discussions and negotiations between the parties; the parties themselves are the ones who resolve the dispute,mediation is party-driven. 

Where an agreement is reached in either mediation or negotiation, it will be reduced into writing and is signed by the parties, once signed it becomes binding like a contract. They are signed and filed in court as consent judgment. If it is filed in court the court will register as consent judgment.

 

3. Arbitration

It is referred to as a private judicial determination of a dispute between the parties by an independent 3^rd party called an Arbitrator(s). The Arbitrator presides over the dispute and after hearing gives a decision in the matter i.e. an Award.

An award is final, binding and enforceable. The parties must agree in writing to use arbitration, whereas in mediation and negotiation you don’t need to have a previous agreement to use them. Arbitration is governed by the Arbitration and Conciliation Act Cap A18 LFN 2004. Note also the Lagos state Arbitration law 2009. S 2 of the act provides that it will be applicable to the parties where they choose for it to be applicable to them unless they chose the contrary, in this situation then the arbitration and conciliation act will apply.

It shares some features of litigation, because it is like a private judicial process. Informality and voluntariness makes it to be seen as a form of ADR process.

Lagos state encourages ADR because it saves time and cost.

 

4. Conciliation

Here a third party neutral known asconciliator is used by the parties to intervene in their disputes and help resolve it. It is a lot more interventionist unlike mediation. This is because the conciliator has the power to determine the case between the parties and deliver his opinion as to the merits and demerits of the case, he prepares terms of settlement of parties.

The parties have the right to either accept the terms of settlement or reject it. Where they accept it and they sign it, it becomes binding, but where they reject it the parties are free to go further and use arbitration or institute litigation in court.

 

5. Hybrid processes

This is where more than one ADR process is combined to resolve a dispute. It is usually used by multinationals, government.

 

6. Early neutral evaluation

In this case an independent third party neutral is appointed by the parties to evaluate the merits and weaknesses of each of their cases. Thereafter he gives an opinion on the dispute. The 3^rd party neutral is usually an expert in the field of dispute or a judge. The advantage is that it helps the parties carry out some reality checks that may then lead to settlement.

 

7. Mini trial

Here the parties appoint a neutral third party to preside over the matter as chairman of the tribunal composed of himself and senior representatives of each of the parties.

The representatives will make a written legal presentation of each party’s case, supported with relevant documents, to the chairman.

For ADR decisions to be binding it must be in writing, dated and signed.

 

Note: For this course it isn’t part of our scope to know the types of ADR in detail

 

Advantages of ADR

• It is quicker, fast and saves time
• It preserves relationships
• It is less expensive
• It is party driven
• It is more flexible than litigation; parties can decide the venue, time etc.
• It is private and confidential
• The parties end up more satisfied with the outcomes because it often ends in a win-win situation unlike litigation which promotes a win-lose situation
• It helps the process of decongesting the court.
• It facilitates access to justice
• It is informal because the traditional rules of evidence are not strictly applicable
• It cuts across various jurisdiction
• It saves the parties from rancorous tendencies that arise in litigation

 

Disadvantages of ADR

• The non- binding nature of the decisions may lead to waste of time.
• There are no precedents to follow in ADR because it’s a confidential process and decisions are often not recorded.
• It doesn’t generate revenue for the state unlike litigation.
• The application is limited to some cases.
• It can be expensive because where ADR fails, the parties have to start all over again with litigation. Also when experts are involved it may be expensive to pay for them
• The lack of rules of practice and procedure may delay things whereas litigation has fixed rules, which parties must comply with.

 

When will it be advisable to use ADR?

• When it is difficult to get any of the parties to court.
• When the law is not favourable to any of the parties
• When the cost of litigation is likely to be higher than the amount in dispute
• When there is need for the matter to be resolved expeditiously
• When judgment given by the court will not be easily enforceable
• Where litigation is likely to destroy the parties mutual relationships
• Where parties want privacy and confidentiality.

 

Are there any limitations to use of ADR?

• In election petition matters
• Criminal matters – it is for the state to prosecute criminal matters,
• Matters that require interpretation of the constitution or judicial interpretation.
• Declaratory relief on a persons’ status or rights, ADR cannot be used
• Where urgent reliefs like injunction or injunctive remedies to preservea res are needed, ADR cannot be used.

 

 

SOURCES OF LAWS REGULATING CIVIL LITIGATION

 

• Rules of courts
• Statutes creating the courts
• The constitution
• Decisions of superior courts
• Practice directions
• Sheriff & Civil Process Act/ Laws & Judgment Enforcement Rules
• Special statutes on procedure

 

 

• Rules of Courts

These are rules that are made to govern the practice and proceedings in courts. The rules govern the way civil litigation is to be carried out in the court. All the rules of courts are to be divided into orders, rules and sub rules. The various orders will treat subject matters under civil litigation. While the rules and sub rules under those orders explain and state the steps to take in realising those orders (subject matters).(Popular MCQ question)

Each court has its own rules. Examples include Sharia Court of Appeal rules, Supreme Court rules etc.

Who makes rules for the various courts?

The powers to make rules of courts have been given to specified persons in authority who have been empowered to make rules of court by the constitution.See the 1999 Constitution as amended Supreme Court Rules – s.236 the SC rules are made by the Chief Justice of Nigeria subject to the act of the National Assembly,Court of Appeal rules – s.248 the rules are made by the president of the Court of Appeal subject to any act of the National Assembly, Federal High Court rules S.254 – they are made by the Chief Judge of the Federal High Court subject to an act of the National Assembly. The rules are subject to an act of the National Assembly because they are Federal Courts. The person designated and empowered to make rules of court are usually the heads of the court.

• NIC – President of the National Industrial Court subject to any Act of the National Assembly s254(F)
• High court of FCT, Abuja – Chief Judge of the High Court of the Federal Capital Territory, Abuja subject to the provisions of any act of the National Assembly s.259
• State high courts – S.274 Chief judge of the states subject to any laws of the state house of assembly
• Customary Court of Appeal, Abuja – the president of the customary court of Appeal of the federal capital territory, Abuja subject to the provisions of any act of the National Assembly s.269
• Customary Court of Appeal of States – the president of the customary court of Appeal of the state subject to the provisions of any act of the House of Assembly s.284
• Sharia Court of Appeal, Abuja – s.264 by the Grand Kadiof the Sharia Court of Appeal of the Federal Capital Territory, Abuja subject to any act of the National Assembly.
• Sharia Court of Appeal of States – s.279 by the Grand Kadi of the Sharia Court of Appeal of the states and subject to any law made by the House of Assembly.
• Magistrate Court Rules – S.90 (2) MCL, Lagos, 2009 by the chief judge of the state subject to house of assembly. There is no chief judge of the magistrate court, the chief judge of the state is the head.

 

Rules of Court are not exhaustive. They are not complete codes of civil litigation.

 

• Statutes creating the courts
• They provide rules of practice and procedures to govern the courts. E.g. Supreme Court Act and Court of Appeal Act. See s.27 S.C. act and s.25 C.A Act

 

• The constitution
• It’s the Grundnorm and enabling law
• It makes provision for rules on enforcement of fundamental rights 1979 & 2009
• It also makes provision for jurisdiction of the various courts. The constitution determines the jurisdiction of the various courts.

 

• Decision of superior courts
• Principle ofstare decisis: Certain decisions of superior courts are binding on lower courts and form precedents. So even though they are not in the rules the lower courts are bound by them.

 

• Practice directions
• They are not rules of courts but are directives given by the authorities vested with the power to make rules of court. The directives further state how the rules of courts are to be carried out, complied with and obeyed.
• Where there is aconflict between practice direction and the rules of court then the rules of court will prevail. SeeUniversity of Lagos v Aigoro (1984) 11 S.C p 152

 

• Sheriff and civil process Act/ laws and judgement enforcement rules
• Provide procedure for enforcement and execution of judgment
• Provides also for services of court processes outside of jurisdiction

 

• Special statutes on procedures
• Companies and allied matters act 1990 & companies winding up rules 2001
• Matrimonial causes act cap M7 Vol.8 LFN 2004 & Matrimonial causes act 1983
• Foreign judgments (reciprocal enforcement) rules 1961
• Companies income tax act cap 21 LFN
• Admiralty jurisdiction act 1991 and admiralty jurisdiction rules 1993
• Trades disputes cap T8 LFN 2004
• Electoral Act 2010 as amended
• Evidence act 2011

 

RELEVANCE & APPLICATION OF ENGLISH PRACTICE & PROCEDURE

Old provisions before 1987 English rules of High Court of Justice of England constituted a source of civil procedure because it permitted resort to English rules of practice and procedure in the High Court of Justice in England. See s.12 HCL cap 52, Lagos state; S 16 HCL, Eastern Nigeria; order 35 rule 10 WN Civil procedure rules; s 35 Northern States High Court laws. See AdemolaII v Thomas (1946) 12 WACA p 81.

From 1987, express provisions on resort to English rules of court have been removed. See s2 Lagos state (civil procedure) law cap H4 2004; order 45 rule 13 Lagos High Court Rules 2012. S 1(2) FCT, Abuja High Court Laws 2004; and Abuja High Court Civil Procedure Rules 2004.

 

Is it possible to avoid recourse to English rules?

No, where it is in the view of the judge he can still go back to England even though its not expressly stated.

 

Ethical issues arising from wrong use of Court Rules

 

1. Duty of care
2. Duty not to be negligent in the handling of the clients’ case
3. Duty to show due diligence
4. Duty of Competence