ALTERNATIVE DISPUTE RESOLUTION
ADR can Be Taken Up In 2 Ways:
- Parties Agreement To Resolve their dispute through ADR. Private agreement e.g. Lagos Court of Arbitration, Mediation centers.
- Court Referral- Most courts encourage resolution of disputes by ADR. Under the Rules of Court, the judge has an obligation to encourage parties to refer their disputes to ADR. In this sense ADR is court-connected eg Lagos Multi-Door Court House. Order 25 R. 2(1) HCCPR Lagos state
Order 17 Abuja HCR.
ADR relate to the alternative methods of dispute resolution that is aside litigation. In other words, should a potential litigant not be willing to go to court, which other method can be used to resolve the dispute. The following are the methods available.
- Negotiation: Parties do not need a third party to settle. They do the offer and acceptance of terms amongst themselves. Limit:Stronger bargaining power
- Mediation: Parties settle amongst themselves with the help of a neutral third party known as a mediator who only facilitates the process of settlement. He helps them maintain communication and help them shift to interest-base to ensure an amicable resolution. It is a win-win system. ENFORCEMENT: After the parties agree to the terms, they sign and date the outcome as witnessed by their lawyers. Thereafter, the parties file it in court and agree that the terms of settlement be made a consent judgement by the court. Mediation is governed by the rules of the mediation center.
- Conciliation: Here, conciliation is governed by ACA. The conciliator comes up with an opinion which is reduced to terms of settlement for parties to sign which is at the discretion of the parties. The conciliator tries to enforce his opinion on the parties.
- Arbitration: an arbitrator who sits as an umpire to decide the case is appointed. He hands down an award which is like a judgement of the court enforceable at the High Court. The parties may set aside the judgment in the HC on the grounds of Sections 29 and 30 of ACA, otherwise the award is binding. Bindingness of the award.
- Hybrid process e,g Neg-Med, Med-Arb often used in cases of breach of contract.
- Early Neutral Evaluation: Used in International commercial transactions.ample a dispute between Chevron and Shell, a petrochemical Engineer comes as an early neutral evaluator to evaluate the strength and weaknesses of the case. The parties then decide whether to go on with litigation or resolve amicably.
Advantage of ADR over litigation
- It is cost-effective: In short term, ADR can be more expensive than litigation but in long term it is cheaper than litigation. In ADR, all the expenses are borne by the parties while in litigation; some of the expenses are not borne by the parties.
- Preservation of relationship between the parties: Most ADR has a win-win situation on both sides, although arbitration is now similar to litigation as it is governed by stringent rules where there is a winner and loser. Strictly in litigation, it is a win-lose situation. Preserves the pre-dispute relationship between the parties.
- Privacy of the parties: ADR helps preserve the privacy of the parties. In litigation, the process must be held in public except under certain conditions thus in private. Again most parties to litigation do not return as friends even in matrimonial proceedings. And in commercial area of law, ADR is most relevant as there might still be need to continue business relationship.
- It is less formal: The court room where litigation is carried out is usually tense. For the lawyers, it is difficult, there are a lot of rules and procedures which must be followed and also for the layman, it is extremely difficult. In ADR session, it is more of business meeting where coffee can even be served. Hence the layman is likely to prefer such environment.
- The parties can determine the umpires. They determine the mediator or arbitrator or conciliator.
- Involvement of people: ADR processes are parties driven. Parties can determine the time, venue, language and pace in the ADR process. In litigation, parties are not involved. It is controlled by the court.
- Saves time.
- Encourages compromise
- Decongest the cases before the courtrooms
- Encourages the use of experts.
Disadvantages of ADR
- ADR hinders the development of case law..
- Lack of binding force: ADR processes usually lack binding force except arbitration as the ACA provides for its bindingness. However for the others that have no binding force, the parties can and usually make an effort to reduce the decision reached in the ADR process into a binding agreement. In other words, by their own nature, most are not binding but there are means to making them binding.
- Parties can easily re-open the matter EXCEPT in Arbitration.
- Its application is limited in some cases.
- The other methods have no legal framework. Only arbitration and conciliation have binding force under ACA
- Decisions are usually not appealable.
Limitation of ADR
- Where the case is purely a criminal matter..
- Election petitions, being matters of public policy cannot be resolved through ADR.
- In matrimonial causes, because parties have to come to court to give evidence in the case of dissolution of marriage and judicial separation.
- Certain matters that require evidence to be proved. For instance, a declaratory relief being sought must be proved by evidence.
- Injunction restraining an act.
- Enforceability of judgement
- Enforcement of FHR.
- Interpretation of statutes and the Constitution.
SOURCES OF CIVIL LITIGATION
The following are the various sources of civil litigation
- Rules of courts
In practice, every court has its own rules that guide practice and procedure of such court. In this like, there is the Supreme Court Rules, Court of Appeal Rules, Federal High Court Rules, State High Court Rules, down to Sharia and Customary Court Rules.
- The Constitution
The function of the constitution as it relate to it being a source of civil litigation can be divided into the following:
- The constitution creates the court. Section 230(1), 237(1), 249(1), 270(1) of CFRN 1999 creating the Supreme Court, Court of Appeal, Federal and State High Court respectively.
- The constitution gives power to the courts.
- The constitution prescribes the authority to make rules. Section 236 CFRN conferring power on the CJN to make rules regulating the practice and procedure in the Supreme Court.
- The constitution also has rule on civil litigation. Section 36 CFRN on fair hearing; section 233 on appeal to the Supreme Court.
- Statutes creating courts
Rules of court are also made pursuant to statutes creating the courts. Also there are certain provisions in the statute directly on procedure. For instance, s. 7 & 25 of Supreme Court and Court of Appeal Act respectively on time within which an appeal can be made. 14 days for interlocutory judgments and 3 months for final judgments.
- Special statutes on procedure (civil)
Aside from the rules of court, there are statutes which have provisions on civil litigation. These statutes can cover an aspect of civil litigation. E.g. Admiralty. These special statutes include the following:
- The Sheriffs and Civil Process Act/Law and The Judgment (Enforcement) Rules. This is an Act of the National Assembly by virtue of the fact that the subject matter of the Act is found in item 57 of the exclusive legislative list, thus applicable in the whole federation. Hence, any law of a state in that respect is only applicable to Magistrate (South), District (North), Customary and Sharia Courts.
- Foreign Judgments (Reciprocal Enforcement) Act. It gives procedure on how a foreign judgment is to be enforced.
- Companies and Allied Matters Act. Under CAMA there are the Companies Winding up Rules 2001 and Companies Proceedings Rules 1992. There are rules on civil litigation but apply only to companies or entities under CAMA.
- Companies Income Tax Act under it, the Federal High Court (Tax Appeals) Rule 1992 was enacted.
- Admiralty Jurisdiction Act under it the Admiralty Jurisdiction Procedure Rules was made.
- Matrimonial Causes Act and Matrimonial Causes Rules, all on practice and procedure for matrimonial causes.
- Practice direction
These are rules and guidelines given by the necessary or appropriate authority when a lacuna exists in procedure. Examples are:
- A multi-door court rules is a practice direction.
- In election petition s, the 1st schedule to the Electoral Act had nothing like front loading but a practice direction was issued to that effect.
- In the National Industrial Court, the president introduced front loading based on practice direction.
Whenever the rules may be short or inadequate the appropriate authority can quickly issue guideline. It is pertinent to note that a practice direction is not expected to depart from or be inconsistent with the rules of court, because it is not an enactment therefore has no force of law. As between the statute creating court and rules of court, the statute creating court is superior and as between the statute and the constitution, the constitution is superior, as between the rule and practice direction, the rule prevails.UNILAG V AIGORO.
- Decisions of courts on procedure
There are some rules of procedure that are derived from decision of courts. For instance, the rules relating to grant of injunctions were developed by the court through it decision. Also the rule that require addressing the court before ordering a non-suit. For instance, where there are two motions before the court of which one will render the suit competent or preserve the suit and the other would strike it out, the rule is that the court would first hear the motion that would make the suit competent before the other. NALSA TEAM AND ASSOCIATES V NNPC.
The question has been asked as to the relevance of English rules in civil litigation. Section 26 of Lagos High Court Act, the position then was that when there is a lacuna, the English rules should be referred to. However, the position now is that where there is a lacuna, the court would take steps to do substantial justice. In this like, the court shall decide to go to England (English rules) when substantial will be done. SEE ORDER 1(2)HCCPR(ABUJA), ORDER 1 R 1(3)HCCPR(LAGOS)
JURISDICTION OF COURT
It is a function of law. In one word, it is power of the court to decide a dispute between parties. Every court is established by some laws and it usually the law establishing the court that also defines the jurisdiction of the court. In Madukolu&Ors v. Nkemdili, the court stated three conditions that must be in existence before the court can be said to have jurisdiction. These are:
- There must be constitution as to qualification and numbers of members of the bench and no member is disqualified for one reason or another.
- Subject matter of the dispute must be within the jurisdiction of the court and no feature in the case which prevents the court from exercising its jurisdiction.
- The case must have been brought to court in accordance with due process after satisfaction of relevant provisions on condition precedents.
There should be a distinction between procedural and substantive jurisdiction. Substantive jurisdiction is the jurisdiction that relate to the subject matter of the dispute. This kind of jurisdiction can be raised at anytime even at the Supreme Court for the first time. It can also be raised suomotu by the court.
Procedural jurisdiction relates to matters of practice such as : preaction notice, matters statute barred, res judicata, hence not being substantive jurisdiction must be done timeously. If it is not so done, then such party would be deemed to have waived it. Thus procedural jurisdiction cannot be raised at anytime but must be raised timeously.
COURTS IN NIGERIA
The Supreme Court is established by section 230(1) CFRN.
Composition is CJN plus 21 Justices (not more than that). Section 230(2) CFRN.
Constitution – At least 5 Justices, however on the following, it must be 7 justices. Section 234, exercising original jurisdiction, interpretation or application of the constitution, contravention of chapter IV – fundamental rights.
Appointment – CJN is appointed by the President on recommendation of NJC subject to confirmation of Senate – section 231(1). Same for other justices – section 231(2) CFRN.
Removal – sections 292(1) (a) provides that the CJN to be removed by the President acting on address supported by 2/3 majority of the Senate. The question then is, does the National Judicial Council not have any role to play based on the express provision of section 292 CFRN.
The Supreme Court in EleluHabeeb v. Attorney-General of Kwarastate, stated that other statutes and provision of the constitution should be read along section 292 of CFRN. As it is by reading these other statutes that the function of the NJC which actually recommend removal to the president would be found. In effect the proper interpretation of section 292 cannot be done in isolation.
The Supreme Court has both original and appellate jurisdiction in civil litigation.
- In disputes between the federal and state government. Section 232(1).
- In dispute between states.
In accordance, section 232(2) which empower the National Assembly to confer additional original jurisdiction in respect of civil matters on the Supreme Court, the National Assembly enacted the Supreme Court (Additional Original Jurisdiction) Act 2002. These additional original jurisdiction are section 1(1) (a)-(c)
- In dispute between the National Assembly and the President.
- In dispute between the National Assembly and state government/state of the federation.
- In dispute between the National Assembly and State House of Assembly.
Hence the Supreme Court now has original jurisdiction in five aspects. The schedule to section 2 of the Act states that both the National Assembly (consisting of Senate and House of Representative) must have passed a resolution supported by a simple majority; and the State House of Assembly must have passed a resolution supported by a simple majority. The nominal parties as found in section 3 is National Assembly, State House of Assembly is speaker of the State House of Assembly.
Generally, nominal parties for the federation and the states are Attorney-General of the federation and Attorney-General of the state. Section 20 Supreme Court Act.
- Appellate jurisdiction of the Supreme Court as found in section 233 lies from the court of Appeal as of right or with leave of the Court of Appeal or Supreme Court
Pursuant to section 234 1999 CFRN, the SC shall be duly constituted if it consists of not less than five justices. Provided that when it assumes its original jurisdiction, and it sits to hear appeals of application and interpretation of the constitution; and questions on the provisions of chapter IV , it shall be constituted by seven justices..
Court of Appeal
Section 237(1) CFRN creates the Court of Appeal
Composition – President of the CA plus not less than 49 justices.
Constitution: At least 3 in exercising an original jurisdiction and in appeal from Sharia Court of Appeal or Customary Court of Appeal, 3 justices learned in Islamic personal law or customary law as the case may be. Section 247(1)(a)&(b) CFRN
Qualification: At least 12 years at the bar.
Jurisdiction: The Court of Appeal has both original and appellate jurisdiction. Original jurisdiction – section 239(1)
- Valid election to the office of the president/vice president.
- The term of office of president/vice president has ceased
- The office of the president/vice president has become vacant.
Appellate jurisdiction – section 240 of CFRN
- State High Court
- Federal High Court
- High Court of FCT
- Customary Court of Appeal of a state
- Court martial
- Sharia Court of Appeal of FCT and a State
- National Industrial Court
- National and State House of Assembly Election Tribunals
- Governorship Election Tribunal
- Code of Conduct Buruea Tribunal.
By virtue of the second alteration to the 1999 constitution, in section 246(3) the decision of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly Election petition Tribunal shall be final. Also, the decisions in respect of civil appeals from the NIC is final. Section 243(4)
Federal High Court
Section 249 (1) of CFRN, 1999 created the Federal High Court.
Composition – a chief judge and such other number of judges as prescribed by the Act of National Assembly.. section 249(2) CFRN 1999.
Constitution – section 253 CFRN at least one judge
Appointment – section 250, same as Court of Appeal
Qualification – at least 10 years at the bar.
Jurisdiction – section 251(1) (a)-(s) CFRN, 1999. In addition to other jurisdiction to be conferred by an Act of National Assembly, it has exclusive jurisdiction in the following matters
- Revenue of the government of the federation whether it or its organ as a plaintiff or defendant.
- Taxation of a company, bodies established to carry on business and persons subject to federal tax. Companies Income tax – Federal High Court; Personal Income Tax – state of residence; residents of Abuja are subject to federal taxation but those in other states, Personal Income Tax.
- Customs, excise duties, export duties, claim against Nigeria Customs Service or any member or office relating to performance of their duties.
- Operation of CAMA or any law replacing CAMA. For instance, removal of a director by Federal High Court
- Any law on intellectual property, copyright, patents, business name, trade mark, industrial designs.
- Admiralty matter, shipping, carriage by sea, River Niger, River Benue, other inland waterways designated to be international waterways, federal ports.
- Diplomatic, consular and trade representation
- Citizenship, deportation, extradition, immigration, emigration, nationalization
- Bankruptcy and insolvency
- Aviation and safety of aircraft
- Arms, ammunition, explosives
- Drugs and poisons
- Mines and minerals
- Weights and measures
- Interpretation of the constitution that affect federal government or any of its agencies.
- Action, declaration, injunction affecting validity of executive or administrative
- Such other exclusive civil jurisdiction to be conferred on it by an Act of National Assembly.
CASES ON THE POINT
(READ YOUR HANDWRITTEN NOTES.)
High Court of a State
Section 270(1) CFRN, 1999 creates a High Court for each state and section 255(1) CFRN, 1999 create the High Court of the FCT.
Composition – a chief judge and such number of judges as prescribed by law of the House of Assembly of that state or Act of National Assembly for FCT.
Constitution – at least one judge of the court. If the state high court is more than one judge then all the judges must be judge of the state high court. This is the decision of Oloriegbe v. Omotosho.
Appointment – chief judge is appointed by the governor on recommendation of NJC and confirmation by the House of Assembly of the state. For other judges, no need of confirmation by House of Assembly – section 271(1)(a) & (b) CFRN 1999.
Qualification – at least 10 years at bar.
Jurisdiction – subject to section 251, 254 of the third alteration of the CFRN, 1999. The National Industrial Court and Federal High Court are courts of enumerated jurisdiction. Thus once a matter is not within the jurisdiction of the state high court. Despite the restriction on the jurisdiction of the state, it is still the court with largest jurisdiction. Once jurisdiction given to other court is not specify to be exclusive, it share concurrent jurisdiction with such court. Original jurisdiction relate to wills, title to land inter alia. It has appellate jurisdiction to hear matter from the Magistrate (south) or District (north) and supervisory jurisdiction over Customary and Area courts.
Magistrate court (Lagos)
The jurisdiction of the Magistrate court has a flat rate. In Lagos state under the Magistrate Court Law, the flat rate is N10, 000, 000 (ten million). Their jurisdiction is in the following areas
- Personal actions arising from tort and contracts
- Action between landlord and tenant for possession
- Action for recovery of any penalty, rates, expenses etc
- Appointment of guardian ad litem
- Power to grant injunctions
A Magistrate court would have jurisdiction when excess of claim is abandoned. It does not have jurisdiction in issue of title to land or any interest in land; issue as to the validity of devise, bequest or limitation under any will or settlement.
District courts have civil jurisdiction in north. The Sharia Court of Appeal must be established for the FCT but for other states, it is optional. Same for Customary Court of Appeal.
Customary and Area Courts
In the south, it is the Customary court. In Lagos state, the AG of Lagos state is empowered under the Customary Court Law to establish a single grade of customary court. The Customary court has jurisdiction over persons who are subject to customary law. In the north, appeal lie from upper Area court to Sharia Court of Appeal.. The jurisdiction of the Area court is subject to that contained in the warrant establishing it.
Election tribunals. SECTION 285 CFRN 1999(as amended)
The Court of Appeal, for election to the office of the president and vice president. This is an election tribunal for the purpose of elections and appeal from it lies to the Supreme Court.
The National and State House of Assembly election tribunal as contained in section 1 of the CFRN (second alteration) Act, sixth schedule.
Composition – is a chairman and two other members. The chairman shall be a judge of a High Court and other members (two) shall be appointed from judges of a High Court, kadis of a Sharia Court of Appeal, or judges of a Customary court or other members of the judiciary not below the rank of a chief magistrate. Section 1(2) CFRN (second alteration) Act.
Appointment – the chairman and other members are appointed by the president of the Court of Appeal in consultation with the chief judge of the state, grand kadi of the Sharia Court of Appeal of the state or the president of the Customary Court of Appeal of the state. Appeal from the National and State House of Assembly lie to the Court of Appeal and ends there – section 7(3) CFRN (second alteration).
The governorship election tribunal has the same as the National and State House of Assembly in section 2 of CFRN (second alteration) Act. Appeal from the governorship election tribunal lie to the Court of Appeal and then to the Supreme Court. Section 6(2)(e)(vi) CFRN (second alteration) Act. It is the only election tribunal that enjoys two appeals.
National Industrial Court – section 254 (third alteration)
Section 254 A (i) of the CFRN (third alteration) Act established the NIC of Nigeria.
Composition – The president and such other number of judges as may be prescribed by an Act of the National Assembly
Constitution – one judge or a panel of three judges as may be directed by the president of the court.
Appointment – appointed by the President on recommendation of NJC and senate confirmation. Other judges are appointed by President and on recommendation of NJC – section 254 B (1) & (2).
Qualification – qualified to practice as a legal practitioner and has been so qualified for a period not less than 10 years and has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria.
Jurisdiction – section 254 C. The jurisdiction of the NIC has to do with employment conditions and industrial relations, labour. It covers Factories Act, Trade Dispute Act, Trade Union Act, Labour Act, Employees’ Compensation Act, International Conventions relating to labour, employment, workplace, industrial relations or matters connected therewith, chapter IV as it relates to employment, labour, industrial relation, trade unionism, employer’s association. The jurisdiction of the NIC is extant notwithstanding the jurisdiction of the Federal High Court, High Court of States and High Court of FCT
. In case of dispute involving federal government and its employees, the cases of NEPA v. EDEGBERO, KRPC LTD v. ONUORAH should be used in determining which court between the Federal High Court and NIC has jurisdiction. The question of jurisdiction is very important as a court without jurisdiction hearing a matter would amount to effort in nullity. Where a court lacks jurisdiction and party bring a matter before it, it can lead to abuse of court process, also non-professionalism and show of incompetence in the legal practitioner. It can lead to delay of justice. It can make the subject matter of action statute barred. Parties cannot by themselves confer jurisdiction on a court. If a counsel brings an action to the wrong court and the court denied jurisdiction and the case becomes statute barred, the legal practitioner has breached the rules of RPC on competency – Rule 16 RPC
The legal practitioner can be sued for negligence which amounts to professional misconduct. RULE 14(5) RPC..
TRANSFER OF CASES
FEDERAL HIGH COURT: Section 22(2) FHC Act, the FHC can transfer cases it does not have jurisdiction over to the SHC. It should NOT strike out the action. MOKELU V FEDERAL COMMISSIONER FOR WORKS AND HOUSING
STATE HIGH COURT: Section 22(3) of the FHC Act empowers the SHC to transfer cases it has no jurisdiction over to the FHC . However this has been held to be contrary to Section 274 of the 1999 Constitution which empowers the chief judge of a state to make laws that govern practice and procedure of the SHC, subject to any law made by the State House of Assembly. FASAKIN FOODS(NIG) LTD V SHOSANYA.
NOTE: ORDER 32 RULE 1 HCCPR ABUJA, empowers a judge of the FCT high Court to transfer a case pending in his court or lower court of the FCT to the appropriate court of competent jurisdiction.
NATIONAL INDUSTRIAL COURT: section 24(2) NIC Act empowers the NIC to transfer causes and matters to the High Court or the Federal High Court as appropriate. Order 28 R 1 of the NIC Rules also make similar provision.
FHC TO MAGISTRATE COURT: SECTION 26 FHC ACT
TRANSFER OF CASES FROM MAGISTRATE COURT TO FHC: SECTION 27 FHC. HOWEVER, this section cannot validly preserving yeh practice and procedure to be followed in the magistrate court. For a court to validly transfer a case to another court, it must be validly empowered by its won rules to do so. FASAKIN FOODS(NIG.) LTD V SHOSANYA.