A MATERIAL ON ALTERNATIVE DISPUTES RESOLUTIONS AND CIVIL PROCEDURE GENERALLY

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1 IME UMANAH CHAMBERS LAW IME UMANAH CHAMBERS A.K.A. TRAILBLAZERS INN OF COURT FACULTY OF LAW, UNIVERSITY OF UYO, UYO NIGERIA. LEGAL STUDIES RESEARCH PAPER SERIES RESEARCH PAPER 2015 January, 2015 A MATERIAL ON ALTERNATIVE DISPUTES RESOLUTIONS AND CIVIL PROCEDURE GENERALLY EMMANUEL, MICHAEL MATTHEW LLB V [FACULTY OF LAW, UNIVERSITY OF UYO, UYO] This paper can be downloaded without charge from

2 1. ALTERNATIVE DISPUTE RESOLUTION (ADR) ADR refers to other processes for resolving dispute outside litigation. FORMS AND TYPES OF ADR 1. Negotiation 2. Mediation 3. Conciliation 4. Arbitration Hybrid Process MED-ARB, Early Neutral Evaluation, Expert Appraisal/Determination, Mini-trials, Settlement Conferences etc. NEGOTIATION This is a voluntary process where parties to a dispute engage in directed communication with a view to resolving differences. It ends in settlement or agreement. Where parties, however, fail to resolve the dispute directly they could employ the intervention of a third party called the mediator. Two major negotiating strategies are: 1. The competitive strategy also known as positioning strategy or distributive or win-lose strategy. 2. Collaborative strategy also known as problem solving, integrative or winwin strategy. COMPETITIVE STRATEGY AND ITS DISADVANTAGES a. It leads to an outcome where one party is satisfied and the other is not. b. The unsatisfied party usually comes with bad or bitter feeling and a desire to fight back. c. He may also not be committed to perform his obligation under the agreement. d. Where parties have an on-going relationship it is not an appropriate strategy.

3 COLLABORATIVE STRATEGY AND ITS ADVANTAGES a. Parties collaborate for an effective solution. b. Outcome real interest are identified and satisfied. c. It is designed to produce wise agreement in an efficient and mutually amicable manner. d. Through principled negotiation, parties are able to retain their preconflict relationships. STRATEGY FOR ACHIEVING THE ABOVE 1. Separate the people from the problem. 2. Focus on interest and not positions. 3. Generate options that will satisfy the interest of the parties. 4. Both the process and result must be based on objective standard. MEDIATION A process where an independent, impartial, disinterested and a neutral 3 rd party (i.e the mediator) is requested by conflicting parties to assist the procedurally in resolving their conflict. The mediator has no settlement authority, he does not determine the outcome of the case and have no power to give his opinion and has no vested interest in the solution. He attempts to resolve the dispute by ensuring adherence to the principle of fair play. Mediation encourages parties to develop a mutually agreeable outcome to dispute. It is usually initiated when parties no longer believe that they can handle the conflict on their own. It is an extension of negotiation.

4 CONCILIATION Conciliation is synonymous with mediation, except in its procedure. Its functions are performed by a formally constituted group of individuals representing institution rather than by one person or government. It includes systemic gathering of facts through on-the spot investigation. These facts subsequently serve as the basis for recommendation on the term of settlement and sometimes, to establish responsibility for factions which gave rise to the dispute. ARBITRATION It is a non-judicial, legal technique for solving dispute by referring them to a 3 rd party for decision or award which may be either advisory or binding. The award is final, binding and enforceable in court. It is an adversarial process. ADVANTAGES OF MEDIATION OVER LITIGATION Mediation preserves relations, saves time and cost and is voluntary in process and outcome. It is also user friendly (flexible)and operates on a level playing ground. Litigation on the other hand is time-consuming and expensive. The process and outcome is imposed and it is inflexible. It also allows for sharp practices.

5 MULTI-DOOR COURT HOUSE It is a court system where facilities for ADR are provided. It is the formal integration of ADR into the court system. CASES WHERE LITIGATION SHOULD BE THE APPROPRIATE PROCESS TO ADOPT 1. Where cases involve interpretation of a statute and rule. 2. Emergency case where there is the need to take preventive action irreparable damage. 3. Where there is the need to lay legal precedence. 4. Where there is the need to preserve or protect public interest. 5. A frivolous case having little or no chance to succeed. RECENT DEVELOPMENTS IN NIGERIA 1. Court systems are now being reformed to integrate ADR. Order 25 Rule 1(2)(c) Lagos provides for ADR mechanism to encourage the settlement of dispute out of court. 2. ADR clauses in modern contracts and commercial arrangement. 3. Since 1999 major statutes creating agency provide for ADR. 4. Award of SANship now includes arbitration practice as a prerequisite. 5. In criminal cases, ADR is now introduced through plea bargaining and the concept of restorative justice. SOURCES OF CIVIL PROCEDURE The major sources of criminal procedure are as follows.

6 1.The procedural rules that are made specifically for the courts to guide them in the conduct of civil proceedings 2. Statutes enacted by the legislature which either wholly or partially regulate the conduct of civil proceedings. 3.The constitution of Nigeria. 4.The judgement and decisions of the courts interpreting the various rules of court. 5. Practice Directions. 1. RULES OF COURT. They are made for the various courts by the authorities vested with the power to do so,to guide the conduct of civil proceedings or regulate practice and procedure in those courts. All courts in Nigeria from the supreme court to the customary courts have their own rules of court regulating civil procedure. In AYANKORA V OLUKOYA SCNJ 292@ 305 Per Adio JSC Speed and order are the main reasons for the rules of court. However while the latter has been achieved the former is hardly seen. Examples of rules of court are, the Supreme court rules of 1985, The court of appeal rules of 2002, The magistrate court rules, District court rules. etc. It must be pointed out here, with regard to the high court rules of states, that although each state has its own rules, there are in terms of their provisions, three sets or regimes of high court rules in Nigeria represented by the High Court Rules of Lagos State, the High Court Rules of Abuja and the High Court Rules of Kano. 2.STATUTES. Some matters of practice and procedure in civil procedure may be found in the statutes. The statutes may be the one creating the court, or other statute, which may either be specially enacted on procedure or which partially provides for procedure. Most often than not the statute that creates or establishes the court may empower or appropriate authority to make procedural rules for the court. For example:

7 1.section 89 of the High Court Laws of Lagos state which enables the making of rules for civil appeals from the Magistrate court. And section 32 which empowers the house of assembly to make the rules of court. 2. section 8 of the court of appeal act which empowers the president of the court of appeal to make rules for the court of appeal. Sometimes, such statutes contains provisions on practice and procedure in the court. For example: 1.section 7 of the Supreme Court Act and section 25 of the Court of Appeal Act which provides for the filing of notice of appeal in civil matter within 14 days of delivery of interlocutory judgement and three months of delivery of final decisions. 2. section 56 of the High Court Laws of Lagos state provides for the transfer of cases to the magistrate court and from one judge to another respectively. Other statutes also exists which may be specially enacted to provide for practice and procedure in certain areas or which may make partial provisions on practice and procedure. For example: 1. Sheriffs and civil process act /law 2. Judgement (enforcement) rules 3. Foreign judgement (reciprocal enforcement) act Companies and allied mattes act Companies winding up rules Companies income tax act 7. Matrimonial causes act 8. Matrimonial causes rules 9. The admiralty jurisdiction act Trade dispute act 11. National industrial act 12. National industrial court rules. etc. 3.THE CONSTITUTION

8 The constitution of the Federal Republic of Nigeria is a source of civil procedure. This is so because it is an enabling law for making rules of practice and procedure. (For example supreme court rules, can be found in section 236 of the 1999 constitution, court of appeal rules can be found in section 248 of the 1999 constitution,fundamental rights (enforcement procedure)rules can be found under section 46 (3)of the 1999 constitution.),and also because it contains provisions on matters of practice and procedure. For example, sections 233, of the 1999 constitution provides for the rights and procedure for appeals, jurisdiction of various courts established under the constitution. 4.DECISION OF COURTS. Courts sometimes decide on questions of practice and procedure and this forms part of civil procedure. This may arise from interpreting the rules of court and other laws on procedure and can arise from the formulation of new rules of practice and procedure where there is a lacuna in the existing rules.though this is subject to the doctrine of judicial precedent, they are binding and constitute a source and part of civil procedure. Example of practice and procedure formulated by courts are: 1.Rules relating to the condition for grant of injunction. 2.Rules that requires addressing the court before ordering a non suits. 3.Rules which provides that, where two motions are pending before a court, the one that will save the action (constructive motion) should be the one heard before the one that will destroy it (destructive motion), irrespective of which was passed first. 5. PRACTICE DIRECTIONS

9 The rules of court do not always make detailed provisions on issues. In such a case the appropriate authority, usually the same authority empowered to make rules may issue directives prescribing such details. Such directives are referred to as PRACTICE DIRECTIONS. Bello JSC (as he then was) in the case of UNIVERSITY OF LAGOS V AIGORO defined it as a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed. Practice directions have also been employed to establish multi door court and provide for their rules.(the Abuja multi door court house practice direction of 19 th November 2003 made by the Chief Justice of the Federal Capital Territory Abuja pursuant to section 259 of the 1999 constitution) it has also been employed to establish divisions of the high court. ( it should be noted that it is doubtful if this fits into the traditional definition of practice direction.) A practice direction is not expected to depart from or be inconsistent with or re-write the rules of court, because it is not an enactment and therefore has no force of law. This was held in UNIVERSITY OF LAGOS V AIGORO (SUPRA) 4. ETHICAL ISSUES THAT MAY ARISE FROM THE WRONG USE OF THE RULES OF COURT Order 5 Rule I (Lagos) 2004 provides as follows: 1- (1) where in beginning or purporting to begin any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings. (2) Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps.

10 (3) The Judge shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed. Application to set aside for irregularity (Order 5 R. 2) (Lagos) 2004 Rules 2. (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. (2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion. ETHICAL ISSUES THAT MAY ARISE FROM THE WRONG CHOICE OF COURT Section 22 of the Federal High Court Act provides that no cause or matter shall be struck out by the Federal High Court merely because such matters or cause was taken to the Federal High Court instead of State High Court. A Federal High Court judge before whom such matter or cause is brought may cause same to be transferred to the state High Court. This was held to be mandatory in Mokelu v. Federal Commission For Works & Housing (1976) 1 NMLR 329 at 433; AMC v. NPA (1987) 1 NWLR (pt 51) 475. Order 22 r. 2 lagos, Order 22 r. 3 Abuja, and Order 24 r. 3 Uniform Rules provide that where a matter has been wrongfully filed before the state High Court, the matter should be struck out or dismissed. See AMC v. NPA (supra); Fasakin Food v. Shonanya (2006) 10 NWLR (pt 987) 126; Okoye v. Nigerian Constructiion Company Ltd (1991) 9 SCNJ (pt 2) pg 367. CONSEQUENTIAL SANCTIONS IN (a) and (b) i. At the Federal High Court, it would be transferred to the appropriate. ii. At the state High Court, it would be struck out or dismissed.

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