I loved litigation; it was
something I found very interesting. It was akin to story telling, yet each
story always had a different dimension; no two matters were ever the same.
something I found very interesting. It was akin to story telling, yet each
story always had a different dimension; no two matters were ever the same.
I soon saw the light
however, and irritation caused me to drop my wig and gown. I don’t even know
where they are now.
however, and irritation caused me to drop my wig and gown. I don’t even know
where they are now.
Anyone who has ever been
involved with litigation in Nigeria can testify to the fact that it tends to be
long and tedious. Imagine having to prepare for trial over the entire Salah
weekend and going into the office daily, only to get to court on Monday morning
and be met by frustrating news – that the judge has postponed hearing by three
months because he cannot sit in a court where the air conditioner is not
working.
involved with litigation in Nigeria can testify to the fact that it tends to be
long and tedious. Imagine having to prepare for trial over the entire Salah
weekend and going into the office daily, only to get to court on Monday morning
and be met by frustrating news – that the judge has postponed hearing by three
months because he cannot sit in a court where the air conditioner is not
working.
That is only one example
of the many reasons I decided to leave litigation for my stronger, more
resilient learned colleagues and focus on other aspects of law. The process
(especially in Nigeria) is tiring for all parties involved.
of the many reasons I decided to leave litigation for my stronger, more
resilient learned colleagues and focus on other aspects of law. The process
(especially in Nigeria) is tiring for all parties involved.
Not every dispute requires
legal action. Alternative Dispute Resolution (ADR) which I will be discussing
in this piece also exists. It is a must-read for anyone either contemplating or
already involved in a contentious matter.
legal action. Alternative Dispute Resolution (ADR) which I will be discussing
in this piece also exists. It is a must-read for anyone either contemplating or
already involved in a contentious matter.
What is ADR?
ADR is a collective term
used for the various methods and procedures through which parties to a dispute
may resolve their issue without letting it result in long and tedious court
action.
used for the various methods and procedures through which parties to a dispute
may resolve their issue without letting it result in long and tedious court
action.
The traditional forms of
ADR are: –
ADR are: –
1. Arbitration
2. Mediation
3. Negotiation
4. Conciliation.
With the evolution of ADR
in Nigeria, we have seen it take the forefront in different forms. In many instances
where court action has been taken, trial judges enquire what steps parties have
taken to amicably settle a dispute and tend to make various orders. An example
of such is adjourning the case, to enable parties time negotiate a settlement,
either directly or by engaging a third party.
in Nigeria, we have seen it take the forefront in different forms. In many instances
where court action has been taken, trial judges enquire what steps parties have
taken to amicably settle a dispute and tend to make various orders. An example
of such is adjourning the case, to enable parties time negotiate a settlement,
either directly or by engaging a third party.
Most contracts today
contain ADR clauses, thus mandating that parties explore ADR before court
action. However, even where the contract has omitted this clause, we often see
judges advising parties to explore an amicable resolution of the matter.
Interestingly, ADR is currently being applied in matters such as divorce
proceedings and chieftaincy title disputes.
contain ADR clauses, thus mandating that parties explore ADR before court
action. However, even where the contract has omitted this clause, we often see
judges advising parties to explore an amicable resolution of the matter.
Interestingly, ADR is currently being applied in matters such as divorce
proceedings and chieftaincy title disputes.
Why ADR?
In Nigeria, quite a number
of matters escalate unnecessarily to superior courts; it is not uncommon for a
party with ‘no defense’ to a claim to use a a delay tactic such as time
wasting, aka their ‘right of appeal. This results in applications being made
for a relief at a superior court at every whim in a bid to frustrate the other
party and weaken morale.
of matters escalate unnecessarily to superior courts; it is not uncommon for a
party with ‘no defense’ to a claim to use a a delay tactic such as time
wasting, aka their ‘right of appeal. This results in applications being made
for a relief at a superior court at every whim in a bid to frustrate the other
party and weaken morale.
The following are some of
the reasons anyone who is involved in litigation of any kind, might want to
explore ADR: –
the reasons anyone who is involved in litigation of any kind, might want to
explore ADR: –
•
The legal fees are considerably less than conventional litigation
The legal fees are considerably less than conventional litigation
•
ADR is faster than court action
ADR is faster than court action
•
Confidentiality can be managed perfectly
Confidentiality can be managed perfectly
•
Parties are more likely to achieve a better resolution of their issues
Parties are more likely to achieve a better resolution of their issues
•
Lack of a ridged structure means parties are allowed to control the direction
of the proceedings
Lack of a ridged structure means parties are allowed to control the direction
of the proceedings
•
Where there is a third party involved, parties are given an option to choose
who will settle their dispute.
Where there is a third party involved, parties are given an option to choose
who will settle their dispute.
I have seen matters go on
for decades due to one technicality or the other, with no resolution in sight.
Where there is a third party overseeing ADR proceedings, time wasting becomes
difficult and consent judgement is reached without delay.
for decades due to one technicality or the other, with no resolution in sight.
Where there is a third party overseeing ADR proceedings, time wasting becomes
difficult and consent judgement is reached without delay.
What Is Consent Judgment?
Consent judgment is one
that the parties involved have agreed to. Here, parties to a dispute consent to
a settlement between the parties. This agreement is then lodged with the court
for the judge to sign and adopt as the final decision of the court.
that the parties involved have agreed to. Here, parties to a dispute consent to
a settlement between the parties. This agreement is then lodged with the court
for the judge to sign and adopt as the final decision of the court.
Consent judgment is the
ultimate aim of ADR; both parties are able to negotiate the outcome they want,
and due to the fact that it is done out of the courtroom, parties successfully
avoid the usual limitations of Nigeria’s legal system.
ultimate aim of ADR; both parties are able to negotiate the outcome they want,
and due to the fact that it is done out of the courtroom, parties successfully
avoid the usual limitations of Nigeria’s legal system.
Setting Aside Consent
Judgment
Judgment
A consent judgment has an
extremely binding effect; it is an established principle in law that they may
only be set-aside in instances of fraud or misrepresentation. Interestingly, a
unilateral mistake by either of the parties is not a valid ground for the
consent judgment to be set aside.
extremely binding effect; it is an established principle in law that they may
only be set-aside in instances of fraud or misrepresentation. Interestingly, a
unilateral mistake by either of the parties is not a valid ground for the
consent judgment to be set aside.
However, where there is a
twist of events (such as breach of warranty) that completely disproves the
original agreement upon which the dispute giving rise to the consent judgement
occurs, the consent judgement can be successfully invalidated. For
instance, party B might have agreed to repay a contractual debt owed to party
A, but later discovered that party A has done something that would have caused
the contractual agreement to be rescinded. Party B will no longer have any
contractual relationship with Party A, thus he will not be bound by the terms
agreed to in the consent judgement, which is repayment of the contractual debt.
twist of events (such as breach of warranty) that completely disproves the
original agreement upon which the dispute giving rise to the consent judgement
occurs, the consent judgement can be successfully invalidated. For
instance, party B might have agreed to repay a contractual debt owed to party
A, but later discovered that party A has done something that would have caused
the contractual agreement to be rescinded. Party B will no longer have any
contractual relationship with Party A, thus he will not be bound by the terms
agreed to in the consent judgement, which is repayment of the contractual debt.
The unfortunate reality we
face in Nigeria is that the courts are congested with an unbelievable backlog
of cases. The administration of justice in Nigeria is being adversely affected
by the unnecessary and frequent delays in court proceedings. This has been
caused by many factors. Aside from cases where rulings on technicalities are
being escalated to the Supreme Court, we also have unnecessary adjournments
that add to the excessive delays.
face in Nigeria is that the courts are congested with an unbelievable backlog
of cases. The administration of justice in Nigeria is being adversely affected
by the unnecessary and frequent delays in court proceedings. This has been
caused by many factors. Aside from cases where rulings on technicalities are
being escalated to the Supreme Court, we also have unnecessary adjournments
that add to the excessive delays.
I personally believe ADR
is the way out of the litigation web if one finds themselves there. I am firmly
against court action in instances where there is no criminal element to the
claim. In most cases litigation is simply not worth the stress and it makes
most contracts not even worth the paper they have been written on.
is the way out of the litigation web if one finds themselves there. I am firmly
against court action in instances where there is no criminal element to the
claim. In most cases litigation is simply not worth the stress and it makes
most contracts not even worth the paper they have been written on.
Energy & Finance,
Associate at Templars
Associate at Templars
This article was first published here