Civil Litigation Notes for the BTC - Distinction! 2 of 310 OVERVIEW AND INTRODUCTORY MATTERS
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Civil Litigation Notes for the BTC - Distinction!
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Civil Litigation Notes For The BTC - Distinction!
Civil Litigation Notes for the BTC - Distinction!
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OVERVIEW AND INTRODUCTORY
MATTERS
1. DISCUSS THE SCOPE OF THE CIVIL LITIGATION COURSE
Civil litigation/proceedings is mainly concerned with the enforcement of private rights. When
used in contradiction to criminal litigation, it dea...
,OVERVIEW AND INTRODUCTORY
MATTERS
1. DISCUSS THE SCOPE OF THE CIVIL LITIGATION COURSE
Civil litigation/proceedings is mainly concerned with the enforcement of private rights. When
used in contradiction to criminal litigation, it deals with resolution or determination of all
disputes other than criminal. Thus, it refers to all processes and procedure relating to civil actions
in court.
Civil litigation refers to the entire body or rules of procedure and evidence that regulate civil
proceedings in a court of law. it is wide enough to accommodate processes employed by parties
to resolve the dispute between them before they finally end up in court, including pre-action
notices, letters and ADR options employed before during and after proceedings have commenced
in court.
2. DISCUSS THE DIFFERENT CIVIL DISPUTES SETTLEMENT MECHANISMS
• Litigation and
• ADR Mechanisms
(A) Litigation: This refers to an action brought by a person against another person based on the
legal principles by which the former asserts some rights or legal entitlements from the latter.
Features of Litigation BEST WAR PLC
• Binding decisions
• Enforcement
• State Controlled
• Time consuming
• Win/Lose atmosphere
• Adversarial
• Rigid and Technical
• Publicly conducted—SEE SECTION 36(3) OF THE 1999 CFRN and OVIASU v.
OVIASU
• Lawyer dominated
• Coercive.
Cases best suited for litigation MTN RICE
• Mandated by law situations
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, • Time is of essence
• Need for precedent
• Ridiculous/Frivolous demand situations
• Interpretation of documents
• Criminal cases (Public Policy)
• Emergency situations
Shortcomings of Litigation ---DICE2 BIP
• Delay
• Involuntary for the defendant
• Control over the process by the parties is absent
• Enforcement problem
• Expensive
• Breeds enemity—SEE JADESIMI v. OKOTIE-EBOH
• Inflexible
• Privacy absence
(B) ADR Mechanisms: ADR relate to the alternative methods of dispute resolution that is aside Comment [C1]:
In the recent past the trend was dispute litigation.
litigation. In other words, should a potential litigant not be willing to go to court, which other However in recent times ADR has occupied a pride
of place due to its advantages over litigation and also
method can be used to resolve the dispute. ADR can be taken up in 2 Ways: because most civil procedure rules and even some
criminal legislation now encourage ADR.
• Parties’ Agreement- to resolve their dispute through ADR. Private agreement e.g. Lagos Enabling provisions
1. Lagos rules objective if the rules – to promote
Court of Arbitration, Mediation centers. efficient and speedy dispensation of justice – see
preamble 1(B) Lagos
• Court Referral- Most courts encourage resolution of disputes by ADR. Under the Rules 2. Amicable settlement of disputes by way of ADR
(Preamble 1 (C) Lagos civil procedure rules)
of Court, the judge has an obligation to encourage parties to refer their disputes to ADR. 3. All originating processes are screened for
In this sense ADR is court-connected eg Lagos Multi-Door Court House. SEE Order 25 suitability for ADR and accordingly referred to
the Lagos multi-door court house or some other
R. 2(1) HCCPR Lagos state, 2012. Order_Rule_ HCCPR Abuja, 2018. ADR institution – Order 3 rule 11Lagos 2012;
Order 5 Rule 8 Lagos 2019; Order 2 Rule 7 Abuja
2018
The following are the methods available: ---MANCH EMER 4. Every claimant in actions begun either by writ if
summons or originating summons is required to
front load the protocol Form 01 – see the format
• Mediation: Parties settle amongst themselves with the help of a neutral third party of the form
5. One of the purposes served by the case
known as a mediator who only facilitates the process of settlement. He helps them management conference is the promotion of
maintain communication and help them shift to interest-base to ensure an amicable amicable settlement of disputes: O 25 R 1 Lagos
2012; O. 27 Lagos 2019
resolution. It is a win-win system. 6. The agenda for a judge at the CMC – making
referrals to the Lagos multi-door courthouse –
O25 R 2 Lagos 2012; O. 27 Lagos 2019; O. 27
Enforcement of Mediator’s facilitated agreement Abuja 2018
7. The ADR judge may give directives on matters
referred for ADR; failure to comply attract
After the parties agree to the terms, they sign and date the outcome as witnessed by their sanctions O 25 R 6 Lagos 2012
lawyers. The agreement becomes binding and no party can resile from it. Thus, the right of a
party to walk out of mediation ends as soon as the settlement agreement is signed by the
parties.
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, Thereafter, the parties file it in court and agree that the terms of settlement be made a consent
judgment by the court. Mediation is governed by the rules of the mediation center.
Features of Mediation ---V CAF Comment [C2]:
1. A voluntary ADR method which involves a
neutral third party who uses his good offices to
• Voluntary (most outstanding feature) assist the parties achieve a negotiated settlement
of their dispute
• Confidential 2. The mediator may be selected by mutual
• Accessible agreement, and he assists the parties as the
facilitator of the amicable settlement of the
• Facilitative (keeping the interest and options of the parties alive for them to reach an dispute
agreement) Why mediation?
1. Mediation is similar to negotiation with the major
difference that mediation involves a neutral third
Qualities of a Mediator for promotion of a successful mediation –PERFECT 2ING party – the mediator
2. Mediation is available where negotiation is
impossible or ineffective due to:
• Patience and persistence i) Hostility and bad blood existing between the
parties;
• Effective communication skills ii) Lack of food faith/ distrust;
• Rapport building ability iii) Undue rigidity/ uncompromising/ adamant
attitude of either or both parties
• Flexible and creative
• Empathetic (sensitive to the parties’ needs)
• Conflict handling ability
• Tolerant
• Trust worthy
• Impartial and neutral
• Non-judgmental
• Good listening skills
Stages of the mediation process
• Preparation stage (venue of the mediation session is considered here)
• Opening stage (introduction of the mediator and all the parties present; non-disclosure
agreement; opening statements; privilege)
• Agenda setting/Issue identification/Exploration stage (real issues are found out by the
mediator) Comment [C3]:
(ask yourself “are the real interests of the parties
• Bargaining stage identified now?”)
• Agreement stage (concluding agreement and enforcement)
NB: Before any further step is taken in the preparation stage, the mediator must ensure the
settlement of issues relating to:
• Agreement of the parties to mediate
• Representation of the parties
• Experience of mediation previously by the parties
• Authority of the person appearing
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