CUNDY SMITH PUBLICATIONS NLS LAGOS CAMPUS 2018/201
CUNDY SMITH PUBLICATIONS NLS LAGOS CAMPUS 2018/201
CUNDY SMITH PUBLICATIONS NLS LAGOS CAMPUS 2018/201
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1. 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,...
CUNDY SMITH PUBLICATIONS NLS LAGOS CAMPUS 2018/201
CUNDY SMITH PUBLICATIONS NLS LAGOS CAMPUS 2018/201
CUNDY SMITH PUBLICATIONS NLS LAGOS CAMPUS 2018/201
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CUNDY SMITH PUBLICATIONS NLS LAGOS CAMPUS 2018/2019
1. 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
method can be used to resolve the dispute. ADR can be taken up in 2 Ways: of place due to its advantages over litigation and also
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
of Court, the judge has an obligation to encourage parties to refer their disputes to ADR.
(Preamble 1 (C) Lagos civil procedure rules)
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
known as a mediator who only facilitates the process of settlement. He helps them 5.One of the purposes served by the case
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
After the parties agree to the terms, they sign and date the outcome as witnessed by their
referred for ADR; failure to comply attract
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 –PERFECT2ING 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
Effective communication skills
parties;
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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Pending litigation
Particular/special mediator requirement
Arrangement for the reception of parties
Nature of the dispute
Sitting room arrangement
NB: The opening statement at the opening stage by the mediator usually consists of four (4)
components (if asked to draft a standard mediator’s opening statement, use these components as
your guide): ----IRIG
Introduction of the mediator
Role to be played by the mediator
Impartiality and neutrality of the mediator
Ground rules to govern the process
Factors responsible for the failure of mediation Comment [C4]:
Disadvantages
1.Costlier
Opposites of the qualities of a mediator mentioned above are all factors 2.Want of privacy/ confidentiality
3.Possibility of bias/ partiality on the part of the
Stonewalling/unwillingness to cooperate on the part of the parties mediator
4.Where the mediator is not trusted parties may be
Ethical matters in mediation
reluctant to discuss/ disclose information
5.Lack of expertise on the part of the mediator
may be fatal to the process
1. Don’t misrepresent facts knowingly to the mediator
2. Duty to act with integrity. Mediation or any ADR should nit be used purposely to delay
eventual litigation; or only to obtain information of the opposite party’s case – RPC
Comment [C5]:
Arbitration: This is a method of setting dispute through an impartial third party or Process whereby parties to a dispute seek a solution
to their difference, in a voluntary and direct manner
parties called Arbitrator(s). An arbitrator who sits as an umpire to decide the case is It may take nay o the forms of communication, e.g.
appointed. He hands down an award which is like a judgment of the court enforceable at oral or written
i.Direct communication in a meeting
the High Court. The parties may within THREE MONTHS FROM THE DATE OF THE ii.By telephone
iii.SMS
AWARD OR DATE OF THE ADDITIONAL AWARD (where applicable) apply to the iv.Email
court (HC) to set aside the award on the grounds set out in Sections 29 and 30 of ACA,
v.Correspondence – letter
Features
otherwise the award is binding. Direct, limited to the parties, without the intervention
of any third party.
The grounds are: ---AMI May take place before an action is filed or even after
the filing of such action
(i) Award contains decisions on matters beyond the scope of submission to A “term of settlement” is agreed upon and filed in
arbitration. NB: where the part not submitted can be separated from that submitted, only
the latter case.
the part not submitted is subject to be set-aside. Comment [C6]:
(ii) Misconduct of the arbitrator. Contrast negotiator & mediator
1.Mediator – faster – 3rd party intervention
(iii) Improper procurement of the arbitral proceeding or award. 2.Parties are easily committed to dispute
resolution
3.Mediator uses his good offices and expertise to
Negotiation: This is a bargaining relationship between parties in an effort to reach an
assist in achieving resolution
4.Flowing from 2, brick walls are broken down;
agreement. It is a voluntary process and parties have total control over the processes. effect of ego minimised
5.Enforcement is easier; 3rd party is a potential
witness
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