C O Agbata, Civil Litigation Note.pdf

Chris Ozo Agbata [email protected] [email protected] 07035406532 DISCLAIMER: This note is a compilation by Chris Ozo Agbata on the NLS Yola Campus 2021/2022, using NLS handbook, class slides and notes. It does not represent NLS offic...

Chris Ozo Agbata [email protected] [email protected] 07035406532 DISCLAIMER: This note is a compilation by Chris Ozo Agbata on the NLS Yola Campus 2021/2022, using NLS handbook, class slides and notes. It does not represent NLS official opinion; it is not for sale and it is for exam preps only. Any observations, reservations and comments should be directed to Chris Ozo Agbata using the contact info provided at the header. This is only the first draft, so, such will be appreciated. 1 Chris Ozo Agbata [email protected] [email protected] 07035406532 WEEK 3- OVERVIEW AND INTRODUCTORY MATTERS GENERAL OVERVIEW OF CIVIL LITIGATION INTRODUCTION Civil litigation involves rules or procedures that regulate the conduct of civil proceedings in court. It lays the methods whereby such proceedings are commenced and the steps that are to be taken. It also provides for the modes of enforcing the resultant judgment. Civil litigation as a subjects deal with the laws, rules, practice and procedure guiding and regulating the conduct of civil actions and proceedings in court. In consonance with the above concept, Section 6(6)(b) CFRN 1999 provides thus: “the judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” There are two ways to settle civil disputes which are 1. Litigation 2. ADR RPC Rule 14(3)(d) and HC of Lagos State Expeditious Disposal of Civil Cases and Practice Directions 2019 encourage parties to refer to ADR before resorting to litigation. SCOPE OF CIVIL LITIGATION The initiations of cases at first instance to the conduct of appeals in civil matters are all within the scope of civil litigation. A person proposing to commence an action will have to consider amongst other things, the appropriate court to go, which raises questions such as the hierarchy of courts and their corresponding jurisdiction. Civil litigation covers issues such as: appropriate party to sue, service of court process, modes of commencement of action; pleadings; interlocutory applications; third party proceedings and inter pleader proceedings; pre-trial issues; summary judgment procedure; trial, evidence and examination of witnesses; closing address and judgment; enforcement of judgment and application pending appeal; and appeals. 2 Chris Ozo Agbata [email protected] [email protected] 07035406532 Civil litigation constitutes adjectival (procedural) law in contradistinction to substantive law. The former is the machinery by which the latter is applied in practice. While substantive law defines the legal rights, duties and liabilities of parties to a suit, adjective law is concerned with the procedure followed at the trial of the suit and the proof of facts to which the principles of substantive law are applied in the determination of dispute between parties. In addition to the general rules that ordinarily apply to most proceedings, there are special rules governing certain specific type of civil proceedings. For example: Matrimonial Cause Rules 1983 govern proceedings under the Matrimonial Causes Act 1970 Companies Winding Up Rules apply in proceedings for winding up of companies under the Companies and Allied Matters Act 2020. SOURCES OF LAW REGULATING CIVIL LITIGATION There are six (6) primary sources of Civil Procedure Laws: a. Rules of Court: Each Court has its own set of rules which are made by the authorities prescribed by the statutes or law establishing the Court. It is the statute creating the Court that states who should make rules of the Court. In service and execution of Court processes in superior Courts of record, the Sheriff and Civil Process Act is the principal legislation. This is because of the Second Schedule, Part One CFRN, item 57 (exclusive list) which provides for service and execution of Court processes. Therefore, rules of Court made in exercise of the powers conferred by S274 CFRN especially as regards service and execution of Court processes or under the respective HC Laws, must conform to the SCPA or be void to the extent of its inconsistency. If strictly followed as it ought to be, States are precluded from legislating on service and execution of Court processes of superior Courts of record Nwabueze v Obi Okoye 10 - 11 SCNJ. 60. The functions of rules include the regulation of the commencement of actions, the regulation of the conduct of actions, and the determination of the procedure to be followed in a particular suit. Examples of Rules of Court include: i. The Supreme Court Rules, 1985 made by Sowemimo C.J.N under S216 1979 CFRN now S236. Where there are no provisions in the local rules or where the local rules are not exhaustive on the subjects which they treat, resort is had to the Rules of the SC of England Laibru v Building and Civil Engineering Contractors Ltd. ii. The Court of Appeal Rules made in 1981 by Maman Nasir, President CA under S227, 1979 CFRN now S248 and S8(2), Court of Appeal Act. The current rules are the 2021 Rules. iii. The various High Court Rules. These exist for the HCs of the States, the FCT, and the FHC. They are made by the CJ subject to the Laws of the relevant HA or Acts 3  Chris Ozo Agbata [email protected] [email protected] 07035406532 of the NAss where it regards the FCT HC or FHC, SS 254 (FHC), 259 (FCT HC) & 274 (SHC), CFRN. Uniform Rules are applicable in most states with the exception of a few states with new rules e.g., Lagos, Abuja, Kwara, Rivers. In cases of Lacuna, the Courts are enjoined to do substantial justice. Order 1 Rule 1(2) Lagos State HC (Civil Procedure) Rules 2019, Paragraph 1(2) Preamble, FCT HC (Civil Procedure) Rules, 2018. Table of Various Rules of Courts and Enabling Sections. Court Rules Sources Section 1. SC Supreme Court Rules, 1985 CJN S236 CFRN 2. CA Court of Appeal Rules, 2021 President of the CA S248 CFRN 3. FHC Federal High Court Rules, 2019 CJ, FHC S254 CFRN 4. NIC National Industrial Court Rules, 2007 President, NIC S254F CFRN 5. HC of the FCT HC of the FCT (Civil Procedure) Rules, CJ, FCT HC S259 CFRN 2018 6. SCA of the FCT FCT Sharia Court of Appeal Rules Grand Kadi, FCT S264 CFRN SCA 7. CCA of the FCT FCT Customary Court of Appeal Rules President, FCT CCA S269 CFRN 8. HC of a State High Court (Civil Procedure) Rules CJ S274 CFRN 9. SCA of a State Sharia Court of Appeal Rules Grand Kadi, SCA S279 CFRN CCA of a State Customary Court of Appeal Rules President, CCA S284 CFRN b. Statutes Creating Courts: This refers to the Laws establishing a particular Court other than the Constitution. Sometimes, it confers power on the appropriate authority to make the rules of the Court. For example, S8(2) of the CA Act, in addition to S248 CFRN, confers power on the appropriate authority to make rules for the CA. It may also provide for Practice and Procedure. For example, S7 SC Act and S25 CA Act provide for the procedure for filing a notice of appeal. Usually, a Conflict between rules and Statute is resolved in favour of Statute S8(1) CA Act. c. CFRN: The Constitution is the enabling law for some of the procedural rules of Court. The Fundamental Rights (Enforcement Procedure) Rules 1979 were made by the CJN pursuant to S46 CFRN. It also makes direct provisions as to practice and procedure. These include provisions on fair hearing and the right of appeal. 4 Chris Ozo Agbata [email protected] [email protected] 07035406532 d. Other Specialized Statutes: There are provisions in other statutes that deal with procedure in some specific matters not provided for, by the rules of Court. These statutes can cover an aspect of civil litigation e.g., admiralty. Examples of such statutes are: i. The Sheriffs and Civil Process Act/Law and The Judgment (Enforcement) Rules. This is an Act of the NAss and applicable to the whole federation. Hence, any law of a state in that respect is only applicable to Magistrate (South), District (North), Customary and Sharia Courts. Rules of Court made in exercise of the powers conferred by S274 CFRN especially as regards service and execution of Court processes or under the respective HC Laws, must conform to the SCPA or be void. If strictly followed as it ought to be, States are precluded from legislating on service and execution of Court processes of superior courts of record which is in the exclusive list. Nwabueze v Obi Okoye. ii. Foreign Judgments (Reciprocal Enforcement) Act 1961. It gives procedure on how a foreign judgment is to be enforced. iii. Companies and Allied Matters Act. Under CAMA there are the Companies Winding up Rules 2004 and Companies Proceedings Rules 1992. These are rules on civil litigation but apply only to Companies or entities under CAMA. iv. Company Income Tax Act. Under it, the Federal High Court (Tax Appeals) Rule 1992 was enacted. v. Admiralty Jurisdiction Act. Under it the Admiralty Jurisdiction Procedure Rules was made. vi. Matrimonial Causes Act and Matrimonial Causes Rules 1981, all on practice and procedure for matrimonial causes. e. Judicial Decisions of Courts on procedure. This may arise from interpretation of existing rules or formulation of new ones. There are some rules of procedure that are derived from decision of Courts. For instance, the rules relating to grant of injunctions, the rule that requires addressing the Court before ordering a non-suit and the rule that relates to the order of hearing competing motions. Also, where there are two motions before the Court of which one will render the suit competent or preserve the suit and the other would be struck out, the rule is that the Court would first hear the motion that would make the suit competent before the other. This principle was upheld in the cases of NALSA & Team Associates v NNPC and Consortium MC v NEPA. See cases like Kotoye v CBN, Craig v Craig the practice of first addressing the Court before an order of non-suit was enunciated in these cases O34 R1 HC of Lagos (Civil Procedure) Rules etc. for judicial decisions on procedure. f. Practice Direction: This is a direction given by an appropriate authority on how rules should be observed. It is not an enactment and thus generally has no force of law except in 5 Chris Ozo Agbata [email protected] [email protected] 07035406532 election matters. These are rules and guidelines given by the necessary or appropriate authority when a lacuna exists in procedure. Examples are: i. The Multi-Door Court rules are practice directions. ii. In election petitions, the 1st schedule to the Electoral Act failed to make provisions for frontloading but a practice direction was issued to that effect. iii. In the National Industrial Court, the President introduced front loading based on practice direction. iv. The small claims court in Lagos was also established by the Practice Direction 2018. Whenever the rules may be short or inadequate the appropriate authority can quickly issue guidelines. 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 and therefore has no force of law. In Nwankwo v Yar’Adua, SC held that non-compliance with practice direction is fatal and may make the matter amount to a nullity. The hierarchy is: CFRN to Statute to Rules to Practice Direction Unilag v Aigoro, Buhari v INEC. COURTS WITH CIVIL JURISDICTION Courts Establishing Sections 1. Supreme Court 230(1) CFRN + 7 2. Court of Appeal 237(1) CFRN + 12 3. FHC 249(1) CFRN + 5 4. NIC 254A(1) CFRN + 1 5. FCT HC 255(1) CFRN + 5 6. Sharia CoA FCT 260(1) CFRN + 5 7. Customary CoA FCT 265(1) CFRN + 5 8. SHC 270(1) CFRN + 5 9. Sharia CoA of a state 275(1) CFRN + 5 10. Customary CoA of a state 280(1) CFRN + 5 11. Election Tribunals 285(1) CFRN 12. ECOWAS CCoJ Articles 6 and 15 Revised Treaty of ECOWAS 13. Magistrate Courts S 1 MCL Jurisdiction is the authority or power of a Court to determine matters before it Madukolu v Nkemdilim. Civil matters refer to disputes between individuals inter se, or individuals and governments, or governments inter se, resulting in award of damages, compensation, declaration of rights or prerogatives or equitable remedies. The jurisdiction of a Court connotes the limits imposed on its power to hear and determine the issues between the parties by reference to the following: 6 Chris Ozo Agbata [email protected] [email protected] 07035406532 - Constitution of the Court - Presence of any legal requirements or condition precedents - The geographical area - Nature and subject matter of the dispute - The parties and capacities of parties - The relief sought - A combination of any of these issues Jurisdiction is usually conferred by statute. The underlining principles of jurisdiction were made explicit in the case of Madukolu v Nkemdilim thus: a. The Court must be properly constituted as regards numbers and qualification of members of the bench and no member is disqualified for one reason or the other. b. The subject matter of the case must be within the Court’s jurisdiction and there must not be any feature in the case which prevents the Court from exercising jurisdiction. c. The case before the Court must be initiated by due process of law and upon fulfilment of any condition precedent to exercise of jurisdiction. Choosing a Court without jurisdiction is fatal to the case of the party choosing it Sanusi v Ayoola. Any decision arrived at by the Court in that matter is a nullity, no matter how well conducted Anih v Nna. The proper time for raising questions as to jurisdiction depends on the type of jurisdiction. Issues relating to the Substantive Jurisdiction (subject matter or territorial) of the Court may be raised at any time, even on appeal at the SC. Where it relates to Procedural Jurisdiction, (things like pre-action notice, statute bar or res judicata) it must be raised timeously and contained in the pleadings otherwise they are deemed to be waived and cannot be raised on appeal. COURTS OF CIVIL JURISDICTION 1. Supreme Court Composition: It is composed of the CJN and not more than 21 Justices S230(2)(b). Constitution: A minimum of 5 justices are required to sit on appeals from the Court of Appeal while not less than 7 Justices as provided in the proviso to s234 will sit on the following matters: 1. The exercise of its Original Jurisdiction 2. Interpretation/Application of the Constitution in a Civil or Criminal matter 3. Contravention of Chapter IV of the Constitution. 4. Where it is solicited to reverse itself, this is a matter of caselaw, Adegoke Motors v Adesanya, Adisa v Oyinwola. NB: one Justice can deliver the judgement of the Court S294(4) CFRN. Qualification: 7 Chris Ozo Agbata [email protected] [email protected] 07035406532 To be appointed as a JSC, a minimum of 15 years’ post-call is required S231(3) CFRN. A JSC may retire upon the attainment of the age of 65 years. However, he will automatically cease to hold office upon reaching the age of 70 S291(1) CFRN. Appointment: Both the CJN and other JJSC are appointed by the President of the FRN on the recommendation of the NJC subject to confirmation by the Senate S231(1) & (2) CFRN. Removal: The CJN may be removed by the President on an address supported by two-third majority of the Senate. The grounds for removal may be the inability to discharge the functions of the office due to infirmity of the body or mind, or for misconduct or contravention of the Code of Conduct S292(1)(a) CFRN. Other JJSC are removed by the President on the recommendation of the NJC S292(1)(b) CFRN. Original Jurisdiction of the Supreme Court The Supreme Court has original jurisdiction to hear the following matters: 1. Disputes between the FG and a State Government S232(1) CFRN 2. Disputes between two States S232(1) CFRN 3. Disputes between the NAss and the President S1(1)(a) SC (Additional Original Jurisdiction) Act, 2002. 4. Disputes between the NAss and any State HA S1(1)(b) SC (Additional Original Jurisdiction) Act, 2002. 5. Disputes between the NAss and a State Government S1(1)(c) SC (Additional Original Jurisdiction) Act, 2002. Conditions for Invoking Original Jurisdiction of the Supreme Court 1. The matter must be brought by the AG of State or Federation S20 Supreme Court Act 2. The Subject matter of dispute must be one where the State/Federal Government are direct beneficiaries AG Fed v AG Imo, AG Plateau State v AG Fed. 3. Must pertain to the existence of a legal right 4. Local Governments and INEC cannot institute or be joined to an action before the SC as the Court has no Jurisdiction over them as a Court of first instance AG Ondo v AG Federation. 5. Neither the NAss nor State HA shall institute or initiate legal proceedings except upon the resolution of the House passed by a simple majority of the members of that House present and sitting at the time the resolution is put to vote Schedule to the SC (Additional Original Jurisdiction) Act, 2002. 6. No legal proceedings shall be initiated or instituted by or on behalf of the NAss except upon the resolution which has been passed by both Houses of NAss by a simple majority of the members of each House present and sitting at the time the resolution is put to vote Schedule to the SC (Additional Original Jurisdiction) Act, 2002. With regards to State Houses of Assembly; The Speaker is the nominal party S3 SC (Additional Original Jurisdiction) Act, 2002 8 Chris Ozo Agbata [email protected] [email protected] 07035406532 There must be a resolution of the house by simple majority of members present and sitting at the time the resolution is put to vote. Where it concerns the National Assembly: The nominal party is the NASS S3 SC (Additional Original Jurisdiction) Act, 2002. A resolution must be passed by both houses of the NAss sitting separately. The resolution is by simple majority of the members of the house present and sitting at the time of voting. Appellate Jurisdiction: The Supreme Court hears appeals from the CA. Its decisions are final and not appealable. It is the apex Court in Nigeria S235 CFRN. 2. The Court of Appeal Composition: The CA Act of 2010, pursuant to S237(2) CFRN, provides that the CA shall consist of the president and not more than 89 Justices of the Court. The Court sits with at least 3 Justices S247 CFRN. Qualification: To be appointed as a Justice of the Court of Appeal, a minimum of 12 years’ post-call experience is required S238(3) CFRN. A JCA may retire upon the attainment of the age of 65 years. However, he will automatically cease to hold office upon reaching the age of 70 S291(1) CFRN. A minimum of 3 Justices must possess knowledge of Customary Law and a further 3 must possess Islamic Law qualifications S237(2)(b) CFRN. Appointment: It is done by the President on the recommendation of the NJC while the President of the CA’s appointment is additionally subject to confirmation by the Senate S238(1) & (2) CFRN. Constitution: The CA is duly constituted to hear a matter when it consists of at least 3 Justices S239(2) & 247 CFRN. Original Jurisdiction of the Court of Appeal S239(1) Subject to the provisions of this Constitution, the CA shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether - (a) any person has been validly elected to the office of President or Vice-President under this Constitution; or (b) the term of office of the President or Vice-President has ceased; or (c) the office of President or Vice-President has become vacant. (2) In the hearing and determining of an election petition under paragraph (a) of subsection (1) of this section, the CA shall be duly constituted if it consists of at least three JJCA. Appellate Jurisdiction S240: Subject to the provisions of this Constitution, the CA shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the; 9 Chris Ozo Agbata [email protected] [email protected] 07035406532 FHC NIC HC of the FCT, Abuja, HC of a state, SCA of the FCT, Abuja, SCA of a state, CCA of a state Court Martial other tribunals as may be prescribed by an Act of the NAss. The decisions of the Court of Appeal on the following matters are final: 1. Decisions on appeals from the National and State Houses of Assembly Election Tribunal S246(3) CFRN, Awuse v Odili. 2. Decisions on civil appeals from the NIC S243(4) CFRN, S5(4) 3rd Alteration Act to the Constitution 2011, Skye Bank v Iwu. However, an appeal on Fundamental Rights enforcement under Chapter IV may further lie to the SC as of Right S233(2) CFRN. Removal The President of the CA may be removed by the President on an address supported by two-third majority of the Senate. The grounds for removal may be the inability to discharge the functions of the office due to infirmity of the body or mind, or for misconduct or contravention of the Code of Conduct S292(1)(a) CFRN. Other JJCA are removed by the President on the recommendation of the NJC S292(1)(b) CFRN. 3. Federal High Court The Federal High Court is established by S249 CFRN Composition: It is composed of the Chief Judge and such other number of Judges as prescribed by an Act of the National Assembly S249. Qualification: To be appointed as a Judge of the FHC, a minimum of 10 years’ post-call experience is required S250(3) CFRN. Constitution: The Court is duly constituted to hear a matter when it is composed of at least on judge S253 CFRN. Appointment: Appointment is made by the President on the recommendation of the NJC while the CJ’s appointment is subject to confirmation by the Senate S250(1) & (2) CFRN. Original Exclusive Jurisdiction: 10 Chris Ozo Agbata [email protected] [email protected] 07035406532 The Federal High Court has the exclusive jurisdiction to sit on the following matters. The FHC used to have one jurisdiction and different divisions Abiola v FRN but it has seized to be so since the decision in Belgore v FRN by the SC to the contrary: 1. Matters under Section 251(1)(a)-(o). CFRN, relating to: a. The revenue of the Government or any of its agencies. b. The taxation of Companies and other business corporations or persons subject to Federal taxation. c. Customs and Excise, Export duties. Claims by or against the Nigerian Customs Service. d. Banks and Banking or other financial institutions matters, actions by or against the Central Bank of Nigeria arising from, legal tender; Forex; Bills of Exchange; Fiscal Measures; Letters of Credit; Promissory Notes e. Matters arising from the operation of the Companies and Allied Matters Act and other enactments regulating the operation of Companies. f. Federal enactments dealing with Intellectual Property and industrial standards i.e. Copyright/Patents/Passing Off/Business Names. g. Admiralty/Shipping, h. Diplomatic and Trade Representation, i. Citizenship and Aliens/Extradition, j. Bankruptcy and Insolvency, k. Aviation/Safety of Aircraft, (Negligence and Plane Crashes included) l. Arms and Ammunition, m. Drugs and Poisons, n. Mines and Minerals; o. Weights and Measures 2. Any matter related to the decision or act of the Federal Government or any of its agencies S35 CBN Act, S251. CFRN: a. The administration, management, and control of the FG or any of its agencies. b. The operation or interpretation of the CFRN as relating to the FG or any of its agencies c. The validity of an executive or administrative action by the FG or any of its organs or officers It should be noted that where an action against the FG or any of its agencies is based on any Federal Enactment, a Law, or the Doctrines of Equity, a party is not prevented from seeking reliefs of damages, injunctions, or specific performance. 3. Any questions as to: a. Whether the term of office of a senator or a member of the house of representatives has ceased. b. Whether the office of a senator of a member of the house of representatives has become vacant S251(4) & 272(3) CFRN, S27 & 28, 1st Alteration Act. 11 Chris Ozo Agbata [email protected] [email protected] 07035406532 The Admiralty Jurisdiction of the Federal High Court Admiralty Jurisdiction was originally conferred on the FHC by S9(i)(d) of the Admiralty Jurisdiction Act, 1973 but as the Act did not define the scope of Admiralty jurisdiction, the limit of Admiralty jurisdiction of the Court was understood as prescribed by the Administration of Justice Act of England 1956. American International Insurance Company v. Ceekay Traders Ltd. By S7(i)(g) & (h) of the 1956 English Act, the Admiralty' jurisdiction of the HC covers: i. any claim for loss or damage to goods carried in ship ii. any claim arising out of any agreement relating to the carriage of goods in ship. The cause of action, to cover admiralty jurisdiction, must inter alia have arisen on the high sea. The goods must have been lost when they were being carried in ship as cargo and not lost after they had been unloaded from the ship A.M.C v NPA. Note the provisions of S1(1)(g) Admiralty Jurisdiction Act – “any matter arising within a Federal port or national airport and its precincts, including claims for loss of or damage to goods occurring between the offloading of goods across space from a ship or an aircraft and their delivery at the consignee’s premises, or during storage or transportation before delivery to the consignee;” S1(2) Admiralty Jurisdiction Act - “The admiralty jurisdiction of the Court in respect of carriage and delivery of goods extends from the time the goods are placed on board a ship for the purpose of shipping to the time the goods are delivered to the consignee or whoever is to receive them, whether the goods were transported on land during the process or not.” Note that disputes arising out of International Documentary Credits do not always come under the admiralty jurisdiction of the Court. Here, five contracts are involved in the letter of credit i.e., i. the contract between the buyer and the seller, ii. the contract between the buyer and the issuing bank, iii. the contract between the confirming bank and the issuing bank, iv. the contract between the seller and the confirming bank; v. contract of affreightment between the supplier and the ship owner. The SC held that dispute arising from a contract between the buyer and the issuing bank does not fall under matters of admiralty as it has nothing to with admiralty. By virtue of S251(1)(g) CFRN, the FHC is now vested with exclusive jurisdiction on admiralty matters. It should be noted that under the Admiralty Jurisdiction Act 1991, the scope of admiralty has been extended to include matters which ordinarily were not considered admiralty matters, e.g., damages arising from oil pollution. The admiralty jurisdiction also extends to maritime claims such as: a. Claims relating to the possession of a ship 12 Chris Ozo Agbata [email protected] [email protected] 07035406532 b. Claims relating to the title or ownership of a ship or of a share in a ship c. A mortgage of a ship or a share in a ship d. A mortgage of a ship’s freight Controversial Issues on Jurisdiction between the FHC and HC There are conflicting decisions in which the SC and CA have handed down decisions to clear the point on whether the FHC or HC are vested with the jurisdiction to entertain a particular matter. a. Banker Customer Relationship. Where it is simply an ordinary Banker - Customer relationship, both the FHC and HC have jurisdiction NDIC v Okem Enterprises. If customer sues for negligence, both Courts will have jurisdiction SGB v. Delluch. If it is an action between a bank and another bank in an Ordinary Banker - Customer relationship e.g., one bank depositing money in another bank, then both the FHC and SHC will have jurisdiction FMBN v. NDIC. In an action between the CBN and another bank, or between a bank and another bank where it is not an ordinary banker - customer relationship, the FHC will have exclusive jurisdiction. Furthermore, where there are issues of banking policies and fiscal measure, FHC has exclusive jurisdiction. In Societe Bancaire (Nig.) Ltd vs. Delluch, the Plaintiff/Respondent sued the Appellant bank for negligently opening an account in favour of some fraudsters into which money swindled from the Plaintiff was lodged. The action was instituted in the Lagos State HC. The appellant raised a preliminary objection on the ground that being a matter relating to banking, it is within the exclusive jurisdiction of the FHC under S251(1)(d) CFRN. The Respondent contended that it was an ordinary tort action against the bank. The SC held that the matter bordered on negligence in relation to banking; and not being a banker - customer matter as the Respondent was not a customer of the Appellant, the matter was within the exclusive jurisdiction of the FHC. Query: Can a Bank be made a party to an action before a SHC where the matter does not qualify as a Banker - Customer matter. Société-General Bank v. Delluch. Where a non- customer of the bank is suing for negligence, the FHC will have jurisdiction. b. Actions Against the FG or its Agency initially, in NEPA v. Edegbenro, the SC held that once a party is an FG’s agency, the appropriate court will be the FHC but in Onuorah v KPRC and NUEE v BPE, the SC held that the subject matter of the action and not merely the parties will determine jurisdiction. This is also the position in Adelekan v ECU Line NV. The parties and the subject matter must be examined against the background of S251 CFRN to determine FHC/SHC jurisdiction. Concurrent Jurisdiction of the Federal and State High Court With respect to the following matters, the FHC shares its jurisdiction with the SHC: 13 Chris Ozo Agbata [email protected] [email protected] 07035406532 1. Enforcement of Fundamental Rights S46(1) & (2) CFRN, Tukur v Gov. of Gongola (held that subject matter of the suit will determine jurisdiction), Grace Jack v UNAM and FUT Minna v Olutayo (subject matter of the suit doesn’t not matter as it can go to either court. This is the present position of the law). 2. Questions of law as to the interpretation or application of the Constitution referred to either of them by an inferior court (excluding questions relating to the acts of Federal Government agencies) S295 CFRN; Okenwa v. A.G. Imo 3. In cases of banker - customer relationship, both the Federal High Court and the High Courts of the States will have jurisdiction Federal Mortgage Bank v NDIC, NDIC v Okem Enterprises. 4. Actions for Damages, Injunctions and Breach of Contract involving the Federal Government or Its Agencies – the proviso under S251(1) also made it possible for items under paragraphs (p), (q) and (r) (Administration and control of the Federal Government or its agency; Interpretation of the Constitution as it relates to the FG; and Injunction granted to the FG or any of its agency respectively) of the section relating to action for damages, injunctions and breach of contract to be instituted in a SHC by an individual seeking redress against the Federal Government or any of its agencies. The permissive language of the proviso has accommodated the jurisdiction of the SHC without shutting out the jurisdiction of the FHC. In the case of Shugaba Darman v Federal Minister of Internal Affairs, where the Plaintiff alleged before the SHC in Maiduguri that his fundamental right of freedom of movement under S41 CFRN has been infringed upon by the virtue of his deportation from Nigeria to Chad Republic by the Defendant. The court held that the action was properly instituted despite the fact that the Defendant was a FG agent. However, where the matter in respect to paragraphs (p), (q) (r) involves a simple contract, only the High Court of a State has jurisdiction to entertain it. Transfer of Cases to the States/ FCT High Courts by the Federal High Court. This will occur when a matter is wrongly instituted at the FHC which lacked the jurisdiction to entertain it. S22(2) FHC Act provides that the FHC may transfer a case before it, where it lacks jurisdiction, to the SHC also in Mokelu v Federal Commissioner of Works and Housing, Inna v Ukoi. FHC Act, S22(3) also provides that the SHC can transfer a case to the FHC where it doesn’t have jurisdiction. However, in Fasakin Foods Nig Ltd v Shosanya, the SC held that the appropriate order for a SHC to make is one of striking out. Thus, the SHC can only strike out. In Abuja, the FCT HC can transfer to the FHC pursuant to the provisions in FHC Act & HCCPR FCT, 2018. The proper thing for the FHC to do, where a matter is wrongly before it, is to transfer the case to the appropriate SHC and not to strike it out. S22 FHC Act, O32 R1 FCT HCCPR, Fasakin Foods Ltd v Shosanya, AMC Ltd v NPA, Mokelu v Federal Commissioner of Works and Housing. 14 Chris Ozo Agbata [email protected] [email protected] 07035406532 The proper order to make where a Court lacks jurisdiction is to strike out the case except where it is empowered to transfer. If a matter is struck out, it means it can be relisted if the grounds for which the Order was made have been remedied. This is as opposed to a case being dismissed. A case is dismissed after its hearing and the Court holds that it discloses no cause of action. The case when dismissed cannot be re-listed otherwise it becomes an abuse of Court process. Appellate Jurisdiction S28 of the FHC Act provides for the appellate jurisdiction of the FHC in respect of the following: a. Decisions of Appeal Commissioners established under the CITA and the PITA. b. Decisions of the Customs, Immigration and Prison Services Board c. Decisions of Magistrates’ Courts in respect of matters transferred to such Courts pursuant to the Act d. Decisions of any other body established by or under any Federal enactment or law in respect of matters concerning which jurisdiction is conferred by the Act. 4. State and The FCT High Courts They are established by SS270 and S255 CFRN (as amended) respectively. Appointment: The CJ and other Judges of the HCS are appointed by the Governor on the recommendation of the NJC while the CJ’s appointment is subject to confirmation of the HA S271(1) CFRN. The appointment of the CJ and other Judges of the FCT HC is done by the President on the recommendation of the NJC and the CJ’s appointment is subject to the confirmation of the Senate S256(1) CFRN. Qualification: To be appointed as a Judge of the FCT HC or a SHC, a minimum of 10 years’ post-call experience is required S256(3) & 271(3) CFRN. Constitution: Both Courts are duly constituted to hear a matter when composed of at least one Judge of the Court S258 & 273 CFRN. In practice only one judge sits. In certain jurisdictions, the HC Laws provide that when the HC sits in its appellate jurisdiction to hear matters from Magistrates’ or Customary Courts, it shall be constituted by 2 - 3 judges S63(1) HC Law of Northern Nigeria, S29 HC Law, Lagos State. If the Court is constituted by more than one Judge, then all the judges must be judges of the relevant High Court Oloriegbe v Omotosho. 5. National Industrial Court The NIC is recognised as a superior Court of Record pursuant to S6 (altering S. 254’CC’) of the Third Alteration Act 2010 to the 1999 Constitution and the NIC Act of 2004. Composition: The National Industrial Court is composed of a President and such number of Judges to be determined by an Act of the National Assembly S254A CFRN. 15 Chris Ozo Agbata [email protected] [email protected] 07035406532 Constitution: At least one judge can sit over a matter but not more than 3 Judges as directed by the President of the Court S6 Third Alteration Act, S254E (1) CFRN Appointment: The appointment of the President and other Judges of the Court is done by the President on the recommendation of the NJC and President’s appointment is subject to the confirmation of the Senate S254B CFRN, S6 Third Alteration Act. Qualification: At least 10 years’ post - call experience and a considerable knowledge in the law and practice of industrial relations/employment conditions in Nigeria is required to be appointed as a NIC J S254B (3) CFRN, S6 Third Alteration Act. Jurisdiction of National Industrial Court By virtue of S254C, CFRN, the NIC has the exclusive jurisdiction to try the following matters, notwithstanding the provisions of SS251, 257 and 272 CFRN: 1. Labour, employment, trade unions, industrial relations and matters arising from workplace, conditions of service, health, safety etc. 2. Factories Act, Trade Dispute Act, Trade Unions Act, Labour Act, and any Law or Act relating to labour, employment etc. 3. Matters relating to the grant of any Order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action. 4. Relating to any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution in relation to employment, labour, industrial relations, trade unionism, employer’s association or any matter which the Court has jurisdiction to hear 5. Relating to any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith 6. Relating to unfair labour practice or international best practices in labour, employment and industrial relations matters 7. Relating to any dispute arising from discrimination or sexual harassment at a workplace 8. Relating to the application or interpretation of international labour standards 9. Connected with child labour, child abuse, human trafficking or any matter related thereto 10. Relating to the determination of any question as to the interpretation and application of any collective agreement, award or judgement of the Court, terms of settlement of any trade dispute, award or order made by an arbitral tribunal in respect of trade dispute, trade union dispute or employment dispute as may be recorded in a memorandum of settlement, trade union constitution etc. 11. Relating to the payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of an employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto. 16 Chris Ozo Agbata [email protected] [email protected] 07035406532 12. Relating to appeals from decisions of the Registrar of Trade Unions or matters related thereto, appeals from decisions or recommendations of any administrative body or Commission of enquiry arising from employment, labour, trade unions or industrial relations; 13. Relating to or connected with the registration of collective agreements; and 14. Applications for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain. 15. Such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly. 6. Magistrate Courts MCs are established by State Laws made by State HA pursuant to S6(5)(j) & (k) CFRN. In the North, they are known as District Courts in the exercise of their civil jurisdiction. Magistrates are usually appointed by the State Judicial Service Commissions. The Court is duly constituted by one magistrate and not more. Jurisdiction of the Magistrate Court in Lagos State In Lagos, there are no grades of Magistrate Courts SS91 & 93 MCL. S28(1) of the Magistrate Courts Law stipulates the jurisdiction of the Court. The limit of damages or monetary claim that the Court has jurisdiction to impose/award is N10 million. The Jurisdiction of the Court is limited to: 1. Personal actions in contract or tort; 2. Recovery of premises 3. Appointment of guardian ad litem 4. Sanitation related injunctions 5. Enforcement of Urban Planning/Environmental based Laws, Lotteries Law 6. Appeals from Customary Courts in Lagos State Where the matter relates to a title or interest in land, the validity of a bequest under a will or settlement, Marriage (Matrimonial Causes), Family Status or guardianship of children, or the inheritance and disposition of property on death, the Magistrate Court will have no jurisdiction to entertain the matter S28(7) MCL The Magistrate Court also entertains appeals from Customary Courts S28(1)(e) MCL. Cases may be transferred between magisterial districts with consent of the receiving magistrate or by the order and seal of the CJ of the State at any time before Judgment S43 MCL. Jurisdiction of District Courts in the FCT Court Old Position New Position 17 Chris Ozo Agbata [email protected] [email protected] 07035406532 Chief District Judge I N250,000 N5,000,000 Chief District Judge II N200,000 N4,000,000 Senior District Judge I N180,000 N3,000,000 Senior District Judge II N100,000 N2,000,000 District Judge I N50,000 N1,000,000 District Judge II N20 000 S17 District Courts Act, the District Courts (Increase of Jurisdiction of District Judges) Order 2014. 7. Sharia Courts of Appeal The Constitution mandates the establishment of a SCA in the FCT. However, other States of the Federation may elect whether to establish one or not S260 & 275 CFRN Composition: It is composed of the Grand Kadi and other Kadis as prescribed by the HA of the State or the NAss if it relates to the FCT S260(2) & 275(2) CFRN Qualification and Appointment: Either a legal practitioner holding a recognised certificate in Islamic Law with at least 10 years’ post-call experience; or a non - lawyer who is an Islamic scholar or a person with considerable experience in the practice of Islamic Law and who has obtained a recognized institution from an approved institution with and has held that qualification for a period of not less than 10 years S261(3) & 276(3) CFRN. Constitution: The Court is presided over by at least 3 Kadis S263 & 278 CFRN. Jurisdiction: The SCA of a State only has appellate jurisdiction from lower Courts (e.g., Area/Sharia Courts) on Islamic Personal Law and has no original jurisdiction S262 & 277 CFRN. However, in addition to such other jurisdiction as may be conferred upon it by an Act of the NAss, The SCA of the FCT may exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law. S262(2) CFRN further provides that the SCA of the FCT shall be competent to decide appeals on: a. Any question of Islamic personal law regarding the marriage concluded in accordance with that law including a question relating to the validity or dissolution of such marriage or a question that depends on such a marriage and relating to the validity or dissolution of such marriage or a question that depends on such marriage and relating to family relationship or the guardianship of an infant. b. Where all the parties to the proceedings are Muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage or regarding family relationship, a foundling or the guardianship of an infant 18 Chris Ozo Agbata [email protected] [email protected] 07035406532 c. Any question of Islamic personal law regarding a wakf, gift or succession where the endower, donor, testator or deceased person is Muslim d. Any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of Muslim who is physically or mentally infirm. 8. Customary Court of Appeal of the FCT and the States The Constitution mandates the establishment of a CCA in the FCT. However, other States of the Federation may elect whether to establish one or not S265 & 280 CFRN. Composition: It is composed of the President of the Court and such other Judges as may be determined by an Act of the National Assembly or the Law of a State House of Assembly where applicable S265(2) & 280(2) CFRN. Qualification, Appointment, and Removal: To be appointed as a Judge of the Customary Court of Appeal, a minimum of 10 years’ post-call experience is required, or considerable knowledge and experience in the practice of Customary Law S266(3) & 281(3) CFRN. Constitution: The Court is duly constituted by at least 3 Judges of the Court S268 & 283 CFRN Jurisdiction: It has appellate and supervisory jurisdiction on civil matters involving questions of customary Law S267 & 282 CFRN 9. Election tribunals Election Tribunals include: a. The CA, for election to the office of the President and Vice President. This is an election tribunal for the purpose of those elections and appeals from it lie to the SC. b. The National and State House of Assembly election tribunal as contained in Paragraph 1(1) 6th Schedule 2nd Alteration Act CFRN. c. The Governorship Election Tribunal S285(2) CFRN. Composition: It is composed of a chairman and two other members. The Chairman shall be a Judge of a HC and other members (two) shall be appointed from judges of a HC, Kadis of a SCA, or Judges of a CCA or other members of the judiciary not below the rank of a Chief Magistrate Paragraph 1(2) 6th Schedule 2nd Alteration Act CFRN. Appointment: The Chairman and other members are appointed by the President of the CA in consultation with the CJ of the State, Grand Kadi of the SCA of the State or the President of the CCA of the State. Paragraph 1(3). 6th Schedule. 2nd Alteration Act. CFRN. 19 Chris Ozo Agbata [email protected] [email protected] 07035406532 Appeals from the National and State House of Assembly lie to the CA and ends there S8(3) CFRN 2nd Alteration Act, S246(3) CFRN. The Governorship Election Tribunal has the same composition and appointment procedure as the National and State House of Assembly. Paragraph 2(1) 6th Schedule CFRN, 2nd Alteration Act CFRN. Appeals from the Governorship Election Tribunal lie to the CA and then to the SC. S6(2)(e)(vi) CFRN 2nd Alteration Act. It is the only Election Tribunal that enjoys two appeals. 9. Governorship and Legislative Houses Election Tribunal 1. Establishment: The Governorship Election Tribunal is established by S285(2) CFRN. 2. Composition: The tribunal is composed of a chairman and 2 other members S2 (1) of the Sixth Schedule CFRN. 3. Appointment: The Chairman and other members are appointed by the President of the CA in consultation with the CJ of the state concerned, Grand Kadi of the SCA of the State concerned or the President of the CCA of the State concerned S2(3) of the Sixth Schedule of the CFRN. 4. Qualification: The Chairman shall be a Judge of a HC and other members (two) shall be appointed from Judges of a HC, Kadis of a SCA, or Judges of a CC or other members of the judiciary not below the rank of a Chief Magistrate S2(2) of the Sixth Schedule of the CFRN. 5. Jurisdiction: S285(2) CFRN empowers the tribunal with exclusive original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as member of any legislative house. 6. Appeals: Appeal from the governorship election tribunal lie to the CA and then to the SC Section 6 (2) (e) (vi) of the CFRN (Second Alteration) Act. It is the only election tribunal that enjoys two appeals. 7. Constitution: S285(4) CFRN provides for a chairman and 2 other members as the quorum. ECOWAS COMMUNITY COURT OF JUSTICE The CCJ is established by the ECOWAS as a regional court with civil jurisdiction over all member States. The decisions of the Court are binding on all member states, community institutions, individuals and corporate bodies. Its composition, jurisdiction and powers are contained in the Protocol of the Community Court of Justice 1991 as amended by the Supplementary Protocol 2005. Jurisdiction of the Community Court The Court has jurisdiction to hear and determine any dispute relating to the following: 1. The interpretation and application of the Treaty, Conventions, Protocols, regulations, directives and decisions of the Community; 2. The failure by Member States to honour their obligations under the Treaty, Conventions and Protocols, regulations, directives, or decisions of ECOWAS; 20 Chris Ozo Agbata [email protected] [email protected] 07035406532 3. The provisions of the Treaty, Conventions and Protocols, regulations, directives or decisions of ECOWAS Member States; 4. The Community and its officials; and 5. The action for damages against a community institution or an official of the Community for any action or omission in the exercise of official functions. 6. Cases of violation of human rights that occur in any Member State. 7. The Court shall have jurisdiction over any matter provided for in an agreement where the parties provide that the Court shall settle disputes arising from the agreement. 8. Any specific dispute referred to the Court by the Authority of Heads of State and Government. Ethical Issues Arising from Improper use of the Rules of Court and Wrong Choice of Court Filing Action in the Wrong Court Where an action is filed in the wrong court, the consequences that may arise are: 1. The case will be struck out 2. Cost may be awarded in favour of the defendant 3. Counsel may be personally liable and made to pay cost to the client 4. Counsel can be sued for professional negligence 5. Action might be statute barred. Wrong Use of Rules of Court Where the wrong rules of court are used or where there was no compliance with the rules of court, it will not invalidate the proceedings except where it is shown that the wrong use or noncompliance will manifest hardship or injustice on the other party. ALTERNATIVE DISPUTE RESOLUTION ADR simply means any process of dispute resolution other than litigation. It includes a wide range of processes that enable disputing parties to settle their differences primarily by agreement as against binding decision. Thus, the word alternative refers to other options to litigation. ESSENTIAL INGREDIENTS OF ADR It is voluntary & private: parties cannot be forced to use ADR to resolve disputes and if they use it, they control the mechanics and rules of the process. They can also withdraw from it at any time, unless and until they make a contractually binding out of court settlement or agreement. There is sometimes a third party neutral (often a mediator) who facilitate settlement by shuttlecock diplomacy but who has no power to order or impose a solution on the parties. 21 Chris Ozo Agbata [email protected] [email protected] 07035406532 IS ADR REGULATED? Arbitration and Conciliation are regulated by the Arbitration and Conciliation Act and Lagos State Arbitration Law, 2009, Lagos State Multi-Door Courthouse Law, 2007. While The Multi Door Court Houses have their respective Rules and Procedures. Apart from this, ADR processes are generally private and voluntary. They are flexible and confidential in nature and are normally conducted in an ad hoc basis. ADVANTAGES OF ADR It is quicker, cheaper and more private and produce more flexible terms of settlement than litigation. Where a third-party neutral is involved, he can provide a view that is perceived by both parties as being more objective. By shuttle cock diplomacy, he may be able to identify potential solutions that neither party alone could see. ADR has better chance of preserving relationship between parties to a dispute. Parties control the process and outcome. DISADVANTAGES OF ADR One reason which makes ADR quicker and cheaper is because evidence is not investigated or examined as thoroughly as in litigation. Instead, only what are thought to be the key issues and interests are explored. Because ADR is a voluntary process, it is not appropriate when one party needs immediate judicial relief by way of interlocutory injunction. Likewise, ADR is unlikely to resolve non genuine dispute. For example, where a defendant is clearly stalling for time and refusing to admit liability simply in order to hang on to his money for as long as possible. ADR is not appropriate in test cases where you want a binding judicial precedent, for example the correct legal interpretation of a section of law or a clause in a standard form contract. WHEN TO RESORT TO ADR At any time before, during or even after judgment in a case, resort can be made to ADR. Everything depends on the facts and the circumstances of a particular case. But early resort to ADR is important. In deciding whether to litigate or go for ADR some of the following factors should be considered: 1. Parties’ relationship. 2. Confidentiality/privacy, especially in cases involving trade secrets or family issues. 3. The extent to which the parties need to be involved in the process and the outcome. 4. Stake: the monetary size of the claim may affect the willingness of the parties to take risk. 5. Cause and the lengths of the dispute should also be considered. 22 Chris Ozo Agbata [email protected] [email protected] 07035406532 6. Time and cost. FORMS OF ADR There are so many forms of ADR. Most common ones include: 1. Negotiation 2. Mediation. 3. Conciliation 4. Arbitration 5. Hybrid Processes: ARB-MED, MED-ARB, NEG-MED, and CON-ARB. 6. Expert Appraisal 7. Settlement Conference 8. Private Judging: parties hire a private judge. 9. Early Neutral Evaluation 10. Mini-Trial: just like court trial in absence of live evidence. 11. Multi-Door Court House NOTE: While arbitration ends with an award, successful Negotiation, Mediation and Conciliation end with agreement (or settlement) of the parties. 1. NEGOTIATION: This is a discussion process between the disputing parties for the purpose of settling dispute between them. It does not involve the participation of a neutral third party. Negotiation may be made face to face or it may be made through a phone call or through written communication etc. Role of a Lawyer in a Negotiation Process He serves as: An Evaluator A Negotiator (on behalf of client) An Adviser, or A drafter of agreement Negotiation Strategies, the most popular of them are: 1. Competitive (Win-lose): This is an uncooperative, and highly assertive style. They may or may not also be aggressive. It is used effectively where you have a strong case and the other party has a weak case and is merely accommodating. It should be used wisely because if misused, the style can create mistrust, distorted communication, tension and the souring of long-term relationship. It can provoke retaliation (the other side becomes aggressive or the other side becomes avoiding) in either case, settlement can be severely delayed or a proposed deal can fall apart and your client may not be grateful. 23 Chris Ozo Agbata [email protected] [email protected] 07035406532 2. Cooperative (Win-Win Strategy): This strategy is otherwise called collaborative. It is a principled problem-solving strategy. It is in practice often the most ideal strategy because it gives the best of both worlds. It allows negotiator to be both assertive in his demands and compromising at the same time to save relationships between the two or more disputing parties. This strategy is particularly effective in ensuring the continuity of business or interpersonal relationship. 3. Compromising strategy: A party having a good case may wish to compromise his position in order to avoid uncertainties of trial, the delay involve in going to trial, the emotional stress of a trial, the legal cost of litigation, the loss of time for a commercial client, the transaction falling through, or souring an ongoing relationship between two commercial parties or between members of a family. 4. Accommodating Strategy: This should generally be avoided unless of course the other side has grossly misjudged the situation and you are only too happy to accommodate them. Tactics/Styles of Negotiation There are several of them. The one chosen and applied depends on the strategy adopted. Some of the styles are: Hard, Firm and Soft. Tactics include: Leapfrogging Take it or leave it Piecemeal/Nibble Package deal Limited authority Lack of authority Puff Threat etc. Stages of Negotiation Preparation/Planning stage Ice-Breaking (1st Contact) Stage Agenda setting Stage -Bargaining Stage Conclusion Stage Execution Stage 2. MEDIATION It is a voluntary, non-binding and private dispute resolution process in which a neutral third party helps the parties to reach a negotiated settlement. In other words, it is a process during which the parties to a dispute meet together and separately in confidence with a neutral and independent third party to explore and decide how the conflict between them is to be resolved. Unlike arbitration, 24 Chris Ozo Agbata [email protected] [email protected] 07035406532 the mediator is not empowered to decide any dispute but simply act as a facilitator to help the parties reach a mutually acceptable settlement. Qualities of Mediation The central quality is its capacity to re-orient the parties towards each other not by imposing rules on them but, by helping them to achieve a new and shared perception of their relationship; a perception that will redirect their attitudes towards each other. Stages of Mediation 1. Preparation stage: which includes identifying and preparing the venue for the mediation, mediator’s fees, and the date of the meeting. Also, BATNA and WATNA considerations. 2. Opening Stage: which involves introduction of the mediator, his interest if any, his professional qualification, structure or procedural frame work for the discussion and grounds rules 3. Identification and Structural Discussion of issues: This involves identifying and characterizing the issues in dispute and determination of parties’ priorities in regard to those issues and exploration of possible solutions. 4. Movement of parties to agreement: During this period, the mediator uses techniques of principled negotiation and applies persuasive pressure on parties to reach an amicable settlement of the dispute. 5. Closing: During this stage a mutually satisfactory resolution to the issues is articulated and accepted in some form of written agreement. Advantages of Mediation 1. It facilitates and restores communication between disputing parties and helps break any deadlock that may otherwise block the resolution of the conflict. 2. The mediator can help the parties discover common interests which they may otherwise be unaware of and then reach a resolution that takes their common interest into consideration. 3. The mediator can expedite the negotiation, stimulate the parties to suggest creative settlement and help the disputants to assess settlement alternatives realistically and generally assist them in reaching a better agreement. 4. The mediator can provide new information and bring in a neutral perspective to the problem of drafting. Qualities of a Mediator In order to succeed, a mediator must have endearing qualities that will not only facilitate the process but also make disputants have confidence in his abilities to mediate and be approachable. Ideally, therefore, an effective mediator must possess the following qualities: 1. Respect and adherence to confidentiality. 2. Fairness. 25 Chris Ozo Agbata [email protected] [email protected] 07035406532 3. Patience. 4. Trust worthiness. 5. Honesty. 6. Credibility. 7. Must have active listening skills. 8. Empathetic. 9. Neutrality. Creativity and intelligence. Good Communication skills. Impartial, non- judgmental and professionally persuasive. Role/Contribution of a Mediator 1. Offering an arena that may well be acceptable to both parties. 2. Bringing experience of a successful negotiation. 3. Contributing to the development of rules to help structure the process d. Ensuring that the process of negotiation is a fair one. When Mediation is not Suitable for Dispute Resolution 1. When there is a need to set a judicial precedent. 2. In a dispute bordering on interpretation of Statute. 3. Where there is need for the preservation of the res by an injunction. 4. Public Policy. 3. CONCILIATION Conciliation is another process where a third party intervenes to assist the parties to resolve their dispute. It is governed by Part II of the Arbitration and Conciliation Act. To a large extent, conciliation shares the same characteristics as mediation; and in most jurisdictions, both are used interchangeably. Party that initiates conciliation shall send a request for conciliation containing a brief statement of the subject of the case to the disputing party S38 ACA. They may appoint one or three conciliators, where one, they appoint together, where three, each appoint one then appoint the third one jointly S40 ACA. Sometimes an attempt is made to distinguish mediation from conciliation by emphasizing the following: 1. Conciliator may give opinion or suggest an agreement for the parties. 2. It is statutorily provided for. 3. Often the conciliator is a government official who is required to further the objective of the legislation. For example, the Minister of Labour may act as a Conciliator when there is a dispute under the Trade Dispute Act. 26 Chris Ozo Agbata [email protected] [email protected] 07035406532 4. ARBITRATION Arbitration is the process where the disputants appoint an arbitrator to resolve their dispute by delivering a binding arbitral award outside the court. Here the parties retain control of the process, not the outcome. THE MULTI DOOR COURT HOUSE This is a court connected ADR Centre with the objective of providing frame work for ADR. It is an ADR institution with rules of practice and procedure. Parties who approach the multi-door courthouse for resolution of their disputes can opt for Arbitration, Mediation or other ADR processes depending on which is suitable. Parties who submit cases to the Multidoor courthouse are guided by the rules of the Multidoor courthouse. For example, The FCT Abuja Multi-door courthouse Procedure Rules 2003 provides for procedure to be followed in Mediation and Arbitration. So, if a party submits to the AMDCH for a mediation for instance, the 2003 rules in respect of mediation will apply. The person is liable to pay administrative and mediation fees and for other expenses incurred by the centre in the course of the mediation process involving his case. ABUJA MULTI-DOOR COURT HOUSE PROCEDURE FOR RBITRATION: A case for arbitration may be filed before the Abuja Multi Court House by filing a written notice addressed to the other party indicating an intention to arbitrate. The notice shall indicate the nature of the dispute, the amount involved and the relief sought and the venue requested for the arbitral proceeding. The notice shall be filed together with the contract containing the arbitral clause or the agreement for the arbitration and the appropriate filing fees Rule 4. The respondent has 10 days to respond to the claim and where the respondent counter claimed, he shall state the nature of the counter claim Rule 4. Where parties decide to submit their dispute to arbitration after it has arisen, they can institute action at the centre by filing notice of submission to arbitration signed by both parties. The submission shall contain statement of the nature of the dispute, amount involved if any, and the filing fees paid Rule 8. Where parties did not agree on the number of arbitrators, only one will be appointed. But parties can decide on the procedure for the appointment of the arbitrator and can also appoint. If they do not appoint within 30 days the centre will appoint. 27 Chris Ozo Agbata [email protected] [email protected] 07035406532 Arbitrators may be challenged by the submission of a statement containing grounds for the challenge within 30 days from the date of the receipt of the notification for the appointment; or from the date of receiving facts constituting ground for the challenge Rule 16. Arbitration hearing takes place at the Centre in the presence of the parties except, where a party fails to appear after reasonable notice. Parties can also be represented Rule 21. FINAL AWARD Final award shall be made within one month from the conclusion of arbitration and not later than 3 months in exceptional circumstances, but the centre can extend the time. Reason for the award, time and place must be stated Rule 28. Note: Abuja Rules do not contain enforcement procedure. For the enforcement of the award, resort shall be made to Arbitration and Conciliation Act and Arbitration Rules. Note that an Arbitration at the Multi-door courthouse is called an Institutional arbitration. MEDIATION AT ABUJA MULTI DOOR COURT HOUSE Request for mediation or submission to mediation may be made through the filing of a written request for mediation together with the payment of the appropriate filing fees. The centre may also be urged to invite the other party to a dispute to submit to mediation where no agreement to that effect exists Rules 1 &2. The nature of the dispute should be stated. Before the mediation, mediation agreement shall have to be entered from the beginning between the parties and the centre. The agreement can be made with the parties personally or through an authorized representative. The mediation can take place at the centre or anywhere appointed by the parties. The role of the mediator is to try to get the parties to negotiate reasonably. He is not expected to impose any decision on them. When an agreement is reached, a mediation agreement will be signed; but if the mediation failed, a declaration to that effect will be made Rules 12 & 14. LAGOS MULTI-DOOR COURTHOUSE The Procedure at the Lagos Multi-door courthouse is similar to that of the Abuja Multidoor courthouse, but there are some differences. See for instance the Lagos Multidoor courthouse Practice Direction on Mediation. Lagos Multi-door courthouse (LMDC) was established in 2002, but the Lagos Multi-door courthouse Law came into being in 2007. It is an integral part of the Lagos State Judicial System. LMDC offers the following: 1. Arbitration 2. Conciliation 3. Mediation 4. Negotiation 5. Neutral evaluation 6. Other ADR options. 28 Chris Ozo Agbata [email protected] [email protected] 07035406532 7. Cases can be initiated by: 8. Walk-ins; 9. Court referrals; 10. Direct Interventions. The procedure for arbitration and mediation are similar to the procedure in Abuja multi-door courthouse earlier discussed. However, there are a few differences in the area of enforcement of agreements reached Rule 19. Agreement or MOU reached after ADR process at LMDC shall be reduced into writing, signed by the parties and neutral third party and filed at LMDC with necessary attachments. The Centre shall cause it to be endorsed by the ADR judge in the presence of the parties or referral judge (if applicable) or other persons authorized by the CJ. Upon endorsement, the Agreement becomes a consent judgment of the High Court of Lagos State, enforceable by the sheriffs as a judgment or order of the High court. Note: that an agreement reached by the parties and signed by them is enforceable as a contract between them. Note further: that upon being endorsed by the ADR or Referral judge, it becomes a consent judgment enforceable as such. ARBITRATION “An arbitration is the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction. The persons to whom a reference to arbitration is made are called arbitrators. Where provision is made that in the event of disagreement between the arbitrators (usually in such case two in number) the dispute is to be referred to the decision of another, or third person, such person is called the umpire. The decision of the arbitrator or umpire is called the award.” per Agbaje, J.S.C., in Kano State Urban Development Board v FANZ Construction Company Ltd (1990) LPELRSC. 45/1988 ARBITRABLE? "It is undisputed that before a matter can be referred to arbitration, same must first be seen to be arbitrable. The dispute must not relate or cover matters which by law, are not permitted to be settled by other dispute resolution mechanisms other than in Court, the Arbitration and Conciliation Act, Cap A18, does not demarcate between disputes that are arbitrable or otherwise, it has however been judicially recognized as a matter of public policy that matters relating to crime, matrimonial causes, winding up of a company or bankruptcy are of such nature that cannot be settled by arbitration Bcc Tropical (Nig.) Ltd v Government of Yobe State & Anor (2011) LPELR-9230 (CA). It has always been the case that where fraud and serious malpractices are alleged in a dispute, same cannot be referred to an arbitrator for resolution. The jurisdiction of the regular Court on this 29 Chris Ozo Agbata [email protected] [email protected] 07035406532 issue is iron-clad, as fraud, financial malpractice and collusion are allegations with criminal consequences and therefore reserved for the Courts, and an arbitral tribunal, being a creature of contract, is not endowed with general and wide jurisdiction, bestowed upon regular Courts, which are equipped to adjudicate in complex issues and are competent to offer wider range of reliefs to the parties in dispute Alipak Banerjee & Vyapak Desai on "Is Fraud Open to Arbitration. Per Abubakar, J.C.A., in Mekwunye v Lotus Capital Ltd & Ors (2018) LPELR-45546(CA) ARBITRABLE? The test in United World Limited Inc v Mobile Telecommunication Services 10 NWLR (PT. 586) 106. “The dispute or difference which the parties to an arbitration agreement agree to refer must consists of a justiciable issue triable civilly. Thus: an indictment for an offence of a public nature cannot be the subject of an arbitration agreement; nor can disputes arising out of an illegal contract; nor disputes arising under agreements void as being by way of gaming or wagering; equally, disputes leading to a change of status, such as divorce petition, cannot be referred, nor, it seems can any agreement purporting to give an arbitrator the right to give a judgment f) there is no dispute within the meaning of an agreement to refer disputes where there is no controversy in being, as where a party admits liability but simply fails to pay.” TYPES OF ARBITRATION customary industrial or commercial (domestic and international) institutional CUSTOMARY ARBITRATION Customary arbitration is a process of having a dispute amicably settled between parties who voluntarily submit to the decision of traditional chiefs or elders of the community. The range of disputes that may be submitted to customary arbitration include chieftaincy disputes, landlord and tenant disputes, family disputes and sale of land under customary law TAKE NOTE Agu v Ikewibe 12 (1991) 3 NWLR (PT. 180) 385 SC a customary arbitral award becomes binding only after subsequent signification of acceptance of the suggested award from which either party is free to resile at any stage up to that point. Eke v Okwaranyia (2001) 12 NWLR (PT. 726) 181 SC for a customary arbitration to be binding on the parties, the following ingredients must be pleaded and proved: 30 Chris Ozo Agbata [email protected] [email protected] 07035406532 1. That there had been voluntary submission of the matter in dispute to an arbitration of one or more persons; 2. That it was agreed by the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding; 3. That the said arbitration was in accordance with the custom of the parties or their trade or business; 4. That the arbitrators reached a decision and published their award; 5. That the decision or award was accepted at the time it was made. COMMERCIAL ARBITRATION There are two basic forms of commercial arbitration. Domestic arbitration International arbitration DOMESTIC ARBITRATION One in which all the parties have their places of business in one country, for example, Nigeria. It is immaterial whether the parties are Nigerian citizens or foreigners, if they all carry on business in Nigeria and the arbitration is held in Nigeria. INTERNATIONAL ARBITRATION Is one in which the parties have their places of business in different countries or the subject matter of the arbitration relates to more than one country or a substantial part of their agreement is to be outside their places of business. NOTE- parties may also agree that any dispute arising from the commercial transaction shall be treated as an international Commercial Arbitration whether domestic or international can be ad hoc arbitration or institutional arbitration. Ad hoc arbitration is one in which the parties themselves prescribe the mode of appointment of the arbitrator who, upon being appointed, controls the proceedings himself within the limits laid down by law. Institutional arbitration: one in which the arbitrator is appointed, the proceedings conducted, and the award issued in accordance with the rules of a trade or arbitral organization. Like: international chamber of commerce (ICC), the London Court of International Arbitration (LCIA), the American Arbitration Association (AAA), the United Nations Commission on International Trade Law (UNCITRAL), 31 Chris Ozo Agbata [email protected] [email protected] 07035406532 the international centre for the settlement of investment disputes (ICSID). Governing Laws on commercial arbitration The first is the common law and the doctrines of equity and the second is statutes. The principal law in Nigeria is the Arbitration and Conciliation Act the Act is not complete code for arbitration, if there is lacuna, it is to be filled by common law principles, doctrine of equity and trade usages. the High Court Rules too contain provisions on arbitration Some states like Lagos State have also enacted their arbitration laws. The Lagos State Arbitration Law 2009 (LSAL) applies to all arbitrations that arise in Lagos State, except where parties have stipulated another law. NOTE Domestic arbitrations must be conducted under the Arbitration Rules contained in the First Schedule to the ACA NOTE Where there is conflict between ACA and arbitration law of a state ACA prevails Compagnie Generale De Geophysique v Dr. Jackson D. Etuk (2003) LPELR-CA/ C/51/2001 ARBITRATION AGREEMENT Section 1, Arbitration and Conciliation Act (ACA) To be enforceable, an arbitration agreement must be evidenced in writing, either in: A document signed by the parties. An exchange of letters, telex, telegrams or other means of communication which provide a record of the arbitration agreement. An exchange of points of claim and of defence in which the existence of an arbitration agreement is alleged by one party and not denied by another SOME BASIC PRINCIPLES The agreement may be In form of a clause in an agreement. A separate agreement on how parties intend to arbitrate their dispute NB - whether in a clause or separate agreement it is deemed a separate agreement and enforceable even if the rest of the part of the agreement in which arbitration clause is inserted is declared invalid - this is called DOCTRINE OF SEPARABILITY, s12(2), ACA and s19(2), LSAL An arbitration agreement may be framed in such a manner as to prevent any right to court proceedings until an award is first made. Such a clause is known as a Scott v Avery clause 32 Chris Ozo Agbata [email protected] [email protected] 07035406532 from the case of Scott v. Avery clause (1856) 5 HLC 81, African insurance Dev. Co. Ltd v. Nigeria LNG Ltd (2000) 4 NWLR (Pt. 653) 494 JS An arbitration agreement may also contain a clause that a claim shall be deemed to be waived and absolutely barred if an arbitrator is not appointed within a specific time. Such a clause is known as Atlantic shipping clause from the English case of Atlantic Shipping and Trading Co. Ltd v. Louis Dreyfus & Co. Ltd (1922), S5 ACA. Kompetenz-Kompetenz – this is an expression used as a shorthand for the question of whether a tribunal may decide on its own jurisdiction. In Nigeria, an arbitration tribunal is competent to rule on the question pertaining to its own jurisdiction. Party Autonomy; Under the Act, parties are specifically given the right to make agreements about most aspects of procedure subject to the mandatory positions. Meaning that the provisions of the Act will apply if there are no contrary agreement by the parties. The principle is of fundamental importance. Thus, the parties can choose the applicable law. The lex arbitri – law applicable to the arbitral proceeding is usually the law of the place where the arbitration is taking place, the lex causae – the law applicable to the dispute. The parties often chose the applicable law which may be lex fori – the law of the forum where the arbitration is taking place or the Arbitration Rules or the conflict rules of the seat of arbitration. There is also the law applicable to the enforcement of the award which is the law of the country where the enforcement is sought. APPOINTMENT OF ARBITRATORS The parties to an arbitration agreement may specify the procedure to be followed in appointing an arbitrator. Where no procedure is specified in the arbitration agreement, the parties will follow the procedure specified in the Act as follows: o In the case of arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint the third arbitrator. o However, if a party fails to appoint the arbitrator within thirty days of the receipt of a request to do so by the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointments, the appointment shall be made by the court on the application of any party to the arbitration agreement which is: in the case of arbitration with one arbitrator, where the parties fail to agree on the arbitrator, the appointment shall be made by the court on the application of any party to the arbitration agreement S7(4) ACA - decision of court to appoint arbitrator is not appealable Ogunwale v Syrian Arab Republic (2002) 9 NWLR Pt. 177 P. 127 CA. 33 Chris Ozo Agbata [email protected] [email protected] 07035406532 o But where the parties have agreed on the procedure to be followed in appointing an arbitrator and a party fails to act as required under the procedure or the parties or two arbitrators are unable to reach agreement as required under the procedure or a third party, including an institution, fails to perform any duty imposed on it under the procedure, any party to the arbitration agreement may request the court to take the necessary measure, unless the appointment procedure agreed upon by the parties provides other means for securing the appointment C. G De Geophysique v Etuk (2004) 1 NWLR Pt 853, P. 20. Arbitration Session In international arbitration - parties are free to choose their own procedure In domestic arbitration- parties are bound by ACA rules Article 15 ACA Rules - parties are treated with equality and each party is given a full opportunity of presenting his case. Hearing, S20 ACA, is by: By holding oral arguments; On the basis of documents or other materials; By both holding oral hearings and on the basis of documents or other materials PROCEDURE S19 ACA The Claimant submits to the arbitrator his statement or points of claim which shall contain: the facts supporting his claim, the points at issue, the relief or remedy sought names and addresses of parties The Respondent submits his 1. points of defence in respect of those particulars set out in the points of claim. - by either admitting or denying each point of claim alongside same particulars also filed by claimant. Claimant opens his case by himself or by his counsel and calls his witnesses who are examined, cross-examined and re-examined where necessary. Respondent calls witnesses who are examined, cross-examined and re-examined if there is need. Respondent sums up his case and the Claimant replies. 34 Chris Ozo Agbata [email protected] [email protected] 07035406532 The Arbitrator makes an award S31 ACA - an arbitral award shall be recognized and enforced just like judgement of which court, upon the application of any of the parties to the award. NOTE - Parties can settle the issues before hearing and request the arbitrator to make an award on the issues. ENFORCING THE AWARD Ebokan v Ekwenibe and Sons Trading Co (2001) 2 NWLR (Pt. 696) 32 is enforceable in court, a party cannot backout even if the award doesn’t favour him. But it can be challenged. Until it is challenged it is as good as judgement of court Araka v Ejeugwu. The party enforcing the award files in court: 1. The duly authenticated original award or duly certified copy thereof; 2. The original arbitration agreement or duly certified copy thereof. 3. A copy of the contract in respect of which the arbitration was conducted CHALLENGING AWARD Savoia Ltd v. Sonubi (2000) 12 NWLR (Pt. 682) 539 SC 1. Where the arbitrator fails to comply with the terms of the arbitration agreement; 2. Where the arbitrator makes an award which on grounds of public policy ought not to be enforced; 3. Where the arbitrator has been bribed or corrupt 4. Where the arbitrator makes a mistake as to the scope of the authority conferred by the arbitration agreement 5. Where the arbitrator fails to decide on all the matters which were referred to him; 6. Where the arbitrator has breached the rules of natural justice; 7. Where the arbitrator has failed to act fairly towards both parties, 8. Exceeded scope of submission to arbitration 9. Arbitration agreement not valid under a Nigerian law 10. Composition contrary to agreement 11. Subject matter incapable of being settle by arbitration e.g., crimes 12. Lack of qualification on the part of the arbitrators 35 Chris Ozo Agbata [email protected] [email protected] 07035406532 WEEK 4 – PARTIES TO A CIVIL SUIT PARTIES The nomenclature given to a party depends on the rules of a court, the nature of the action and the originating process used to commence the action. For instance, under the CCPR FCT Abuja, 2018 and Lagos State CCPR, 2019, in action commenced by a writ of summons, the parties would be designated as claimant and defendant, whereas if the action is commenced by petition such as in Matrimonial Causes, Election Petitions and Winding Up Proceedings, the parties are designated as petitioners and respondent. If the action is by an originating motion, then the parties would be applicant and respondent. On appeal, parties are known as Appellant & Respondent. In respect of Counter-Claim, Parties are known as Counter-Claimant & Defendant to Counter-Claim. Names of parties to any civil action and their respective statuses must be reflected in the originating processes. Is any default in this respect fatal? Note the difference between “Party” and “person;” a party must be a person in law, but in some instances, more than one person may constitute one party. BETWEEN CHRIS OZO AGBATA…….…………………………..…………………………....CLAIMANT AND JOHN PERRY………………………..…………………………………………..DEFENDANT TYPES OF PARTIES Failure to join the appropriate person to an action, or joinder of an inappropriate person may be fatal; hence the need to identify the various types of parties Okomu Oil Palm v Iserhienrhien (2001) The following are the various types of parties: 1. Proper parties 2. Desirable Parties 3. Necessary Parties 4. Nominal parties 1. Proper Party: According to Balck’s Law Dictionary 6th ed, A proper party is one who has an interest in the subject matter of the litigation, which may be conveniently settled therein. One without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy and conclude the rights of all the persons who have any 36 Chris Ozo Agbata [email protected] [email protected] 07035406532 interest in the subject of the litigation. A proper party is one who may be joined in action but whose non joinder will not result in dismissal. Those without whom cause might proceed but whose presence will allow judgement more clearly to settle controversy among all parties. In Yusuf v Akindipe, the plaintiffs filed a rep action. The P and those they were representing were equally directly involved in the cause of action. The SC held that they were proper parties to bring the action. Therefore, for a person to be a proper party, he should be able to prove that he is connected directly to the cause of action. In Mobil Producing Unltd v LASEPPA, it was held that a proper party is one whose interest will be affected directly if a relief claimed in the action were granted. But in Green v Green, the SC held that a proper party is one who, though is not interested in the plaintiff's claim is however made a party for some good reasons, for example, where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Efvwerhan and Agaba et al, disagree with Green v Green but agree with Mobil v LASEPPA and Black's Law Dictionary. 2. Desirable Party: Not originally a party to the action & presence not essential for the just determination of the suit, yet made a party so as to be bound because the outcome may directly affect him Green v Green; Peenock v Hotel Presidential (1982); Yakubu v Gov, Kogi State (1995); Inakoju v Adeleke (2007). 3. Necessary Party: A person: who is interested in the subject matter; whose presence is essential for the just, effectual and complete determination of the suit; and Who would be affected by the outcome of the suit. Union Beverages v Pepsi Cola (1994); Adisa v Oyinwola (2000); Ojo v Ogbe (2007) A person who is ordinarily a necessary party and who is aware that a case is pending in court in which he is interested and the outcome of which would affect him, but neglects, fails or refuses to apply to join the suit, may be treated as a party “By Standing By,” and as such would be estopped from re-opening the case after the conclusion of the case Kamalu v Umunna (1997) 5 NWLR (Pt 505) Oguejiofor v Ejidike (2002). 4. Nominal Party: Not interested in the subject matter, not involved in the transaction that gave rise to the cause of action; would not be personally affected by the outcome, but made a party only by virtue of the office he occupies Padawa v Jatau (2003). Sometime, described as a Statutory Party. Examples: 37 Chris Ozo Agbata [email protected] [email protected] 07035406532 Actions by/against the FG must be commenced by/against the AGF; actions against a State must be commenced by/against the State AG; Actions the House of Assembly, must be commenced against the Speaker. Plaintiff`s action may be defective under the technical rules if he were not made a party. See Black`s Law Dictionary. Court may waive such procedural irregularity, where action is commenced by the principal. CAPACITY TO SUE & BE SUED A party to an action (both plaintiff & defendant) must be competent to institute or defend the action; must be a legal person (a person in law). Else, action would incompetent and liable to be struck out Shitta v Ligali (1941); Agbonmagbe Bank Ltd v General Manager, Gb Olilvant Ltd; Okechukwu & Sons v Ndah (1967); Njemanze v Shell Dev Coy, Port Harcourt (1966). In Shitta v Ligali the C described themselves as ‘Executive Committee of the Central Mosque Lagos’, struck out as not a legal person but in Adegbite v Lawal, the C described themselves as ‘For themselves and on behalf of the Muslim Community of Ijebu-Ode Central Mosque’ upheld as it is in rep capacity. In Okechukwu & Sons v Ndah, the C initially sued as ‘Okechukwu & Sons’, its registered name but on objection, with the leave of court the writ was amended to read ‘N. Okechukwu, trading under the name and style of N. Okechukwu & Sons Trading Stores’ and the action was then maintainable. In Agbonmagbe Bank Ltd v General Manager, Gb Olilvant Ltd, the 1st D held not to be a legal person, it has to be the company which is the juristic person. Action brought in a representative capacity is competent, provided it is instituted by a legal person on behalf of identifiable persons having a common purpose Shitta v Ligali, Yusuf v Akindipe (2000) MISNOMER Misnomer or misdescription of a party (mistake in describing a party) would not be fatal unless parties are misled or there is miscarriage of justice – Kalu v Odili (1992); Misnomer occurs when the correct person is described under a wrong name: Emespo Continental v Corona (2006) NWLR (PT.991) 365 @378 In such cases, an application for an amendment to reflect the correct name of the legal person may be granted because court are now concerned more with substantial justice, than with mere technicalities MAERSK v ADDIDE Invest Ltd (2002); 15/2, Abuja, 2018 & 15/2&5, Lagos 2019. The court would allow the name even if misdescribed if the D admitted the name in his pleadings as parties are bound by their pleadings and what is admitted need no further proof as was held by the SC in Agbanelo v UBN Ltd. 38 Chris Ozo Agbata [email protected] [email protected] 07035406532 Where amendment would amount to substitution, court would not grant the application Ibrahim v Chairman, Kachia LG (1998). CLASSES/TYPES OF LEGAL PERSONS Legal person may be either a natural person or an artificial person. Artificial persons are divided into: Corporate Sole Corporation Aggregate Registered Firms/Partnerships Juridical Persons Natural persons include: Competent Adults (must be of sound mind, not bankrupt) Persons under Legal Disability Lunatics Personal Representatives Attorneys 1. COMPETENT ADULTS Natural person 18 years and above may sue or be sued in his or her own name, provided he is of sound mind, and not bankrupt, nor under any other legal disability Draft: BETWEEN CHRIS OZO AGBATA…….…………………………..…………………………....CLAIMANT AND JOHN PERRY………………………..…………………………………………..DEFENDANT 2. PERSONS UNDER LEGAL DISABILITY (PULD) Both Abuja and Lagos rules in O1 (Interpretation Order) defined a person under legal disability as “person who lacks the capacity to institute or defend any proceedings by reason of age, insanity unsoundness of mind or otherwise.” Infants are persons who are below 18 years. PULD may sue or be defend by their guardians or a guardian appointed for that purpo