METHODS OF ALTERNATIVE DISPUTES RESOLUTION

A. D. R simply means Alternative Dispute Resolution. It is the method by which parties to a dispute reach an amicable resolution of the dispute without the need to resort to Court or litigation. ADR could be Court connected or non-Court connected. It is the former when where the matter was already in Court and the parties agreed on an out of Court settlement while it is the latter where the parties mutually reach an acceptable agreement without recourse to Court.

TYPES OF A. D. R

1.      Negotiation;

2.      Mediation;

3.      Conciliation

4.      Litigation;

5.      Early Neutral Evaluation; and

6.      Arbitration.

Negotiation

This entails the parties discussing and agreeing to terms or reaching mutually acceptable resolution without the aid or intervention of a 3^rd party. This method involves discussions, concessions, compromises, communications, persuasion, and bargaining. In essence, it involves giving something up in order to get something in return

There are two types of negotiation viz. competitive or positional strategy (win/lose option) and co-operative or problem solving strategy (win/win approach). The former is a hostile negotiation in which the parties have set their mindset not to change their stand or compromise while the latter enables the parties to focus on their interest and pick from several options that will resolve the matter amicably.

There are four (4) stages of negotiation namely Opening; Bargaining; Closing; and Execution.

There are three (3) styles of negotiation namely Soft; Hard; and Firm style.

The sources of Power in negotiation are Competition; Legitimacy or authority; Precedent; Information; Investment; and Time.

The negotiation tactics and tricks are Extreme initial position; Deadline; Threats; Promise; Emotions; Nibbles; Psychology play; Lack of authority or limited authority; and Numerical strength. However, it is advised that before you go into negotiation, prepare adequately by determining the Best Alternative To Negotiated Agreement (BATNA) as well as the Worst Alternative To Negotiated Agreement (WATNA).

Mediation

This is a non-binding dispute resolution mechanism involving a neutral and impartial third (3^rd) party who tries to help the disputing parties reach a mutually agreeable solution. The 3^rd party known as the mediator is impartial and does not take decision for the parties rather he helps and assists in identifying the issues and interests that need to be resolved. An agreement reached by the parties during mediation is enforceable if the terms of settlement are reduced into writing by the parties and witnessed by their counsel. The term of settlement will thereafter be filed in court and made the judgment of the court in form of a consent judgment.

In Nigeria, the legal instruments regulating mediation is the Arbitration and Conciliation Act and the various High Court Laws.

Conciliation

This is the process of settling a dispute in an agreeable manner. It is a method by which a neutral third (3^rd) party meets with the parties to a dispute, and explores how the dispute might be resolved. However, he may deliver his opinion as to the merit of the dispute in necessary cases.

This method sometimes serve as an umbrella term that covers all mediation and facilitates dispute resolution processes. The UNCITRAL Model Law on International Conciliation explains that conciliation is where parties request a third (3^rd) party known as the conciliator, to assist them in their attempt to reach an amicable settlement of dispute arising out of or relating to a contractual or other legal relationship. The conciliator is a neutral person who decides and awards nothing and he is not bound to observe the strict rules of natural justice. A conciliator assist parties by establishing communication, dealing with strong emotion, clarifying misperceptions, exploring potential solutions and bringing about a negotiated settlement.

There is a slim difference between mediation and conciliation. In conciliation, the third (3^rd) party has expert knowledge of the dispute he is to conciliate but they are used interchangeably in some jurisdictions.

Litigation

This is the process by which disputes between parties are resolved by the duly established courts. This does not require prior agreement between the parties. Litigation is initiated when one party files a law suit against another. Litigation is the traditional form of dispute resolution, and the main point of litigation is that the courts are concerned primarily with applying public policy and adhering strictly to the law of the land, down to the finest detail.

Early Neutral Evaluation

This is the method where parties submit a summary of their argument on the issue in dispute to a neutral third (3^rd) party who is usually a lawyer or a retired judge who is experienced in the area in dispute. He evaluates the case of both parties and gives a candid opinion on the relative strength and weakness of their respective cases. His opinion is not binding, but it may lead to an amicable resolution of the dispute. All documents, records and statements made in the process are confidential and cannot be admissible as evidence.

Arbitration

This was originally included as part of ADR, but due to its adjudicatory nature it has shifted away from ADR. It is a method involving one or more neutral third parties who are usually agreed upon by the disputing parties and their decision is final. The decision arrived at by the arbitrator(s) is called an award, and same is enforceable like a Court’s judgment. The principal legislation dealing with arbitration in Nigeria is Arbitrators and Conciliation Act, Cap. A18, LFN 2004.

The agreement to arbitrate must be in writing and signed, and the agreement is irrevocable except by agreement of the parties or by leave of court.

Arbitration can be of two types:

a)      Arbitral clause in a contract which refers future disputes to arbitration or a submission agreement that refers existing disputes to arbitration; and

b)      It can also be ad hoc or institutional administered by an arbitral institution like the International Chamber of Commerce (ICC) or London Court of International Arbitration (LCIA)

Where there is an arbitration agreement and one of the parties commences action in court, the other party can apply for stay of proceedings, before delivering any pleadings or taking any other steps in the proceedings under section 4 and 5 of LFN 2004.

ADVANTAGES OF A. D. R

·         It is cheaper;

·         There is privacy;

·         It promotes reconciliation;

·         It saves time and cost; and

·         It encourages friendliness.

ADVANTAGES/DISADVANTAGES OF ONE METHOD OF DISPUTES RESOLUTION OVER THE OTHER

1.    Mediation is much less costly than litigation

2.    In mediation, parties cannot go on appeal while in litigation they can

3.    In mediation, mediators are not paid while in arbitration, arbitrators are paid.

4.    In mediation, the neutral third party can only suggest a dispute while in arbitration the decision of the neutral third party is binding.

5.    Mediator does not have expert knowledge while conciliator has expert knowledge of the dispute in issue.

6.    A mediator only makes procedural suggestion on how parties can reach an agreement while a conciliator establishes communication between parties and brings about negotiation settlement.

7.    Mediation has the advantage of a neutral 3^rd party while negotiation does not.

8.    Mediation is enforceable while negotiation is not.

9.    Mediation makes use of a neutral 3^rd party called a mediator while early neutral evaluation makes use of a judge or lawyer.

10.  Litigation is oral while arbitration is either oral, document or both

HIGH COURT RULES WITH REGARD TO ADVISING AN ADR

Order 25 of the High Court Civil Procedure Rules of Lagos State makes provision for the promotion of amicable settlement of cases or adoption of alternative dispute resolution.

Order 17 Rule 1 of the High Court of the FCT, Abuja Civil Procedure Rules 2004 states that a Court or Judge, with the consent of the parties, may encourage settlement of any matter(s) before it, by either – (a) Arbitration; (b)Conciliation; (c) Mediation; or (d) any lawfully recognized method of dispute resolution.

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RULES OF PROFESSIONAL CONDUCT FOR NIGERIAN LEGAL PRACTITIONERS

1)  Duty as to admission into the legal profession – A lawyer shall not knowingly do any act or make any omission or engage in any conduct designed to lead to the admission into the legal profession of a person who is unsuitable for admission by reason of his moral character or insufficient qualification or for any other person – Rule 2 of RPC.

2)      Aiding the unauthorized practice of the law – A lawyer shall not aid  a non-lawyer in the unauthorized practice of law – Rule 3(1) and (2) of RPC

3)      Avoidance of intermediary in the practice of the law – Rule 4 of RPC.

4)      Association for legal practice – Rule 5(1), (2), (3), (4) and (5) of RPC.

5)      Retirement from judicial position or public employment - Rule 6(1) and (2) of RPC.

6)      Engagement in business - Rule 7(1) and (2) of RPC.

7)      Lawyers in salaried employment - Rule 8(1), (2), (4) and (5) of RPC.

8)      Practising fees - Rule 9(1) and (2) of RPC.

9)      Seal and stamp - Rule 10 of RPC.

10)  Mandatory Continuing Professional Development (CPD) - Rule 11(1), (2) and 93) of RPC.

REQUIREMENT FOR THE RULES OF PROFESSIONAL CONDUCT FOR LAWYERS

Section 11(4) of the Legal Practitioners Act (LPA) empowers the Bar Council to make rules of professional conduct. In NBA v. Iteogu (2006) 13 NWLR (Pt. 996) 219 at 247 Abdullahi Ibrahim SAN, Chairman, LPDC (as he then was) explained that: “the rules of professional conduct is made for the maintenance of the highest standard of professional conduct etiquette and discipline in terms of the Nigerian Bar Association”.

General responsibility of a lawyer – Rule 1 of the Rules of Professional Conduct (LPC) provides that a lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.

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History of Nigerian legal profession

This has to do with the history of the legal profession. In August 1860 Lagos was ceded to the Queen of England as a result Lagos became a British colony. Therefore all laws applicable in England became applicable to Lagos, and in 1863 the Supreme Court Ordinance was promulgated to the colony. It provided inter-alia “that the laws of England shall have the same force and be administered in this settlement as in England so far as such laws and such administration thereof can be rendered applicable to the circumstances of this settlement.

The problem of this legal system was that there was shortage of qualified personnel to man the court and shortage of court facilities which led to the employment of lay-men without the knowledge of the law to man the legal process. As at 1862, there were 7 magistrates – 3 were barristers, 2 were writing clerks, 1 was a merchant and 1 was a commander of the West Indian Garrison in Lagos. To solve this problem, the Supreme Court Ordinance of 1876 was promulgated for the admission of persons to practice as legal practitioners in Nigeria.

This Ordinance provided for three (3) categories of persons that could practice, namely:

1)      Those entitled to practice in Great Britain or Ireland - section 71 of the Ordinance;

2)      Those who have served as articles – section 73 of the Ordinance; and

3)      Local Attorneys – section 74 of the Ordinance.

Today, due to the Legal Practitioner’s Act, three categories of persons can now practice, namely:

1)      Those entitled to practice generally whose names are on the rolls;

2)      Those entitled to practice for the purpose of any particular office; and

3)      Those entitled to practice by warrants for the purpose of any particular proceedings.

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Celebration of church Marriage whether is valid marriage under the Nigeria law

 

There is a difference between a statutory marriage and a church marriage. A church marriage is not necessarily a marriage under the act. The fact of a celebration of a marriage in a church does not constitute the marriage a marriage under the Act. Such a marriage must comply with the requirement of the act to be a statutory marriage. A church marriage without more is a customary marriage.

In Nwangwa v. Ubani (1997) 10 N.W.L.R. pt 526, p.559. The court of appeal held that the mere celebration of a marriage in a church as was done in the case does not confer statutory flavor to the marriage. The court stated that in order to convert a customary law marriage into statutory law marriage the parties must consciously take steps and adopt the procedure contained in the marriage act. The court cited with approval in Martin v. Adenugba  (1964) 18 NLR 63, Anyaegbunam v. Anyaegbunam (1973) 4 SC 121.

the rule to comply are these:

(A)   it must be conducted by a recognized minister of the religious organization concerned

             the place of worship must be a place licensed under the Marriage Act to conduct                marriage

(B)   There must be minimum of two witnesses before conducting the marriage, the minister must be certain that the Marriage Certificate has been obtained by the parties.

(C)   the marriage must take place between 8am to 6pm

(D)   the minister must send a copy of the Marriage Certificate to the Registrar of Marriagewithin 7 days of the marriage.

Failure to comply with any of the formal requirements, does not in any way affect the validity of a marriage.

However section 12 and section 33 (33) specifically stated that where certain formal requirements are not complied with, the marriage shall be void. Thus section 12 states that a marriage shall be celebrated within 3 months of the filling of the notice and that if the marriage does not take place within that period the notice and all subsequent proceedings shall be void.

Section 33(2) states that a marriage shall be void if both parties knowingly and willfully acquiesce in its celebration:

in any other place other than the place of a registrar of marriages or a licensed place of worship; or

under a false name or

without a registrar’s certificate of notice or special licence, or

by a person not been a recognized minister of some religious denomination or body or a registrar of marriages.

It would therefore appear that failure to comply with formalities will result in voidness only if it is in relation to the formalities in section 12 and 33 (2). However, section 33 (3) goes on to state as follows: ‘But as no marriage shall, after celebration, be deemed invalid by reason that any provision of the ordinance other than the foregoing has not been complied with.”

By implication therefore even non-compliance with section 12 should not result in voildness. It has in fact been suggested that following the principles of statutory interpretation since section 33(3) is a later section than section 12, in case of conflict, as we now have, that later section should prevail. See kasumu and salacuse- Nigerian family law , butterworths,1966,p.53

One other problem of interpretation is the meaning to be attached to the term- knowingly and willfully – in section 33(2). In obiekwe v. obiekwe (1963)17 ENLR 197. Palmer J., defined the word willfully as meaning a deliberate act. “ the attitude of the mind, I think, be I know there ought to be a certificate, I know there is no certificate, nevertheless I shall go through with the ceremony”.

Indeed, most of the cases in which this issue has arisen concern marriages according to “Roman catholic rites” in which the parties failed to obtain a registrar’s certificate beforehand. This prompted palmer j., to declare in obiekwe v. obiekwe (supra) “that legally a marriage in a church (any denomination) is either a marriage under ordinance or it is nothing”. However the serving provision that such a marriage is void only if the two parties enter into it “knowingly and willfully,” has been applied repeatedly to uphold the validity of marriages in such there was no registrar certificate. See Akoludike v. akwudike (1963)7 ENLR5, the attitude of the court is well illustrated by the following statement of okagbue, j, in Ejikeme v. Ejekeme. Unreported suit no E/10D/71. “ if I have any doubt in my mind that the petitioner did not know that the registrar’s certificate was not in existence, or having that knowledge did not know of such a certificate, I would have no hesitation in pronouncing for the validity of the marriage”.

What this means is that if a man deceives a woman that he has completed all the required formalities for their marriage, including obtaining a registrar’s certificate, when in fact he has not, provided the woman believes that the statement is true, the marriage will be held valid at law. Thus she will enjoy all the rights of a legitimate wife under the marriage act and matrimonial causes act, and the marriage can only be terminated by formal divorce petition at a high court. Thus under the marriage act, the marriage in martin v. adenugha (supra) it should be noted that this approach is equally applicable to the other three formalities in section 33(2). Thus in Aiyegbusi v. Aiyegbusi (1974) 1 /23871 marriage in a church not licenced for worship did not invalidate the marriage because the parties were not aware of this defect at the time of the marriage ceremony.

misjoinder of parties

It is a general rule that where an agent acting within the scope of his authority makes a contract with a third party on behalf of a disclosed principal, the agent drops out completely and only the principal can sue and be sued by the third party on the contract. In fact, a contract made by an agent for a disclosed principal typifies the normal situation in agency relationship; so long as the agent acts within the scope of his authority, any contract made by him on behalf of a disclosed principal will operate to pass the rights and liabilities under the contract to the principal.

<p>By the rules of court, and under our jurisprudence, a defendant acting on behalf of a known and disclosed principal incurs no liability. see the case of QUA STEEL PRODUCTS LTD V. BASSEY (1992) 5 N.W.L.R. PART 239, where it was held that "An agent is not liable and cannot be sued or joined in a suit for the wrongs of his principal where the principal is disclosed. In such a case only the disclosed principal is liable and only can be sued."</p> <p>The law is now well settled that the only reason which compels the joining of a party to an action is that such a party joined, is in a position where he would be bound by the result of the action and as a corollary the action must contain a question or questions which cannot be effectually, effectively or completely settled unless he is a party.</p><p>May i humbly refer you to CMI TRADING SERV LTD V. YURIY (1998)11 N.W.L.R (pt573) where the court held as follows</p><p>A person sought to be joined in a proceeding must be someone whose presence is necessary as a party. To be a necessary party it is not enough that the person sought to be joined has relevant evidence to adduce as that will only make him a necessary witness, nor that he merely has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance and is afraid that the existing parties may not advance them adequately. Rather, The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.</p>

I submit that a person to be joined in an existing action must have a direct or legal interest in order to take advantage of the rules governing joinder of parties. It is not enough that he has an indirect interest. A person is legally interested if the answer to the question in issue may curtail his rights. Thus, the only reason which might render the presence of a party before the court to be necessary to enable the court to adjudicate completely within the meaning of the rule is that he should be bound by the result of the proceeding.

My lord, we further submit that a quick look at the paragraphs of the statement of claim discloses no claim made against the 6th Defendant/Applicant or any specific relief sought against the 6th defendant/Applicant, neither has the 6th Defendant/Applicant been accused of any wrong doing. May i humbly refer you to MIL ADM. AKWA STATE V. OBONG (2001)1 N.W.L.R (pt694) where the court held as follows

<p>A plaintiff cannot sue a defendant against whom he has no cause of action; neither can he sue a defendant who has no locus standi in his contemplated action.</p>

There is no better evidence or notice of a case a party intends to make at the trial than his statement of claim. It is improper to join as co-defendants parties against whom the plaintiff has no cause of action and against whom he has made no claim and whose interest is adverse to that of the defendants.

May i humbly refer you to ONWUKA V. MADUKE (1998)4 N.W.L.R (PT 547) where the Court held as follows

<p>Misjoinder of parties deals with parties wrongly or improperly joined by the plaintiff at the inception of the action. Its provisions grants the court discretionary power to strike out name or names of any party or parties, whether as plaintiff or Defendant improperly joined at any stage of proceedings.

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