Aug 14, 2017

You Don’t Always Have to ‘Drag’ People to Court | Ivie Omoregie

I loved litigation; it was something I found very interesting. It was akin to story telling, yet each story always had a different dimension; no two matters were ever the same.

I soon saw the light however, and irritation caused me to drop my wig and gown. I don’t even know where they are now.

Anyone who has ever been involved with litigation in Nigeria can testify to the fact that it tends to be long and tedious. Imagine having to prepare for trial over the entire Salah weekend and going into the office daily, only to get to court on Monday morning and be met by frustrating news – that the judge has postponed hearing by three months because he cannot sit in a court where the air conditioner is not working.

That is only one example of the many reasons I decided to leave litigation for my stronger, more resilient learned colleagues and focus on other aspects of law. The process (especially in Nigeria) is tiring for all parties involved.
Not every dispute requires legal action. Alternative Dispute Resolution (ADR) which I will be discussing in this piece also exists. It is a must-read for anyone either contemplating or already involved in a contentious matter.

What is ADR?
ADR is a collective term used for the various methods and procedures through which parties to a dispute may resolve their issue without letting it result in long and tedious court action.
The traditional forms of ADR are: –
1. Arbitration
2. Mediation
3. Negotiation
4. Conciliation.

With the evolution of ADR in Nigeria, we have seen it take the forefront in different forms. In many instances where court action has been taken, trial judges enquire what steps parties have taken to amicably settle a dispute and tend to make various orders. An example of such is adjourning the case, to enable parties time negotiate a settlement, either directly or by engaging a third party.

Most contracts today contain ADR clauses, thus mandating that parties explore ADR before court action. However, even where the contract has omitted this clause, we often see judges advising parties to explore an amicable resolution of the matter. Interestingly, ADR is currently being applied in matters such as divorce proceedings and chieftaincy title disputes.

Why ADR?
In Nigeria, quite a number of matters escalate unnecessarily to superior courts; it is not uncommon for a party with ‘no defense’ to a claim to use a a delay tactic such as time wasting, aka their ‘right of appeal. This results in applications being made for a relief at a superior court at every whim in a bid to frustrate the other party and weaken morale.

The following are some of the reasons anyone who is involved in litigation of any kind, might want to explore ADR: –

• The legal fees are considerably less than conventional litigation
• ADR is faster than court action
• Confidentiality can be managed perfectly
• Parties are more likely to achieve a better resolution of their issues
• Lack of a ridged structure means parties are allowed to control the direction of the proceedings
• Where there is a third party involved, parties are given an option to choose who will settle their dispute.

I have seen matters go on for decades due to one technicality or the other, with no resolution in sight. Where there is a third party overseeing ADR proceedings, time wasting becomes difficult and consent judgement is reached without delay.

What Is Consent Judgment?
Consent judgment is one that the parties involved have agreed to. Here, parties to a dispute consent to a settlement between the parties. This agreement is then lodged with the court for the judge to sign and adopt as the final decision of the court.

Consent judgment is the ultimate aim of ADR; both parties are able to negotiate the outcome they want, and due to the fact that it is done out of the courtroom, parties successfully avoid the usual limitations of Nigeria’s legal system.

Setting Aside Consent Judgment
A consent judgment has an extremely binding effect; it is an established principle in law that they may only be set-aside in instances of fraud or misrepresentation. Interestingly, a unilateral mistake by either of the parties is not a valid ground for the consent judgment to be set aside.

However, where there is a twist of events (such as breach of warranty) that completely disproves the original agreement upon which the dispute giving rise to the consent judgement occurs, the consent judgement can be successfully invalidated. For instance, party B might have agreed to repay a contractual debt owed to party A, but later discovered that party A has done something that would have caused the contractual agreement to be rescinded. Party B will no longer have any contractual relationship with Party A, thus he will not be bound by the terms agreed to in the consent judgement, which is repayment of the contractual debt.

The unfortunate reality we face in Nigeria is that the courts are congested with an unbelievable backlog of cases. The administration of justice in Nigeria is being adversely affected by the unnecessary and frequent delays in court proceedings. This has been caused by many factors. Aside from cases where rulings on technicalities are being escalated to the Supreme Court, we also have unnecessary adjournments that add to the excessive delays.

I personally believe ADR is the way out of the litigation web if one finds themselves there. I am firmly against court action in instances where there is no criminal element to the claim. In most cases litigation is simply not worth the stress and it makes most contracts not even worth the paper they have been written on.

Energy & Finance, Associate at Templars

This article was first published here