Introduction
‘’I contemplated the fact that the learned SAN, like me, must also possess a tremendous passion for advocacy. Thus, I accepted the invitation to engage in the intellectual and professional leadership challenge. Perhaps, if the title of the book had not included the magical word “advocacy”, I might not have responded in the affirmative. I congratulate Fabian – The Prolific Writer – for the brilliant choice of an attractive and compelling title to wit: “Oral and Written Advocacy: Law and Practice”. Chief ‘Folake Solanke SAN, CONFirst Female Senior Advocate of Nigeria
Preface
The concept of a free-market economy presents opportunities for disputes in the pursuit of economic gains. In seeking the determination of their rights and liabilities, or the amicable settlement of their disputes, parties can have recourse to the court system or to alternative dispute resolution (ADR) methods. Although ADR includes other methods and mechanisms such as meditation, conciliation, and negotiated settlement, arbitration has, however become the main alternative to resolving or determining commercial disputes. Generally speaking, ADR has gained widespread acceptance in trade and commercial disputes, to the extent that in some jurisdictions, the Court Civil Procedure Rules now require some parties to resort to some type of ADR, usually in the form of mediation, before permitting the parties’ cases to be tried.
In this book I have tried to lay out the framework for arbitration and conciliation, the agreement to arbitration and the practice and procedure of commercial arbitration. In so doing I have tried to bring to the fore the practical situations and issues that parties, counsel, arbitrators and all that are involved in this system of dispute resolution face. It is therefore intended to be practice handbook. The jurisprudence and recent case law discussed in the book provided the basis of academic research, and form a practical in the field of commercial arbitration in Nigeria. The principles underlying the law and practice of arbitration are applicable not only to Nigeria, but to a number of common law countries, including signatories to the New York Convention. I have tried to present the law and practice as they exist today.
In fourteen chapters, I have attempted to look at the general principles and legal framework of arbitration, including the law and procedure applicable to arbitration. The nature of the arbitration agreement is examined, with emphasis on the essential elements of an arbitration clause, common defects in arbitration clauses, jurisdictional and enforcement issues. Forum of arbitration, capacity to arbitrate, place and language of arbitration are also discussed. The practical aspects of the commencement of arbitration, as well as difficulties with commencement, are discussed in chapter four. The constant challenge of forum of dispute resolution (litigation or arbitration) is treated in chapter six, dealing with ‘stay of proceedings’.
The discussions cover recourse to court for preservative orders, as well as case law on when a party is deemed to have taken a step in the proceedings. The later chapters deal with arbitration proceedings and preliminary issues such as admissibility of evidence, adherence to rules of evidence, methods of presenting evidence, and the standard as well as the burden of proof in arbitration. Arbitration proceedings and Award are treated in chapters eight and nine, respectively. I have attempted to deal with the pressing issues of the enforcement of awards and the challenge of arbitral awards. A chapter is dedicated to mediation and conciliation, and another to the techniques for settling of disputes. With the benefit of practice experience and feedback from teaching at the professional training programmes for arbitrators.
I have included templates and precedents that should be of practical value to the practitioner, and a case study to form the basis for moot proceedings. All of these have brought depth and meaning into this book on the law and practice of commercial arbitration in Nigeria. This book lays no claims to perfection, and I therefore take full responsibility for any errors of omission or commission that may be found herein. Fabian Ajogwu FCIArb. Lagos. March 2, 2009
Foreword
Advocacy, be it oral or written, is the professional specialty of advocates, otherwise known as lawyers. When my cerebral and accomplished learned friend of the Silk – Dr. Fabian Ajogwu SAN (as he then was) – wrote to me in 2014 inviting me to be the lead author of this previous book, the word “advocacy” leapt out of the title of the proposed book. It immediately captured my professional interest. The reason was that, in that year, I had already spent fifty-one years of my life in the practice of serious advocacy, with thirty-three years of them, as the first female Senior Advocate of Nigeria. Praise be to God. I very much appreciate the gracious invitation. I contemplated the fact that the learned SAN, like me, must also possess a tremendous passion for advocacy.
Thus, I accepted the invitation to engage in the intellectual and professional leadership challenge. Perhaps, if the title of the book had not included the magical word “advocacy”, I might not have responded in the affirmative. I congratulate Fabian – The Prolific Write – for the brilliant choice of attractive and compelling title to wit: “Oral and Written Advocacy: Law and Practice (Traditional and Modern Trends in Advocacy)”. Work on this book was enormous and scholarly. The research was intense and the writing and review sessions were numerous. There was tremendous investment of resources in time, energy and unreserved industry. Nonetheless, we are both so enamoured of the law and advocacy, that the sheer gruelling labour required in writing the book was a happy professional adventure.
The book project has been intellectually stimulating. Our approach was to endeavour to advocate very distinctly and powerfully what qualitative legal advocacy entails; and, contribute to legal and academic scholarship. I believe, with all due modesty, that we achieved our professional objectives. Indeed, oral advocacy predated written advocacy.
However over time, the extraordinary amount of time, the huge costs expanded on court trials, the congestion and the abysmal lack of adequate infrastructure in the law – courts, eventually caused a gradual shift towards a preference of written advocacy to oral advocacy, first in the United States of America, thereafter in the United Kingdom, Nigeria and elsewhere, it must be acknowledged that most lawyers, over the centuries, right from the time of ancient Rome till now, have been extremely enamoured of oral advocacy skills in the public theatre of the courtroom. Oratory and rhetoric were special courses of study in ancient Greek and Roman culture. Modern-day advocates are better advised to engage in such studies!
However, the courts and the lawyers have now accepted the ascendancy of written advocacy because it saves time and costs of litigation or should! Consequently, now, only a limited time is, with much regret, allowed by the court rules for oral advocacy. It is trite to state that in Nigeria, English is the language of the court. Consequently, lawyers are professionally obliged to improve their English language and expand their vocabulary in order to be coherent in their limited oral advocacy and to spend the available time most effectively and persuasively. Certainly, there is no luxury of time within the available time for bogus or illogical arguments or sterile and convoluted submissions.
The need to engage in superior advocacy is emphasised in Order 6 Rule 3 of the Supreme Court Rules 1983, which provides:-Failure on the part of an applicant… to present with accuracy, brevity and precision whatever is essential to the clear and adequate understanding of the questions which require consideration shall be a sufficient reason for refusing the application. This rule is a definitive affirmation of the professional responsibility of every learned counsel to cultivate lucidity of thought, simplicity and cogency in oral and written advocacy. We make bold to advocate that lawyers must, through their brilliant oral and written advocacy, demonstrate that they are truly “learned” to wit: that they know the law. It is incontrovertible that lawyers are public performers in the public arena of the courtroom.
Thus, the public perception of lawyers places upon us as advocates the professional obligation to perform our duties tenaciously, either as learned counsel for the claimant (plaintiff) or defendant in civil cases or, as learned counsel for the prosecution, or learned counsel for the accused in a criminal case. Indeed, perhaps lawyers have themselves to blame for the partial loss of oral advocacy because of the inept and inordinate submissions of some lawyers. However, as lawyers, we are expected to encourage the settlement of disputes when the circumstances so dictate. As the 16th President of the United States of America, Abraham Lincoln, once advised: Discourage litigation: Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.
As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be a business enough. As the co-authors of this unique book, we cherish the intellectual and literary opportunity to place on record our undiluted commitment to legal advocacy. With all due modesty, we present the book to the legal profession (the Bench and the Bar), the public and posterity. By so doing, we entertain the belief that we are helping to project “the glory of justice and the majesty of the law” as declared by the United States Attorney-General. I make bold to declare, with all due modesty, that the book is sui generis! Chief ‘Folake Solanke SAN, CON,B. A., Dip. Ed., HLR, FNIALS,LL. D (h.c.), D. Litt (h.c.), D. Lit. (h.c.), D. Litt (h.c.) FiOD, FCIArb,Lead AuthorAlabukun Law Chambers, Ibadan21st day of March 2016
