Emmanuel Ekpenyong & Commercial Litigation in Nigeria
Emmanuel Ekpenyong is Managing Partner of Fred-young & Evans LP, a full-service commercial law firm and Fred-young Recoveries, an international debt collection firm. He is listed as a foreign associate with James Ling Attorney at Law, China. Mondaq have on many occasions awarded him Contributor with Most Popular Article and Most Reader Response in Nigeria. […]
Emmanuel Ekpenyong is Managing Partner of Fred-young & Evans LP, a full-service commercial law firm and Fred-young Recoveries, an international debt collection firm. He is listed as a foreign associate with James Ling Attorney at Law, China. Mondaq have on many occasions awarded him Contributor with Most Popular Article and Most Reader Response in Nigeria. He is profiled as a National Expert in Getting the Deal Through: Restructuring, Insolvency and Copyright. ACQ5 awarded him, Gamechanger of the year, 2017. Here Emmanuel speaks to Finance Monthly about dispute resolution in Nigeria, the advantage of resolving disputes in the country and his company.
Litigation is often seen as the last resort, what are the viable alternatives to litigation in Nigeria?
Litigation is the most common form of dispute resolution in Nigeria. Its origin is entrenched in the English common law. Oftentimes, litigation is cumbersome because of the ingrained culture of litigation which results in overflow of cases and delay in adjudication, which is not ideal for business and business relationships. The need for a more efficient dispute resolution process has contributed to the prominence of Alternative Dispute Resolution (ADR) mechanisms in recent years.
Nigerian courts through their rules, now encourage litigants to resolve their disputes by adopting ADR mechanisms. The court may, with the cooperation and consent of the parties, refer the parties to ADR centers attached to the court system. If successful, the agreed terms of settlement is adopted as the consent judgment of the court. If unsuccessful, the matter is referred to court for adjudication. In adopting ADR processes, the parties may opt for informal tribunals which use informal mediation processes without possessing a formal structure or formal tribunals using formal mediation processes.
The most known and practiced ADR mechanisms in Nigeria are Arbitration, Mediation and Conciliation.
How does the appeal process work in Nigeria? Are there any advantages to resolving disputes in Nigeria – over and above other jurisdictions?
An appeal against final judgments is brought within 90 days after delivery of judgment and 14 days for interlocutory rulings. The Court of Appeal rules allows an Appellant to bring an application before the appellate court for enlargement of time to file an appeal. An appeal does not operate as a stay of execution of judgment at the trial court; the Appellant has to file for a stay of execution of judgment pending the outcome of the appeal. An appeal is filed against questions of law of the trial court. If an Appellant wants to bring an appeal against questions of facts or mixed law and facts, it must seek and obtain leave of the appellate court.
The parties shall settle the record of appeal at the registry of the trial court and transmit it to the registry of the appellate court. The Appellant shall file its Appellant’s Brief within 45 days after transmission of the record of appeal. The Respondent shall file the Respondent’s Brief within 30 days of receipt of the Appellant’s Brief. The Appellant shall file a Reply Brief within 14 days of receipt of the Respondent’s Brief. The parties shall, at a date fixed for hearing by the appellate court, adopt their respective briefs and the appeal will be adjourned for judgment
What are the advantages of resolving disputes in Nigeria?
Unlike other jurisdictions in Africa, the rules of Nigerian courts encourage and provide avenues for litigants to explore amicable and less acrimonious settlement of their dispute. Nigerian courts uphold arbitration and other ADR clauses and in most instances stay court proceedings pending the outcome of arbitral proceedings. The court system support ADR proceedings by granting necessary interim orders, discovery and enforce arbitral awards in the same way as its judgments.
How does your law firm assist clients involved in commercial litigation? Is there any general advice you could offer clients to prevent the situation from escalating?
We are interested in our client’s business and its business relationship with its customers. This is why we explore amicable settlement of disputes involving our client without compromising their interests. If amicable settlement fails and the parties do not have an arbitration agreement between them, we usually suggest to the parties to sign a submission agreement to enable them submit themselves to arbitration because of its speed and confidentiality. If litigation is inevitable and our client’s claim is a liquidated sum, we save time by commencing a summary judgment proceeding to prevent the proceedings from escalating. If our client is the defendant, genuine admissions and reasonable offer towards timeous resolution of the matter are veritable options.
Litigation can be very costly – how do you evaluate each case to determine the best approach? When is arbitration more appropriate?
Litigation has the potential of resulting in high costs for parties and their businesses because of its unpredictability. Though arbitration is much more efficient in today’s business climate, there are certain disputes that can only be resolved by litigation. Disputes involving moral questions, questions of public law, criminal, matrimonial, insolvency, matters, ownership of land, dissolution of a company and testamentary matters cannot be referred to arbitration. In practice, only contractual disputes are referred to arbitration.