INTRODUCTION
Considering the need to enhance
commercial activities in Nigeria, taking into cognizance the complexity of
these activities and the inevitability of disputes arising from such commercial
activities involving large amounts of money. It is therefore of great
importance that in the attainment of justice and efficient use of economic
resources, a strategic mechanism needs to be deployed to ensure speedy
resolution of such disputes.
Doing business measures the time,
cost and procedural complexity of receiving a commercial lawsuit between 2
domestic business. Foreign direct investment will increase where the cost of
contract enforcement in debt collection and properly eviction cases is low.[1]
The likelihood of commercial
disputes cannot be abrogated with a well drafted contractual agreement, because
the agreement doesn’t provide certainty for every eventuality. One of the
parties might seek to take advantage of an uncertainty or loophole from the
agreement thereby leading to dispute between the parties. The pursuit of speedy
dispensation of justice at the court is short-lived due to congestion of cases
in courts. The strategic mechanism is creation of special courts to adjudicate
only on commercial dispute.
Therefore, the argument for the
creation of special courts for adjudicating commercial disputes in Nigeria is
an advocate of a tool (special court) for sustainable economic development in
Nigeria and the creation of haven for foreign investors.
LEGAL FRAMEWORK FOR
COMMERCIAL DISPUTE IN NIGERIA
Most of the commercial
transactions entered into in Nigeria are necessarily governed by Nigerian laws
to wit; constitution, statutes, rules of court, judicial decisions on
litigation procedure as found in the procedural rules of the different levels
of court, statues on litigation procedure and practice directions. Nigerian
commercial litigation was developed from English common law. Under this system,
the law develops through the judges who play a non-inquisitorial role in
adjudication while the parties seek an outcome most favorable to their
position.[2]
The National and State Houses of
Assembly enacted different legislations that apply to business which include
importantly the law of contract and other aspect of law,
company law, agency, sale of goods, banking, intellectual property, competition
law, taxation law, insurance, hire purchase, oil and gas etc.
The Constitution of the Federal
Republic of Nigeria 1999 as amended provides for the establishment of courts in
Nigeria, where commercial disputes are adjudicated upon from the court of first
instance to the appellate court and finally to the supreme court. The choice of
the aggrieved party on the appropriate court to approach is determined by
different factors, basically the issue of jurisdiction of the court to
adjudicate the matter brought to it.
However, one of the militants against
the attainment of justice under this framework is the congestion of our regular
court, which causes delays in the attainment of justice thereby becoming a clog
in the wheel of our economic development. Some states have tried to resolve
this issue of congestion through fast track court, however it was discovered
that there was still delay in delivering of judgment, after careful examination
on the cause it was discovered that the judges hadn’t had any specialist
training on a variety of complex topics being discussed in courts due to the
complex financial cases and tax litigation.[3]
JUSTIFICATION FOR THE
ESTABLISHMENT OF SPECIAL COURT FOR COMMERCIAL DISPUTES IN NIGERIA
The creation of special courts is
a growing trend globally, it is considered to be an important reform initiative
to advance the development of a successful judicial system. Studies from the
United States, Australia and other countries have shown that specialization can
be helpful in improving the processing of court cases that are more complex or
require special expertise beyond the law, or cases that must be handled
differently to better reflect the needs of a particular court user group such
as business cases.[4]
The specialization of commercial
dispute courts simply means the creation of courts to adjudicate only
commercial disputes. The judges assigned over this matter are those with
requisite knowledge and expertise on the governing laws on commercial
transaction.
The justification of a
specialized court in settling commercial disputes in Nigeria are;
1.
Efficiency:
The desire to speed up the process of adjudicating cases has been one of the
main justifications for the creation of special courts globally. The creation
of special court headed by judges with requisite knowledge in governing laws on
commercial transaction will lead to a streamlined operation and more efficient
processing, reducing the burden of caseloads in the regular courts.
A specialized
court handling only commercial dispute will have a more favorable ratio of
judges to cases and will therefore be able to process cases more quickly,
taking into consideration that judges that will be assigned to these courts are
those with requisite knowledge thereby increasing their efficient resolution.
It is sacrosanct
that the main cause of judicial inefficiency is the congestion of our regular
court which tend to sabotage economic development through the delay in the
settling of commercial disputes thereby stalling litigants from concluding with
their financial transactions which would have boost our economy.
2. Expertise:
A judiciary of specialists leads to higher-quality decisions, especially in
complex areas of law. Their greater expertise and experience will lead to
better decisions, better outcomes for the litigants and the greater user
satisfaction[5]. The
desire for a more expert adjudicative body to promote not just efficiency but
accuracy, is a justification for the creation of specialized tribunals (Gramckow
and Walsh 2013)
Therefore, the
establishment of commercial court will build a strong and capable special
judicial body having the capacity to adjudicate complex commercial disputes
that requires special competence and technical expertise. The lack of judicial expertise
in the settlement of complex commercial disputes contributes to the delay of
dispensation of justice. For example in Lagos State, fast track court was
established for the expeditious of settling commercial disputes, it was
discovered that some judgment were still
taking too long, these delays were happening because the judges hadn’t had any
specialist training on a variety of complex topics being discussed in their
courts, the judges were giving long adjournments so they had time to read up on
these complex financial cases and tax litigation.[6]
3.
Uniformity
of Decisions
The creation of
special commercial courts with exclusive jurisdiction over commercial disputes
and ancillary matters would enhance uniformity of decisions in this area, which
will result into greater predictability and assurance in the courts thereby
reducing the rate of appeal by litigants.
The main drive behind the
proposition of creating a commercial court is due to the positive effect it
will have on our commerce and promotion of business and investment prospects
through the resolution of commercial disputes in a quick, efficient and
effective manner that ensures economic growth.
THE MODE OF OPERATION AND IMPACTS
OF COMMERCIAL COURTS IN OTHER COUNTRIES
A review of the establishment of
commercial courts in other jurisdictions for the past decades reveals common
trends and the economy impact on these nations.
In England the commercial court has
existed for a very long time. It grew out of a notice issues to judges of the
Queen’s Bench division in February 1895, the main purpose at that time was to
bring speedy determination to such cases. The mode of operation was through the
appointment of a particular judge dedicated to handling commercial disputes. It
was very successful in bringing cases to a speedy and satisfactory determination
without undue technicality or unnecessary expense.[7]
The Republic of Ireland established
the commercial court in January 6 2004, the Minister of Justice, Equality and
Law Reform described it as ‘’A very significant development of the Irish
court system’’ The court operated through a fast track and pre-trial
procedures to speed up trails, electronic evidence and the use of standardized
IT formarts are also in place. Feedback from irish lawyers indicates that the
Irish commercial court has lived up to its expectation resolving commercial
cases effectively, efficiently and quickly.[8]
Ghana after decades pf political
turmoil that disrupted its judicial system thereby making investors loose
confidence in doing business in Ghana, established the commercial court on
March 4 2005 with the purpose of sustaining and maintaining high level of
investor confidence through the efficient and effective resolution of
commercial dispute.
To assure expeditious
proceedings, these commercial courts are fully computerized, and routinely
provide parties with transcripts of proceedings within 72 Hours. Its
jurisdiction is not restricted territorially i.e cases from over Ghana can be
brought before it. Strict deadlines
exist for the trial, from the first hearing, it must be conducted on a day to
day basis. Adjournments can only be granted for good cause and cannot exceed 72
Hours. [9]
South Africa established
commercial court 15 years ago but it was never fully operational. On the 3rd
of October 2018, the office of the Judge President of the Gauteng division of
the High Court of South Africa released a commercial court practice directive
which comes into effect immediately, creating a specialized commercial court
administered as part of the High Court.[10]
The court aims at promoting efficient
conduct of litigation in the high court and resolve dispute quickly, cheaply,
fairly and with legal acuity.
The report from the World
Bank/IFC publication, ‘Doing Business 2009’ which compares the ease of doing
business in 181 countries worldwide (pages 51-52) observes that the most
popular judicial reform in Africa over the last five years has been the
introduction of specialized commercial courts or commercial sections within the
existing courts.
In 2019, the World Bank/IFC
publication ‘Doing Business 2019’ (page 54) reported that having a specialized
commercial jurisdiction can result in shorter resolution times; solving
commercial disputes is 92 days faster in economies with a specialized
commercial jurisdiction.
CONCLUSION AND
The bottleneck of expeditious settlement
of commercial dispute has prompted many countries to develop specialized
commercial courts. The major argument for the creation of special judicial body
to address commercial dispute is the need for efficiency in resolving
commercial dispute and the associated need to signal to both domestic and
international audiences that the country is keen on economic development
thereby creating a haven for foreign investors.
To achieve this, we need to
create a viable structure for the special courts with timelines in the
adjudication of commercial disputes including interlocutory applications that
tend to delay the administration of justice. The judges assigned to these
courts must be constantly trained to become better adjudicators of commercial
disputes.
However, I would be recommending
the following;
a.
The
place of the commercial court in the judicial hierarchy: The court should serve
as a both court of first instance and also an appellate court and appeal from this
court should lie to the Court of Appeal.
b. The
composition of the court: The constitution of the judges to adjudicate on the
commercial disputes. The Chief Justice
of Nigeria should appoint dedicated judges who are versed in the area of
commercial transactions to handle commercial disputes.
c. The
scope of jurisdiction of the court: The jurisdiction of the court should be
exclusive to commercial matters related to company law, agency, sale of goods,
banking, intellectual property, competition law, taxation law, insurance, hire
purchase, oil and gas and other incidental matters.
d. The
rules that would govern the procedure of the court and the adjudication of
commercial disputes; A Commercial Court Practice Directive should be introduced
to administer the court.
The creation of special
commercial court in Nigeria will definitely record great success in the
administration of commercial justice in Nigeria, if the right structures and
policies are deployed it will greatly impact the ease of doing business in
Nigeria.
[2] https://www.lexology.com/gtdt/tool/workareas/report/complex-commercial-litigation/chapter/nigeria
accessed on the 4/08/19
[3] https://www.britishcouncil.org/voices-magazine/how-lagos-judges-are-now-resolving-disputes-more-quickly
[5]
ibid
[7] https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1031&context=jbel
The development of the Commercial Judicial System in Uganda: A study of the
commercial court division, High Court of Uganda by Justice Geoffrey Kiryabwire
[8]
ibid
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