A WEEKLY ROUNDUP OF LEGAL & TECH EVENTS GLOBALLY | June 25-1 July, 2021
THIS IS REFLECTIONS, our weekly roundup of events in the legal and technology sector, covering various topics and interesting learning points for today’s professional. If you couldn’t make an event, don’t worry, we probably made it and have all the juicy scoop for your reading pleasure and learning.
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EVENT ONE
DEBT RECOVERY TECHNIQUES
The speaker for the webinar was Simi Salau; she described debt recovery in accordance with the failed banks recovery debt and financial malpractices as a means of any loan, advances, credit, accommodation guarantees, or any other facilities together with the interest thereon which is outstanding and unpaid against clients of a bank in favor of the bank.
The speaker mentioned the statutory frameworks for debt recovery which includes:
The speaker noted that there are four debt recovery techniques namely:
On Negotiation, the speaker noted that there is a need to investigate the debtor thoroughly while trying to recover a debt, this would help to determine the assets of the debtor and this is done through a process known as asset tracing.
She noted that contact should be established with the debtor and this should be done by sending letters, demand notices, also communications should be decisive and effective as to what you wish to achieve, she also noted that there is a need to be reach an agreement, if possible, in writing, and in some cases a new term of settlement might be reached.
On Mediation/Arbitration, the speaker noted that this works for parties which are willing parties and also arbitration is advisable for corporate parties only due to how expensive it is.
On law suit, the speaker noted that a law suit can be civil and, in some case, where there are elements of fraud, it can also be a criminal law suit, and in such situations, it is always advisable to involve the EFCC.
The speaker noted that a party recovering a debt should apply for an injunction to preserve both the moveable and immoveable assets of the debtor, the speaker noted that if the debtor is a company, a winding up process should be commenced against the company, however these should be done swiftly before the debtor can dispose off their properties, the speaker also noted that where a debtor has no defense, a summary judgment can be proceeded against them.
On the mode of Enforcement of judgment, the speaker noted that judgment can be enforced by writ of FIFA, Order Nisi and Garnishee proceedings.
On Writ of Fifa, the speaker noted that where a debtor has refused to pay the money ordered to be paid in a judgment, the writ of Fifa is issued to ensure that the judgment debt is realized by the seizure and subsequent sale of the debtors’ properties.
On Garnishee Proceedings, she noted that where a debtor fails to pay the judgment sum and it’s discovered that the debtor has money standing to his credit in the hands of a third party, the law views the money in the hands of the third party as a debt owing to the judgment debtor.
The speaker also noted that Order Nisi is initiated by an application at an exparte hearing where an interim order (Nisi) is temporarily sought.
PATENT LAW
The Speaker, David Silvia, highlighted the steps to obtaining a patent in the United States. These steps are:
(i) Discovery
(ii) Document discovery in the lab notebook. The lab notebook which contains the idea and persons involved, is usually dated and witnessed
(iii) File Invention Disclosure Form with the patent committee
(iv) Patent Committee Discussion (can invention be commercialized, search for prior art, proceed with patent application)
(v) Preparation of patent application (meet with patent attorney, draft application, review and edit application) (vi) File application with patent office
(vii) Review of application by patent examiner
(viii) Rebut the position of the examiner (this process goes back and forth several times. The patent examiner is an obstacle to the owner of the patent and the application to push it back and narrow the scope of the patent).
He defined intellectual property (IP) as a blanket term covering areas of the law dealing with protection of property which “springs from the mind”. The types of intellectual property are Patents, Copyrights, Trademarks and Trade Secrets. He discussed the importance of patents. He opined that product development makes it essential that the fruits of these efforts go as far and as long as possible. Protection for protectable new products is essential. Without protection, new products may be reverse engineered or knocked off freely which equals to doing research and development freely. Intellectual property is the single most valuable asset of a company and it is increasingly important in today’s corporate transactions involving technology. IP protects Research and Development, which is expensive. Patents are valuable through Licensing, Fundraising, Damages awards in litigation for misappropriation of IP rights. it provides market exclusivity, encourages corporate ventures (cross-licensing, collaborations, joint research programs), enhances corporate valuation for acquisition.
In the United States, the constitutional basis of patents is contained in Article 1, Section 8, Clause 8 which states that “the congress shall have the power…. to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. This covers Patents and Copyrights, not trademarks. One of the few authorized monopolies includes the Right to exclude others from making, using or selling an invention in the United States for the term of the patent.
The speaker explained the types of patents. They are:
(i) Utility Patents (covers anything having an actual use, e.g., machines, processes, compositions of matter.
(ii) Design Patents (covers ornamental product designs)
(iii) Plant Patents (for distinct and new varieties of plants that have been invented or discovered and asexually reproduced. The requirements for patentability are:
The preliminary investigations of patentability can be done in the library (textbooks, reference books, and trade journals), computer searches (internet), standard search engines, yahoo, AltaVista, etc., Patent Office, IBM, worldwide (including prior art in other languages. Thereafter, the patents uncovered are studied and compared with the invention. Determination made as to whether the invention is capable of patent protection, i.e., whether the invention is novel and non-obvious, and if so, the scope of protection available.
In discussing when to patent, he stated that the general rule outside the U.S is that one must file a patent application before an enabling, non-confidential disclosure is made or before a product is offered for sale. Accordingly, a disclosure to another party without a confidentiality agreement can constitute an enabling disclosure and bar patent protection. Another problem area is grant proposals. Once funded, government organizations publish the abstracts, sometimes even if you tell them not to without an additional review. inside the U.S, the rules are different. There is a one-year grace period.
EVENT TWO
Topic: PATENT LAW
Date: 29th JUNE 2021 Duration: 1hr from: 04:00pm to: 5.00pm
SPEAKERS:
Summary of Presentation:David Silvia, highlighted the steps to obtaining a patent in the United States. These steps are (i) Discovery (ii) Document discovery in the lab notebook. The lab notebook which contains the idea and persons involved, is usually dated and witnessed (iii) File Invention Disclosure Form with the patent committee (iv) Patent Committee Discussion (can invention be commercialized, search for prior art, proceed with patent application) (v) Preparation of patent application (meet with patent attorney, draft application, review and edit application) (vi) File application with patent office (vii) Review of application by patent examiner (viii) Rebut the position of the examiner (this process goes back and forth several times. The patent examiner is an obstacle to the owner of the patent and the application to push it back and narrow the scope of the patent).He discussed the importance of patents.The speaker explained the types of patents. They are: (i) Utility Patents (covers anything having an actual use, e.g., machines, processes, compositions of matter. (ii) Design Patents (covers ornamental product designs) (iii) Plant Patents (for distinct and new varieties of plants that have been invented or discovered and asexually reproduced
Learning/lessons from the event
Patents are valuable through Licensing, Fundraising, Damages awards in litigation for misappropriation of IP rights. it provides market exclusivity, encourages corporate ventures (cross-licensing, collaborations, joint research programs), enhances corporate valuation for acquisition.
EVENT THREE
TOPIC: DIGITAL ASSETS AND INTELLECTUAL PROPERTY
DATE: 28TH JUNE, 2021
CONVENER: ESQ WEBINAR SERIES
Presentation by Mokmut Udofia
The speaker began with stating that we live in a digital world now which means there are digital assets everywhere. Property that was once held physically is now being digitized.She went on to define digital assets as any content in any format that is stored digitally and adds value and gave examples of digital assets as:
She listed 10 of the current most valuable brands in the world and noted that 7 out of the 10 are intellectual property.
On how intellectual property applies to digital assets, she noted that it is now possible to manage copyrights, trademarks and patents with blockchain technology which is an open ledger of Information that can be used to record and track transactions and which plays an important role in the area of unregistered IP like copyright. It also provides evidenced of creatorship and authentication, tracking and controlling of IP. It can also be used for authentication and detection of counterfeit or stolen goods.
She spoke of other ways to protect digital assets such as digital water marking, cryptography, digital signature technology, electronic marking and security features of operating systems.
She mentioned the innovation of smart contracts which enables parties to track and capture negotiations and agreements and protect their rights.
She concluded by stating ways to manage and monetize digital assets, she mentioned using a digital management system in the cloud, cataloging of digital assets and metadata.
Presentation Ayansola Seun Joshua
Ayansola spoke on the Regulation of digital assets. He stated that people generally are confused as to who regulates digital assets in Nigeria. He mentioned the Central Bank of Nigeria, the Nigerian Copy rights Commission among others.
He gave a brief history of the law on the development and evolution of the law on digital assets in Nigeria and mentioned in particular the prohibition of Banks in Nigeria from financing or dealing in crypto currency. There is a directive from CBN that existing accounts being used for these transactions should be closed so if you want to trade in digital assets today in Nigeria, it can only be based on peer-to-peer transactions.
Presentation by Grace Kalu
This speaker began by stating that technology has changed the narrative of digital works, there is now a whole new way of monetizing digital art etc. and digital assets are now everywhere.
The fundamental IP issues that surround these assets are:
She defined digital assets as valuable information or content that is stored in a digital form and owned by an individual or a juristic personality. Examples are Photos, video, Audio files, Presentations etc.
She stated the defining characteristic of digital assets, they;
The forms of protection that can be used for digital assets are:
On authentication of digital works to ensure protection, she mentioned:
On ownership of IP in digital assets, the general rule is that the author/creator is the first owner, then there are; other owners, Licensees, Assignees and employers under a contract of employment.
She stated that digital assets are better managed with the use of digital assets management tools. The tool organizes digital content and ensures that IP rights are protected. The relevant situation where digital management is necessary is during employee transition or turnover, during acquisitions and mergers and during presentation of business proposals.
On how to monetize IP in digital assets, she mentioned:
She stated that where digital assets are used without the permission of the owner, it constitutes a breach and the IP owner may maintain an action against such person. Such disputes arising from IP infringement may be resolved through ADR or litigation.
CONCLUSION
In conclusion, she stated that there is need for our laws and practices in Nigeria to be developed in regards of protecting digital assets.
The webinar ended with a question-and-answer session involving all the panelists and participants.
EVENT FOUR
DATE: 29TH JUNE 2021
TIME: 2:00PM
TOPIC: THE NBA INSTITUTE OF CONTINUING LEGAL EDUCATION CIVIL LITIGATION TRAINING
SPEAKER: MR. MOZIA KENNETH SAN
INTRODUCTION
The section started at exactly at 2:00pm with Mr. Tobenna Erojikwe who was the moderator welcoming and introducing the speakers.
Mr. Mozia Kenneth SAN who was the first speaker/trainer delivered his lecture on “PLEADINGS”. He started with the definition of pleadings. He said pleadings are formal statements of the cause of an action or defence.
Purpose of Pleadings: To provide notice to the defendant that a lawsuit has been instituted concerning a specific controversy or controversies. It also provides notice to the plaintiff/claimant of the defendant/respondent’s intentions with regard to the suit.
TYPES OF PLEADINGS
The speaker listed the following types of pleadings amongst others: Statement of Claim, Statement of Defence, Reply, Counter-Claim, Cross Claim, Rejoinder, Setoff, Pre-Trial Motions, etc.
The speaker went further to highlight the general rules of pleadings as follows:
(1) Pleadings must state the fact and not law
(2) The fact stated in pleadings should be material facts
(3) Pleadings should not state evidence
(4) The facts in pleadings should be stated in concise form.
The learned silk also listed the requirement of pleadings which are:
(1) Court Heading
(2) Suit No
(3) Parties
(4) Description of the content e.g. Statement of Claim
(5) It should be divided into paragraphs
(6) Facts must be pleaded positively, distinctly
(7) Avoid ambiguity
(8) It should be signed by a legal practitioner and not a law firm
(9) It should have the NBA stamp
(10) It must have address of service
The speaker dealt mostly on statement of claim and statement of defence as follows:
Statement of Claim: it contains your pleadings, i.e. your written statement about what your claim is about and why you are entitled to damages. It is the first document that the trial judge will read. Statement of Claim sets out the details of the dispute, including why the applicant is taking legal action.
Statement of defence: It is the defendant’s written answer or reply to a statement of claim, admitting or denying each and every one of the facts contained in the statement of claim and alleging such facts as the defendant wishes to assert at trial in opposition to the plaintiff’s case.
The speaker said that the statement of defence should specifically deny the allegations, which defendant thinks are false. That any allegation not specifically denied is deemed to be admitted.
Lastly, the speaker talked on the importance of service of Court processes on parties and the effect of default of pleadings.
The first session training came to an end at 3:30 pm.
2ND SESSION BY MR KELECHI NWAIWU
The speaker started by stating the importance of documents supporting pleadings. He stated that these could be categorized into oral and documentary evidence. For documentary evidence, supporting documents needed are witness statement on oath and affidavit. Witness statement on oath is used for proceedings commenced by way of writ of summons while affidavit is for motion, ex perte applications, originating summons/motion. In preparing an affidavit, relevant law should be taking into consideration (He referred to Section 100 of the Evidence Act). Witness statement on oath should also be prepared just like an affidavit and must comply with the Oath Act. Reference was made to the case of Gtb v. Abiodun (2017) LPELR- 42551. Same must be headed properly with proper paragraphing. Any erasure must be done properly.
The speaker also dealt with the interrogatories, frontloading of documents which is aimed at fast-tracking the process of litigation. He pointed out that while documents are not required to be listed in order the party intended to use them, it is better for counsel to call the attention of the opposing counsel to the list of documents to ascertain the ones intended to be objected to while those not objected to can be listed and acted upon.
At the conclusion of his presentation, the speaker attended to various questions from the participants. After which the anchor, TobennaErojikwe appreciated the speaker and all the participants and the webinar came to a close.
3RD REPORT
A REPORT ON 2021 ANNUAL BUSINESS LUNCHEON OF CAPITAL MARKET SOLICITORS ASSOCIATION.
Topic: Regulating Tech Enabled Digital Assets.
Host: Toni Numa
Chuta Chimezie: PANELIST
Tosin Osibodu: PANELIST
Zelda Akindele: PANELIST
Efiok Ekpenyong: PANELIST
INTRODUCTION
The meeting commenced at 11am with an opening statement delivered by Mr. Aigboje Aig-Imoukhuede, CON, the chairman of Coronation Asset Management and a pioneer stakeholder in the capital market industry. The host thereafter introduced the speakers and the sponsors of the luncheon.
SESSION ON REGULATIONS ON TECH ENABLED DIGITAL ASSETS
Mr. Aigboje Aig-Imoukhuede, started by pointing out that the nexus between capital markets and commercial banks has altered the usage of capital markets. The entrance of technology into the finance industry has also further altered the industry. Technology in finance has helped enhance the relationship between capital market facilitators and the end users. It has reduced cost and facilitated compliance with rules and regulations of the industry regulators thereby bringing about better market practices of all participants.
Mr. Aig-Imoukhuede was also of the opinion that technology in the capital market industry has introduced various derivatives such as option trading and complex market trading instruments and has made them more accessible to a larger number of people. According to him, technology is going to disrupt the current approach of doing things in the finance industry, by matching the buying and selling side in a more cost effective manner.
In Mr. Aig-Imoukhuede’s opinion, disinter mediated finance will be the outcome for even legal professionals in the industry if technology is not embraced. For example, block chain technology has provided another perspective of looking at risks, thereby making it easier for non-professional investors to understand and get into capital finance.
Discussing on the developments in Nigeria in the capital market industry, Mr. Aig-Imoukhuede pointed out how Nigeria is currently 5th ranked globally in terms of trading volume with 32.5 Percent growth in real time payment. However, financial technology is yet to be mainstreamed in the capital market in Nigeria, especially in the area of identity management. The regulatory framework is just beginning to respond to technology especially with the recently issued Digital Sub-broker License.
However, there are still some gaps and concern areas, such as distribution and customer experience.
According to Chuta Chimezie, block chain technology is a major step in the development of web technology. Traditional money is fast becoming unreliable especially in making trusted transfer, thereby giving rise to the need for crypto technologies that make it possible to move asset from one person to another and ensure that the party moving the asset relinquishes ownership immediately the money is moved.
Speaking on the new Regulations imposed by the Securities and Exchange Commission and the Central Bank of Nigeria, Mr. Chuta was of the opinion that participants in the capital market industry have to live with the new regulations but also that regulators have to manage them in a way that won’t drive participants to the ground.
Ms. Zelda Akindele while speaking on the regulations expressed how the CBN’s press statement and the SEC Classification of the players in the capital market industry and the fintech space left most lawyers at a loss and unsure of their footing in the new dispensation. However, there’s an obvious overlap between the two sets of regulations and the two regulators are working together to clarify the issues envisaged.
According to her, it cannot be a one size fits all regulation and market trust, fairness and transparency need to be factored in while trying to remold the regulations. There is also the need to critically examine where the digital asset participants and regulators would fit in. The new regulations need to bring the participants and the activities within the scope of the new development and to think wider and deeper on how to collaborate even better with all stakeholders.
Mr. Efiok Ekpenyong gave an update on the scenario of the CBN press statement and the SEC regulations and expressed that the two bodies need to work together. He was of the opinion that the CBN’s concern is quite natural and this is actually a common thread in different countries. The concern was borne out of the need to ensure the nation’s financial stability, protect its sovereignty and relieve pressure that’s being put on its currency.
Additionally, Mr. Ekpenyong discussed the risk mitigation measures (securities against cyber risks) that the SEC concerns itself with. He emphasized how lack of regulations will invariably lead to chaos and how contrary to popular opinions, the regulations are not meant to stifle innovation but rather ensure that the right people are in the market thereby ensuring investor protection.
The final panelist, MrTosinOsibodu spoke on the obvious clarity on the part of SEC on their mission and so there is the need for financial inclusion to make it easy for people to participate in the market. He also emphasized how participants should advise clients in the pre-operation advisory stages on the ways they would be affected by the new regulations.
He thereafter discussed the need to make it easier for individuals to be able to enroll in the capital market and participate in fintech activities.
CONCLUSION
Technology is a major disruptor in every sector of the globe, the capital market inclusive, and the effect of the disruption will be inevitable for every player in the industry. This therefore makes it extremely important for all participants to embrace it and adapt with the times. There will be even more changes in traditional banking and so more involvement are envisaged from traditional banks. Regulators are not left out of this phenomena, this makes it expedient for them to take bold steps towards regulations that would ensure an effortless synergy between all systems in the industry.
4TH REPORT
THE NBA INSTITUTE OF CONTINUING LEGAL EDUCATION (NBA-ICLE) 8-DAY CIVIL LITIGATION TRAINING HELD ON THURSDAY, 1ST OF JULY, 2021
INTRODUCTION
The virtual training began at about 2:pm with the introduction of the first facilitator of the day Mrs Abimbola Akeredolu, SAN.
1ST PRESENTATION
The learned silk dwelt on preliminary issues to be noted by counsel who is representing both the plaintiff and the defendant in a civil matter. She advised that for the defense particularly the processes served should be scrutinized properly from the very beginning, even from the heading of the court and that ways to destabilize the process can be looked for. In the process, the parties should also be examined to ensure that they are proper parties in the sense of juristic personalities, proper/ legal names, appellation, nomenclature and designation. She said if any of the above are not in tandem with the law, preliminary objection can be taken against the suit.
Preliminary objection, the learned silk continued, is taken before the hearing of the suit against the regularity of the court process/ entire suit which may be substantive or procedural. A preliminary objection must achieve the purpose of terminating the proceedings and must be based on pure law, not facts that will require (hearing of) evidence, stressing that the court should be able to only reckon with statement of claim/ writ of summons to hear a preliminary objection. The learned silk went in further to differentiate between a preliminary objection and a demurrer and the history of demurrer and noted that same has been abolished in the various civil procedure rules of Courts. She said demurrer implies that even if the facts as stated in the statement of claim are true, there is no basis to maintain the action. She concluded on the issue of preliminary objection that if the objection to the suit requires evidence, defendant counsel should rather file a statement of defense, raise the points of objection therein and then file a motion on notice to hear the points of objection as stated in the statement if defence.
The next issue the learned silk dwelt on was the issue of locus standi which connotes legal capacity to institute an action which is interchangeably used with standing, title to sue. It is basically the right to stand before a court. Locus standi is threshold to jurisdiction and it is important that parties before the court have sufficient interest to maintain the action else the proper order the court will make is to strike out the suit when absence of locus standi is proved.
Reasonable cause of action was the next port of call of the learned silk. She started this off by giving the definition of cause of action as bundle of rights Ina a relationship which the court will recognize as enabling the plaintiff to pursue a case against a defendant and stressed the need to have a cause of action present in a suit.
Next was striking out of pleadings. The stressed the fact that parties (especially claimant/ plaintiff) must ensure that every paragraph of their pleadings is not frivolous, vexatious, or abusive. This is because the rules allow for striking out of pleadings. The said same is applicable to averments in affidavit too. That affidavit should only contain facts, not law, extraneous matter, conclusions or prayer. All these should be marshaled out in the written address to avoid striking out.
Next that was talked about was consolidation of suits. The learned silk furthered that suits with same subject matter pending in the same court can be heard together. Consolidation is where two or more action with the same parties/ subject matter can be joined and tried together by an order of court.
Next was interrogatories- notice of admission, facts, documents; inspection of documents; discovery of documents etc. She noted that in view of the current system of frontloading, these may actually not be really needful anymore and stressed their importance pre- frontloading era.
Mrs. Akeredolu rounded off her session with setting down for trial/ pretrial conferencing, noting that an accurate assessment/ poll needs to be carried out to weigh how well pretrial conferencing has fared since its introduction in terms of how cases are more expeditiously dealt with so as to know whether it needs to be reviewed or applauded.
Question and answer session followed thereafter, with the learned silk answering all questions asked from participants.
2ND PRESENTATION
The second facilitator for the day was Mr Yakubu Maikyau, SAN. The learned silk’s focus area was on Summary Judgment, Undefended List Procedure and default judgment.
He started off with the need to adhere to timeframe for doing any act as provided for in the rules of court that the effect of failure can attract dire consequences sometimes like default judgment. He said the purpose of summary judgment is to guarantee expeditious trial, save time and cost of both parties and the court. The summary judgment also includes undefended list. The procedure is suited for a claim for account, recovery of possession form squatters/illegal occupants, recovery of payment of salaries and allowances and so on. The claim has to be a liquidated money demand where quantum can be determined, not what the court had to access.
The learned silk highlighted the procedure for summary judgment/Undefended list procedure using the Lagos and Abuja Rules as examples, from the filing, processes to be filed, to the duty of a defendant who intends to defend the suit up till judgment.
The learned silk then talked about judgment on admission which is to the end that a defendant should indicate which part of the claim he is admitting so that judgment can be entered in that regard. The consequences of failure to do this, he said was that the cost of bring proof of such facts will be borne by the party when same is done during trial. The aim of this is to save cost and judicial time.
The learned silk concluded on these time and cost saving procedures in civil litigation and then entertained questions from participants which he ably answered.
CONCLUSION
The training afforded one the opportunity to learn more on the art of civil procedure and litigation and avoid mistakes that would cost one of money, time, reputation, goodwill and clients. As the saying goes climbing of the shoulders of Giants make you see well. Learning from the feet of these learned silk that have obviously paid their dues in the legal profession will make law practice better and easier and the knowledge and value added is highly beneficial.
5TH REPORT
REPORT ON WEBINAR HOSTED by The Nigerian Bar Association Institute of Continuing Legal Education (NBA-ICLE) ON THE 28th JUNE, 2021.
Topic: 8-Day Intensive Civil Litigation Training
INTRODUCTION
The meeting commenced at 2:00pm. Welcome address was given by Mr. Tobenna Erojikwe who stated that the major reason for convening the meeting was to remind lawyers on the basics of civil litigation and to educate new lawyers on its essentials. He thereafter introduced the facilitator, Mr. Tola Oshodi SAN who in turn introduced and welcomed the esteemed speakers for the event.
1ST PRESENTATION: EVALUATION AND ANALYSIS OF LEGAL INSTRUCTIONS (PRELIMINARY MATTERS TO CONSIDER)
Speaker: Mrs Mia Essien, SAN
Mrs Mia Essien started her presentation with a brief introduction on the aim of the preliminary stage in civil litigation which is to obtain and ascertain correct instructions from one’s client in order to be able to render the right services for the clients need hence during the briefing with one’s client, a lawyer should ascertain if;
1. There is any form of conflict that can/may arise in handling the client’s case.
2. Determine the mode of the meeting with the client whether physical or virtual and the mode of taking instructions whether electronically or otherwise.
3. Listen to the client’s need with rapt attention without interjecting.
4. Ask direct and open-ended questions, let the client speak.
5. Obtain clarity from client where necessary.
6. Deduce what cause of action is disclosed by the set of facts provided.
7. Establish the elements that constitute the cause of action.
8. Identifying and reviewing documents, agreements, statute and regulations so connected if any.
9. Determine how familiar the client is with the legal process.
10. In all, the client’s goals should serve as a guide in handling the case.
She then went further to present a scenario from which she raised certain preliminary considerations such as; Identifying if there are any statutory/contractual requirements to issue pre-action notice; identifying condition(s) precedent in commencing the action, considering the limitation period if any, compliance with pre-action protocol and practice directions. She stated that the best way a lawyer can determine the position of the law as regards his client’s cause of action is to check decided Supreme Court cases as the decisions of the Supreme Court are binding on all Courts in Nigeria being the apex Court.
She further stressed the importance of determining the question of who has the locus standi to initiate the proceedings, the necessary parties involved, the court that has jurisdiction over the subject matter, compliance with any requirement for issuance/service of originating processes, critical appraisal of the facts to ascertain the legal issues the case may throw up, review the case law and statutory laws that affect the issues thrown up by the case.
She stated the need for a lawyer to suggest arbitration, mediation or negotiation to the client if that would best serve the client’s interest rather than litigation.
In conclusion, she reiterated that a lawyer must develop a thorough, methodical and scientific approach to evaluating and analyzing clients’ instructions. Therefore, a lawyer must pay intense attention to every detail, otherwise he might overlook a key element that is material to the case which could be decisive as often times, a case is won/lost at the very preliminary stages.
She entertained some questions and comments from participants. A participant asked if the RPC applies to arbitration. She answered that it does. Another question was whether the admonition that counsel should consider mainly Supreme Court cases to determine the position of the law on the client’s case is valid considering the fact that there are conflicting decisions of the Supreme Court. She answered in the affirmative and stated that the position of the law is that if there are conflicting decisions of the Supreme Court on a subject matter, the latest decision should be followed.
The 1st session was brought to an end at about 3:17pm and the 2nd speaker was called upon for her presentation.
2ND PRESENTATION: PREPARING NECESSARY PRELIMINARY DOCUMENTS
Speaker: Mrs. Abimbola Akeredolu, SAN
Mrs Abimbola Akeredolu SAN started her presentation by emphasizing on the importance of the preliminary stages of civil litigation and most particularly with regards to the appropriate documents or notices to serve and be served on as this can make or mar the case. She mentioned that this has been one of the major factors that has really affected the speedy dispensation of justice in the country. Some of the documents that were highlighted were the pre-action notice where applicable, memorandum of claim etc.
She went further to discuss on the importance of proper service of these documents and processes as non-service can vitiate the entire proceedings no matter how well established the case is.
She stated that although service of pre-action notice can be waived, where it is not waived and the plaintiff fails to serve same, it becomes a condition precedent without which the Court can exercise jurisdiction. She cited the popular case of Madukolu v. Nkemdilim.
Next, she spoke on demand letter. She stated that before some actions can be instituted in Court, for example an action for recovery of debt, the plaintiff must have served a demand letter. She stated that the demand letter must state a time frame within which the demand must be met and what action would be taken upon failure to meet the demand within the time stipulated.
She also spoke on the modes of commencement of action which include writ of summons, originating summons, originating motion and petition.
Another preliminary document she spoke on is memorandum of claim which is provided for under the Lagos State Rules. She stated that the memorandum of claim must set out a concise detail of the claim, the reliefs sought and how the reliefs were arrived at.
She concluded her session at about 4:00pm and entertained some questions. A participant asked if a demand letter can serve as a pre-action notice for a private person. She answered that pre-action notices are not required for private persons unless it is specifically provided for under a contract or agreement.
Another participant asked if a pre-action notice that was used in an earlier action which was withdrawn can be used in a subsequent action. She answered that the law in that regard is not yet settled, but that it is better to err on the side of caution and serve a fresh pre-action notice.
A participant asked whether village or club constitutions can be regarded as documents to be subject to interpretation by originating summons. She answered in the affirmative.
The question-and-answer session was brought to an end at about 4:52 pm and the facilitator asked for comments from other distinguished attendees of the workshop. The workshop was brought to an end at about 5:05pm.
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