LAW OF EVIDENCE; ADJUDICATIVE AND NON-ADJUDICATIVE PROCESS

INTRODUCTION

In this Unit, we shall learn about Law of Evidence as well as other processes of dispute settlement. Law of Evidence is part of adjudicative law, that part of Law of Procedure which, with a view to ascertaining individual rights and liabilities in particular cases, decides:

1. what facts, may and what not, be proved in such cases 
2. what sort of evidence must be given of a fact, which may be proved. 
3. by whom and in what manner the evidence must be produced by which any fact is to be proved. 

Only an outline of law of evidence is attempted here before we proceed to other adjudicative and non-adjudicative forms of settling disputes.

Law of Evidence

Evidence; There are four main areas with which the law of evidence is concerned: the kind of evidence which will be accepted by a court; the amount of evidence which will be required by a court; the manner in which evidence is presented to a court; and the persons who may or must or may not give evidence.

The Kind of Evidence'; Under this heading, evidence may be classified in a number of ways:

Between direct and circumstantial. Most of you will be familiar with this distinction. Direct evidence is evidence of the facts in issue themselves such as the fact that a witness saw one person stab another with a knife. Circumstantial evidence is an evidence of facts which are not in issue but from which a fact in issue may be inferred such as the fact that a person was seen running from the vicinity of a murder scene with blood on his clothes.

Between original and hearsay evidence. Original evidence is that which a person sees or hears him/herself: hearsay evidence is evidence of what someone else has said about an event. In general terms, hearsay evidence is not admissible in a court. It is one of a number of exclusionary rules of evidence designed to eliminate evidence which might be prejudicial to a party.
Between oral, documentary and real evidence. Oral evidence is the most common form of evidence. Here a person is called as a witness and is asked questions. The advantage of this process is that a court can evaluate a witness because of the manner in which the witness gives evidence.

Documentary Evidence; Involves the production of documents for the court’s inspection

Real Evidence

Consists of producing objects for inspection other than a document such as a knife, clothing etc. Perhaps best listed in the category of real evidence is the procedure where judges and the jury for example visit the scene of the alleged crime to make an assessment of the site themselves. This procedure frequently occurs in cases involving motor vehicle accidents, where the physical make-up of the road may be said to have caused or contributed to the accident. In this case, the jury may well view the scene to make a judgment themselves.

The Amount of Evidence

This area of the law of evidence is essentially concerned with the amount of evidence one party has to adduce before satisfying the tribunal of the issues in contest before it. With civil cases, the plaintiff or claimant carries the onus of proof and must prove his/her case on the balance of probabilities. With criminal cases the prosecution carries the onus of proof and must prove the guilt of the accused beyond reasonable doubt. In other words, the onus is heavier in criminal than in civil cases. The level of proof that a plaintiff or prosecution must reach to discharge their onus, that is balance of probabilities and beyond reasonable doubt, is referred to as the standard of proof.

When evidence generally is being considered by a court, there are two questions which frequently arise. Firstly, is the evidence admissible? – that is, can it be received by the court at all. There are a large number of rules which exclude evidence of one kind and another such as the hearsay rule. Secondly, if the evidence is admissible, what weight can the court place on the evidence. Relevant factors here might be whether it is circumstantial, whether witnesses are biased, whether their memories are vague and so on.

The Manner in Which Evidence is presented

The form of trial in Nigeria is known as the adversarial or accusatorial system which involves the presentation of facts by the responses of witnesses to questions. The witnesses are called to give evidence by the parties to the litigation and are questioned by the legal representatives of those parties or by the parties themselves. The function of the judge is to act as an adjudicator rather than an additional inquisitor.

In United Kingdom where cases are tried before a judge and jury, the function of the jury is to decide questions of fact while the judge adjudicates on matters of law. In Nigeria, Judges decide both questions of facts and matter of law. Judges can and do ask questions of witnesses themselves but if there is excessive interference by the judge there may be grounds for appeal.
A case will be opened by the plaintiff or the prosecutor who briefly outlines the nature of the case and the evidence to be called. Generally, the party which bears the burden of proof, the plaintiff or the prosecutor, has the right to begin calling witnesses.

Whoever calls a witness elicits answers to the questions by a process known as examination in chief. There are a number of rules regarding the manner in which examination in chief may be conducted. The most important is the fact that leading questions cannot be asked. Leading questions are those which suggest the answer or assume the existence of facts which may well be in dispute. An example of a leading question would be ‘After you saw the car go through the red light did you follow it?’. This question assumes that the car went through the red light, a matter which may well be in dispute.
At the conclusion of the examination in chief, counsel for the other party has the opportunity to cross examine the witness. The rules of cross examination are more relaxed than with examination in chief and in particular leading questions are permitted. The cross examiner is, in certain circumstances, entitled to question the witness on matters seemingly unrelated to the main issues in order to attack the credit of the witness.

After the cross examination is finished the other party then has a right to re-examine the witness. This right is limited to asking non-leading questions about matters arising out of cross examination.


After the plaintiff or prosecutor has no more witnesses to call, then the defendant may call the witnesses for the defence case. The same rules apply as to the mode of questioning.

If the defendant calls evidence then the defendant addresses the judge first, followed by the plaintiff or prosecutor. Otherwise the counsel for the plaintiff or prosecution has the right to give the final address.

The Persons Who May or Must Give EvidenceAgain, there are a number of exclusionary rules which govern this area. Some of these are:

1.  Only experts in a certain field can give evidence based on an opinion. Otherwise a witness is not entitled to give evidence beyond what he/she sees or hears. 
2. Certain witnesses or communications are privileged such as the communications between solicitor and client. In some instances, the government can claim privilege of, say, defence secrets. 

Section B

Other Adjudication and Non-Adjudicative Processes of Settling Disputes
Arbitration

1.  You may be familiar with the arbitration process that is often associated with the resolution of industrial disputes. This is not the type of arbitration we are concerned with here, but rather with what is sometimes called commercial or private arbitration. 
2. There are three main differences between commercial arbitration and litigation 
3. With arbitration, the parties must agree to submit the dispute to arbitration. They may do that after the dispute has arisen or (more commonly) they may do it in advance by inserting a clause in their contract to that effect. 
4.  In an arbitration, the parties choose the arbitrator. This means that it is possible to use a person who is skilled in the area in dispute.
5. The arbitration process does not need to follow a formal hearing process such as will be found in litigation. The rules of evidence are more likely to be relaxed and there are no detailed pleadings as are required in litigation. Nevertheless, depending upon the arbitrator and the parties, the informality of arbitration can be quickly lost. Not infrequently, barristers are appointed as arbitrators and they tend to run the arbitration hearing more like a court case. 

One other point should be made. Originally, arbitration was seen as less costly than litigation. Nowadays this advantage is not heavily relied upon because so often the parties use a similar battery of lawyers as they would in litigation and, what’s more, the parties to arbitration have to pay for the arbitrator.

Non-Adjudicative Processes

Dispute resolution processes can be seen along a continuum from private negotiation between the parties all the way to litigation. Moving along this continuum, changes in three factors may be observed.

Firstly, control passes from the disputants to the third party. In private negotiation, the parties control the process itself, the content and the outcome. ‘Content’ refers to the issues that can be discussed during the application of the process and ‘outcome’ refers to the final result of the application of the process. As you move further along the continuum, more control is given each of these to the third party who is intervening to help solve the dispute. A mediator controls the process, but not the content or the outcome. Whereas in adjudication, the rules of procedure and evidence ensure that the judge or arbitrator controls the process and content. As the decision-making power is vested in either the judge or the arbitrator they also control, and indeed impose, the outcome.

Secondly, the processes move from a consensual mode of dispute resolution, where the disputants attempt to agree on a solution that is acceptable to all, through to an adversarial mode where the decision is imposed by the third party in arbitration and in adjudication.
Thirdly, the further one moves along the continuum the more formal the processes become.

Advantages of ADR

The commonly given reasons for using these non-court processes may be listed as follows:

1. Quicker – Settlements are usually achieved within weeks or months of starting the process rather than within months and years as can occur within the adjudicative processes. 
2. Cheaper – With settlement being achieved earlier, there are usually less legal fees, witness expenses and fewer lost business opportunities whilst management, time and business finance are set aside to fight the litigation. 
3. Informal – The rules of procedure and evidence of the adjudicative processes are often incomprehensible to non-initiates, but with a consensual process the disputants can organize meeting times and places that are convenient to them and can organize rules for the process that suit their particular requirements. They can emphasize what is important to them regardless of its legal relevance. Consequently, the disputants have a better understanding of the process and, accordingly, are able to contribute more. They are more in control of the resolution of their own dispute. 
4.  Enhances Business Relationship – Because the informal processes are consensual and strive for solutions that suit the parties rather than those necessary according to the letter of the law, often all the parties come away with solutions that satisfy their wants or needs. This enhances business relationships between them. Solutions that people agree to themselves and which they feel have advantaged themselves are usually more readily adhered to than those that have been imposed. If one side wins and the other side loses, as in the adversarial processes, usually the loser feels resentment and has no commitment to the solution but only adheres to it because of the fear of punitive action. This situation does little to enhance the business relationship between the parties. 
5. Wider Remedies – As the informal processes are not limited to the remedies provided by the law or legal system, a wider range of remedies or solutions may be contemplated and implemented by the disputants. For instance, whilst renegotiation of the whole contract is not a remedy a court can impose, informal processes do allow for this. This is often the most appropriate remedy since most disputants in a commercial dispute have an investment in seeing all parties continue in business, and being profitable. There is a mutual interdependence among businesses which can be enhanced by the informal processes. 
6. Confidentiality – As these processes are private they keep the disputants from adverse publicity. Within the process, communications, including those with the third party, are confidential and this encourages more honest exchanges. 

Main Types of ADR

1.  Negotiation needs no introduction except perhaps to say it is used in this instance to indicate negotiation without the assistance of a third party. 
2. Mediation is a significant growth area in ADR in Nigeria today, especially in court-connected schemes. There are many variations of procedure in mediations. However, the usual concept of a mediation is a structured process in which a neutral third party (mediator) helps the parties to negotiate their own solution to their dispute by assisting them to systematically isolate the issues in dispute, to develop options for their resolution, and to reach an agreement that accommodates the needs of the parties. This agreement reached in mediation is not legally binding. However, the parties normally redraft the agreement into a binding contract after receiving advice from their respective lawyers, accountants and/or other professional advisors.

Usually, the parties voluntarily enter into mediation. ‘Mandatory’ mediation does not exist, however. Nonetheless, the parties are not obliged to come to an agreement and either party may withdraw at any time.
In broad terms, the parties control the content and outcome whilst the mediator controls the process. The mediator may not impose an outcome on the parties. The mediation session usually proceeds in an extremely informal atmosphere. The parties, if they wish, may be represented by another, such as a lawyer.

Unlike negotiation or mediation, with independent expert appraisal, a third person is called in to give their view of the matters in dispute. Unlike arbitration, however, the process is informal and speedy and most importantly the parties are not bound by the expert’s conclusion. This process is often very useful where technical issues are in dispute.Case Presentation involves each side of the dispute making submissions in. The submissions may be made by lawyers or other representatives of each disputant. Having heard the presentation, are given opportunities to negotiate a settlement of the issues.

 Conciliation is used in two primary senses in the ADR field in Nigeria:

1.  in a general sense to mean any ADR process whereby a third-party’s assistance to the disputants includes the making of a non binding recommendation. In this sense, conciliation still includes mediation and appraisal. 
2. in a more limited context of bringing the parties together to assist them to use a particular ADR process. The conciliator provides the facilities for the settlement process, such as the premises and support services, but is not involved in the substantive issues of the dispute. 

Overview of Dispute Resolution and the Judicial Process

Five methods of dispute resolution (including court-based) help us to look at the way lawyers’ reason and the process adopted by a court in reaching a decision in a given situation.
In the urban areas, dispute resolution is almost entirely taken up with litigation. This is because synonym bonds are weak and most times, people have looked to the courts to resolve disputes. In the rural areas, dispute resolution is still largely informal. In recent times and in both urban and rural sectors, potential litigants, and even lawyers, have turned to other means of resolving disputes. They have become concerned at the cost of litigation (both in human and money terms), the time taken for resolution, the fact that even a successful outcome in court does not always solve the fundamental dispute and most importantly, that an extended court battle invariably destroys the business relationship between the parties. Branded ‘Alternate Dispute Resolution’ or ADR this movement has continued to gather force and is increasingly found as an adjunct to court processes themselves. The fundamental difference between ADR and litigation is that the former is non-adjudicative (the parties resolve the dispute themselves) while the later requires a third party (the judge) to adjudicate on the issue. Arbitration falls into the same category as litigation. In this unit it is proposed to divide dispute resolution along those lines, i.e. adjudicative and non-adjudicative systems. In the former we examine the main steps involved in civil litigation together with a brief look at arbitration. In the non-adjudicative field a broad outline is given of the main types of processes, with some more attention being paid to mediation.

CONCLUSION

We have talked about judicial process in this module. The idea is to enable you to grasp the principles of legal reasoning. This will assist you in your study of substantive branches of law, such as the law of contract and torts, which you will do presently. It is also necessary to assist you to identify legal problems and in some situations to resolve them.
What you must understand though, is that the legal process is a rather inexact science or as some people would describe it, an ‘art’. The skills involved are acquired by lawyers over a period of time (often after they leave law school) so in the time available in this course you are not expected to reach anywhere near the standard of lawyers in legal reasoning. So do not feel too frustrated if you find that you cannot grasp all of the principles or that there is more to the area than you are exposed to. You will appreciate the relevance of the material as we study the Law of Contract and Torts. The study of statutory interpretation equips you much more readily with a life skill. The ability to interpret and apply legislation is becoming increasingly important as so much of our every day life is regulated by government laws and by-lawsN Let us continue with a fairy tale: It is a very popular fairy tale. The public, and especially newspaper editorialists, hate to see it doubted. Once upon a time, the Parliament made the law. The Judges only interpreted and applied it. The Executive enforced it. In this Kingdom of ‘strict and complete legalism’ it was considered that the Judge certainly never made new the law should be.

(Source: Kirby 1984)
Evidence may be direct or circumstantial original, oral, documentary, or real. Standard of proof is balance of probability (Civil matters) and beyond reasonable doubts (Criminal matters). That is adversarial or accusatorial. The party calling a witness elicits examination in itself. The other cross examines. The party calling him/her re-examines. Only experts may give expert evidence, and certain evidence may be privileged. Litigation is not the only way to resolve difference. Arbitration is another. It is also adjudication. Non-adjudicative processes include: Alternative Dispute Resolution (ADR) eg. Negotiation, mediation and conciliation. Do not forget what we said about their differences, merits, and disadvantages

TUTOR-MARKED ASSIGNMENT

1. Define the following terms:
a. Respondent
b. Interlocutory Proceedings
c. Execution
d. Service

2.Why are pleadings important in a civil litigation?
3.a. What can a court admit as evidence?
b. What is a reason for excluding hearsay evidence?
c. How is evidence presented in court?
d. What is the standard proof in a criminal trial and a civil trial?