A relative was taken from the house on Friday evening and it is now Monday and nobody has been charged with anything. An invitation has arrived from an agency asking that someone attend "for questioning", and nobody is sure whether it can be declined. Or, on quite another footing, a contract contains an arbitration clause nobody read at signing, a dispute has now arisen, and the question is whether the parties are in court or in front of a tribunal. What these have in common is that the first few days determine a great deal of what follows.
The law
What the law provides
Criminal defence. Chapter IV of the Constitution guarantees the right to personal liberty and the right to a fair hearing. A person arrested must be informed in writing, within 24 hours, of the facts and grounds of the arrest, must be brought before a court within the constitutional period, is presumed innocent until proved guilty, and is entitled to defend themselves in person or by a legal practitioner of their own choice.
The Administration of Criminal Justice Act 2015 governs procedure in federal courts, and the states have enacted corresponding Administration of Criminal Justice Laws. The Act made several changes that matter in practice: it requires records of arrest to be kept and reported, it regulates the taking of confessional statements, it provides for trial to proceed from day to day with limits on the number and spacing of adjournments, and it provides a framework for plea bargain. It also disapproves the practice of holding a person in custody on a "holding charge" before a court without jurisdiction to try the offence.
Bail is the general rule rather than the exception, and its purpose is to secure attendance at trial, not to punish in advance. The court considers the nature of the charge, the strength of the evidence, the character and antecedents of the defendant, and the likelihood of attendance. Conditions must not be so onerous as to amount to a refusal.
Arbitration. The Arbitration and Mediation Act 2023 replaced the Arbitration and Conciliation Act and governs arbitration seated in Nigeria and the enforcement of awards. An arbitration agreement must be in writing, and a court before which proceedings are brought in a matter that is the subject of such an agreement will, on application, stay those proceedings. The Act provides for the appointment and challenge of arbitrators, for interim measures and an emergency arbitrator, and it expressly permits third-party funding. It also introduced the Award Review Tribunal, by which parties may agree that an award be reviewed before recourse to the court.
An award is final and binding, and may be enforced with leave of the court in the same manner as a judgment. The grounds on which an award may be set aside are narrow and procedural — they do not include that the tribunal reached the wrong conclusion — and an application to set aside must be made within the period the Act prescribes. Nigeria is a party to the New York Convention, so awards made here are enforceable in the other contracting states, and theirs here.
The process
What happens in practice
In a criminal matter, the work starts at the station. Counsel attends, establishes what the allegation is and who is investigating it, and is present when any statement is taken. Where a person has been held beyond the constitutional period without being brought before a court, an application for enforcement of fundamental rights may be made. Where the offence is bailable at the station, administrative bail is pursued there; where it is not, a bail application is made to the court with jurisdiction, supported by affidavit and by sureties who meet the conditions the court sets.
On arraignment the charge is read, a plea is taken, and the matter is set down. The prosecution opens and calls its witnesses; each is cross-examined. At the close of the prosecution case, a submission of no case to answer may be made where the evidence does not establish the ingredients of the offence. If the submission fails, the defence opens. Where a confessional statement is challenged as not having been made voluntarily, a trial within a trial is conducted on that question alone. Judgment follows, and there is a right of appeal.
In an arbitration, the tribunal is constituted in the manner the agreement provides, preliminary meetings settle the procedure and timetable, pleadings and documents are exchanged, and the matter proceeds to a hearing on documents, on oral evidence, or both. The tribunal renders a reasoned award. Enforcement is then a separate application to the court, as is any application to set aside.
Nothing in this description should be taken as an indication of the outcome or duration of any particular matter.
Our role
How the firm acts
We attend at police stations and at the offices of investigating agencies, we are present when statements are taken, and we pursue administrative and court bail. We act in applications for the enforcement of fundamental rights where a person has been detained beyond the period the Constitution allows. We appear at arraignment and at trial in the Magistrates' Courts, the High Courts and the Federal High Court, and we act on appeal.
In arbitration we draft and settle arbitration clauses before there is a dispute, advise on the seat, the rules and the constitution of the tribunal, and act as counsel in arbitral proceedings. We make and resist applications to stay court proceedings in favour of arbitration, applications to recognise and enforce awards, and applications to set aside. We also act in mediation and in other structured negotiation where the parties prefer to resolve a matter without a hearing.
Questions
Questions clients commonly ask
My relative has been detained. What can be done today?
Counsel should attend at the station, establish the allegation and the investigating officer, and be present for any statement. Where the offence admits of administrative bail it is pursued there; otherwise a bail application is made to the court. Where a person has been held beyond the constitutional period without being brought before a court, an application for enforcement of fundamental rights may be made.
Do I have to answer questions without a lawyer present?
The Constitution entitles a person to defend themselves by a legal practitioner of their own choice, and the Administration of Criminal Justice Act regulates how statements are taken. The prudent course is to say that you wish counsel present and to say so plainly, then wait.
Is bail expensive?
Bail is not a payment to the police, and administrative bail at the station is free. A court may grant bail on conditions, which commonly involve sureties meeting stated requirements, and conditions must not be so onerous as to amount to a refusal of bail.
The other side has sued despite an arbitration clause. What now?
An application may be made to the court to stay those proceedings in favour of the arbitration. It should be made promptly and before taking any step in the proceedings, because participating in the action can be treated as a waiver of the right to insist on arbitration.
Can an arbitral award be appealed?
Not in the ordinary sense. An award is final and binding, and the grounds on which a court may set it aside are narrow and largely procedural — they do not include that the tribunal decided the dispute wrongly. The Arbitration and Mediation Act 2023 does allow the parties to agree in advance that an award be reviewed by an Award Review Tribunal.
Is arbitration quicker than litigation?
It can be, because the parties control the timetable and there is no general right of appeal on the merits. It is not automatically so, and it is not automatically cheaper: the parties pay the tribunal and the venue. Whether it suits a particular dispute is a question to be answered when the contract is drafted, not after.
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