Introduction
Adjudication is the formal method of
resolving dispute. It involves the appearance of parties and their witness
before formal institutions or authorities such as the law court or tribunal
established by law. The method is usually set in motion through the law suit or
litigation. It is important note that a particular event that gives rise to a
legal dispute before the is court is usually made up of myriads of facts linked
together like a chord.
For the judge or adjudicator to resolve the dispute, he
must first of all ascertain the facts of the case and then apply the law to the
facts. How then does the judge or adjudicator discover the facts? In other
words, what the method employed by the judge or adjudicator in the finding of
facts of the dispute before him? Two main methods, or approaches may be adopted
in this regard namely the adversarial method and inquisitional method.
The adversarial method /procedure
Ghana as a former British colony on attaining independence opted for the common
law legal system practiced in Britain. This system is adversarial in the
opponent are given the opportunity to present their case to an independent
judge who delivers a judgment after having the parties. The judge or magistrate
in Ghana is this an independent umpire.
This procedure gives each party and
his lawyer a great deal of control over the way in which fact are collect and
presented. Each party has the obligation to assemble his witness and present
his evidence in a manner must favourable to his case and adverse to that of
other party. The parties apparently appears adversarial and engage in
contentious argument with each other and accusing one another as the cause of
the dispute. This is why this method is called “adversarial” or “accusatorial”
method.
Each part calls his witness one by
one and tries to establish evidence that are material to the success of his
case through them. This process is known as examination-in-chief. After the
examination in chief, the witness will then be cross-examined by the counsel
for the opposite party. The objects of cross-examination are to weaken,
neutralized and demolish the case of the opponent and to establish a party’s
own case by means or his opponent’s witness. If a witness is not
cross-examined. It is implied that the truth of his evidence is admitted by the
other party. After the cross-examination or a witness, the party calling him
has a right to re-examined him. The object of re-examination is merely to give
the witness an opportunity of explaining any sneeringly inconsistency in his
answer and to clear matters arising from the cross- examination.
In the whole scenarios of the legal
“battle” the role of a judge can be likened to that of an umpire assuring that
evidence is presented in accordance with certain ground rules of evidence and
procedure such of the rules that hearsay evidence is inadmissible, that a
lawyer must not ask his own witness a leading question.
And that a party must make up his
mind on the balance of probability which version of the facts and legal argument
he prefers. The judge may feel that some important evidence is missing or that
the lawyer has-failed to ask the right questions or call all the relevant
witnesses but there is nothing he can do about that. He must make up his mind
on the basis of the evidence presented and must not descend to the legal
"arena" to search for evidence on behalf of the parties even if the
facts are well known to him. He also cannot question a witness himself except
to clarify an ambiguity in the witnesses answer.
The adversarial method presents a classic case of parties who are
theoretically operating on a
level-playing ground. The
parties are bound by the same rules. Neither side is forced to disclose the
details of his evidence in advance before the trial than the other. The judge
had to decide the case on the balance of probability which favours
neither party. If the imaginary scale of justice tilts 51% in favour of a party
judgment will be given in his favour. The principle of equality or level
playing ground may however be modified due to some policy considerations.
Instances where the principle has been modified are:-
a. Criminal
Procedure
In
criminal procedure" white the prosecution has to reveal its evidence to the accused before
trial thus enabling the accused to prepare his defence, the accused on his part
is not bound to disclose has his defence in advance. As a matter of fact an
accused has a right So refuse to answer certain incriminating questions both
before his arraignment and during trial. Also, the prosecution must
prove the guilt of the accused not
on the balance of probability
but beyond reasonable doubt which is a higher
standard. These and other rules of criminal law and procedure favouring the
accused at the expense of the prosecution are predicated on the policy that it
is better to allow nine guilty persons to go scot free by demanding irrefutable proof of guilt instead of
inadvertently punishing one
innocent person. Hence doubts
in criminal cases are resolved in
the favour of the accused.
The presumption "of innocence is not simply a legal rule, it is a
declaration of social policy.
b. Case of Res Ipaa
Loquitur which literally means "the facts speak for themselves". Res ipsa loquitur is a rule
of evidence affecting the burden of proof aimed at assisting victims of
accident. Where an accident or a mishap happens which does not occur in the
ordinary course? of events unless somebody has been careless, then the law will
presume that the defendant had been careless because res ipsa loquitur. The
rule has been invoked where, for example, an
aircraft had crashed mid-air, where a tanker lorry had veered off the road in a daylight killing
people sitting in the houses abutting the road, where a swab was left inside a
patient after an abdominal operation. Where the rule is successfully invoked, the effect, among others, is to shift the burden of proof
on the defendant to show either that the accident was due to a specific cause
or that he had used reasonable care in the matter. All the plaintiff had to
prove in the circumstance is that an accident
occurred and that he is a victim of the accident. The plaintiff is relieved of the obligation of
proving the exact cause of the accident and the exact person responsible for
it because he is not likely to know since the thing which caused the accident
was not under his management and care.
Advantages
of Adversarial method
1. It reduces the
element of bias in the adjudicator since the judge or adjudicator has to decide the case based on the evidence
adduced and argument canvassed by
the parties. It is therefore easy to detect
where a judge or adjudicator has perverted justice. A judgment, if challenged, may be reversed on appeal if it is against
the weight of evidence.
2.
It gives each party the opportunity' to present his case
and also discredit the case of the
other party to the best of his ability. It is therefore
possible for a party with an apparently weaker case to ultimately put forward a better case depending on the quality, dedication and commitment of his lawyer to the case.
3. The method seems to be more acceptable to
the parties than the inquisitorial
method because it gives the party equal chance to win after exhausting their arsenals.
4. The method may greatly enhance the
development of the law. Since
the la.wv.3r has a greater degree of control over the conduct of the case, he can come up with
certain ingenious legal argument or
point which may be navel to the adjudicator. Such brilliance has in the past assisted the court in the
exposition and development of the
law,
Disadvantages of Adversarial Method
1. The adversarial method promotes the
"sporting theory" of justice. Those
with the best lawyer (and often it is the rich who are able to afford them) are the most likely to win.
2. The method is sometimes acrimonious in
character is viewed by many
(unfortunately including some lawyers) as a way of continuing a legal fight instead of resolving a dispute.
3. Since cases are decided based on the
evidence adduced, parties and their
lawyers may go to any length to produce "acceptable" evidence such as procuring witnesses to
lie on oath or forging certain
documents. For instance in Whitehouse v Jordan the Judges strongly criticized the Sawyers for the
plaintiff for "doctoring"
the expert's evidence along a particular Sine. It suffices to say that a lawyer is forbidden by
the rules of professional ethics from
resorting to "sharp practices" to circumvent the rules.
4. Since the method vests the production of
evidence in the parties and their
lawyers, it allows them a chance of determining the pace of the legal process. A party who has no real
defence may resort to all
sorts of delay tactics to either frustrate the plaintiff or force him into a settlement. Lawyers in
adversarial system are also often indicted
of deliberately prolonging a case in order to enhance their fee. While this accusation may not be true in
most cases, it suffices to say that
the undue delay which cases usually in court suffer
under the system is a cause for curious concern. In Ajani v Giwa. Oputa J.S.C. (as he
then was) observed as follows:
As of now, this case has been before the
courts for 16 years. There is definitely
something radically wrong with a system that takes
up to 16 years before a claimant can know whether or not he is the owner of a piece of land.
5. Long delay may impair the fact
finding-efficiency of the system. For instance,
witnesses may have died or relocated to another jurisdiction. Where the witnesses are available, they may not be able to fully recollect the facts of
the case after some time. Certain vital
piece of evidence might have become lost or destroyed in the course of time. Some rules have however
been developed to ensure that
parties do not unduly delay the hearing of the case by giving the court more power to control the trial. For instance, a
suit may be struck out where the
plaintiff in a civil case or
prosecutor in a criminal case
is absent in the court without any reasonable excuse.
Also, judgment could be obtained in the absence of the defendant or cost awarded against him. It is however doubtful whether these and other rules have
significantly helped to overcome the
problem of delay in the adversarial method.
The inquisitorial method
Trials here are conducted in form of
inquiries and not full scale litigation. The main distinguishing feature of
this method lies in the fact that the judge or the adjudicating body has
considerable control over the way in which the evidence is collected and
presented. The judge or the adjudicator here does not stand as an umpire.
Rather, he can enter into the "arena" of the trial by investigating
facts himself and questioning parties and witnesses. In some cases the body may
even appoint its own expert assessors or rely on the opinion of experts who
have not appeared personally before it. The practice of relying on the opinion
of experts who have not appeared personally before the body has been
unsuccessfully challenged in R v Deputy Industrial Injury
Commissioners Ex pane Moore which is fully reported by Farrah. Ms. Moore
had suffered from a form of slipped disc which she claimed was due to her
bending at work in her job as a crane driver. The tribunal held against her and
she took her case to an appeal tribunal. Before this tribunal a consultant
surgeon gave evidence on her behalf. Government medical officers gave evidence
suggesting that the disc problem was caused by a pre-existing condition and not
the bending. The tribunal also heard reports of the opinions of two other
doctors given in previous cases as to the likely causes of disc problems. These
doctors did not appear before the tribunal and could not therefore be questioned
in an adversarial way by Ms. Moore. Nevertheless the tribunal relied on their
opinions and those of the government doctors in concluding that the weight of
evidence was against Ms. .Moore. Ms. Moore then asked the ordinary courts to
overturn the decisions on the grounds that the tribunal acted against the
principles of natural justice which required a fair hearing. The Court of
Appeal dismissed her claim. Lord Justice Diplock drew attention to the
essentially inquisitorial nature of the tribunal in the following terms:
... there is an important distinction
between the functions of an insurance tribunal and those of an ordinary court
of law, or even those of an arbitrate;' .. a claim by an insured person to
benefit is not strictly analogous to a Us inter Panes [adversarial
litigation]. Insurance tribunals; form part of the statutory requirements which
entitle him to be paid benefit out of the fund. !n such an Investigation,
neither the insurance officer nor the Minister (both of whom are entitled to be
represented before the insurance tribunal) is a party adverse to the claimant.
If an analogous be sought in ordinary litigious procedure, their functions most
closely resemble these of anima curia [literally
friends of the courts]. The insurance tribunal not restricted to accepting or
rejecting the respective contentions of the claimant on the one hand and of the insurance officer or Minister on the other it is at liberty to
form its own view, even though this may not coincide with the contentions of
other…”
Many tribunals in Nigeria today have
a semi-inquisitorial character. The above liberal approach of an inquisitorial
body to the investigation of
fact has been upheld by the Nigerian
courts. In Baba v Nigeria Civil Training Centre, the appellant was
employed by the respondent as an Assistant Security Officer. His appointment
was terminated by the respondent with one month salary in lieu of notice.
Before the termination, the appellant faced an investigating body set-up by the
respondent to investigate the allegation level against the appellant by some of
his subordinates. The investigating panel submitted its report. The respondents
gave the appellant a copy of the findings of the; panel which were adverse
against him and invited him to defend himself. The gravamen of his
complaints, was that he was no! given a copy of the
allegation against him nor was ha allowed to cross-examine his accusers in
short, his constitutional right of fair hearing was violated, in dismissing his
appeal, the* Supreme Court hold that:
...Refusal to permit cross-examination of witnesses at an
administration hearing will usually be a denial of natural justice. However,
deprivation of the opportunity to test evidence by cross-examination is not a
violation of natural justice if the tribunal can and does decide merely on the
strength of an inspection or
oral or written submissions
supplemented by its -own local or-specialized knowledge..... In this case, the
appellant was given reasonable opportunity of defending himself....
Advantages
Inquisitorial Method
I. It brings about speedy investigation
and disposal of cases. In
most cases time is prescribed for the
body to conclude its activities or a
particular case.
2. The procedure is simpler and less
formal. The cost and the formality
commencing an action are usually minimal.
In most cases a party has to
file a prescribed form instead of issuing a writ
of summons and filing statement of claims as in the adversarial method.
3. Promotes equal access to justice. This is because
success does no depend so much on
the disputants being represented but rather on
the efficiency and investigatory capacity of the adjudicating body.
Recognizing the advantages of inquisitorial
method there is a trend among the judges in practice to
adopt a more investigative approach in certain
cases especially in divorce suits and issues relating to guardianship of
children where the welfare of the children is paramount. This trend is bound to
spread rapidly as judges and citizens seek a more efficient means of resolving
disputes. It will be a pity if lawyers are not able to change their adversarial
attitude.
1. Miscarriage of justice may result from
hasty trial. While "justice delayed
is justice denied" "justice rushed is justice crushed". An investigative body may be constrained to
ignore certain details in order to
meet the deadline set for it to conclude
investigation and make
recommendations.
2. The quality of an enquiry may ultimately
depend on the ability and effort of the
adjudicating body. There may be hidden facts which the body may not (with all its investigative capacities) be able to
draw out which only the
parties and their lawyers can. The same goes
for certain ingenuous legal argument and authorities. These shortcomings pose a great danger especially
where the members of the
adjudicating body are lazy and lack" capacity for details.
3. Many inquisitions are done in camera and
are therefore void of the opportunity
of being scrutinized by the public. For instance, the case or
the military officers who were convicted by the Abacha regime for phantom coups is a testimony to the dangers inherent in any form of trial in camera.