In contemporary affair, many causes have spawned litigation in multiple fora. The technique applied by the court to control excessive duplication of litigation have often proved as controversial as the conduct itself. Example of such is the preclusion of English court’s equitable remedy of anti-suit injunction to restrain vexatious and oppressive proceedings. Far from resolved parallel proceedings seem if anything to be gaining in frequency, urgency and complexity – matched only by the level over the appropriate solution. In fact, this may be a simple function of the rise in the incidence of international and domestic litigation. The resulting exposure of opportunities for forum shopping has in turn driven increased attention to the legal means of controlling it.
The doctrine of Lis Pendens operates in different context depending on the jurisdiction and it application therein. Generally, the doctrine was developed to address the situation of parallel proceedings involving the same litigants and the same cause of action in different forum resulting in irreconcilable judgments. Different instruments exist in Private International law regulating this doctrine. Within the European union context i.e the Brussels Regulation 44/2001 now Brussels Recast EC 1215/2012, it operates as a mandatory rule giving priority of jurisdiction to the court first seized with the matter involving same cause of action and same parties. This conforms with the objectives of the regulation to promote mutual trust and reciprocity amongst courts of member state to avoid parallel proceedings. The objective of the Lis Pendens doctrine according to Campbell Mclachen includes Corrollary of Res Judicata, declining original jurisdiction, judicial efficiency and promotion of comity. It is commonplace to divide the essential concern of Private International law into three: the jurisdiction of the court, choice of law and the enforcement of foreign judgments. The conception of Lis Pendens as connected to both Jurisdiction and enforcement. The irony of this conception is that as pertinent as these concern are, it did not take into cognizance of some practical problems with parallel proceedings. However, the common law approach is a little bit flexible giving the courts discretion to take into account all material facts vis-à-vis choice of court agreement, arbitration agreement et cetera in order to do justice. The common law court will not decline jurisdiction on premise of first seized without considering other enabling factors. This unique feature is made possible because of the doctrine of Forum non convenien which enables a court either suo moto or upon application by any of the parties to decline jurisdiction to adjudicate the merit, and Anti-suit injunction restraining the parties from pursuing parallel proceedings when in its opinion it has jurisdiction over the substantive matter. This approach is similar to the operation of the doctrine in Nigeria being a common law jurisdiction, but a little distinct from the English courts approach of the doctrine as Anti-suit injunction is not often used in domestic litigation. It is important to underscore it operations in Nigeria giving the present situation of conflicting judgments from parallel proceedings involving same or similar subject matter and same or similar parties. One may safely attribute this conflict in litigation in Nigeria to the jurisdictional scope of courts of coordinate jurisdictions. Howbeit that, it is the principal reliefs and who there are directed at that determine jurisdiction vide KAKIH v PDP (2014). The problems associated with parallel proceedings is that it is a waste of procedural resources, possibility of conflicting determination and irreconcilable judgments and possible tensions between the courts in different forum. This is clearly the situation with the Rivers State Local Government disputes trending with conflicting pronouncements from a labour court and the Federal High Court (not discounting the facts that the two proceedings might be distinguished as per their respective claims, reliefs and parties)
The conflict in litigation is not to reduce a mere qualification upon the law of jurisdiction or an anticipatory application of the law on the enforcement of judgment. It is the writers contention that litigation is priced commodity and the essence of judicial pronouncement is to create some level of certainty in the polity. In that pursuit , the writer tends to agree with the policy direction of this doctrine under the Brussels regime vis-à-vis the decisions of the CJEU. The court first seized rule which is the crux of this doctrine applies of necessity to narrow the range of cases where complete identity of action is established. For proper understanding let us give a context of the relevant provisions of the Brussels Regulation. Article 27 provides thus: (1). Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. (2) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.” This conforms with legal reciprocity. The principle that one court will extend certain courtesy to the other court, particularly by recognizing the validity and effect of their rulings and judgment until set aside. Judicial comity also connotes that each court in a state or nation refrain from interference with each other. Situation where in the space of days conflicting judgments emanates from courts of coordinate jurisdiction on a similar subject matter definitely sends a wrong signal as to how certain are our laws. Again, it is how the claims are construed and the parties are constituted that will determine the jurisdiction. However, the rigid nature of this approach might result in proceedings going in inappropriate forum. Nevertheless the policy behind the doctrine is also to serve the public and foster co-operation and harmonize administration of justice amongst courts of coordinate jurisdiction and not just the litigant. Now several factors can be imported to distinguish the related or parallel proceedings. 1. Meaning of court seized- when is a court seized? is it when the action is filed at the registry or when the originating processes are served on the defendants. 2. Same cause of action- when are the actions said to be same or similar in nature.3 same parties- are the parties the same or similar? These indices have further compounded the applicability of a uniform approach of this doctrine, as there might be some variance in the two proceedings using these criteria.
Both domestic and international litigation has suffered set backs with respect of parallel proceedings. One recent case which involves both domestic and international proceedings is that of BENSAM NIGERIA LIMITED v MESSRS SOLVOT OWNERS OF TB “ SUN ESSEX” in Suit NO: FHC/L/CS/83/2013 before My Lord Justice Aneke J of the Federal High Court Lagos Division. It is a maritime dispute involving a towage agreement of vessel from the Netherlands to Lagos, Nigeria. The agreement actually provided for choice of court agreement in favour of the Dutch court. There was an accident on transit which resulted in a damage of the vessel sought to be towed to Lagos, upon arrival of the vessel in lagos with the salvage, the plaintiff took out a writ and also caused an arrest of the defendant’s vessel towing the plaintiffs cargo. The defendants being aware of this development caused an appearance and filed an objection to the jurisdiction, Aneke .J. overruled the defendants and assumed jurisdiction. The defendant equally filed a parallel proceedings in Rotterdam in accordance with the choice of court agreement contending amongst other things that it is the Dutch court that has jurisdiction and there are not liable for any loss from the accident. The plaintiff in Nigeria also caused an appearance in the Dutch court invoking the doctrine of LIS PENDENS, owing to the fact that the Nigeria court was first seized, the Dutch court overruled them and assumed jurisdiction based on the choice of court agreement. It is not worthy to state that Nigeria is not a party to the Brussels Recast 1215/2012 when Lis pendens did not avail them in that context. Both suit proceedings simultaneously. The Dutch court has entered judgment in favour of the plaintiff in the Dutch proceedings and the Nigeria proceedings overruled the defendant challenge to jurisdiction and assumed jurisdiction. The matter is presently stayed pending appeal of the interlocutory ruling challenging jurisdiction. I cannot imagine the resistance the Dutch judgment will receive when enforcement is sought in Nigeria against the Nigeria party.
On the domestic aspect on parallel proceedings, the Rivers – State Case earlier referred to -: The plaintiff having approached the court to restrain the State Electoral umpire from conducting an election and a relief(s) also couched to affect National electoral umpire thereby clothing the Federal High Court with Jurisdiction. Elections were conducted into Local Government council. The Chairman of the Local government council being apprehensive of been fired filed a parallel before the National industrial court which to my mind would have been conveniently brought before the same court by the parties by way of joined (not questioning the strategy adopted by their attorneys). Now the both proceedings has resulted in conflicting pronouncements. One may argued that the parties might be different and the reliefs distinct, but the res is the pretty much the same. Having expended this a lot of monies in legal Fess of High priced attorneys in this two cases under review, the writer believes that a uniform proceeding can conveniently have take care of these disputes in order to discourage subsequent forum shopping. My suggestion is that for the Rivers-state dispute since appeals goes to the Port-Harcourt Division of the Court of Appeal, the appeals from the National industrial Court and the Federal High Court be consolidated and the issues resolved in one judgment to avoid overheating the polity.
In dealing this issue, I will recommend the CJEU approach in TATRY v MACIEJ (1994) ECR I-5438. the court gave a clear directive that the concept of related action must be given an autonomous interpretation and that such interpretation must be broad and cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. Conceivably, proceedings are not related simply because they arise from same general set of transaction. More so, proceedings are not related even if there is a very small risk of irreconcilable judgment, if it is not expedient for the actions to be determined together. However, there should be a broad commonsense approach to the question whether the actions are relation, bearing in mind the objective of the doctrine, apply the simple wide test set in the rule and refraining from an over sophisticated analysis of the matter. See the case of SARRIO SA v KUWAIT INVESTMENT AUTHORITY (1999) 1 AC 32, 41. Under the Brussels Recast specifically Article 33 and 34 now gives deference to proceedings in a court of non-member state. So the BENSAM Proceedings before ANEKE .J. ought to be given due deference being the matter first in time and the Dutch proceedings stayed in his favour.