Sunday, March 02, 2014 11.48 AM / by Dr. Theophilus Olusegun Obayemi II, LL.M.; SJD*
Effective Preparation of Experts, Expert Opinions, Expert Testimonies, and/or Expert Witnesses Before Nigerian Courts:
Revisiting First City Properties Ltd vs Huawei Technologies
With the emphasis of Lagos State Governor, Babatunde Raji Fashola, SAN, to facilitate the use Arbitration and Conciliation as alternatives time-consuming and expensive litigations, the efforts of Professor Oluyemi Oshinbajo, SAN and Olasupo Shashore, SAN may not come to fruition, if the standards of expert testimony and expert witnesses, being adduced before Nigerian Arbitral Tribunals, are not developed to comparative level.
Such was the case in First City Properties Ltd vs Huawei Technologies, where the arbitral decision turned on the lack of factual foundation for the expert conclusions. In this paper, we examine the facts in Huawei, and juxtapose the deficiencies highlighted in the case within the American Daubert standard as laid down in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)—a United States Supreme Court case that determined the standard for admitting expert testimony in federal courts. Therein, the Daubert Court held that the enactment of the American Federal Rules of Evidence implicitly overturned the old Frye standard. Since then, the new standard that the Court articulated has been referred to as the Daubert standard.
Our submission is that the Valuation Report presented by the expert in First City Properties Ltd vs Huawei Technologies should have been subjected to peer review and publication. Further, the counsel for First City should have presented demonstrative evidence that the potential rate of error was minimal. Also, First City ought to have presented verifiable facts to show that standards existed for the control of the technique's operation as used by its expert
Finally, First City ought to have presented facts and evidence showing that the technique, as used by its expert, has been generally accepted within the relevant scientific (Real Estate Appraisers and Valuators) Community.
Finally, we state the case for the inclusion, in the Nigerian law School curriculum, a broad scope rules for presentation of expert testimony before the Nigerian courts by the Nigerian legal practitioners.
II. The Proceedings in First City Properties Ltd vs Huawei Technologies
In First City Properties Ltd vs Huawei Technologies, Huawei (the tenant/respondent) leased a property at Victoria Island under a three (3) year term, from First City (the Landlord/Claimant) for NGN217,800,000.00. At the end of the lease, First City, as the claimant, requested that Huawei pay the sum of N38,611,300.00 being the cost of repairs, renovation and reinstatement of the property.
First City’s claim was based on Paragraph 3(r) of the Tenancy Agreement, which provided that
“the tenant shall at the expiration of the tenancy re-instate the demised premises to the state in which it was originally let”.
The facts were that at the expiration of the 3 year term, First City then claimed special damages in the sum of N38,611,300.00 being the cost of repairs, renovation and reinstatement of the property.
As agreed to, the parties submitted to arbitration under the tenancy agreement. However, during the arbitral proceedings, First City produced an expert witness, who was supposed to provide expert testimony as to the costs of reinstating the leased property back to its original state prior to the 3-year lease. The expert, on cross-examination, was unable to provide sufficient and/or credible evidence to show the “original state of the property at the commencement of the lease.” In fact, the Arbitral Tribunal, while agreeing with Huawei, and, as well, rejecting First City’s expert’s valuation report held thus:
“I find that there is no breakdown of the items that were damaged, nor of those that needed repairs, nor of those that had to be replaced in each flat, in exhibit CW1…I do not agree with the claimant that the evidence that will sustain the claimant’s case, which exhibit CW1 purports to be, should contain just the quantity of materials to be replaced in the demised property and the cost of those replacements as set out and itemised in Exhibit CW1. I hold that the claimant has an obligation to do more…”
See pages 30-31 of the final award in First City Properties Ltd vs Huawei Technologiesa
III. The American Daubert Rule.
What a loss for First City—almost 39million Naira—almost USD$243,750.00
First City and its expert valuator could have prevailed with their claims for reinstatement costs and expenses had they followed the strict rules of qualification of experts, foundation and grounds for offering expert testimony.
In the United States, the Daubert standard provides a rule of evidence regarding the admissibility of expert witnesses' testimony during United States federal legal proceedings. Pursuant to this standard, a party may raise a Daubert motion, which is a special case of motion in limine raised before or during trial to exclude the presentation of unqualified evidence to the jury.
In fact, there are 3 cases now referred to as the Daubert trilogy—that have further amplified and explained the Daubert and they are the three United States Supreme Court cases that have further articulated the Daubert standard:
a. Daubert v. Merrell Dow Pharmaceuticals, which held in 1993 that Rule 702 of the Federal Rules of Evidence did not incorporate the Frye "general acceptance" test as a basis for assessing the admissibility of scientific expert testimony, but that the rule incorporated a flexible reliability standard instead;
b. General Electric Co. v. Joiner, which held that a district court judge may exclude expert testimony when there are gaps between the evidence relied on by an expert and his conclusion, and that an abuse-of-discretion standard of review is the proper standard for appellate courts to use in reviewing a trial court's decision of whether it should admit expert testimony;
c. Kumho Tire Co. v. Carmichael, which held in 1999 that the judge's gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific.
Instructively, pursuant to Rule 104(a), in Daubert, the U.S. Supreme Court suggested that the following factors be considered:
a. Has the technique been tested in actual field conditions (and not just in a laboratory)? [e.g. fingerprinting has been extensively tested and verified not only in laboratory conditions, but even in actual criminal cases. So it is admissible. Polygraphy on the other hand has been well tested in laboratories but not so well tested in field conditions]
b. Has the technique been subject to peer review and publication?
c. What is the known or potential rate of error?
d. Do standards exist for the control of the technique's operation? [e.g. the use of penile plethysmography for sex offender risk assessment is being used by different workers according to their own standards. Thus penile plethysmography does not meet Daubert criteria]
e. Has the technique been generally accepted within the relevant scientific community? [this test was earlier the only relevant criterion under Frye]
The Supreme Court has explicitly cautioned that the Daubert list should not be regarded by judges as “a definitive checklist or test...” Yet in practice, judges have judged the admissibility of scientific evidence using the "Daubert factors" as a checklist.
IV, International influence of the Daubert Standards
Thus, the Nigerian courts and legal practitioners are urged to adopt the Daubert Rule.
For instance, the Canadian Supreme Court has expressly adopted the Daubert standard in two cases--R. v. Mohan, and R. v. J.L.-J., .
In J.L.-J., the Canadian Court took a look at the development of U.S. law in this regard, noted the U.S. Supreme Court's reject of the Frye standard and its replacement with the Daubert Standard. While the Canadian Court did note that: " Daubert must be read in light of the specific text of the Federal Rules of Evidence, which differs from our own procedures," the Canadian Court also stated in the same sentence that "the U.S. Supreme Court did list a number of factors that could be helpful in evaluating the soundness of novel science.".
Finally, it must be noted that the Canadian Court then applied the Daubert standard to a decision of the Quebec Court of Appeals. The Quebec Court had held that greater liberality should be applied by the Court in receiving pro-defense scientific evidence in a criminal case. The Canadian Supreme Court rejected this decision and reinstated the defendant's conviction.
The same position exits in the United Kingdom. In 2005, the United Kingdom House of Commons Science and Technology Committee recommended the creation of a Forensic Science Advisory Council to regulate forensic evidence in the UK and observed that:
“The absence of an agreed protocol for the validation of scientific techniques prior to their being admitted in court is entirely unsatisfactory. Judges are not well-placed to determine scientific validity without input from scientists. We recommend that one of the first tasks of the Forensic Science Advisory Council be to develop a “gate-keeping” test for expert evidence. This should be done in partnership with judges, scientists and other key players in the criminal justice system, and should build on the US Daubert test.”
Finally, of importance is the fact that the Law Commission for England and Wales has proposed a consultation paper (No.190) to adopt a criterion like the Daubert Standard to help reform the law of evidence in regards to the admissibility of scientific evidence.
Nigeria must not be left behind
V. Suggestions for Adequate Civil/Criminal Procedure Curriculum To Cover Introduction and Admissibility of Expert Witnesses, Expert Testimony and Expert Opinions at Nigerian Law Schools
In recent years, there has been an increasing focus by both commentators and the courts on potential problems with the testimony of expert witnesses in court and tribunal proceedings. At the same time, legal proceedings only seem to get more and more complex, requiring more specialized expert testimony to address key issues. For many professionals, including those in the property valuation disciplines, providing an expert opinion for a court or administrative proceeding is a key part of your work. To be an effective witness, the expert needs to fully understand his role and responsibilities as an expert participating in a legal proceeding.
Thus, with a thorough understanding of the legal process and the expert’s role, the expert will be able to provide his expert opinion at each stage of the proceeding with confidence. The expert will be fully prepared to successfully navigate around the potential pitfalls that can undermine his expert opinion, and even harm his reputation.
The Nigerian law schools must develop curriculum that will enable law students aspiring to be litigators, especially real estate lawyers to undertake training in Expert Evidence in Property Valuation Disputes that must provide opportunities to the students to hear from top lawyers, adjudicators, and experts who will share their inside knowledge gained from extensive experience litigating, hearing, and testifying in cases involving expert evidence.
With this, lawyers will end up much better equipped to provide an effective opinion that not only assists in resolution of the dispute, but also reflects positively on their experts’ own professionalism and expertise.
We propose that the Nigerian Bar Association entrench a Continuing Legal Education Course to be undertaken by all Real Estate Lawyers to best equip them to handle expert witnesses in courts. The course must emphasize the essential elements of the legal hearing process in a court or tribunal; the expert's role in the dispute resolution process; the expert's duties to the court or tribunal and relationship to parties and counsel; how to recognize and apply the distinction between opinion evidence and advocacy; how to respond effectively to questions about an opinion; how to work effectively with counsel without sacrificing objectivity; methods for identifying and addressing assumptions, alternate assumptions, and limitations; and the key elements of good report writing
Second, we recommend the creation of a 6-month course that would lead to an ward of a Certificate in Expert Evidence in Property Valuation Disputes. The curriculum to be taught must include the following:
• The essential elements of the legal hearing process in a court or tribunal
• The expert’s role in the dispute resolution process, both before and during the hearing
• The expert’s duties to the court or tribunal and relationship to parties and counsel
• How to recognize and apply the distinction between opinion evidence and advocacy
• How to respond effectively to questions about an opinion, including adversarial questioning
• How to work effectively with counsel without sacrificing objectivity
• Methods for identifying and addressing assumptions, alternate assumptions, and limitations
• The key elements of good report writing, and critical drafting skills for creating valuation reports to be used as expert evidence
• The processes and procedures of the Assessment Review Board, particularly as they relate to expert witnesses
• The unique obligations and requirements for a professional valuator appearing before the ARB
• The USPAP/CUSPAP rules as they relate to expert report writing and appearing before
• How to critique an appraisal report using appraisal concepts
• How to identify and resolve ethical issues that arise in the course of litigation from the perspective of the expert valuation witness
• The basic law of assessment
• Current assessment and valuation jurisprudence as it relates to expert
We await another knotty case that will delve on the testimony of experts.
**Dr. Theophilus Olusegun Obayemi II, LL.M. (Alberta Canada); LL.M. in Taxation Law; SJD in International Legal Studies, is of the Bars of the Federal Republic of Nigeria and the State of California. He can be contacted vide email@example.com
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