By AMARACHI R. NWABUEZE ESQ.
I. Introduction
In contemporary legal proceedings, the involvement of experts has transitioned from a peripheral role to a central pillar in dispute resolution. Whether in complex construction disputes, intricate financial litigations, or multifaceted medical malpractice cases, experts provide the technical scaffolding that supports legal arguments. Acting as forensic accountants, medical consultants, engineering specialists, and more, experts bridge the gap between factual data and legal interpretation. However, this bridge is increasingly fraught with tension.
The proliferation of expert involvement has sparked debates concerning their independence, influence, and overall utility. Are experts objective aids to justice or subtle advocates cloaked in technicality? This controversy is particularly pronounced in jurisdictions like Nigeria, where the regulatory framework governing expert evidence remains underdeveloped. This essay explores the appropriate role of experts in dispute resolution, critically examines the legitimacy of common criticisms, and surveys reforms in Nigeria and other jurisdictions aimed at striking a balance between expert assistance and procedural fairness.
Purpose of the Essay: To evaluate the appropriate role of experts and assess the legitimacy of criticisms leveled against them.
Essay Statement: While experts play a crucial role in aiding tribunals or courts, legitimate concerns around impartiality, regulation, and procedural inefficiencies demand urgent reform.
II. The Intended Role of Experts in Dispute Resolution
Experts are intended to function as impartial providers of specialized knowledge, offering insights into technical matters that fall beyond the adjudicatorâs expertise. Their principal role is to assist the court or arbitral tribunal in understanding evidence that cannot be properly evaluated without specialist knowledge.
Section 68 of the Nigerian Evidence Act1 expressly permits expert evidence in matters requiring scientific, technical, or other specialized knowledge. Nigerian courts have affirmed this position in several cases. In Lijadu v. Lijadu2, the Supreme Court recognized the admissibility of expert
1Nigerian Evidence Act 2011
2 (1991) 1 NWLR (PT. 169) 627
testimony in resolving complex matrimonial property disputes, emphasizing that such evidence can illuminate facts otherwise obscure to the court.
Similarly, in Onyiah v. Onyiah3, the Court of Appeal accepted the report of a valuer expert as crucial to determining the fair market value of jointly owned property. These cases illustrate how experts are expected to support, rather than substitute, judicial reasoning.
In arbitration, both institutional rules and national legislation accommodate expert involvement. Section 304 (NAMA) empowers arbitral tribunals to appoint an expert to report on specific issues. However, the provision is subject to party agreement, and in practice, party-appointed experts remain the norm, particularly in international commercial arbitration seated in Nigeria.
Tribunals frequently rely on expert reports to understand financial projections, scientific causation, or technical feasibility.
3 (1993) 2 NWLR (Pt. 274) 234
4 Nigerian Arbitration and Mediation Act 2023 (NAMA)
Whether appointed by the parties or the tribunal, the expert's role should be to inform rather than to persuade. Unfortunately, this ideal often gives way to the adversarial reality of legal contests.
III. The Key Criticisms
Despite their utility, experts in dispute resolution have been subject to considerable criticism. The most significant concerns include:
(i) Independence and Impartiality of Party-Appointed Experts
Perhaps the most pervasive criticism concerns the partiality of party-appointed experts. These experts, though formally instructed to remain neutral, are frequently seen as partisan figures advancing interpretations that align closely with the interests of the appointing party. The concern is that such experts serve less as objective advisors and more as extensions of legal counsel.
Party-appointed experts are often dubbed âhired gunsâ whose testimony appears crafted to support the partyâs case. This perception undermines their credibility and creates an âexpert battleâ that burdens the tribunal rather than assisting it. The problem is not merely theoretical. In Statoil Nigeria Ltd & Anor. v. Nigerian National Petroleum Corporation (NNPC)5, the tribunal expressed discomfort with the âevident alignmentâ between the expertâs report and the claimantâs submissions, suggesting a blurring of the lines between advocacy and expertise.
This concern is echoed in international discourse. As Lord Woolf noted in his Access to Justice Report6 âexperts are seen not as assistants to the court, but as mouthpieces for those who instruct them.â This adversarial posture erodes the integrity of dispute resolution and may distort justice.
(ii) Lack of a Clear Regulatory Framework
Another major weakness is the absence of a unified regulatory framework for experts. Unlike legal practitioners who are subject to bar associations and codes of conduct, experts often operate without oversight.
5 (2013) 14 NWLR (pt. 1373) 1
6 [1996]
In Nigeria, there is no requirement for expert accreditation, nor is there a statutory code of ethical conduct. This vacuum allows inconsistencies in the quality, reliability, and ethical standards of expert testimony. Courts are left to weigh the credibility of expert witnesses on a case-by-case basis, leading to unpredictable outcomes.
By contrast, other jurisdictions have made strides in regulating expert involvement. Part 35 of the UK Civil Procedure Rules (CPR)7 provides a comprehensive framework that obliges experts to remain independent, regardless of who instructs them. Additionally, they must include a declaration of truth and confirm that they understand their duty to the court. The Ikarian Reefer case National Justice Compania Naviera SA v. Prudential Assurance Co Ltd8 is frequently cited for outlining the duties of experts, including independence, thoroughness, and clarity.
7 Civil Procedure Rules (UK) â Part 35
8 Ikarian Reefer [1993] 2 Lloydâs Rep 68
While Nigeria lacks such structured oversight, the International Bar Associationâs Rules on the Taking of Evidence in International Arbitration9 offer useful guidance. Still, these are persuasive rather than binding, and enforcement in Nigeria remains limited.
(iii) Expert Reports as Too Long or Complex
Another criticism is the excessive complexity of expert reports. Often drafted in dense, technical language with voluminous annexures, these reports can overwhelm both counsel and adjudicators. In disputes requiring input from multiple disciplines such as infrastructure claims involving structural engineers, economists, and environmental scientists the evidentiary landscape can become cluttered.
Instead of clarifying issues, the reports can introduce ambiguity. One ICC tribunal, in a construction arbitration, remarked that âthe expert evidence, though exhaustive, created more confusion than clarity.â Thus, âToo often, expert evidence degenerates into a battle of hired guns, leaving the tribunal with unenviable task of reconciling mutually exclusive expert opinionsâ10.
9 IBA Rules on the Taking of Evidence in International Arbitration
10 Park, W.W., âArbitrator integrity: The Transient and the Permanentâ, San Diego Law Review, Vol. 46, 2009, p.631
In Nigeria, where judicial or arbitral familiarity with technical concepts may be limited, this problem is magnified.
Judges and arbitrators may lack the background needed to critically assess such reports, leading to over-reliance or undue deference. Moreover, the failure of experts to simplify their findings or tailor their reports to a non-specialist audience frustrates the core objective of expert assistance: to aid understanding.
(iv) Lack of Coordination between Party-Appointed Experts (âShips Passing in the Nightâ)
A final procedural concern is the lack of coordination between party-appointed experts. Often, each expert submits a separate report, ignoring the other's perspective entirely. This phenomenon sometimes referred to as âships passing in the nightâ results in disjointed presentations of evidence that burden the tribunal with reconciling divergent narratives.
Cross-examination, though useful, rarely cures this deficiency. What is lacking is a structured method for experts to interact, engage, and clarify points of agreement or disagreement.
Some arbitral rules, such as those under the ICC and LCIA, permit expert conferencing (also known as âhot-tubbingâ), where experts testify concurrently and discuss points of divergence in real time. However, this approach remains rare in Nigeria, partly due to cultural unfamiliarity and partly due to a lack of procedural guidance.
IV. Are the Criticisms Justified?
These criticisms are not without merit. In Nigeria, judicial commentary has acknowledged the problem of expert bias. In Okoh v. The State11, the Court of Appeal expressed concern about the potential for partiality where an expert is closely affiliated with one of the litigants. This danger is exacerbated by the absence of regulatory oversight.
Moreover, party-appointed experts tend to see their loyalty as owed to the client, not to the tribunal or the truth. This dynamic, as noted in academic literature (e.g., Gaitskell, âExpert Evidence and the Problem of Bias,â Arbitration International)12, corrodes the evidentiary value of expert testimony.
11 (2010) 1 NWLR (Pt. 1176) 29
12 (2010)
Nonetheless, not all criticisms are fatal. Complex disputes particularly those involving scientific or technical matters still demand expert input. Even if bias exists, tribunals and courts are not passive recipients of expert opinions. They are expected to evaluate such evidence critically, especially when there are conflicting expert reports. As noted by the Nigerian Supreme Court in Okafor v. Nwoke13, expert evidence, like all other forms of evidence, is subject to weight and credibility assessments.
The adversarial nature of proceedings also inherently places the burden on each party to present its case as persuasively as possible. In this context, it is understandable though not always desirable that parties will instruct experts who are sympathetic to their theory of the case. What matters is that tribunals have the tools to test, scrutinize, and, if necessary, disregard unreliable or partisan expert evidence.
13 (2013) LPELR-21383(SC)
V. Proposed Reforms and Emerging Trends
Several jurisdictions are responding proactively to these criticisms.
United Kingdom
In England and Wales, the civil justice system has embraced reforms that limit bias and reduce cost. Single joint experts are frequently used in family and construction disputes, as permitted under CPR Part 3514. Pre-hearing expert meetings are now standard practice, and experts must submit joint statements highlighting areas of consensus and disagreement.
Courts also sanction experts for breaching their duty of independence, with consequences ranging from exclusion of evidence to adverse cost orders.
Australia
Australia has pioneered expert conferencing, with courts frequently requiring simultaneous expert testimony. This method promotes transparency and allows
14 (supra)
judges to compare expert positions in real time. As noted in UCPR (NSW), experts must sign a code of conduct and disclose any conflict of interest.
Nigeria
While reforms in Nigeria are more modest, progress is underway. The Arbitration and Mediation Act15 provides that tribunals may appoint experts (Sections 30 and 31), a move toward neutral technical input. Additionally, institutions like the Lagos Court of Arbitration and the CIArb (Nigeria Branch) have introduced guidelines encouraging ethical expert practice.
There is also a growing call for the domestic adaptation of international standards such as the IBA16 Guidelines on Party-Appointed Experts. Legal education is gradually incorporating modules on expert management, and continuing legal education (CLE) seminars are emphasizing the effective deployment of expert witnesses.
15 (supra)
16 International Bar Association 1947
Recognizing the importance of expert testimony, legal systems around the world have taken steps to address the concerns outlined above. Nigeria, too, can benefit from adopting or adapting some of these reforms:
(i) Tribunal-Appointed Experts
One way to mitigate bias is to encourage the use of tribunal-appointed or court-appointed experts. Section 30(1) of the Nigerian Arbitration and Mediation Act17 already permits this, allowing tribunals to appoint an independent expert to report on specific issues. However, party consent is typically required, and many parties resist this mechanism due to fears of loss of control or lack of familiarity with the appointed expert.
Nevertheless, tribunal-appointed experts can produce more balanced and neutral analysis, reduce âexpert shopping,â and assist in narrowing the factual issues in dispute. For example, in Methanex Corporation v. United States of America18, the tribunal appointed its own expert to advise on environmental contamination issues, which helped resolve highly contested technical debates.
17 Supra
18 UNCITRAL (2005)
(ii) Adoption of Expert Codes of Conduct
Nigeria could develop a binding code of conduct for expert witnesses, modeled after Part 35 of the UK Civil Procedure Rules or the IBA Guidelines on Party-Appointed Experts. Such a code would require experts to declare their independence and affirm their duty to the court or tribunal above their duty to the instructing party.
Additionally, courts and arbitral tribunals should be encouraged to insist that experts include in their reports a declaration similar to the one mandated in the Ikarian Reefer case, confirming that they have no bias and that their primary obligation is to the forum.
(iii) Expert Conferencing ("Hot-Tubbing")
Expert conferencing involves having all experts in the same field testify together before the tribunal. This practiceâcolloquially known as âhot-tubbingââallows for simultaneous questioning, promotes direct dialogue between experts, and encourages a collaborative, rather than adversarial, approach to expert evidence.
The method is increasingly common in international arbitration, particularly under the ICC and SIAC rules, and has been endorsed by the Chartered Institute of Arbitrators19. Though unfamiliar in Nigerian practice, pilot adoption of this method in commercial or construction arbitration could set the stage for broader acceptance.
(iv) Accreditation and Professional Oversight
Nigeria could also establish an accreditation regime for expert witnesses, particularly in fields where litigation and arbitration often arise e.g., valuation, forensics, construction, engineering, etc. An independent body could certify experts, publish guidelines for ethical conduct, and maintain a registry of qualified individuals. This would professionalize expert evidence and help ensure quality control.
19 Chartered institute of Arbitrators, (CIArb) 1915
(v) Use of Joint Expert Reports
Another reform involves encouraging parties to agree on a single joint expert. Though it may seem counterintuitive in adversarial proceedings, joint expert appointments can save time and cost and avoid duplication of effort. They also reduce the likelihood of diametrically opposed reports, since the expertâs duty is to both parties and, more importantly, to the tribunal.
VI. The Nigerian Context and Prospects for Reform
In Nigeria, expert evidence remains under-utilized in civil litigation and often mismanaged in arbitration. A 2022 report by the Nigerian Institute of Chartered Arbitrators (NICArb)20 noted that while experts are frequently retained, few practitioners understand how to structure instructions, frame questions, or assess reports critically. Moreover, some experts are retained without sufficient consideration of their qualifications, experience, or impartiality, thereby reducing the credibility of their evidence.
20 Nigerian Institute of Chartered Arbitrators, 2022 Expert Witness Report
Despite the formal allowance for tribunal-appointed experts in the 2023 Arbitration Act, few tribunals in Nigeria invoke this power. Similarly, courts rarely probe the reliability of expert testimony through pre-trial hearings or procedural orders. The default approach remains adversarial, with each party producing its own report, leaving judges and arbitrators to sort through conflicting narratives with minimal guidance.
Encouragingly, Nigerian arbitral institutions like the Lagos Court of Arbitration (LCA)21 and the Maritime Arbitrators Association of Nigeria (MAAN)22 are beginning to explore reforms, including capacity-building programs for experts and guidelines for ethical conduct. The next step is legislative and judicial support to entrench these innovations into broader dispute resolution culture.
21 Lagos Court of Arbitration (LCA) No.17 of 2009
22 Maritime Arbitrators Association of Nigeria (MAAN) 2005
VII. Conclusion
Experts remain indispensable to modern dispute resolution. Their ability to elucidate complex, technical, or scientific matters is essential in a world where legal disputes increasingly intersect with specialized knowledge. However, this utility is accompanied by challengesâparticularly those of bias, overreach, and lack of regulation.
In jurisdictions like Nigeria, the role of experts is both promising and problematic. While the legal framework supports expert involvement, its implementation is often marred by poor oversight and procedural weaknesses. The criticisms of expertsâespecially party-appointed onesâare legitimate and underscore the need for reform.
This essay has argued that, rather than discard expert evidence or allow it to remain unchecked, jurisdictions must adopt structured reforms to harness the value of expertise while minimizing its dangers. By embracing tribunal-appointed experts, codes of conduct, expert conferencing, and accreditation schemes, Nigeria and similar jurisdictions can foster a more balanced, credible, and efficient use of expert evidence in dispute resolution.
Ultimately, the challenge is not whether experts should be used, but how to ensure their use advances justice rather than distorts it.
Postscript: Bridging Law and Expertise in an Evolving World
As global disputes grow more intricate spanning climate change, artificial intelligence, cross-border commerce, and public health-the legal system must evolve in tandem. Experts are no longer ancillary participants in these conversations; they are essential voices. But their authority must rest on trust, neutrality, and clarity.
The Nigerian legal community stands at a critical juncture. By adopting coherent reforms and embedding a culture of transparency, we can transform expert evidence from a source of contention into a cornerstone of justice. This shift is not merely procedural it is philosophical. It demands that we view knowledge not as a weapon for one side, but as a shared tool in the service of truth.
In a legal ecosystem where both adjudicators and parties embrace this ideal, expert evidence will no longer be controversial; it will be indispensable and credible.
Bibliography
1. Nigerian Evidence Act 2011
2. Nigerian Arbitration and Mediation Act 2023
3. Civil Procedure Rules (UK) â Part 35
4. Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627
5. Onyiah v. Onyiah (1993) 2 NWLR (Pt. 274) 234
6. Okoh v. The State (2010) 1 NWLR (Pt. 1176) 29
7 Okafor v. Nwoke 13 (2013) LPELR-21383(SC)
8 National Justice Compania Naviera SA v. Prudential Assurance Co Ltd [1993] 2 Lloydâs Rep 68
8. Statoil Nigeria Ltd & Anor. v. NNPC (2013) 14 NWLR (pt. 1373) 1.
9. Ikarian Reefer [1993] 2 Lloydâs Rep 68
10. Gaitskell, R. âExpert Evidence and the Problem of Bias,â Arbitration International (2010)
11. IBA Rules on the Taking of Evidence in International Arbitration
12. Lord Woolf, Access to Justice Report (1996)
13. Nigerian Institute of Chartered Arbitrators, 2022 Expert Witness Report
14. Methanex v. USA, UNCITRAL (2005)
Labels: Class Actions Committee, DISPUTE RESOLUTION SECTION(Arbitration Committee, Litigation Committee, Mediation Committee, Negligence and Damages Committee)
