Upstream competition

Based on the findings it was concluded that limited finance is a major challenge encountered by indigenous contractors. They have limited access to funding sources, especially contractors in the small-and-medium bracket. One of the biggest consequences of this is that it prevents them from satisfying the financial requirements (e.g. bid and performance bonds) needed to win major contracts often awarded to their foreign counterparts. Inadequate facilities, machines, tools and equipment for effective work on the site work, over dependence on imported foreign materials and non-engaging of professionals also pose serious challenges to indigenous contractors during project execution. The result also revealed that indigenous contractors have not had a fair share of major construction activities in the study area.

From the above conclusion, the following recommendations were made:

• Government of the state of Osun should allocate a percentage of public projects to local contractors.

• Government should focus political will to devise policies and create the enabling environment for improving indigenous content in the construction industry

• Establishing a “National Construction Bank” where indigenous contractors can get loans at subsidized interest rates to meet their working capital requirement that will enable them complete projects on time and so be able to compete with their foreign counterparts.

157 REFERENCES

Achuenu, E., Izam, Y. D., &Bustani, S. A. (2000). Investigating the Activities of Indigenous Contractors in the Nigerian Construction Industry. Journal of Construction Technology and Management, 3(1):91-103.2.

Adams, O. (1997). Contractor development in Nigeria: Perceptions of Contractors and Professionals. Construction Management and Economics, 15(1), 95-108

Adams, S. O. (1997). Contractor Development in Nigeria: Perception of Contractors and Professionals. Journal of Construction Management and Economics, 15:95-108.3.

Ademoroti, A. (1997). Indigenous Participation in Nigeria Infrastructural Development. The Professional Builder, 32 (1),11-15.

Akintunde, I. (2003). The Nigerian Construction Industry: Past, Present, Problems and Prospects: Ibadan University Printery.

Aniekwu, A. N., & Audu, H. O. (2010). The Effects of Management on Productivity: A Comparative Study of Indigenous and Foreign Firms in the Nigerian Construction Industry. Proceedings of West Africa Built Environment (WABER)Conference, 27-18 July 2010 (pp. 567- 578). Accra- Ghana: WABER.

Awoyinfa, O.(1991).Utilization of Engineering Manpower in Nigeria. In I. Akintunde (Ed.),The Nigerian Construction Industry: Past, Present, Problems and Prospects (pp.17-55).Ibadan: Ibadan University Printery.

Bala, K., Bello, A., Kolo, B. A., & Bustani, S. A. (2009). Factors Inhibiting the Growth of Local Construction Firms in Nigeria. Procs25th ARCOM Conference, 7-9 Sept.

2009(pp.351-359).Nottingham U.K.: ARCOM.

Ekundayo, D., Jewell, C., & Awodele, O. A. (2013). Executive Project Management Structure and the Challenges Facing its Adoption in the Nigerian

Husseini,A.A.(1991).Construction in an Ailing Economy. The Nigerian Quantity Surveyor,15(2),20–22.

Ogbebor, P.O. (2002). Enhancing Indigenous Construction Industry as a National Goal in Nigerian Development. In I. Akintunde (Ed.),The Nigerian Construction Industry: Past,

158

Present, Problems and Prospects (pp.230-239). Ibadan: Ibadan University Printer.

Olateju, B. (1991). Enhancing the Contract Managing Capability of the Indigenous Contractor.

Paper presented at a seminar of the Nigerian Institute of Building on Effective Contract Management in the Construction Industry (p. 96– 101). Lagos: NIOB.

Omole, A.O (2000). Surveying Input to Engineering Projects: The Need for Professionalism.The Quantity Surveyor, 30, 10-18.International Journal of Civil Engineering, Construction and Estate ManagementVol.1, No.1, pp.1-21, March2014 Published by European Centre for Research Training and Development UK (www.ea-journals.org)

Oseni, F. A. (2002). Need to Revive Our National Development Plans. In I. Akintunde (Ed.), The Nigerian Construction Industry: Past, Present, Problems and Prospects (pp.1755).Ibadan: Ibadan University Printery.

Somolu, A.F. (2003). In I. Akintunde (Ed.), The Nigerian Construction Industry: Past, Present, Problems and Prospects (pp.67).Ibadan: Ibadan University Printery.

159

EXPERT WITNESSING IN REAL ESTATE LITIGATION PRACTICE IN IBADAN METROPOLIS: THE ESTATE SURVEYORS AND VALUERS’ PERSPECTIVE

Adedokun, A. R.^* and Oladokun, T. T.

Department of Estate Management, Obafemi Awolowo University, Ile Ife, Osun State.

*Email of Corresponding Author: [email protected] ABSTRACT

The study examined the perception of estate surveyors and valuers of expert witnessing in real estate litigation in Ibadan metropolis with the aim of enhancing professional practice. Primary data was collected from respondents (103 estate surveyors and valuers (ESV) drawn from 158 financial members contained in Estate Surveyors and Valuers Registration Board of Nigeria (ESVARBON) directory. The data obtained were analysed using frequency, percentage distribution, mean scores and factor analysis. The result established that rent dispute was the commonest real estate litigation where expert witness had been involved in from estate surveyors and valuers’ perspective. The result was that expert witnesses in the study area were experienced professionals who could sufficiently guide decision making in real estate litigations and give objective and sound evidence. Also, the findings showed that legal position of the expert witnessing is not only accepted, but strongly endorsed by the professional bodies in which the expert belongs to. The study recommended that for efficient expert witnessing in real estate litigations, estate surveyors and valuers need to understand the procedures of being an expert witness and develop sufficient knowledge in the area of expert witnessing.

Keywords: Expert Witnessing, Real Estate, Litigation, Estate Surveyors and Valuers, Ibadan Metropolis.

1.0 INTRODUCTION

In litigations, real estate practitioners/professionals play series of critical roles as expert witness when testifying in court, and in preparing reports for attorney on real estate disputes that assist the judge in making sound decision during proceedings (Musil, 2008). This reflects in a number of cases of fraudulent acts relating to real estate being reported on a regular basis in Nigerian companies, institutions and in the government. As a result of many real estate litigations, businesses, individuals and large corporations are facing huge pressures to settle

160

such cases (Sanchez and Zhang, 2012). Practically, many of the cases that go to trial always require the testimony of expert witnesses (Samuel, 1991).

In real estate practice, litigations could arise from the planning stage to the completion stage. These stages require the services of professionals in built environment such as Land Surveyor, Town planner, Architect, Quantity Surveyor, Builder, Engineer and Estate Surveyor and Valuer as the case may be.

Real estate dispute and litigation have been in existence from time immemorial and Nigeria is not an exemption. It also surfaces in all stages from land ownership, development, rent determination to others such as rent collection, management, valuation, sales, (Enofe, Odigie, Onoyase, Omokhuale, 2015).

On many occasions in the real estate world, disputes between parties arise as result of conflict of interest, breach of contract, violation of laws and regulation, boundary disputes, value differences, etc. In majority of these cases, these issues can be easily resolved. However, in a few instances, it becomes necessary to manage the dispute through legal channels. In such cases, where the end result of any litigation is getting value for whatever the investment might be, which in some cases /litigation may not be pecuniary, professionals’ advice of the estate surveyor and valuer versed in the legalities of real estate disputes can be essential. As such, litigation support is one of the most common reasons to hire an expert (Enofe et al., 2015).

This is essentially the process by which the estate surveyors and valuers who are familiar with commercial disputes provide consultation and advice to attorneys during legal proceedings.

Since solving disputes through the traditional method of going to court (litigation) requires that the judge has oversight over cases filed in the court, he/she as the trier of fact, often requires the expert witnesses’ opinion where the truth about real estate issues can only be obtained from the estate surveyor and valuer who are the trained professionals knowledgeable about real estate.

This study seeks to evaluate the practice of expert witnessing in dispute ensuing from real estate practice and the understanding of the professionals on how expert opinion are being prepared and presented in the court of law. Estate Surveyors and Valuers fall within the categories of professionals of expert witnesses whose actions and opinions are required at every stage in the proceeding of real estate litigations by Lawyers who prepared them for determination of cases before the court and how the evidence is admissible. Hence this study will examine the Estate Surveyors and Valuers’ understanding of expert witnessing in real estate litigation in Ibadan

161

metropolis. The remaining part of the paper is structured as follows: following the background is a review of relevant concepts and papers relating to expert witnessing. While the third section deals with methodology, the result and discussion are contained in section four. Section five contains the conclusion.

LITERATURE REVIEW Concept of Real Estate

Graaskamp (1992) defined real estate as "space delineated by man, relative to fixed geography, intended to contain an activity for a specific period of time". According to Coiacetto (2006), it is the multi-dimensional, characterized with distinct features of use, landscaping, slope, development potential, tenure, building (materials, design) and the pattern of externalities (access to resources such as labour, school and amenity) that includes bundles of goods or services which could not be traded or priced independently.

Real estate includes the land and the building thereon or any improvements subject to change in use or modification, alteration, and redevelopment on the land (Dabara, Anthony, Gbenga,

& Adeyanju 2014). Thus, real practice could be referred to as the inclusion of real estate and the associated collection of legal rights therein which could be subject to use, or to enjoy, to transfer, to alienate or to benefit from any futuristic intended use (Galaty, Allaway, and Kyle, 2000)

Estate Surveyor and Valuer

Atoyebi (2015) described an estate surveyor and valuer (ESV) as a professional trained in the art and science of estate management to direct and supervise an interest in landed properties with the sole aim of obtaining optimum returns for the owners of such properties. By his training and experience, he is an elected corporate member of the Nigerian Institution of Estate Surveyors and Valuers (NIESV) and legalized by the Estate Surveyors and Valuers (Registration, ETC) Decree No. 24 of 1975, now CAP E13 LFN 2007.

The Estate Surveyor and Valuer offers a number of professional services to both individuals and the society at large which no one else can provide without professional skill and expertise.

The functions include among others the services such as property management, valuation of assets, feasibility and viability studies, estate agency, public lands administration, land use planning and management, project management, property investment counselling, arranging finance for investment, arbitration (ESVARBON, 2014 and Babawale,2002).

162 Preparation of Expert Witness

The goal of expert witness preparation is to assist the expert in delivering the message he or she has to share in an effective and responsible manner Faigman (2002) averred that the first method in preparing the testimony of an expert witness is to become an expert by acquiring an in-depth knowledge of the subject matter, speak expert’s language and understand the basic concepts of the discipline. Brodsky (1991) suggested that expertise is a situation specific and an effective expert witness must prepare for the role. However, the author was of the opinion that expert witnesses are not necessarily experts at being witnesses. Various studies supported that expert who are less credible are less persuasive (Boccaccini, 2004; Boccaccini, Gordon and Brodsky, 2004 and Boccaccini, Gordon and Brodsky, 2005). In 2009, Neal argued that the commonest method of expert preparation is self-preparation. There are several literatures devoted to helping expert witnesses prepare themselves for testimony in court, such as Warren (1997), Lubet (1998), Austin (2014) and Brodsky (1991, 1999, 2004). The study added that attorneys also work with expert witnesses to prepare them for testimony by reviewing, discussing and modification of testimony material with the witness (Boccaccini, 2002).

Boccaccini (2002) cited in (Neal, 2009) in his review of the state of witness preparation distilled three basic components of preparation method; witness education, attorney education and modification of testimony delivery.

Expert Witnesses’ Competence

A competent witness is one considered in law as a fit and proper person to testify. Section 155(1) of the Evidence Act stated that All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those question, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind”.

Every compellable witness is obviously a competent witness since court will not compel anyone who is not competent. However, there are exception to the rule such as children, public office holders though they are competent witness under S.155 (1) E.A., but they are not compellable while they are in office. See Okon v. State (1988) I NWLR (Pt.69) 177; Okoye v.

State (1972) 12 SC 115; Rotimi & Ors v.Mcgregor (1974) 9 NSCC 42.

Gonzalez (2014) noted that the trial court will consider the witness’s life experiences, education, professional standing, licenses, certifications, publications, actual knowledge, honours received, books written, chapters written, literature published, and other qualifying

163

matters to determine if a witness should be accepted as an expert in a given field. The witness must be competent in the subject matter; they must be qualified through knowledge, skill, practical experience, training, education, or combination of these factors (Sapir, 2007).

Roles and Duties of Expert Witness

Sutherland (2009) found that the job of the expert witness is to assist the decision maker (a court, tribunal, or other related body) with the information about the specialized area which is before a decision can be made. In 2009, The Brenner Group observed that when an expert is called to witness in a court proceeding, the expert witness must consider the following: the requirements of the court concerning the role the expert is expected to play, the rules of evidence and procedure the expert must follow, and the standard of reliability and relevancy the work must satisfy; the ethical and professional responsibilities to which the expert must adhere; the need for effective communication in the form of written and oral testimony.

Also, the expert witness should consider carefully the requirements and expectations of the court or other venue in which the dispute may be decided or arbitrated. The expert’s responsibility is to the “trier of fact”, which may be the judge, arbitrator, or jury of the case.

The expert is expected to be impartial with respect to the litigating.