appropriate dispute resolution

APPROPRIATE DISPUTE RESOLUTION

The Search for Viable Alternatives to Litigation and Arbitration in Nigeria

Okey Uzoechina

Uzoechina, Okechukwu Lawrence

Okey Uzoechinai

2008

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ABSTRACT

L

awyers are social engineers, and as such, a lawyers workspace should extend beyond the courtroom and into the wider society. Sadly, the appreciation of

dispute resolution skills as tools for social engineering among lawyers in Nigeria is very narrow. The average lawyer believes that he should not concern himself with other methods of resolving disputes outside the courtroom, alias Alternative Dispute Resolution (ADR). The straitjacketed training and orientation of the Nigerian lawyeruntil recentlyin litigation and litigation alone leaves him ill-equipped to practise his trade effectively with the formal integration of ADR into our courts system, and incompetent even to give life to the numerous provisions in our laws prescribing ADR. There is therefore the need to approach the problem from a more nuanced frame, hence the modification Appropriate Dispute Resolution. This paper sets dispute resolution and conflict management in a broad perspective, highlighting entry points for alternatives to litigation and arbitration in our body of laws in Nigeria and, where appropriate, drawing lessons from extra-legal best practice in making suggestions for further development of the law and practice of dispute resolution. It also introduces a robust democratic governance dimension which advocates the mainstreaming of dispute resolution into governance structures and post-conflict peacebuilding in order to foster development. The approach used is two-fold: diagnosis and prognosis. The first step is to examine the conduct of litigation and arbitration in Nigeria as it affects time and cost, and to identify the factors that contribute in clogging up the judicial system, thereby aggravating costs. Secondly, as a panacea to the above-stated ailment, to seek ways to boost the efficiency of our judicial system and arbitral regime, and to attempt to evolve a functional synergy between litigation/arbitration on the one hand, and other complementary methods to achieving effective dispute resolution on the other.Page3


CONTENTS

Chapter One: Introduction Conceptual Clarification Book Map: Approach and Organization Placing Dispute Resolution in Context: What Works Where and Why? o A Cultural Dialogue o Unintended Consequences of a Foisted Legal System o Lessons Learnt: Back to Our Roots!

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Chapter Two: Viable Alternatives: The ADR Paradigm The Place of ADR in Justice Delivery The ADR Menu o Core Processes o Hybrid Processes Enforceability of ADR Settlements

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Chapter Three: The State of Our Laws and Institutions on ADR The Changing Tide Prescribing ADR: Who Does What and How? o Duty of the Court o Duty of Counsel o Duty of Third Party Neutral

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Chapter Four: Relevance of Dispute Resolution in Governance Instrument for Democratic Governance Mechanism for Conflict Prevention and Peacebuilding Tool for Policymaking Vehicle for Promotion of Investment Enhanced Criminal Justice Administration De-escalation/Resolution of Armed Conflict Post-Conflict Reconciliation and Transitional Justice

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Chapter Five: Suggestions for Reform Sustenance Through Increased Funding o Upgrading Infrastructure o Developing Human Capacity Improvements to Maximize Efficiency o Incremental Judicial Case Management o Non-Court-Connected and Faith-Based Dispute Resolution Consolidation for Lasting Gains o Mainstreaming ADR through Formal and Civic Education o Increased Collaboration of ADR Experts and Institutions The Last Word

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Bibliography Appendix A: Statistics on Duration of Arbitration Appeals Appendix B: Dispute Resolution Strategies Continuum Appendix C: Legal Rules, Statutory and Treaty Provisions Relating to ADRPage5


CHAPTER ONE INTRODUCTION

The world... is moving at a pace that demands our Justice System succumbing to change to find relevance in todays borderless village. Access to Justice means more than access to the courts. Access to Justice means providing access and opportunity for a just and timely result. Hon. Justice Dolapo Akinsanya1

Conceptual Clarification

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onflict is a natural phenomenon and an unavoidable consequence of human interaction in any society. Some people use the terms conflict and dispute

interchangeably. Whereas the two terms are not exactly coterminous, there can hardly be the one without the other. But it would amount to oversimplification to view it as a simple cause-effect relationship. A better way to explain the relationship is by drawing the analogy of the simple mechanism of a wheel. For there to be any movement, the motion of the wheel causes friction between the wheel and a surface, often generating heat in the process. The motion corresponds to human interaction (prime cause), friction to dispute or disagreement (level 1 effect), and heat to conflict (level 2 effect). Conflict is therefore manifested when persons or groups of persons dispute over core values, scarce resources, roles and obligations. Thus defined, it is therefore appropriate to talk stricto sensu about dispute resolution or settlement, and conflict prevention or management or de-escalation. Since the two strings of effect

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1

Chair, Lagos Multi-Door Courthouse (LMDC) Steering Committee, in her Welcome Letter to the official launch of the LMDC on 11 June 2002 at the Lagos High Court, Lagos State, Nigeria.


can oftenbut not alwaysbe traced to a common cause,2 except where otherwise expressly clarified in this paper, reference to the one will also include the other. In this wise, it is proper to view conflict as a neutral category: the outcome will be either good or bad depending on the manner in which it is managed. The effects of unmanaged conflict include broken relationships, reduced productivity, insecurity and underdevelopment. On the other hand, effectively managed dispute may foster better relations in the future and bring about peaceful coexistence and development as a consequence of social reconfiguration and redistribution of resources. A wellmanaged dispute reduces the manifestation of conflict to the barest minimum. Per se, conflict is manifested on different levels: it can be intrapersonal or interpersonal, local/communal, national, international or transnational. In Africa, litigation has been and substantially remains the major process for dispute resolution via the justice system.3 Litigation is an adversarial process of dispute resolution where the parties use the instrument of state courts established by law to determine their legal rights. Usually, the disputants decide on the cause of action to pursue in court and the appropriate remedy to seek. In the end, one party is adjudged the winner and the other the loser based on the preponderance of evidence adduced to support each partys case. Once the court is seized of a case, it retains control over both the process and the outcome. Arbitration on the other hand is a process where disputants appoint third party neutrals (arbitrators) to hear their evidence and decide the dispute for them according to laid-down or agreed procedures. The conduct of arbitrationespecially commercial arbitrationis guided by the substantive law relating to the subject matter in dispute and also the procedural law chosen by the parties to regulate the2

Academic research points to the fact that some conflicts may be induced by factors other than genuine disputation over values or resources, thus warping the link between the level 2 effect and level 1 effect as explained above. This complex dynamic underlines the difference between man and machine. Politicallymotivated religious conflict in Nigeria is a good illustration.3

Gadzama, J.K. (2006)

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arbitral process (or the procedural law of the seat of arbitration). Although the parties retain some degree of control over the process, arbitrators have the power to give binding decision. The decision of an arbitral tribunal (award) may be enforced like a court judgement.4 The adversarial nature and the often inevitable interplay of arbitration and litigation as one process dovetails into the other sometimes obfuscate the difference between the two. Arbitration has been aptly described as being akin to litigation in a private forum. Since most arbitrators and counsel in arbitration proceedings are lawyers, arbitrations are virtually litigated and rules of evidence are brought into play. Although arbitration was the first alternative to litigation, modern concept of ADR which classify it as collaborative and non-adjudicatory procedures maintains that ADR is anything but arbitration.5 The role of the court in the arbitral process is twopronged: support and supervision. The court provides support to give effect to the agreement of the parties, and supervision to ensure that the process is conducted within the mandatory tenets of the law.6

Book Map: Approach and Organization This paper sets dispute resolution and conflict management in a broad perspective, highlighting entry points for alternatives to litigation and arbitration in our body of laws in Nigeria and, where appropriate, drawing lessons from extra-legal best practice in making suggestions for further development of the law and practice of dispute resolution. The approach used is two-fold: diagnosis and prognosis. The first step is to examine the conduct of litigation and arbitration in Nigeria as it affects

4

See: Section 31(1)-(3), Arbitration and Conciliation Act (ACA), Cap. A18, Laws of the Federation of Nigeria (LFN), 2004

6

Belgore (2006). See also: Section 17, ACA.

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5

See generally: Ajibola (2005), pp. 11 & 19. See also: Brown & Marriott (1999)


time and cost, and to identify the factors that contribute in clogging up the judicial system, thereby aggravating costs. Secondly, as a panacea to the above-stated ailment, to seek ways to boost the efficiency of our judicial system and arbitral regime, and to attempt to evolve a functional synergy between litigation/arbitration on the one hand, and other complementary methods to achieving effective dispute resolution on the other. The first Chapter sets the tone of the discourse by giving clarification as to the sense in which some concepts are used in this paper, and how they interrelate. Adopting a comparative approach, it also points to socio-ethical, political and economic factors that may undermine the suitability and workability of litigation in the African context, and traces a trend of reinvention and reintegration of home grown, contextspecific methods of dispute resolution into our justice system. Chapter 2 presents a snapshot of well-known dispute resolution processes which are today considered alternatives to litigation, and argues that these processes are not meant to supplant litigation, but should rather supplement it where and when appropriate. Shifting gears, Chapter 3 x-rays the legal provisions, judicial pronouncements, and institutional structures that promote, recommend and mandate the use of creative alternatives to litigation: thus, the law itself admits that it is not always appropriate or effective in resolving every case. Venturing beyond the law, Chapter 4 introduces a robust democratic governance dimension which advocates the mainstreaming of dispute resolution into governance structures and post-conflict peacebuilding in order to foster stability and development. Chapter 5 reiterates the main arguments of this paper, draws on the lessons learnt, and incorporates suggestions for the reform of the justice system and the reorientation of lawyers in order to enhance courtconnected dispute resolution, and the building of institutional capacity to promote non-court-connected but sanctioned dispute resolution and conflict managementPage9

methods.


Placing Dispute Resolution in Context: What Works Where and Why? Law as a tool for promoting social order is essentially an organic social contract, a complex adaptive system emerging through sundry locally interconnected and interacting agents.7 African home-grown methods and institutions for resolving dispute emerged only after a long and tortuous process of trial-and-error, being sensitive to the practices, values, norms, power structures, socio-ethical, economic and political context, and the peculiar needs of the human groupings.

A Cultural Dialogue It is therefore no happenstance that indigenous African justice system emphasizes amicable resolution and reconciliation between warring parties or groups over retribution or penal sanctions. In some instances, appeal to a higher authority is entertained through clear-cut channels. The end of justice was to restore the victim as much as possible to his situation before the offence was committed, reintegrate the offender into the social fabric, and foster peaceful coexistence and stability in the society. With colonization came the introduction of foreign legal system and the abandonment of some traditional methods that the new legal system saw as uncivil and therefore inconsistent with the newly redefined justice. 8 Conversely, litigation was seen by the natives as vindictive, complicated, expensive, and not fostering wide participation by stakeholders. Trials are offender-centred, and the deterrent effect of punishment remains largely unproven. Even where the victims desire for justice is assuaged through retribution for the offender, this often undermines the equally important goal of promoting victim-offender reconciliation and restitution. Therefore, the adversarial system appears to be a cure that often leaves society worse7

Pearlstein (2007), p. 740

8

Such practices as the use of ridicule, ordeals, or threats of ostracism as means of persuading parties to make a confession or reach a settlement were discardedsometimes justifiably soas being coercive and unduly manipulative.

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off than the ailment, especially in the context of post-conflict fragile peace which necessitates peaceable, non-lethal coexistence between hitherto warring groups. The misfit between Western law and African society is captured by Idowu William in these words:Mazruis notion of African short memory of hate lies critically at the heart and is a symbol of African jurisprudence i.e. African legal theory. African judicial system is unlike that of the West. In the West the judicial system is constructed after the manner of winner takes all. In African jurisprudence, what rules is the idea of no victor, no vanquished. This is what ensuring compromise and reparations means. Interestingly, these ideals are generally ingrained in what Deutsch calls mediation, consensus and conciliation as conflict resolution techniques.9

Worse still, the Western judicial system paid no heed to wide differences between groups usually lumped into an administrative unit for convenience. The importance of context and local dynamics in designing a dispute resolution system cannot be overemphasized. For instance, political communities in pre-colonial Nigeria and their traditional justice systems were not homogenous even though there were common strands like the role of elders in settling disputes. There were monarchical caliphates with extensive powers over the subjects in the north, quasi-democratic republics with decentralized units in the east, and consociational arrangements with entrenched checks and balances in the west. Despite these fundamental disparities, litigation was introduced as a one-size-fits-all therapy. Not surprisingly, the continent has not fared much better in promoting social order since the legal transplant. Today, the uneducated rural dweller in Nigeria is litigophobic and would rather take a matter before a council of elders, a chief or a spiritual leader for counselling and resolution. Even among the educated, a manPage11

who takes his brother or associate to court is seen as an enemy for life due to the9

William (2001), pp. 13-14


battlefield psychology associated with litigation. The lawyer who should be a problem solver is often seen as part of the problem, sapping litigants of their hardearned entitlements through exorbitant legal fees. Thanks to the duality of the Nigerian legal system, some traditional forms of dispute resolution that survived the Western legal transplant still exist today and have been given judicial and extrajudicial recognition.10 The courts are directed to observe and enforce the observance of native law and custom provided always that they are not repugnant to natural justice, equity and good conscience; or incompatible with any law for the time being in force; or contrary to public policy. The award of customary arbitration (which encompasses different forms and methods of dispute settlement), when approved by a competent court, is clothed with the garb of estoppel per rem judicatam.11

Unintended Consequences of a Foisted Legal System Law is dynamic and therefore should change with changing times. However, there is more to translating this ideal into reality. In Nigeria, the state of inertia that has crippled our legal development is better imagined. Some legal templates that were generally extended to the colony and protectorates of todays Nigeria since 1900 remain statutory dinosaurs,12 while the organic process of legal adaptation and development has ensured that those laws as they exist today in Britain have little semblance with the originals. A major challenge in this wise is posed by rapid advances in technology especially with the advent of the computer and information and communication technology

10

See: Agu v. Ikewibe [1991] 3 NWLR (pt. 180) 385; Egesimba v. Onwuzurike (2002) 9-10 SC; Seide (1970), p. 23

11

See: Okpuruwa v. Okpokam [1988] 4 NWLR (pt. 90) at 554, per Oguntade, JCA; Ohiaeri v. Akabeze [1992] 2 NWLR (pt. 221) at 23-24; Park (1963), pp. 68 & 14912

See: Section 45, Interpretation Act, Cap. I 23, LFN 2004; Cf.: the dictum of Niki Tobi, JCA in Caribbean Trading Fidelity Corporation v. NNPC [2002] 14 NWLR (pt. 786) 133

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(ICT).13 Today, numerous transactionsnegotiation of contracts, on-line shopping, bidding at auctions, banking, live broadcasts, and even dispute resolutiontake place in cyberspace and through feedback-enabled radio waves, forging a virtual, borderless global community. In response to this trend, advanced jurisdictions have developed a novel regulatory body of laws, ICT law. Some provisions in our Evidence Act14 and the Criminal Procedure Laws in force in Nigeria are outdated, having been enacted at a time when the present spate of developments was not in contemplation. For instance, it has been argued that the definition of document in Section 2 of the Act does not include electronically generated documents. Yet the execution of documents by e-signature is now accepted practice within the shifting boundaries of the global market. Technological, social, and economic advancements support the clamour for legislative overhaul to bring the Act in tandem with modern realities to allow for efficient justice delivery.15,16

Going with the tide, the federal

government in 2001 approved a National Policy for Information Technology and established the National Information Technology Development Agency amongst whose objectives are: to improve judicial procedures and enhance the dispensation of justice; to endeavour to bring the defence and law enforcement agencies in line with accepted best practices in the national interest; to promote legislation for the protection of online business transactions, privacy and security. Looking at the state of our laws on ICT today, it appears the policy aspirations are still far from being translated into reality. The dismal state of our judicial system is inextricably linked to the level of our political and economic development. Thus, systemic inefficiency is prevalent in13

Oyewole (2005), p. 69 Cap. E14, LFN 2004, formerly Evidence Ordinance passed in 1943 but came into effect in June 1945.

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15

16

See generally: Nweze (2005)

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See: Pats-Acholonu, JCA in Egbue v. Araka *1996+ 2 NWLR (pt. 433) 710, where he stated that our Evidence Act is... completely out of tune with the realities of the achievements of modern technology.


developing countries that are still grappling with socio-economic exigencies of sustenance and stability, which are conditioned by widespread corruption and insufficient funding. The institutional and structural weaknesses in the judicial system has led to a situation where in most cases, disputes spend an embarrassingly long time in court. The convoluted court processes and strict reliance on formality and rigid procedural lawwhich remain veritable vestiges of the common law have contributed to worsen the situation. The embarrassing fact that our judges still record proceedings before them in long hand contributes in no small measure to prolong already long-drawn-out proceedings. Today, the caseload of judicial officers in Nigeria is outrageous.17 Let us attempt to paint a lucid picture of the situation with facts. On some occasions, the average period it takes to litigate a case from commencement of action to judgement is between 4 to 6 years.18 At times, the trial would last longer than this. It has been further shown that the average life-span of a court case in Nigeria from commencement at the trial court to judgement at the Supreme Court is about 16 years.19 In 2006, as part of the background work for the 4th Summit on the Administration of Justice with the theme: Justice Delayed, a survey of 200 cases that went from different High Courts in the Federation to the Supreme Court was undertaken. It was found that it took an average of 10 years for a criminal case to go from the High Court to the Supreme Court. The figure is 14 years for a civil case, and 18 years for land cases. The effect of this reality is the incredible paradox that our

17

A survey carried out by me in the Onitsha Judicial Division in Anambra State of Nigeria between May and June 2005 reveals that a judge of the High Court Division could have up to 11 cases on its Cause List in a day. As of year 2000, 40,000 cases were pending in the Lagos High Court.18

Osinbajo (2004), pp. v-vi. A diagnostic survey done in 2000 in Lagos State showed that it took an average of 4.25 years to conclude any case in the High Court of Lagos, assuming there were no interlocutory appeals. Land cases could go up to 8 years at the High Court alone. See: Osinbajo (2004), p. 119

The result of a survey carried out by Mr. Kevin N. Nwosu [Director, Settlement House, Abuja, Nigeria] in 2004. It should be noted that the structure of Superior Courts of Record in Nigeria is three-tiered, though some cases are commenced at the inferior courts. See: Section 6(5), Constitution of the Federal Republic of Nigeria, 1999.

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justice system has become an effective obstacle to efficient justice delivery! A locus classicus in this respect is the case of Ojinnaka Uzoechina v. Sunday Ononye.20 The case was commenced in 1975 at the State High Court. 32 years after its commencement, the case is still being heard at the High Court after vacillating from one judge to another. Interestingly, the original parties who are long deceased have been substituted with their surviving offspring. Arbitration has not escaped the scathing strictures. The arbitration regime is an integral part of Nigerias civil justice system. 19 years after the Arbitration and Conciliation Act (ACA) was passed, it is clear that the legislation has not achieved the objectives that inspired its enactment. Inelegant draftsmanship 21 and the unconstitutionality of some of the provisions22 have created confusion and generated conflicting or retrogressive judicial decisions. Outmoded concepts and definitions have prevented the arbitral process from keeping pace with contemporary trends in international trade and commerce. Above all, experience shows that the ACA has failed to achieve one of the underlying philosophies of the UNCITRAL Model Law, viz: to minimize judicial intervention in the arbitral process.23 In Nigeria, arbitration is often perceived as a first step to litigation, and the arbitral process often becomes entangled in the extremely protracted and cumbersome process of litigation. The judicial process itself presently lacks the capacity to give efficient support to the arbitral process.24 Support is lent to this view by Fagbohunlu who posits that:

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Suit No: 0/185/75 at the Onitsha Judicial Division of the Anambra State High Court. The subject-matter of the case is a parcel of land in my village. See also: Ariori v. Muraimo Elemo (1983) 1 SCNLR p. 1, where the case commenced sometime in October 1960 and ended its first phase at the Supreme Court in 1983 (after 23 years), only for a retrial to be ordered!21

Sections 4 & 5, 12(2), 33(a), 44, 45, 49 and 50, ACA Sections 7(4) & 34, ACA. See also: Idornigie (2002a)

22

23

Article 5, UNCITRAL Model Law on International Commercial Arbitration. Nigeria was the first country in Africa to adopt this Model Law on 14 March 1988.

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Uzoechina, Okechukwu Lawrence ...arbitral proceedings have often been interrupted or frustrated by interlocutory court skirmishes spanning inordinately lengthy periods, and enforcement of arbitration awards have been similarly frustrated.25

Presently, the conclusion of an arbitration process in Nigeria is often the precursor of an average 9.3 years litigation process from the High Court to the Supreme Court, to either enforce or set aside the arbitration award.26 The second limb of our diagnosisthe issue of the cost of litigation and arbitration may be concomitant to the tardiness of the processes. As such, the longer it takes to resolve a dispute, the more expensive the process becomes. Let us adopt a loose interpretation of the word cost. Cost could be tangible or intangible. Tangible costs relate to the monetary commitment to the process. Under the adversarial system as represented by litigation and arbitration, parties to a dispute personally expend substantial amount of resources before, during, and sometimes even after the trial. Parties bear the expense of sourcing their evidence and ensuring the attendance of witnesses; pay the fees for originating processes and record of proceedings on appeal; pay lawyers and arbitrators fees, including transportation to the court or tribunal on every adjourned date; bear travel and accommodation expenses where the place of arbitration is a foreign country or where the case is being heard out of jurisdiction. There may also be other incidental costs. On the other hand, intangible costs relate to those factors that result due to the adversarial, competitive and lengthy nature of the processes. These include: strained business or family relationship, negative publicity, loss of management time, inter alia. The value of such losses remains largely inestimable. Aside from the parties to a24

Discussion Paper on A Modern Arbitration and ADR Act for Nigeria, by the National Committee on the Reform and Harmonization of Nigerias Arbitration and ADR Laws, in April 2006, p. 4 thereof.25

Fagbohunlu (2006)

26

The result of the study is attached as APPENDIX A, infra. Relatively few decided cases are reported on arbitration. This is due to the confidentiality of arbitral proceedings and the finality of the award. Only when an award is challenged does the chance of it being reported become real.

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case, the judicial system per se and the entire nation also share the burden occasioned by the inefficiency and growing unattractiveness of the Siamese options of litigation and arbitration. Thus, there is a growing loss of confidence and public dissatisfaction with the judicial system in Nigeria, and a discouragement of trade and foreign direct investment.27 However, litigation is not an inappropriate dispute resolution process in all cases. Reflective of its Jekyll and Hyde reputation, there are still instances where litigation, regardless of criticisms relating to time and cost, remains the best-suited process. Some instances are: 1. Interpretation of the constitution, statutes and rules. 2. Where legal precedent needs to be set to make a position certain. 3. Questions bordering on crime and criminality, a crime being prosecuted as an offence against the state. 4. Commencement of legal proceedings pending settlement through ADR in order to prevent the action being statute-barred. 5. Emergency situations where injunctive or preventive relief is necessary, for instance to stop an absconding defendant or wilful damage to property. 6. In addressing matters of public policy. 7. A frivolous claim that will most readily be dismissed by the court.

Lessons Learnt: Back to Our Roots! Imprecise forms of ADR (customary arbitration) existed in African societies long before the advent of Western colonialists. Therefore ADR is not a foreign concept. The only thing that is new is the refinement, repackaging and reintroduction of what was originally ours, in order to keep up with the changing times. In fact, traditionalPage17

27

On the application of ADR to promote investment, see: pp. 56-59, infra.


concepts of dispute resolution which seek to promote peaceful coexistence and stability in the society are beginning to re-emerge at both local and international levels, and even as elements of criminal justice system, due to the inadequacy and inefficacy of adversarial modes of dispute resolution. Practical applications of ADR principles and skills to improve governance include: structuring dispute resolution mechanism to promote conflict prevention and peacebuilding; the use of Truth and Reconciliation Commissions in post-conflict reconciliation; the introduction of plea bargain and the concept of restorative justice in criminal justice administration. 28 Ingrained in these processes are variants and hybrids of ADR. The traditional role of elders in resolving communal conflicts and local skirmishes has been elevated and borrowed in international relations. 29 The elder tradition is symbolic of the belief that elders hold the key of experiencewith which comes wisdom and respectthrough which progress can be achieved. Elders are consulted in almost every matter in life. Ghana, a beacon of peace in troubled West Africa, has evolved a systematic integration of traditional rulers into the nations legislative assembly in a way that ensures consultation.30 The Economic Community of West African States (ECOWAS) recently inaugurated a committee of special mediators, aptly called the Council of Elders.31 The Councilwhich engages in preventive diplomacy targeted at preventing the escalation of conflict in ECOWAS member statesis composed of eminent but neutral persons from various segments of the West African society, including women, political, traditional and religious leaders. By casting the mediators in elders role, this tactic seeks to appeal to the social norm of giving deference to elders.28

See generally: Chapter 4, infra.

29

See also: Article 33, United Nations Charter 1945; Section 19(d), Constitution of the Federal Republic of Nigeria 199930

31

The Council has been renamed Council of the Wise.

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William (2004), p. 13


The test of natural justice (nemo judex in causa sua) in customary arbitration has also been reconsidered on the ground that the standard of natural justice in England may not be natural justice in Africa. What is natural in Africa is this: societies are closely knit units, and interpersonal interaction is inevitable. To maintain social order, an elder, a chief or village head is usually concerned, and may intervene in the personal affairs of his wards. Therefore some arbitrators over disputes would not only have prior knowledge of the dispute, but may also have prejudices in the matter.32 It would only be a misnomer in such circumstance to require the same standard of neutrality or detachment as in a court. Since the Privy Council ceased to be the apex court in Nigeria, the Supreme Court has taken every opportunity to clarify this position. Legal and judicial reform should, to the extent possible and acceptable, build upon the judicial traditions and existing regulatory institutions of a particular society. Attempts at legal transplanttaking a law or system from a developed society and imposing it in a different social and cultural settingwill only lead to a rupturing of the organic link between law and society. The creativity and flexibility that has been demonstrated in the rapprochement between the Western concept of justice and traditional ADR principles in problem solving gives one hope that societies in Africa are learning to adapt what they have to meet their peculiar needs and circumstances. This is the bedrock of Appropriate Dispute Resolution.

32

Per Akpata, JSC in Ohiaeri v. Akabeze [1992] 2 NWLR (pt. 221) 24; Igbokwe v. Nlemchi [1996] 2 NWLR (pt. 429) 185; Uzoewulu v. Ezeaka [2000] 14 NWLR (pt. 688) 629

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CHAPTER TWO VIABLE ALTERNATIVES: THE ADR PARADIGM

The notion that most people want black-robed judges, well-dressed lawyers and fine-panelled courtrooms as the setting to resolve disputes is not correct. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible. Chief Justice Warren Burger33

The Place of ADR in Justice Delivery

T

here is a timeless saying that justice delayed is justice denied. This saying albeit hackneyedcannot be more apposite in any other jurisdiction than in

Nigeria.34 Based on the attendant costs, delays and frustrations inherent in the adversarial nature of litigation and arbitration, parties have increasingly sought recourse to more collaborative and user-friendly methods of problem solving. People were becoming dissatisfied with the negative effect of the processes which see disputes in terms of right and wrong, and the disputants as either winners or losers. This need was filled by the formalization of and recourse to Alternative Dispute Resolution processes. Considering abundant provisions in our laws that recommend and mandate the use of alternatives to litigation, the law itself admits that it is not always appropriate or effective in resolving every conceivable case.33

Quoted in: Ogunyannwo (2005), p. 6

34

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However, in the recent past, Nigerian courts have succeeded in resolving some landmark cases bordering on constitutional interpretation in record time owing to political expediency and the need to preserve our nascent democracy. See for instance: Atiku Abubakar v. Attorney General of the Federation C.A., delivered on 20 February 2007; Hon Inakoju & 17 Ors. v. Hon. Adeleke & 3 Ors. S.C., 272/2006, delivered on 7 December 2006. See also: Role of the Court of Appeal in the Sustenance of Nigerias Democracy and Constitutionalism, The Guardian, Tuesday, 6 March 2007, p. 80.


Alternative Dispute Resolution35 (ADR) is a convenient tag for a wide spectrum of dispute resolution options or mechanisms which exist as supplements to traditional litigation (and arbitration). The processes are designed to aid parties in resolving their disputes without the need for formal judicial proceedings. ADR provides opportunity to resolve disputes creatively and effectively, using the process that best handles a particular dispute. It is useful for resolving many disputes that never get to court, and can potentially be applied in settling 90 to 95 percent of cases that are filed in court today.36 Even where there are no delays in litigation, ADR is a necessary component of justice delivery. This is so because it is not all disputes that seek to establish legal right and wrong, which is the basis of litigation.37 Most disputes are interest-based and therefore will be resolved only when there is mutual satisfaction of the interests of the parties involved. The introduction and institutionalization of ADR in our laws and in our judicial system through the Multi-Door Courthouse seek to achieve a dual purpose: 1. To seek viable alternatives to litigation and arbitration in resolving disputes, primarily in terms of increasing speed and reducing costs; and 2. To boost the efficiency and effectiveness of our courts system by unclogging its wheels to better handle cases well-suited to litigation. The latter is only a corollary of the former. Litigation/arbitration and ADR can be likened to the simple mechanism of a pair of scissors. A single blade of the scissors employed in isolation can only scrape and scratch and struggle to cut the Gordian knot, but its struggle will be all too evident. Such was the case in Nigeria until a few years ago.

35

Other known aliases for this term include: Amicable Dispute Resolution, Appropriate Dispute Resolution, and Effective Dispute Resolution. These variants only indicate differences in points of emphasis, but the meaning remains unchanged.36

Aina (2003), p. 335 Hence the legal maxim: ubi jus ibi remedium (where there is right, there is remedy).

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The ADR Menu Generally, ADR processes are marked by their voluntariness, flexibility, privacy, non-judgemental nature, and party participation in problem solving. Since the parties become part of the solution to their problem, the positive feedback engenders a high rate of satisfaction with the outcome, and a concomitant rate of compliance with the terms of settlement. ADR processes are now so attractive and widely embraced by practitioners and litigants alike that there is almost a tendency to see them as offering full proof solution to the vicissitudes associated with the court system.38 To better appreciate their nature, let us examine some of these alternative processes, however sketchy.

Core Processes Negotiation Parties negotiate whenever they are involved in direct discussions with a view to reaching an agreement. Notable ADR proponent, Professor Frank Sander, defined negotiation as communication for the purpose of persuasion.39 In most cases, parties to a conflict would usually first explore the chance of resolving the dispute themselves. Direct negotiation between the parties (or their representatives) is at the heart of all participatory alternatives. Negotiation may be in face-to-face meetings, while haggling in the market place, at a conference of diplomats, by exchange of letters, through telephone conversations, in pre-trial settlement conference fixed by a judge, or when exploring out-of-court settlement. Business executives, lawyers and even nations regularly negotiate a wide variety of contracts, entitlements and other transactions. The disputants retain control over both the process and the outcome.

38

Gadzama (2004) Goldberg, Sander & Rogers (1992), p. 17

39

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Sometimes parties negotiate without realizing it. However, people negotiate better when they are aware of the process and are skilled in the art of negotiating. Principled negotiation focuses on the underlying interests of the parties as distinct from their conflicting positions on the issues, and utilizes a problem-solving method characterized by brainstorming for outcomes to which both parties can say yes. 40 Mediation41/Conciliation Mediation is negotiation assisted by a third party. Sometimes the disputants are unable to reach a mutually satisfactory agreement either because they lack good negotiating skills or because they become emotionally attached to their case. In such case, a third party neutral usually referred to as mediator, conciliator or facilitator may be called in to help them overcome such challenges. The mediator does not decide the issues or determine right and wrong, but helps the disputants to resolve their conflict consensually. His roles include: to act as a catalyst for settlement by crystallizing each sides underlying interests; bridge the communication gap by carrying subtle messages and information between the parties; and explore bases for mutual agreement. This is why in some jurisdictions the mediator is referred to as a settlement facilitator.42 Sometimes when a mediation process is prescribed by statute, institutional rules or trade policy, it is referred to as conciliation. The statute may state the mode of appointment of the conciliator who, though is not directly party-appointed, is often a neutral and impartial expert who must be acceptable to both parties.43 Otherwise, the terms are used interchangeably.

40

See: Fisher, Ury, & Paton (1991) See generally: Dean (2007) Plant (2004), p. 246.

41

42

43

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For instance: Section 11(1) (c), Matrimonial Causes Act, Cap. M7, LFN 2004; Section 8, Trade Disputes Act, Cap. T8, LFN 2004. However, conciliation under the ACA is non-consensual and therefore an exception to the general rule.


Hybrid Processes Mini-Trial/Executive Tribunal Mini-Trial is a non-binding mechanism which uses an enlarged forum of executives and senior managers to assist the parties to a dispute to gain better understanding of the issues involved, thereby enabling them to enter into settlement negotiations on a more informed basis.44 The process involves exchange of information before a panel comprising representatives of the disputants (corporate bodies or institutions) who are authorized to reach a settlement. There is usually a neutral third party who, with the rest of the panel, will hear both sides of the dispute and chair a question-andanswer session with all the participants, after which the panel will seek to negotiate a settlement. In most cases, the decision makers might not have been directly involved in the dispute. This gives them the benefit of an open and receptive mind in listening to presentations by their legal advisers and, with the assistance of the neutral third party, they are better able to make a cost-benefit analysis of the options placed on the negotiation table. Early Neutral Evaluation/Expert Appraisal Here, a neutral evaluatorgenerally respected member of the legal profession with experience in the substantive area in issuegives a brief, objective but non-binding opinion early in the dispute. He identifies the main issues, explores the possibility of settlement, and assesses the merits of the claims. Thus, he provides the litigants neutral standards against which they can assess their positions and chances. A similar process for assessing claims in enclave sectors like the construction or Information and Communications Technology (ICT) industry is referred to as Expert Appraisal. The expert will tender an appraisal after investigating the facts and hearing from each party. Prior to agreeing on the expert, the parties may choose toPage24

be contractually bound by the appraisal.44

Brown & Marriot (1993), p. 262


Private Judging/Rent-a-Judge This method combines moot adjudication with elements of neutral facilitation and case evaluation. Another variant of the process in some jurisdictions which makes use of retired judicial officers as third party neutrals is referred to as Rent-a-Judge. This species of private adjudication is yet to take root in Nigeria. The abbreviated process provides the parties an opportunity to test the strengths and weaknesses of their case. The simulated courtroom scenario provides reality testing, and the judge usually gives an opinion on how the case would be decided in court, with a view to enhancing subsequent negotiations between the parties. Depending on the success or otherwise of such venture, the judges decision, by statute, could be made to have the legal status of a real court judgement as is the case in California, United States.45 The potential and wealth of knowledge that has been acquired by some of our retired-but-not-yet-tired judges are being grossly underutilized.46 This step might be considered to be risky and to have far-reaching implications given the level of corruption in high places in our country. But the promise it holds out far outweighs its risk. Settlement Conference/Stakeholder Conference A settlement conference is a meeting of all the necessary parties to a dispute, parties who have a direct or remote interest in the case, and other parties whose interests may be affected by a resolution of the dispute. The convener is usually an authority figure who commands the respect of the parties, and who can use the auspices of his good office to get the various parties to commit to settlement. It is usually employed in settling political disagreements and community disputes. Settlement conference is usually convened for multi-party, complex-issue disputes where a straightforward

45

Allison (2000), p. 163

46

For instance, the erudite and indefatigable Chukwudifu Oputa and Kayode Eso, retired Justices of the Supreme Court of Nigeria, have served on different judicial and quasi-judicial commissions of inquiry since their retirement.

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mediation process will not sufficiently address all the issues. Thus it may involve different levels of deliberative dialogue, co-existential negotiation, caucusing and counselling, mediation, and combine these processes in varying mixes as the case develops. Flexibility and dynamism is the rule. The approach may be power-based, interest-based or rights-based as any stage of the process may require. Settlement conferences are necessarily guided by a moderator, co-mediators or panel of neutrals who may be appointed by the convening authority or on the basis of a quota by the parties depending on the complexity of the case. Success may depend on structuring the processfirst, identifying and grouping the parties, their positions and interests; understanding the root causes, acceleration, and trigger to the problem in order to defuse subterranean landmines; discussing the issues in order of importance and urgency, cause-effect, chronology or thematic relevance so as not to be overwhelm by artificial priorities attached by different parties to different issues on the basis of selectivity; from the discussion of issues, establishing the relationship of each group with other groups in order to identify compatibilities, overlaps, possible trade-offs, divergences and potential clashes; and brainstorming to generate creative options to satisfy, to the extent possible, the real interests of each group. The target need not be unanimous agreement or consensus, but to seek common ground for problem solving in order to achieve the greatest happiness of the greatest number. Being a hybrid process, a settlement conference may be adapted to suit the purpose, but a worthy example in Nigeria would be the proposed populist [but not necessarily Sovereign] National Conference to which interest groups and constituencies would select emissaries to present their case. Other Hybrids Experts have sometimes tried to blend mediation, with its persuasive force, and arbitration, with its guarantee of an assured outcome, into a hybrid process (MedArb). Simply put, it is mediation followed by arbitration where mediation fails toPage26


resolve the dispute or parts of it. Normally, the mediator is not allowed to act subsequently as arbitrator in the same case unless otherwise authorized by the parties. This is to avoid any likelihood of bias: facts revealed to a mediator in confidence at a prior mediation session would tend to prejudice his mind in the subsequent arbitration even though such facts are inadmissible as evidence. There is no watertight compartmentalization of dispute resolution processes as various processes can be combined creatively in this fashion depending on the nature and complexity of the case at hand. For instance, a party may institute action in court in order to compel another unwilling partynow realizing that litigation is a gambleto submit to mediation (Lit-Med) or to explore out-of-court settlement (Lit-Neg). Parties to litigation may even end up at a negotiating table where, after judgement has been delivered, there is a need to detail the unexpressed obligations of each party, agree on a timeline for complying with the judgement of a court, and to foster better relationship between the parties. Such process led to the Greentree Agreement of 12 June 2006 on the land and maritime boundary dispute between Nigeria and Cameroun after the judgement of the International Court of Justice was delivered on 10 October 2002. Thus, post-litigation agreement may remove the bitter aftertaste of litigation. Unlike common law litigation where the parties have to fit their caseno matter how novelinto an already existing court process in order to have access to justice, the beauty of the hybrids lie in the fact that the process may be designed on a caseby-case basis to fit the particular facts and the unique circumstances of the parties. Therefore, just as a golfer selects the appropriate club for the shot, different types of dispute call for different approaches for effective outcome. ADR processes hold out many advantages over litigation and arbitration. Most importantly, they save time and cost less47. For instance, it usually takes an average of three sittings conducted47

See: Allen, T., Prised Out of Court and Into Mediation, @ http://www.cedr.co.uk/index.php?location=/library/articles/, last visited on 14 March 2007.

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within one month for a mediation session to reach the stage of agreement. Some may take less. Moreover, the failure/non-compliance rate is estimated to be about 10 percent.48 However, where proper ADR skills are not applied, there may be delays and waste of time which would consequently escalate the cost.

Enforceability of ADR Settlements It is noteworthy that where the process of mediation or negotiation arises out of court or arbitral proceedings, the mediated agreement or negotiated settlement is adopted by the court as a consent judgement, order or award as the case may be, and enforced as such. However, in a purely consensual model, the terms of settlement would be legally enforceable as binding contract; therefore remedies like damages, specific performance, injunction or promissory estoppel would attach.49 A fine line should also be drawn between a mediated or negotiated settlement as considered above on the one hand and a dispute resolution agreement or clause in a contract on the other. The latter is at best an agreement to attempt to resolve present or future dispute(s) arising out of or in relation to the contract between the parties in their normal course of dealing by negotiation or mediation or the parties preferred mode of resolution, and not exactly an agreement to agree.50 Therefore, a dispute resolution agreement/clause is enforceable only to the extent that a court would exercise its inherent jurisdiction to stay its proceedingswhere a party institutes proceedings in breach of such agreementin order to give effect to the agreement of the parties to use ADR as a first-line process before having recourse to litigation.51

48

These facts were revealed in an interview session with Engr. Segun Ogunyannwo, a pioneer neutral, Abuja Multi-Door Courthouse, conducted on Tuesday, 13 March 2007 in Abuja, Nigeria.49

The case of Akio Abey & Ors. v. Chief Fubara Alex & Ors. [1999] 12 SCNJ 234, is instructive. For general rules on drafting ADR clauses, see: Spencer (2002), pp. 255-275; Pryles (2001) Section 4, ACA, Cap. A18, LFN 2004; Ogun State Housing Corp v. Ogunsola [2000] 14 NWLR (pt. 687) at 431

50

51

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CHAPTER THREE THE STATE OF OUR LAWS AND INSTITUTIONS ON ADR

The solution to case congestion and continued relevance for our courts of law lies less in the expansion of members of the Bench but much more in the expansion of the avenues for justice. Kehinde Aina 52

The Changing Tide

J

ust a decade ago, teaching or recommending ADR to lawyers in Nigeria would have been considered heresy. Even today, the A for Alternative in ADR is often

wrongly construed by lawyers to mean that the proposed processes are second class to litigation: any lawyer worth his salt should not concern himself with ADR. This wrong notion may be attributed to either ignorance or arrogance. Today, our laws and rules of court in Nigeria are replete with provisions that seek to encourage and promote the use of ADR processes.53 Therefore, ADR should not be seen by lawyers as an area that those who wish to may choose to specialize in. It is a core skill in a lawyers toolkit and expands his scope of practice. A lawyer without ADR skills is a misfit, and may leave his client worse off than he was before he sought legal advice. Some lawyers in Nigeria are ignorant of the fact that ignorance of and non-use of ADR methods in appropriate cases may result in professional misconduct! By a joint reading of Rules 15(3) (d) and

52

53

See generally: APPENDIX C, infra.

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Director, Lagos Multi-Door Courthouse, in his Welcome Letter to the official launch of the LMDC on 11 June 2002, at the Lagos High Court, Lagos, Nigeria.


55(1) of the new Rules of Professional Conduct for Legal Practitioners 2007, this is now an ethical issue bearing serious consequence.54 Recent amendments in the Civil Procedure Rules of the High Courts of some states in Nigeria have adopted case management strategies that seek to integrate ADR into court proceedings from the preliminary stages. Lagos State became the trail-blazer in this respect when it adopted the new High Court of Lagos State (Civil Procedure) Rules 2004.55 One of the purposes of the now celebrated pre-trial conference in the new Rules is to promote amicable settlement of the case or adoption of alternative dispute resolution.56 The pre-trial conference is a peace meeting of sorts, of all the parties under the superintendence of a pre-trial judge. The goal of such provision is crystallized when it is jointly read with the guiding principle of the new rules: the achievement of a just, efficient and speedy dispensation of justice.57 Worthy of mention at this stage is the current effort to reform and harmonize Nigerias Arbitration and ADR laws58 to bring it in tandem with its progenitor, the UNCITRAL models.59 One of the guiding principles of the Draft Arbitration and Conciliation Bill is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay.60 However, Part II of the Draft Bill on Conciliation has54

See: pp. 37-39, infra. See generally: Osinbajo (2005) Order 25, Rule 1(2) (c). See also: Order 17, Rule 1, High Court of the FCT Abuja (Civil Procedure) Rules 2004

55

56

57

Order 1, Rule 1(2). Furthermore, the frontloading concept which is another innovation of the new Rules has been applauded as further discouraging dilatory tactics by parties and counsel. See: Order 3, Rule 2(1); Order 17, Rule 1; Fashakin (2004), p. 458

This effort was initiated by the Minister of Justice and Attorney General of the Federation, Chief Bayo Ojo, SAN, in conjunction with USAID-Nigeria REFORMS Project.59

The UNCITRAL Model Law on International Commercial Arbitration (UNGA Resolution 40/77 of 11 December 1985) and the UNCITRAL Model Law on International Commercial Conciliation (UNGA Resolution 57/18 of 24 January 2003).60

Clause 1(b), Part 1; emphasis mine. Novel subjects introduced in the Draft Bill are: appointment of umpires; immunity of arbitrators; application of statute of limitation to arbitration; remedies; consolidation and concurrent hearing; interest; and security for costs.

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been criticized as departing from established ADR principles of flexibility, party autonomy and voluntariness, caucusing and civil immunity of conciliator, and is said to look too much like litigation.61 It remains to be seen whether these concerns will be reflected when, hopefully, the Bill is passed into law. The United States seems to be light-years ahead of Nigeria with regard to laws promoting the use of ADR. Under the Minnesota Rules of Court, nearly all civil legal disputes must go through some type of ADR process prior to trial. 62 In 1990, the US passed two statutes designed to increase the use of ADR by federal agenciesthe Administrative Dispute Resolution Act and the Negotiated Rulemaking Act. ADR as a first resort is also a policy of the executive arm of government. In 1991, President Bush the First issued Executive Order 12278, directing all federal litigation counsel under appropriate circumstances to suggest ADR to private parties and to use ADR to resolve claims against the US. Former President Clinton similarly issued Executive Order 12988 which aimed to improve access to justice. 63 If the US, with the level of development of its legal system, considered it necessary to take such measures, a fortiori, Nigeria, with the grinding pace of our court proceedings and its attendant costs, needs to adopt extreme measures. A landmark in our legal development in Nigeria is the recent institutionalization of the concept of Multi-Door Courthouse in our justice delivery system.64 This concept was developed in the United States in 1976 by Professor Frank Sander, a Professor of Law at Harvard University, who delivered a paper to the National Conference on the Causes of Popular Dissatisfaction with Administration of Justice. To determine which dispute resolution mechanism is appropriate, he set the following criteria: cost, speed, accuracy, credibility and workability. Multi-Door Courthouse supplements61

Randolph (2006), p. 1 See: Mansfield, Tanick & Cohen (2000) See: Aina (2003), p. 346 See: Brown & Marriott (1999), p. 91

62

63

64

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litigation by providing additional doors towards a faster, cost-effective and userfriendly access to justice.65 The Lagos Multi-Door Courthouse (LMDC) was the first court-connected ADR centre to be established in Africa on 11 June 2002. The additional doors it provides include negotiation, mediation/conciliation, arbitration, settlement conference, mini-trial and early neutral evaluation. In 2004, the High Court of Lagos appointed the first ADR Judge in Nigeria in the person of Hon. Justice Candide Johnson. Multi-Door Courthouse was also integrated into the High Court of the Federal Capital Territory, Abuja on 13 October 2003. Similar efforts are still at their infancy or embryonic stages in jurisdictions like Port-Harcourt, Ibadan, Kano and Maiduguri. One of the major benefits of the Multi-Door Courthouse and, by extension, ADR is that it helps in freeing the courts judicial resources for those cases which should not or could not be resolved by the parties themselves. Thus, the Multi-Door Courthouse is a convenient dispute clearinghouse for our bogged down courts system. Also, disputing parties have the option of participating in an informal yet structured process that lessens the costs, time and emotional strain associated with litigation. Between 2002 and 2006, the LMDC handled a total of 268 cases at a turn-around time from filing to case disposal of 3 months. In one case, a trial judge referred the partiesone of which was Nigerias former Vice President, Dr. Alex Ekwuemeto the LMDC after 17 long years in court. The matter was recommended for mediation. The surprise and relief was palpable when the parties signed the terms of settlement the same day!66 The introduction of ADR into the curriculum of the Nigerian Law School in 2002 is a step in the right direction, albeit a belated one. Those who are girded with the responsibility of resolving disputes on a daily basis thus have the opportunity to acquire knowledge and skills in a wide variety of processes outside litigation and65

Aina (2003), p. 348 See: The LMDC Brochure, pp. 16-17

66

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arbitration. As aptly stated by former US Vice-President, Al Gore, If the entire instrument that you possess is a hammer, then every difficulty or problem will surely appear like a nail.67 Such knowledge and skills would widen their horizon as social engineers and prepare them for the daunting challenge facing the Nigerian lawyer in the 21st century.

Prescribing ADR: Who Does What and How?68 Provisions that seek to promote speedy dispensation of justice through ADR abound in our laws and rules of court, no doubt. Yet observations reveal a yawning gulf between such lofty ideals as codified in our rules and stark reality as regards actual compliance with the rules. Such provisions are often construed as permissive instead of obligatory. In what circumstances and by what means should one invoke such rules and provisions?

Duty of the Court Section 18 of the High Court Act of the Federal Capital Territory, Abuja69 provides that: Where an action is pending, the court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof. Thus, the law establishing the court gives the court a managerial role and the enabling jurisdiction to have recourse to ADR when the court is seized of a matter. Looking closely at the operative words in this section, the courts should, as a matter of deliberate policy, actively promote, encourage and facilitate ADR whenever the case is67

Al Gore (2001)

68

69

Cap. 510, LFN (Abuja) 1990

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The limited volume of this paper would not allow a full consideration of the High Court Laws, Magistrates Courts Laws, Civil and Criminal Procedure Rules, Practice Directions, judicial pronouncements and relevant Laws made by the Houses of Assembly of every State in Nigeria bordering on ADR. Therefore this section of this paper is only anecdotal and should guide further research in our still growing body of laws.


appropriate. Procedurally, Order 17(1) of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2004 states categorically that:A Court or judge, with the consent of the parties, may encourage settlement of any matter(s) before it, by either (a) Arbitration; (b) Conciliation; (c) Mediation; or (d) any other lawfully recognized method of dispute resolution.

Bearing in mind that the new Rules was adopted at the same time that ADR practice was integrated into the Abuja judicial system through the Multi-Door Courthouse, encouragement of settlement by a court therefore envisages referring parties to this court-annexed ADR centre. However, this does not preclude the parties from noncourt-annexed ADR centre or any other informal forum for out-of-court settlement, so long as the method employed is within the bounds of the law. A locus classicus in both substantive and procedural provisions promoting the use of ADR is found in Sections 11 and 30 of the Matrimonial Causes Act. 70 Realizing that a married couple usually come from different backgrounds and with different sets of experiencesand that this remains a potential source of conflictthe Act seeks to preserve the sanctity of matrimony. In order to discourage litigation and encourage amicable dispute resolution during the norming stage in matrimony, Section 30(1) of the Act stipulates that a petition for dissolution of marriage cannot be presented within 2 years after the date of the marriage except by leave of court in special circumstances.71 A court before which a matrimonial cause is instituted is mandated to actively promote reconciliation from time to time during the proceedings. 72 In70

Cap. M7, LFN 2004

71

72

Section 11(1), MCA

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See: Akere v. Akere (1962) WNLR 328


addition, if at any time it appears to the judge either from the nature of the case, the evidence in the proceedings or the attitude of the parties, or of counsel, that there is a reasonable possibility of such reconciliation, the judge may do all or any of the following: a. adjourn the proceedings to afford those parties an opportunity of becoming reconciled out of court (encouragement); b. with the consent of those parties, interview them in chambers, with or without counsel, with a view to effecting a reconciliation (facilitation); c. nominate an experienced marriage conciliator, or in special circumstances, some other suitable person, in order to endeavour to effect a reconciliation (promotion). The court also has a duty to promote reconciliation among the parties by: giving effect to the provisions of other laws prescribing and mandating the use of ADR in specific instances;73 adopting and enforcing the terms of settlement of the parties as consent judgement; staying court proceedings in order to give effect to a prior agreement of the parties to use ADR as a first-line process for dispute resolution before resorting to litigation;74 and the recognition and enforcement of negotiated settlement or mediated agreement between contracting parties to promote sanctity of contract and business efficacy.75 As a settlement facilitator, the judge may hold a settlement conference with parties in chambers as the judge thinks proper with a view to resolving the matter. For states that have adopted the compulsory pre-trial conference procedure, facilitating amicable settlement is mandated before commencement of trial. Order 25(1) (2) of the High Court of Lagos State (Civil Procedure) Rules mandates the court to:

73

See generally: APPENDIX C, infra. See: Section 4, Arbitration and Conciliation Act, Cap. A18, LFN 2004 See: Akio Abey & Ors. v. Chief Fubara Alex & Ors. [1999] 12 SCNJ 234

74

75

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Uzoechina, Okechukwu Lawrence ... cause to be issued to the parties and their Legal Practitioners (if any) a pre-trial conference notice as in Form 17 accompanied by a pre-trial information sheet as in Form 18 for the purposes set out hereunder: (b) giving such directions as to the future course of the action as appear best adapted to secure its just, expeditious and economic disposal; (c) promoting amicable settlement of the case or adoption of alternative dispute resolution.

The full tenor of this procedure will become clearer with its espousal in case law. Going against the unspoken rulebook, Section 17 of the Federal High Court Act76 tagged Reconciliation in civil and criminal cases77offers an entry point for applying ADR principles in criminal cases. The Section provides that: In any proceedings in the Court, the Court may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof. Thus, while Section 18 of the High Court Act of the Federal Capital Territorywhich is on all fours with the foregoing provisionremains silent on the criminal aspect, Section 17 of the Federal High Court Act is unequivocal. Adopting the literal rule of interpretation, promoting reconciliation among the parties to a criminal case would involve victim-offender mediation; and facilitating amicable settlement of a criminal case encompasses plea bargain. However, the extent to which this provision may avail an offender who is charged with a felony or capital offence is not clear as amicable settlement of such caseswhich may tantamount to an acquittal without trial, or a judicial prerogative which erases any criminal recordwould be clearly contrary to public policy. 78 Where the offence is a misdemeanour or other simple offence, Magistrates and

76

Cap. F12, LFN 2004

77

78

For the application of ADR in the enhancement of criminal justice administration, see: pp. 59-62, infra.

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Although the main purpose of marginal note/head note in a statute is to expedite reference, in clear cases, it serves as a pointer to the scope of the particular section.


District Courts are often given wider case managerial powers. For instance, Section 26 of the District Courts Act79 of the Federal Capital Territory, Abuja provides that:A District Court shall, so far as there is proper opportunity, promote reconciliation among persons over whom the court has jurisdiction, and encourage and facilitate the settlement in an amicable way and without recourse to litigation of matters in difference between them.

District Courts are lower in hierarchy than the High Courts, and usually operate at a level where speedy but adapted dispensation of justice as a means of maintaining and restoring social order is a desideratum.

Duty of Counsel Rule 15(3) (d) of the new Rules of Professional Conduct for Legal Practitioners (RPC) 2007 provides that:(3) In his representation of his client, a lawyer shall not (d) fail or neglect to inform his client of the option of alternative dispute resolution mechanisms before resorting to or continuing litigation on behalf of his client.

This novel provision places a mandatory duty on a lawyer in his privileged and bona fide relationship with his client to advise the client to consider ADR as a primary process. Ideally, this information should be conveyed to the client before counsel institutes proceedings in court on behalf of the client. To underline its importance, this duty as it subsists even when litigation has been commenced until discharged. Thus the provision allows counsel some opportunity to remedy his omission during the pendency of the action. More so, the continuing duty may be a transitionalPage37

consideration that will be extended to cases commenced before 7 February 2007.79

Cap. 495 LFN (Abuja) 1990. Emphasis mine.


The seeming irregularity in lumping together of the dual role of representation of client and advising client before resorting to litigation is understandable given the context of legal practice in Nigeria. A lawyer, upon call to the Bar, is certified fit and proper to act as both a solicitor and advocate. In other jurisdiction where the same job description is split into two offices, a solicitor usually: accepts brief from a client; does the necessary legal documentation; gives legal advice to the client, including choosing ADR options or referral to an advocate to institute legal proceedings where appropriate. In the United Kingdom for instance, advice as to ADR options would have come from the solicitor before an advocate takes over a clients case. Lawyers are not so lucky in Nigeria: representation of a client in any case commences upon accepting brief from the client. Hence, counsel has a continuing duty of informing the client of options of ADR mechanisms in the course of performing his overriding duty of representing the client. Where counsel has discharged this duty, the decision whether to adopt ADR or not is left to the client, thus preserving the voluntariness of ADR. However, the duty on counsel partakes of the nature of strict liability as oversight or disregard is no excuse. Unlike judges, no judicial immunity covers counsel in the case of failure or neglect. In fact, breach of this duty attracts sanction in view of Rule 55(1) of the RPC:If a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975

This provision is a codification of the decision of the Legal Practitioners Disciplinary Committee in the case of Onitiri v. Fadipe.80 Although not every breach of the RPC will attract the maximum punishmentstriking off the erring practitioners name from the Rollas no precedent yet exists on this issue, the breach of this duty could80

(Unreported) Charge No. LPDC/IP/82

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attract suspension or warning before the ultimate axe is wielded. As though the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004 was pre-empting the RPC, it provides that a certificate of pre-action counselling signed by both counsel and his clientshowing that the client has been appropriately advised as to the relative strength and weakness of the casebe filed along with the writ where proceedings are initiated by counsel. Counsel shall be personally liable to pay the cost of the proceedings where it turns out to be frivolous.81 Lawyer beware! Also, befitting his role as a priest in the temple of justice, counsel has a duty to bring to the attention of the court any legal authority (statutory provisions and case law) promoting, recommending and mandating the use of ADR which has a bearing on the clients case. This should be the case even where the authority is directly adverse to the position of his client.82 Also, counsel should not turn a blind eye to relevant authority on ADR just because he wishes to pursue litigation. Die-hard litigation lawyers who are ignorant of, or not sufficiently knowledgeable or skilled in the use of ADR processes may fear that they could lose their clientand therefore the legal fees/retainerand thus prescribe litigation even where the case requires ADR. The proper thing to do in such instance is to associate with himself another lawyer who is ADR-compliant, on that case.83 Better still, a lawyer should aim to improve his competence and expand the scope of his practice by professional training in ADR methods. Furthermore, a lawyer should promote ADR and assist in preventing conflict by advising his client to insert ADR clause in contractual agreements. Needless to say, the lawyer should be detailed and specific in drafting such clauses in order to promote certainty and guarantee enforceability. Where a client appoints counsel to81

Order 4 Rule 7 thereof.

82

83

As per Rule 16 (1) (a), RPC

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Rule 32 (2) (a), RPC


represent him in a negotiation or mediation or any other ADR processas opposed to acting as the third party neutralthe general professional duty of counsel to act in relation to his clients with diligence and to exercise competence, care and skill in the matter would attach.84 Before, during and even after such ADR process, counsels duty to preserve clients confidences subsists. All oral or written communications made by the client in chambers or at an ADR session are to be treated without prejudice and may not be tendered in evidence in subsequent court proceedings. This rule of silence also extends to a lawyers employees, associates and the clients witnesses if any. In jurisdictions where ADR is made compulsory in some categories of cases, counsel is required, as a condition precedent to commencing proceedings, to tender in court a form verifying attempt to resolve the dispute through ADR.

Duty of Third Party Neutral Unlike the legal practice and litigation, there is today no law regulating the practice and procedure of ADR processes in Nigeria except, to a very limited extent, the Arbitration and Conciliation Act85 (with its annexed Arbitration and Conciliation Rules) which applies only to the settlement of commercial disputes.86 The provisions of the Act itself are not iron-clad as they are made subject to the agreement of the parties, thus respecting the fundamental principle of party autonomy. The reason for this fluid state of affairs is inherent in the nature of ADR: ADR is voluntary, flexible, private and confidential, and informal. Therefore any conceivable law seeking to regulate the conduct of ADR processes will meet with challenges in monitoring and implementation. However, ADR is neither conducted in vacuum nor with utter disregard to acceptable standards of practice. The closest to legal regulation in this

84

Rule 14 RPC; Section 9 LPA; UBA v. Taan [1993] 4 NWLR (pt. 287) 368 at 381 Cap. A18, LFN 2004 See the long title of the Act.

85

86

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field are practice directionsinstitutional rules guiding the conduct of mediation, arbitration and other ADR processes before the Multi-Door Courthouse or particular institutions that promote the use of ADRand codes of conduct seeking to promote best practice among the pool of experts (panel of neutrals) usually maintained by such institutions. These only approximate to procedural guides and not law, the strictest sanction in most cases being the striking off of the erring neutrals name from an institutions list of neutrals. Judges and lawyers who are appointed by the parties to serve as neutrals on their case are therefore to act not in their capacity as members of the legal profession nor judges as to which side is right or wrong in the dispute, but have a role to promote amicable settlement on the terms of the parties themselves. It is important to stress this point because lawyers are more disposed to approaching disputes as zero-sum equations due to their fixed adversarial mindset. A lawyer may therefore find it uncharacteristic to ditch his wig-and-gown personality in assuming a neutral role. The initiative for standardization in this field came from three professional groups: the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution. The aim was to develop a set of standards to serve as a general framework for the practice of ADR in order to promote public confidence in its dispute resolution utility. However, in some cases, the application of these standards may be subject to laws or contractual agreements. The standards are set out hereunder, with comments and necessary generic modifications.87 Self-Determination A neutral shall recognize that ADR is based on the fundamental principle of selfdetermination. This requires that the process rely upon the ability of the parties to reach a voluntary, un-coerced agreement. The neutral may provide informationPage41

87

See: Ogunyannwo (2005), pp. 166-173


about the process, raise issues, and help parties explore options. Any party may withdraw from ADR at any time. Impartiality A neutral shall conduct the process in an impartial manner. The concept of thirdparty impartiality is central to the ADR process. A neutral shall handle only those matters in which he or she remains impartial and even handed. The quality of the process is enhanced when parties have confidence in the impartiality of the neutral. If at any time the neutral is unable to conduct the process in an impartial manner, he or she is obliged to withdraw. Conflict of Interest A neutral shall disclose all actual and potential conflicts of interest reasonably known to him or her. A conflict of interest is a dealing or relationship that might create an impression of possible bias. After disclosure, the neutral shall decline to act unless the parties choose to retain him or her. The need to protect against conflicts of interest also governs conduct that occurs during and after the mediation. Without the consent of all the parties, a neutral shall not subsequently establish a professional relationship with one of the parties in a related matter, or in an unrelated matter under circumstances which would raise legitimate questions about the integrity of the mediation process. Competence A neutral shall act only when he or she has the necessary qualifications to satisfy the reasonable expectation of the parties. Any person may be selected as neutral; provided that the parties are satisfied with the neutrals qualifications. Training and experience in ADR, however, are often necessary. A person who offers himself orPage42

herself as available to serve as neutral gives parties and the public the expectation that he or she has the competence to act in that capacity effectively. In court-


connected or other forms of mandated ADR, it is essential that neutrals assigned to the parties have the requisite training and experience. Confidentiality A neutral shall meet the reasonable expectations of the parties with regard to confidentiality. The parties expectations of confidentiality depend on any agreement they may make and the circumstances of the case. Since the parties expectations regarding confidentiality are important, the neutral should discuss these with the parties. A neutral shall not disclose any matter that a party expects to be confidential unless given permission by all parties concerned or unless required by law or other public policy to do so. If a neutral holds private sessions (caucuses) with each party, the nature of these sessions with regard to confidentiality should be discussed prior to holding such sessions. Importantly, the presence or absence of other persons during the process depends on the agreement of the parties and the neutral: they may agree that other persons be excluded from particular sessions or from the entire process. Confidentiality should also be construed to limit or prohibit the effective monitoring, research or evaluation of ADR programmes by sponsors or donors. In appropriate circumstances however, researchers may be given access to statistical data and, with the permission of the parties, to individual case files, observations of live sessions, and interviews with participants. Quality of the Process A neutral shall conduct the process fairly, diligently, and in a manner consistent with the principle of self-determination by the parties. A neutral shall work to ensure a quality process and to encourage mutual respect among the parties. A quality process requires a commitment by the neutral to diligence and procedural fairness. There should be adequate opportunity for each party to participate actively.Page43

As an aid in managing the process, neutrals are allowed to set ground rules stating clearly to the parties acceptable conduct during the process. Before commencing, a


neutral should also ensure that parties have full authority to settle the dispute so that the process will not amount to an exercise in futility. The parties may decide when and under what conditions they will reach an agreement or terminate the process. A neutral shall withdraw from the process or postpone a session if the process is being used to further an illegal purpose, or if a party is unable to participate due to physical or mental incapacity. Quality of Settlement To this list of desirables, one also needs to add the duty of a third party neutral to ensure that settlement is conclusive. Where a neutral succeeds in moving the parties to a dispute to settlement, he has a duty to draft the terms of settlement in clear terms understandable to the parties. The terms of settlement should also be certain to guarantee durability and enforceability. In most cases, the quality of settlement depends to a large extent on the quality of the process. Where the process has been participatory and the neutral helps the parties to build trust, freely express their interests in the matter, and adopt a collaborative problem-solving approach, then the settlement will only be a product of the parties efforts. As such, the parties will be willing to comply with the terms of settlement. May it Please the Law! Neutrals are not lawyers. A neutral should refrain from giving legal advice. Where appropriate, he or she should recommend that parties seek outside professional advice, or have the benefit of legal representation during the process, or consider resolving their dispute through other legally prescribed process. Even where a lawyer acts as neutral, the role of an impartial neutral should not be confused with that of a lawyer who is an advocate for his client.

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CHAPTER FOUR RELEVANCE OF DISPUTE RESOLUTION IN GOVERNANCE

ADR skills are life skills and are transferrable. Virtually all fields of human endeavour have dispute components in respect of which ADR processes offer better solution. ADR is not just an area of specialization; it is an essential aspect of every area of specialization. Since conflict is an inevitable component of human relationships, ADR will continue to be a necessary part of human existence. Kevin Nwosu88

Instrument for Democratic Governance

A

credible and sound democratic culture is not conceivable without the full integration of dispute resolution into the body polity. Democracy itself is a

potpourri of instruments for conflict management and dispute resolutiondecision making based on majority vote, the rule of law, horizontal separation of powers and checks and balances, vertical distribution of powers among the tiers of government in a federal structure, resource redistribution and revenue allocation formula, federal character, political coalition and alliances, and maybe rotational presidency. The summation of all these instruments in a constitutional democracy is the grundnorm. Let us indulge in a little historical fancy. Before recorded history, small but selfcontained human groupings had little need for complex rules regulating social conduct. Behavioural norms were passed down from one generation to another largely through observation, emulation and correction. Oral tradition was a veritablePage45

supplement, especially in propagating new rules of conduct. There was probably a88

Director, SETTLEMENT HOUSE, Abuja in SETTLEMENT HOUSE Brochure, p. 2


recognized authority figure or patriarch who saw to the settlement of disagreement between and among group members, and led interaction with outside groups where necessary. As the population of the small group multiplied, the needs of its people became less easy to satisfy, and emigration and resettlement became unavoidable. Distancing reduced the intra-group tension and created new territories and spheres of influence. With the opening-up of such small groups, interaction with a greater number of outside groups became more penetrating: the occurrence and intensity of conflict escalated due to increased competition for power, scarce resources, and wide differences in language, values and worldviews. During this epoch, self-help, battle and conquest were the common means of resolving conflict. But conflict resolution came at a great cost. Then the light bulb went on in the head of one long-forgotten genius: Let us make unto ourselves a rulebook to guide future conduct, specify the rights and obligations of every man in the province, and regulate competition for power, so that we can refer to this rulebook whenever a dispute or conflict arises in the future. He sold his conviction to others with much persuasion. This social contract became the genesis of present-day constitutional democracy. With trial-anderror and proven efficacy of the social contract, the rules were expanded and became generally accepted as social norms, and with the passage of time the rulebook became ossified as the grundnorm. Other societiesby sheer conquest, colonization, assimilation or outright importationcame to adopt and depersonalize this model for general applicability and durability. Adaptations were often made where local conditions warranted it: thus the rulebook may be written or largely unwritten, rigid or flexible in amendment, sanction a unitary or federal state, or adopt presidential or parliamentary system of government. This is fiction, but it is plausible fiction. Back to reality! Nigerias 1999 Constitution, though not autochthonous, reflects a complex instrument for managing the divergent interests of its diverse peoples. First,Page46

Nigerias three-tiered federal structure is a power container which regulates friction that would otherwise correspond to the age-long battle for territoriality and spheres


of influence among feudal overlords, l

appropriate dispute resolution

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