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ABSTRACT

Court-connected Alternative Dispute Resolution (CCADR) or Multi Door Courthouse (MDC), adopted by two Nigerian States and the Federal Capital Territory, is the integration of Alternative Dispute Resolution (ADR) into the court system to facilitate access to justice. Several studies have examined the operations of the three MDCs in Nigeria, but studies on their practice and procedure in Nigeria compared with those in the United States of America (USA) and the United Kingdom (UK) have not been undertaken. This study, therefore, examined the practice and procedure of existing MDCs in Nigeria, and compared same with those in the USA and UK to identify the inadequacies in Nigerian laws. The study adopted the theory of Access to Justice. The provisions on dispute resolution in the Constitutional Statutes of Nigeria, the USA and the UK were examined. Three High Court laws, three High Court (Civil Procedure) Rules and three practice directions on the procedure for MDCs were examined. Fifty-seven cases (17 Nigerian, 11 American and 29 British) and relevant legal texts on the practice of ADR were purposively selected. These were subjected to interpretive and comparative analyses. The MDCs were introduced into the judiciaries of Lagos and Akwa-Ibom States, and Abuja (as LMDC, AKMDC and AMDC respectively) through the amendment of the existing High Court Laws and Civil Procedure Rules to encourage referral of cases to ADR. This was the same approach adopted in the USA and the UK. Specific ADR Rules and Practice Directions were enacted to support the process; only Lagos had enacted an MDC law which was consistent with the practice in the USA and the UK. The courts’ supervisory procedure varied: LMDC operated as private-public collaboration, and the staff was not affiliated to the State judiciary; the AKMDC and AMDC were integrated with the State judiciary, manned by judiciary staff and subject to the same supervision as that of the regular judicial staff. This was also the predominant procedure in small claims courts in the USA and the UK. The CCADRs in all the countries had trained ADR personnel who conducted the ADR process but also maintained ad hoc ‘accredited’ neutrals. They all recognised pre-trial referrals, and, where not expressly stated in the Rules, allowed referrals after trial had commenced. In all the countries, settlement outcomes were contracts simpliciter which, once endorsed by an ADR judge, became a judgment of the court. The USA and UK practice differed from vii Nigeria’s in terms of mandatory participation by disputants based on amounts claimed and the annexation to their summary trial courts. The operations of the Multidoor Court house in Lagos and Akwa-Ibom States and the Federal Capital Territory of Nigeria are similar in terms of annexation and voluntariness, but differ in respect of their engagements of neutrals. They all diverge from the practice in the USA and the UK with regard to non-voluntariness of participation. For better access to justice through MDCs in Nigeria, there must be automatic referrals to ADR. Key words: Access to justice, Court-connected alternative dispute resolution, Legal practice and procedure, Nigerian judiciary, USA and UK judicial systems

CHAPTER ONE

INTRODUCTION

Abraham Lincoln, a former President of the United States once said: Discourage Litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often the loser – in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.1 In the process of interacting with one another, disputes are bound to arise. One of the major functions of law, therefore, is to provide reliable and objective systems for members of the society to resolve their disputes. These dispute settlement systems which differ from one society to another are from time to time evaluated and assessed with the goal of introducing reforms that can improve the system. Integrating Alternative Dispute Resolution (ADR) into the court system as done in jurisdictions such as the United States of America and the United Kingdom is one approach that those societies have adopted to improve their systems of dispute resolution. Nigeria (beginning with Lagos State and the Federal Capital Territory), has started taking steps to introduce ADR into the court system. The focus of this research therefore, is to examine why and how ADR should be implemented in the Nigerian Civil System of Administration of Justice. Man has in the past, and it continues till date tended to by nature, settle disputes/differences by resorting to violence2 Conflict is human and ubiquitous, human diversity with our varied needs and desires makes it a given that conflict is bound to arise.3 The term conflict has been described rather than defined by scholars. Thomas refers to it as ‘the processes that begin when one party perceives that the other has negatively affected or is about to negatively affect something that he or she cares about.’4 Olowu describes it as ‘a perceived incompatibility of goals: what one party wants, the other party sees as harmful to its interests.’5 Although conflict can cause distress and is usually viewed negatively, it can function in positive ways. Conflict may motivate an individual to take action and change a situation in ways that improve one’s life and better fulfil one’s self-interests.6 Conflict and its contrary phenomenon, peace, are not random, unexplained incidents, but are created and can be influenced.7 Conflict is dealt with in different ways by different societies and as societies change, so also their method of resolving disputes evolve. In some societies, when rules are broken and the breach is not the subject matter of feud, social order is often maintained by a series of unorganised sanctions such as ostracism, ridicule, avoidance and denial of favours. Among the Yurok Indians for instance, these were supplemented by go-betweens who acted in a positive but non-judicial way in disputes. Their role was primarily that of diplomats.8 Among the Lyhya tribe of western Kenya, the elders intervene and perform a similar role. In such societies, the emphasis is on reconciliation of the parties as much as resolution of a particular dispute since there is a need for continuing contact between the parties.9 A dispute is defined as ‘to quarrel, argue, to question the truth of, to fight hard for.’10 Some scholars have argued that there is a difference between ending a dispute and resolving a dispute. For example, where an object is the subject of a dispute between two people, taking the object away from both ends the dispute. To resolve the dispute, however, would involve deciding who is entitled to the object and on what terms as against the other.11 In most societies today, the formal system of resolving disputes makes it necessary to first discover the true facts. This is referred to as the ‘trial’ method of dispute resolution as opposed to ‘proof. The proof system was what operated in the middle ages, where discovery of facts did not play any role at all, rather what existed were ‘ordeals’.12 During that period, disputants were subjected to ordeals such as burning of their hands by hot iron, if the hand did not fester, then that proved his innocence.13 In Biblical times, especially among the Jews, a man who suspected his wife of unfaithfulness would make a report to the priest who would write curses on a scroll and wash them into bitter water (being a mixture of dust from the temple floor and holy water in a clay jar) and give the woman to drink. If her stomach swells and she miscarries, this proves her guilt, but if she is innocent she will conceive and bear children. 14 African tradition tells of making a woman who is suspected of killing her husband to drink the water used to bathe the deceased, she is expected to die within a given period, and if she survives, she is innocent. Fayemi states that the communal structure of traditional Yoruba societies did not foreclose the insurgence of conflicts; that in traditional Yoruba societies, conflicts are usually managed such that they do not degenerate into violence and armed conflicts.15 The early intervention of the agba (elders) in reconciling the disputing factions usually save conflict situation from escalating into violent situations. Whenever there is disputes between individuals and different parties, primacy is given to restoring the relationships, soothe hurt feelings and to reach a compromise on how to improve future relationships.16 Reconciliation of conflicts is usually seen as a social responsibility by the elders, and this accounts for the Yoruba proverbially saying that agba ki wa loja kori omo tuntun wo (an elder cannot be in the marketplace and allow the reign of chaos). A person who watches while tension mounts between children, adults, groups and any warring parties is not seen as socially responsive. This social responsibility is voluntarily done, and as well as, institutionalised in different ways. For instance, when there is conflict between or among the co-wives in a household, the elderly male or female members intervene, and if they do not succeed, the matter is taken to the Olori ebi (head of the compound). Where the reconciliatory attempt of the Olori ebi (head of the compound) failed, the matter is then taken-up to a higher authority, which is the office of the Baale (head of clan).17 According to Chukwurah, ADR remains the ‘modern version of an ancient practice.’ It is a transformation in the traditional style of conflict resolution. It is not alien to Africans; the only difference is the improved and modernised mode of its implementation.18 According to Sanni,19 such techniques worked because they were acceptable to the parties.20 Dissatisfaction with such subjective processes, however, is what led to the search for objective standards or norms/procedures which would be respected and obeyed by disputants. Procedural justice is, therefore, about the ways provided by society for persons in conflict to be able to talk and struggle with each other about how to move forward even when they disagree.21 Basically, at least three strategies could be identified to resolve conflict: might, right and problem solving.22 Might depends on force to achieve its purposes. For example in some parts of Nigeria, it is not uncommon for some landlords to remove fixtures in a tenanted property to force a recalcitrant tenant to vacate or government officials demolishing ‘illegal structures’ without formal notice to the occupiers. ‘Right’ relies on some recognised authority to decide. It determines who is right and who is wrong; the final outcome is victory for one party and defeat for the other. Both are adversarial in nature. Unlike the first two strategies, problem solving is a collaborative approach to dispute resolution. Rather than seeing the conflict as a battle, parties view it as a problem and decide to talk about it to explore possible ways of resolving it in a mutually satisfactory manner.23 This is the focus of ADR mechanisms. 1.1 Background to the Study Lord Denning in Bremer v. South India Shipping Corp, Ltd24 remarked that ‘every civilised system of government required that the State makes available to all its citizens a means for the just and peaceful settlement of disputes between them.’ A system of civil justice is essential to maintaining civilised society, for law provides the basic structure for commerce and industry to operate, safeguards rights of individuals, regulates their dealings with each other and enforces duties of government.25 One of the functions of law over the years has been the continued strive to evolve an efficient means of resolving disputes in our changing world. The methods which law has evolved can broadly be classified as adjudicatory (or adversarial) and nonadjudicatory. The adjudicatory method is otherwise referred to as litigation. Access to courts to remedy wrongs and enforce legal rights is central to most democracies and has for many decades remained the main dispute resolution mechanism globally.26 It is a formal process requiring that disputants and the witnesses appear before courts or tribunals established by law to resolve their dispute.27 It is a finely tuned system of civil justice.28 The civil system of justice which Nigeria (and many other nations of the world including the United States, Australia, and New Zealand) inherited via its colonial heritage from the British is what has been broadly described as the adversarial system. ‘To many people, but particularly to those who work in it, the adversarial system is a successful set of procedures, practices and institutions that have underpinned a well-functioning social democratic society by maintaining the rule of law and separation of powers. It is a system whose strengths lie in the concepts of the independence of the bar and bench from governments, the autonomy of the parties, the power of examination and cross-examination to elicit facts and in the fact that courts are open to scrutiny and that court officers are disinterested parties in often hotly contested and sensitive disputes.29 As a product of evolutionary, inductive and individually-oriented common law, it is a system that has adopted the pragmatic view that the observance of law rather than the attainment of justice is a more achievable goal for any community’.30 The laws of many countries in the world originate in those of England and France. Legal systems based on the laws of England are typically described as belonging to the Common law tradition, while those based on the laws of France as belonging to the Civil or Roman law tradition. Structurally, the two legal systems operate in very different ways: civil law relies on professional judges, legal codes, and written records, while common law relies on 25 Lord Woolf, Access to Justice, Interim Report on the Civil System Reform. lay judges, broader legal principles, and oral arguments.31 The common law system greatly relies on oral argument and evidence, while in civil law systems; much of the evidence is recorded in writing. Trials play a much larger role in a common law than in a civil law system. Common law systems, at least in the last century, have generally relied on heavily incentivised state prosecutors, who are separate from judges, especially in the criminal cases. In civil law systems, in contrast, judging and prosecution are generally combined in the person of the same judge. Finally, although this distinction is less clear-cut, common law systems generally rely to a greater extent on the precedents from previous judicial decisions than do the civil law systems.32 In civil law systems also, most evidence is collected prior to the trial by a judge-inquisitor, hence the trial plays only a secondary role of going over this evidence publicly. The surprises and revelations of a common law court room play no role in this process.33 Adversarialism is, however, increasingly being questioned, by the practitioners themselves34 as well as by the users of the process. Over time, members of the public and in particular the international business community became frustrated and dissatisfied with the litigation process and sought for other alternatives, giving rise to the non-adjudicatory method, otherwise referred to as ADR.35 Broad economic, demographic, social and technical factors account for the shift from public resolution of disputes via the court system to private dispute resolution. Until recently,36 ADR processes have always operated exclusively outside the formal court system such that its effectiveness depended to a large extent on the good faith of the parties both for implementation and enforcement of agreed settlements. In pursuit of reform of the civil justice system of England and Wales, Lord Woolf observed that most of the problems and complaints about the civil court system in common law countries worldwide was more about the process rather than the decisions/outcomes themselves.37 Such complaints include the fact that the process was too expensive (legal fees, cost of prosecuting claims from start to finish, cost of human hours spent preparing for cases, the fact that costs could exceed the value of the claim and the like), the process is slow (cases could go on for an average of five years) and it is also complex (with too many complexities often seen as deliberately set up by the bar and bench to protect their trade without regard to their client’s interests); all of which results in inadequate access to justice and an inefficient and ineffective system.38 The same observation was made by the Australian Law Reform Commission about the Australian civil justice system.39 The Americans must have experienced the same problem because the theme for the American Bar Association Conference in 1906 was on the causes of popular dissatisfaction with the civil administration of justice system. Professor Roscoe Pound, a renowned jurist, philosopher, botanist, former Dean of the University of Nebraska and later Dean of Harvard Law School delivered a paper in this regard.40 It is noteworthy, that, it was at another American Bar Association conference held in 1976 that Professor Frank Sander while examining the same theme of Dissatisfaction with the system of administration of justice, expounded the idea of a Comprehensive Dispute Resolution Centre (also referred to as the Multi Door Court House) to stem the tide.41 The Multi Door Court House (MDCH) concept42 seeks to integrate ADR options into the court system, as a way of discharging the main constitutional function of the judiciary which is the determination of disputes between members of society.43 In their search for solutions, the Americans, Australians and the British alike envisioned and recommended a new judicial landscape where litigation will be seen as a last rather than a first resort if no appropriate options were available, as well as a conscious affirmative action on the part of the courts to encourage the use of ADR before filing a court process and afterwards.44 In Cowl v. Plymouth City Council,45 Lord Woolf delivered a clear and unconditional reminder to those involved in public law cases that trial litigation should be the last resort. He said, ‘the importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and saves time, expense and stress.’ The very same problems sought to be addressed by introducing ADR into the courts in America, England, and Australia and even in civil law countries are the very same problems being experienced in the Nigerian civil system of justice. Similarly, both the practitioners and the end users of the process are complaining of frustration. Kehinde Aina, one of the foremost promoters of the Multidoor court house in Nigeria cites these same reasons for advocating court connected ADR.46 Past and present Chief Justices of the Federation and State Chief Justices have at different fora expressed the same frustrations and a belief that the system can be helped by integrating ADR into the mainstream of the civil justice system.47 According to Chandra, ‘it is not that the challenges presented by these factors have gone un-responded. In fact all the wings of government – the executive, the legislature and the judiciary itself – have taken measures to up-date the administration of justice. Laws are being reformed, infrastructure streamlined and the judicial process activated.48 He observed, however, these endeavours are bound to be inadequate because there is need to think and evolve procedures, other than the normal judicial process, which may lend themselves to resolution of these new classes of disputes in a more satisfactory manner.’49 The concept of a comprehensive justice centre or MDCH has been interpreted and implemented in different ways by different courts and jurisdictions. In the Federal courts of the USA, what the law requires is that all federal district courts establish an ADR programme.50 Presently, the different jurisdictions operating the Multidoor court system in Nigeria do so from different legal foundations. So far only the Lagos Multidoor is backed by legislation,51 others operate under Practice Directions of the Chief Judge of the State 52(which incidentally is how the Lagos MDCH started). From the introduction of the Lagos Multidoor court house in 2000, there has been similar programmes adopted by other States, 53 the Federal Capital Territory and even the Court of Appeal.54 There are calls from many quarters, ADR practitioners, academia,55 the domestic and even the international business community, for adoption of such programmes nationwide.56 This thesis will examine whether there is justification for Court Connected ADR (CCADR) in Nigeria and if yes, what model should be adopted. Though it is too early to evaluate CCADR in Nigeria, the argument of this thesis is that based on the successes of similar CCADR programmes, the result is likely to be favourable. The study will compare the practice and procedure for implementing ADR in the US, UK and Nigeria. The main focus shall be to determine whether they can inform Nigeria’s developing jurisprudence and practice in this area of law.

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