Institutionalised ADR and Access to Justice: The changing faces of the Nigerian Judicial System

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Cited authorities 3

Cited in

Jurisdiction	South Africa
Author	Bukola Faturoti
Published date	16 August 2019
Date	16 August 2019
Citation	(2014) 1(1) Journal of Comparative Law in Africa 66
Pages	66-89

INSTITUTIONALISED ADR AND ACCESS TO

JUSTICE: THE CHANGING FACES OF THE

NIGERIAN JUDICIAL SYSTEM

BUKOLA FATUROTI*

Senior Lecturer, School of Law, Robert GordonUniversity, Scotland

Many legal jurisdictions have realised how judicial bureaucracies and rigidity have left

many disputants disenchanted about the entire justice system. This article examines the

responses of state governments in Nigeria to the problem of access to justice by looking at

the inclusion of the administration of alternative dispute resolution (ADR) mechanisms in

the Civil Procedure Rules and the multi-door court system. It looks at the prevalent

culture of litigation and its effects on the entire judicial process to understand the

importance of amendments to the Civil Procedure Rules. Considering Lagos, Abuja and

Kano, the article identif‌ies the gaps in previous rules of the State High Courts in Nigeria

and the adequacy of recent amendments to f‌ill these gaps. The article critically analyses the

institutionalisation of alternative dispute resolution and draws out the implications it may

have for both the bench and the bar.

[Beaucoup de juridictions ont réalisé comme les administrations judiciaires et la rigidité ont

laissé nombreuses parties en litige désenchanté sur le système de la justice dans son

ensemble. Cet article examine les réponses données par les gouvernements des États au

Nigeria au problème de l’accès à la justice, en considérant l’inclusion de l’administration

des mécanismes de règlement alternatif des différends et l’idée du système judiciaire

‘multi-porte’ dans les règles de procédure civile. Il regarde à la conception dominante de

litiges et à ses effets sur l’ensemble du processus judiciaire pour comprendrel’importance de

modif‌ier les règles de procédure civile. En utilisant les expériences de Lagos, Abuja et

Kano, l’article identif‌ie les lacunes dans les règles antérieures des tribunaux de grande

instance des États du Nigeria et l’adéquation des récentes modif‌ications apportées pour

combler ces lacunes. L’article analyse de manière critique l’institutionnalisation du

règlement alternatif des différends et tire les conséquences qu’il peut avoir soit pour la

magistrature soit pour le barreau.]

Keywords: Nigeria, Civil Procedure Rules, ADR, case management,

litigation, multi-door courthouse

Abbreviations: ADR alternative dispute resolution

AMDC Abuja Multi-Door Courthouse

KMDC Kano Multi-Door Courthouse

LMDC Lagos Multi-Door Courthouse

MDC multi-doorcourthouse

* I would like to thank Ken Mackinnon, Sam Middlemiss, Muhammed Akanbi,

Koko Udom, David Christie, Isa Alade, Chinedum Umeche, Uche Wigwe,Michael

Inyang, Kabiru Adamu and Sulaiman Balogun for their invaluable comments and

help in sourcing materials. I also thank the anonymous reviewers. All remaining

errors are mine. This article is a revised version of a paper presented at the Society of

Legal Scholars’Conference, Bristol, 2012.

(2014) 1(1) Journal of Comparative Law in Africa 66

Introduction

Section 36 of the Constitution of the Federal Republic of Nigeria 1999

guarantees a fair hearing ‘within a reasonable time by a court or other tribunal

established by law and constituted in such manner as to secure its indepen-

dence and impartiality’. Despite this provision, access to justice under the

Nigerian judicial system has suffered from problems ranging from long delays

of trials to formalistic and expensive legal procedure, weak enforcement of

laws, an inadequate legal-aid system and the absence of case-management

techniques.

Emilia Onyema has observed that two main hindrances to access

to justice in Nigeria are a mono-track dispute resolution system and delays

caused by court congestion.

A judicial system must not only be accessible

but also transparent, eff‌icient and institutionally strong. The eff‌iciency of a

judicial system includes availability of specialised and alternate forms of

dispute resolution processes which provide appropriate diagnostics tools and

routes for resolving conf‌licts without unnecessary delay.

In 1976, Professor Frank Sander of Harvard University pioneered the call

for widening the spectrum of dispute resolution mechanisms available to

disputants through the court.

His call was in response to dissatisfaction with

the judges and judicial system in the United States. Sander identif‌ied with the

concerns raised 70 years earlier by Professor Roscoe Pound in the paper ‘The

Causes of Popular Dissatisfaction with the Administration of Justice’.

Pound’s paper, which was regarded as ‘an attack upon the entire remedial

jurisprudence of America’,

has not only been vindicated by subsequent

legislative responses in the US but also in countries like Australia, England

and Nigeria among others.

The same ineff‌iciencies and rigidity complained about in the American

judicial system have also been identif‌ied by Nigerian lawyers and judges in

their own legal system.

This identif‌ication has led to the inclusion of

Hereinafter ‘1999 Constitution’.

Peters, Dele (2008) ‘Alternatives to Litigation: The Multi-Door Court House

Concept’ inYusuf, Fassy Adetokunboh O (ed) Issues in Justice Administration in Nigeria

435.

Onyema, Emilia (2012) ‘The Multi-door Court House (MDC) Scheme in

Nigeria: A Case Study of the Lagos MDC’2(7) Apogee Journal of Business, Property &

Constitutional Law 96–130. Available from:

Final_Report_on_LMDC_2012.pdf>

Sander, Frank EA (1976) ‘Varieties of Dispute Processing’ 70 Federal Rules

Decisions 111–113.

Pound, Roscoe (1906) ‘The Causes of Popular Dissatisfaction with the Admin-

istration of Justice’ 29 Annual Report of theAmerican Bar Association 395–417. Available

from:

(1906) 29 Annual Report of the American Bar Association 11cited in Bierman, Luke

(2007) ‘The Administration of Justice a Century after Roscoe Pound: Future Direc-

tions and Emerging Trends’48 South Texas Law Review 1051. Available from:

iris.lib.neu.edu/cgi/viewcontent.cgi?article=1230&context=slaw_fac_pubs>

Nwana v FCDA (2007) 11 NWLR 59; Oke, OO (2003) ‘Decongesting the

Courts: The Place of the LMDC’ (paper delivered at the Access to Justice Forum,

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 67

alternative dispute resolution (ADR) as an option for the courts and litigants

in the High Court (Civil Procedure) Rules

and laws.

Unlike the narrow

approach under previous States High Courts (Civil Procedure) Rules,

which provided for reference of disputes to arbitrators, in 2004 both Lagos

State

and the Federal Capital Territory, Abuja,

widened the spectrum of

the ADR mechanisms which the courts may consider where suitable for the

disputes before them. As at the time of writing, more than a third of the 36

states in Nigeria have now adopted a similar approach and among them are

Kano, Delta, Bayelsa, Oyo and others. Some of these states have also made

laws to establish multi-door courthouses which would serve as a gateway in

administering the use of various ADR mechanisms.

While it is generally accepted that ADR encompasses a range of mecha-

nisms for settling other than formal litigation,

the abbreviation ‘ADR’ has

been given different meanings — apart from ‘Alternative Dispute Resolution’,

also ‘Amicable Dispute Resolution’ and ‘Appropriate Dispute Resolution’ —

depending on the view of the proposer.

None of these def‌initions is without

criticism. If ‘Alternative Dispute Resolution’ is preferred, the question is

identifying what the ADR mechanism(s) is an alternative to. Another problem

related to def‌ining ADR is whether arbitration should be classif‌ied as one of

the ADR methods. For ease of classif‌ication, this article treats arbitration

simply as one of the mechanisms for ADR, just like contractual adjudication.

Lagos, 30 September 2003) 6 cited in Aina, Kenny (2011) ‘Amicable Dispute

Resolution: The Nigerian Experience’ in Ingen-Housz, Arnold (ed) ADR in Busi-

ness: Practice and Issues Across Countries and CulturesVol II.

Under the 1999 Constitution, the Chief Judge of each state is vested with the

power to make rules of practice and procedure. The rules in Lagos are made pursuant

to s 274 of the 1999 Constitution while those in Abuja are made pursuant to s 259 of

the Constitution.

Section 24 of the High Court Law of Lagos State, Chapter H3, Laws of Lagos

State 2003; s 17 of the Federal High Court Act Cap F12, Laws of the Federation of

Nigeria (LFN) 2004.

High Court of Lagos State (Civil Procedure) Rules 2003.

High Court of Lagos State (Civil Procedure) Rules 2004 (replaced in 2012).

High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules 2004.

Alternative Dispute Resolution (ADR) is def‌ined as: ‘Procedures for settling

disputes by means other than litigation; e.g., by arbitration, mediation, or minitrials.

Such procedures, which are usually less costly and more expeditious than litigation,

are increasingly being used in commercial and labor disputes, divorce actions, in

resolving motor vehicle and medical malpractice tort claims, and in other disputes

that would likely otherwise involve court litigation.’ Available from:

encyclopedia.com/topic/Alternative_Dispute_Resolution.aspx>

See Tercier,Pierre (2011) ‘ADR and Arbitration’ in Ingen-Housz, Arnold (ed)

ADR in Business: Practice and Issues Across Countries and CulturesVol II; Astor,Hilary &

Chinkin, Christine (2002) Dispute Resolution in Australia; Goldberg, Steven H (1997)

‘Wait a Minute: This is Where I Came In: A Trial Lawyer’s Search for Alternative

Dispute Resolution’ 3 Brigham Young University Law Review 653, available from:

=lawreview>

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA68

This article examines selected legal frameworks providing for the adoption

of ADR by the courts under civil procedure rules and the introduction of the

multi-door courthouse into the Nigerian legal system and the implications

thereof for both lawyers and judges in performance of their roles. The f‌irst

part brief‌ly looks at the culture of litigation, the disenchantment with the

court systems in Nigeria and the gradual shift by the judiciary in encouraging

the use of other methods of dispute resolution. The second part considers the

use of ADR in the Nigerian legal system. Is ADR or any of its mechanisms

new to the Nigerian legal system? Is there a future for ADR or the

multi-door courthouse system in Nigeria? The article limits its examination

to the rules and the practices in Lagos State and the Federal Capital Territory,

Abuja, and Kano State where the multi-door courthouse schemes are already

functional.

The traditional court and its metamorphosis

Like their counterparts in other common-law jurisdictions, Nigerian lawyers

adhere to the rules of adversarial philosophy. Those rules preclude judges

from intervening in the conduct of litigation processes except to uphold or

reject objections and to conf‌irm adherence to the rules of the game.

According to Prof Yemi Osinbajo,

‘every counsel knows that to hold a

case in abeyance forever only requires a preliminary objection of the lack of

jurisdiction. No matter how tenuous the ground, it is unlikely that the trial

judge will not be persuaded to stay proceeding, once ruling is challenged on

appeal.’ This objection might be complemented by injunctions and interloc-

utory appeals, stay of proceedings orders sought on the ground of technicali-

ties. The quest for justice through litigation in Nigeria is not different from

what Simon Roberts observes in England and Wales as ‘a bruising process,

characterised by secrecy and suspicion, in which one party’s representatives

have successfully wasted the other to the point at which the latter decides

reluctantly, perhaps facing the inevitable, that she or he has to give up’.

In Nigeria the highest honour for practising lawyers is the rank of Senior

Advocate of Nigeria (SAN).

Most top law f‌irms are known for their

prowess in handling litigation. The honour is conferred based on the number

of cases argued by a lawyer at the Supreme Court and the Court of Appeals.

Quoted by Iriekpen, Davidson (2010) ‘Disputes: When ADR Becomes Suc-

cour’ This Day 28 September. Available from:

articles/disputes-when-adr-becomes-succour/77832/>

Roberts, Simon (2002) ‘Institutionalized Settlement in England: AContempo-

rary Panorama’10 Willamette Journal of International Law and Dispute Resolution 17.

Senior Advocate of Nigeria is the equivalent of Queen’s Counsel (QC) in the

UK.

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 69

Unsurprisingly, only six out of the 72 appointed SANs between 2011 and

2013 are academics because, as provided in the Legal Practitioners Act, the

award is primarily meant for legal practitioners who have distinguished

themselves as advocates while awards to academics who distinguished

themselves through teaching, research and publications are made in excep-

tional circumstances.

It is this writer’s view that such practices have only

served as incentives to use litigation as a method of resolution without

consideration of other methods. Although the SAN application form has an

arbitration column, many lawyers would still seek opportunities to litigate

their cases and pursue appeals with the hope of increasing the number of

appearances in superior courts rather than exploring other dispute resolution

options which are conf‌ined to the private sphere.

These adversarial procedures lead to delays and expenses which would

naturally produce overburdened court dockets. Data available show that in

Lagos State, while 20 169 cases were pending in 1999, 10226 fresh cases

were f‌iled in the same year. In 2000 a total of 23 197 cases were pending and

9 969 were f‌iled.

Between 2008 and 2010, over 25 807 cases were assigned

in the High Court, the magistrates’ courts received 16 072.

Rivers State

had more than 20 000 cases pending in the 1999/2000 legal year, while

Enugu State had 26 535 cases pending in its High Court and magistrates’

courts in 2004/2005.

It takes almost eight years to decide land-related

matters and f‌ive years to decide family and commercial cases.

This has prompted both the Nigerian bench and bar to reassess the ways

disputes are handled and how justice is handed over to the parties in

Section 2 of the Legal Practitioners Act Cap L11LFN 2004.

Anyebe, Peter A (2012) ‘Towards Fast Tracking Justice Delivery in Civil

Proceeding in Nigeria’ in Azinge, Epiphany & Dakas, Dakas CJ (eds) Judicial Reform

and Transformation in Nigeria 136 at 141–142. Available from:

nigeria.org/journals/Peter%20Anyebe-%20Towards%20Fast%20Tracking.pdf>

See Onyema, Emilia (2012) ‘The Multi-door Court House (MDC) Scheme in

Nigeria: A Case Study of the Lagos MDC’2(7) Apogee Journal of Business, Property &

Constitutional Law 96–130. Available from:

Final_Report_on_LMDC_2012.pdf>

See also Akanbi, MM (2008) ‘Kwara Multidoor House: An Idea WhoseTime

Has Come!’ (paper delivered at the inauguration of the Committee on the Proposed

Kwara State Multidoor Courthouse, Ilorin, Nigeria, 29 July 2008). Available from:

Y,%2029TH%20JULY,%202008.

pdf>

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA70

dispute.

Writing on the need to decongest the Nigerian courts, Justice Oke

observes:

‘Nigerian courts are overf‌lowing with cases. Congestion in the courts has

generated more anger, more agony in the parties. Each Honourable Judge has

not less than three hundred cases pending before him with new ones on a daily

basis. Wemust not forget that proceedings are still being recorded in long hand

and with other various technical problems, some cases last over 10 years from

the date of f‌iling. For instance, in my court, I have over 20 years old cases

inherited by me from retired Judges. These are cases that have gone before two

or three Judges before coming to my court. I remember vividly that Suit No.

LD/469/77, A.J. Lawal & Anor v Santos is 26 years old, Suit No. LD/89/74

Mrs. S.A. Abudu v. Alhaja T. Ogunbambi & Anor.is 29 years old, while suit No.

LD/4/78 Sipeolu & Anor.v. AIICO Eng. Group Nig. Ltd. is 25 years old. I have

about 50 cases that are more than 10 years and 140 cases that are over 5 years

old.’

It should be noted that prior to 2002, the Nigerian law school academic

curriculum was designed to turn law students into f‌iery legal practitioners

versed in allocating claims, liabilities and compensation through the provi-

sions of legislation and application of judicial precedents. There were no

efforts to explore new voluntary mechanisms that might enable parties to

resolve various types of disputes without going to court in the f‌irst place. This

has led to the notion that the best way of dealing with opponents is to take

them to court, wasting their resources and time and subjecting them to the

full rigour of the justice system. To correct this notion, the civil procedure

curriculum has been updated to provide bar applicants with basic knowledge

of alternative dispute resolution mechanisms.

Lawyers have now broadly def‌ined their role in dispute resolution. They

come under appellations such as arbitrators and mediators and many law

f‌irms are offering arbitration and mediation as part of dispute resolution

services. Nigerian lawyers and retired judges are now undertaking training to

become mediators, arbitrators and negotiators. In 2013 it was reported that

1 235 arbitration practitioners were Associates of the Chartered Institute of

Arbitrators; 290 were members and 89 had the status of Fellow of the

Oputa, C quoted in Aina, Kenny (2005) ‘ADR and the Managerial Magistrate’

(paper delivered at a forum for Continuing Education for Magistrates, Lagos). See

also Akanbi, MM (2008) ‘Kwara Multidoor House: An Idea Whose Time Has

Come!’ (paper delivered at the inauguration of the Committee on the Proposed

Kwara State Multidoor Courthouse, Ilorin, Nigeria, 29 July 2008). Available from:

Y,%2029TH%20JULY,%202008.

pdf>

Oke, OO (2003) ‘Decongesting the Courts: The Place of the LMDC’ (paper

delivered at the Access to Justice Forum, Lagos, 30 September 2003) 6 cited inAina,

Kenny (2011) ‘Amicable Dispute Resolution: The Nigerian Experience’ in Ingen-

Housz, Arnold (ed) ADR in Business: Practice and Issues Across Countries and Cultures

VolII.

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 71

Institute.

There are also a number of indigenous groups such as the

Nigerian Institute for Chartered Mediators and Conciliators which provides

training and regulates the use of ADR especially in the area of mediation and

conciliation as well as the Association of Professional Negotiators and

Mediators of Nigeria, among others. The Nigerian Bar Association is also at

the forefront of promoting the use of ADR by creating a section on the use

and development of ADR in Nigeria.

At an institutional level the body

responsible for legal education in Nigeria, the Council of Legal Education,

has included ADR topics in the curriculum of the Nigerian Law School.

Also, it is compulsory under the Rule of Professional Conduct (RPC) for

lawyers to inform their clients of other mechanisms of dispute resolution.

In Owoseni v Faloye,

the Nigerian Supreme Court held that an aggrieved

party should consider and exhaust all legal/non-legal remedies prescribed by

the law before going to court. The problem at this point is how to gauge

compliance with these innovations. Also, would this not constitute an extra

burden on lawyers as it might be diff‌icult for them to persuade a vindictive

client?

ADR in Nigeria

ADR is not entirely new to the Nigerian legal landscape as in the past there

was community-based ADR. As Oguntade, JCAsaid in a dissenting opinion

in Okpuruwu v Okpokam:

‘In the pre-colonial time and before the advent of the regular courts our people

certainly had a simple and inexpensive way of adjudicating over disputes

between them. They referred them to elders or a body set up for that purpose.

[. . .] The right to choose an arbitrator to adjudicate with binding effect is not

beyond our native community.’

Clan leaders, age-group leaders and association leaders always presided

over conf‌lict resolution. The situation in Nigerian traditional societies is

similar to what is found among the inhabitants of the Kalahari:

Ufot, Dorothy (2013) Arbitrating Foreign Investment Disputes in Nigeria: Prospects

and Challenges, available from:

detail.aspx?g=63ec87d9-a8ed-4616-b339-62e5684f94eb>

Idornigie, Paul Obo (2007) ‘Overview of ADR in Nigeria’ 73(1) Arbitration:

The Journal of the Chartered Institute of Arbitrators 73–76.

Course Handbook on Civil Procedure (2011) of Nigerian Law School Bar Part II

Course.

Rules of Professional Conduct (RPC) for Legal Practitioners 2007, rule

15(3)(d).

(2005) 14 NWLR (Pt 946) 719 at 740. See also Aribisala v Ogunyemi (2005) 6

NWLR (Pt 921) 212.

Okpuruwu v Okpokam (1988) 4 NWLR (Pt 90) 554 at 586–587. See also the

Supreme Court decisions in Ohiaeri v Akabueze (1992) 2 NWLR (pt 221) 1 at 7 and

Eke v Okwaranyia (2001) 12 NWLR (Pt 726) 181.

Ury,William L (ed) (2002) Must We Fight? Fromthe Battlef‌ield to the Schoolyard —

A New Perspective on ViolentConf‌lict and Its Prevention 40.

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA72

‘When a serious problem comes up everyone sits down — all the men, all the

women — and they talk, and they talk and they talk. Each person has a chance

to have his or her say. It may take two or three days. This open and inclusive

process continues until the dispute is literally talked out.’

Among the Yoruba tribe found in the western part of Nigeria, disputes are

settled by mogaji (family heads) or baale (ward chiefs).

Both ensure that

disputes are resolved at the family level and community level respectively.

Among Hausas and Fulanis who migrate to other parts of Nigeria, disputes

are referred to the mai ungwa (owner of the ward) who resolves disputes at the

ward level. The Sarkin Hausawa (leader of the Hausa people) entertains

disputes which cannot be resolved at the ward level.

Under colonialism

rural people preferred these methods to the formal system offered by the

imposed English laws. These tribes and other ethnic groups in Nigeria have

their informal methods of dispute resolution largely shaped by their culture.

Culture here includes social arrangements, belief systems, values and shared

symbolic meanings. Customary laws as well as Islamic laws provide the legal

framework through which community-based ADR operates.

The majority of disputes in Nigerian communities are centred on marital

issues, farm and village boundary disagreements, inheritance claims, land

ownership and commercial matters. The goal of any dispute resolution

mechanism is to achieve reconciliation and peace. This reconciliation task is

intended to ‘re-orient the parties to each other . . . by helping them to

achieve a new shared perception of their relationship, a perception that will

redirect their attitudes and disposition towards one another’.

It encourages

a perspective of caring and interconnection.

To ensure the impartiality of

the ‘judges’ and that the disputing parties act in good faith, oath taking is

always involved.

Under the present legal system, the Supreme Court has given credence to

the validity of the ADR processes as found under various customary laws in

Nigeria. The courts expressly accept that disputing parties are allowed to

settle their differences in a manner acceptable to them,

and persons with

judicial authority under native law and custom are included.

ADR in Nigerian courts: the changing faces

Under its foreign policy, the 1999 Constitution recognises the use of

mechanisms such as negotiation, mediation and arbitration in the resolution

Barrett, Jerome T & Barrett, Joseph P (2004) A History of Alternative Dispute

Resolution: The Story of a Political, Social, and Cultural Movement 5.

Albert, Isaac O et al (1995) Informal Channels for Conf‌lict Resolution in Ibadan,

Nigeria. Availablefrom:

Fuller, Lon L (1971) ‘Mediation — Its Forms and Functions’ 44 Southern

California Law Review 305–339.

Bush, Robert A. Baruch (1989) ‘Eff‌iciency and Protection, or Empowerment

and Recognition: The Mediator’s Role and Ethical Standards in Mediation’ 41

Florida Law Review 253 at 266–270.

Agu v Ikewibe (1991) 3 NWLR (Pt 180) 385.

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 73

of disputes.

There are a host of federal statutes which recognise the use of

alternative methods to litigation.

Many of these statues do not provide

guidance or def‌ine what the role of the courts would be in the actualisation of

this process. The Federal High Court Act provides that the court may

promote reconciliation among parties and encourage and facilitate amicable

settlements.

Who administers ADR in this instance, a private institution or

the court? Will the judge or other court off‌icials serve as the mediator or

arbitrator? What is the status of decisions reached in the process of amicable

settlement? Under the Matrimonial Causes Act,

which makes it a duty of

the court to give consideration to the possibility of reconciliation, the judge

may nominate a suitable person with experience in marriage conciliation

with the consent of the parties.

At the state level many High Courts Laws

have also recognised the use of ADR.

However, just like at the federal level

there was no guidance on the role of the court in the administration of ADR

in Nigeria until 2004.

Lagos State pioneered the use of ADR in its court when the Chief Judge

made the Lagos State (Civil Procedure) Rules 2004. Prof Yemi Osinbajo, the

then Attorney-General of Lagos State, said the essence of the rules is to

‘curtail the excesses of counsel and give judges a f‌irmer control of proceed-

ings in their courts’.

The Federal Capital Territory judicial division

followed the example of Lagos State after a year with the High Court of the

Federal Capital Territory (Civil Procedure) Rules 2004. These two sets of

new rules represent a paradigm shift from the Uniform Procedure Rules

which were in existence in other states high courts in Nigeria. States like

Akwa Ibom,

Anambra,

Bayelsa,

Benue,

Delta,

Ebonyi,

Imo,

Section 19(d) of the Constitution of the Federal Republic of Nigeria.

For example, s 33(2) of the Environmental Impact Assessment Act Cap E12

LFN 2004; s 4 of the Industrial Inspectorate Act Cap I8 LFN 2004 and s 255 of the

Mineral and Mining Act Cap M12 LFN 2004.

Section 17 of the Federal High Court Act Cap F12 LFN 2004.

Section 11 of the Matrimonial CausesAct Cap M7 LFN 2004.

Section 11(1)(c) of the Matrimonial CausesAct Cap M7 LFN 2004.

Section 24 of the High Court Law of Lagos State, Chapter H3, Laws of Lagos

State 2003; s 28 of the High Court Law of Rivers State Cap 62 Laws of Rivers State

1999; s 25 of the High Court Law of Akwa Ibom State Cap 51 Laws of Rivers State

1999.

Foreword to Proposal for the Reform of the High Court of Lagos State (Civil

Procedure) Rules at v.

High Court of Akwa Ibom State (Civil Procedure) Rules 2009, order 25 rule

1(2)(c).

High Court of Anambra State (Civil Procedure) Rules 2006, order 25 rule

1(2)(c).

High Court of Bayelsa State (Civil Procedure) Rules 2010, order 25 rule 1(2)(c).

High Court of Benue State (Civil Procedure) Rules 2007, order 25 rule 1(2)(c).

High Court of Delta State (Civil Procedure) Rules 2009, order 25 rule 1(2)(c).

High Court of Ebonyi State (Civil Procedure) Rules 2006, order 25 rule 1(2)(c).

High Court of Imo State (Civil Procedure) Rules 2008, order 25 rule 1(2)(c).

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA74

Kwara,

Kaduna,

Ogun,

Osun,

Oyo

and Rivers

have also made

promotion and adoption of alternative dispute resolution part of their High

Court (Civil Procedure) Rules. Taking Delta State as an example, its High

Court (Civil Procedure) Rules 2009 provide in order 25 rule 1(2) that:

‘Upon application by a claimant under sub-rule 1 above, the Judge shall cause

to be issued to the parties and their Legal Practitioners (if any) a pre-trial

conference notice as in Form 18 accompanied by a pre-trial information sheet

as in Form 19 for the purposes set out hereunder—

(a) disposal of matters which must or can be dealt with on interlocutory

application;

(b) giving such directions as to the future course of the action as appear best

adapted to secure its just, expeditious and economical disposal;

resolution.’

As of February 2013, Borno State High Court is the latest jurisdiction to

embrace the use of ADR in its court with Borno State High Court (Civil

Procedure) Rules 2012 order 19 rule 1 empowering the Chief Judge to issue

Practice Directions in support of ADR techniques and mechanisms.

In these states it is the f‌irst time that ADR is made part of the formal justice

system in unequivocal terms. In the past the roles of judges have been

conf‌ined to that of unbiased umpires and judgment givers who must adhere

to the tenets of adversarial litigation with a limited exception of referring

disputes to arbitrators. Judges now play an active role in managing the track

of cases. They go under the label of case managers who must monitor and

control the progress of cases to ensure a speedy disposal of cases. They have,

in addition to their duty of adjudicating cases, the duty to encourage

settlement. Lawyers on the other hand have also become compelled

facilitators; they must not neglect to inform their clients of the availability of

ADR mechanisms before resorting to litigation otherwise they could face

disciplinary action for professional misconduct under the Nigeria Legal

Practitioners Act 1975. In this regard, lawyers owe allegiance to the court and

the legal profession ‘in promoting a better and more eff‌icient justice delivery

system’.

They must collaborate with the court in ensuring prompt

resolution of conf‌licts by giving due consideration and support to orders and

directives of the court.

High Court of Kwara State (Civil Procedure) Rules 2005, order 33 rule 2(2)(c).

High Court of Kaduna State (Civil Procedure) Rules 2007, order 26 rule

1(2)(d).

High Court of Ogun State (Civil Procedure) Rules 2008, order 25 rule 1(2)(c).

High Court of Osun State (Civil Procedure) Rules 2010, order 25 rule 1(2)(c)

High Court of Oyo State (Civil Procedure) Rules 2010, order 25 rule 1(2)(c)

High Court of Rivers State (Civil Procedure) Rules 2006, order 25 rule 1(2)(c).

Section 17(1) of The Lagos Multi-Door Courthouse (LMDC) Law. Available

from: g/images/resources/lmdc-law.pdf >

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 75

High Court of Lagos State (Civil Procedure) Rules and ADR

The High Court of Lagos State (Civil Procedure) Rules 2004 pioneered the

unequivocal attempt to make judges refer parties to ADR or offer ADR

services under the multi-door courthouse concept.

The objective of these

(now replaced) rules was found in order 1 rule 1(2), which stated: ‘These

Rules shall be directed towards the achievement of a just, eff‌icient and

speedy dispensation of justice.’ This provision, which was analogous with

rule 1.1 of the English Civil Procedure Rules 1999,

however lacked the

imperativeness found in the English rules.

This weakness has now been addressed in the replacement of the 2004

rules: the new High Court of Lagos State (Civil Procedure) Rules 2012

(hereinafter ‘Lagos Rules’).

The Lagos Rules are to be construed in

furtherance of three objectives in its Preamble, namely: just determination of

matters, speedy dispensation of justice by elimination of unjustif‌iable expense

and delay, and promoting amicable resolution of disputes by use of ADR

mechanisms. The court could only achieve these objectives by adopting the

new concept of ‘active case management’. The introduction of this concept

underscores the seriousness of the court to discourage the use of litigation and

also to be an active participant in the administration of ADR. Inclusion of

both objectives and duties to actively managing cases under the Preamble has

its advantages and disadvantages. It could be argued that this inclusion

demonstrates the cardinality of the objectives and duties to the entire rules.

Though preambles have been a good tool in interpreting statutes, the court

in Ogbonna v Attorney-General, Imo State stated that any general intention

derived from the Preamble would be void in the face of express provision to

the contrary within the statute.

Order 25 of the Lagos Rules contains a myriad of techniques aimed at

eff‌icient and speedy dispensation of justice.

The order titled ‘Case Manage-

ment Conference and Scheduling’ contains forecasting devices which enable

the parties and their legal teams to examine their position against a predicted

judicial determination, which may facilitate negotiations rather than a strict

The High Court of Lagos State (Civil Procedure) Rules 2004 are available from:

g/LagosStateJudiciaryHighCourtRules2004.htm>

Available from: .justice.gov.uk/courts/procedure-rules/civil/

rules/part01>. Woolf,Harry (1995) Access to Justice: Interim Report to the Lord Chancel-

lor on the Civil Justice System in England and Wales prescribed ‘case management’ by

encouraging settlement of disputes at the earliest appropriate stage; and where trial is

unavoidable, to ensure that cases proceed as quickly as possible to a f‌inal hearing

which is of strict limited duration.

Available from: .nigeria-law.org/The%20Judicature/State%20

Courts/High%20Court%20of%20Lagos%20State/High%20Court%20of %

20Lagos%20State%20(Civil%20Procedure)%20Rules%202012.pdf>

(1992) 1 NWLR (Pt 220) 647.

There are similar provisions in Akwa Ibom, Bayelsa, Benue, Delta, Kwara,

Kaduna, Ogun, Osun, Oyo and Rivers States.

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA76

determination of legal rights. This order used to be known as ‘Pre-Trial

Conference and Scheduling’ in the 2004 rules. The change of name might be

interpreted as part of the effort to remove the cloak of litigation and its

pejorative connotation and to portray an atmosphere where the parties

converse and work towards a mutually acceptable outcome. The Lagos

Rules of 2012 state the purpose of case management conferences as follows:

‘(a) disposal of matters which must or can be dealt with on interlocutory

application;

(b) giving such directions as to the future course of the action as appear best

adapted to secure its just, expeditious and economical disposal;

Dispute Resolution (ADR).’

The case management conference paves the way for negotiation or new

settlement orders and there is a possibility of the case terminating here

because parties may discover that there is no dispute after all. There is a strict

regime of timetabling: conferences are to be completed within three months

of initiation and could only be extended with consent of the judge after an

application has been extended. Adjournments would be for the purpose of

compliance with the orders issued to support resolution. It is hoped that case

management conferences would reduce log jams, which always arise when

parties base their rights on different principles of law which they think will

win them the case. It would afford both the disputants and their counsel the

chance of early settlement rather than going too far into the litigation

processes.

The supervisory repertoire of the judge during a case management

conference is enormous. He has the power to consider and take appropriate

action with respect to other matters that may facilitate the just and speedy

disposal of the action.

The judge could sanction a party or its legal

representatives if they fail to attend or obey a scheduling or case management

conference order or if they are substantially unprepared to participate in the

conference or fail to participate in good faith.

On the adoption of ADR, it appears the rules have empowered the court

to compel the use of ADR without necessarily seeking the consent of the

parties because at the commencement of an action:

‘All Originating Processes shall upon acceptance for f‌iling by the Registry be

screened for suitability for ADR and referred to the Lagos Multi Door Court

House or other appropriate ADR institutions or Practitioners in accordance

with the Practice Directions that shall from time to time be issued by the Chief

Judge of Lagos State.’

High Court of Lagos State (Civil Procedure) Rules 2012, order 25 rule 1(2)(a)–

(c).

High Court of Lagos State (Civil Procedure) Rules 2012, order 25 rule 2(n).

High Court of Lagos State (Civil Procedure) Rules 2012, order 25 rule 5.

High Court of Lagos State (Civil Procedure) Rules 2012, order 3 rule 11.

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 77

Where a party refuses to cooperate with the court in furthering this

objective, the court would give appropriate directives under order 25 rule 6.

It is assumed that the statement of case under order 25 rule 6 would be to

explore ADR. So could recalcitrant parties be compelled to exploreADR?

Compelling parties to adopt any of the ADR mechanisms gives rise to

some issues. First, there is no def‌inition of what constitutes ADR under the

rules. It appears that the def‌inition under the Lagos Multi-Door Courthouse

(LMDC) Law,

discussed below, may guide the court on what constitutes

ADR. The LMDC Law def‌ines ADR to include ‘the entire range of

alternatives to litigation that involves third party intervention to assist in the

resolution of a dispute’.

Section 3 of the LMDC Law lists arbitration, early

neutral evaluation and mediation as available mechanisms for the parties to

explore. However, to what extent can parties be compelled to arbitrate?

Except in the case of statutory arbitration, agreement to arbitrate is a key

feature of arbitration as it creates a binding contractual arrangement between

the parties and establishes the jurisdiction of the arbitral tribunal.

It is the

consensual nature of arbitration that distinguishes it from court proceedings.

One option may be to create a non-binding arbitration as is the practice in

countries like Australia, Canada and the US. Anon-binding arbitration will

offer a realistic assessment of a party’s position.A worthy caution, however, is

the right of a party to require a re-hearing by a judge. Where a party exercises

this right, it may prolong the dispute resolution process. Another option

which appears to be contemplated under the Civil Procedure Rules is to

create a binding arbitration as it is in England under a commercial court judge

or a district judge or a third party.

Section 19(2) of LMDC Law provides

that such arbitration awards shall be enforced under the Nigerian Arbitration

and Conciliation Act. An important question is whether a party to a

mandatory arbitration will not have recourse against the award for lack of

consent.

Second, is forcing parties to use the mechanisms of ADR not an

infringement of their human rights under s 36 of the Nigerian Constitution?

The provision of s 36 is similar to that of art 6 of the European Convention of

Human Rights. In relation to art 6, relying on the decision of the European

Court of Human Rights, Dyson LJ held as follows in Halsey v Milton Keynes

General NHS Trust:

‘It is one thing to encourage the parties to agree to mediation, even to

encourage them in the strongest terms. It is another to order them to do so. It

seems to us that to oblige truly unwilling parties to refer their disputes to

Available from: .lagosmultidoor.org/images/resources/lmdc-law.

pdf>

Section 31.

Blackaby, Nigel et al (2009) Redfern and Hunter on InternationalArbitration (5 ed).

Brown, Henry & Marriott, Arthur (2011)ADR: Principles and Practice (3 ed).

[2004] EWCA Civ 576.

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA78

mediation (and any other ADR method) would be to impose an unacceptable

obstruction on their right of access to the court.’

Similarly, Lord Woolf warns that ADR should not be made compulsory as

an alternative or as a preliminary to litigation as is the case in some US

jurisdictions because it denies the right to seek remedy in civil court.

Professor Hazel Genn and others, however, argue that the position of the

Court of Appeal is erroneous because referral to mediation is only a

procedural step to court hearing which neither excludes parties’ access to the

courts nor orders them to compromise their claims.

There is no Nigerian case law addressing the issue of compelling parties to

adopt ADR. Without doubt any compulsion would be contrary to the

decision of the Nigerian Supreme Court which held that disputing parties are

allowed to settle their differences in a manner acceptable to them.

However, it could be argued that s 36 of the Nigerian Constitution

contemplates referral to ADR or multi-door when it refers to ‘other tribunal

established by law and constituted in such manner as to secure its indepen-

dence and impartiality’. Such tribunal could be an arbitral tribunal, an

ombudsman or a neutral mediator. In as much as there is an assurance of

independence and impartiality, what the provision of s 36 protects is access to

a medium of dispute resolution and not necessarily the court. More

importantly, any establishing law determines the jurisdiction of a court or a

tribunal it establishes.

In actively managing cases, it is this writer’s view that the court could now

mandate parties to use ADR but this must be subject to the suitability of the

mechanisms for the disputes. When the parties decide to adopt the ADR

processes, the session will be regulated by either the Multi-Door Courthouse

Mediation Procedure Rules 2004 or the Multi-Door Arbitration Procedure

Rules 2004,

depending on the form of resolution chosen.

The Lagos Multi-Door Courthouse (LMDC)

Prof Frank Sander explained in 2008 that the essence of the multi-door

courthouse was ‘to look at different forms of dispute resolution — media-

tion, arbitration, negotiation, and med-arb (a blend of mediation and

arbitration)’.

Under this system there is a coordinated approach to examine

all the cases through one centralised route. Money and time would be saved

Woolf, Harry (1995) Access to Justice: Interim Report to the Lord Chancellor on the

Civil Justice System in England and Wales,Chapter 18, paras 3–4.

Genn, Hazel et al (2007) Twisting Arms: Court Referred and Court Linked Media-

tion under Judicial Pressure (Ministry of Justice Research Series 1/07, May 2007).

Available from: .ucl.ac.uk/laws/judicial-institute/docs/Twisting_arms_

mediation_report_Genn_et_al_1.pdf>

Agu v Ikewibe (1991) 3 NWLR (Pt 180) 385 at 412.

The Multi-Door Courthouse Rules are contained in the Lagos Practice Direc-

tion of 24 February 2004 made pursuant to s 274 of the 1999 Constitution.

Hernandez Crespo, Mariana D (2008) ‘A Dialogue between Professors Frank

Sander and Mariana Hernandez Crespo Exploring the Evolution of the Multi-Door

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 79

for both the courts and litigants resulting in overall eff‌iciency of the dispute

resolution system as disputes coming to the courts are directed to the most

appropriate mechanism for resolving them.

The Lagos Multi-Door Courthouse (LMDC) was established as a public-

private partnership between the High Court of Justice, Lagos State and the

Negotiation and Conf‌lict Management Group in 2002. The LMDC

describes itself as the ‘home of ADR in Nigeria’ and the f‌irst court-

connected ADR centre in Africa.

The centre had no appropriate legal

framework until 2007 when Lagos State House of Assembly enacted the

Lagos Multi-Door Courthouse (LMDC) Law. According to said law, the

objectives of the LMDC are to:

‘(a) enhance access to justice by providing alternative mechanisms to supple-

ment litigation in the resolution of disputes;

(b) minimize citizen frustration and delays in justice delivery by providing a

standard legal framework for the fair and eff‌icient settlement of disputes

through Alternative Dispute Resolution (ADR);

Resolution in Lagos State; and

(d) promote the growth and effective functioning of the justice system

through Alternative Dispute Resolution methods.’

LMDC is built on the bedrock of providing a sustainable judicial system

which encompasses access to justice, eff‌iciency and fairness. The enabling

law has not only entrenched the centre but built a formidable bridge to link

its activities with the formal justice system. Cases are initiated through (i)

party walk-ins, (ii) court referrals or (iii) direct intervention of the centre

where public interest is involved.

Though still dressed in their black robes, some judges now have their role

widened as they are designated as ‘ADR judges’. They have a strict duty to

promote ADR within the judiciary. As off‌icers of the court they have the

responsibility to ensure the actualisation of the objectives of the LMDC. One

challenge here is how to reconcile the discharge of their roles in s 16(1)(e) and

(f) of the LMDC Law which allow mandatory referral to explore settlement and

adopt ‘best known international practices and appropriate measures towards

the promotion and development of an ADR consciousness’ among court

users.

The power of the judge to compel the use of ADR has to be strictly

def‌ined for this purpose. On one hand parties or more particularly their

Courthouse’ 5(3) University of St. Thomas Law Journal 665 at 670. Available from:

The LMDC homepage can be found at g>

Section 2 of the LMDC Law. Available from:

org/images/resources/lmdc-law.pdf>

Article 2 of LMDC Practice Direction on Mediation. Availablefrom:

www.lagosmultidoor.org/images/resources/lmdc-practice-direction-on-

mediation.pdf>

Under the Article 2 of Abuja Multi-Door Courthouse DC, a presiding judge

may refer an ongoing case to the multi-door courthouse.

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA80

counsel might feel constrained to respond positively so as to maintain the

support of the court. On the other hand, it is diff‌icult to see how the ADR

process would work if the court compels adoption because one of the parties

is willing to so do. If the losing party had participated out of compulsion, this

may lead to an appeal to a higher court thus defeating the purpose of

achieving a just and speedy determination of the dispute. The right approach

would be to encourage a reluctant party on the benef‌its and the need to use a

suitable ADR method.Again, it may also be diff‌icult to decide what amounts

to ‘best known international practices’. Practices differ in countries like

Australia, Canada, England and the US. Each country has employed an

approach which could respond to the exigencies of its own legal system. The

US is known for being a very litigious society and it is doubtful if the same

could be said about Nigeria.

The caution against mandatory participation is to preserve the term

‘alternative’ in the ADR label so that the dichotomy created between

litigation and ADR will not be false. Besides, ADR loses its legitimacy when

borne out of compulsion.

Taking mediation as an example, there are a lot of

arguments and cautions against mandatory participation either covertly or

overtly.

Compelling a party to use mediation or other forms of ADR is seen

in the US as a violation of the self-determination of the parties.

Coercion

into any of the mechanisms may lead to coercion to settle within a chosen

process.

The High Court of Federal Capital Territory, Abuja (Civil

Procedure) Rules and ADR

ADR processes were not made part of the civil procedure rules until the

enactment of the High Court, Federal Capital Territory (Civil Procedure)

Rules in 2004 (hereinafter ‘FCT Rules’). Order 17 on the Civil Procedure

Rules explicitly encourages settlement. The court may advise the parties to

use arbitration, conciliation, mediation and any other lawfully recognised

method of dispute resolution. Unlike the approach under the Lagos State

High Court Civil Procedure Rules, the FCT Rules allow the discretion to

encourage settlement and guard against mandatory participation of the parties

in the settlement of the dispute by not undermining their consent. It also

specif‌ies the methods which the court can suggest. In employing the forms

recommended, the Abuja Multi-Door Courthouse Mediation Procedure

Eaton, Sarah (1990) ‘Mandatory Mediation and Summary Jury Trial: Guide-

lines for Ensuring Fair and Effective Processes’103 Harvard Law Review 1086 at 1087.

Ingleby, Richard (1993) ‘Court Sponsored Mediation: The CaseAgainst Man-

datory Participation’ 56(3) The Modern Law Review 441, available from:

onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1993.tb02682.x/pdf>. See also

Roberts, Simon (1983) ‘Mediation in Family Disputes’ 46(5) The Modern Law Review

537–557, available from: 111/j.1468-

2230.1983.tb02533.x/pdf>

US Model Standards of Conduct for Mediators (2005).

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 81

Rules (2002) govern mediation proceedings while the Abuja Multi-Door

Courthouse Arbitration Procedure Rules govern arbitration.

Abuja Multi-Door Courthouse (AMDC)

Save for a few variations in art 6 of the Abuja Practice Direction which deals

with the outcomes of the ADR session, the articles of the Abuja and Lagos

Practice Directions are similar. In as much as it is a civil matter, theAMDC

does not have a restricted jurisdiction on its subject matter. It accepts disputes

in banking, maritime, energy, family and other commercial matters. The

process at the AMDC starts with a screening conference to be overseen by

the Dispute Resolution Off‌icer.

Parties are expected to participate in good

faith by being open about the substance of the case, procedure and dynamics.

Thus all matters discussed during this process will remain conf‌idential. The

statements made in the course of the ADR session are not admissible in

evidence for any purpose.

It is at this stage that the needs of the case will be

determined and an appropriate mechanism of ADR will be selected.

The parties may introduce names of neutrals that may also be accepted by

the AMDC upon conf‌irmation that such a neutral possesses the necessary

expertise and is acceptable to all the parties.

Counsel may accompany

parties. Parties representing corporations, partnerships or other organisations

must have full written authority to settle the dispute failing which the ADR

session will not commence.

Where a settlement is reached at the ADR

session, it is reduced to writing, signed by the parties and witnessed by their

counsel. It is to be f‌iled in the court within ten days of the agreement and

appropriate steps taken to dispose of the action. If the settled dispute was not

pending before a court, the settlement agreement may be f‌iled in court as

consent judgment.

The process must follow a rigid timetable as provided

under the Practice Direction. By this, delay is prevented with the stipulation

of a short duration of the processes.

Appraising Abuja Multi-Door Courthouse in its seventh year, Justice Gummi

explained that AMDC was established to ensure greater access to justice and

to provide choices which resolve disputes in mutually satisfying ways.

The rules are contained in Abuja Practice Direction of 19 November 2003

made by the Chief Judge of the Federal Capital Territory.

See Art 3(g) of Abuja Practice Direction of 19 November 2003.

Art 5.

Art 10(2).

Art 4.

Art 6(1) and (2).

Gummi, LH (2010) ‘Sink or Swim: Evolving a Broader Def‌inition of Courts

Through the Multi-Door Approach to Dispute Resolution and the Implications it

has for Traditional Court Systems’April 2010 International Journal for Court Administra-

tion 1–9. Availablefrom:

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA82

Kano Multi-Door Courthouse (KMDC)

Unlike other states where there is express mention of the multi-door

courthouse in their High Court Civil Procedure Rules, Kano State does not

have a similar provision. Instead, the Kano Multi-Door Courthouse

(KMDC) was established with the aim of supplementing the regular court by

providing services in the areas of arbitration, conciliation, mediation and

other forms of dispute resolution as provided for by ss 22 and 116 of the Kano

State Arbitration Law and Kano Multi-Door Courthouse Mediation and

Arbitration Rules 2008.

In its multi-door mediation rules, KMDC can entertain matters referred

by the High Court of Kano State, High Courts outside the state, the Federal

High Court, private persons, corporations, public institutions and dispute

resolution organisations.

In what instance would another State High Court

or dispute resolution organisation refer a case to the multi-door courthouse?

Though the KMDC rules do not provide for this instance, this may happen

where a neighbouring court that has not established its own multi-door

courthouse decides to refer a case and where such referral would serve the

interests of justice. But would a neighbouring State High Court want to refer

a dispute because of the expertise which neutrals on the KMDC panel may

have? The chance of this happening is very slim. In practice, courts only refer

cases where they do not have jurisdiction or where non-referral may

prejudice one of the parties under the judicial principle of forum non

conveniens. It is argued that rather than referring a case because of the expertise

of a neutral, a neighbouring State High Court would prefer to invite such a

neutral as amicus curiae to provide expert opinion. Such a neutral would not

have the power of making a decision in a proper multi-door court setting but

would be a mere advisory neutral whose opinion may or may not be

accepted by the court.

The KMDC process initiation is similar to that of Abuja described

above.

It starts with a screening conference which is expected to last

between 30 and 45 minutes to determine the needs of the case. The goal of

the screening conference is to resolve procedural problems and to discuss

KMDC Newsletter 1(2) (January 2010).

The Kano Multi-Door Courthouse, the f‌irst in the North-Western region of

Nigeria, was established by a Legal Notice by the Chief Judge of the state on 1 August

2008 and was formally launched on 20 January 2009.

Due to lack of public awareness there were various misconceptions about the

purpose of the KMDC. For example, it was regarded as a court where children could

take their parents when aggrieved or the controversial Child Rights Act could be

enforced. Now the KMDC has resolved disputes ranging from family and banking to

maritime and employment issues. Within the f‌irst year of its operations, the KMDC

received 135 cases which included 30 family related disputes, 20 monetary claims

dispute, 16 debt-recovery cases, 15 cases relating to land disputes, 12 matrimonial

matters, 10 cases of contract breach and 3 cases of defamation of character.About 81%

of these were walk-in cases. See KMDC Newsletter 1(3) (January 2011).

Musa, Fatima R (2011) ‘TheABCD of KMDC’ 1(3) KMDC Newsletter (January

2011).

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 83

dispute resolution processes. If the parties choose mediation, for example, the

process will be regulated by the Kano Multi-Door Courthouse Mediation

and Arbitration Rules 2008 and the equivalent where arbitration is chosen.

Rule 15(d) provides that if the parties reach a settlement, the parties on

signing the settlement agreement become bound by the terms of the

agreement. To make any settlement reached more binding on the disputing

parties, two ADR judges must sign the terms of settlement. There is no

clarif‌ication on whether the terms would be less binding if only one judge

signs, nor on whether a party can refuse to abide by terms if no judge signs the

terms.

Institutionalised ADR: sustainable justice?

The debate around institutionalisation of ADR has always been based on

decongestion of the dockets of the courts. The outcome of these rules is that

settlement under the formal justice system will assist the courts, making

adjudication more accessible by reducing backlogs and structural problems

created by overloading as fewer cases proceed to judgment in this way. Cases

would now go through the diagnostic tool provided in case management

conferences before a suitable mechanism is recommended to resolve the

dispute. Hence, parties would ‘reap the benef‌its pertinent to ‘‘alternative’’

processes in the immediate pre-litigation as well as within the litigation

scenario, where formal proceedings have already been initiated’.

On the

other hand, this new judicial activism represented in case management may

lure judges to focus more on the statistics of cases disposed rather than the

quality of their dispositions. Similarly, case management does not equate to

an actual trial. There is no provision to review the process where there is an

allegation of unfairness and partiality. The absence of procedural safeguards

may expose parties to abuse of this new power of the court.

According to Antoine Cremona, the fact that ADR is court-annexed will

circumvent obstacles ranging from ‘the lack of adequate information, to the

reluctance to appear weak in proposing mediation to the other party to

concerns as to the enforceability of the f‌inal solution’.

This is possible

because designated ADR judges have to personally explore and administer

ADR options along with the parties and their counsel. Another advantage is

that information which is reluctantly made available by counsel could be

accessed directly either by initiation of the court or by request of the parties.

It is important that parties are open in the presentation of their cases and

participate in good faith by providing the court with all the information that

would facilitate a just and speedy disposal of the case. Besides, the informality

Cremona, Antoine (2004) ‘Forced to Mediate: Critical Perspectives on Court-

annexed Mediation Schemes’ Chamber of Advocates Malta Paper 6. Available from:

.ashx?id=633057633364687500>

(2004) ‘Forced to Mediate: Critical Perspectives on Court-annexed Mediation

Schemes’Chamber of Advocates Malta Paper 5. Available from:

.ashx?id=633057633364687500>

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA84

which accompanies the procedure reduces the hostility which hovers over

the adversarial process.

Enforcement of the outcome of the ADR process under private schemes

has raised concerns for users. The powers of the judicial institution, in the

form of contempt of court and the resultant f‌ine and imprisonment, make

disputants comply with its decisions. These powers are nonexistent in

privately led ADR. Institutionalised settlements carry the same force of law as

judgments handed down by judges and non-compliance also amounts to

contempt. In addition, users can put more trust and conf‌idence in the

processes because they are based solely on the eff‌iciency of the court system

and not on the commercial interests of private service providers.

Apart from ineff‌iciencies which have been attributed to the court as an

institution, counsel also employ various tactics to delay court proceedings.

Lawyers at times prefer to maintain the status quo until the case gets to trial

because it is an opportunity to ‘settle’ with the other party. From the point of

views of lawyers, ADR may not only make them lose control over the

proceedings but also take away their means of livelihood.

Institutionalised

settlement, Cremona explains, helps clients ‘to overcome barriers inadvert-

ently or otherwise created by his own counsel’.

In a case where a judge

directs the parties to adopt any of the ADR methods, problems relating to

asymmetry of information, the lawyer-client relationship and general reluc-

tance due to the widespread distrust in the process can be overcome.

The rules examined above and others with equivalent provisions in

Nigeria represent the endorsement of a culture under which settlement is

pursued through litigation, leaving apparently alternative routes to decision

through adjudication and negotiated agreement entangled.

The judges

now have to re-examine their role as case managers along with their role in

the traditional setting of the court. A lot of scepticism has surrounded the

impartiality and fairness of a judge who acts as an arbitrator where his initial

attempt during the case management conference failed to settle the case.

Therefore after deciding which mechanism would be suitable for the parties

and their dispute, a judge must also examine his own suitability as mediator

or arbitrator when negotiation does not work. Under the LMDC Law the

designation of ADR judges is a commendable innovation, but a pre-trial

judge must know where to draw the line between his role as an early neutral

evaluator and as a judge per se. The LMDC Law therefore warns that ADR

judges must avoid assuming the role of a mediator during case management

Gummi, LH (2010) ‘Sink or Swim: Evolving a Broader Def‌inition of Courts

Through the Multi-Door Approach to Dispute Resolution and the Implications it

has for Traditional Court Systems’April 2010 International Journal for Court Administra-

tion 1–9. Availablefrom:

Cremona, Antoine (2004) ‘Forced to Mediate: Critical Perspectives on Court-

annexed Mediation Schemes’ Chamber of Advocates Malta Paper 1 at 5.Available from:

.ashx?id=633057633364687500>

Roberts, Simon (2002) ‘Institutionalized Settlement in England: AContempo-

rary Panorama’10 Willamette Journal of International Law and Dispute Resolution 17.

INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 85

conference proceedings.

However, in Abuja and Kano there is no clear

statement on the role of the court or judge where the ADR mechanism is

offered by the court.

Conclusion

ADR promises to decongest court dockets but the longevity of this deserves

examination. Will it not be another adulteration of equity values when

merged with the common law into one court? Pound feared that the

submergence of equity into one court system would result in a loss of the

discretion and f‌lexibility that characterised equitable jurisprudence and

distinguished it from common law’s rigidity.

100

Court-annexed ADR may

tend to give way to ‘liti-arbitration’ or ‘liti-mediation’.At what point should

the distinction be drawn between the court and court-annexed ADR,

between the pre-trial judge and the trial judge? As noted by Professor

Stephen Subrin, serious caution must be taken otherwise ADR processes

may begin to look like litigation.

101

The inclusion in States High Court (Civil Procedure) Rules of ADR

methods as options available to parties has continued to grow in Nigeria.

States that have not established multi-door courthouse facilities provide that

the enforcement of decisions reached through a multi-door courthouse shall

be enforced as a judgement of the court.

102

This will be taken as a plan of

these states to pass their multi-door courthouse laws and not actually

decisions from multi-door courthouses in other states.

Judges can now decide to facilitate amicable settlement or adopt ADR

mechanisms without being seen as descending into the litigation arena.

Disputants, on the other hand, have now learnt that the protection of their

interests in a dispute is not conf‌ined to a determination of such rights through

litigation in court. To support the efforts by the Nigerian state governments,

many matters are now being removed from public view and dealt with in

private without necessarily violating the right to have a public trial. Also,

other experts are now welcome, not just as an expert who is a witness but as a

decision maker. Machinery should be set in motion to harmonise the rules

Section 16(1)(b) of the LMDC Law.

100

Pound, Roscoe (1905) ‘The Decadence of Equity’ 5(1) Columbia Law Review

20 at 24. Available from: g/stream/decadenceequity00poungoog#

page/n33/mode/2up>

101

Subrin, Stephen N (2003) ‘ATraditionalist Looks at Mediation: It’s Here to Stay

and Much Better than I Thought’3(2) Nevada Law Journal 196 at 228, available from:

pubs>. See also Lande, John (2002) ‘Using Dispute System Design Methods to

Promote Good-Faith Participation in Court-Connected Mediation Programs’

50(1) UCLA Law Review 69–141, available from:

viewcontent.cgi?article=1012&context=john_lande>

102

See High Court of Benue State (Civil Procedure) Rules 2007, order 39 rule

4(3); High Court of Kaduna State (Civil Procedure) Rules 2007, order 15 rule 4(3);

High Court of Ogun State (Civil Procedure) Rules 2008, order 39 rule 4(3).

(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA86

governing the conduct of mediators and negotiators in order to achieve the

vision of a justice system that is eff‌icient, pro-active, fair, affordable and

capable of dispensing justice. As other professionals embrace this new

profession, there will be a need for a Code of Practice to set the ethics and

uniform standards for competence.

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INSTITUTIONALISED ADR AND ACCESS TO JUSTICE 89

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