Behind the Legal Frustration!

Lord Woolf  -The then Chief Justice of England and Wales.

 

Introduction

What has produced this frustration? A typical narrative would be the more population of people on earth, the more frustrated the populace will become. In the same vein, the legal system will not be able to contain the demands of the people. Well! Sorry to burst your bubble, that is not far from the truth, apart from the earth not being able to contain all the frustration. We will leave that for the scientist to decipher!

Back to the issue at hand, historically, lawyers have been known to be gentlemen. In the days of yore, Lawyers were not paid therefore at the back of the lawyers gown, there is a pocket. When the lawyer left the courtroom, the impressed client would walk behind him and put money in the said pocket. However, in this present, day, the reverse is the case. Some lawyers tout for briefs and ask for exorbitant fees from clients before the hearing of a case. This was one of the many problems associated with litigation which provoked the use of ADR. Thus, it is fair to say that the legal frustration started as a result of exorbitant cost or fees, court congestion, delay, complex technicalities in the courtroom, cost and among other factors. Thus, various jurisdictions like England, USA and Nigeria decided to seek for a solution and voila-the antidote was Alternative Dispute Resolution (ADR). With the interest of their citizens at heart, they ventured into other forms of dispute resolution to reduce the frustration of their citizenry through ADR, this was a chance of creating a win-win dichotomy, this approach saves cost, less antagonistic and non-adversarial. The Holy bible was able to encapsulate this thinking in Mattew 5:25  “Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and you may be thrown into prison. I tell you, you will not get out until you have paid the last penny.”

Against this backdrop, leveraging on maintaining cordial relationships and saving cost between parties after the disputes were settled are the underlying elements of ADR.

 

Problems with litigation

In England, the issues of costs and delay in court led to the countless quests to reform litigation. Nevertheless, ADR became a vital part of the civil justice reform agenda after the high review of civil litigation and lawyers activities undertaken by Lord Woolf in 1995.[1] Thus the introduction of the Lord Jackson reform in 2013 was to tackle the proportionality of cost and uphold justice. Hence, the overriding objective was to deal with cases equitably; and to reduce the cost and delay that has been an integral part of litigation inherent in the past system.[2]  Because prior to this review, it was discovered that smaller claims of the cost of cases were more expensive than the value of the claims. Thus, the question is has this recent restructuring of the court helped reduce the costs of litigation in the UK?

Not really, Leggatt and Williams, has shown that the cost of litigation in the past and present years discouraged a lot of litigants, thus they stated,’ for the rationale or sensible man of an average income the system is falling short except when his cause is championed by the insurance company, trade union or other such organisation.’[3]

They went ahead to elaborate on the problems of court congestion and delay in England by the statistics available in their works. These figures show that there was a significant increase in 1967 in the High court in England, which was congested and the litigants faced substantial delays.[4] For example, in London, there was a waiting time of eight to nine months for a fixed date in the Queen’s Bench Division. Also, outside London because of the priority is given to the Criminal work over half of the Civil actions entered for the trial had to be postponed from one day to the next and thus a lot of settlements were forced upon the litigants who could not afford the delays or tolerate the old court system.[5]

Though this system was later reformed in 1971, and the issue of delay reduced a bit. However, the undeniable fact was that delay still troubled the legal system, aside from the problems mentioned above, the issue of not having enough judges contributed to delay in litigation as well.

In the same vein, the statistical analysis for the reform of the final report on civil litigation costs by Lord Jackson in 2013 was prompted by the issue of cost and an associated factor of delay. It would, therefore, hold through that heavy caseloads and delay had been a significant issue in England, and it appears that nothing had significantly changed in 2014.

In different jurisdiction like the USA, the Chief justice Earl Warren, summed up the issue of court congestion and delay in the federal courts in America, he posits ‘that the shocking congestion and delay has created a critical issue or difficulty for the constitutional government in the United States of America’.[6]

In support of the above contention is the Nigerian case of Ariori v Muraimo Elemo, which began from October 1960 and took 23years to get to the supreme court of Nigeria.[7] These excessive and regular delays in the court procedures in the  Nigeria jurisdiction (I cannot resist the pun) have the same adverse effect on the administration of justice in these countries. Given the preceding, litigation from the above perception has finally run its course because the expectations for litigants from different jurisdiction has been frustrated. On the contrary, it appears in recent years, that arbitration can be perceived to be conducted in a timely fashion, and cost-efficient way than litigation. Lending credence to the above is the statistical analysis carried out by the American Bar Association that overall 78% of those surveyed believed that arbitration is faster than litigation and 56% felt that arbitration is more cost-efficient than litigation.[8]Therefore on that basis, it can be said that arbitration is efficient and effective for the simple reason that the arbitral procedures have been unequivocally tailored or streamlined to meet the needs of the parties. This is reflected from the regular changes made by the arbitral bodies to continue to meet the aspiration of its users in the process of dispute resolution.  Which is in tune with the distinctive modifications made by the different arbitral institutions in various Jurisdictions. For example, the  International Chamber of Commerce-ICC, American Arbitration Association -AAA, London Court of International Arbitration-LCIA International Centre for Dispute Resolution-ICDR, Hong King International Arbitration Centre- HKIAC, Singapore International Arbitration Centre-SIAC, Vienna International Arbitral Centre-Vienna Rules and The Swiss Rules of International Arbitration-Swiss Rules have made a significant amendment to their new rules; by modelling a thoroughly structured set of rules that will lead to a fast track proceeding and expedites growth of international commercial arbitration.[9]

While these dramatic changes are taking place in the arbitral institutions worldwide, it appears that the area of litigation seems to be content to carry on business as usual. For instance, the only remarkable thing that has happened in term of addressing the issues plaguing litigation in England in the last 50 years has probably been the Lord Wolf reform in 1999 which finally resulted in the creation of the landmark document now famously known as the Civil Procedure Rules. Following closely with the success of Lord Woolf, the government decided it was time to pay close attention to the issue of cost that has continued to plague litigation for over 200 years. The Lord Jackson reform has received favourable reviews from practitioner, judges and has been hailed as a timely intervention in an area that has been waiting for government intervention. While the Jackson reform would go a long way to address issues of cost and proportionality, it goes nowhere long enough to match up with the radical changes taking place in the arbitral institutions. Listed below are examples of efforts made by the different institution who are apparently on the verge of giving excellent business practice for proficient users worldwide and this demonstrate that litigation, because it is sponsored by the government, does not have the will and desire to match the changes taking place in the arbitral world.

EFFECTIVENESS OF ARBITRATION IN COMPARISON TO LITIGATION

It is a known fact that the court system is currently clogged with many cases sighting the grievances nursed by various parties.  However, arguments have been put forward to illustrate the effectiveness of the arbitral process. In recent years, arbitration which is under the umbrella of Alternative Dispute Resolution (ADR) can be said to be cheaper and efficient because the procedures have been explicitly tailored to meet the needs of the parties. Due to the changes in its processes and features, arbitration has become more streamlined, hence making it a useful mechanism in the reductions of parties’ participation within the national courts. It is noted that the various bodies have been set up to oversee and streamline the processes of the arbitral process in order to make it more effective.

 

  • ICC International Court of Arbitration: The ICC is an administrative arm of the ICC with the sole purpose of overseeing the arbitration process. (They are different from the national courts and the judicial system.)

A very distinctive change made by the ICC new rules and Swiss rules was the provision allowing a party to apply for an emergency arbitrator to make orders pertaining to conservatory measures that cannot await the constitution of an arbitral tribunal.[1]Consequently, this provision under Article 29 and appendix V empowers a party to appoint an emergency under two days, and this provision has been hailed as a way that the ICC has made it possible to limit the powers of the national court from interfering with the work of the tribunal.[2]

  • Vienna Rules: A very significant change made by the “Vienna rules” in their new rule under Article 45, contains a legal provision for expedited proceedings.[3]

However, this new rule will be effective or applied, only when parties explicitly included them in their arbitration agreement or consequently agree on their application.[4]On the contrary, this new rule is quite different from the emergency provision fast proceedings provided by the ICC. In contrast, the Vienna rules have taken a different approach by developing efficient rules unambiguously aimed at making proceedings more effective. An exceptionally key feature is Section 45 stipulated for sufficient time limits, restriction or limitation of procedural steps, confident that they will not encounter any issues with relating to the applicability of the New York Convention and the use of contemporary means of communications.[5] Amongst all this, Article 45(8) went further to clarify the short time limit of six months for rendering a final award which may be extended by the secretary-general and time limit will not deprive the arbitral tribunal of its jurisdiction. In other words, Article 45 provides a well-balanced set of rules for fast track proceedings without reducing the quality of proceedings and full right to be heard.

These rules are all new and the only answer that litigation might produce is the reform by Lord Woolf that is almost 15 years old. The writer of this paper is of the view that even though that are no many challenging changes made to litigation that does not make litigation inefficient. In this respect, it is averred that arbitration is more contemporary and more in tune with the needs, desire and aspiration of its users than litigation can almost ever hope to be.

  • The International Centre for Dispute Resolution (ICDR) of the AAA: The ICDR is an International division of theAmerican Arbitration Association. The centre has modified its rules to ensure that efficiency receives adequate attention. They have also organized from time to time certain firm administrative practices and in addition in recent years, introduced several new provisions to enhance the dominance of international arbitration practices.[6] These changes, unlike the ICC rules which only stipulated for the emergency arbitrator, made ICDR arbitration quite distinctive and distinguishes it from other institutional alternatives. These addresses matters such as consolidation, joinder and e-disclosure that the old rules do not have. For instance, parties find the ICDR list method for appointing arbitrators to be the best alternative to resolve the rigidity between respect for party input and the excesses of party appointments. [7] The old rules had no mention of expedited arbitration, unlike the new Article 1(4) rule which contains the appointment of a sole arbitrator and will apply in any case where no disclosed claim or counterclaim exceeds USD$250,000 exclusive interest and costs of arbitration.[8] Hence, the new rule provides for an international expedited procedure and distinguishes itself from the ICC, LCIA and UNICTRAL rule which contains the above provisions that were discussed above. Additionally, the new rules explain the institution’s listing criteria and other necessary information to facilitate the smooth administration of the arbitral proceedings. Consequently, these new rules which are a step further than the old rules in establishing methods under Article 20(7)  to avoid delay and cost, increasing both the arbitrator’s powers and the parties obligations in this regard. These rules also went further to contemplate how parties might consider new technology to increase efficiency and economy of the proceedings.[9]The major factor that distinguishes the new ICDR with the other arbitral institutions is that parties intending to choose the expedited procedures may consider including into in their clause.  It is noteworthy that these rules contain provisions for emergency arbitrators, and this will provide an effective and efficient arbitration.
  • SIAC-Singapore International Arbitration Centre :

Flowing from the above, it is evident that the arbitration rules of other arbitral institutions more gradually comprised the same provisions for the appointment of emergency arbitrators and the granting of emergency relief.

The SIAC became the first international arbitral institution based in Asia in July 2010 to adopt and introduced provisions that allowed a party to seek the appointment of an emergency arbitrator explicitly to deal with requests for urgent interim relief before a Tribunal is constituted.[10]Also, they adopted the popular expedited provisions (EP) under Rule 5 of the SIAC 2013 (Which was first introduced in July 2010) which provided that arbitrations conducted in the EP, the award to be made in within Six months. Thus, from August 15th 2014(and since the introduction of EP provisions in 2010) the SIAC has recorded a total of 143EP of which 998 applications have been granted.[11] It is apparent that the above rules serve to improve the effectiveness of the arbitral process.

It is apt to point out that also since the inception of these provisions in July 2010 SIAC has recorded over Thirty-four (34) applications of caseloads which have been filed with SIAC. Moreover, cases have come from different areas for an instant, in the shipping sector, corporate joint venture disputes, and International trade and general commercial agreements; and have involved numerous jurisdictions, like, Singaporean, Indian, Chinese and Indonesian parties. Also, 2013 saw a new record year for SIAC.[12]Building upon its landmark accomplishment in 2012, new case filings increased by a further 10% from 235 new cases received in 2012 to 259 new cases received in 2013. Additionally, Singapore’s International Arbitration Act was amended in 2012 to provide for the enforceability of the awards and orders issued by emergency arbitrators in Singapore-seated arbitrations and also arbitrations seated outside Singapore.[13] Consequently, this makes Singapore the first jurisdiction worldwide to adopt a law for the enforceability of such awards and orders in Singapore. It is evident from the above study that caseloads handled by SIAC and the number of different jurisdictions it has attracted buttresses the fact that in recent years that the popularity and effectiveness of arbitration have grown due to the flexible way that laws are being reformed on an international basis or level is to provide a speedy alternative means of resolving disputes unlike in the national courts. Hence, this study has shown that the changes made by the arbitral institution like SIAC and other bodies have directed or guided disputants or users to use arbitration to resolve their disputes. Hence, international arbitration in recent years is more secured than litigation because of the above-mentioned reforms and techniques that have been adopted to help resolve conflicts expeditiously and also supports the fact that SIAC’s is one of the fastest-growing arbitral institutions in the world.

3.3.5 LCIA-London Court of International Arbitration: The old rules of the London Court of International Arbitration do not provide for procedures in relation to emergency relief. It is apt to point out that in 2014, the LCIA is currently in the process of finalising the new rules which currently include an emergency arbitrator provision. Additionally, the new rules also have means for the expedite structure of an arbitral tribunal. A party may submit a written application to the LCIA Court setting grounds to request for the expedited formation of an arbitral tribunal. It is obvious from the new rules mentioned above demonstrates the amount of effort injected into the institutional rules to make arbitration to be dispensed in a more timely and cost-effective manner. This will ensure that users have a faster and trouble-free hearing. It is apt to point out that, the evidence provided above has shown that due to flexibility and efficiency in arbitration, litigation cannot compare nor have any responsibility for the new expedited rule and emergency arbitrators. This is not to ignore that litigation has its own provision for accelerated hearing. Part 28 of the CPR provides for fast track hearing and the effect of this, is that the hearing, and including the passing of judgement has to be completed within a given period in one day.[14]

Conclusion

The above provisions by the arbitral institution have given arbitration an advantage over litigation because it curtails the involvement of the court were parties or institution will like to apply for an emergency arbitrator who can hear urgent applications and make interim orders. Hence, it introduced a sense of contract of freedom in arbitration where parties are at liberty to structure their business trades as they desire as long as they designated for arbitration and parties are at liberty to draft their arbitration clause to include mediation if the dispute was not settled in arbitration.  This is another flexibility provided by the arbitral institution to encourage parties to select arbitration rather than litigation. Thus given arbitration the much-needed edge over litigation.

 References:

[1]Mark Baker, James Rogers, Marrion Edge (eds), NortonRoseFulbright (2013) 1 International arbitration report, 24.

[2] The ICC Rules of Arbitration 2012, Article 29.

[3] Vienna Rules of Arbitration 2013, Article 45.

[4] Ibid Article 45(1).

[5] Irene Welser, Overview-Austrian Yearbook on International Arbitration: Efficiency-Today’s Tool in Arbitration Proceedings (Austrian Publication 2014) Chapter II.

[6] Paul Friedland, John Templeman, The New ICDR International Arbitration Rules (White & Case LLP 2014) 1.

[7] Ibid 1.

[8] The International Centre for Dispute Resolution 2012, Article 1(4).

[9] Ibid Article 20(7).

[10] SIAC: Emergency Arbitrator Provisions: An update (2013)<htpp: //www.siac.org.sg> accessed 2nd July 2014.

 

[12] Singapore International Arbitration Center (Annual Report 2013) 4.

<htpp: //www.siac.org.sg> accessed 2nd July 2014.

[13] SIAC Emergency Arbitrator Provisions: An update (n110).

[14] Civil procedure Rule 1999, Part 28.

[1] Penny Brooker, Mediation Law: Journey through Institutionalism to Juridification (Routledge Taylor &Francis Group  2013) 2.

[2] Stuart Sime, Derek French, Blackstone’sGuide to the Civil Justices Reforms 2013(Oxford University Press 2013) 10-12.

[3] Andrew Leggatt, W.M.H.Williams, Cost, Delay and Other Problems of Contemporary Litigation in England (2013) N15 IALS  2.

[4] Ibid 2.

[5] Ibid.

[6] Julius Miner, William Campbell, Court Congestion: A New Approach (1959) 45 America Bar Association Journal12, 1-5.

[7] [1983]LPELR-SC.80/1981.

[8] Scot Atlas et al, ABA Section of Litigation: Taskforce on ADR Effectiveness Survey on Arbitration [2003] American Bar Association    <htpp: // www.apps.americabar.org>accessed 18th July 2014.

[9] ICC Rules of Arbitration 2012, Article29.

  • Carlo Osi, Understanding Indigenous Dispute Resolution Processes and Western Alternative  Dispute Resolution Cultivating Culturally Appropriate Methods in Lieu of Litigation. 31

<https://cardozojcr.com/vol10no1/163-232.pdf> accessed 27th September 2019

Kevin Ndubuisi Nwosu (eds), Legal Practice Skills & Ethics in Nigeria in Honour of Chief Babatunde Abiodun Ibironke, SAN (2004) Published by DCONconsulting.

Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC)as a Case Study

The Lagos Multi-Door Courthouse (LMDC) Office at Igbosere- Lagos State|Nigeria.

 

 

Introduction

The alternative dispute resolution (ADR) process has been going through phases of advancement all over the world from the late ’60s to date. This is particularly characteristic of advanced world countries. Within Africa, the concept of ADR is gaining immense popularity and significance. Taking Nigeria into context, reference will be made to introducing the Lagos Multi-Door Courthouse (LMDC) in 2002. The Lagos Multi-Door Courthouse (MDC) was conceived to provide clients and their counsel with practical alternatives for resolving disputes in commercial and other types of disputes as part of the public justice system.

 

The Relevance of Using Lagos State as a Case Study

Lagos is one of the biggest commercial or industrial cities in Africa.[1] Almost all new ideas of Law or legal development of the legal system in Nigeria originated from Lagos state, the federal capital territory of Nigeria, from 1914-1991. For instance, Lagos was the first to introduce the new civil procedure rules in 2004 based on Lord Woolf’s reform.[2] Lagos is widely known in Nigeria as the “Centre for Excellence.” Population wise, as of 2019, Lagos has over a 25million inhabitants with over 250 ethnic groups represented in Lagos as residents with a reasonable number of international or foreign citizens resident for various economic purposes. [3] Also, Lagos is blessed with enormous water resources and land resources, thus making Lagos inevitably the commercial capital of Nigeria and Africa due to the seaport location in Lagos.  Hence, the attraction of various international companies like the six major foreign oil companies, which dominated the Nigerian oil industry today (Shell, Exxon Mobil, Chevron, Elf, Agip and Texaco), were already present in Lagos- Nigeria, to set up their businesses in Lagos by the early 1960s.[4]

In the same vein, Lagos is the first state and first Africa continent to create a Multi-Door Courthouse for speedy dispensation of justice. This means that it provides an efficient justice system that will allow trust and confidence in the running of its state that will permit or enable business and growth to strive; this has sustained the tempo since its creation in 2002. Thus the blogger refers to the LMDC as ‘Jagaban’ (Jagaban-boss of all bosses but in this context means ‘first of its kind’).

The scheme is currently incorporated as part of the justice system. Its relevance has developed due to its unique way of linking cases to appropriate forums for appropriate settlements through ‘the Multiple doors’- Arbitration, Mediation, Negotiation, Early Neutral Evaluation and the Hybrid process. Enquiries or questions have been asked about its simplicity and amenable nature, especially when compared to litigation. The blogger seeks to answer these questions and provide insight into the effectiveness and its impact on other states so far, particularly the Enugu State Multi-Door Courthouse (ESMDC).

                                                    

 The Causes of Conflict / Disputes

Generally, when a person wants to achieve specific goals and the person’s goals were not met, they experience frustration which leads to anger. This anger can be channelled out in maladaptive ways. It is essential to point out that if the societal expectation is too heavy on the individual or they cannot meet up with what is expected of them from their group, this can lead to conflict or dispute.  It is essential to state that this blogger would use the terms dispute and conflicts interchangeably.

 

Through the View Lens of Maslow’s Law

One of the ‘needs’ of human beings, according to Abraham Maslow,[1], is a sense of belonging(ness)[2].  This is one of the needs that a human being psychologically needs to be able to feel well, but only when they belong and feel accepted within a  particular group.[3] Similarly, Burton asserted that human needs are usually the core cause of conflict between people.[1] He went ahead to describe the interaction of human conflicts/disputes and how they seem to affect the result of conflict, the individual or group of individuals.[2]  Especially in Africa, where one must introduce themself within the group. For example, if you meet a man in the village and ask him ‘who you are? He will respond with an answer ‘I am Obiesie, son of Nkachukwu Egbunike.’

 

How is Maslow’s theory related to Dispute Resolution in Africa?

Everybody comes from a kindred, so an average Africa defines himself within his family, within his group. The African would be defined by what his group says of him or thinks of him. This is a common thing and is a general practice in Africa. Although we are all social beings, its society (pun intended) influences them in African society; what they usually think of themselves is what people in the group or unit, like their parents, friends, siblings, and colleagues, think of them.

Professor Ebigbo’s harmony restoration theory validated the above viewpoint:

“African views an individual in its holistic totality within oneself in relation to the forces the individual believes in: the ancestors, the various spirits, powerful forces emanating from the supreme being (God) and infused into trees, humans, forces of nature, fauna and flora, and of course in smaller gods. For the African, one is not at ease, or is indeed ill, if there is an alteration’ or conflict between himself and the person’s world of relationships.’ [1] … “The relationships that are important to the individual outside the family also belong to the mesocosmos, in other words, co-workers, classmates, roommates, co-religious members, friends, etc. To the extent that there is a relationship between the individual and places, situations, objects, animals such as pets, etc. The mesocosmos and the exocosmos represent a vital world of relationship to the ancestors, spirits, deities, gods, and indeed all forces outside of one but which are outside the concrete world of relationships.”[2]

Thus the relationship that the individual has with his world is referred to as ‘Mesocosmos.’ Putting the above view into context, where dispute or conflict has reared its ugly head, then it follows through that ‘things have fallen apart’ between oneself and/ or his unit or group, which invariably leads to frustration and distress. This frustration or distress will be restored as soon as the dispute is resolved. I embrace the aforementioned theory made by Professor Ebigbo but not wholly because faulty relationships can be likened to conflict cannot be entirely resolved’ without those groups or kindred sitting down to listen and dialogue. Hence the person who is at fault will either apologize to the kindred/ groups or unit after they must have given their verdict.

Consequently, harmony/ peace is restored, which is the main strongholds of ‘traditional dispute resolution’; this practically enables living as ‘one’, which is one of the many benefits of the Traditional African Society (TAM)’ [7]  [8]‘. This saying in African, “a tree cannot make a forest[9],” validates the above thinking – this is relatable or in tune with how disputes or conflicts are resolved in Nigeria.

It is essential to point out that in the case of a land dispute, both parties will make concessions by either giving up the land entirely or half of the land before the dispute is resolved or a rift in their relationship will be fully mended. The above viewpoint is supported by the recent case of Chief Emenike Mgbemena v. Nze Ezeakaibie[12], where the Traditional Supreme Council of Obosi (TSCO) elder/ kindred ( a neutral party) settled the dispute between the aforementioned parties after listening to the complaint from both parties, a verdict was reached.  Nze Ezeakaibie was asked to apologize to Chief Emenike for peace to reign in both families. This case validates the point regarding dispute resolution in Africa – as people who are not on good terms with their families and communities tend to suffer a lot of seclusion like ‘ostracisation’, which is still prevalent to date. It is pertinent to point out that in Africa, Nigeria to be precise, they do not have enough psychotherapists, but what comes to help in health problems and in the same vein in restoring conflict/dispute is the social groups –  the elders, the families, the strong extended families system, the kindred, the villagers and in recent years the churches [13] and the mediators.

The above-stated assertion resonates with the Ubuntu philosophy.[1] which signifies respect for humanity, respect for living in harmony with their group. [3].On the other hand, some proponents of the Traditional African Method of Settling Disputes (TAMSD) have insisted that this dispute settlement service brings parties involved closer than the legal system. However, some leaders in the alternative dispute resolution movement have pointed out that these traditional institutions are no longer as important as they once were in fostering social harmony or settling disputes.

 

 African or Alternative Dispute Resolution (ADR)?

Greco has argued that the various communities in Africa have used Alternative Dispute Resolution (ADR) before the advent of the colonial masters. For example,  in East Africa-(Uganda), the Europeans’ arrival ushered in the new era or style of ADR.

On the other hand, Professor Nadar described this as a modern ADR movement that seeks a kind of global uniformity. In Africa, Christian missionaries began to replace the local dispute resolution structure, which often varied from village to village, with one that was more consistent and more European.[1] As colonialism began to fade, there was a belief that the Africans needed to be educated in the Western rule of Law to govern them rightly to become more civilised.[2]. However, Elisabetta Grande begged the question. Does this mean that we are experiencing a new kind of legal transplant, a transplant from less complex to more complex societies?

On the contrary, Dr Emilia Onyema stated that there were different methods of settling disputes in various communities in Nigeria before the colonial era. Though they were no unified or centralized States in their modern construct in these communities. Thus, the idea of state-sponsored and managed dispute resolution such as litigation was unknown in these communities.[4] Therefore litigation was an alternative to these African communities by their European Colonizers.

Conversely, Okereafoezeke, in his book, observed that the British colonists forcibly changed the face of social control and in Igbo and other parts of Nigeria by imposing English Law and Justice on Nigerians.[5] Consequently, litigation thrived than the private and traditional processes of dispute resolution.[6] Dr Onyema observed that one of the reasons for this shift was the availability of the state-backed sanctions in support of the state courts’ decisions.

Hence, the underlying factor of the Traditional African Method of Settling Disputes (TAMSD) is that it thrives on peace, compromise and consent of both parties.  These are what legitimizes the entire decision, which is similar to the western ADR. However, the rise of the ADR mechanism with the same attributes/ benefits of the TAMSD has resulted in managing disputes effectively and maintaining a cordial/ business relationship. Hence, ADR is not an alternative for Africa; rather, it is an African original way of settling disputes.

 

The Birth of the Jagaban -Lagos Multi-Door Courthouse (LMDC)

The ADR centre is a public-private partnership between the High court of Justice Lagos state and the Negotiation and Conflict Management Group under the sponsorship of Kehinde Aina who is the founder of the NCMG and the Multi-Door court scheme in Nigeria. Mr Aina stated that he was inspired by the Multi-Door Court Scheme in America, which was founded by the late Professor Frank Sander in 1976. Thus  the LMDC was birthed in 2002, and LMDC law was enacted in 2007 (and reviewed in 2015) in a bid to reduce the dockets of the court and promote a faster case flow management system which aligns with the overriding objective of the LMDC as stipulated in Section 29 of LMDC Act 2007 is as follows:

Chinwe with the LMDC founder-Mr Kehinde Aina

a) To enhance access to justice by providing alternative mechanisms to supplement 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)

c) serve as the focal point for the promotion of Alternative Dispute  Resolution in Lagos State; and

d) promote the growth and effective functioning of the justice system through Alternative Dispute Resolution methods.

Aside from the aforementioned LMDC Law, there are other functions and roles of prominent justice stakeholders, some of which are as follows:

 

The Purpose of the Court:– Section 16 of the LMDC Law states that the high court of Lagos state controls and manages proceedings effectively. This includes a referral by the court to use ADR to explore settlement in LMDC whenever one of the parties is willing to do so.

The ADR Judge’s role:– Under Section 15 of the same Law -Judge’s are mandated to require the attendance of defaulting party before him to show cause why he or she has refused to submit to ADR. After such a hearing, the ADR judge can give orders as he/ she deems fit in the event of fulfilling the overriding objectives of the LMDC.

The Role of the Lawyer:– By section 17(3a), a lawyer is expected to give due consideration, support to suggestions, directives and orders from the court for an amicable settlement or referral of ongoing matters to the LMDC.

The Role of Parties:– Section 18 stipulates that the disputing parties are to cooperate with the administrators of the LMDC in administering their dispute settlement. They also have a responsibility to seriously consider the adoption of the ADR process and procedures when encouraged by the courts, their lawyers or the LMDC.

Enforcement:- Section 19 of the LMDC Law provides that on the completion of an ADR proceeding, settlement agreements which are signed by the parties shall be enforceable as a contract between the parties. Consequently, if such agreements are endorsed by an ADR judge, they shall be deemed to be applicable as a consent judgement of the High Court of Lagos State.

The provisions of these Laws demonstrate that the LMDC is a fast track dispute resolution centre and carries the stamp of enforcement like any other judgment of the High court of Nigeria. It is essential to point out that LMDC is the first of its kind in Nigeria and in Africa continent is set to promote and encourage the use of Court-connected ADR (which is similar to the Traditional African Method of Settling Disputes) for the efficient settlement of all kinds of cases in Lagos state.

 

The Humble Beginnings of the Lagos Multi-Door Courthouse (LMDC)

The first office space took off in a thirty-five (35) square metre chamber of a judge with only a cubicle-like room for mediation. However, it grew wings just like an eagle who is anxious to catch food; the resulting effect is that in over three years, its operations and office space increased. The first extension was in December 2002 when the criminal court was vacated for the centre’s use. The three other extensions that comprise a storage room, the account’s section, and the then court Ten (10) took place between 2003 and 2005. Fast forward to 2019, LMDC sits in an upstairs building with about 30 rooms or more in the premises of the High Court of Lagos State in Igbosere, with another office (ADR Track) in Ikeja, which is in Lagos mainland. As depicted in this work, the expansion and the work the LMDC team has done so far simply demonstrate the LMDC team’s resilience, bearing in mind the ‘Nigerian factor.’ Despite that, the LMDC has thrived and thus far has contributed to the decongestion of the court’s dockets in Lagos State.

 

Conclusion

The blogger has explored some preliminary background issues relating to Lagos state’s court structure and why it was necessary to introduce the LMDC in the Nigerian clime, which is similar to the TAMSD- to enhance access to justice.

In furtherance, the work laid a brief foundation on the history of TAMSD, what ADR means in Nigerian jurisdiction and highlights its contribution and benefits in terms of restoring relationships and settling disputes informally.

 

References: 

Elisabetta Grande,  Dispute Resolution, Africa and the Structure of Law and Power: The Horn in Context  (Journal of African Law, 1999, Vol. 43, No. 1 1999)

[4] Chinwe Umegbolu, Dispensation of Justice: Lagos Multi-Door Courthouse  (LMDC)  as a Case Study in Nigeria. (Ongoing research at University of Brighton 2018-2021)

[1] Mfuniselwa Bhengu, ‘The Locus of Ubuntu within the Christian Church in Africa’ (2016) Academia Edu p.10

[2] Center for Khemitology, ‘ Ubuntu Philosophy’ Short Course attended by the blogger  2020) accessed 29th March 2020

[3] Bhengu, ‘The Locus of Ubuntu within the Christian Church in Africa’

Diane Moore, Methodological Assumptions and Analytical Frameworks Regarding Religion Part One (2020) p.2 (Course attended by the blogger).

[1] Peter Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ (2017) International Journal for Psychotherapy in Africa (2:1) p.22

[2] Ibid

[3] Innocent Uwah, ‘The Representation of African Traditional Religion and Culture in Nigeria Popular films’ (2011) Religion, Media and Politics in Africa p. 81

[4]Toyin Falola, Heaton, Matthew, A History of Nigeria (Cambridge University Press 2008) p.5

[5] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.22-23

[6] Ibid

[7] Chinwe Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’ (2020) 39 (1) Resolution Institute | the arbitrator & mediator p.3

[8] Ibid

[9] Ugo Ikwuka, ‘Perceptions of Mental Illness in Southeastern Nigeria: Causal Beliefs, Attitudes, Help-Seeking Pathways and Perceived Barriers To Help-Seeking’, University of Wolverhampton 2016)p.i

[10] Sherif, Group Conflict and Co-operation: Their Social Psychology p.21

[11] Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’

[12]Chief Emenike Mgbemena v. Nze Ezeakaibe (Traditional Supreme Council Obosi 2019 unpublished)

[13] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.50

[1] Olexandrivna, ‘The Conflict within the Concepts of Needs Abraham Maslow and John Burton: Archetypal Analysis’

[2] Ibid

[1] Zozulia Olexandrivna, ‘The Conflict within the Concepts of Needs Abraham Maslow and John Burton: Archetypal Analysis’ (2017) Faculty of humanities and social technologies, National Technical University “Kharkiv Polytechnic Institute”, Ukraine p.93-94.

[2] Ibid

[3] Saul Mcleod, ‘Maslow Hierarchy of Needs’ ( 2007) Highgate Counselling Centre p.2

[4] Olexandrivna, ‘The Conflict within the Concepts of Needs Abraham Maslow and John Burton: Archetypal Analysis’

[5] Ibid

[6] Peter Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ (2017) International Journal for Psychotherapy in Africa (2:1) p.22

[7] Ibid

[8] Innocent Uwah, ‘The Representation of African Traditional Religion and Culture in Nigeria Popular films’ (2011) Religion, Media and Politics in Africa p. 81

[9]Toyin Falola, Heaton, Matthew, A History of Nigeria (Cambridge University Press 2008) p.5

[10] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.22-23

[11] Ibid

[12] Chinwe Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’ (2020) 39 (1) Resolution Institute | the arbitrator & mediator p.3

[13] Ibid

[14] Ugo Ikwuka, ‘Perceptions of Mental Illness in Southeastern Nigeria: Causal Beliefs, Attitudes, Help-Seeking Pathways and Perceived Barriers To Help-Seeking’, University of Wolverhampton 2016)p.i

[15] Sherif, Group Conflict and Co-operation: Their Social Psychology p.21

[16] Umegbolu, ‘Bargaining in the Shadow of the Law: The Facts of Divorce As They Stand Today’

[17]Chief Emenike Mgbemena v. Nze Ezeakaibe (Traditional Supreme Council Obosi 2019)

[18] Ebigbo, ‘Harmony Restoration Therapy: Theory And Practice’ p.50

[1] Ibid

[2] Ibid,

[3]William Idowu, ‘African Jurisprudence and the Reconciliation Theory of Law’ (2006) 37 Cambrian L Rev 1 p.5

[4] Emilia Onyema, Rethinking the Role of African National Courts in Arbitration (Published Wolters Kluwer 2018) p.13.

[5] Nonso Okereafoezeke, Law and Justice in Post -British Nigeria Conflicts and Interactions between Native and Foreign Systems of Social Control in Igbo (Library of Congress cataloguing-in-publication Data 2002) p. 13.

[1] Theodora Kio-Lawson, ‘Lagos State Judges take a stand on ADR’ BusinessDay (Nigeria) <www.businessdayonline.com> accessed 20th February 2020 p.37

[1] Sir Alan Burns, History of Nigeria (Updated Paperback Edition of the Eighth Edition with revisions George Allen & Unwin Ltd 1978) 18.

[2] A Compendium of Articles Alternative Dispute Resolution (ADR): The Association of Multi-Door Courthouses of Nigeria. p.7

[3] Ibid (n1)18.

  1. [4] Jedrzej George Frynas, Litigation in the Nigeria Oil Industry: A Socio-Legal Analysis of the Legal Disputes Between Oil Companies and Communities (A Thesis Submitted for the Degree of PhD at the University of St Andrews 1999) 18.
  2. A Stone Plaque discovered by the blogger at the Lagos Multi-Door Courthouse…The ADR Centre… (Date of Launch- 2012)

3. Lagos Multi-Door Courthouse Law 2007

4. Lagos Multi-Door Courthouse  Law 2015

5. The Lagos Multi-Door Courthouse…The ADR Centre… The Lagos Multi-Door Courthouse Neutrals’ Handbook 2016. p10-11

6.Johnson Olawale, What ‘Jagaban’ really means in Nigeria accessed 1st January 2020