Appropriate Dispute Resolution

APPROPRIATE DISPUTE RESOLUTION
The Search for Viable Alternatives to

Litigation and Arbitration in Nigeria
Okey Uzoechina
Uzoechina, Okechukwu Lawrence
Okey Uzoechinai
© 2008
Page2
ABSTRACT
L
awyers are social engineers, and as such, a lawyer’s workspace should extend
beyond the courtroom and into the wider society. Sadly, the appreciation of
dispute resolution skills as tools for social engineering among lawyers in Nigeria is
very narrow. The average lawyer believes that he should not concern himself with
other methods of resolving disputes outside the courtroom, alias Alternative Dispute
Resolution (ADR). The straitjacketed training and orientation of the Nigerian
lawyer—until recently—in litigation and litigation alone leaves him ill-equipped to
practise his trade effectively with the formal integration of ADR into our courts
system, and incompetent even to give life to the numerous provisions in our laws
prescribing ADR. There is therefore the need to approach the problem from a more
nuanced frame, hence the modification “Appropriate Dispute Resolution”.
This paper sets dispute resolution and conflict management in a broad perspective,
highlighting entry points for alternatives to litigation and arbitration in our body of
laws in Nigeria and, where appropriate, drawing lessons from extra-legal best
practice in making suggestions for further development of the law and practice of
dispute resolution. It also introduces a robust democratic governance dimension
which advocates the mainstreaming of dispute resolution into governance structures
and post-conflict peacebuilding in order to foster development. The approach used
is two-fold: diagnosis and prognosis. The first step is to examine the conduct of
litigation and arbitration in Nigeria as it affects time and cost, and to identify the
factors that contribute in clogging up the judicial system, thereby aggravating costs.
Secondly, as a panacea to the above-stated ailment, to seek ways to boost the
efficiency of our judicial system and arbitral regime, and to attempt to evolve a
functional synergy between litigation/arbitration on the one hand, and other

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complementary methods to achieving effective dispute resolution on the other.

CONTENTS
Chapter One: Introduction 6
 Conceptual Clarification
 Book Map: Approach and Organization
 Placing Dispute Resolution in Context: What Works Where and Why?
o A Cultural Dialogue
o Unintended Consequences of a Foisted Legal System
o Lessons Learnt: Back to Our Roots!
Chapter Two: Viable Alternatives: The ADR Paradigm 20
 The Place of ADR in Justice Delivery
 The ADR Menu
o Core Processes
o Hybrid Processes
 Enforceability of ADR Settlements
Chapter Three: The State of Our Laws and Institutions on ADR 29
 The Changing Tide
 Prescribing ADR: Who Does What and How?
o Duty of the Court
o Duty of Counsel
o Duty of Third Party Neutral

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Chapter Four: Relevance of Dispute Resolution in Governance 45
 Instrument for Democratic Governance
 Mechanism for Conflict Prevention and Peacebuilding
 Tool for Policymaking
 Vehicle for Promotion of Investment
 Enhanced Criminal Justice Administration
 De-escalation/Resolution of Armed Conflict
 Post-Conflict Reconciliation and Transitional Justice
Chapter Five: Suggestions for Reform 68
 Sustenance Through Increased Funding
o Upgrading Infrastructure
o Developing Human Capacity
 Improvements to Maximize Efficiency
o Incremental Judicial Case Management
o Non-Court-Connected and Faith-Based Dispute Resolution
 Consolidation for Lasting Gains
o Mainstreaming ADR through Formal and Civic Education
o Increased Collaboration of ADR Experts and Institutions
 The Last Word
Bibliography
Appendix A: Statistics on Duration of Arbitration Appeals
Appendix B: Dispute Resolution Strategies Continuum

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Appendix C: Legal Rules, Statutory and Treaty Provisions Relating to ADR

CHAPTER ONE
INTRODUCTION
The world... is moving at a pace that demands our Justice System succumbing to
change to find relevance in today’s borderless village. Access to Justice means
more than access to the courts. Access to Justice means providing access and
opportunity for a just and timely result.
Hon. Justice Dolapo Akinsanya1
Conceptual Clarification
C
onflict is a natural phenomenon and an unavoidable consequence of human
interaction in any society. Some people use the terms “conflict” and “dispute”
interchangeably. Whereas the two terms are not exactly coterminous, there can
hardly be the one without the other. But it would amount to oversimplification to
view it as a simple cause-effect relationship. A better way to explain the relationship
is by drawing the analogy of the simple mechanism of a wheel. For there to be any
movement, the motion of the wheel causes friction between the wheel and a surface,
often generating heat in the process. The motion corresponds to human interaction
(prime cause), friction to dispute or disagreement (level 1 effect), and heat to conflict
(level 2 effect). Conflict is therefore manifested when persons or groups of persons
dispute over core values, scarce resources, roles and obligations. Thus defined, it is
therefore appropriate to talk stricto sensu about dispute resolution or settlement, and
conflict prevention or management or de-escalation. Since the two strings of effect
1
Chair, Lagos Multi-Door Courthouse (LMDC) Steering Committee, in her Welcome Letter to the official launch
Page6
of the LMDC on 11 June 2002 at the Lagos High Court, Lagos State, Nigeria.
can often—but not always—be traced to a common cause,2 except where otherwise
expressly clarified in this paper, reference to the one will also include the other.
In this wise, it is proper to view conflict as a neutral category: the outcome will be
either good or bad depending on the manner in which it is managed. The effects of
unmanaged conflict include broken relationships, reduced productivity, insecurity
and underdevelopment. On the other hand, effectively managed dispute may foster
better relations in the future and bring about peaceful coexistence and development
as a consequence of social reconfiguration and redistribution of resources. A well-
managed dispute reduces the manifestation of conflict to the barest minimum. Per se,
conflict is manifested on different levels: it can be intrapersonal or interpersonal,
local/communal, national, international or transnational. In Africa, litigation has
been and substantially remains the major process for dispute resolution via the
justice system.3
Litigation is an adversarial process of dispute resolution where the parties use the
instrument of state courts established by law to determine their legal rights. Usually,
the disputants decide on the cause of action to pursue in court and the appropriate
remedy to seek. In the end, one party is adjudged the winner and the other the loser
based on the preponderance of evidence adduced to support each party’s case. Once
the court is seized of a case, it retains control over both the process and the outcome.
Arbitration on the other hand is a process where disputants appoint third party
neutrals (arbitrators) to hear their evidence and decide the dispute for them
according to laid-down or agreed procedures. The conduct of arbitration—especially
commercial arbitration—is guided by the substantive law relating to the subject
matter in dispute and also the procedural law chosen by the parties to regulate the
2
Academic research points to the fact that some conflicts may be induced by factors other than genuine
disputation over values or resources, thus warping the link between the level 2 effect and level 1 effect as
explained above. This complex dynamic underlines the difference between man and machine. Politically-
motivated religious conflict in Nigeria is a good illustration.
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3
Gadzama, J.K. (2006)
arbitral process (or the procedural law of the seat of arbitration). Although the
parties retain some degree of control over the process, arbitrators have the power to
give binding decision. The decision of an arbitral tribunal (award) may be enforced
like a court judgement.4
The adversarial nature and the often inevitable interplay of arbitration and litigation
as one process dovetails into the other sometimes obfuscate the difference between
the two. Arbitration has been aptly described as being “akin to litigation in a private
forum”. Since most arbitrators and counsel in arbitration proceedings are lawyers,
arbitrations are virtually litigated and rules of evidence are brought into play.
Although arbitration was the first alternative to litigation, modern concept of ADR
which classify it as collaborative and non-adjudicatory procedures maintains that
ADR is anything but arbitration.5 The role of the court in the arbitral process is two-
pronged: support and supervision. The court provides support to give effect to the
agreement of the parties, and supervision to ensure that the process is conducted
within the mandatory tenets of the law.6
Book Map: Approach and Organization
This paper sets dispute resolution and conflict management in a broad perspective,
highlighting entry points for alternatives to litigation and arbitration in our body of
laws in Nigeria and, where appropriate, drawing lessons from extra-legal best
practice in making suggestions for further development of the law and practice of
dispute resolution. The approach used is two-fold: diagnosis and prognosis. The first
step is to examine the conduct of litigation and arbitration in Nigeria as it affects
4
See: Section 31(1)-(3), Arbitration and Conciliation Act (ACA), Cap. A18, Laws of the Federation of Nigeria
(LFN), 2004
5
See generally: Ajibola (2005), pp. 11 & 19. See also: Brown & Marriott (1999)
Page8
6
Belgore (2006). See also: Section 17, ACA.
time and cost, and to identify the factors that contribute in clogging up the judicial
system, thereby aggravating costs. Secondly, as a panacea to the above-stated
ailment, to seek ways to boost the efficiency of our judicial system and arbitral
regime, and to attempt to evolve a functional synergy between litigation/arbitration
on the one hand, and other complementary methods to achieving effective dispute
resolution on the other.
The first Chapter sets the tone of the discourse by giving clarification as to the sense
in which some concepts are used in this paper, and how they interrelate. Adopting a
comparative approach, it also points to socio-ethical, political and economic factors
that may undermine the suitability and workability of litigation in the African
context, and traces a trend of reinvention and reintegration of home grown, context-
specific methods of dispute resolution into our justice system. Chapter 2 presents a
snapshot of well-known dispute resolution processes which are today considered
“alternatives” to litigation, and argues that these processes are not meant to supplant
litigation, but should rather supplement it where and when appropriate.
Shifting gears, Chapter 3 x-rays the legal provisions, judicial pronouncements, and
institutional structures that promote, recommend and mandate the use of creative
alternatives to litigation: thus, the law itself admits that it is not always appropriate
or effective in resolving every case. Venturing beyond the law, Chapter 4 introduces
a robust democratic governance dimension which advocates the mainstreaming of
dispute resolution into governance structures and post-conflict peacebuilding in
order to foster stability and development. Chapter 5 reiterates the main arguments of
this paper, draws on the lessons learnt, and incorporates suggestions for the reform
of the justice system and the reorientation of lawyers in order to enhance court-
connected dispute resolution, and the building of institutional capacity to promote
non-court-connected but sanctioned dispute resolution and conflict management
methods.
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Placing Dispute Resolution in Context: What Works Where and Why?
Law as a tool for promoting social order is essentially an organic social contract, a
complex adaptive system emerging through sundry locally interconnected and
interacting agents.7 African home-grown methods and institutions for resolving
dispute emerged only after a long and tortuous process of trial-and-error, being
sensitive to the practices, values, norms, power structures, socio-ethical, economic
and political context, and the peculiar needs of the human groupings.
A Cultural Dialogue
It is therefore no happenstance that indigenous African justice system emphasizes
amicable resolution and reconciliation between warring parties or groups over
retribution or penal sanctions. In some instances, appeal to a higher authority is
entertained through clear-cut channels. The end of justice was to restore the victim
as much as possible to his situation before the offence was committed, reintegrate
the offender into the social fabric, and foster peaceful coexistence and stability in the
society. With colonization came the introduction of foreign legal system and the
abandonment of some traditional methods that the new legal system saw as uncivil
and therefore inconsistent with the newly redefined justice. 8 Conversely, litigation
was seen by the natives as vindictive, complicated, expensive, and not fostering
wide participation by stakeholders. Trials are offender-centred, and the deterrent
effect of punishment remains largely unproven. Even where the victim’s desire for
justice is assuaged through retribution for the offender, this often undermines the
equally important goal of promoting victim-offender reconciliation and restitution.
Therefore, the adversarial system appears to be a cure that often leaves society worse
7
Pearlstein (2007), p. 740
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8
Such practices as the use of ridicule, ordeals, or threats of ostracism as means of persuading parties to make
a confession or reach a settlement were discarded—sometimes justifiably so—as being coercive and unduly
manipulative.
off than the ailment, especially in the context of post-conflict fragile peace which
necessitates peaceable, non-lethal coexistence between hitherto warring groups. The
misfit between Western law and African society is captured by Idowu William in
these words:
Mazrui’s notion of African short memory of hate lies critically at the heart
and is a symbol of African jurisprudence i.e. African legal theory. African
judicial system is unlike that of the West. In the West the judicial system is
constructed after the manner of winner takes all. In African jurisprudence, what
rules is the idea of no victor, no vanquished. This is what ensuring compromise
and reparations means. Interestingly, these ideals are generally ingrained in what
Deutsch calls mediation, consensus and conciliation as conflict resolution
techniques.9
Worse still, the Western judicial system paid no heed to wide differences between
groups usually lumped into an administrative unit for convenience. The importance
of context and local dynamics in designing a dispute resolution system cannot be
overemphasized. For instance, political communities in pre-colonial Nigeria and
their traditional justice systems were not homogenous even though there were
common strands like the role of elders in settling disputes. There were monarchical
caliphates with extensive powers over the subjects in the north, quasi-democratic
republics with decentralized units in the east, and consociational arrangements with
entrenched checks and balances in the west. Despite these fundamental disparities,
litigation was introduced as a one-size-fits-all therapy.
Not surprisingly, the continent has not fared much better in promoting social order
since the legal transplant. Today, the uneducated rural dweller in Nigeria is
“litigophobic” and would rather take a matter before a council of elders, a chief or a
spiritual leader for counselling and resolution. Even among the educated, a man
who takes his brother or associate to court is seen as an enemy for life due to the
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9
William (2001), pp. 13-14
battlefield psychology associated with litigation. The lawyer who should be a
problem solver is often seen as part of the problem, sapping litigants of their hard-
earned entitlements through exorbitant legal fees. Thanks to the duality of the
Nigerian legal system, some traditional forms of dispute resolution that survived the
Western legal transplant still exist today and have been given judicial and extra-
judicial recognition.10 The courts are directed to observe and enforce the observance
of native law and custom provided always that they are not repugnant to natural
justice, equity and good conscience; or incompatible with any law for the time being
in force; or contrary to public policy. The “award” of customary arbitration (which
encompasses different forms and methods of dispute settlement), when approved by
a competent court, is clothed with the garb of estoppel per rem judicatam.11
Unintended Consequences of a Foisted Legal System
Law is dynamic and therefore should change with changing times. However, there is
more to translating this ideal into reality. In Nigeria, the state of inertia that has
crippled our legal development is better imagined. Some legal templates that were
generally extended to the colony and protectorates of today’s Nigeria since 1900
remain statutory dinosaurs,12 while the organic process of legal adaptation and
development has ensured that those laws as they exist today in Britain have little
semblance with the originals.
A major challenge in this wise is posed by rapid advances in technology especially
with the advent of the computer and information and communication technology
10
See: Agu v. Ikewibe [1991] 3 NWLR (pt. 180) 385; Egesimba v. Onwuzurike (2002) 9-10 SC; Seide (1970), p. 23
11
See: Okpuruwa v. Okpokam [1988] 4 NWLR (pt. 90) at 554, per Oguntade, JCA; Ohiaeri v. Akabeze [1992] 2
NWLR (pt. 221) at 23-24; Park (1963), pp. 68 & 149
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12
See: Section 45, Interpretation Act, Cap. I 23, LFN 2004; Cf.: the dictum of Niki Tobi, JCA in Caribbean Trading
Fidelity Corporation v. NNPC [2002] 14 NWLR (pt. 786) 133
(ICT).13 Today, numerous transactions—negotiation of contracts, on-line shopping,
bidding at auctions, banking, live broadcasts, and even dispute resolution—take
place in cyberspace and through feedback-enabled radio waves, forging a virtual,
borderless global community. In response to this trend, advanced jurisdictions have
developed a novel regulatory body of laws, ICT law. Some provisions in our
Evidence Act14 and the Criminal Procedure Laws in force in Nigeria are outdated,
having been enacted at a time when the present spate of developments was not in
contemplation. For instance, it has been argued that the definition of “document” in
Section 2 of the Act does not include electronically generated documents. Yet the
execution of documents by e-signature is now accepted practice within the shifting
boundaries of the global market. Technological, social, and economic advancements
support the clamour for legislative overhaul to bring the Act in tandem with modern
realities to allow for efficient justice delivery.15, 16

Going with the tide, the federal
government in 2001 approved a National Policy for Information Technology and
established the National Information Technology Development Agency amongst
whose objectives are: to improve judicial procedures and enhance the dispensation
of justice; to endeavour to bring the defence and law enforcement agencies in line
with accepted best practices in the national interest; to promote legislation for the
protection of online business transactions, privacy and security. Looking at the state
of our laws on ICT today, it appears the policy aspirations are still far from being
translated into reality.
The dismal state of our judicial system is inextricably linked to the level of our
political and economic development. Thus, systemic inefficiency is prevalent in
13
Oyewole (2005), p. 69
14
Cap. E14, LFN 2004, formerly Evidence Ordinance passed in 1943 but came into effect in June 1945.
15
See: Pats-Acholonu, JCA in Egbue v. Araka *1996+ 2 NWLR (pt. 433) 710, where he stated that “our Evidence
Act is... completely out of tune with the realities of the achievements of modern technology”.
Page13
16
See generally: Nweze (2005)
developing countries that are still grappling with socio-economic exigencies of
sustenance and stability, which are conditioned by widespread corruption and
insufficient funding. The institutional and structural weaknesses in the judicial
system has led to a situation where in most cases, disputes spend an embarrassingly
long time in court. The convoluted court processes and strict reliance on formality
and rigid procedural law—which remain veritable vestiges of the common law—
have contributed to worsen the situation. The embarrassing fact that our judges still
record proceedings before them in long hand contributes in no small measure to
prolong already long-drawn-out proceedings. Today, the caseload of judicial officers
in Nigeria is outrageous.17
Let us attempt to paint a lucid picture of the situation with facts. On some occasions,
the average period it takes to litigate a case from commencement of action to
judgement is between 4½ to 6 years.18 At times, the trial would last longer than this.
It has been further shown that the average life-span of a court case in Nigeria from
commencement at the trial court to judgement at the Supreme Court is about 16
years.19 In 2006, as part of the background work for the 4th Summit on the
Administration of Justice with the theme: Justice Delayed, a survey of 200 cases that
went from different High Courts in the Federation to the Supreme Court was
undertaken. It was found that it took an average of 10 years for a criminal case to go
from the High Court to the Supreme Court. The figure is 14 years for a civil case, and
18 years for land cases. The effect of this reality is the incredible paradox that our
17
A survey carried out by me in the Onitsha Judicial Division in Anambra State of Nigeria between May and
June 2005 reveals that a judge of the High Court Division could have up to 11 cases on its Cause List in a day.
As of year 2000, 40,000 cases were pending in the Lagos High Court.
18
Osinbajo (2004), pp. v-vi. A diagnostic survey done in 2000 in Lagos State showed that it took an average of
4.25 years to conclude any case in the High Court of Lagos, assuming there were no interlocutory appeals.
Land cases could go up to 8 years at the High Court alone. See: Osinbajo (2004), p. 1
19
The result of a survey carried out by Mr. Kevin N. Nwosu [Director, Settlement House, Abuja, Nigeria] in
Page14
2004. It should be noted that the structure of Superior Courts of Record in Nigeria is three-tiered, though some
cases are commenced at the inferior courts. See: Section 6(5), Constitution of the Federal Republic of Nigeria,
1999.
justice system has become an effective obstacle to efficient justice delivery! A locus
classicus in this respect is the case of Ojinnaka Uzoechina v. Sunday Ononye.20 The case
was commenced in 1975 at the State High Court. 32 years after its commencement,
the case is still being heard at the High Court after vacillating from one judge to
another. Interestingly, the original parties who are long deceased have been
substituted with their surviving offspring.
Arbitration has not escaped the scathing strictures. The arbitration regime is an
integral part of Nigeria’s civil justice system. 19 years after the Arbitration and
Conciliation Act (ACA) was passed, it is clear that the legislation has not achieved
the objectives that inspired its enactment. Inelegant draftsmanship 21 and the
unconstitutionality of some of the provisions22 have created confusion and generated
conflicting or retrogressive judicial decisions. Outmoded concepts and definitions
have prevented the arbitral process from keeping pace with contemporary trends in
international trade and commerce. Above all, experience shows that the ACA has
failed to achieve one of the underlying philosophies of the UNCITRAL Model Law,
viz: to minimize judicial intervention in the arbitral process.23 In Nigeria, arbitration
is often perceived as a first step to litigation, and the arbitral process often becomes
entangled in the extremely protracted and cumbersome process of litigation. The
judicial process itself presently lacks the capacity to give efficient support to the
arbitral process.24 Support is lent to this view by Fagbohunlu who posits that:
20
Suit No: 0/185/75 at the Onitsha Judicial Division of the Anambra State High Court. The subject-matter of
the case is a parcel of land in my village. See also: Ariori v. Muraimo Elemo (1983) 1 SCNLR p. 1, where the case
commenced sometime in October 1960 and ended its first phase at the Supreme Court in 1983 (after 23
years), only for a retrial to be ordered!
21
Sections 4 & 5, 12(2), 33(a), 44, 45, 49 and 50, ACA
22
Sections 7(4) & 34, ACA. See also: Idornigie (2002a)
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23
Article 5, UNCITRAL Model Law on International Commercial Arbitration. Nigeria was the first country in
Africa to adopt this Model Law on 14 March 1988.
...arbitral proceedings have often been interrupted or frustrated by interlocutory
court skirmishes spanning inordinately lengthy periods, and enforcement of
arbitration awards have been similarly frustrated.25
Presently, the conclusion of an arbitration process in Nigeria is often the precursor of
an average 9.3 years litigation process from the High Court to the Supreme Court, to
either enforce or set aside the arbitration award.26
The second limb of our diagnosis—the issue of the cost of litigation and arbitration—
may be concomitant to the tardiness of the processes. As such, the longer it takes to
resolve a dispute, the more expensive the process becomes. Let us adopt a loose
interpretation of the word “cost”. Cost could be tangible or intangible. Tangible costs
relate to the monetary commitment to the process. Under the adversarial system as
represented by litigation and arbitration, parties to a dispute personally expend
substantial amount of resources before, during, and sometimes even after the trial.
Parties bear the expense of sourcing their evidence and ensuring the attendance of
witnesses; pay the fees for originating processes and record of proceedings on
appeal; pay lawyers’ and arbitrators’ fees, including transportation to the court or
tribunal on every adjourned date; bear travel and accommodation expenses where
the place of arbitration is a foreign country or where the case is being heard out of
jurisdiction. There may also be other incidental costs.
On the other hand, intangible costs relate to those factors that result due to the
adversarial, competitive and lengthy nature of the processes. These include: strained
business or family relationship, negative publicity, loss of management time, inter
alia. The value of such losses remains largely inestimable. Aside from the parties to a
24
Discussion Paper on A Modern Arbitration and ADR Act for Nigeria, by the National Committee on the
Reform and Harmonization of Nigeria’s Arbitration and ADR Laws, in April 2006, p. 4 thereof.
25
Fagbohunlu (2006)
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26
The result of the study is attached as APPENDIX A, infra. Relatively few decided cases are reported on
arbitration. This is due to the confidentiality of arbitral proceedings and the finality of the award. Only when an
award is challenged does the chance of it being reported become real.
case, the judicial system per se and the entire nation also share the burden occasioned
by the inefficiency and growing unattractiveness of the Siamese options of litigation
and arbitration. Thus, there is a growing loss of confidence and public dissatisfaction
with the judicial system in Nigeria, and a discouragement of trade and foreign direct
investment.27
However, litigation is not an inappropriate dispute resolution process in all cases.
Reflective of its Jekyll and Hyde reputation, there are still instances where litigation,
regardless of criticisms relating to time and cost, remains the best-suited process.
Some instances are:
1. Interpretation of the constitution, statutes and rules.
2. Where legal precedent needs to be set to make a position certain.
3. Questions bordering on crime and criminality, a crime being prosecuted as an
offence against the state.
4. Commencement of legal proceedings pending settlement through ADR in
order to prevent the action being statute-barred.
5. Emergency situations where injunctive or preventive relief is necessary, for
instance to stop an absconding defendant or wilful damage to property.
6. In addressing matters of public policy.
7. A frivolous claim that will most readily be dismissed by the court.
Lessons Learnt: Back to Our Roots!
Imprecise forms of ADR (customary arbitration) existed in African societies long
before the advent of Western colonialists. Therefore ADR is not a foreign concept.
The only thing that is new is the refinement, repackaging and reintroduction of what
was originally ours, in order to keep up with the changing times. In fact, traditional
Page17
27
On the application of ADR to promote investment, see: pp. 56-59, infra.
concepts of dispute resolution which seek to promote peaceful coexistence and
stability in the society are beginning to re-emerge at both local and international
levels, and even as elements of criminal justice system, due to the inadequacy and
inefficacy of adversarial modes of dispute resolution. Practical applications of ADR
principles and skills to improve governance include: structuring dispute resolution
mechanism to promote conflict prevention and peacebuilding; the use of Truth and
Reconciliation Commissions in post-conflict reconciliation; the introduction of plea
bargain and the concept of restorative justice in criminal justice administration. 28
Ingrained in these processes are variants and hybrids of ADR.
The traditional role of elders in resolving communal conflicts and local skirmishes
has been elevated and borrowed in international relations. 29 The elder tradition is
symbolic of the belief that elders hold the key of experience—with which comes
wisdom and respect—through which progress can be achieved. Elders are consulted
in almost every matter in life. Ghana, a beacon of peace in troubled West Africa, has
evolved a systematic integration of traditional rulers into the nation’s legislative
assembly in a way that ensures consultation.30 The Economic Community of West
African States (ECOWAS) recently inaugurated a committee of special mediators,
aptly called the Council of Elders.31 The Council—which engages in preventive
diplomacy targeted at preventing the escalation of conflict in ECOWAS member
states—is composed of eminent but neutral persons from various segments of the
West African society, including women, political, traditional and religious leaders.
By casting the mediators in elders’ role, this tactic seeks to appeal to the social norm
of giving deference to elders.
28
See generally: Chapter 4, infra.
29
See also: Article 33, United Nations Charter 1945; Section 19(d), Constitution of the Federal Republic of
Nigeria 1999
30
William (2004), p. 13
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31
The Council has been renamed Council of the Wise.
The test of natural justice (nemo judex in causa sua) in customary arbitration has also
been reconsidered on the ground that the standard of natural justice in England may
not be natural justice in Africa. What is natural in Africa is this: societies are closely
knit units, and interpersonal interaction is inevitable. To maintain social order, an
elder, a chief or village head is usually concerned, and may intervene in the personal
affairs of his wards. Therefore some arbitrators over disputes would not only have
prior knowledge of the dispute, but may also have prejudices in the matter.32 It
would only be a misnomer in such circumstance to require the same standard of
neutrality or detachment as in a court. Since the Privy Council ceased to be the apex
court in Nigeria, the Supreme Court has taken every opportunity to clarify this
position.
Legal and judicial reform should, to the extent possible and acceptable, build upon
the judicial traditions and existing regulatory institutions of a particular society.
Attempts at legal transplant—taking a law or system from a developed society and
imposing it in a different social and cultural setting—will only lead to a rupturing of
the organic link between law and society. The creativity and flexibility that has been
demonstrated in the rapprochement between the Western concept of justice and
traditional ADR principles in problem solving gives one hope that societies in Africa
are learning to adapt what they have to meet their peculiar needs and circumstances.
This is the bedrock of Appropriate Dispute Resolution.

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32
Per Akpata, JSC in Ohiaeri v. Akabeze [1992] 2 NWLR (pt. 221) 24; Igbokwe v. Nlemchi [1996] 2 NWLR (pt.
429) 185; Uzoewulu v. Ezeaka [2000] 14 NWLR (pt. 688) 629
CHAPTER TWO
VIABLE ALTERNATIVES: THE ADR PARADIGM
The notion that most people want black-robed judges, well-dressed lawyers and
fine-panelled courtrooms as the setting to resolve disputes is not correct. People
with problems, like people with pains, want relief, and they want it as quickly
and inexpensively as possible.
Chief Justice Warren Burger33
The Place of ADR in Justice Delivery
T
here is a timeless saying that justice delayed is justice denied. This saying—
albeit hackneyed—cannot be more apposite in any other jurisdiction than in
Nigeria.34 Based on the attendant costs, delays and frustrations inherent in the
adversarial nature of litigation and arbitration, parties have increasingly sought
recourse to more collaborative and user-friendly methods of problem solving.
People were becoming dissatisfied with the negative effect of the processes which
see disputes in terms of right and wrong, and the disputants as either winners or
losers. This need was filled by the formalization of and recourse to Alternative
Dispute Resolution processes. Considering abundant provisions in our laws that
recommend and mandate the use of alternatives to litigation, the law itself admits
that it is not always appropriate or effective in resolving every conceivable case.
33
Quoted in: Ogunyannwo (2005), p. 6
34
However, in the recent past, Nigerian courts have succeeded in resolving some landmark cases bordering on
constitutional interpretation in record time owing to political expediency and the need to preserve our nascent
democracy. See for instance: Atiku Abubakar v. Attorney General of the Federation C.A., delivered on 20
February 2007; Hon Inakoju & 17 Ors. v. Hon. Adeleke & 3 Ors. S.C., 272/2006, delivered on 7 December 2006.
Page20
See also: “Role of the Court of Appeal in the Sustenance of Nigeria’s Democracy and Constitutionalism”, The
Guardian, Tuesday, 6 March 2007, p. 80.
Alternative Dispute Resolution35 (ADR) is a convenient tag for a wide spectrum of
dispute resolution options or mechanisms which exist as supplements to traditional
litigation (and arbitration). The processes are designed to aid parties in resolving
their disputes without the need for formal judicial proceedings. ADR provides
opportunity to resolve disputes creatively and effectively, using the process that best
handles a particular dispute. It is useful for resolving many disputes that never get
to court, and can potentially be applied in settling 90 to 95 percent of cases that are
filed in court today.36 Even where there are no delays in litigation, ADR is a
necessary component of justice delivery. This is so because it is not all disputes that
seek to establish legal right and wrong, which is the basis of litigation.37 Most
disputes are interest-based and therefore will be resolved only when there is mutual
satisfaction of the interests of the parties involved.
The introduction and institutionalization of ADR in our laws and in our judicial
system through the Multi-Door Courthouse seek to achieve a dual purpose:
1. To seek viable alternatives to litigation and arbitration in resolving disputes,
primarily in terms of increasing speed and reducing costs; and
2. To boost the efficiency and effectiveness of our courts system by unclogging
its wheels to better handle cases well-suited to litigation.
The latter is only a corollary of the former. Litigation/arbitration and ADR can be
likened to the simple mechanism of a pair of scissors. A single blade of the scissors
employed in isolation can only scrape and scratch and struggle to cut the Gordian
knot, but its struggle will be all too evident. Such was the case in Nigeria until a few
years ago.
35
Other known aliases for this term include: Amicable Dispute Resolution, Appropriate Dispute Resolution, and
Effective Dispute Resolution. These variants only indicate differences in points of emphasis, but the meaning
remains unchanged.
Page21
36
Aina (2003), p. 335
37
Hence the legal maxim: ubi jus ibi remedium (where there is right, there is remedy).
The ADR Menu
Generally, ADR processes are marked by their voluntariness, flexibility, privacy,
non-judgemental nature, and party participation in problem solving. Since the
parties become part of the solution to their problem, the positive feedback engenders
a high rate of satisfaction with the outcome, and a concomitant rate of compliance
with the terms of settlement. ADR processes are now so attractive and widely
embraced by practitioners and litigants alike that there is almost a tendency to see
them as offering full proof solution to the vicissitudes associated with the court
system.38 To better appreciate their nature, let us examine some of these alternative
processes, however sketchy.
Core Processes
 Negotiation
Parties negotiate whenever they are involved in direct discussions with a view to
reaching an agreement. Notable ADR proponent, Professor Frank Sander, defined
negotiation as “communication for the purpose of persuasion”.39 In most cases,
parties to a conflict would usually first explore the chance of resolving the dispute
themselves. Direct negotiation between the parties (or their representatives) is at the
heart of all participatory alternatives. Negotiation may be in face-to-face meetings,
while haggling in the market place, at a conference of diplomats, by exchange of
letters, through telephone conversations, in pre-trial settlement conference fixed by a
judge, or when exploring out-of-court settlement. Business executives, lawyers and
even nations regularly negotiate a wide variety of contracts, entitlements and other
transactions. The disputants retain control over both the process and the outcome.
Page22
38
Gadzama (2004)
39
Goldberg, Sander & Rogers (1992), p. 17
Sometimes parties negotiate without realizing it. However, people negotiate better
when they are aware of the process and are skilled in the art of negotiating.
Principled negotiation focuses on the underlying interests of the parties as distinct
from their conflicting positions on the issues, and utilizes a problem-solving method
characterized by brainstorming for outcomes to which both parties can say “yes”. 40
 Mediation41/Conciliation
Mediation is negotiation assisted by a third party. Sometimes the disputants are
unable to reach a mutually satisfactory agreement either because they lack good
negotiating skills or because they become emotionally attached to their case. In such
case, a third party neutral usually referred to as mediator, conciliator or facilitator
may be called in to help them overcome such challenges. The mediator does not
decide the issues or determine right and wrong, but helps the disputants to resolve
their conflict consensually. His roles include: to act as a catalyst for settlement by
crystallizing each side’s underlying interests; bridge the communication gap by
carrying subtle messages and information between the parties; and explore bases for
mutual agreement. This is why in some jurisdictions the mediator is referred to as a
“settlement facilitator”.42 Sometimes when a mediation process is prescribed by
statute, institutional rules or trade policy, it is referred to as conciliation. The statute
may state the mode of appointment of the conciliator who, though is not directly
party-appointed, is often a neutral and impartial expert who must be acceptable to
both parties.43 Otherwise, the terms are used interchangeably.
40
See: Fisher, Ury, & Paton (1991)
41
See generally: Dean (2007)
42
Plant (2004), p. 246.
43
For instance: Section 11(1) (c), Matrimonial Causes Act, Cap. M7, LFN 2004; Section 8, Trade Disputes Act,
Page23
Cap. T8, LFN 2004. However, conciliation under the ACA is non-consensual and therefore an exception to the
general rule.
Hybrid Processes
 Mini-Trial/Executive Tribunal
Mini-Trial is a non-binding mechanism which uses an enlarged forum of executives
and senior managers to assist the parties to a dispute to gain better understanding of
the issues involved, thereby enabling them to enter into settlement negotiations on a
more informed basis.44 The process involves exchange of information before a panel
comprising representatives of the disputants (corporate bodies or institutions) who
are authorized to reach a settlement. There is usually a neutral third party who, with
the rest of the panel, will hear both sides of the dispute and chair a question-and-
answer session with all the participants, after which the panel will seek to negotiate
a settlement. In most cases, the decision makers might not have been directly
involved in the dispute. This gives them the benefit of an open and receptive mind
in listening to presentations by their legal advisers and, with the assistance of the
neutral third party, they are better able to make a cost-benefit analysis of the options
placed on the negotiation table.
 Early Neutral Evaluation/Expert Appraisal
Here, a neutral evaluator—generally respected member of the legal profession with
experience in the substantive area in issue—gives a brief, objective but non-binding
opinion early in the dispute. He identifies the main issues, explores the possibility of
settlement, and assesses the merits of the claims. Thus, he provides the litigants
neutral standards against which they can assess their positions and chances. A
similar process for assessing claims in enclave sectors like the construction or
Information and Communications Technology (ICT) industry is referred to as Expert
Appraisal. The expert will tender an appraisal after investigating the facts and
hearing from each party. Prior to agreeing on the expert, the parties may choose to
be contractually bound by the appraisal.

Page24
44
Brown & Marriot (1993), p. 262
 Private Judging/Rent-a-Judge
This method combines moot adjudication with elements of neutral facilitation and
case evaluation. Another variant of the process in some jurisdictions which makes
use of retired judicial officers as third party neutrals is referred to as Rent-a-Judge.
This species of private adjudication is yet to take root in Nigeria. The abbreviated
process provides the parties an opportunity to test the strengths and weaknesses of
their case. The simulated courtroom scenario provides reality testing, and the judge
usually gives an opinion on how the case would be decided in court, with a view to
enhancing subsequent negotiations between the parties. Depending on the success
or otherwise of such venture, the judge’s decision, by statute, could be made to have
the legal status of a real court judgement as is the case in California, United States.45
The potential and wealth of knowledge that has been acquired by some of our
retired-but-not-yet-tired judges are being grossly underutilized.46 This step might be
considered to be risky and to have far-reaching implications given the level of
corruption in high places in our country. But the promise it holds out far outweighs
its risk.
 Settlement Conference/Stakeholder Conference
A settlement conference is a meeting of all the necessary parties to a dispute, parties
who have a direct or remote interest in the case, and other parties whose interests
may be affected by a resolution of the dispute. The convener is usually an authority
figure who commands the respect of the parties, and who can use the auspices of his
good office to get the various parties to commit to settlement. It is usually employed
in settling political disagreements and community disputes. Settlement conference is
usually convened for multi-party, complex-issue disputes where a straightforward
45
Allison (2000), p. 163
Page25
46
For instance, the erudite and indefatigable Chukwudifu Oputa and Kayode Eso, retired Justices of the
Supreme Court of Nigeria, have served on different judicial and quasi-judicial commissions of inquiry since
their retirement.
mediation process will not sufficiently address all the issues. Thus it may involve
different levels of deliberative dialogue, co-existential negotiation, caucusing and
counselling, mediation, and combine these processes in varying mixes as the case
develops. Flexibility and dynamism is the rule. The approach may be power-based,
interest-based or rights-based as any stage of the process may require. Settlement
conferences are necessarily guided by a moderator, co-mediators or panel of neutrals
who may be appointed by the convening authority or on the basis of a quota by the
parties depending on the complexity of the case.
Success may depend on structuring the process—first, identifying and grouping the
parties, their positions and interests; understanding the root causes, acceleration,
and trigger to the problem in order to defuse subterranean landmines; discussing the
issues in order of importance and urgency, cause-effect, chronology or thematic
relevance so as not to be overwhelm by artificial priorities attached by different
parties to different issues on the basis of selectivity; from the discussion of issues,
establishing the relationship of each group with other groups in order to identify
compatibilities, overlaps, possible trade-offs, divergences and potential clashes; and
brainstorming to generate creative options to satisfy, to the extent possible, the real
interests of each group. The target need not be unanimous agreement or consensus,
but to seek common ground for problem solving in order to achieve the greatest
happiness of the greatest number. Being a hybrid process, a settlement conference
may be adapted to suit the purpose, but a worthy example in Nigeria would be the
proposed populist [but not necessarily Sovereign] National Conference to which
interest groups and constituencies would select emissaries to present their case.
 Other Hybrids
Experts have sometimes tried to blend mediation, with its persuasive force, and
arbitration, with its guarantee of an assured outcome, into a hybrid process (Med-
Page26
Arb). Simply put, it is mediation followed by arbitration where mediation fails to

resolve the dispute or parts of it. Normally, the mediator is not allowed to act
subsequently as arbitrator in the same case unless otherwise authorized by the
parties. This is to avoid any likelihood of bias: facts revealed to a mediator in
confidence at a prior mediation session would tend to prejudice his mind in the
subsequent arbitration even though such facts are inadmissible as evidence.
There is no watertight compartmentalization of dispute resolution processes as
various processes can be combined creatively in this fashion depending on the
nature and complexity of the case at hand. For instance, a party may institute action
in court in order to compel another unwilling party—now realizing that litigation is
a gamble—to submit to mediation (Lit-Med) or to explore out-of-court settlement
(Lit-Neg). Parties to litigation may even end up at a negotiating table where, after
judgement has been delivered, there is a need to detail the unexpressed obligations
of each party, agree on a timeline for complying with the judgement of a court, and
to foster better relationship between the parties. Such process led to the Greentree
Agreement of 12 June 2006 on the land and maritime boundary dispute between
Nigeria and Cameroun after the judgement of the International Court of Justice was
delivered on 10 October 2002. Thus, post-litigation agreement may remove the bitter
aftertaste of litigation.
Unlike common law litigation where the parties have to fit their case—no matter
how novel—into an already existing court process in order to have access to justice,
the beauty of the hybrids lie in the fact that the process may be designed on a case-
by-case basis to fit the particular facts and the unique circumstances of the parties.
Therefore, just as a golfer selects the appropriate club for the shot, different types of
dispute call for different approaches for effective outcome. ADR processes hold out
many advantages over litigation and arbitration. Most importantly, they save time
and cost less47. For instance, it usually takes an average of three sittings conducted
Page27
47
See: Allen, T., “Prised Out of Court and Into Mediation”, @
http://www.cedr.co.uk/index.php?location=/library/articles/, last visited on 14 March 2007.
within one month for a mediation session to reach the stage of agreement. Some may
take less. Moreover, the failure/non-compliance rate is estimated to be about 10
percent.48 However, where proper ADR skills are not applied, there may be delays
and waste of time which would consequently escalate the cost.
Enforceability of ADR Settlements
It is noteworthy that where the process of mediation or negotiation arises out of
court or arbitral proceedings, the mediated agreement or negotiated settlement is
adopted by the court as a consent judgement, order or award as the case may be, and
enforced as such. However, in a purely consensual model, the terms of settlement
would be legally enforceable as binding contract; therefore remedies like damages,
specific performance, injunction or promissory estoppel would attach.49
A fine line should also be drawn between a mediated or negotiated settlement as
considered above on the one hand and a dispute resolution agreement or clause in a
contract on the other. The latter is at best an agreement to attempt to resolve present
or future dispute(s) arising out of or in relation to the contract between the parties in
their normal course of dealing by negotiation or mediation or the parties’ preferred
mode of resolution, and not exactly an agreement to agree.50 Therefore, a dispute
resolution agreement/clause is enforceable only to the extent that a court would
exercise its inherent jurisdiction to stay its proceedings—where a party institutes
proceedings in breach of such agreement—in order to give effect to the agreement of
the parties to use ADR as a first-line process before having recourse to litigation.51
48
These facts were revealed in an interview session with Engr. Segun Ogunyannwo, a pioneer neutral, Abuja
Multi-Door Courthouse, conducted on Tuesday, 13 March 2007 in Abuja, Nigeria.
49
The case of Akio Abey & Ors. v. Chief Fubara Alex & Ors. [1999] 12 SCNJ 234, is instructive.
Page28
50
For general rules on drafting ADR clauses, see: Spencer (2002), pp. 255-275; Pryles (2001)
51
Section 4, ACA, Cap. A18, LFN 2004; Ogun State Housing Corp v. Ogunsola [2000] 14 NWLR (pt. 687) at 431
CHAPTER THREE
THE STATE OF OUR LAWS AND INSTITUTIONS ON ADR
The solution to case congestion and continued relevance for our courts of law lies
less in the expansion of members of the Bench but much more in the expansion of
the avenues for justice.
Kehinde Aina 52
The Changing Tide
J
ust a decade ago, teaching or recommending ADR to lawyers in Nigeria would
have been considered heresy. Even today, the A for Alternative in ADR is often
wrongly construed by lawyers to mean that the proposed processes are second class
to litigation: any lawyer worth his salt should not concern himself with ADR. This
wrong notion may be attributed to either ignorance or arrogance. Today, our laws
and rules of court in Nigeria are replete with provisions that seek to encourage and
promote the use of ADR processes.53
Therefore, ADR should not be seen by lawyers as an area that those who wish to
may choose to specialize in. It is a core skill in a lawyer’s toolkit and expands his
scope of practice. A lawyer without ADR skills is a misfit, and may leave his client
worse off than he was before he sought legal advice. Some lawyers in Nigeria are
ignorant of the fact that ignorance of and non-use of ADR methods in appropriate
cases may result in professional misconduct! By a joint reading of Rules 15(3) (d) and
52
Director, Lagos Multi-Door Courthouse, in his Welcome Letter to the official launch of the LMDC on 11 June
2002, at the Lagos High Court, Lagos, Nigeria.
Page29
53
See generally: APPENDIX C, infra.
55(1) of the new Rules of Professional Conduct for Legal Practitioners 2007, this is
now an ethical issue bearing serious consequence.54
Recent amendments in the Civil Procedure Rules of the High Courts of some states
in Nigeria have adopted case management strategies that seek to integrate ADR into
court proceedings from the preliminary stages. Lagos State became the trail-blazer in
this respect when it adopted the new High Court of Lagos State (Civil Procedure)
Rules 2004.55 One of the purposes of the now celebrated pre-trial conference in the
new Rules is to promote “amicable settlement of the case or adoption of alternative
dispute resolution”.56 The pre-trial conference is a peace meeting of sorts, of all the
parties under the superintendence of a pre-trial judge. The goal of such provision is
crystallized when it is jointly read with the guiding principle of the new rules: “the
achievement of a just, efficient and speedy dispensation of justice”.57
Worthy of mention at this stage is the current effort to reform and harmonize
Nigeria’s Arbitration and ADR laws58 to bring it in tandem with its progenitor, the
UNCITRAL models.59 One of the guiding principles of the Draft Arbitration and
Conciliation Bill is “to obtain the fair resolution of disputes by an impartial tribunal
without unnecessary delay”.60 However, Part II of the Draft Bill on Conciliation has
54
See: pp. 37-39, infra.
55
See generally: Osinbajo (2005)
56
Order 25, Rule 1(2) (c). See also: Order 17, Rule 1, High Court of the FCT Abuja (Civil Procedure) Rules 2004
57
Order 1, Rule 1(2). Furthermore, the “frontloading” concept which is another innovation of the new Rules
has been applauded as further discouraging dilatory tactics by parties and counsel. See: Order 3, Rule 2(1);
Order 17, Rule 1; Fashakin (2004), p. 4
58
This effort was initiated by the Minister of Justice and Attorney General of the Federation, Chief Bayo Ojo,
SAN, in conjunction with USAID-Nigeria REFORMS Project.
59
The UNCITRAL Model Law on International Commercial Arbitration (UNGA Resolution 40/77 of 11 December
1985) and the UNCITRAL Model Law on International Commercial Conciliation (UNGA Resolution 57/18 of 24
January 2003).
Page30
60
Clause 1(b), Part 1; emphasis mine. Novel subjects introduced in the Draft Bill are: appointment of umpires;
immunity of arbitrators; application of statute of limitation to arbitration; remedies; consolidation and
concurrent hearing; interest; and security for costs.
been criticized as departing from established ADR principles of flexibility, party
autonomy and voluntariness, caucusing and civil immunity of conciliator, and is
said to “look too much like litigation”.61 It remains to be seen whether these concerns
will be reflected when, hopefully, the Bill is passed into law.
The United States seems to be light-years ahead of Nigeria with regard to laws
promoting the use of ADR. Under the Minnesota Rules of Court, nearly all civil legal
disputes must go through some type of ADR process prior to trial. 62 In 1990, the US
passed two statutes designed to increase the use of ADR by federal agencies—the
Administrative Dispute Resolution Act and the Negotiated Rulemaking Act. ADR as
a first resort is also a policy of the executive arm of government. In 1991, President
Bush the First issued Executive Order 12278, directing all federal litigation counsel
under appropriate circumstances to suggest ADR to private parties and to use ADR
to resolve claims against the US. Former President Clinton similarly issued Executive
Order 12988 which aimed to improve access to justice. 63 If the US, with the level of
development of its legal system, considered it necessary to take such measures, a
fortiori, Nigeria, with the grinding pace of our court proceedings and its attendant
costs, needs to adopt extreme measures.
A landmark in our legal development in Nigeria is the recent institutionalization of
the concept of Multi-Door Courthouse in our justice delivery system.64 This concept
was developed in the United States in 1976 by Professor Frank Sander, a Professor of
Law at Harvard University, who delivered a paper to the National Conference on
the Causes of Popular Dissatisfaction with Administration of Justice. To determine which
dispute resolution mechanism is appropriate, he set the following criteria: cost,
speed, accuracy, credibility and workability. Multi-Door Courthouse supplements
61
Randolph (2006), p. 1
62
See: Mansfield, Tanick & Cohen (2000)
Page31
63
See: Aina (2003), p. 346
64
See: Brown & Marriott (1999), p. 91
litigation by providing additional “doors” towards a faster, cost-effective and user-
friendly access to justice.65 The Lagos Multi-Door Courthouse (LMDC) was the first
court-connected ADR centre to be established in Africa on 11 June 2002. The
additional doors it provides include negotiation, mediation/conciliation, arbitration,
settlement conference, mini-trial and early neutral evaluation. In 2004, the High
Court of Lagos appointed the first ADR Judge in Nigeria in the person of Hon.
Justice Candide Johnson. Multi-Door Courthouse was also integrated into the High
Court of the Federal Capital Territory, Abuja on 13 October 2003. Similar efforts are
still at their infancy or embryonic stages in jurisdictions like Port-Harcourt, Ibadan,
Kano and Maiduguri.
One of the major benefits of the Multi-Door Courthouse and, by extension, ADR is
that it helps in freeing the court’s judicial resources for those cases which should not
or could not be resolved by the parties themselves. Thus, the Multi-Door Courthouse
is a convenient dispute clearinghouse for our bogged down courts system. Also,
disputing parties have the option of participating in an informal yet structured
process that lessens the costs, time and emotional strain associated with litigation.
Between 2002 and 2006, the LMDC handled a total of 268 cases at a turn-around time
from filing to case disposal of 3 months. In one case, a trial judge referred the
parties—one of which was Nigeria’s former Vice President, Dr. Alex Ekwueme—to
the LMDC after 17 long years in court. The matter was recommended for mediation.
The surprise and relief was palpable when the parties signed the terms of settlement
the same day!66
The introduction of ADR into the curriculum of the Nigerian Law School in 2002 is a
step in the right direction, albeit a belated one. Those who are girded with the
responsibility of resolving disputes on a daily basis thus have the opportunity to
acquire knowledge and skills in a wide variety of processes outside litigation and
Page32
65
Aina (2003), p. 348
66
See: The LMDC Brochure, pp. 16-17
arbitration. As aptly stated by former US Vice-President, Al Gore, “If the entire
instrument that you possess is a hammer, then every difficulty or problem will
surely appear like a nail”.67 Such knowledge and skills would widen their horizon as
social engineers and prepare them for the daunting challenge facing the Nigerian
lawyer in the 21st century.
Prescribing ADR: Who Does What and How?68
Provisions that seek to promote speedy dispensation of justice through ADR abound
in our laws and rules of court, no doubt. Yet observations reveal a yawning gulf
between such lofty ideals as codified in our rules and stark reality as regards actual
compliance with the rules. Such provisions are often construed as permissive instead
of obligatory. In what circumstances and by what means should one invoke such
rules and provisions?
Duty of the Court
Section 18 of the High Court Act of the Federal Capital Territory, Abuja69 provides
that: “Where an action is pending, the court may promote reconciliation among the
parties thereto and encourage and facilitate the amicable settlement thereof”. Thus,
the law establishing the court gives the court a managerial role and the enabling
jurisdiction to have recourse to ADR when the court is seized of a matter. Looking
closely at the operative words in this section, the courts should, as a matter of
deliberate policy, actively promote, encourage and facilitate ADR whenever the case is
67
Al Gore (2001)
68
The limited volume of this paper would not allow a full consideration of the High Court Laws, Magistrates’
Courts Laws, Civil and Criminal Procedure Rules, Practice Directions, judicial pronouncements and relevant
Laws made by the Houses of Assembly of every State in Nigeria bordering on ADR. Therefore this section of
Page33
this paper is only anecdotal and should guide further research in our still growing body of laws.
69
Cap. 510, LFN (Abuja) 1990
appropriate. Procedurally, Order 17(1) of the High Court of the Federal Capital
Territory, Abuja Civil Procedure Rules 2004 states categorically that:
A Court or judge, with the consent of the parties, may encourage settlement of
any matter(s) before it, by either –
(a) Arbitration;
(b) Conciliation;
(c) Mediation; or
(d) any other lawfully recognized method of dispute resolution.
Bearing in mind that the new Rules was adopted at the same time that ADR practice
was integrated into the Abuja judicial system through the Multi-Door Courthouse,
encouragement of settlement by a court therefore envisages referring parties to this
court-annexed ADR centre. However, this does not preclude the parties from non-
court-annexed ADR centre or any other informal forum for out-of-court settlement,
so long as the method employed is within the bounds of the law.
A locus classicus in both substantive and procedural provisions promoting the use of
ADR is found in Sections 11 and 30 of the Matrimonial Causes Act. 70 Realizing that a
married couple usually come from different backgrounds and with different sets of
experiences—and that this remains a potential source of conflict—the Act seeks to
preserve the sanctity of matrimony. In order to discourage litigation and encourage
amicable dispute resolution during the “norming” stage in matrimony, Section 30(1)
of the Act stipulates that a petition for dissolution of marriage cannot be presented
within 2 years after the date of the marriage except by leave of court in special
circumstances.71 A court before which a matrimonial cause is instituted is mandated
to actively promote reconciliation “from time to time” during the proceedings. 72 In
70
Cap. M7, LFN 2004
71
See: Akere v. Akere (1962) WNLR 328
Page34
72
Section 11(1), MCA
addition, if at any time it appears to the judge either from the nature of the case, the
evidence in the proceedings or the attitude of the parties, or of counsel, that there is a
reasonable possibility of such reconciliation, the judge may do all or any of the
following:
a. adjourn the proceedings to afford those parties an opportunity of becoming
reconciled out of court (encouragement);
b. with the consent of those parties, interview them in chambers, with or
without counsel, with a view to effecting a reconciliation (facilitation);
c. nominate an experienced marriage conciliator, or in special circumstances,
some other suitable person, in order to endeavour to effect a reconciliation
(promotion).
The court also has a duty to promote reconciliation among the parties by: giving
effect to the provisions of other laws prescribing and mandating the use of ADR in
specific instances;73 adopting and enforcing the terms of settlement of the parties as
consent judgement; staying court proceedings in order to give effect to a prior
agreement of the parties to use ADR as a first-line process for dispute resolution
before resorting to litigation;74 and the recognition and enforcement of negotiated
settlement or mediated agreement between contracting parties to promote sanctity
of contract and business efficacy.75
As a settlement facilitator, the judge may hold a settlement conference with parties
in chambers as the judge thinks proper with a view to resolving the matter. For
states that have adopted the compulsory pre-trial conference procedure, facilitating
amicable settlement is mandated before commencement of trial. Order 25(1) (2) of
the High Court of Lagos State (Civil Procedure) Rules mandates the court to:
73
See generally: APPENDIX C, infra.
Page35
74
See: Section 4, Arbitration and Conciliation Act, Cap. A18, LFN 2004
75
See: Akio Abey & Ors. v. Chief Fubara Alex & Ors. [1999] 12 SCNJ 234
... cause to be issued to the parties and their Legal Practitioners (if any) a pre-trial
conference notice as in Form 17 accompanied by a pre-trial information sheet as
in Form 18 for the purposes set out hereunder:
(b) giving such directions as to the future course of the action as appear
best adapted to secure its just, expeditious and economic disposal;
(c) promoting amicable settlement of the case or adoption of alternative
dispute resolution.
The full tenor of this procedure will become clearer with its espousal in case law.
Going against the unspoken rulebook, Section 17 of the Federal High Court Act76—
tagged Reconciliation in civil and criminal cases77—offers an entry point for applying
ADR principles in criminal cases. The Section provides that: “In any proceedings in
the Court, the Court may promote reconciliation among the parties thereto and
encourage and facilitate the amicable settlement thereof”. Thus, while Section 18 of
the High Court Act of the Federal Capital Territory—which is on all fours with the
foregoing provision—remains silent on the criminal aspect, Section 17 of the Federal
High Court Act is unequivocal. Adopting the literal rule of interpretation, promoting
reconciliation among the parties to a criminal case would involve victim-offender
mediation; and facilitating amicable settlement of a criminal case encompasses plea
bargain. However, the extent to which this provision may avail an offender who is
charged with a felony or capital offence is not clear as amicable settlement of such
cases—which may tantamount to an acquittal without trial, or a judicial prerogative
which erases any criminal record—would be clearly contrary to public policy. 78
Where the offence is a misdemeanour or other simple offence, Magistrates and
76
Cap. F12, LFN 2004
77
Although the main purpose of marginal note/head note in a statute is to expedite reference, in clear cases, it
Page36
serves as a pointer to the scope of the particular section.

78
For the application of ADR in the enhancement of criminal justice administration, see: pp. 59-62, infra.
District Courts are often given wider case managerial powers. For instance, Section
26 of the District Courts Act79 of the Federal Capital Territory, Abuja provides that:
A District Court shall, so far as there is proper opportunity, promote reconci-
liation among persons over whom the court has jurisdiction, and encourage and
facilitate the settlement in an amicable way and without recourse to litigation of
matters in difference between them.
District Courts are lower in hierarchy than the High Courts, and usually operate at a
level where speedy but adapted dispensation of justice as a means of maintaining
and restoring social order is a desideratum.
Duty of Counsel
Rule 15(3) (d) of the new Rules of Professional Conduct for Legal Practitioners (RPC)
2007 provides that:
(3) In his representation of his client, a lawyer shall not –
(d) fail or neglect to inform his client of the option of alternative dispute
resolution mechanisms before resorting to or continuing litigation on behalf
of his client.
This novel provision places a mandatory duty on a lawyer in his privileged and bona
fide relationship with his client to advise the client to consider ADR as a primary
process. Ideally, this information should be conveyed to the client before counsel
institutes proceedings in court on behalf of the client. To underline its importance,
this duty as it subsists even when litigation has been commenced until discharged.
Thus the provision allows counsel some opportunity to remedy his omission during
the pendency of the action. More so, the continuing duty may be a transitional
consideration that will be extended to cases commenced before 7 February 2007.

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79
Cap. 495 LFN (Abuja) 1990. Emphasis mine.
The seeming irregularity in lumping together of the dual role of representation of
client and advising client before resorting to litigation is understandable given the
context of legal practice in Nigeria. A lawyer, upon call to the Bar, is certified fit and
proper to act as both a solicitor and advocate. In other jurisdiction where the same
job description is split into two offices, a solicitor usually: accepts brief from a client;
does the necessary legal documentation; gives legal advice to the client, including
choosing ADR options or referral to an advocate to institute legal proceedings where
appropriate. In the United Kingdom for instance, advice as to ADR options would
have come from the solicitor before an advocate takes over a client’s case. Lawyers
are not so lucky in Nigeria: representation of a client in any case commences upon
accepting brief from the client. Hence, counsel has a continuing duty of informing
the client of options of ADR mechanisms in the course of performing his overriding
duty of representing the client.
Where counsel has discharged this duty, the decision whether to adopt ADR or not
is left to the client, thus preserving the voluntariness of ADR. However, the duty on
counsel partakes of the nature of strict liability as oversight or disregard is no excuse.
Unlike judges, no judicial immunity covers counsel in the case of failure or neglect.
In fact, breach of this duty attracts sanction in view of Rule 55(1) of the RPC:
If a lawyer acts in contravention of any of the rules in these Rules or fails to
perform any of the duties imposed by the Rules, he shall be guilty of a
professional misconduct and liable to punishment as provided in Legal
Practitioners Act, 1975
This provision is a codification of the decision of the Legal Practitioners Disciplinary
Committee in the case of Onitiri v. Fadipe.80 Although not every breach of the RPC
will attract the maximum punishment—striking off the erring practitioner’s name
from the Roll—as no precedent yet exists on this issue, the breach of this duty could
Page38
80
(Unreported) Charge No. LPDC/IP/82
attract suspension or warning before the ultimate axe is wielded. As though the
High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004 was
pre-empting the RPC, it provides that a certificate of pre-action counselling signed
by both counsel and his client—showing that the client has been appropriately
advised as to the relative strength and weakness of the case—be filed along with the
writ where proceedings are initiated by counsel. Counsel shall be personally liable to
pay the cost of the proceedings where it turns out to be frivolous.81 Lawyer beware!
Also, befitting his role as a priest in the temple of justice, counsel has a duty to bring
to the attention of the court any legal authority (statutory provisions and case law)
promoting, recommending and mandating the use of ADR which has a bearing on
the client’s case. This should be the case even where the authority is directly adverse
to the position of his client.82 Also, counsel should not turn a blind eye to relevant
authority on ADR just because he wishes to pursue litigation. Die-hard litigation
lawyers who are ignorant of, or not sufficiently knowledgeable or skilled in the use
of ADR processes may fear that they could lose their client—and therefore the legal
fees/retainer—and thus prescribe litigation even where the case requires ADR. The
proper thing to do in such instance is to associate with himself another lawyer who
is ADR-compliant, on that case.83 Better still, a lawyer should aim to improve his
competence and expand the scope of his practice by professional training in ADR
methods.
Furthermore, a lawyer should promote ADR and assist in preventing conflict by
advising his client to insert ADR clause in contractual agreements. Needless to say,
the lawyer should be detailed and specific in drafting such clauses in order to
promote certainty and guarantee enforceability. Where a client appoints counsel to
81
Order 4 Rule 7 thereof.
82
Rule 32 (2) (a), RPC
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83
As per Rule 16 (1) (a), RPC
represent him in a negotiation or mediation or any other ADR process—as opposed
to acting as the third party neutral—the general professional duty of counsel to act in
relation to his clients with diligence and to exercise competence, care and skill in the
matter would attach.84 Before, during and even after such ADR process, counsel’s
duty to preserve client’s confidences subsists. All oral or written communications
made by the client in chambers or at an ADR session are to be treated without
prejudice and may not be tendered in evidence in subsequent court proceedings.
This rule of silence also extends to a lawyer’s employees, associates and the client’s
witnesses if any. In jurisdictions where ADR is made compulsory in some categories
of cases, counsel is required, as a condition precedent to commencing proceedings,
to tender in court a form verifying attempt to resolve the dispute through ADR.
Duty of Third Party Neutral
Unlike the legal practice and litigation, there is today no law regulating the practice
and procedure of ADR processes in Nigeria except, to a very limited extent, the
Arbitration and Conciliation Act85 (with its annexed Arbitration and Conciliation
Rules) which applies only to the settlement of commercial disputes.86 The provisions
of the Act itself are not iron-clad as they are made subject to the agreement of the
parties, thus respecting the fundamental principle of party autonomy. The reason for
this fluid state of affairs is inherent in the nature of ADR: ADR is voluntary, flexible,
private and confidential, and informal. Therefore any conceivable law seeking to
regulate the conduct of ADR processes will meet with challenges in monitoring and
implementation. However, ADR is neither conducted in vacuum nor with utter
disregard to acceptable standards of practice. The closest to legal regulation in this
84
Rule 14 RPC; Section 9 LPA; UBA v. Taan [1993] 4 NWLR (pt. 287) 368 at 381
Page40
85
Cap. A18, LFN 2004
86
See the long title of the Act.
field are practice directions—institutional rules guiding the conduct of mediation,
arbitration and other ADR processes before the Multi-Door Courthouse or particular
institutions that promote the use of ADR—and codes of conduct seeking to promote
best practice among the pool of experts (panel of neutrals) usually maintained by
such institutions. These only approximate to procedural guides and not law, the
strictest sanction in most cases being the striking off of the erring neutral’s name
from an institution’s list of neutrals.
Judges and lawyers who are appointed by the parties to serve as neutrals on their
case are therefore to act not in their capacity as members of the legal profession nor
judges as to which side is right or wrong in the dispute, but have a role to promote
amicable settlement on the terms of the parties themselves. It is important to stress
this point because lawyers are more disposed to approaching disputes as zero-sum
equations due to their fixed adversarial mindset. A lawyer may therefore find it
uncharacteristic to ditch his wig-and-gown personality in assuming a neutral role.
The initiative for standardization in this field came from three professional groups:
the American Arbitration Association, the American Bar Association, and the Society
of Professionals in Dispute Resolution. The aim was to develop a set of standards to
serve as a general framework for the practice of ADR in order to promote public
confidence in its dispute resolution utility. However, in some cases, the application
of these standards may be subject to laws or contractual agreements. The standards
are set out hereunder, with comments and necessary generic modifications.87
 Self-Determination
A neutral shall recognize that ADR is based on the fundamental principle of self-
determination. This requires that the process rely upon the ability of the parties to
reach a voluntary, un-coerced agreement. The neutral may provide information

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87
See: Ogunyannwo (2005), pp. 166-173
about the process, raise issues, and help parties explore options. Any party may
withdraw from ADR at any time.
 Impartiality
A neutral shall conduct the process in an impartial manner. The concept of third-
party impartiality is central to the ADR process. A neutral shall handle only those
matters in which he or she remains impartial and even handed. The quality of the
process is enhanced when parties have confidence in the impartiality of the neutral.
If at any time the neutral is unable to conduct the process in an impartial manner, he
or she is obliged to withdraw.
 Conflict of Interest
A neutral shall disclose all actual and potential conflicts of interest reasonably
known to him or her. A conflict of interest is a dealing or relationship that might
create an impression of possible bias. After disclosure, the neutral shall decline to act
unless the parties choose to retain him or her. The need to protect against conflicts of
interest also governs conduct that occurs during and after the mediation. Without
the consent of all the parties, a neutral shall not subsequently establish a professional
relationship with one of the parties in a related matter, or in an unrelated matter
under circumstances which would raise legitimate questions about the integrity of
the mediation process.
 Competence
A neutral shall act only when he or she has the necessary qualifications to satisfy the
reasonable expectation of the parties. Any person may be selected as neutral;
provided that the parties are satisfied with the neutral’s qualifications. Training and
experience in ADR, however, are often necessary. A person who offers himself or
herself as available to serve as neutral gives parties and the public the expectation
Page42
that he or she has the competence to act in that capacity effectively. In court-
connected or other forms of mandated ADR, it is essential that neutrals assigned to
the parties have the requisite training and experience.
 Confidentiality
A neutral shall meet the reasonable expectations of the parties with regard to
confidentiality. The parties’ expectations of confidentiality depend on any agreement
they may make and the circumstances of the case. Since the parties’ expectations
regarding confidentiality are important, the neutral should discuss these with the
parties. A neutral shall not disclose any matter that a party expects to be confidential
unless given permission by all parties concerned or unless required by law or other
public policy to do so. If a neutral holds private sessions (caucuses) with each party,
the nature of these sessions with regard to confidentiality should be discussed prior
to holding such sessions. Importantly, the presence or absence of other persons
during the process depends on the agreement of the parties and the neutral: they
may agree that other persons be excluded from particular sessions or from the entire
process. Confidentiality should also be construed to limit or prohibit the effective
monitoring, research or evaluation of ADR programmes by sponsors or donors. In
appropriate circumstances however, researchers may be given access to statistical
data and, with the permission of the parties, to individual case files, observations of
live sessions, and interviews with participants.
 Quality of the Process
A neutral shall conduct the process fairly, diligently, and in a manner consistent
with the principle of self-determination by the parties. A neutral shall work to
ensure a quality process and to encourage mutual respect among the parties. A
quality process requires a commitment by the neutral to diligence and procedural
fairness. There should be adequate opportunity for each party to participate actively.
As an aid in managing the process, neutrals are allowed to set ground rules stating
Page43
clearly to the parties acceptable conduct during the process. Before commencing, a
neutral should also ensure that parties have full authority to settle the dispute so that
the process will not amount to an exercise in futility. The parties may decide when
and under what conditions they will reach an agreement or terminate the process. A
neutral shall withdraw from the process or postpone a session if the process is being
used to further an illegal purpose, or if a party is unable to participate due to
physical or mental incapacity.
 Quality of Settlement
To this list of desirables, one also needs to add the duty of a third party neutral to
ensure that settlement is conclusive. Where a neutral succeeds in moving the parties
to a dispute to settlement, he has a duty to draft the terms of settlement in clear
terms understandable to the parties. The terms of settlement should also be certain
to guarantee durability and enforceability. In most cases, the quality of settlement
depends to a large extent on the quality of the process. Where the process has been
participatory and the neutral helps the parties to build trust, freely express their
interests in the matter, and adopt a collaborative problem-solving approach, then the
settlement will only be a product of the parties’ efforts. As such, the parties will be
willing to comply with the terms of settlement.
 May it Please the Law!
Neutrals are not lawyers. A neutral should refrain from giving legal advice. Where
appropriate, he or she should recommend that parties seek outside professional
advice, or have the benefit of legal representation during the process, or consider
resolving their dispute through other legally prescribed process. Even where a
lawyer acts as neutral, the role of an impartial neutral should not be confused with
that of a lawyer who is an advocate for his client.

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CHAPTER FOUR
RELEVANCE OF DISPUTE RESOLUTION IN GOVERNANCE
ADR skills are life skills and are transferrable. Virtually all fields of human
endeavour have dispute components in respect of which ADR processes offer
better solution. ADR is not just an area of specialization; it is an essential aspect
of every area of specialization. Since conflict is an inevitable component of
human relationships, ADR will continue to be a necessary part of human
existence.
Kevin Nwosu88
Instrument for Democratic Governance
A
credible and sound democratic culture is not conceivable without the full
integration of dispute resolution into the body polity. Democracy itself is a
potpourri of instruments for conflict management and dispute resolution—decision
making based on majority vote, the rule of law, horizontal separation of powers and
checks and balances, vertical distribution of powers among the tiers of government
in a federal structure, resource redistribution and revenue allocation formula, federal
character, political coalition and alliances, and maybe rotational presidency. The
summation of all these instruments in a constitutional democracy is the grundnorm.
Let us indulge in a little historical fancy. Before recorded history, small but self-
contained human groupings had little need for complex rules regulating social
conduct. Behavioural norms were passed down from one generation to another
largely through observation, emulation and correction. Oral tradition was a veritable
supplement, especially in propagating new rules of conduct. There was probably a

Page45
88
Director, SETTLEMENT HOUSE, Abuja in SETTLEMENT HOUSE Brochure, p. 2
recognized authority figure or patriarch who saw to the settlement of disagreement
between and among group members, and led interaction with outside groups where
necessary. As the population of the small group multiplied, the needs of its people
became less easy to satisfy, and emigration and resettlement became unavoidable.
Distancing reduced the intra-group tension and created new territories and spheres
of influence. With the opening-up of such small groups, interaction with a greater
number of outside groups became more penetrating: the occurrence and intensity of
conflict escalated due to increased competition for power, scarce resources, and wide
differences in language, values and worldviews. During this epoch, self-help, battle
and conquest were the common means of resolving conflict. But conflict resolution
came at a great cost. Then the light bulb went on in the head of one long-forgotten
genius: “Let us make unto ourselves a rulebook to guide future conduct, specify the
rights and obligations of every man in the province, and regulate competition for
power, so that we can refer to this rulebook whenever a dispute or conflict arises in
the future”. He sold his conviction to others with much persuasion. This social
contract became the genesis of present-day constitutional democracy. With trial-and-
error and proven efficacy of the social contract, the rules were expanded and became
generally accepted as social norms, and with the passage of time the rulebook
became ossified as the grundnorm. Other societies—by sheer conquest, colonization,
assimilation or outright importation—came to adopt and depersonalize this model
for general applicability and durability. Adaptations were often made where local
conditions warranted it: thus the rulebook may be written or largely unwritten, rigid
or flexible in amendment, sanction a unitary or federal state, or adopt presidential or
parliamentary system of government. This is fiction, but it is plausible fiction.
Back to reality! Nigeria’s 1999 Constitution, though not autochthonous, reflects a
complex instrument for managing the divergent interests of its diverse peoples. First,
Nigeria’s three-tiered federal structure is a power container which regulates friction

Page46
that would otherwise correspond to the age-long battle for territoriality and spheres
of influence among feudal overlords, landowners and peasants.89 To oil the wheel of
social progress in order to reduce fiction,90 the 1999 Constitution delimits the spheres
of competence of each tier in its Second Schedule: Exclusive Legislative List covering
matters of defence, citizenship, foreign relations and other issues of national interest
on which only the National Assembly can legislate; Concurrent Legislative List
covering matters on which both the National Assembly and the State Houses of
Assembly may legislate; and any other residual matter for the States. On principle,
each tier is equal and autonomous in its own sphere, except where the constitution
allows for concurrence of power. Again reviving the feudal doctrine of covering the
field, where there is inconsistency between an Act of the National Assembly and a
Law of a State House of Assembly, the Act shall prevail and the State Law shall, to
the extent of the inconsistency, be void.91
Second, the Siamese doctrine of separation of powers and checks and balances which
is rubber-stamped by delimiting the powers of the legislature, the executive and the
judiciary in Sections 4, 5 and 6 of the 1999 Constitution represents another attempt at
preventing despotic rule (and therefore revolution) and structuring the government
to reduce friction while enhancing governance. To make government of the people
by the people as representative as it can get in a complex modern-day society, the
1999 Constitution adopts a bicameral legislature at the centre: the distribution of
seats in the Senate being based on equality of the constituting states, and in the
House of Representatives on population distribution within and among states. On
principle, our legislators are the mouthpiece through which the voices of their many
constituents are articulated. Thus, our version of democracy today is an attenuation
of popular democracy as it existed in the ancient Greek city states. To facilitate
89
Locus classicus: the dysfunctional relationship that was Obasanjo vs. Tinubu. It is dysfunctional because the
power container called Nigeria appears to be a three-tiered upturned pyramid, not a cylinder.
90
Refer to p. 6, supra.
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91
Section 4 (5), 1999 Constitution
governance and avoid abuse of powers that would be engendered by allowing
lawmakers to also be law enforcers, the Constitution creates an executive through
whose instruments the wishes of the people as expressed in laws and policies made
by their elected representatives will be carried out.92 As a check on the reasonability
of laws made by the legislature, the executive is required to endorse such laws by an
assent before they can be enforced, or to exercise his veto by withholding assent; as a
check on the vanity of the executive, the legislature is allowed under strict conditions
to bypass such assent when withheld unreasonably, thus overturning the executive
veto.93 To avoid abuse of powers by the executive, the legislature is in turn required
to sanction or refuse any executive decision declaring war with another country,94
and to approve or amend the annual budget submitted by the executive in an
appropriation bill.95 This same Tom and Jerry melodramatics plays out in the 36
states’ and over 774 local government and area councils comprised in the federation,
mutatis mutandis.96 Ironically, in today’s increasingly complex democratic societies,
the constitution is less a blueprint for dispute resolution than it is an invitation to
struggle. Government is merely facilitated by delimiting structures and functions.
Governance is a continual bargain.
Realizing that this conflict management scheme will only reduce but not eliminate
friction between the two arms of government, the Constitution vests a supervisory
role in a judiciary which steps in whenever the two are at loggerheads, and when
any arm oversteps its bounds.97 The role of the judiciary goes beyond supervision.
For certainty, it solely interprets the Constitution and laws made by the legislature.
92
Section 5 (1) (a) & (b), 1999 Constitution
93
Sections 58 (3) (4) & (5) and 59 (3) & (4), 1999 Constitution
94
Section 5 (4) & (5), 1999 Constitution
95
Section 59, 1999 Constitution
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96
See: Parts I & II, First Schedule to 1999 Constitution
97
See: Section 4 (8), 1999 Constitution
Interestingly, in interpreting the law, the judiciary’s word often becomes law (case
law), thus adding to the body of laws that need further interpretation. Furthermore,
as stated in Section 6 (6) (b) of the 1999 Constitution, judicial powers:
(b) shall extend to all matters between persons, or between government or
authority and any person in Nigeria, and to all actions and proceedings relating
thereto, for the determination of any question as to the civil rights and obligations
of that person.98
Enter ADR when the issue in dispute relates not to the interpretation of laws or the
determination of the civil rights and obligations of a person, but to the unspoken
interests of political factions and caucuses in the legislature; lobbying in private, at
the committee level or in plenary to support or oppose a motion; deadlock between
the upper and the lower chamber of the legislature; avoidable muscle flexing with
the executive caused by ego trips; the demands of opposition parties and pressure
groups seeking to influence policy; the GMGs from business cartels desirous of
maximizing profit by sponsoring bills or amending laws to improve the business
regulatory environment; the needs of minority groups that want to give vent to their
deprivation; or the fears of religious groups that coexist with people of different
convictions. What about those categories of cases where, by constitutional restriction
or by auto-limitation, the judiciary shirks to assume jurisdiction? Such cases include
executive immunity,99 the conduct of legislative proceedings,100 and internal affairs of
political parties. The list is unending. Where the machinery of justice would be
overwhelmed by demands for justice, then negotiation, mediation, coalition and
consensus building constitute the lubricants which give efficacy to the tortuous
process of governance. Should we then wait for the courts to decide every dispute
arising from, in relation to, or in the course of governance?
98
Emphasis mine.
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99
Section 308, 1999 Constitution
100
Balarabe Musa v. Speaker, Kaduna State House of Assembly [1982] 3 NCLR 450
Mechanism for Conflict Prevention and Peacebuilding
If we concede the proposition that litigation and arbitration are too expensive and
take too long, then we should realize that aggravated conflicts like ethnic, religious
and political crises cost even more, and the physical and psychological injuries take
much longer to heal. The bottom line is that some of the crises we face today in
Nigeria, including the Niger Delta region, escalated due to failure of the judicial
process to address the lived reality of the dispossessed. Consequently, part of the
recommendations of the International Crisis Group (ICG) on the Niger Delta issue
was to encourage negotiations and promote mediation, involving the federal and oil-
producing state governments, various interest groups in the Niger Delta and the
transnational energy companies operating in the region, and remarkably, to support
a “credible, independent judicial mechanism to adjudicate compensation claims”. 101
The federal government has set up a Truth and Reconciliation Commission to help
address the grievances and defuse tension. But experience shows that prevention is
always better than cure.
A coherent way to maximally utilize ADR as first-line options in any case to prevent
conflict escalation is by designing a Dispute Resolution System (DRS). This requires
the adoption of a proactive and structured approach rather than a reactive, ad hoc
approach to disputes. It is often not enough to settle one particular dispute when
many more are likely to arise in the future. More so, disputes come in different
mixes and layers. Therefore, it is not enough to agree on a single dispute resolution
procedure because: a procedure that is satisfactory for one dispute cannot be
satisfactory for all disputes; a procedure that is appropriate at one stage of a dispute
may not be appropriate at another stage of the same dispute; and a procedure that
leads to successful resolution of some issues in a dispute may not successfully
resolve all the issues in dispute. DRS offers a practical response as it consists of
successive safety nets—negotiation followed by mediation, settlement conference,

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101
See: International Crisis Group (2006)
then advisory arbitration or litigation, as the case may require—that can ensnare a
conflict before it does irreparable harm. Such system operate in a fail-safe continuum
that automatically kick-starts the next process where the previous one does not fully
arrest the conflict.102
The argument is that a DRS, when put in place—whether in private companies,
corporations, government departments, communities, school system, trade unions,
religious assemblies, or social clubs—would ensure cheap and timely resolution of
disputes and prevent avoidable litigation or the escalation of conflict. Statutorily,
Sections 4 to 9 of the Trade Disputes Act and Section 11(1) of the Matrimonial Causes
Act represent successful attempts at instituting this case management technique.
Beyond statutory prescription, government departments and regulatory agencies
should, as a matter of policy, develop and incorporate robust DRS in their dispute
settlement, regulatory and grievance-remedial procedures. The telecoms regulator,
Nigerian Communications Commission adopted a Dispute Resolution Guidelines in
2004 which inaugurates simple, quick, informal and inexpensive arbitration and
mediation procedures.103 Notably, the arbitration of interconnection issues between
and among service providers may be commenced by a party where the negotiating
process fails to reach an agreement after an initial period of 90 days. Appropriately,
the Guidelines also allow that negotiations may continue between the parties
pending a final decision of the arbitrator. In addressing chieftaincy disputes, an
enlarged stakeholder conference convened at the instance of a person in authority,
who may or may not be the settlement facilitator, would serve the same purpose. 104
The nature of any proposed system would depend on the nature of the business,
complexity of the situation, and the peculiar needs of the proposed user.
102
See: APPENDIX B, infra.
103
The Guidelines are made pursuant to the powers conferred on the body under Sections 4(p) and 75(2) of
the Nigerian Communications Act 2003. The Guidelines are principally intended for small claims consumer
disputes involving amounts in dispute not exceeding N1,000,000 (one million naira).
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104
Cf.: Owoseni v. Faloye [2005] 14 NWLR (pt. 946) 719
The utilization of DRS system in governance is usually articulated in a policy
framework which guides and structures engagement with multiple stakeholders on
cross-cutting issues on different levels. However, the general rule is to keep the
process simple, context-specific and adaptable. Highlighting the value of timely and
sequenced dispute resolution, Kehinde Aina ponders:105
Should we not pause to ponder why we started contemplating amicable
resolution of the onshore/offshore controversy after a full-blown legal action?106
Why did the former Head of State, General Abdulsalami Abubakar “urge
Nigerians to opt for dialogue and good neighbourliness” after the International
Court of Justice had affirmed Cameroon’s ownership of the Bakassi Peninsula
and not before?107 Couldn’t we have opted for that dialogue before now?
Regrettably, the huge loss came only when our legal experts disregarded the
continuum encapsulated in the constitutional directive to seek the “settlement of
international disputes by negotiation, mediation, conciliation, arbitration [before]
adjudication”.108 Our case appears to be that of putting the cart before the horse.
Even in domestic affairs, the absence of an indigenous policy framework for conflict
prevention and peacebuilding has not helped our situation. The overriding objective
of the National Architecture for Peace in Ghana adopted in 2006 is to:
...enable and facilitate the development of mechanisms for cooperation among all
the relevant stakeholders in peacebuilding in Ghana by promoting cooperative
problem solving to conflicts and by institutionalizing the processes of response to
conflicts to produce outcomes that lead to conflict transformation, social, political
and religious reconciliation and transformative dialogues.
105
Aina (2003), p. 344
106
See: Attorney General of the Federation v. Attorney General of Abia State & Ors. [2002] 6 NWLR (pt. 764)
pp. 542-905
107
See: The Guardian, 11 October 2002, p. 2
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108
Section 19(d), 1999 Constitution
The Architecture seeks inter alia: to develop a conflict prevention framework in Ghana
that will monitor, report and offer indigenous perspectives, understanding and
solutions to conflicts in Ghana; and to build the capacity of chiefs, women and youth
groups, civil society, community organizations, public institutions and other groups
to participate meaningfully in promoting and maintaining peace in the country. To
bring this process closer to the grassroots, a multi-track engagement is envisaged at
the district (local), regional (state) and national levels. Ghana has gone to this extent
even though it is perceived as a stable country in the volatile West African region. It
is hypocritical that in display of her altruism and Big Brother role, Nigeria spends
billions of dollars and the lives of her soldiers in peacekeeping operations (same
reactionary psychology) in the Congo, Liberia, Sierra Leone, Sudan, Cote d’Ivoire,
and other parts of the world while her own house is on fire! Only in 2007 did Nigeria
take visible steps in articulating a draft National Peace Policy document facilitated
by the Institute for Peace and Conflict Resolution under the auspices of the United
Nations Development Programme (UNDP). All’s well that ends well, if it ends well,
that is: no matter how comprehensive and well-intentioned a document might be,
local ownership of the framework will not be achieved by self proclamation—just
like the 1999 Constitution and its predecessors—and government’s commitment to a
strategy is not automatic upon its promulgation into law.
Tool for Policymaking
Policymaking is basically the process of formulating a plan of action or strategy for
addressing issues in particular sectors, or adopting an overall strategy for engaging
with the business of governance or regulation of industries. Policies originate from
norms of civic behaviour. In Nigeria for instance, the government of the day usually
formulates policy on security, economic development, trade, education, health,

Page53
transport, communications, labour, inter alia. Taking a broad perspective, Chapter II

of the 1999 Constitution encapsulates: Fundamental Objectives and Directive Principles
of State Policy, which are injusticiable benchmarks to direct government’s action in
different segments of national life and even crafting foreign policy. Let us consider
Nigeria’s economic objectives for instance. The policy directive of the state contained
in Section 16(2) of the 1999 Constitution is towards ensuring:
(a) the promotion of a planned and balanced economic development;
(d) that sustainable and adequate shelter, suitable and adequate food, reasonable
national minimum living wage, old age care and pensions, and unemployment,
sick benefits and welfare of the disabled are provided for all citizens.
Pursuant to these and other directives, the government then formulates an economic
development strategy, which today is expressed in the recently adopted National
Economic Empowerment and Development Strategy (NEEDS) paper and, at the
states’ level, the various State Economic Empowerment and Development Strategy
(SEEDS) papers. Now, I do not wish to question the intendment, targets or content of
these papers which may have been drafted by some laptop-totting foreign consultant
far removed from the lived realities on ground after a two-month needs assessment.
Their objectives may be laudable, but the process of policymaking—where inclusive
and participatory—is often more important than the outcome, an idealistic strategy
paper. Essentially, policy needs to be sensitive to the plight, unique situation and
state of being of the nation, the people, or the industry or institution for which it is
made. Any disconnect between the objectives of policy and the expectations, beliefs
and interests of the target group is a failure of the policymaking process. This is why
policymaking is a sensitive issue especially in a democratic setting where the success
of the government in meeting the expectations of the governed is judged at periodic
elections.109
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109
See: Section 14(1) & (2), 1999 Constitution
Decision making in a democracy is by majority rule. Ironically, governance is often
not as simple as doing the bidding of the majority. Let us use an extreme case from
the Niger Delta to illustrate the point. Crime and criminality is abhorred in society
and punished by the state. For this reason, the federal government or transnational
oil companies operating in the Niger Delta could make security policy relating the
protection of personnel, oil rigs, pipelines, installations and other assets. Where such
policy does not take into consideration the (justified or unjustified) interests of some
militant group, community youth or leaders, and other actors in the security drama,
the government or company is likely to meet with difficulty in implementing the
policy.110 In such situation, there may need to be a delicate balancing of the strategic
interest of the government, the economic interest of the transnational company, the
grievances of the militant group if any, the loss of entitlements and environmental
hazards posed to the host community, and other invisible actors or groups who may
benefit indirectly from the mayhem which creates an enabling environment for
vandalism, bunkering and piracy. The balancing act may be achieved by holding
negotiation caucuses with different interest groups, mediating between warring
factions, resolving competing but not incompatible interests of a company and a host
community, renegotiating the percentage of resource wealth accruable to the federal
government, oil-producing states and local authorities (resource allocation formula)
based on the principle of derivation, convening a public meeting of stakeholders to
build consensus on acceptable conflict resolution approaches, or the determination
of the extent of the rights and obligations of a party as against another in a court of
law where the extent of such right is contested.
Policymaking can benefit by borrowing the time-tested commercial wisdom of
market surveys to determine when the conditions are favourable to formulate, and
the time is ripe to unveil new policy; pacing and sequencing to direct to what degree
policy change can be managed at a time in order to avoid consumer backlash and
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110
There have been reports of fatal clashes between community youth and security details of Private Security
Companies engaged by some oil companies to guard their personnel and facilities.
protests; consumer feedback to gauge the impact of policies; promoting deliberative
dialogue to increase participation of the target group in order to make consumer-
friendly policy and guarantee customer satisfaction; simplifying, adapting and mass-
marketing the policy in the hinterland and peripheral groups to enhance visibility,
understanding and consumer buy-in; incorporating Monitoring, Evaluation &
Review process in order to improve upon the policymaking process; envisaging and
adapting to new challenges with ease; and ideally, applying diplomacy in dealing
with sensitive issues and defusing potential landmines. All these call for subtle
dispute resolution skills at every stage. In the sphere of governance where power
acts as check to power, for both domestic and foreign policymaking requiring that
the executive must proceed on the consensus (in cases of collective responsibility) of
the Council of Ministers, or on the majority decision (resolution) of the National
Executive Council, or obtain legislative support or at least acquiescence for its action,
the executive’s power to persuade and lobby rather than its prerogative powers or
coercive ability is often decisive in determining the success or failure of its policies.
Vehicle for Promotion of Investment
Government seeks to promote and protect local industries, support micro, small and
medium enterprises (MSMEs) in order to improve productivity, meet consumption
and increase export; and to encourage foreign direct investment (FDI) in order to
accelerate macro-economic growth and integration. Achieving these economic
objectives require favourable legal regulatory regime and efficient dispute resolution
system. In an increasingly competitive globalizing economy, these objectives are
targeted, in economic terms, at increasing the wealth of a nation measured by its
gross domestic product and per capita income, and redressing balance of trade and
balance of payment deficits. In real terms, they are targeted at accelerating economic
Page56
growth and development and improving socio-political stability.

Business processes and relationships have a high potential for generating disputes.
Adversarial dispute resolution processes tends to transform commercial disputes
into legal disputes and therefore are not investor-friendly. To bypass the litigation
process in host countries, foreign concerns usually incorporate multi-tiered dispute
settlement provisions in bilateral and multilateral investment treaties as a means of
giving efficacy to international trade and protecting FDI. Unlike litigation, ADR
processes traverse jurisdictional borders and emphasize international best practice
over discrete national laws. The cost of doing business in Nigeria invariably involves
the cost of pursuing lengthy litigation. Nigeria’s case is peculiar. Discouragingly, the
World Bank report, Doing Business in 2005111 classifies Nigeria as the 8th slowest
country to enforce contracts out of 145 countries surveyed. The report revealed that
contract enforcement required 23 procedures and 730 days, at a cost of 37.2 percent
of the debt.112 MSMEs could go out of business if they are caught in this trap. In
order to defuse such trap and increase the attractiveness of the investment climate,
the Nigerian Investment Promotion Commission (NIPC) Act113 shrewdly avoids the
mention of litigation in its dispute settlement procedures.
The track laid out in Section 26 of the NIPC Act for the settlement of a dispute
between an investor and any Government of the Federation is quite simple and
convenient: first, compulsory negotiation, then optional arbitration at the instance of
the aggrieved party. The Act still leaves no loose ends. In the case of disagreement
between the investor and the federal government as to the method of dispute
settlement to be adopted, Section 26(3) of the Act further incorporates a default
procedure: the International Centre for Settlement of Investment Disputes (ICSID)
111
See: Doing Business in Nigeria—Dispute Settlement, @ http://www.buyusainfo.net/docs/x-3078185.pdf,
last visited on 20 March 2007.
112
On the need for counsel to help reduce delays caused by preliminary skirmishes and thereby help create
international confidence in the ability of Nigerian courts to treat commercial cases with dispatch, see: UBA v.
Stahlbau GmbH (1989) 6 SC (pt. 1) 22.
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113
Cap. N117, LFN 2004
Rule shall apply. The emphasis on settlement here is not mistaken. Still leaving no
lapses, the ICSID (Enforcement of Awards) Act114 provides in Section 1 that an ICSID
award “shall for all purposes have effect as if it were an award contained in a final
judgement of the Supreme Court, and the award shall be enforceable accordingly”.
This gives certainty and finality to such award and thus represents an end to
litigation without expressly ousting the jurisdiction of the court.
The Trade Disputes Act115 adopts a more varied approach to the settlement of labour
disputes to oil the wheels of industry. It acknowledges the right of parties to use any
privately-agreed method for resolving dispute outside the Act as a first step. This
preserves the sanctity of any agreed dispute resolution clause or system. In the
absence or failure of such method to resolve the dispute, the parties shall, within 7
days, attempt amicable resolution under the presidency of a party-appointed or
agreed mediator. If no resolution is reached at this stage after 7 days, the dispute
shall be reported to the Minister of Labour who may appoint a fit person to act as
conciliator for the purpose of effecting a settlement of the dispute. If a settlement is
not reached within 7 days of his appointment, the conciliator shall report the fact to
the Minister who shall, within 14 days of receipt of the report, refer the dispute for
settlement to the Industrial Arbitration Panel. Given the significant consequences of
trade disputes to the life of an industry and the nation, the fixing of time limits here
serves two purposes: to expedite the process by discouraging dilatory tactics; and to
build on the pressure created by a deadline to move parties to resolution, or else
submit to the next process in the chain where they will be less able to influence the
process and the outcome.
Dispute resolution skills are essential not just for settling business disputes but also
for doing business: good negotiation and mediation skills will foster better relations
114
Cap. I20, LFN 2004
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115
Cap T8, LFN 2004
with customers and clients, suppliers and business associates. A good negotiator is
experienced in networking for opportunities, assessing offers, weighing alternatives,
and going for the best deals on the table. For this reason, Section 4(b) of the National
Office for Technology Acquisition and Promotion Act116 prioritizes the development
of the negotiation skills of Nigerians with a view to ensuring the acquirement of the
best contractual terms and conditions by Nigerian parties entering into any contract
or agreement for the transfer of foreign technology. Taking a public-sector private-
sector leaning, the Nigerian Association of Chambers of Commerce, Industry, Mines
and Agriculture (NACCIMA) maintains a Trade and Investment Promotion Centre,
one of which functions is the mediation of commercial disputes in order to protect
Nigeria’s image and business interests abroad.
Enhanced Criminal Justice Administration
Criminal justice administration in Nigeria is beleaguered by sundry statutory, policy
and practical challenges: arbitrary arrest and detention, holding charges, shoddy
criminal investigation, the bail process, abolition of preliminary enquiry procedure,
inefficiency of the prisons system, non-existence of the jury system (essentially an
infusion of ADR into criminal justice), and obsolete criminal law and procedure.
Against this backdrop, plea bargain could therefore be an intervention strategy to
reduce delay in criminal justice administration, and the cost of criminal prosecution
and enforcement of custodial punishment and detentions. Besides, court-facilitated
mediation of misdemeanours has the potential to alleviate and control overcrowded
criminal dockets by providing an alternative to criminal prosecution.117
116
Cap. N62, LFN 2004, Sections 4 to 9
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117
See: pp. 36-37, supra.
For political reasons, the debut of plea bargain on the Nigerian courts’ stage in 2007
was seen by some lawyers as an attenuation of the ends of criminal justice, rather
than a welcome development.118 In an ideal situation, plea bargain may be a win-win
strategy, thus making the case of both the prosecution and the defence less taxing.
The onus of proof on the prosecution to establish an accused person’s guilt beyond
reasonable doubt is no mean feat when the law gives an accused the benefit of the
doubt by presuming him otherwise innocent. When prosecution cannot adduce
sufficient evidence to discharge that onus on the offence(s) charged, a reasonable
course of action may be to charge the accused with a lesser offence—for instance,
reducing the charge from murder to manslaughter—or to drop some charges if the
accused has been charged with multiple offences.
Where the prosecution realizes that the case for the defence is equally weak, it could
bargain with the defence to cede some of its own legally allowed resistance. For
instance, for the prosecution to charge for a lesser offence or drop some of the
charges against the accused, the accused may agree to plead guilty to the modified
charge—and often furnish allocutus—thereby relieving the prosecution of some of its
onus and leading to an abridge trial. By pleading guilty to a lesser offence(s), the
accused person receives a lighter sentence than that which he is likely to receive in a
full trial on the original charge. Also, the prosecution may agree not to oppose the
defence’s bail application in exchange for dropping some charges against the
accused. Prospects for bargain abound at different stages—pre-trial, trial, post trial—
of adversarial prosecution.119 Prosecution may deal with a suspect accused of aiding
and abetting the commission of an offence—deemed to be liable as a principal
offender upon conviction—not to charge him with the offence in exchange for calling
him as prosecution witness to prove a case against persons accused of committing
118
The cases were high profile, involving the prosecution of some former state governors for financial crimes
and corruption. It was argued that the practice undermined the deterrent effect of punishment.
Page60
119
See generally: Simms (2007)
the offence. To create a different scenario, instead of trying a suspect jointly with
other co-accused charged with jointly committing the same offence, the prosecution
may charge the suspect separately, have him plead guilty to the offence as charged
and get a speedy trial and a light sentence, and call him as prosecution witness to
prove the case against his co-accused who have pleaded not guilty to the offence.120
Being an agreement between the state (prosecution) and the accused (defence),
conviction resulting from plea bargain is not subject to appeal.
The guiding principle is to maintain some balance and, in the interest of justice, not
to unduly weaken the case of the prosecution against the defence in the process, or
vice versa. Moreover, prosecution should not change its role to persecution in an
attempt to convict at all cost.121 In Kentucky, United States, the courts are already
experimenting with using criminal mediators (often retired judges) to oversee the
plea bargain process, recording success in cases of homicide, rape, and conspiracy to
commit murder.122 For guided development of this case management technique in
order to avoid abuse, there is the need to educate lawyers on the objectives of plea
bargain and incorporate guidelines in our Criminal Procedure Laws stipulating the
limits of and the conditions for its application.123
Further application of dispute resolution skills to enhance the administration of
criminal justice could come by initiating police mediation schemes. Today, due to
ignorance, lack of appropriate dispute resolution skills and the tardy process of our
courts system, disputants often employ the police in resolving quasi-criminal and
civil matters that are ordinarily beyond the scope of police powers. The police is
120
Even for joint offenders who fall under Sections 7, 8 & 9 of the Criminal Code, the trial court may order a
separate trial where a joint trial will prejudice an accused, and the interests of justice require that he be tried
severally and not jointly with the other accused persons.
121
See: Rule 37(4), RPC 2007
122
Simms (2007), pp. 809-812
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123
The case of R v. Turner [1970] 2 All ER 281 is instructive.
resorted to in such instances not because of their efficiency in resolving disputes, but
often because parties acknowledge the potency of their legitimate use of force. Such
instances include cases of debt recovery, landlord-tenant matter and neighbourhood
disputes, breaches of contractual obligation, and other tortuous liability like assault,
slander and passing off. In such borderline cases where the distinction between a
crime and civil wrong is often blurred, the District Courts Act empowers the court to
promote and facilitate settlement in both criminal and civil cases.124 This may be
complemented by initiating a police mediation scheme within a police command.
Officers could play a more managerial role in mediating such disputes by inviting
parties and facilitating settlement where appropriate, rather than issuing deadlines,
confiscating private property, and using or threatening the use of force at the
instigation of a party. Where the nature and scope of the dispute will lead to an
abuse of police powers, the police would refer the parties to any other appropriate
dispute resolution method or proffer a formal charge if the case points to a criminal
element. Needless to say, initiating such scheme would require the training of senior
and middle-rank police officers, judicial officers and public prosecutors on the use of
ADR methods in enhancing criminal justice.
De-escalation/Resolution of Armed Conflict
An unenviable application of dispute resolution skills is in crafting peace deals.
Negotiating peace deals in the context of an armed conflict where there is, at best,
fragile peace is no mean feat. The 30-month-long Nigerian civil war was not brought
to an end by divine intervention. There were series of negotiations including the
failed peace talks in Aburi, London, Kampala, Addis Ababa, Niamey, and even
intervention by the Vatican before the troops agreed to sheathe their arms after
Biafra’s capitulation. However, for want of a local equivalent and in the belief that
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124
See: Sections 26 & 27, District Courts Act, Cap. 495 LFN (Abuja) 1990
vital lessons will be learnt from a successful recent example, we will consider the
Comprehensive Peace Agreement (CPA) of 18 August 2003 between the Government of
Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the
Movement for Democracy in Liberia (MODEL). Liberia’s case was a peculiar one: the
conflict was internal—being fought mainly between Government forces and armed
opposition forces for 14 long years—but was also internationalized in the sense that
there was a spillover effect into neighbouring Sierra Leone, Guinea, Burkina Faso
and Cote d’Ivoire. The ECOWAS Ceasefire Monitoring Group, ECOMOG did its best
to quell the conflict, but this did not resolve the root causes of the dispute.
Numerous peace deals were negotiated, most of which broke down, leading to a
relapse into conflict in 1998. The unsuccessful negotiations include: The Banjul III
Agreement of 24 October 1990, the Bamako Ceasefire Agreement of 28 November
1990, the Lomé Agreement of 13 February 1991, the Cotonou Peace Agreement of 25
July 1993, and the Akosombo Peace Agreement of 12 September 1994. The war
represented not just the collapse of a system but the creation of an alternative system
through which some groups benefitted economically and therefore had an interest in
perpetuating the conflict.125 The thriving informal war economy impinged on the
capacity of the state to raise revenue, and massive military spending diverted scarce
funds away from other developmental projects.
Let us consider the winning elements of the CPA. Prior to the CPA, an Agreement on
Cease-fire and Cessation of Hostilities was entered into by the warring parties on 17
June 2003 to create a relatively stable environment to negotiate and implement the
CPA. First, concerted efforts were made by the multi-party convening authority—
comprising ECOWAS, the African Union, the United Nations, and an International
Contact Group co-chaired by the European Union and the Republic of Ghana—to
bring the warring groups and other stakeholders together at a negotiating table.
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125
Economic activities that thrived during the war include: logging of hardwood, mining of gemstones both in
Liberia and in Sierra Leone, and then exchanging the gemstones for supplies of arms and weapons.
Then a neutral mediator acceptable to all the parties was appointed. The choice of
mediator was well considered to meet the needed expertise and credibility, and
General Abdulsalami Abubakar, former Nigerian Head of State, fit the bill: an
experienced ex-military officer well-versed in the dynamics of warfare, and an
ambassador of peace who had midwife-d a successful transition from military to
democratic rule in Nigeria. Then, several peace constituencies not directly involved
in the warfare were recognized as witnesses to make the process more participatory
and legitimate and to hold the parties to account if the need arose. The witnesses
included: the Mano River Women Peace Network, the Inter-Religious Council for
Liberia, Civil Society Movement for Liberia, Liberia Leadership Forum, Liberians in
Diaspora, and the Liberian National Bar Association.
Notably, the preamble to the CPA expresses a commitment “to prevent the outbreak
of future civil conflict in Liberia and the consequences of conflicts”, and a pledge
“forthwith to settle all past, present and future differences by peaceful and legal
means and to refrain from the threat of, or use of force”. To stabilize the society, the
CPA covers issues on post-conflict reconstruction: the cessation of hostilities, release
of prisoners of war and abductees, Cantonment, Disarmament, Demobilization,
Rehabilitation and Reintegration (CDDRR) of combatants, Security Sector Reform
(SSR), respect for human rights and international humanitarian law and security of
humanitarian relief, rehabilitation of vulnerable groups. To avoid a perpetuation of
the same conditions that led to the war in the first place and to addressing the self-
interests of the parties, the CPA seeks to achieve post-conflict reconfiguration and
redistribution of power and resources through: electoral reform and establishment of
the National Transitional Government of Liberia, establishment of a Governance
Reform Commission, and the sharing of political offices. To create incentives for
peace, the CPA addresses post-conflict peacebuilding through: the establishment of a
Truth and Reconciliation Commission to deal with the root causes of the crises, and
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the consideration of general amnesty to persons who were involved in military

activities. Importantly, the CPA incorporates a timetable for the agreement, and a
self-monitoring and self-implementing mechanism placing responsibility on the
parties to respect and comply with the terms of the agreement, to communicate the
requirements to all their forces and supporters, and to mass-communicate the terms
of the agreement to the civilian population. The negotiation/mediation process for
both the Agreement on Cease-fire and Cessation of Hostilities and the Comprehensive Peace
Agreement lasted for over 3 months.
Since the cessation of armed conflict, Liberia has undergone successful democratic
transition, electing the first female president in Africa, Madam Ellen Sirleaf-Johnson.
Ensuring a responsive and accountable government, civilian control of the security
sector, adopting pro-poor policies and programmes, increased access to justice
through community mediation schemes and faith-based dispute resolution are all
efforts that can de-escalate tension in society. Developing a culture of peace involves
targeted orientation to shift the thought and behavioural patterns of people who
survived a 14-year-long armed conflict—intersected by a 3-year lull—away from a
confrontational mode towards amicable resolution of disputes.126
Post-Conflict Reconciliation and Transitional Justice
Transitional justice involves employing judicial and extra-judicial strategies—
including institutional reform—to ensure accountability and promote peaceful co-
existence and stability in the aftermath of armed conflict. Two mechanisms stand out
in the transformative process: war crime tribunals and truth commissions. Within
the broad framework of transitional justice, restorative justice goes beyond settling a
conflict’s material stakes to restoring social relations to the status quo ante and
healing hearts and minds. It involves using the justice delivery mechanism to foster
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126
The first war lasted from 1989 to 1996; the second from 1999 to 2003.
other ends beyond retribution—victim-offender mediation, reform and reintegration
of offenders—considering the social context of criminality.
Gacaca courts, the revived traditional justice mechanism in Rwanda which was
reinvented to complement the International Criminal Tribunal for Rwanda (ICTR),
also promote conflict resolution and restorative justice. In any case, the ICTR was
unlikely to try more than a hundred of the most prominent suspects; meanwhile
over 100,000 people accused of human rights abuses in the aftermath of genocide
languished in Rwandan prisons. Authorities admitted that at the current rate of
prosecutions, Rwandan courts would take 150 years to try all the suspects.127 In order
to meet the demands of the time, Gacaca courts apply a sui generis species of criminal
justice: save for its prosecuting and sentencing powers, the procedures adopted by
the courts emphasizes apology, reconciliation and reparation. Now modified to deal
with crimes more serious than those for which it was originally designed, the gacaca
system consisted of a hierarchically organized network of about 11,000 community
courts that would try lower level crimes. Those found guilty must contribute to a
compensation fund and/or perform community service.128
Another variant of the reinvention of ADR is the use of Truth and Reconciliation
Commissions (TRCs) in post-conflict peacebuilding. In post-apartheid South Africa,
the traditional concept of ubuntu which emphasize the notions of humaneness and
community was used to legitimize the TRC’s call for reconciliation. The TRC was a
tool used to set the historical record straight, overturning the lies told by previous
regimes to cover up their abuses, without holding trials. By allowing victims to tell
their stories, the process was meant to produce a powerful healing effect or catharsis
to those who were hitherto traumatized. This healing effect on individuals, it was
hoped, would form the basis for broader national reconciliation by defusing social
127
Graybill & Lanegran (2004), p. 8
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128
Ibid., p. 9
tension, and thereby prevent a recurrence of conflict. Moreover, the power of the
TRC to recommend compensation or reparation packages to victims in deserving
cases was guaranteed to speed up the healing process. To make the process more
effective, the TRC was given quasi-judicial powers (thus making it a hybrid of sorts),
including search-and seizure powers, the right to issue court-backed subpoenas, and
the power to grant individual amnesties.129
Today, TRCs are widely used by African governments in a variety of contexts and
forms. In Nigeria, a belated attempt by the democratic administration of Olusegun
Obasanjo to address post-conflict reconciliation in Nigeria through a Human Rights
Violations Investigation Commission130 was eventually politicized. The government
failed to publish the report of the Commission. One now wonders whether there was
any sincerity in the declared objectives of the venture, or whether it was just an
attempt by the government to buy legitimacy which it could not lay claims to in a
free and fair election, and to curry favour from the international community in the
name of transparency and accountability.131
129
Ibid., p. 132
130
Popularly known as the Oputa Panel. Volumes of the Report have been published “unofficially” by civil
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society organizations. See: http://www.nigerianmuse.com/nigeriawatch/oputa/, last visited on 12 May 2007

131
See: Yusuf (2007)
CHAPTER FIVE
SUGGESTIONS FOR REFORM
The courts of this country should not be the places where the resolution of
disputes begin. They should be the places where disputes end—after all means of
resolving disputes have been considered and tried.
Justice Sandra Day O’Connor
T
he current wave of reforms that permeates the Nigerian judicial system is
commendable. However, the question remains: Have we done enough? What
more needs to be done to make litigation and arbitration more time-saving and cost-
effective to litigants and to the government? How do we reap the benefits of the full
potential of ADR in the process? It seems to me the solution lies in three distinct but
coordinated steps: we must not only seek to (1) sustain, but should also (2) improve
upon and (3) consolidate on the rising wave, if we hope to ride the crest. These steps
should be the tripod on which our judicial system must rest in the 21 st century, or
falter. Now, let’s turn to prognosis.
Sustenance through Increased Funding
The decay and dilapidation of the infrastructure and superstructure that support our
legal system stares us in the face. Needless to say, it besmirches the integrity of our
“temples of justice”. The wrong notion that the judiciary is the dormant volcano
among the three arms of government has contributed to its large-scale underfunding
by the government. Human existence will retrogress to a Hobbesian state barring the
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role of the courts in maintaining social order and upholding social justice.
Upgrading Infrastructure
The infrastructure in our judiciaries in most states is in dire need of upgrading.
Money does make the wheels of justice go faster.132 A key task for a financially
strengthened judiciary would be to oil the administrative machineries and overhaul
the outmoded processes of our courts in order to reduce the time it takes to process
cases. Our manual system of legal research, recording judicial proceedings and filing
cases must give way to a speedier and more efficient electronic system. Red tape
serves its purposes, but where misapplied, has a high potential to be frustrating and
retrogressive.133 Perennial courtroom delays also account for the large number of
Awaiting Trial Prisoners (ATPs). Supposedly innocent until proven guilty, many
ATPs are detained way past what their crimes call for.134 Equal to a denial of justice,
such trial delays diminish people’s faith in the system. The effort of the Lagos State
government in this respect is worthy of emulation: enhanced practice environment
and improved facilities and resources in its judicial divisions have contributed to
boost the morale of both the Bar and the Bench in discharging their duties with
gusto. Other states in Nigeria should borrow a leaf from this example.
Developing Human Capacity
Germane to the foregoing is its sister concern of human resources development. The
importance of continuing education for judicial officers cannot be over-emphasized.
Judges need to be trained and retrained on the application of new rules and statutes,
legal developments and emerging trends in other jurisdictions, appropriate dispute
132
The benefit of increased judicial funding was echoed at a summit on Justice Sector Reforms convened by
the former Chief Justice of Nigeria, Alfa Belgore and others. See: This Day, 9 November 2006.
133
On the negative effects of bureaucracy on our legal system, see: Oputa, JSC (1999), p. 73
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134
See: Defending the Courts, @ http://www.nigeriavillagesquare.com/articles/guest-articles/defending-the-
courts-2.html, last visited on 20 March 2007.
resolution techniques, and the application of technology to legal matters especially
with mammoth advances in information and communication technology (ICT).
Palliative measures that have been taken by the government to cushion the high cost
of invoking the judicial process deserve special mention. One of such measures was
the establishment of the Legal Aid Council (LAC),135 a Parastatal under the Federal
Ministry of Justice charged with the responsibility of providing free legal assistance
and advice to indigent Nigerians.136 Proceedings in which legal aid may be given
include felonies and other indictable offences, civil claims in respect of accidents and
damages for breach of fundamental human rights. Mediation Centres set up by the
Council assist parties to resolve their differences through ADR. Also, the Directorate
for Citizens’ Rights in the Federal and States Ministries of Justice provide similar
services in their jurisdictions. In January 2004, the Body of Attorneys General, all 36
States’ Attorneys General and the Federal Attorney General, agreed to establish
Directorates of Citizens’ Rights in their ministries, with Mediation Centres. In 2005
alone, the five Citizens’ Mediation Centres in Lagos State mediated a total of 7,882
cases. The average mediation is conducted in two or three meetings.137 Lagos State
has gone a step further with the setting up of the Office of the Public Defender in
2003 which also offers free legal services to the indigent especially through ADR, in
line with the government’s access to justice programme. Since its inception in 2003,
the office has handled not less than 7,000 cases.138
To increase their accessibility and usability, the successes recorded by these schemes
need to be sustained by promoting public awareness of their purpose and processes,
recruiting sufficient manpower, and the training and retraining of staff. These bodies
135
See: Legal Aid Decree No. 56 of 1976, now Legal Aid Act, Cap. L9, LFN 2004. The Council has its
headquarters in Abuja and offices in all the States in Nigeria.
136
Legal Aid officers and counsel work pro bono.
137
See: Osinbajo (2006), Keynote Address at the opening of SETTLEMENT HOUSE, p. 4
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138
See: “Public Defender seeks Full Autonomy”, The Punch, Thursday, 15 March 2007, p. 12
rely substantially on budgetary allocation from the government but regrettably, this
is not always adequate for the realization of their lofty ideals. The federal and state
governments and the development partners interested in increasing the observable
outputs of justice sector reform must realize the need for huge financial commitment
to these objects—which have a knock-on effect on the performance of the courts—if
the judiciary is to take her pride of place in the matrix of society.
Improvements to Maximize Efficiency
In its effort at reforming and advancing the justice sector, the federal government
has initiated some bills for passage by the National Assembly. These include: the
Evidence Act Reform Bill, the Arbitration and Conciliation Act Reform Bill, the Legal
Aid Reform Bill, the Administration of Criminal Justice Bill, the Administration of
Justice Commission Bill and the Nigerian Electronic Transactions Bill. Also, Lagos
State is in the process of reforming its Criminal Procedure Law to provide for the
practice of plea bargaining and the concept of restorative justice, both of which are
advancements of ADR principles. To complement these law reforms, some pre-
emptive consideration of our formal and informal dispute resolution channels is in
order to create mutuality of purpose between the law and the practice of ADR.
Incremental Judicial Case Management
In making a case for judicial case management, Lord Woolf expressed the fears that:
Without effective judicial control, the adversarial process is likely to encourage
an adversarial culture and to degenerate into an environment in which the
litigation process is too often seen as a battle field where no rules apply.139
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139
Lord Woolf’s Report on Access to Justice in the United Kingdom, quoted in the Nigerian Law School’s Course
Handbook on Civil Procedure (Orit-Egwa: Lagos, 2004) p. 137.
It is envisaged that in the near future, there would be a radical change in the role of
the judge. This is aimed at achieving a quicker, cheaper, and effective dispensation
of justice. The judge would be more activist and interventionist—something of a
managerial “Hippy Hallet”—as he jump-starts the process at any to avoid stage of
delay. The judge is expected to encourage ADR and to inquire from the parties what
effort they have made at settlement out of court, and any intransigent party may be
visited with costs.140 An ambitious way to increase case management would be to
add to our rules of court, provisions enabling the court to directly facilitate and
supervise settlement where the parties so agree. Thus rather than encourage ADR by
referring parties to a court-annexed ADR centre—which would involve duplicating
the process of case evaluation, selection of neutrals, agreeing to procedural rules,
facilitating settlement, and then submitting the terms of settlement to the court for
adoption—the court switches its operational mode as the case requires to a neutral
facilitator in the dispute. The court thus becomes a one-stop dispute resolution shop.
Needless to say, such reform needs to incorporate the training of judicial officers in
ADR methods.141 This idea represents a shift from court-annexed or court-referred
ADR to court-facilitated ADR.
Another pattern of reform in our court processes would be the restructuring of the
reception of all cases by creating a central registry as a sort-section. Cases would
then be assigned into different “tracks”, opening up windows along the tracks for
reassignment. At the registry, all undefended actions would be summarily dealt
with. Most of the cases would be allocated to the “fast track” where automatic
directions with sanctions would apply. Such directions would relate to compulsory
disclosures/discovery of documents, exchange of witness statements, say, within 28
140
Idornigie (2002b)
141
Such training on ADR and Restorative Justice was recently organized for judicial officers in Nigeria and
Page72
operatives of the Economic and Financial Crimes Commission (EFCC). It was held from 8 to 17 January 2007 at
Command Guest House, Kaduna and funded by the European Union.
days of filing a case. A judge would impose sanctions if directions are not followed,
for instance, striking out or imposing costs or disallowing a party from relying on
undisclosed documents. Small claims may go to the “small claims track” while
complex cases may be allocated to the “multi track”. The judge would then fix a pre-
trial conference with counsel and parties. In jurisdictions that lack the resources or
facilities to set up a Multi-Door Courthouse, a multi-linked “ADR track” in care of
an ADR judge should be opened up into which cases from other tracks may be
reassigned at the pleasure of parties. It is suggested that a procedural judge preside
over case management conferences while another judge conducts the actual trial
where necessary, in order to preserve confidences.142
Non-Court-Connected and Faith-Based Dispute Resolution
The institutionalization of the Multi-Door Courthouse in Lagos State and Abuja FCT
has received accolades from within and outside the country. Needless to say, other
states in Nigeria should, as a matter of priority, toe the line. The debate that arises
from court-annexed ADR is whether it should be made mandatory or optional. Some
argue that to make it mandatory would only run contrary to the voluntary nature of
the processes and will tantamount to usurpation or ouster of the jurisdiction of the
courts. However, in practice, court-mandated ADR does not prejudice consensual
amicable resolution of dispute by willing parties; it is only a judicial policy requiring
parties in litigation to resort to ADR before proceeding with trial. In the United
Kingdom and New Zealand, it is optional whereas in Canada, Australia and the US,
it is mandatory—although in the US, courts are given authority to exempt cases or
categories of cases from using ADR.143

Page73
142
This is an alternative recommendation to court-facilitated ADR suggested above.
143
See: ADR Act of 1998, Public Law 105-315, codified at 28 U.S.C.
Besides, given the history of ADR and, I dare say, the competitive tendency of the
human spirit, it is not advisable that it should be too close to the courts system,
otherwise it would subtly gravitate from its consensual nature to being adversarial,
and this would undermine public acceptance and use of such centres.144 Due to the
deplorable state of courts and the negative experiences litigants suffer, some people
in Nigeria have become “litigo-phobic” and would shrink at the mere mention of
court. Let us explore the consequence a bit further: the farther ADR centres are
removed from the courts, the more the people embrace and use ADR, the more the
case dockets of our courts are depleted, the faster deserving cases will be determined
by our courts and the less expensive the process will be to the litigants. The domino
effect is intriguing.
It has been further advanced that States Houses of Assembly in Nigeria should pass
laws obligating Local Government Councils to set up and equip ADR centres, and to
finance the training of chiefs, community leaders and local government officials in
the fields of mediation, negotiation, and other ADR methods. This suggestion
mirrors the situation in Michigan, US, where in 1988 the Michigan Legislature
passed the Community Dispute Resolution Act which led to the establishment of 27
Dispute Resolution Centres throughout the State as at 1999.145 Community Dispute
Resolution has also taken roots and recorded great success in China which now has
more than one million village-based People’s Mediation Courts (PMCs) providing
settlement and justice for teeming populations not well-served by the courts. The
PMCs evolved as an outgrowth of traditional, local institutions that have long
functioned as alternatives to the civil courts and now handle family and inheritance
disputes, land claims, business disputes and neighbourhood conflicts.
144
One such non-court-connected dispute resolution centre, Settlement House, was officially launched on 16
November 2006 in Asokoro, Abuja, Nigeria. It is a non-profit-sharing, privately-owned dispute resolution
facility and resource centre, reputed to be the first of its kind in Africa.
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145
See: Spiff (2007). Cf.: Gossett (1999)
Another device that has the potential to decongest the courts and promote quick
dispensation of justice is the use of specialized courts or judicial tribunals. The
employment of this device in Nigeria has a chequered history.146 Specialized courts
or tribunals deal with specific subjects or offences, particular categories of people or
situations. Due to their nature, they are far-removed from the bureaucracy of the
centralized court system, adopt procedures that facilitate accelerated hearing, and
promote expertise. However, their Achilles’ heel lays in the seeming overlap in
jurisdiction between some of these courts and the regular courts, in particular the
States’ High Court. By Section 272 (1) of the 1999 Constitution, the jurisdiction of the
State High Court can only be limited by an express provision of the Constitution.
This implies that any enabling statute/law purporting to limit this jurisdiction is
unconstitutional, and hence null and void.147 To avoid such gaucherie, it is suggested
that consequential amendments be made to the Constitution to clearly define the
scope and jurisdiction of such court or tribunal, as with Election Tribunals. 148 Then,
as a matter of public policy, specialized courts should be set up to handle family and
matrimonial causes, and to hear complaints and compensation claims arising from
environmental degradation.149
Faith is a powerful instrument for propagating change. Since a great majority of
Nigerians are religious, the need to involve religious leaders in ADR sensitization
campaign, training and usage must be stressed. Most people will more readily
approach their Imam or pastor when they encounter personal difficulties or are in
146
Tribunals thrived during the military regimes but there were ceaseless complaints concerning disregard of
fundamental human rights. Decrees establishing such tribunals were made supreme over the Constitution by
virtue of the Federal Military Government (Supremacy and Enforcement of Powers) Decrees. However, most
of those tribunals have been disbanded with effect from 29 May 1999 by the Tribunals (Certain Consequential
Amendments, etc.) Decree 1999. The cases pending before those tribunals were then transferred to the
Federal High Court by Executive Order.
147
See: Abbas v. C.O.P. [1998] 12 NWLR (pt. 577) 308; Federal Republic of Nigeria v. Ifegwu (2003) 5 SC 252
148
Section 285 (1) & (2) of the 1999 Constitution gives the Election Tribunals exclusive original jurisdiction in
specified matters.
Page75
149
Idornigie (2002b)
conflict with others rather than consult a lawyer. Because of the level of trust and
confidence the people place on religious and spiritual leaders, their influence cannot
be completely divorced from the everyday lives of the people. Since the two major
religions in Nigeria—Islam and Christianity—vociferously profess and prescribe
peacemaking, peaceable coexistence, amicable resolution of disputes, fair treatment
of neighbours and settlement in their creeds,150 and since the creeds proceed from
revered figures anointed by God, the society should leverage on such religious
obeisance to promote acceptance of ADR. Furthermore, the assembling of a pool of
trained Muslim and Christian mediators and counsellors in mosques and churches
would go a long way in guaranteeing the sustenance of such scheme, especially as
the volunteers for such roles would see their new calling as an opportunity to fulfil
their religious injunction. Ultimately, religion would be a vehicle for: articulating
cordial relationship amongst the various religious groups, and between them and
the federal government; and pursuing national goals towards economic recovery,
consolidation of national unity and promotion of political cohesion and stability. 151
Consolidation for Lasting Gains
The major approach to dispute and conflict in Nigeria has been reactive, ad hoc, and
often haphazard. As an affirmation of our commitment to conflict prevention, WE
THE PEOPLES of the Federal Republic of Nigeria need to move beyond purely
remedial measures and adopt a proactive, continuing, and multi-sectored approach
to reorient and reform the minds of our peoples towards amicable resolution of
disputes. Governmental policy should seek to mainstream ADR into all facets of our
personal and national life in order to cushion the tangible and intangible costs of
litigation where avoidable, defuse the destructive potential of armed conflict, and
Page76
150
See for instance, the Bible: Matthew 5: 23-24; Romans 14: 19; Nehemiah 12: 23-24
151
See: Section 3, Advisory Council on Religious Affairs Act, Cap. A8, LFN 2004
promote qualitative governance. Consolidation should also target the promotion of
regional and international cooperation in developing international best practices to
improve the local application of dispute resolution.
Mainstreaming ADR through Formal and Civic Education
Another encouraging trend in the country is the realization of the need to remould
our orientation towards disputes by seeing them as opportunities to collaborate and
adopt a problem-solving approach to the myriad of conflicts that besiege us. To this
end, training programmes on ADR are now being organized for judicial officers, law
enforcement agents, employees in Parastatal agencies and ministries, legislators,
lawyers, law teachers, students, business executives, trade union representatives and
even traditional rulers. With the myriad of conflicts that now threaten to cripple our
society, the teaching of ADR in our school system should be introduced at the early
(formative) stages. Just a few years ago, ADR was only introduced into the Nigerian
Law School curriculum as a peripheral subject. This begs the question of how best to
upgrade the skills of long-churned-out lawyers who did not have this opportunity in
their time. In light of this, the Nigerian Bar Association and the Council for Legal
Education should adopt affirmative action in endorsing ADR as a component of the
now mandatory Continuing Professional Development (CPD) Programme for legal
practitioners.152 Very few tertiary institutions offer courses in Conflict Management
and Peace Studies, but only at post-graduate level. This is unsatisfactory. In more
advanced jurisdictions like the US, they have peer mediation societies in high
schools and the curriculum includes hands-on roles on dispute resolution.
As a first step, ADR should be introduced as a core subject in all our undergraduate
programmes—the ubiquitous General Studies is a successful experiment—and at the
Law School. Then, a timetable should be set for passing down the lessons learnt to
Page77
152
See: Rule 11, RPC
primary and post-primary institutions. Other target groups should include: political
parties and their supporters; religious bodies including the Christian Association of
Nigeria and the Nigerian Supreme Council for Islamic Affairs; women and youth
organizations including the annual women’s homecoming alias August meeting in
some parts of the country; the federal and states’ civil service, trade unions including
heavy employers of labour like the National Union of Road Transport Workers
(NURTW) and the National Union of Local Government Employees (NULGE);
informal security outfits and ethnic-based vigilantes outfits like the Bakassi Boys and
Oodua People’s Congress; inter alia.
The implementation of such nationwide project can, thankfully, build on already
existing structures and institutions with the need to create only a coordinating unit,
thereby reducing operational cost. Forming a tripartite and mutually reinforcing
relationship, the Ministry of Information and National Orientation, the Ministry of
Education, and the National Youth Service Corps (NYSC) may kick-start the process
by, respectively: undertaking tailored training programmes, public seminars and
awareness campaigns—Nollywood will come in handy here—aimed at highlighting
the advantages and the avenues for amicable dispute resolution; integrating peace
education, carrying out anti-cultism campaigns, and rewarding peaceful conduct in
our schools system; and giving NYSC volunteers—through a dedicated Community
Development group—opportunity to develop and practice dispute resolution skills
in their areas of placement. The collaborating agencies, the fora, and the methods for
implementing such programme should be expanded as the need and circumstances
dictate. The deliberative search for practical and practicable ways of impressing
amicable dispute resolution onto our collective consciousness and culture in Nigeria
continues. Prescription will hardly solve our problems, as making things work is
often not as easy as toying with ideas on paper. However, the missing link between
grand schemes/policies and positive change in Nigeria has always been the political
Page78
will to effect such change.

Increased Collaboration of ADR Experts and Institutions
Finally, in order to act in consonance with the centripetal force of globalization,
experts need to transcend our local and national boundaries to make concerted
efforts in the search for appropriate and effective dispute resolution methods, which
is but a global challenge.153 Therefore there is the need to promote integration and
cooperation among dispute resolution practitioners, centres and institutions in
Africa. Thankfully, ADR is a universal language: observable cultural differences in
ADR practice across regions only approximate to dialects. Therefore Africa has a lot
to learn from the success stories of established ADR centres and institutions the
world over. Such centres include: the International Trade Centre, the International
Chamber of Commerce, the United Nations Commission on International Trade Law
(UNCITRAL), the International Centre for the Settlement of Investment Disputes
(ICSID), the China International Economic Trade Commission, Centre for Effective
Dispute Resolution (CEDR) London, the Cairo Regional Centre for International
Commercial Arbitration, the American Arbitration Association (AAA), inter alia. The
International Bar Association (IBA), through its Section on Legal Practice, promotes
the learning, use, and development of best practices in Arbitration and ADR among
lawyers. Leaping beyond jurisdictional bounds, Trust Enforce, based in Cape Town,
South Africa recently launched an ambitious online dispute resolution service which
offers online mediation and arbitration on a documents only basis.
In 2004 and 2006, the International Trade Centre and the World Trade Organization
organized in Chamonix, France, a global symposium on: Strengthening Arbitration
and Mediation Services. The Symposium is primarily open to managers of ADR
institutions and public or private organizations that are in the process of creating
ADR centres. The Chamonix meetings have been acknowledged as “the world’s
foremost forum of cooperation between dispute resolution centres and a trend-setter

Page79
153
Cf.: Articles 1 (1) & 33 United Nations Charter, 1945; Articles 3 (f) & 4 (e), Constitutive Act of the African
Union, 2000; Articles 58, 4 (e) & (f) Revised Treaty of ECOWAS, 1993
for capacity building in the field”.154 A cursory study of some of the centres and
groups that promote the use of dispute resolution in Africa reveals inadequate
structures and capacities to deliver efficient services as is the case in the Western
world.155 By cooperating, we share experiences, network for problem-solving, and
leverage on the strengths of sister organizations. Experts must also interact with
established international bodies to create the enabling environment and build a
strong capacity base for dispute resolution practitioners who would in turn educate
the younger generations in the art of dispute resolution and settlement. 156 The far-
reaching effects of such efforts would, in the long run, diffuse down to our local
jurisdictions.
The Last Word
Like most piece-meal but extensive reform and capacity-building initiatives, the
promotion of ADR methods in society requires a substantial amount of time and
experimentation to have significant impact on the judicial process, the quality of
governance, the ethics of civic engagement, and public problem-solving processes.
Progress in the justice sector in Nigeria is already evident. Abraham Lincoln once
instructed us in these words:
Discourage litigation, persuade your neighbour to compromise whenever you
can point out to them how the nominal winner is often a real loser in fees,
expenses and waste of time.157
154
Bourque (2007), p. 14
155
Amasike (2007), p. 3
156
Ibid.
Page80
157
Quoted in: Ogunyannwo (2005), p. 9
There is great wisdom in the statement. However, we can do better than discourage
litigation: we choose to service and oil the mechanism of litigation (and by causal
connexion, arbitration) to make both the process and the outcome pareto efficient in
those cases that are well-suited for litigation. Then we should, where appropriate,
promote amicable dispute resolution because in the end, “one dispute amicably
resolved is a society more harmoniously knit”.158
Page81
158
Excerpt from “The ADR Club Mission Statement”, quoted in: Aina (2003), p. 345
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APPENDIX A
STATISTICS ON DURATION OF ARBITRATION APPEALS
No. of Years
Date of
Date of High Date of Court from
Supreme
Case Subject Matter Date of Award Court of Appeal Institution at
Court
Decision Decision High Court to
Decision
Supreme Ct.
The appellant commenced this
action against the defendant
Araka v. Ejeagwu for recognition & enforcement
8 September 29 January 25 November 15 December
1 [2000] 15 NWLR of arbitral award of a revised 4
1994 1996 1998 2000
(pt.629) p. 684 rent payable in respect of a
lease agreement between the
appellant and the respondent
An arbitral award was made in
favour the respondent for the
appellant’s breach of contract
between the parties. Appellant
Taylor Woodrow
consequently applied to set
v. S.E. GmbH 21 November
2 aside the award on the ground 21 May 1990 23 April 1993 5
[1993] 4 NWLR 1988
that the arbitrator misconduct-
(pt. 286) p. 127
ed himself. Appellant’s suit
was dismissed at the High
Court, Court of Appeal and
Supreme Court
A dispute arose from contract

between the appellant and the
Comptoir
respondent on the issue of
Commercial &
whether the appellant was
Ind. Ltd. v. Ogun
entitled to escalation cost in 23 December
3 State Water 14 July 1987 7 July 1992 12 April 2002 15
addition to its contract price. 1986
Corp. & Anor.
Arbitrator found in favour of
[2002] 9 NWLR
respondent. Appellant brought
(pt. 773), p.629
an action to set aside the
award
Suit at the High Court was for
an order of the court setting
aside the arbitral award.
Ogundare, JSC noted that “it
has always been thought that
A. Savioia Ltd. v. proceedings by way of
Sonubi [2000] arbitration is a quick way to 14 October
4 8 March 1985 4 April 1991 14 July 2000 15
NWLR (pt. 628) resolution of disputes between 1985
p. 539 contracting parties, when
compared with the tardy
proceedings of a law court.
This case appears to cast some
doubt on the truism of this
belief”
Home Devt. Ltd.
The subject matter of the suit
v. Scanola Const.
at the High Court inter alia was 29 August 23 September
5 Ltd. [1994] 8 30 May 1987 21 May 1989 8
for an order that the arbitral 1985 1994
NWLR (pt. 362),
Page91
award be set aside
p. 252
K.S.U.D.B. v. The subject matter of the suit

Fanz Const. Co. at the High Court was for
6 Ltd. [1990] 4 leave to enforce an arbitral 27 June 1983 1 July 1986 15 June 1990 7
NWLR (pt. 142), award. Defendant however
p.1 opposed this
Commerce
Assurance Ltd. v. The declaration that defendant
13 January
7 Alli [1992] 3 should pay to the plaintiff the 19 March 1980 16 July 1981 10 April 1992 11
1986
NWLR (pt. 232), award
p. 710
NNPC filed an application at
the High Court seeking an
order to remove the arbitrator
NNPC v. Lutin from the office on the ground
20 December 13 January
8 Investment Ltd. that the arbitrator was no 22 March 2001 9
1997 2006
[2006] 2 CLRN 1 longer considered reasonable,
fair, impartial, suitable and
qualified to continue with the
proceedings
The average length of time from the date of institution at the High Court to the Supreme Court is 9.3 Years
Source: Babatunde J. Fagbohunlu
Page92
APPENDIX B
DISPUTE RESOLUTION STRATEGIES CONTINUUM
Negotiation Mediation Mini-Trial Arbitration Litigation
Low Value Indicator High
Cost
Time
Judgemental
Third Party Control
Strained Relationship
Rigidity of Procedure
Dissatisfaction with Outcome
Source: Author
APPENDIX C
LEGAL RULES, STATUTORY AND TREATY PROVISIONS RELATING TO ADR
 Constitution of the Federal Republic of Nigeria 1999
Section 19(d): Foreign policy objectives
The foreign policy objectives shall be –
(d) respect for international law and treaty objectives as well as the seeking of
settlement of international disputes by negotiation, mediation, conciliation,
arbitration and adjudication.
 Arbitration and Conciliation Act, Cap. A18, Laws of the Federation of Nigeria
(LFN) 2004
Part I: Arbitration – Sections 1 to 36
Part II: Conciliation – Sections 37 to 42
Part III: International Commercial Arbitration and Conciliation – Sections 43 to 55
Part IV: Miscellaneous – 56 to 58
First Schedule: Arbitration Rules
Second Schedule: Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, June 10, 1958
Third Schedule: Conciliation Rules
 Federal High Court Act, Cap. F12, LFN 2004
Section 17: Reconciliation in civil and criminal cases
In any proceedings in the Court, the Court may promote reconciliation among the
Page94
parties thereto and encourage and facilitate the amicable settlement thereof.
 High Court Act, Cap. 510, LFN (Abuja) 1990
Section 18: Settlement of disputes
Where an action is pending, the court may promote reconciliation among the parties
thereto and encourage and facilitate the amicable settlement thereof.
 District Courts Act, Cap. 495, LFN (Abuja) 1990
Section 26: Courts to promote reconciliation
A District Court shall, so far as there is proper opportunity, promote reconciliation
among persons over whom the court has jurisdiction, and encourage and facilitate
the settlement in an amicable way and without recourse to litigation of matters in
difference between them.
Section 27: Pending civil cases
Where a civil suit or proceeding is pending, the District Court judge may promote
reconciliation among the parties thereto and encourage and facilitate the amicable
settlement thereof.
 Rules of Professional Conduct (RPC) for Legal Practitioners 2007
Rule 15: Representing client within the bounds of the law
(3) In his representation of his client, a lawyer shall not –
(d) fail or neglect to inform his client of the option of alternative dispute
resolution mechanisms before resorting to or continuing litigation on behalf
of his client.
Page95
Rule 47: Instigating controversy or Litigation
(1) A lawyer shall not foment strife or instigate litigation and, except in the case of
close relations or of trust, he shall not, without being consulted, proffer advice or
bring a law suit.
 High Court of Lagos State (Civil Procedure) Rules 2004
Order 25: Pre-trial Conferences and Scheduling
1. (1) Within 14 days after close of pleadings, the claimant shall apply for the
issuance of a pre-trial conference Notice as in Form 17.
(2) 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 17 accompanied by a pre-trial information sheet as in Form 18 for
the purposes set out hereunder:
(b) giving such directions as to the future course of the action as appear best
adapted to secure its just, expeditious and economic disposal;
(c) promoting amicable settlement of the case or adoption of alternative
dispute resolution.
 High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules
2004
Order 17: Alternative Dispute Resolution
1. A Court or judge, with the consent of the parties, may encourage settlement of
any matter(s) before it, by either –
(a) Arbitration;
(b) Conciliation;
Page96
(c) Mediation; or
(d) any other lawfully recognized method of dispute resolution.

 Matrimonial Causes Act, Cap. M7, LFN 2004
Section 11: Reconciliation
(1) It shall be the duty of the court in which a matrimonial cause has been instituted
to give consideration, from time to time, to the possibility of a reconciliation of the
parties to the marriage (unless the proceedings are of such a nature that it would not
be appropriate to do so), and if at any time it appears to the judge constituting the
court, either from the nature of the case, the evidence in the proceedings or the
attitude of those parties, or of either of them, or of counsel, that there is a reasonable
possibility of such a reconciliation, the judge may do all or any of the following, that
is to say, he may–
(a) adjourn the proceedings to afford those parties an opportunity of
becoming reconciled or to enable anything to be done in accordance with
either of the next two succeeding paragraphs;
(b) with the consent of those parties, interview them in chambers, with or
without counsel, as the judge thinks proper, with a view to effecting a
reconciliation;
(c) nominate a person with experience or training in marriage conciliation, or
in special circumstances, some other suitable person, to endeavour with the
consent of the parties, to effect a reconciliation.
Section 30: Petition within two years of marriage
(1) Subject to this section, proceedings for a decree of dissolution of marriage shall
not be instituted within two years after the date of the marriage except by leave of
the court.
(3) The court shall not grant leave under this section to institute proceedings except
on the ground that to refuse to grant the leave would impose exceptional hardship
Page97
on the applicant or that the case is one involving exceptional depravity on the part of
the other party to the marriage.

(4) In determining an application for leave to institute proceedings under this
section, the court shall have regard to the interest of any children of the marriage,
and to the question whether there is any reasonable probability of a reconciliation
between the parties before the expiration of the period of two years after the date of
the marriage.
 Consumer Protection Council Act, Cap C25, LFN 2004
Section 2: Functions of the Council
The Council shall –
(a) provide speedy redress to consumers’ complaints through negotiation,
mediation and conciliation.
Section 5: Duty of State Committee
The State Committee shall, subject to the control of the Council –
(a) receive complaints and enquiries into the causes and circumstances of
injury, loss or damage suffered or caused by a company, firm, trade,
association or individual;
(b) negotiate with the parties concerned and endeavour to bring about a
settlement; and
(c) where appropriate, recommend to the Council the payment of
compensation by the offending person to the injured consumer.
 Environmental Impact Assessment Act, Cap. E12, LFN 2004
Section 29: Referral by Council
Where at any time the Council [Federal Environmental Protection Council] is of the
Page98
opinion that –
(a) a project is likely to cause significant adverse environmental effects that
may not be mitigable; or
(b) public concerns respecting the environmental effects of the project
warrant it,
the Council may, after consultation with the Agency [Nigerian Environmental
Protection Agency], refer the project to mediation or a review panel in accordance
with section 35 of this Act.
Section 31: Appointment of Mediator
Where a project is referred to mediation, the Council shall, in consultation with the
Agency –
(a) appoint as mediator any person who, in the opinion of the Council,
possesses the required knowledge or experience; and
(b) fix the terms of reference of the mediation.
Section 33: Mediation
(1) A mediator shall not proceed with a mediation unless the mediator is satisfied
that all of the information required for a mediation is available to all of the
participants.
(2) A mediator shall, in accordance with the provisions of this Act and the terms of
reference of the mediation –
(a) help the participants to reach a consensus on –
(i) the environmental effects that are likely to result from the project;
(ii) any measures that would mitigate any significant adverse
environmental effects; and
(iii) an appropriate follow-up programme;
(b) prepare a report setting out the conclusions and recommendations of the
Page99
participants; and
(c) submit the report to the Council and the Agency.

 Industrial Inspectorate Act, Cap. I8, LFN 2004
Section 4: Arbitration
(1) Any person disputing a finding of the Directorate relative to the investment
valuation of any matter concerning his undertaking may require the matter to be
submitted to arbitration and the dispute shall be resolved in the following manner,
that is to say –
(a) there shall be a sole arbitrator who shall be a person agreed to by the
Director and the party disputing the valuation (both of whom are hereafter in
this section referred to as “the affected parties”) and who shall be appointed
by the Minister [of Industries];
(c) the sole arbitrator shall decide on the investment valuation and make his
award within one month after entering on the reference or any longer period
allowed in writing by the Minister;
(2) The investment valuation as determined by the sole arbitrator and any award
made thereby shall be binding and final as between the affected parties.
 Trade Disputes Act, Cap. T8, LFN 2004
Section 4: Procedure before dispute is reported
(1) If there exists agreed means for settlement of the dispute apart from this Act,
whether by virtue of the provisions of any agreement between organizations
representing the interests of employers and organization of workers or any other
agreement, the parties to the dispute shall first attempt to settle it by that means.
(2) If the attempt to settle the dispute as provided in subsection (1) of this section
fails, or if no such agreed means of settlement as are mentioned in that subsection
exists, the parties shall within seven days of the failure (or, if no such means exists,
Page100
within seven days of the date on which the dispute arises or is first apprehended)
meet together by themselves or their representatives, under the presidency of a

mediator mutually agreed upon and appointed by or on behalf of the parties, with a
view to the amicable settlement of the dispute.
Section 6: Reporting of dispute if not amicably settled
(1) If within seven days of the date on which a mediator is appointed in accordance
with section 4(2) of this Act the dispute is not settled, the dispute shall be reported to
the Minister [of Labour] by or on behalf of either of the parties within three days of
the end of the seven days.
(2) A report under this section shall be in writing and shall record the points on
which the parties disagree and describe the steps already taken by the parties to
reach a settlement.
Section 8: Appointment of Conciliator, etc.
(1) The Minister may for the purposes of section 7 of this Act appoint a fit person to
act as conciliator for the purpose of effecting a settlement of the dispute.
(2) The person appointed as conciliator under this section shall inquire into the
causes and circumstances of the dispute and by negotiation with the parties
endeavour to bring about a settlement.
(3) If a settlement of this dispute is reached within seven days of his appointment,
the person appointed as conciliator shall report the fact to the Minister and shall
forward to him a memorandum of the terms of the settlement signed by the
representative of the parties, and as from the date on which the memorandum is
signed (or such earlier or later date as may be specified therein), the terms recorded
therein shall be binding on the employers and workers to whom those terms relate.
(4) If any person does any act in breach of the terms of a settlement contained in the
memorandum signed pursuant to subsection (3) of this section, he shall be guilty of
an offence and liable on conviction –

Page101
(a) in the case of a worker or a trade union, to a fine of N200; and

(b) in the case of an employer or an organization representing employers, to a
fine of N2,000.
(5) If a settlement of the dispute is not reached within seven days of his
appointment, or if, after attempting negotiation with the parties, he is satisfied that
he will not be able to bring about a settlement by means thereof, the person
appointed as conciliator shall forthwith report the fact to the Minister.
Section 9: Reference of dispute to arbitration tribunal if conciliation fails
(1) Within fourteen days of the receipt by him of a report under section 6 of this
Act, the Minister shall refer the dispute for settlement to the Industrial Arbitration
Panel established under this section.
 National Health Insurance Scheme Act, Cap. N42, LFN 2004
Section 26: Establishment and functions of the State and Federal Capital Territory
Arbitration Board
(1) There shall be established for each State of the Federation and the Federal
Capital Territory, Abuja, as and when necessary, a State Health Insurance
Arbitration Board and a Federal Capital Territory Health Insurance Arbitration
Board, respectively (in this Act referred to as “Arbitration Board”).
(2) The Arbitration Board shall be charged with the responsibility of considering
complaints made by any aggrieved party –
(a) of violation of any of the provisions of this Act; or
(b) against any of the agents of the Scheme; or
(c) against an organization or a health care provider.
(3) A complaint made under subsection (2) of this section shall be made in writing
within 60 days from the date of the action giving rise to the complaint,
Page102
notwithstanding that credible reasons have been rendered for the action.
(4) The period specified in subsection (3) of this section may be extended if the
Arbitration Board is satisfied that the complainant was justifiably unable to make the
complaint within that period.
 Nigerian Co-Operative Societies Act, Cap. N98, LFN 2004
Section 49: Settlement of disputes
(1) If a dispute touching the business of a registered society arises –
(a) among present or past members and persons claiming through present or
past members and deceased members; or
(b) between a present, past or deceased member and the society, its
committee or any officer, agent or servant of the society; or
(c) between the society and any other committee and any officer, agent or
servant of the society; or
(d) between the society and any other registered society,
the dispute shall be referred to the Director [Federal or State Director of Co-
operatives] for settlement.
(3) The Director shall on receipt of a reference under subsection (1) of this section –
(a) settle the dispute; or
(b) subject to the provisions of any regulations made under this Act refer it to
an arbitrator appointed in accordance with the regulations made under this
Act for disposal.
(4) A decision made by an arbitrator under paragraph (b) of subsection (3) of this
section shall, except as otherwise provided in subsection (6) of this section be final.
Page103
 Petroleum Act, Cap. P10, LFN 2004
Section 11: Settlement of disputes by arbitration
(1) Where by any provision of this Act or any regulations made thereunder a
question or dispute is to be settled by arbitration, the question or dispute shall be
settled in accordance with the law relating to arbitration in the appropriate State and
the provision shall be treated as a submission to arbitration for the purposes of that
law.
(2) In this section “the appropriate State” means the State agreed by all parties to a
question or dispute to be appropriate in the circumstances or, if there is no such
agreement, the Federal Capital Territory, Abuja.
 Public Enterprises (Privatisation and Commercialisation) Act, Cap. P38, LFN
2004
Section 27: Establishment and membership of the Public Enterprises Arbitration
Panel
(1) There is hereby established under this Act an ad hoc body to be known as the
Public Enterprises Arbitration Panel (in this Act referred to as “the Panel”) which
shall be responsible for effecting prompt settlement of any dispute arising between
an enterprise and the Council [National Council on Privatization] or the Bureau
[Bureau of Public Enterprises].
(2) The Panel shall consist of five persons who shall be persons of proven integrity
one of whom shall be the chairman.
Section 28: Powers of the Panel
(1) The Panel shall have power to arbitrate –

Page104
(a) in any dispute raising questions as to the interpretation of any of the
provisions of a Performance Agreement; or

(b) in any dispute on the performance or non-performance by any enterprise
of its undertakings under a Performance Agreement.
(2) A dispute on the performance or non-performance by any of the parties to the
Performance Agreement shall, in the case of a commercialized enterprise, lie to the
Panel provided that such reference may be made after all reasonable efforts to
resolve the dispute have been made and have not been proved.
Section 30: Other arbitration laws not applicable
The provisions of the Arbitration and Conciliation Act or any other enactment or law
relating to arbitration shall not be applicable to any matter which is the subject of
arbitration under this Act.
 National War College Act, Cap N82, LFN 2004
Section 5: Centre for Peace Research and Conflict Resolution
(1) There is hereby established for the College a Centre for Peace Research and
Conflict Resolution (in this Act referred to as “the Centre”) which shall be charged
with the responsibility for conducting research into all facets of peace and proffer
solutions to conflicts at both national and international levels.
(2) Notwithstanding the provisions of subsection (1) of this section, the Centre shall
(b) organize and facilitate researches on national, regional and global basis in
the fields of conflict sources, conflict monitoring, conflict prevention, conflict
resolution, peace-making, peace keeping, peace enforcement, peace building,
and capacity building;
(c) initiate actions and take such other steps which will enhance the
resolution of conflicts, both domestically and internationally.

Page105
 National Boundary Commission, etc. Act, Cap. N10, LFN 2004
Section 3: Functions of the Commission
The functions of the Commission shall be –
(a) to deal with, determine and intervene in any boundary dispute that may
arise between Nigeria and any of her neighbours or between any two states of
the Federation, with a view to settling such dispute.
Section 6: Functions of the Technical Committee
The [Inter-State Boundary] Technical Committee shall have the following functions,
that is –
(a) dealing with any inter-State boundary disputes, with a view to settling
such disputes;
(b) finding solutions to any inter-State boundary problems; and
(c) making recommendations to the President, through the Commission, as
regards borders and boundary adjustments, where necessary, between states.
 Energy Commission of Nigeria Act, Cap. E10, LFN 2004
Subject to this Act, the Commission is hereby charged with the responsibility for the
strategic planning and co-ordination of national policies in the field of energy in all
its ramifications and, without prejudice to the generality of the foregoing, the
Commission shall –
(b) serve as a centre for solving any inter-related technical problems that may
arise in the implementation of any policy relating to the field of energy.

Page106
Note: To this end, Section 3(1) and (2) of the Act establishes a Technical Advisory
Committee which consists the Director-General of the Commission and professionals

representing the following Ministries and Agencies – petroleum resources; power and steel;
science and technology; agriculture and rural development; water resources; finance;
defence; industries; communication; environment; National Electric Power Authority [now
Power Holding Company of Nigeria]; Nigerian National Petroleum Corporation; Nigerian
Mining Corporation, etc. The advice of the Committee can be said to be a process of Expert
Appraisal.
 Minerals and Mining Act, Cap. M12, LFN 2004
Section 76: Agreement of other interested parties
(1) An applicant for a water licence shall inform the Minister [for mines and
minerals] of persons likely to be adversely affected by the grant of the water licence
and furnish the Minister with their names and such other particulars as the Minister
may require.
(2) The Minister, upon receiving the information required under subsection (1) of
this section, shall enter into consultation with all persons likely to be affected by the
grant of the water licence and shall reach such necessary agreement with such
provisions [sic.] as may be just and proper.
Section 255: Application of Arbitration and Conciliation Act
Unless provided otherwise, the Arbitration and Conciliation Act shall apply to all
arbitrations under this Act.
 National Office for Technology Acquisition and Promotion Act, Cap. N62, LFN
2004
Section 4: Functions of the National Office
Subject to section 2(1) of this Act, the National Office shall carry out the following
Page107
functions –
(b) the development of the negotiation skills of Nigerians with a view to
ensuring the acquirement of the best contractual terms and conditions by
Nigerian parties entering into any contract or agreement for the transfer of
foreign technology.
 Nigerian Communications Commission Act, Cap. N97, LFN 2004
The Commission shall have the following functions, that is –
(k) the arbitration of disputes between licensees and other participants in the
telecommunications industry;
(l) to receive and investigate complaints from licensees, carriers, consumers
and other persons in the telecommunications industry.
 Nigerian Dock Labour Act, Cap. N103, LFN 2004
(1) The Council [Joint Dock Labour Industrial Council] shall –
(i) serve as a medium for resolving disputes and complaints among the
interest groups in the port and dock industry.
 Nigeria Export Processing Zones Act, Cap. N107, LFN 2004
Section 4: Functions of the Authority
In addition to any other functions conferred on the Authority [Nigeria Export
Processing Zones Authority] by this Act, the functions and responsibilities of the
Authority shall include –

Page108
(e) the resolution of trade disputes between employers and employees in the
Zone, in consultation with the Federal Ministry of Employment, Labour and
Productivity.
 Advisory Council on Religious Affairs Act, Cap. A8, LFN 2004
The Council shall be charged with the following functions, that is –
(b) serving as an avenue for articulating cordial relationship amongst the
various religious groups and between them and the Federal Government;
(c) serving as a forum for harnessing religion to serve national goals towards
economic recovery, consolidation of national unity and the promotion of
political cohesion and stability.
 Nigerian Investment Promotion Commission Act, Cap. N117, LFN 2004
Section 26: Dispute settlement procedures
(1) Where a dispute arises between an investor and any Government of the
Federation in respect of an enterprise, all efforts shall be made through mutual
discussion to reach an amicable settlement.
(2) Any dispute between an investor and any Government of the Federation in
respect of an enterprise to which this Act applies which is not amicably settled
through mutual discussions, may be submitted at the option of the aggrieved party
to arbitration as follows –
(a) in the case of a Nigerian investor, in accordance with the rules of
procedure for arbitration as specified in the Arbitration and Conciliation Act
[Cap. A18]; or
Page109
(b) in the case of a foreign investor, within the framework of any bilateral or
multilateral agreement on investment protection to which the Federal
Government and the country of which the investor is a national are parties; or
(c) in accordance with any other national or international machinery for the
settlement of investment disputes agreed on by the parties.
(3) Where in respect of any dispute, there is disagreement between the investor and
the Federal Government as to the method of dispute settlement to be adopted, the
International Centre for Settlement of Investment Disputes Rule shall apply.
 International Centre for Settlement of Investment Disputes (Enforcement of
Awards) Act, Cap. I20, LFN 2004
Section 1: Award of I.C.S.I. dispute to have effect as award in final judgement of
Supreme Court.
(1) Where for any reason it is necessary or expedient to enforce in Nigeria an award
made by the International Centre for the Settlement of Investment Disputes, a copy
of the award duly certified by the Secretary-General of the Centre aforesaid, if filed
in the Supreme Court by the party seeking its recognition for enforcement in
Nigeria, shall for all purposes have effect as if it were an award contained in a final
judgement of the Supreme Court, and the award shall be enforceable accordingly.
 Regional Centre for International Commercial Arbitration Act, Cap. R5, LFN
2004
Section 4: Functions and powers of the Centre
The functions and powers of the Centre are to –
(a) promote international arbitration and conciliation in the region;

Page110
(b) provide arbitration under fair, inexpensive and expeditious procedure in
the region;
(c) act as a co-ordinating agency in the Consultative Committee dispute
resolution system;
(d) co-ordinate the activities of and assist existing institutions concerned with
arbitration, particularly among those in the region;
(e) render assistance in the conduct of ad-hoc arbitration proceedings,
particularly those held under the Rules;
(f) assist in the enforcement of arbitral awards;
(g) maintain registers of –
(i) expert witnesses; and
(ii) suitably qualified persons to act as arbitrators as and when
required; and
(h) carry out such other activities and do other such things as are conducive
or incidental to its other functions under this Act.
 Administration of Justice Commission Act, Cap. A3, LFN 2004
(2) Without prejudice to the generality of subsection (1) of this Section, the
Commission shall ensure that –
(d) congestion of cases in courts is drastically reduced.
 Revised Treaty of the Economic Community of West African States (ECOWAS)
1993
Article 4: Fundamental Principles
The High Contracting Parties, in pursuit of the objectives stated in Article 3 of this
Treaty, solemnly affirm and declare their adherence to the following principles:
Page111
(e) maintenance of regional peace, stability and security through the
promotion and strengthening of good neighbourliness;

(f) peaceful settlement of disputes among Member States, active cooperation
between neighbouring countries and promotion of a peaceful environment as
a prerequisite for economic development.
Article 58: Regional Security
1. Member States undertake to work to safeguard and consolidate relations
conducive to the maintenance of peace, stability and security within the region.
2. In pursuit of these objectives, Member States undertake to cooperate with the
community in establishing and strengthening appropriate mechanisms for the timely
prevention and resolution of intra-State and inter-State conflicts, paying particular
regard to the need to:
(e) employ, where appropriate, good offices, conciliation, mediation and other
methods of peaceful settlement of disputes.
 Constitutive Act of the African Union, 2000
Article 3: Objectives
The objectives of the Union shall be to:
(f) Promote peace, security, and stability on the continent.
Article 4: Principles
The Union shall function in accordance with the following principles:
(e) Peaceful resolution of conflicts among Member States of the Union
through such appropriate means as may be decided upon by the Assembly.

Page112
 Charter of the United Nations, 1945
Article 2: Purposes and Principles
The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles.
3. All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.
Article 33: Pacific Settlement of Disputes
1. The parties to any dispute, the continuance of which is likely to endanger the
maintenance if international peace and security, shall, first of all, seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to
settle their dispute by such means.
i
LL.B, BL, MA, Research Fellow, Conflict Security and Development Group (CSDG), London. This is an
Page113
independent research paper. All errors and omissions are entirely mine. For comments and reviews, mailto:
okeysoffice@yahoo.com

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Appropriate Dispute Resolution

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APPROPRIATE DISPUTE RESOLUTION

The Search for Viable Alternatives to

Resolution (ADR). The straitjacketed training and orientation of the Nigerian

lawyer—until recently—in litigation and litigation alone leaves him ill-equipped to

nuanced frame, hence the modification “Appropriate Dispute Resolution”.

dispute resolution. It also introduces a robust democratic governance dimension

which advocates the mainstreaming of dispute resolution into governance structures

and post-conflict peacebuilding in order to foster development. The approach used

Secondly, as a panacea to the above-stated ailment, to seek ways to boost the

functional synergy between litigation/arbitration on the one hand, and other

complementary methods to achieving effective dispute resolution on the other.

Chapter One: Introduction 6

 Book Map: Approach and Organization

 Placing Dispute Resolution in Context: What Works Where and Why?

o Unintended Consequences of a Foisted Legal System

o Lessons Learnt: Back to Our Roots!

Chapter Two: Viable Alternatives: The ADR Paradigm 20

 The Place of ADR in Justice Delivery

 The ADR Menu

 Enforceability of ADR Settlements

Chapter Three: The State of Our Laws and Institutions on ADR 29

 The Changing Tide

 Prescribing ADR: Who Does What and How?

o Duty of the Court

o Duty of Third Party Neutral

Chapter Four: Relevance of Dispute Resolution in Governance 45

 Instrument for Democratic Governance

 Mechanism for Conflict Prevention and Peacebuilding

 Tool for Policymaking

 Vehicle for Promotion of Investment

 Enhanced Criminal Justice Administration

 De-escalation/Resolution of Armed Conflict

 Post-Conflict Reconciliation and Transitional Justice

Chapter Five: Suggestions for Reform 68

 Sustenance Through Increased Funding

o Developing Human Capacity

 Improvements to Maximize Efficiency

o Incremental Judicial Case Management

o Non-Court-Connected and Faith-Based Dispute Resolution

 Consolidation for Lasting Gains

o Mainstreaming ADR through Formal and Civic Education

o Increased Collaboration of ADR Experts and Institutions

 The Last Word

Appendix A: Statistics on Duration of Arbitration Appeals

Appendix B: Dispute Resolution Strategies Continuum

Appendix C: Legal Rules, Statutory and Treaty Provisions Relating to ADR

change to find relevance in today’s borderless village. Access to Justice means

opportunity for a just and timely result.

Hon. Justice Dolapo Akinsanya1

view it as a simple cause-effect relationship. A better way to explain the relationship

(level 2 effect). Conflict is therefore manifested when persons or groups of persons

conflict prevention or management or de-escalation. Since the two strings of effect

unmanaged conflict include broken relationships, reduced productivity, insecurity

as a consequence of social reconfiguration and redistribution of resources. A well-

conflict is manifested on different levels: it can be intrapersonal or interpersonal,

local/communal, national, international or transnational. In Africa, litigation has

according to laid-down or agreed procedures. The conduct of arbitration—especially

commercial arbitration—is guided by the substantive law relating to the subject

like a court judgement.4

which classify it as collaborative and non-adjudicatory procedures maintains that

within the mandatory tenets of the law.6

Book Map: Approach and Organization

step is to examine the conduct of litigation and arbitration in Nigeria as it affects

system, thereby aggravating costs. Secondly, as a panacea to the above-stated