Author: The Nation

• By Wahab Shittu

The public service in Nigeria (including educational institutions) grapples with a number of issues and challenges. These include  increased range of individual rights protection, higher risk of termination of employment, reduced job quality and security, cases bordering on gross misconduct, ethical problems (such as conflict of interests, loyalty or values, including attempts to achieve some form of private gains to the detriment of the masses), problems of accountability and many others of diverse complexities. 

These problems and many others in the educational sector for example have resulted in the growing number of litigations and petitions within the educational sector necessitating the urgent need to cut associated costs arising therefrom. This has raised the discourse on how to evolve processes and mechanisms for preventing and resolving such disputes.

In response, a number of initiatives are being put in place. Nigeria has updated employment and labour laws, including regulations and codes. Some have created or supported new dispute resolution mechanisms and institutions, while others have reconfigured existing institutions, or modified procedural rules. Innovative models have been initiated, such as online and telephone dispute resolution options.

Alternative dispute resolution (ADR) is a collective term describing a number of processes, such as mediation, conciliation and arbitration, utilised in attempting the resolution of disputes and conflicts outside the formal court processes. The appointment of a third party neutral, or neutrals, who are usually experts in the dispute subject matter as well as experienced in ADR, can offer parties a number of benefits, which include autonomy, flexibility, control, confidentiality, cost-effectiveness and time-saving. Depending on the ADR mechanism used, the parties may experience a much less formal process and more direct interaction with the neutral(s), rather than just via their attorneys or legal representatives, than in normal court proceedings.

Based on the foregoing, this paper attempts to contribute ideas in the search for an effective and result-oriented public administration reform initiative for our country. The objectives will be to sustain, support and build key institutions and processes as well as ensure the development of professional and modern civil service and public administration that will guarantee service delivery quality and optimal performance for the good of society. There is no doubt that our country is in dire need of public service reform that will focus on the improvement of dispute resolution systems in the public service as well as deliver on the establishment and usage of alternative dispute resolution mechanisms. 

In recent times, we have witnessed an upward increase in the number of disputes within the public sector, which is not only time-consuming but also often does not address the underlying issues and problems these disputes present.

Consistent with the theme of this retreat thus: “Addressing current legal and administrative problems in the educational sector” this paper will identify critical issues in the management and control of litigation in public service with a view to proffering suggestions and recommendations for reducing litigation/administrative lapses in our educational institutions. 

In doing justice to the topic, I will raise two questions for resolution. First, what are the critical issues in the management and control of litigation in the public service? Secondly, what options are available for reducing the spate of litigations in the public service?

Litigation in Public Service:

Litigation refers to the process of resolving legal disputes through a court or other judicial proceedings. In the context of public service, litigation can arise from various sources such as student grievances, employment disputes, contractual disagreements, or regulatory compliance issues. It is essential for educational institutions to have effective management and control mechanisms in place to minimize the occurrence of litigation and handle any legal challenges that may arise. Litigation is here used loosely to include all other dispute resolution mechanisms including the role of mediation in facilitating the settlement of employment disputes that may arise in the workplace. By mediation it is meant an alternation dispute resolution mechanism which is non-binding, informal confidential and facilitated by a neutral third party who actively promotes amicable settlement of disputes. The essence is to allow parties to arrive at their own solution with the help of a mediator without the matter going to adjudication. 

Significantly, workplace mediation has assisted in resolving disputes such as employment discrimination, workplace harassment, wage and overtime disputes and termination issues. The caveat, however, is that this may not legally be enforceable against the parties. 

In the UK for example, workplace alternative dispute resolution is steadily gaining ground as a means of bringing employers, employees and trade unions together to resolve disputes without having to resort to litigation. We will later address the attraction of this mechanism as a vehicle for reducing litigation in the public service.

Administrative lapses:

Administrative lapses encompass a range of shortcomings or failures in the administrative processes and practices within educational institutions. These lapses can include inadequate record-keeping, non-compliance with regulations or policies, improper decision-making, lack of transparency, or failure to address grievances in a timely manner. Such lapses can lead to legal disputes and increase the likelihood of litigation.

Perspective reduction of litigation/administrative lapses:

The prospective reduction of litigation/administrative lapses refers to adopting proactive measures and strategies aimed at minimizing the occurrence of legal disputes and administrative failures within educational institutions. 

This perspective emphasises preventive actions rather than reactive responses to legal challenges. 

By addressing potential issues before they escalate into full-blown disputes, educational institutions can save valuable resources, maintain their reputation, and ensure a conducive learning environment for students.

Public Service:

The term public service includes the following:

 a. The Civil Service: the career personnel of the presidency, ministers, extra-ministerial departments, the National Assembly, and the Judiciary.

 b. The Armed Forces, the Police, and other security agencies e.g para-military organisations

 c. The parastatals or public enterprises.

Meaning of Public Service

The meaning of Public service is contained in section 169 of the 1999 Constitution as encompassing the civil service (Ministerial departments), statutory corporations or parastatals, judiciary, legislature, educational institutions, financially wholly or principally owned by government at the State, Local and Federal levels, Nigeria Police or Armed Forces and other organizations in which the Federal or state governments owned controlling share or interest. Public service in Nigeria encompasses service in government departments, agencies as well as statutory or public corporations. Sometimes employees of limited liability companies where the government has controlling shares are referred to as public servants In Nigeria, the Country’s government bureaucracy is the public service. This is because government at whatever level enunciates and implements its policies, programs and projects through the instrumentally of the public service. Most public services are service–oriented. 

Meaning of civil service 

The Civil service is an organ created to ensure that policies and programs of any government at any particular time are carried out. 

The Civil service as part of Government never dies because of its perpetual nature and the changing nature of constitutionally elected government, it has to be endowed with specific peculiarities or leanings of that government. Further characteristics of the civil service are that:

 a). It has to be non-partisan to enable it to serve any government of the day 

b) It has to be made up of experienced men and women with the technical and professional know–how to enable it to implement government policies.

c) It has to be orderly and also ensure that the orderly administration of the country is continuous. 

d). The Civil Service is indispensable since it continues the traditional role of keeping the functions of government running no matter what changes occur in the administration of the country. 

e). It operates under rules which guide its conduct

f) The Civil Service is an entity but operates in hives of activities, divided between ministries and departments. Each department has its set functions and goals.

Before going into the main thrust of the paper, it will be necessary to clearly define the functions of public service.

Functions of Public Service 

The public service (Ministries, Departments, and Agencies) has always been the tool available to the Nigerian government for the implementation of development goals and objectives. It is seen as the pivot for the growth of African economies. It is responsible for the creation of an appropriate conducive environment in which all sectors of the economy can operate maximally. 

The functions of public service include implementing and enforcing economic, political and social policies of the current government; designing and implementing public service; raising revenue for the government; ensuring managerial, political and financial accountability; serving the people; monitoring and evaluating the performance of organizations (Public, private or non – governmental) that are rendering service on behalf of the government; driving all development initiatives; delivering quality public service (such as education, electricity, water and transportation). 

The public service plays a very crucial role towards nation-building.

Critical issues in the public service that could give rise to conflict situations

Generally, it can be said that critical issues in management and control of litigation in the public service can be summarised to include the following: inadequate legal framework, inadequate resources, financial or otherwise, poor communication and collaboration challenges, corruption and abuse of power, political interference, issues of transparency, issues of accountability, access to justice, adherence to equity considerations, compliance with due process requirements and respect for the rule of law and rights protection standards.

However, in greater detail, there are several other critical issues that need to be addressed to ensure the effective management and control of litigation in public service in Nigeria.

Generally, conflict in the public service and all Nigerian public organisations could arise as a result of many factors. First, causes are attributable to non-structural factors. By this we mean sources of conflict within the service that are as a result of the way tax activities and employees are arranged and defined. These conflicts may arise as a result of differences in backgrounds, values and poor communication skills. 

There may also be structural causes of organizational Conflict in the public service. This may arise as a result of structural characteristics within the organization rather than personal disputes. 

Factors responsible include work interdependence, differences in unit orientation and goals, differences in performance criteria and reward system, mutual dependence and limited resources, and differences in status amongst others.

The point, however, must be made that conflict is not entirely an evil phenomenon because it could lead to constructive impact depending on how it has been managed. Functional conflict is said to have occurred when the outcome leads to improved organisational performance or effectiveness. 

In general terms, we may now identify potential causes of conflicts in public service.

Misconduct in the public service

The Public Service Rules 2021 is fully loaded on instances of misconduct that could arise in the public service. Section 3 defines misconduct as a specific act of wrongdoing or improper behaviour which is inimical to the image of the service and which can be investigated and proved. It can lead to termination and retirement. 

It includes scandalous conduct such as immoral behavior, unruly behavior, drunkenness, foul language, assault, battery, refusal to proceed on transfer or to accept posting; habitual lateness to work, deliberate delay in treating official documents; failure to keep records, unauthorised removal of public records, dishonesty, negligence; sleeping on duty, improper/inappropriate/immodest dressing while on duty, hawking merchandise within office premises, refusal to take/carry out lawful instruction from superior officers; malingering; insubordination; and discourteous behavior to the public.

 Lack of adequate legal rramework

One of the critical issues in the management and control of litigation in public service in Nigeria is the lack of an adequate legal framework. The current legal framework in Nigeria is inadequate and does not provide clear guidelines for the management and control of litigation in public service. This has led to confusion and inconsistencies in the application of the law, which can result in unfavourable outcomes for the government and its citizens.

Inadequate resources

Another critical issue in the management and control of litigation in public service in Nigeria is the inadequacy of resources. The government and its agencies often lack the necessary resources, including funding, personnel, and infrastructure, to effectively manage and control litigation. This can result in delays and inefficiencies in the litigation process, which can be costly and time-consuming.

Poor communication and collaboration

Poor communication and collaboration among government agencies and stakeholders is another critical issue in the management and control of litigation in public service in Nigeria. There is often a lack of coordination and cooperation among government agencies, which can result in conflicting interests and positions, and can undermine the effectiveness of the litigation process.

Corruption and abuse of power

Corruption and abuse of power are also critical issues in the management and control of litigation in public service in Nigeria. There have been instances of corrupt practices and abuse of power by government officials and legal practitioners, which can undermine the integrity of the litigation process and result in unfavourable outcomes for the government and its citizens.

Lack of transparency and accountability

The lack of transparency and accountability is another critical issue in the management and control of litigation in public service in Nigeria. There is often a lack of transparency in the litigation process, which can result in a lack of accountability among government officials and legal practitioners. This can undermine the confidence of the public in the government and the legal system.

Inadequate Training and Capacity Building

Inadequate training and capacity building are also critical issues in the management and control of litigation in public service in Nigeria. Government officials and legal practitioners often lack the necessary training and capacity to effectively manage and control litigation. This can result in inefficiencies and errors in the litigation process.

Political Interference

Since 1999, Nigeria has clearly seen an increase in the number of educational institutions. Despite the rise, there has been a decline in educational quality, which can be linked to political involvement in a variety of decisions including choosing Vice Chancellors, Provosts, and Rectors of institutions.

Furthermore, the majority of reform initiatives in education fall short in part because of leaders’ divergent political philosophies. There is also a lack of consistency between administrations. Certain schools that did not fulfil the required standards are nonetheless permitted to operate in the accreditation area.

Inadequate Record Keeping and Documentation

Inadequate record keeping and documentation are also critical issues in the management and control of litigation in public service in Nigeria. There is often a lack of proper record-keeping and documentation of litigation proceedings, which can result in confusion and inconsistencies in the application of the law.

Inadequate funding

One of the primary reasons for administrative lapses in educational institutions in Nigeria is the inadequacy of funding. The government has consistently failed to provide sufficient funds for the education sector, resulting in a lack of resources for teachers, infrastructure, and other essential needs. Funding serves as the life-wire for the management and administration of most sectors of the economy including the educational sector. Availability of funds plays a significant role in determining the provision of quality education at all levels. The quantity of funds made available during budgeting will go a long way to improving the quality of education. Ige and Obe, opined that without adequate funding, standards of education at any level shall be tantamount to a mirage that is, building castles in the air. Money is important in a school because it is used for constructing buildings, purchasing needed equipment, paying staff’ salaries and allowances, maintenance of the plants and keeping the services going This has led to a decline in the quality of education and an inability to provide students with the tools they need to succeed.

Nigeria is experiencing a teacher shortage for a number of reasons, including low pay, unfavourable working conditions, and a dearth of possibilities for training. Nigerian educators lack the drive to do their best work. Not only do they receive inadequate compensation, but they also fall short of those in other industries. Maybe, as society would say, they are waiting in heaven for their reward.

In addition to their low pay, teachers occasionally do not get their regular promotions. They do not receive consistent promotions. Their morale may suffer as a result. Though teaching and learning should go hand in hand, occasionally low morale among teachers makes it difficult for them to inspire students to study. The majority of students are unwilling to take courses in teaching; their principles, interests, and approach towards a career in teaching are uninspiring. Sometimes, people only resort to education faculties after experiencing frustration in other faculties, this affects the prestige placed on the teaching profession.

Inadequate infrastructural facilities

The lack of adequate infrastructure is another significant challenge facing educational institutions in Nigeria. Many schools lack basic facilities such as classrooms, libraries, and laboratories, making it difficult for students to receive a quality education. This is as a result of inadequate funding which has led to a decline in the standard of education and an inability to provide students with the skills they need to succeed in the 21st century.

Corruption

Corruption is a pervasive problem in Nigeria, and it has had a significant impact on the educational system. Corrupt practices such as bribery, nepotism, and embezzlement are common in educational institutions, and they have contributed to a decline in the standard of education. Corruption has also led to a lack of accountability and transparency, making it difficult to address administrative lapses.

Weak administration

The weak administration of educational institutions in Nigeria is another significant factor contributing to administrative lapses. Many educational institutions lack effective leadership, and there is a lack of accountability and transparency. This has led to a decline in the standard of education and an inability to address administrative lapses.

Lack of data

The lack of data is another significant challenge facing educational institutions in Nigeria. The lack of reliable data is hindering effective planning and implementation of educational policies. A lack of statistics on student enrollment, teacher numbers and qualifications, demographic trends, and buildings and other learning facilities is currently hindering planning.

Policy instability

The country has faced numerous changes in education policies, and this has created uncertainty and instability in the educational system. This has caused uncertainty in the educational policy of the country as every government in power wants to introduce its own policies. Odukoya, Bowale, and Okunlola, (2018) observed that policies were abandoned by governors and their predecessors due to a lack of funds for continuity. Politics and frequent changes in government negatively affect the implementation of the National Policy on Education.

Strike actions

Strike actions by teachers and other educational workers have also contributed to administrative lapses in Nigerian educational institutions. These strikes have disrupted the academic calendar and have had a negative impact on the quality of education. Strike actions by different unions in educational institutions are another problem hindering effective educational administration in Nigeria. Unions like the Nigerian Union of Teachers (NUT), Academic Staff Union of Polytechnics (ASUP), and Academic Staff Union of Universities (ASUU), Academic Staff of Colleges of Education (ASCE) had embarked on strikes severally in pursuit of best standard practices in Nigeria tertiary institutions. Due to poor working condition, majority of these unions always embarked on strike actions.

Brain drain

According to the National Open University of Nigeria, brain drain refers to the migration of academic staff from institutions in the country to overseas institutions or equivalent institutions where their services are better rewarded. The causes of brain drain can be attributed to the low level of academic staff salaries during the past decades; and the declining financial attractions of higher education employment in workloads. Many professional teachers are leaving educational institutions to other professions where their working condition is better. Many Nigerian students who pursue higher education abroad do not return to the country, leading to a shortage of skilled professionals in the educational sector. This has led to a decline in the standard of education and an inability to address administrative lapses.

Federal Character in Nigeria

Although the need to have every ethnic group duly represented in the public service of the country is laudable, however, federal character undermines democracy and excellence in the public service. It means that the best can be left out of the service and the worst picked. This system has continued to weaken Nigerian public administration, making the processes of service delivery towards national development more challenging than they could otherwise have been. One of the manifestations of the implementation of implementation of the federal character is poor employee procurement practice which resulted in unethical behavior among public sector workers. The implementation of the federal character system has failed to bring into the Nigerian public service, a competent and motivated workforce that could support administrative effectiveness for enhanced performance in the implementation of government policies for sustainable development.

Culture

Culture plays a significant role in shaping the character of public servants in Nigeria. The culture values respect for elders, un-common loyalty, and brotherly love, which has influenced the way Nigerians live. However, this has negatively impacted service delivery in the public service. Employees may not be disciplined due to age, religious, or ethnic affiliation, and personal loyalties often outweigh technical supremacy. Additionally, loyalty to individual offices may outweigh the public service itself, leading to nonchalant attitudes and a focus on personal interests.

Ethnicity and Nepotism

The Nigerian public service is deeply influenced by primordial relations, with ethnic sentiments and tribal sentiments disintegrating the national identity. The merit system index, supposed to guide appointments and promotions, has not been applied objectively, and cooperation depends on ethnic origin. Favouritism in the service extends administrative favours to ethnic bloc members, friends, and relations, violating the principles of impartiality and impersonality in the public service.

The administrative lapses in Nigerian educational institutions are a complex issue with numerous contributing factors. Addressing these challenges will require a comprehensive approach that includes increased funding, improved teacher training, and a commitment to transparency and accountability amongst others.

Management and control of litigation in the public service

Significantly, the effective management and control of litigation in public service, particularly within educational institutions, represent an intricate challenge in the realm of governance. Educational institutions play a pivotal role in shaping the future of nations by imparting knowledge and skills to the next generation. However, they are not immune to legal disputes and administrative lapses, which can disrupt their core mission and divert resources that would otherwise be directed toward education and research. This paper delves into the critical issues surrounding the management and control of litigation within educational institutions, emphasizing the imperative of reducing litigation and administrative lapses from a holistic perspective.

Litigation and administrative lapses in educational institutions encompass a broad spectrum of issues, including but not limited to academic disputes, employment matters, regulatory compliance, student grievances, and financial accountability. The consequences of these issues can be far-reaching, resulting in financial burdens, damage to institutional reputation, and, most importantly, undermining the quality of education offered to students.

This paper takes a multi-faceted approach to address these critical issues, exploring the intricate relationship between educational administration and litigation. It delves into the factors that contribute to the rise of legal disputes and administrative failings in educational settings, including the intricacies of governance, policy formulation, and implementation within these institutions. Moreover, it sheds light on the impact of litigation on public funds and resources that are desperately needed for the advancement of education.

The management and control of litigation in public service are not limited to reactive measures aimed at resolving legal disputes. Instead, it necessitates a proactive strategy that encompasses policy development, staff training, compliance monitoring, and conflict resolution mechanisms. The paper will explore the best practices and innovative approaches that educational institutions can adopt to minimize litigation and administrative lapses, thereby channelling their resources and efforts towards their core educational mission.

Furthermore, the paper will underscore the importance of a legal and administrative framework that not only prevents disputes but also provides a fair, transparent, and efficient process for resolving conflicts when they do arise. Striking a balance between preventing litigation and ensuring justice is served is a complex task that demands a nuanced and well-crafted approach.

In conclusion, this paper aims to illuminate the pressing need to address the critical issues in the management and control of litigation in public service, specifically within educational institutions. The reduction of litigation and administrative lapses is not just an economic concern but a fundamental imperative for fostering an environment conducive to learning, research, and the overall growth of the educational sector. By examining these issues comprehensively and proposing effective solutions, this paper strives to contribute to the ongoing discourse on the transformation and improvement of public service management in the context of educational institutions.

The management and control of litigation in public service, particularly in the context of educational institutions, is a critical issue that requires careful attention. This topic involves the reduction of litigation and administrative lapses in order to ensure smooth functioning and effective governance within educational institutions. To gain a comprehensive understanding of this subject matter, it is important to clarify some key conceptual issues.

Litigation in public service in Nigeria is a complex and challenging process that requires effective management and control to ensure that the legal rights of the government and its citizens are protected. The management and control of litigation in public service is critical to the smooth functioning of government operations and the delivery of public services. There are several vehicles for the reduction of litigation/administrative lapses in our educational institutions available from within and outside the public service structures. A brief consideration of some of these mechanisms can now be considered. First, we deal with the internal mechanism within the public service for the resolution of disputes.

Public Service Rules as a Litigation Reduction Mechanism

Alternative Dispute Resolution (ADR) mechanisms are an important aspect of the Public Service Rules (PSR), as they offer alternative methods for resolving disputes outside of traditional litigation processes. The PSR recognizes the importance of ADR in promoting efficiency, fairness, and transparency in the resolution of disputes within the public service

Rule 100302 empowers a Superior Officer who becomes dissatisfied with the behaviour of his subordinate must inform the officer in writing giving details of unsatisfactory behaviour and to call upon him to submit within a specific time such written representation as he may wish to make to exculpate himself from disciplinary action.  

Rule 100303 provides that where a Tribunal of inquiry set up by the Government makes a recommendation of a disciplinary nature on an officer, the Federal Civil Service Commission/Board shall not act on such recommendations until it has called upon the affected Officer to reply to the allegations made against him by the Tribunal of inquiry.

Rule 100307 detailed the procedure for dismissal of an Officer who has been found guilty of misconduct under the Rules. Interestingly, the Rules allow the Officer to make representations before the Tribunal and witnesses are also called by the Tribunal. The officer is allowed to ask the witnesses questions. When the Tribunal/Board has concluded its inquiry, it sends the report to the Federal Civil Service Commission to make the final decision. 

Chapter 11 of the Public Service Rule makes provision for handling appeals and petitions by officers in the public service. 

According to Rule 1010201, aggrieved officers, without prejudice to their constitutionally guaranteed right are mandated as much as possible to exhaust all avenues provided in the public service Rules and Circulars for redress before proceeding to court. This is in addition to obtaining permission from the Head of Service of the Federation before proceeding to Court.

Rule 110204 outlines the channel through which an aggrieved officer can submit his petition for it to be addressed. An appeal/petition must be submitted through the proper departmental channels, namely through the petitioner’s immediate superior officer and the Permanent Secretary/Head of Extra-ministerial Office, who will forward the appeal/petition with his comments and recommendations to the Chairman of the Federal Civil Service Commission or Head of the Civil Service of the Federation in accordance with administrative instructions in force at the time.  

Rule 110201 sets the time frame during which appeals/petitions in the public service should be completed – six months. 

Significantly, actors in the educational sector in particular and public servants in general are strongly advised to take the public service rule as a social contract between them and their employer in other to enhance their performance, welfare and the tenure of their professional careers and forestall conflicts that could lead to disputes within and outside the public service. The starting point is for all participants at this retreat to grab a copy of the public service rules, and read and digest them for proper understanding in a manner to forestall disputes. This will be a useful preventive therapy that will reduce friction and associated costs that could be deployed for other productive endeavours.

The takeaway therefore should be public service rules as a social contract whose provisions are stated and should be obeyed by all public servants for harmony.

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ADR Labour Settlement Mechanism in the 1999 Constitution (as amended) by the Third Alteration Act 2010 as dispute reduction mechanism

The above is considered as one of the most outstanding innovations introduced by the Constitution to resolve labour disputes in the public service with particular reference to educational institutions. 

Section 254C(3)  of the 1999 Constitution (as amended by the Third Alteration Act 2010) provides as follows:

“The National Industrial Court may establish an Alternative Dispute Resolutions Centre within the Court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law: 

Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matters as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.”

Order 24 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

This rule provides:

“The President of the Court or a Judge of the Court may refer for amicable settlement through conciliation or mediation any matter filed in any of the Registries of the Court to the Alternative Dispute Resolution Centre (hereinafter referred to as the Centre) established within the Court premises pursuant to Section 254C(3) of the 1999 Constitution (as amended by the Third Alteration Act, 2010) and Article 4(5)(a)-(e) of the Instrument of the Alternative Dispute Resolution Centre…

1.            (1) Where parties to any mediation or conciliation processes are unable to settle their dispute amicably, the Director of the Centre shall submit a report to that effect to the President of the Court or the Judge of the Court who made the referral without the record of the mediation r conciliation session (s).

(2) Where the matter was not resolved by the Centre, the matter shall be remitted to the President of the Court or the Judge who referred the matter within five (5) working days, to be set down for adjudication in accordance with the Rules of the Court.

1.            Where parties are unable to settle their disputes through the mediation or conciliation process, the Court may set the matter down for hearing and determination on its merits, and the procedure laid down for trial of cases under the Rules of Court shall be followed for the determination of the matter…”

The provision empowers the National Industrial Court of Nigeria to establish an Alternative Dispute Resolution Centre within the premises of the court. These provisions lay credence for alternative approaches for amicable settlement of labour, employment and industrial disputes.

1.            National Industrial Court of Nigeria Alternative Dispute Resolution Centre Instrument 2015

Article 4 Provides:

“The mandates and functions of the ADR Centre shall amongst other things be the application of mediation or conciliation technique in the settlement of disputes between or amongst parties, 

1.            To enhance and facilitate quick, efficient and equitable resolution of certain employment, labour and industrial relations disputes within the jurisdiction of the Court;

2.            To minimize, reduce, mitigate and eliminate stress, cost and delays in justice delivery by providing a standard ADR framework for fair, efficient, fast and amicable settlement of disputes; 

3.            To assist disputants in the resolution of their disputes without acrimony or bitterness; etc.”

Significantly, this system affords disputants the opportunity to adopt mediation, conciliation and neutrals in the settlement of employment disputes which shall be less costly, speedy and more effective and efficient in the settlement of labour disputes. By Order 2 (2) of the National Industrial Court of Nigeria (NICN) Alternative Dispute Resolution (ADR) Centre Rules, 2015, ADR Centre “means the Alternative Dispute Resolution Centre. This was established by the Court pursuant to Section 254(C)(3) of the 1999 Constitution (as amended) and by virtue of Article 2(1) of this National Industrial Court of Nigeria (NICN) ADR Centre Instrument, 2015. Conciliation means bringing two opposing sides together to attempt to settle the matter without proceeding to trial. It is also a process of an amicable settlement of disputes in a friendly and win-win situation. Neutral means an impartial and unbiased individual appointed by the President of the Court in accordance with the provisions of NICN, ADR Centre Instrument to mediate or conciliate in a dispute or issue referred to the NICN ADR Centre.

Mediation seeks compromise and a win-win situation, while arbitration seeks to justify a win-lose verdict. Significantly, while other processes require information gathering, arbitration focuses more on evidence, witnesses and law application to reach an award. One of the key features of the ADR system with the National Industrial Court is that mediation can be identified as neutrality, confidentiality, flexibility, voluntariness, party control and facilitation.

Diverse management approaches to conflict resolution in the public service

It is proposed by way of recommendation that workers in the public service should be more involved in the decision-making process so as to reduce the rate of conflict, this means there should be an effective communication network between the workers and management. Emphasis needs to be placed on early responses to individual employment disputes before they escalate into conflict situations. Areas of conflict identified will help management or managers to make necessary adjustments and changes so as to come up with a better way of correcting it. Five management approaches at conflict resolution are recommended. These include integrating, obliging, dominating, avoiding and compromising. 

Integration involves openness, exchanging information, looking for alternatives and examining differences so as to solve the problem in a manner that is acceptable to both parties. 

Obliging is associated with attempting to minimize the differences and highlighting the commonalities to satisfy the concern of the other party. In adopting the dominating style, one party goes all out to win his/her objectives and as a result, often ignores the needs and expectations of the other party. When avoiding a party fails to satisfy his/her concern as well as the concern of the other party. Lastly compromising involves give and take whereby both parties give up something to make a mutually acceptable decision.

Proposed options for mediation in the public service

Evaluative Mediation 

A mediation style is concerned primarily with reaching a deal, with a greater focus on expected court outcome and lesser focus on parties’ respective interests. 

Facilitation

A process involving parties who are not so much in dispute as in a state of potential dispute and who wish to engage in dialogue in order to reach an agreement. There may be tensions between the parties’ viewpoints or interpersonal or other relationship difficulties. The facilitation process is designed to ensure that the discussion between the parties is constructive, with the objective of achieving better understanding and avoiding future disputes. 

Facilitative Mediation

A mediation model which focuses on facilitating the negotiations between parties with the goal to help everyone achieve their interests and to reach a durable, long-lasting agreement. Facilitative mediators usually do not comment on what would happen if the matter escalated to the next tier in the dispute resolution process (for example: formal grievance, tribunal or court). 

Grievance

A formal method for an employee to raise a problem or complaint to their employer, usually under the employer’s published grievance procedures. Reasons for filing a grievance in the workplace can be a result of, but not limited to, a breach of the terms and conditions of an employment contract, raises and promotions, harassment, bullying and discrimination.

Litigation as a last resort

Litigation is also an option which may be considered as a last resort. However, it is fraught with several challenges. As much as possible aggrieved elements in the public service ought to resist the temptation of deploying litigation as a conflict resolution mechanism for a variety of factors. This includes the element of delay because the problem in Nigeria is not access to justice but exit from justice. Our civil and criminal justice systems operate at a speed chosen for the convenience of the legal practitioners and defenders rather than the convenience of the court or the ends of justice. There is also the problem of deliberate abuse of procedural tools that does not seem to be any limit to the number of adjournments that may be obtained. 

There appear to be few if any, effective sanctions to ensure that a defender in civil or criminal proceedings cannot delay or frustrate the proceedings.

There is also the problem of misuse of interlocutory appeals. It is amazing that virtually any issue can be taken all the way to the Supreme Court provided the appellant can formulate grounds of appeal based upon errors of law, regardless of whether the point being appealed involves any public interest. It is all too easy to dress up factual questions as questions of law. 

Thirdly, Nigerian law is excessively and destructively procedural. Our civil and criminal justice system is obsessed with form rather than substance. Over 70% of reported litigation is on procedure.

Fourthly, there is also a case management challenge. Ideally, in determining the appropriate way to manage a case, the court should have regard to the need to prevent any case from being conducted in a way that interferes with the resolution of other disputes and wastes the resources of the court. Unfortunately, in many cases, our courts are unable to rise effectively to overcome these challenges.

Fifthly, our court registries are chaotic, dirty and poorly managed with a negative impact on the administration of justice.

Sixthly, there is the use of jurisdictional objections to frustrate trial proceedings. 

The seventh point is the negative judicial attitude. There are instances where some judges have not given judgments in concluded matters over a year after the conclusion of trial and argument. Every three months, counsel is asked to readopt.

There are other issues such as the defective system for the appointment of judges, delays in prosecuting appeals, low incidence and quantum of costs and inadequate funding and resources available to the judiciary all of which impact negatively delivering effective and efficient adjudication. Our system indeed requires urgent surgeries. 

The question to ask is whether public servant are prepared to go through this frustrating experience in their resolution of grievances and disputes arising from their workplace experiences. I ask again, are you prepared to face these hurdles arising from the litigation in our courts? 

Suggestions and recommendations

Mediation offers a critical attraction in the resolution of disputes in the public service. In strengthening the existing ADR mechanisms in Nigeria, we can draw lessons from comparative jurisdictions around the world. 

The United Kingdom – Civil Service Mediation Service (CSMS)

The UK Civil Service Mediation Service was launched in 2012. The CSMS is designed to mediate disputes involving members of the civil service. The CSMS operates in collaboration with 42 separate departments and agencies with the majority having their own internal in-house mediation service. A department that is too small to have an internal mediator can approach the central mechanism of the CSMS can be approached to intervene in disputes within the department. The CSMS thereby effectively functions as a resource pool when demand cannot be met internally or where departments are too small to operate their own in-house service. To access the CSMS, the complainant contacts the internal HR personnel or mediation resource who will either seek to deal with the matter via an internal mediation process or forward the request on to the CSMS where no mediators are available internally. 

Interestingly, there is no charge for mediation and all mediators are volunteers, with a “day job”, who give their time as an additional corporate contribution. As an example, should department A send in a request and department B have mediators available, department B would then cover any travel and subsistence costs for those mediators to attend and undertake the mediation. In return, as and when department B may need external mediators, the department sending those mediators would similarly cover the associated costs.  

The United States Federal Mediation and Conciliation Service (FMCS)

The United States Federal Civil Service is an independent agency whose primary responsibility is to promote sound and stable labour-management relations through a variety of mediation and conflict resolution services. The FMCS is involved in a wide range of mediation services which include the mediation of collective bargaining negotiations and grievances, training for labour and management in skills and processes aimed at improving the workplace relationship, and the referral of private arbitrators for the settlement of controversies over the application or provisions in a collective bargaining agreement. The FMCS is a completely voluntary step, taken prior to any arbitration, which provides an opportunity for a third party neutral to assist the parties in reaching their own resolution of the dispute. The mediator does not make a binding decision for the parties, but rather guides them to their own mutually acceptable resolution of the grievance, assisting in cooperative problem-solving between labour and management. 

FMCS provides professional services to a wide range of federal, state, and government agencies on a cost-reimbursable basis. The FMCS assist federal agencies in resolving disputes, trains persons in skills and procedures employed in alternative means of dispute resolution, designs conflict management systems, builds capacity for constructive conflict management, and strengthens inter-agency and public-private cooperation. Through this work, FMCS seeks to reduce litigation costs and to promote better government decision-making.

Australian Civil Sector Mediation

The Australian Public Service Regulations (Regulation 5.1(4)) acknowledge alternative dispute resolution as a means of resolving employee complaints. Some agencies in Australia, in particular the Department of Defence (DOD), have invested significantly in alternative dispute resolution and formalised it as a strategy for responding to workplace conflict. The Employee Assistance Program assists DOD employees who are experiencing difficulties of a personal or work-related nature. It offers a confidential work-based intervention program designed to enhance emotional, mental and general psychological well-being. The program provides short-term preventative and proactive interventions for issues that may and do adversely affect performance and well-being. The program aims for early detection, identification and resolution of work and personal issues.

Cyprus 

In Cyprus, the process of dispute resolution in the workplace involves four stages. In the first level, the supervisor is called to intervene in a dispute in a bid to resolve such dispute. If not resolved, the worker will be referred to higher authorities in the workplace. The first two stages are known as non-judicial ADR

The third stage, if required, is a referral of the worker to the Ministry of Labour and Social Insurance for mediation. This must be completed within 15 days. If a settlement is not reached at this stage, the complaint is referred to binding arbitration.

It is the responsibility of the Ministry to appoint a mutually acceptable arbitrator within one week of the special request from both parties and to provide administrative support to the arbitrator – thus, access to arbitration is by mutual agreement only. The Ministry issues the arbitrator’s decision 15 days after the last arbitration meeting, or within three days in the case of dismissals.

Germany

Germany has a labour court that has jurisdiction to entertain all labour-related disputes. However, every matter brought before the court would first begin with the process of conciliation. The purpose of this approach is to achieve an amicable settlement, usually a compromise between the parties, before recourse to a formal hearing. The parties may also agree to a private mediation at this stage. 

For non-escalated disputes, all employees have the right to have their grievances heard by the works council. It is then possible for a company-level arbitration committee to be established. In practice, in most cases where a works council exists, an employee might first address the council; the works council would then seek to resolve the matter with management, sometimes using informal mediation. Where there is no works council, the trade union would seek an out-of-court agreement with the employer. In cases of individual dismissals, the works council must be consulted.

Italy 

Recourse to the judicial authorities for the resolution of a labour dispute must be preceded by a mandatory attempt at conciliation – referred to as ‘administrative conciliation’. This takes place before a special board instituted by the relevant Provincial Labour Directorate. Where a judge ascertains at the beginning of the court procedure that no attempt has been made to use conciliation, the proceedings may be suspended and the parties ordered to use the procedure.

Identifying challenges in public administration

Research findings have identified that political interference, corruption, inadequate funding, self-induced anarchy by the administrator, favoritism and nepotism etc., as some of the challenges public administrators face in implementing public policies in Nigeria. The findings have further shown that despite the moderate achievements in democratic governance and being rich in natural and human resources, there remain many politico-administrative challenges to be addressed in Nigeria. In addition, ailing public administration has resulted in disturbing socio-economic indicators which are among the worst in the world. Findings reveal that, notwithstanding the dramatic administrative reforms, citizens’ confidence in government service is near a historic low because of poor service delivery and exclusionary policies. 

Based on the foregoing, this paper concludes by offering the underlisted suggestions and recommendations for enhanced public service delivery in the educational sector, particularly in curbing the high incidence of litigations and costs associated with the sector.

Recommendations on legal measures to curb high rate of litigation in the educational sector

The high rate of litigation in the educational sector in Nigeria is a significant concern that requires effective legal measures to address. Litigation in this sector can lead to numerous negative consequences, including financial burdens on educational institutions, delays in the resolution of disputes, and a strain on the overall education system. To curb this issue, several legal measures can be implemented:

Alternative Dispute Resolution (ADR)

One of the most effective ways to reduce litigation in the educational sector is by promoting the use of alternative dispute resolution methods such as mediation and arbitration. ADR provides a less adversarial and more collaborative approach to resolving disputes, allowing parties to reach mutually acceptable solutions outside of the courtroom. By encouraging the use of ADR mechanisms, educational institutions can save time and resources while fostering a more harmonious environment for dispute resolution.

Strengthening Internal Dispute Resolution Mechanisms

 Educational institutions should establish robust internal dispute resolution mechanisms to address conflicts before they escalate into full-blown litigation. This can include setting up dedicated committees or departments responsible for handling disputes within the institution. These mechanisms should be designed to provide fair and impartial resolutions, ensuring that all parties involved have an opportunity to present their cases and have their concerns addressed.

Clear Policies and Procedures

Implementing clear policies and procedures within educational institutions can help prevent disputes from arising in the first place. By establishing guidelines for various aspects of education, such as admissions, disciplinary actions, grading systems, and employment practices, potential areas of conflict can be minimized. These policies should be communicated effectively to all stakeholders, including students, parents, teachers, and staff members, to ensure everyone understands their rights and responsibilities.

Training and Capacity Building

Providing training and capacity-building programs for educators and administrators can contribute to reducing litigation in the educational sector. These programs should focus on equipping individuals with knowledge about relevant laws and regulations governing education, conflict management skills, and effective communication techniques. By enhancing the legal literacy and dispute-resolution skills of those working in the sector, potential disputes can be resolved internally, reducing the need for external litigation.

Strengthening Regulatory Bodies

Regulatory bodies responsible for overseeing the educational sector should be empowered to effectively address complaints and grievances. These bodies should have clear mandates, adequate resources, and competent personnel to handle disputes efficiently. By ensuring that regulatory bodies are capable of addressing issues promptly and fairly, individuals may be more inclined to seek redress through these channels rather than resorting to litigation.

Conclusion 

In conclusion, curbing the high rate of litigation in the educational sector in Nigeria requires a multi-faceted approach that includes promoting alternative dispute resolution methods, strengthening internal dispute resolution mechanisms, implementing clear policies and procedures, providing training and capacity building programs, empowering regulatory bodies, and conducting public awareness campaigns. By adopting these legal measures, it is possible to reduce litigation and create a more conducive environment for educational advancement in Nigeria.

*Shittu, a Senior Advocate of Nigeria (SAN), law teacher and prosecutor, presented this paper at a retreat organised by the Federal Ministry of Education on November 29 in Keffi, Nasarawa State.