• Lawyers disagree on mechanism’s compulsory adoption
For the Lagos State Government, there is no going back on the mandatory adoption of Alternative Dispute Resolution (ADR) as a tool in the administration of justice. Today, judges are attending a workshop, where they are being trained on this new innovation in the High Court of Lagos (Civil Procedure) Rules 2012.
Still at its initial application stage, the innovation, which came into effect with the adoption of the court’s new rules, seeks to depart from the old practice where the use of any of the ADR mechanisms in resolving cases, was voluntary.
The training is one in a series being held to effectively equip judicial and court officials to drive the idea behind the modification in the application of ADR in Lagos courts; to educate lawyers, who are unsure of how to approach it and its implication on their income, and to propagate it among litigants.
As against the practice under the now rested 2004 rules, where cases were only referred to ADR with the understanding of parties, the new rules make ADR mandatory.
A litigant, whose case is assigned to what is known as the ADR Track, must go through the process of mediation, conciliation or arbitration. Such litigant is only allowed to undertake litigation when the ADR option fails.
Order 3 Rule 11 of the 2012 Rules provides: “All Originating Processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Lagos Multi-Door Court House or other appropriate ADR institutions or practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State.”
Order 25 Rule 6 (1) states: “Where a case is deemed suitable for ADR under Order 3 Rule 11 or has by directives been referred to ADR under Order 25 Rule 2 (l) above, the ADR judge shall, in case of recalcitrant parties, consider and give appropriate directives to parties on the filling of Statement of Case and other necessary issues.
“(a) The claimant shall file his statement of claim within 14 days of the Order of the judge; (b) the defendant shall file his response within 14 days of service of the claimant’s statement of claim.”
Rule 6 (2) states: “Where a party fails to comply with the directives and/or orders of the ADR judge, or fails to participate in ADR proceedings, the judge shall: (a) In the case of the claimant, dismiss the claim; (b) In the case of a defendant, enter judgment against him, where appropriate.”
The rules, however, make provision for the setting aside of a default judgment entered against a defendant. It provides in Rule 7 that any judgment given under Rule 5 or 6 (2) may be set aside upon an application within seven days of the judgment or such other period as the judge or ADR judge may allow.
It further provides that such application shall be accompanied by an undertaking to participate effectively in the Case Management Conference or ADR, as the case may be.
Mixed reactions
Expectedly, the new method of case management has attracted divergent opinions, with proponents hailing the innovation. Promoting ADR, one of the motives of the new provision, many have argued, is in consonance with globally accepted pattern of justice delivery in a less acrimonious environment. They said efforts are being made to deemphasise the adversarial method of litigation.
They argued that ADR mechanisms, as a means of dispute resolution, are gaining support in more-advanced climes, globally. They hailed Lagos State’s decision to promote the practice.
Critics are mainly querying the practicability and constitutionality of the state’s decision to compel litigants to subject themselves to ADR. They see the new provisions as an attempt to limit the people’s unfettered right of access to court.
Former Chief Justice of Nigeria Justice Dahiru Musdapher, last month, advocated the adoption of ADR by the courts to decongest the court dockets and prevent delay in justice delivery.
At the last National Mirror Second Anniversary Lecture in Lagos, the jurist noted: “When we were being trained for law, I remembered one of things they taught us was that once you are briefed by your clients, the first thing to do is to write a letter to the adversary party to see how you could settle the matter amicably without going to trial.
“It is not every case that should proceed to trial. But it is not so these days. Your duty as a lawyer is to help your clients solve their problems and not necessarily go to adjudication.”
Chief Judge of Lagos State Justice Ayotunde Philips had, at a public presentation of the new rules last December, said the modifications in the old rules were to ensure prompt disposal of cases and to avoid the delay associated with the current practice.
The Director, Lagos Multi-Door Courthouse (LMDC), Mrs. Caroline Etuk, at a workshop for lawyers last Thursday in Lagos made effort to disabuse lawyers’ mind about the misgivings expressed by contributors, who queried various aspects of the provisions relating to the ADR Track.
Mrs. Etuk told the gathering that no fees will be charged on the ADR Track cases. “Your payment is limited to what you pay for filing your case at the Registry. Once it is screened to the ADR Track, you are not required to pay any additional fees. This is the present position that may well change. But I can assure you that the change will not be now. The legal community will be carried along at every step.”
On efforts to ensure lawyers and litigants comply with the provisions, she said a lot of things have been done to checkmate mischief makers. She added that the provision in Order 49 (2) which imposes cost on a party that rejected a settlement made in its favour during ADR, and some other similar provisions are meant to control parties not willing to comply with the process.
Addressing a question on whether it is a fair assumption to make that where a defendant is allowed under Order 25 Rule7 to apply for a default judgment to be set aside within seven days, it is not clear whether a claimant can relist a dismissed case, she admitted inadequacies in some of the provisions, particularly in relation to dismissal of cases under Order 25 Rule 2
Mrs. Etuk agreed that there is the need to reconsider what should be done by a claimant whose case is dismissed under Order 25 R6 (2) because the case had not been considered on merit either at the ADR stage or the pre-session hearings. “I am sure there is a lot more in the new rules that still need to be looked at, and looked at again,” she said.
On the fear about the ability of the officials to cope with the volume of cases to be directed to the ADR Track, she said cases screened for ADR will not be considered only by the LMDC but referrals would be made to other recognised ADR institutions or practitioners.
“As a legal practitioner, a matter can be referred to you under the ADR Track for mediation or other ADR interventions,” she said.
LMDC’s Deputy Director Mrs. Adeyinka Aroyewun countered the argument that the mandatory nature of ADR under the new rules will hinder people’s easy access to the court. She said the state has provisions for indigent residents to access courts and have their cases heard. She cited the Citizens Mediation Centres and the Office of the Public Defender (OPD) where people too poor to afford the services of a lawyer are provided lawyers at no cost.
She said enough efforts had been made to train officials to be deployed for the ADR Track , beginning with the Screeners, the Case Managers and Sheriffs, who are all lawyers. She assured of the readiness of those behind the project to ensure its success.
Any conflict with
the Constitution?
Despite efforts by proponents of the ADR Track concept to buy the support of all, critics are insistent on their argument that the mandatory requirement of the new rules is not only unworkable but unconstitutional in that it violates the right of access to court which is recognised under sections 6(6) and 36(1) of the Constitution.
Section 6 (6) provides: “The judicial powers vested in accordance with the foregoing provisions of this section shall extend, to all matters between persons, or between government or authority and to any persons 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”.
Section 36 (1) provides: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.
They contended that Order 3 Rule 11 of the new Rules seeks to diminish parties’ right to have their disputes determined by a court of law, a possibility frowned at by the Constitution. They argued that the right of every citizen to have access to court includes the right to public hearing and the right to an appeal.
They noted that, on the contrary, arbitration (as an ADR mechanism for instance) as an alternative to the judicial process of litigation, denies a person these rights because arbitration is not conducted in public. They also noted that the right to appeal from an arbitration award is limited to statutorily recognised points of law
There is also the argument that though the intention behind the new provision is commendable, the inadequacy in the number of existing ADR experts, low manpower training, poor pay, among others, could combine to defeat the noble idea.
Some cited the problem now associated with the Pre-Trial Conference (PTC) initiative under the 2004 Rules, meant to ensure that preliminary issues were resolved within three months before the actual trial. Today, PTC now runs into years in some instances.
Those skeptical about the new initiative expressed fears of possible abuse of the process by officials as is the case with some Court Registrars, Sheriffs and other officers of court who seek inducements before they can take prompt actions even when all the required fees have been paid.
Lawyers speak
Some lawyers examined the new provision and suggested how it could be made to achieve the intended goal. They included Felix Fagbohungbe (SAN), Yomi Okunnu, Linus Idu, Hassan Taiwo Fajimite and Oluyemi Ariyo.
Fagbohungbe praised the state’s judiciary for amending and improving on the rules of the court. He, however, condemned the decision to make arbitration mandatory.
“ I do not agree with them on that. My reason is that you cannot force litigants to go for arbitration and restrict their access to court. That would be a violation of the provisions of the constitution. You don’t make anything compulsory. It should be voluntary.
“Access to court must be simple, must be easy. So, it is not advisable. Even it is doubtful if Lagos State judiciary would have enough personnel to cope with the complications introduced by the new rule. I doubt if they have the personnel.
“So, it would eventually die a natural death because when they start operating it, they cannot effectively operate it because of the quality of the personnel that would manage that provision. The other improvements in it are alright.
“If they said it is to makes things faster, I disagree with that because it is going to complicate things, it is going to make things more difficult. I think they still need to look at it again. This opinion I am expressing will be vindicated eventually because it is not going to help them at all,” Fagbohungbe said.
Okunnu said he believes the new rule is practicable. He said there was need for people to have a change of attitude because it is an attitudinal thing.
“There should be more enlightenment so that more junior lawyers will know that it is not all cases that must be resolved through litigation. The new amendment is intended to promote other means of resolving dispute other than litigation.
In fact, it is an ethical thing for lawyers to first notify their clients about the ADR options. Such requirement is contained in the Legal Practitioners Rules. This requirement has been in the rules before now. But the amendment is to draw lawyers’ attention to it and to ensure its application. It is also to stress the message that being a lawyer does not imply being an advocate in court alone. You can advocate in many areas,” Okunnu said..
Idu also said the mandatory nature of the new provision is part of efforts to decongest the court and ensure prompt adjudication of cases.
“In coming up with this amendment, the authorities of the Lagos High Court thought that by creating a forum for litigants to explore ADR many cases will be settled, leaving room for the system to deal with cases that actually require to be litigated on.
“What is novel is the mandatory nature of the new provision, which is innovative in a way. What we should understand is that ADR is a global thing that is in practice in the developed societies and has been embraced. So, the intention now is to help us key into a global trend that has become an acceptable norm in commercial and business transaction globally,” Idu said.
Fajimite he believe the compulsory nature of the new provision with help decongest courts’ dockets He advised lawyers to embrace it and not see it as what could lead to a reduction in their income.
“Lawyers should realize that the current court system marred by delay, does not work in their favour. My expectation is that if this idea works, litigation will be reserved for cases where litigation becomes inevitable. Lawyers are involved in all the ADR mechanisms. Lawyers should not nurse any fear about the new idea. In fact it is going to result in more money and more opportunities to everyone’s benefit.
Ariyo said the current practice that aide delay in court has led to the loss of confidence in the system by the litigants and even, by the lawyers themselves. “I think that was one of the reasons why the old rules were amended to reduce the amount of time you spend in court.
“ I believe these amendments to the court rules are actually intended to bring people back to the court system. I am sure lawyers will welcome the development. Otherwise, we (the lawyers) will remain the endangered specie.
“I recommend this to other states. I know they will follow. When Lagos started with the idea of frontloading in 2004 other states, including Abuja copied that. I am sure when they see this working well, they will have no option that to adopt it. Obviously, Lagos has to be the trail blazer in this regard because it is the nation’s commercial capital,” Ariyo said.
