Chapter Two

Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

CHAPTER TWO SHORTCOMINGS OF THE NIGERIAN LEGAL SYSTEM NECESSITATING ADR

The traditional courts are losing the respect and favour of the people because of their continued irregularities. Today, an individual sued to court cannot say for sure when the case will end, what the decision of the court will be and how much it will cost him. The same goes for those doing the suing; increasingly fewer people run to the courts with every kind of dispute these days. This problem is not peculiar to Nigeria alone, but is prevalent also in almost every country of the world.

In England certain attempts have been made to ensure that the problems of the courts especially regarding delay in justice and uncertainty of costs are a thing of the past. This led to the introduction of the Civil Justice Reforms in 1999 which in turn brought about the new Civil Procedure Rules and the Case Management system in which the responsibility of managing cases was shifted from litigants and their counsel to the courts.1 The system of the courts was too slow, uncertain and expensive. In many ways it resembled a ritual dance between opponents who circled each other displaying their claws in a series of interlocutory battles set against a measure of mutual incomprehension about the true nature of the dispute, 1

J. Peysner and M. Senevirante, The Management of Civil Cases: the Courts Post-Woolf Landscape, Department for Constitutional Affairs (DCA), DCA Research Series 9/05, November 2005, p. i

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

while judges looked on wringing their hands but unable to intervene as their role was to be neutral referees, rather than driving the litigation on to its conclusion.2

In the United States, Judge Warren E. Burger, who later became one of the longest serving Chief Justices of the country, said:

“All of the information available, and specifically the official records… demonstrate that the judicial system and its machinery are not doing the job the public has a right to expect. They need re-examination and re-appraisal. When it takes five, four, three, or even two years to get a civil case on for trial, judges and lawyers cannot escape the charge that a system which functions so slowly has defeated one of its primary objectives at the very threshold of the judicial process.” 3 It is this dissatisfaction that has led to the exodus from the traditional means of litigation to other forms of dispute resolution as discussed in the last chapter. To further appreciate the contribution of ADR to the judicial horizon of Nigeria, however, we can still consider the shortcomings of our legal systems and identify the factors that engender them.

2 3

Ibid. p. 1 Warren E. Burger, Delivery of Justice – Proposals for Changes to Improve the Administration of Justice, 1990, St. Paul, Minnesota, West Publishing Co., p. 4

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

2.1

DELAY IN JUSTICE DELIVERY IN NIGERIA

Perhaps one of the prime reasons why people view being sued to court with foreboding in their minds is the fact that litigation in the courts seem to drag on forever without respite in sight. This problem is not new in Nigeria and has been the basis for diverse calls over the years for a reorganising of the judicial system of the country and for the revision of the court litigation system.

Many factors contribute to the delays experienced in the delivery of justice by the courts in Nigeria. These include but are not limited to human errors and incompetence, absence of urgency in the prosecution of the case by counsel and a host of others.4

Although a school of thought as touching delay in the courts say that it is better for the courts to take their time in reaching conclusions which have far-reaching effects on the parties of the case than for them to rush off and make hast decisions based on hurried cases, thus working a miscarriage of justice. However, it is still certain that no one wants to have a case in court for over a decade. When the judgment is even delivered after such a long case, the decision is likely to be of little or not effect save to massage the ego of the winning party. It is negatively 4

International Bar Association (IBA), Justice Delayed Is Justice Denied, IBA Weekly Column on Zimbabwe – No. 043, August 02, 2004, http://www.kubatana.net/html/archive/legal/040802iba.asp?sector=LEGAL

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

said of the Nigerian courts that ‘you may know the date you commenced action, but pray, because you may not know the end of it’.

Sometimes the problems of delay in our courts are caused by over-zealous lawyers who employ every trick of the trade in their arsenal to ensure that cases drag on forever by seeking endless adjournments and focusing excessively on matters of technicality and procedure rather than on matters of fact and law, especially where it is clear and apparent that they have a bad case. Often lawyers even express the attitude that although they may have a bad case and may lose eventually, they will make sure the suing party regrets suing their client to court by dragging the case for as long as possible to the detriment of the suing party’s pockets. Also, apart from the fact that lawyers have their time endlessly bludgeoned by cases that have been long overdrawn, it is still these same lawyers that go home with large paycheques! In other words, the longer the case lasts the more money accrues to the lawyer. This has sometimes been one of the reasons why lawyers don’t mind a case go on and on seemingly without an end in view.

According to a national daily:

“However, with constitutional provisions purposely designed to minimise delay in the administration of justice, lawyers have formed the habit of delaying cases whenever they discover that the pendulum does not swing in their favour. They resolve to legal tactics which in one way or the other will frustrate the court from dispensing

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

justice expeditiously….Many Nigerians have lost faith in the judicial system as a result of the undue delay in the dispensation of justice. Strict standards have to be prescribed which must be complied with in order to restore the lost confidence in the judiciary.” 5 Apart from the lawyers, judges also have their contributions to the delay of justice delivery in the country and indeed, it is commonly believed that the buck stops with them because they are those saddled with the responsibility of the management of the courts and not the litigants or their counsel. It is the judge who determines the extent to which the lawyer can press for successive adjournments and when he discovers that the lawyer is merely employing delay tactics, he can call him to order. Thus, many have come to view judges as slow, lazy and detached from the pains and grief of the parties.

The failure on the part of judges to timeously deliver judgments has spread its negative effect to all kinds of litigation, including but not restricted to normal family law disputes and normal commercial litigation. This is a spin off of the general decay in the judiciary where litigants no longer take center stage. The delays have also become endemic in the general day to day operations of the courts as time is no longer an important consideration. In Zimbabwe, for example, the Magistrates Courts are supposed to sit at 0830hours, litigants and accused persons are told to be at court by 0800hours. However, virtually no court sits at 5

R. Durojaiye and V. Efeizomor, Pains Of Delayed Justice In Nigeria, Daily Independent Online, Thursday, November 20, 2003. http://www.nigerianlawsite.citymaker.com/page/page/821488.htm

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

the starting time of 0830hours and cases are unlikely to be called before 1000hours.6

In the High Court, the judges generally regulate their commencement times although the normal starting time is 1000hours for trials and 0900hours for applications. While there is a small number of judges in the High Court that still have respect for time, the majority simply do not care for time. Regrettably, very little is being done about this as all are guilty – both those responsible for ensuring the smooth running of the Judiciary and their subordinates. The net effect of these deliberate delays in the administration of justice is that unnecessary bottlenecks are created. Once one case or judgment is delayed, a ripple effect is created and an unnecessary backlog is created.7

Apart from problems with punctuality and efficiency on the part of the judges, there is also the issue of delayed judgments and excessive judgments, although the former is not as rampant in Nigeria. Most times after cases have been brought before a court and has been heard over a long period of time, one would have thought that the ruling or judgment of the matter would be delivered expeditiously by the judges, but we often find that the case is further adjourned for the sole purpose of the delivery of the judgment.8 This especially happens at the superior courts and only cause for further delays. In the USA, judges (or the jury where it 6

International Bar Association (IBA), Op. cit. Ibid. 8 Ibid. 7

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

is a trial by jury) adjourn for only a few hours after concluding hearings and deliver their judgments or sentence on the same day.

Where the length of judgments is concerned, judges cannot be excused in the matter. It appears that the higher the court, the greater the urge on the part of judges to produce scholarly judgments which are mostly didactic and excessively lengthy in nature. Sometimes judgments of the Court of Appeal and the Supreme Court run into close to a thousand pages, especially where there are dissenting opinions and these have to be read through in the course of delivering the judgment. This takes not only the time of the appellants, but that of the counsel, the judges and the courts. Time thus wasted could be put to good alternative use is hearing other appeals or doing some other ‘judicial’ activity. In India a case was heard by 13 out of the 14 judges on the Apex Court for 6 months and produced a landmark judgment of 700 closely-printed pages. An advocate had this to say:

“Besides court time being taken up by the uninhibited verbosity of advocates, the judges seem to delight in producing judgments of unending length…. Though it is supposed to be a judgment, in fact it failed to decide any specific issue…. There was no majority decision on any significant point that the court was called upon to decide…. Lengthy arguments and lengthy judgments all take time. Reading judgments, if one has the patience to do so, one gets an uneasy feeling that our judges suffer from an unfulfilled wish of writing a treatise in law. And that is exactly what a judgment is not meant to be.” 9 9

Jos. Peter D’Souza, The Law’s Delay, Asia Folk School Online, http://afs.ahrchk.net/mainfile.php/article/3/

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

Delays in the courts, along with the associated costs and the mystique surrounding the legal profession and judges, prove to be the chief reasons why the populace view the courts and suits with dread and this has reflected in the amount of support and enthusiasm ADR has garnered in the two states of the country where it is being practised in conjunction with the courts.10

It must however be noted that the judiciary is well aware of the problem of delay in the courts and for a reasonable time now has been involved in research and considerations as to how to remedy the problem. One of such attempts was the introduction of the Lagos State Criminal Procedure Act Rules in 2004. These rules were put in place to ensure the efficient expedition of criminal cases within the state and to lay down a new code of practice that would reflect in the way lawyers deal with cases in relation to the courts.

2.2

GENERAL FACTORS CAUSING FOR INEFFICIENCY

There are countless factors that pose problems to the smooth running and effectiveness of our legal system. They span a wide range of issues and are worthy of mention because in their own respective ways, they hinder the perceived efficiency of our Nigerian legal system

10

Lagos State and Abuja High Courts

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

For one, it has been argued that we pay too much homage to our colonial masters in that our legal system is a replica of theirs in terms of structure, hierarchy and practice. The extent to which as an independent and sovereign nation we blindly follow a system that is proven to have a few faults here and there is questionable. One of the most traumatic of ideas about our fashioning our system on English Common Law is what is known as the Received English Law and Statutes of General Application. By Statutes of General Application are meant all laws in England before or as at January 1, 1900 that are deemed applicable in Nigeria to date. These laws are in the greater part considered the foundation of our Case Law. However, it is daunting to note that most of these laws have been repealed or modified in England via subsequent statutes and case law or judicial precedents, but we still apply them as they were over a century ago. As such, a good deal of our case law history reflects some illogical and foreign decisions because we failed to update our law. Hence our law in part is impractical and insensitive to the developments of the law in our day. As a country with a more diverse cultural heritage and comprising countless ethnicities, would it not have been to our good to embrace the dynamism of the law by designing a system more suited to our national needs?

Many have argued that the problem of judicial systems around the world is litigation itself. Litigation puts the parties involved in a stance of opposition whereby the resolution of the disputes between them are no closer at the end of

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

the case than at the beginning. In fact, litigation in the true sense of it cannot be said to be a resolution of disputes but a mere apportioning of right and wrong, because the parties thereto do not have their prior relations restored, but in most cases further destroyed.

The question of personnel has also been of major concern in the legal system of Nigeria and indeed, all over the world. Although most minds would travel to the judges as the personnel of the courts, but there are a host of other personnel who turn the wheel of the judiciary and these include the registrars, clerks, wardens, etc. All these must perform their duties with a deep sense of responsibility and diligence if justice is to be done, and fast too.

Where the judges are concerned, it has been posited for a long time that there is an inadequate number of judges in the country. Perhaps there should be more judges to man the courts presided over by individual judges. This is because the caseload before each judge on a monthly basis is so high that it is no wonder that cases are delayed for endless months before they are brought before the judge for hearing and then take years to be concluded! The ever-increasing number of cases are also most likely to cause these judges to fall prey to the law of diminishing returns in dealing with each individual case. For example, in the Magistrate and High Courts of Kaduna State, the following cases were filed in the 1997 and 1998 legal years:

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

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Civil Cases filed = 1,800

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Criminal Cases filed = 890

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Criminal Cases Disposed = 486 11

For the years 1998 and 1999, the data are as follows:

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Civil Cases filed = 4,098

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Criminal Cases filed = 2,781 12

The immense increase in the number of cases filed at both courts show that cases are forever on the increase and because of this, the number of judges should be increased so that these cases do not fall too heavily on the few judges we have at present.

Where specialisation is concerned, it is argued that in normal litigation as opposed to ADR, the parties do not have a say about what judge their case is allocated to, irrespective of whether he has expert knowledge of the field in question or not. Views differ as to whether judges should specialize, or whether the judicial system itself should departmentalize. On the whole, it is true that the legal knowledge and experience required of judges in the following courts are not the

11

C. N. Ojukwu and O. E. Briggs, Developing Justice in Developing States – The Nigerian Experience, p. 4 -5 12 Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

same: criminal court, civil court, land court, constitutional court, industrial court, and international court.13

In all there are numerous reasons why the judicial system of Nigeria is laden with problems. These problems should be visited with a strict sense of urgency and addressed if there is going to be restored hope in the courts of our land. Notwithstanding the fact that the judges are not in the habit of welcoming outside opinions and advice, it would not be out of place for them, realizing the depth of the need, to solicit the services of high profile management consultants to study the system and proffer suggestions and solutions for the development of the courts and of the judiciary in Nigeria.

13

Sir Adetokunbo Ademola, Personnel Problems in the Administration of Justice in Nigeria, Law and Contemporary Problems, Vol. 27, No. 4, African Law. (Autumn, 1962), pp. 578.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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