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Promoting Alternative Dispute Resolution through Court Rules: The Borno
State High Court (Civil Procedure) Rules 2012 in Perspective
By
Hadiza D. S. Magaji*
1. INTRODUCTION:
A modern civil justice system should offer a variety of approaches to settlement of
disputes in promoting access to justice. In recent years there has been renewed
emphasis on the Alternative Dispute Resolution schemes as a means of avoiding the
use of contested hearings in the formal court-based litigation and to ensure the most
fundamental right of access to justice for all in an easy way. These Alternative
Dispute Resolution (ADR) modalities are considered as an alternative to the formal
court procedure, which is less likely to fuel issues arising between parties, more likely
to induce the parties to resolve their conflicts in an amicable manner preserving the
future relationship between them. It reduces cost, delay and loss of energy to a
significant extent. Following the considered advantages of ADR almost every country
of the world has introduced ADR system in its justice delivery system and this has
paved the way to the promotion of access to justice for all. Dispute resolution is a way
of resolving conflicts, whether by determining it or managing it, but the decision to
use the dispute resolution processes should be made on the basis of a range of factors
including how best to serve the specific interests of the parties and how best to ensure
that justice is accessible, efficient and effective for the parties involved. In effect, they
complement judicial procedure, in so far as the methods used in the context of the
resolution are often better suited to the nature of the disputes involved. Analyzing the
different mechanisms of the non-court based practices and modalities under the court-
connected-center, there is the need to show the fairness, efficiency and effectiveness
of the processes towards achieving a just end to dispute resolution and promoting its
use to get access to justice.
The paper will also provide some additional recommendations for the complete
success of ADR towards the effective, non-discriminative, speedy and easy access to
justice for all.
2. BACKGROUND:
This paper will examine Alternative Dispute Resolution processes as contained under
the Borno State High Court (Civil Procedure) Rules 2012. However, this is predicated
on the concept of the Amicable Settlement Corridor established by a Practice
Direction signed into law on the 1st day of August 2009 by the chief judge of the state
Hon. Justice Kashim Zannah.
The society has become more complex, so also the process of justice administration.
A lot of dissatisfaction has been generated by the process of litigation with its
cumbersome procedural system, coupled with the unencumbered access by litigants to
the courts. The poor state of the judiciary took its toll on the court users who had to
bear the cost of litigation. Hon. Justice Chukwudifu Oputa, JSC (as he then was),
Retired, made this remark on the state of the judiciary when he said thus:
The administration of justice in our court suffers from two major
constraints; namely delay and expense, if it takes 7-10 years to
decide a case, a prospective litigant, may decide not to go to court at
all. But the one thing that frightens litigants from the court is the
inordinate expense incurred with the result that a very large
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proportion of our countrymen are, as it were priced out of the legal
system.1
The complex nature of litigation generated a lot of delays in most cases. In the words
of Idris Legbo Kutigi CJN (as he then was): The trend nowadays where we see cases dragging on for long periods for
reasons which in most cases are attributable to legal practitioners and other
stakeholders in the administration of justice is not tenable. Some of these
reasons range from unpreparedness of counsel, frivolous and baseless ex
parte applications, missing case files, lack of proper advice to clients and
host of others. In addition, legal practitioners have become too fixated on
the use of litigation as a means of dispute resolution without recourse to
the other means such as Alternative Dispute Resolution Mechanisms, even
when the complex attributes of litigation would not be convenient or
beneficial to justice of the case. This means that, there is a gap between the
average Nigerian lawyer and the needs of society to resolve disputes
speedily and in less expensive manner. To this end, the courts are
becoming dumping ground for all manner of cases. I will therefore, call the
attention of the members of the profession to review their legal practice
and process and avoid actions on their part that will cause delay in trial of
cases in court by adopting case management strategies which are in accord
with the resources available to them and which would allow them time to
plan the conduct of their cases in line with the case management, strategies
adopted by the court such as pre-trial conference and front loading of
evidence. The Bench has embraced ADR and some state jurisdictions have
even established the Multi-Door Courthouse. I therefore urge the
leadership of NBA to further sensitise their members on the importance of
this concept so that they are carried along.2
3. LEGAL FRAMEWORK FOR ADR IN NIGERIA
Domestic Arbitration is statutorily governed by the Arbitration and Conciliation Act3,
which is modeled on the United Nations Commission on International Trade Law
(UNCITRAL) Model Law on International Commercial Arbitration. The Act also
provides for the Recognition and Enforcement of Arbitral Awards; it implemented the
1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, and adopted the Model Laws internationally accepted provisions for the
conduct and regulation of arbitration.4
Alternative Dispute Resolution is relatively a new concept; Professor Frank Sander of
the Harvard Law School coined the word “Alternative Dispute Resolution” some 33
years ago after studying the various legal systems including African and Asian
systems of settling disputes.5 It was in a quest for a judicial panacea to overhaul the
justice process and ameliorate the problems in the traditional court system that Frank
Sander presented a paper titled “ Varieties of Dispute Processing”, at a national
conference held by the American Bar Association in April 19766. He recommended
the reformation of the Court system and procedures with the objective of
* pnm, LL.M,BORNO STATE JUDICIARY DIRECTOR, HIGH COURT [email protected] &
[email protected] 08035120722 & 08023580533 1. Goodluck .O.O.. An Overview of the Modus Operandi of the Multi Door Court Houses, Ibrahim,A.A, etal, (ed), Alternative Dispute Resolution and Some
Contemporary Issues: Legal essay in honour of Hon. Justice Ibrahim Tanko Muhammad CON, Justice of the Supreme Court of Nigeria. Published by
advocate chambers, faculty of law, Ahmadu Bello University, Zaria (2010).p256.
2 .Nwaneri. A.C. An Appraisal of the ADR Process in Nigeria, Ibrahim,A.A, etal, (ed), Op:Cit, p349-350
3. CAP A18 Laws of the Federation of Nigeria, 2004.
4 Enenche . E. The growth of Alternative Dispute Resolution (ADR), Ibrahim.A.A etal, (eds), Op:Cit, p430.
5 Ibid.p.426.
6 Goodluck.O.O.opcit.p257
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accommodating these dispute options under a single roof7. That is the reason for
others calling it Amicable Dispute Resolution and those who still believe that it is
originally rooted in Africa, calls it African Dispute Resolution8. Whatever you may
wish to call it, the fact remains the same that is there is an urgent need to supplement
litigation through more peaceful and user-friendly options for resolving disputes.9
ADR has great potentials to produce viable and practicable win-win outcome for
disputants.
The Practice of Alternative Dispute Resolution is still emerging in Nigeria; currently,
there are twelve Multi-Door Courthouses in twelve State Judiciaries in Nigeria10, all
of which have been duly admitted into full membership of the Association11. Indeed
only these states of the federation have institutionalized the practice through the
concept of the multi-door courthouse12. At the moment apart from the practice of
arbitration, which is regulated by the Arbitration and Conciliation Act13, the practice
of ADR is largely not regulated by statute.14
4. DEFINITION OF THE TERM ADR
The term refers to mechanisms like Negotiations, Mediation, Conciliation and
Arbitration. Other hybrid processes have also been identified such as Med-Arb, Mini-
trial, Early Neutral Evaluation and Expert Appraisal. They seek to supplement the
traditional court trial, which is adversarial in nature. These mechanisms provide
disputants with variety of choice, to either employ litigation or apply one of the
alternatives; or in some instances combine the two and or the other several
mechanism in the resolution of their dispute.15 As printed out by David Fairbank,
thus: ADR is an excellent vehicle to resolve disputes in an economical, quiet,
informal and confidential way that preserves the dignity of the parties.16
The global societal trend towards dispute resolution as a universal phenomenon is fast
growing into many judicial systems. One point on which the global community agrees
in particular is the need for a legal system that meets up with contemporary trends.
The need for universally applicable, cost effective, user friendly and speedy means of
dispute resolution is imperative to cope with the speed and complexity at which
disputes arise today.17
Over the years Heads of courts in Nigeria made concerted effort in reforming the
justice sector to bring in place speedy, efficient and just procedural rules of court to
address the concern of the society on delay and other negative developments in the
process of justice delivery18 . These efforts largely manifested in developing and
7 . Ibid.p258. 8 .Barkindo. I. Sulhu in Islamic Constitutional Law: The Role of Emirates in Dispute Resolution, Ibrahim.A.A etal, (eds),Op:Cit, :p218.
9 .Ibid.
10 They include Lagos, Abuja, Kano, Akwa Ibom, Kaduna, Abia, Cross River, Delta, Katsina, Borno, Akure and Bayelsa
11 AMDCN Resolution A Newsletter of the Association of Muiti-Door Courthouses of Nigeria. 2015.Vol.2.p2
12. Nwaneri. A.C. op-cit.p.347
13. CAP A18 Laws of the Federation of Nigeria, 2004,
14 . Op cit.p346.
15. Aina .K. ADR and the Relationship with Court Process: Nigerian Bar Association Annual General /Delegates’ Conference Abuja , paper delivered,
2004, p2
16 Available at http://www.multidoor.org. Accessed on 6/6/2004..
17 .Magaji.H.D.S . The Role of the Traditional Rulers in Alternative Dispute Resolution, A case study of Borno Amicable Settlement Corridor.
Alternative Dispute Resolution and Some Contemporary Issues Dawud.K.A. etal, (eds):Published by advocate chambers, faculty of law, Ahmadu Bello
University, Zaria (2010). p407
18 . Mshelia.H.Y. Pre- Trail Conference: Prospect and challenges under the Borno State High Court (Civil procedure) Rules 2012. Paper presented at
NBA Maiduguri/Biu branches Law week on the 19th January 2015.p1.
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reforming Rules of Court in line with international best practice to enthrone speedy,
efficient, cost effective and just justice delivery system19.
5. THE HIGH COURT (CIVIL PROCEDURE) RULES 2012
The Borno State High Court (Civil Procedure) Rules 2012 brought in three major
reforms among others. These are the alternative dispute resolution processes, the
absolute front-loading system and Pre-trail conference.
However, the High Court of the States of the Federation in the determination of
causes brought before them are empowered by their various High Court Laws to:
promote reconciliation among the parties thereto and encourage and facilitate the
amicable settlement thereof.20 The Borno State High Court (Civil Procedure) Rules
2012 was signed into law on the 3rd day of January 2012 and recourse to the use of
ADR in the rules is by virtue of Order 61 Rules 1-19, divided into sections A-E.21 A
general reference is made to Alternative Dispute Resolution processes.
Section A- Reference to Arbitration:
For the nomination and appointment of arbitrators, and such other issues involved
with respect to that, the section provides thus: -
1. Where a matter is referred to one or more arbitrators under the provisions
of the High Court Law, the arbitrators shall be nominated by the parties as
agreed between them.
2. where the parties could not agree to the nomination, or the persons nominated refused to act, the Court shall appoint the arbitrators.
3. The Court shall by an order under its seal refer the matters to the
arbitrators for determination and shall fix a time for the delivery of the
award, and the time fix shall be stated in the order.
4. Where reference is made to two or more arbitrators, provision shall be
made in the order for their difference of opinion in the appointment of an
umpire where necesary or that decision shall be with the majority.If they
cannot agree, the court may determine.
5. When a reference to arbitration is made by an order of court, the process of
examining the parties and witnesses by the arbitrators or umpire be the
same as in ordinary suits; and when a person attending as witness is not in
compliance with such process, or refusing to give evidence, or making any
other default is being guilty of any contempt during the investigations,
shall be subject to all the disadvantages, penalties, and punishments, by an
order of the court as they would incur for the same offences in suits tried
before the Court.
6. (1) When the arbitrators are not able to complete the award within the
period specified in the order for want of necessary evidence or information
or for other good and sufficient cause, the Court may, from time to time,
enlarge the period for delivery of the award, if it thinks it proper.
(2) Where an umpire is appointed for a case, it is lawful for him to enter
on the reference in lieu of the arbitrators, if they have allowed their time or
their extended time to expire without making an award.Whether they have
delivered to the Court or to the umpire, a notice in writing stating that they
cannot agree.
19 .Ibid.p1-2
20 .Section 22, High Court Law Cap 63, Laws of Borno State of Nigeria. 1994.
21 . Order 61, Borno State High Court (Civil Procedure) Rules 2012.
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(3) An award shall not be liable to be set aside only by reason of it not
having been completed within the period allowed by the Court, unless on
proof that the delay in completing the award arose from misconduct of the
arbitrators or umpire and or the award shall have been made after the issue
of an order by the Court superceding the arbitration and recalling the suit.
7. (1) If, in any case of reference to arbitration by an order of Court, the
arbitrator or umpire dies, or refuses or becomes incapable to act, the Court
shall appoint a new arbitrator or arbitrators or umpire in the place of that
person.
(2) Where the arbitrators are empowered by the terms of the order or
reference to appointment, and do not appoint an umpire, any of the parties
may serve them with a written notice to appoint an umpire and if within
seven days after the notice is served, no umpire is appointed, it shall be
lawful for the Court upon the application of the party having served such
notice as aforesaid and upon proof to its satisfaction of such notice having
been served, appoint an umpire.
(3) In case of appointment under this rule, the arbitrators or umpire so
appointed shall have the like power to act in the reference as if their names
had been inserted in the original order of reference.
8. (1) The award shall contain a conclusive finding, and may not find on the contingency of any matter of fact being afterwards substantiated or deposed to. (2) The award shall also comprehend a finding on each of the several
matters referred. 9. It shall be lawful for the arbitrators or umpire upon any reference by an
order of court, if they shall think fit, and if it is not provided to the
contrary, to state their award as to the whole or any part thereof in the
form of a special case for the opinion of the Court.
10. The court may, on the application of either party, modify or correct an
award where it appears that a part of the award is upon matters not referred
to the arbitrators and where the award is imperfect in form, or contain any
obvious error which can be amended without affecting such decision.
11. The court may also, on such application, make such order as it thinks just
respecting the costs of the arbitration, if any question arises about such
cases or their amount, and the award contains no sufficient provision
concerning them.
12. In any of the following cases the court shall have power to remit the
award, or any of the matters referred to arbitration, for reconsideration by
the arbitrators or umpire, upon such terms as it thinks proper –
a) If the award has left undetermined some of the matters referred to
arbitration;
b) If it has determined matters not referred to arbitration;
c) If the award is so indefinite as to be incapable of execution;
d) If an objection to the legality of the award is apparent upon the face of
the award.
13. (1) An award shall not be liable to be set aside except on the ground of
perverseness or misconduct of the arbitrators or umpire and any
application to set aside an award shall be made within fifteen days after the
publication thereof.
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14. If no application is made to set aside the award, or to remit it or any of the
matters referred, for reconsideration, or if the court has referred any such
application, either party may file the award in court, and the award shall
thereupon have the same force and effect for all purposes as judgment.22
Section B- Arbitration proceedings:
15. Every application in this rule to the Court under the Arbitration Law
provide thus: –
(a) to revoke an arbitration under section 3 thereof;
(b) to a ppoint an arbitrator under section 6 thereof;
(c) to stay proceedings under section 5 thereof;
(d) to remove an arbitrator or umpire under section 12 (1) thereof;
(e) to direct an arbitrator or umpire to state the reasons for an award
under section 15;
(f) to ask that a case on trial is the subject of an arbitration agreement
be referred to an arbitration under section 6(1) thereof;
(g) to set aside an award under section 12 (2) thereof;
(h) for declaration that an award is not binding on a party to the award on
the ground that it was made without jurisdiction or because the
arbitrator misconducted himself or that the proceedings was arbitrary
or that the award has been improperly procured under section
12(2) thereof;
(i) generally to determine any question arising in the course of or
concerning any arbitration agreement or proceedings referred to the Court;
(j) to subpoena a witness to attend under section 14(1) thereof, shall be
made by originating motion23.
16. The application in respect of rule 1 of this Order must be made on notice and
within 21 days after the award or the proceedings has been made or commenced.
Section C- refers to Enforcement of Arbitration award :
17. (1) An application to enforce an award on an arbitration agreement in the same
manner as a judgment or order may be made ex-parte, but the court hearing
the application may order it to be made on notice.
(2) The supporting affidavit shall-
(a) exhibit the arbitration agreement and the original award or in either
case certified copies of each;
(b) state the name, as usual or last known place of abode or business of
the applicant and the place against whom it is sought to enforce the
award;
(c) state as the case may require either that the award has not been complied
with or the extent to which it has not been complied at the date of the
application24.
Section D- refers to Registration of foreign Award.
18. Where an award is made in proceedings on an arbitration in a foreign
territory to which the Foreign Judgment (Reciprocal Enforcement) Act
extends and the award was in pursuance of the law in force in the place where
it was made, it shall become enforceable in the same manner as judgment
given by a court in that place and the proceedings of the Foreign Judgment
22 Order 61 Rules 1-14, High Court of Borno State (Civil Procedure), Rules, 2012.
23. Cap.8 LBOS; (Applications under Arbitration Law). Laws of Borno State; 1994.
24. Order 61.Rules 15-18, High Court of Borno State (Civil Procedure), Rules, 2012.
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(Reciprocal Enforcement) Act shall apply in relation to the award as it applied
in relation to a judgment given by that Court25
However, with the highlight above, the Borno State High Court ( Civil Procedure)
Rules, 2012 has taken care of arbitration in all its ramification. Even though there are
arguments as to whether arbitration is actually an ADR mechanism and there are
opinions that ADR is anything arbitration, this is because arbitration is adjudicating in
nature. The difference between it and litigation probably lie in the fact that the parties
can decide on the rules to apply, the arbitral tribunal, whether or not the arbitrator’s
award is binding and the host of other things, which they cannot do in the cause of
litigation. The argument therefore is that Arbitration is litigation in disguise26.
Section E – Alternative Dispute Resolution (A.D.R.)
This section provides for the application and meaning of the terms (ADR) -
The Alternative Dispute Resolution techniques and mechanisms are hereby
established in this Rule, which shall be guaranteed and put into effect by the issue of
Practice Direction, by the Chief Judge.
These Alternative Dispute Resolution processes include the means or methods of
resolving dispute short of litigation or outside courtroom. The processes vary in form
and substance which include Negotiation, Early Neutral Evaluation, Mediation,
Conciliation, Arbitration, Med-Arb, Expert Determination and Sharia Mediation or
Sulhu Mediation27.
However for the purpose of this discussion I shall limit myself to the following
mechanisms i.e. Early Neutral Evaluation, mediation, arbitration and sulhu that is
currently in use at the Amicable Settlement Corridor of the Borno State Judiciary
established by a practice Directions in 2009. The Borno Amicable Settlement
Corridor (BASC) is a court – connected dispute resolution center founded through the
joint collaboration of the Borno State High Court of Justice and the United Nations
Office on Drugs and Crimes (UNODC).28 It is a multi-faceted Amicable Settlement
Corridor, which provides a comprehensive approach to dispute resolution within the
administrative structure of the court. The “Corridor” refers to the additional options,
which the Borno Amicable Settlement Corridor (BASC) provides to supplement
litigation. Hence, instead of just one door of litigation leading to the court room, the
BASC provides four additional doors or options by which disputants can resolve their
disputes, namely: -
Early Neutral Evaluation;
Mediation door;
Arbitration door;
Sulhu door;
Any civil case may use the services of the BASC whether it is commercial,
employment, contract, matrimonial, inheritance or any other issue in dispute. The
BASC provides disputing parties and or their lawyers with the expertise of its skilled
and experience mediators, case Evaluators, Arbitrators and Hakam29
i) Early Neutral Evaluation: - This offers an impartial assessment of case strength and weakness. The evaluator will
assist the parties in settlement negotiations and /or renders an advisory opinion as to
settlement value if the parties so request. At the presentation of a dispute, the BASC
25 .Cap. 152 Laws of the Federation of Nigeria.1990
26. Aina. K. 0p-cit p, 4-5.
27 Order 61rules 19 (1-4(a-h)). High Court of Borno State (Civil Procedure), Rules, 2012.
28 Borno Amicable Settlement Corridor, The Mission Statement, 2008.
29 Borno Amicable Settlement Corridor, Practice Direction,2009.
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relies on sophisticated and responsive intakes services staffed by workers trained in
conflict management, communication and negotiation techniques. These intake
specialists are the first people disputants encounter when they seek relief for their
disputes, they diagnose the dispute and if they cannot resolve it on the spot, refer the
disputes to the appropriate “door” that will lead to resolution30.
ii) Mediation door: -
This is a voluntary and informal process in which a neutral third party, the mediator
helps disputants reach a mutually acceptable agreement. Whenever, by mutual
agreement or contract, the parties have provided for or agreed to mediation of existing
or future disputes under the auspices of the mediation door, they shall be deemed to
have made these rules, as amended and in effect as of the date of the submission of
the dispute, a part of their agreement31. Once the BASC has the parties’ agreement to
submit a dispute to alternative dispute resolution, it will administer the case under its
applicable rules or procedures or under such rules stipulated by the parties32.
Where parties to a dispute reached a settlement outside the provisions of this rule they
may jointly request in writing that the settlement be admitted at the Borno Amicable
Settlement corridor.33 Upon receiving such request the administrator or any officer
designated shall if satisfied about the voluntariness of the settlement remit the
settlement to court for enforcement in accordance with rule 1434.
Mediation provides great opportunities for parties to present evidence and to explore
interests together35. The mediator does not render a decision, but rather lets the parties
decide the terms of the agreement36. The mediator must be the one accepted by the
parties and mediation is usually conducted in three (3) stages. The first stage is before
the mediation where the commitment of the parties is obtained, the second stage is the
substantive mediation and the last stage is the conclusion and recording of the
outcome of the mediation37.
Any agreement reached by the parties during mediation can also be enforceable in
court as a consent judgment if the terms of settlement have been reduced into writing
by the parties and attested to by witnesses38. Where the matter is before a court, the
parties or counsel shall within 10 (ten) days of the agreement, have the agreement
filed with the court and take appropriate step to dispose of the action39.
iii) Arbitration door: -
According to Black’s Law Dictionary40, arbitration is a method of dispute resolution
involving one or more third parties which is usually agreed to by the disputing parties
and whose decision is binding. The Supreme Court adopted the definition offered by
Halsbury’s Law of England, in the case of Kano State Urban Development Board v.
FANZ Construction Ltd41. It was held that arbitration is the reference of a dispute or
30 Magaji .H.D.S. op-cit. pp411-412.
31 Borno Amicable Settlement Corridor. Mediation Door Rule, 2009.
32 Ibid. Rule 21. p12
33 Ibid Rule 14.p9. and Article 8(a) practice Direction.p19.
34 Article 8(b) Practice Direction.p19
35 Magaji . H D.S. op-cit.p411
36 Ibid.
37 Abubakar. M.D. Alternative Dispute Resolution and Restorative Justice: Challenges and Prospects in Nigerian Courts. Alternative Dispute Resolution
and Some Contemporary Issues, Ibrahim.A.A, etal, (eds), Op:Cit, p285.
38 Article 6.2. Practice Direction.p17
39 .Article 6.1.
40 Garner, A.B, Black’s Law Dictionary, Eight Edition, Thomson West Publication, P, 112.
41. (1990)4NWLR Pt 142.1.32.
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difference between not less than two parties for determination, after hearing both
sides in a judicial manner, by a person other than a court of competent jurisdiction.
In Nigeria, arbitration is governed by the Arbitration and Conciliation Act42, which
provides for the form, procedure, and practice. The decision or award of the arbitrator
as a general rule is enforceable in a court of law because the object of arbitration is a
final and binding award43.
If parties have agreed either mutually or by contract to submit for arbitration an
existing or future disputes under the auspices of the BASC or under the Borno State
High Court (Civil Procedure) Rules 2012, the agreement is in effect as made at the
date of the submission of the dispute. But the parties may by written agreement vary
procedures set forth in these rules44.
iv) Sulhu door: -
This is a voluntary and informal process in which a neutral third party(ies) called
Hakam or Hukkam help parties to a dispute reach a mutually acceptable agreement in
accordance with the Holy Qur’an and the Sunnah of the holy prophet(pbuh).
This door was designed locally to facilitate alternative dispute resolution in the state,
taken into consideration the environment, peculiar values, practice and beliefs of the
users. It aims primarily to capture certain cases that clog the litigation process and are
subjected to great delays while by their very nature they are amenable to amicable
resolution45. The sulhu door can be accessed through any of the following ways:-
a) Upon application by any person interested in the dispute personally or
through his legal representative.
b) Referral of a dispute to the door by a Court or Tribunal.
c) Referral of a dispute or matter by a community leader, or family elder etc.
d) Referral of a dispute in any manner not covered by (a), (b), or(c)46
Other areas where the Borno State High Court (Civil Procedure) Rules 2012 provides
for the use of ADR is the Pre-trial proceedings in matters brought before a court
during litigation. 47 These efforts largely manifested in developing and reforming
Rules of Court in line with international best practices to enthrone speedy, efficient,
cost effective and just justice delivery system in Borno State48.
What are Pre-trial conference or proceedings?
“A pre-trial conference is an informal meeting at which opposing attorneys (counsel)
confer with the judge, to work toward the disposition of the case by discussing
matters of evidence and narrowing the issues that will be tried. The conference takes
place shortly before trial and ordinarily results in a pre-trial order”49 The Pre-trail
conference seeks to revolutionize trial of cases in a transparent manner as opposed to
ambushes and scheming inherent in the old High Court (Civil Procedure)
Rules,1994.50
The rules of court 51 under consideration provide that the goals of the pre-trial
conference are:
42. Cap A18 Laws of the Federation of Nigeria, 2004,
43. Abubakar .M.D. op-cit.p284.
44 Borno Amicable Settlement Corridor, The Arbitration Door Rule 1. 2008.
45 .Borno Amicable Settlement Corridor. Sulhu Door Rules. 2008
46. Ibid .rule 1.
47. Order 25, Borno State High Court (Civil Procedure) Rules. 2012
48. Mshelia.H.Y.Op-cit.p1-2.
49. Ikeazor. A, Pre-Trial Proceedings & Front-loading In Nigeria. Published by Laurels and Prizes Law Publications, (2012), p2.
50 . Mshelia.H.Y. Op:Cct p2
51 .Order 25 Rule 1.
138
1. To dispose of all those matters that can be dealt with on interlocutory
application(s);
2. To give such directions as to the future course of the action as appear best
adapted to secure its just, expeditious and economical disposal; and
3. To promote amicable settlement of the case or adoption of alternative dispute
resolution52.
6. Promoting Amicable Settlement of the Case:
The court may exercise the option of encouraging the parties to settle the dispute
amicably if issues narrowed out of the pleadings disclose settlement as the best
option. It is doubtful whether a court can order settlement as peaceful resolution of
disputes depends more on the parties and their counsel than on the court. It is
submitted most respectfully however, that a court may disqualify itself from further
hearing a case, if at pre-trail proceedings it has encouraged peaceful resolution of the
dispute without success53.
This is because the court has formed its opinion and made certain findings, which
caused it to advise settlement out of court, and is bound to disclose these findings in
its pre-trail report at the end of pre-trail proceedings. A court may find itself unable to
retain the dispassion required for consideration of a party’s case if that party failed to
adhere to the court’s direction to settle out of court.54
The Pre-Trial Conference and Scheduling under the rules of Borno 2012 provide that:
1. (1) Within 14 days after close of pleadings, the claimant shall by a letter apply to
the Registrar of the Court for the issuance of a pre-trial conference notice as in Form
1755.
(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:
(a) disposal of matters which must or can be dealt with on
interlocutory application;
(b) giving such directions as to the future course of the action as
appear best adapted to secure its just, expedient and economical
disposal;
(c) promoting amicable settlement of the case or adoption of
alternative dispute resolution56.
(3) If the claimant does not make the application in accordance with sub-rule 1
of this rule, the defendant(s) may do so or apply for an order to dismiss
the action57.
2. At the pre-trial conference, the Judge shall enter a scheduling Order for:
(a) joining other parties;
(b) amending pleadings or any other processes;
(c) filing motions;
(d) further pre-trial conference;
(e) any other matters appropriate in the circumstances of the case58.
52. Ikeazor. A. Op -cit.P3
53. Ibid.p8.
54 .Ibid.p8-9.
55 .Order 25.Rule .1(1).
56 .Order.25.Rule1(2),a,b,c.
57 .Order 25.Rule.1(3)
58 .Order.25.Rule .2(a-e)
139
3. At the pre-trial conference, the Judge shall consider and take appropriate
action with respect to such of the following (or aspects of them) as may be
necessary or desirable;
(a) formulation and settlement of issues;
(b) amendments and further and better particulars;
(c) the admissions of facts, and other evidence by consent of the
parties;
(d) control and scheduling of discovery, inspection and production
of documents;
(e) narrowing the field of dispute between expert witnesses, by
their particulars at pre-trial conference or in any other manner;
(f) hearing and determination of objection on point of law;
(g) giving orders or directions for separate trial of a claim,
counter-claim, set-off, cross-claims or third party claim or of
any particular issue in the case;
(h) settlement of issues, inquiries and accounts under Order 27;
(i) securing statement of special case of law or facts under Order
28;
(j) determining the form and substance of the pre-trial order;
(k) such other matters as may facilitate the just and speedy disposal
of the action59.
4. The pre-trial conference or series of pre-trial conferences with respect to any
case shall be completed within 3 months of its commencement, and the parties
and legal practitioners shall co-operate with the Judge in working within this
time table, far as practicable, pre-trial conference shall be held from day to day
or adjourned only for purposes of compliance with pre-trial conference orders,
unless extended by the Chief Judge60.
5. After a pre-trial conference or series of pre-trial conference, the Judge shall
issue a Report. This Report shall guide the subsequent course of the
proceedings modified by the trial Judge61.
6. If a party or his Legal Practitioner fails to attend the pre-trial conference or a
scheduling or pre-trial order or is substantially unprepared to participate in the
conference or fails to participate in good faith the Judge shall:
(a) in the case of the claimant dismiss the claim;
(b) in the case of a defendant enter final Judgment against him.
Any Judgment given under this rule may be set aside upon an application
made within 7 days of the judgment or such other period as the pre-trial Judge
may allow not exceeding the pre-trial conference period. The application shall
be accompanied by an undertaking to participate effectively in the pre-trial
conference62.
7. The Judge shall direct the pre-trial conference with due regard to its purposes
and agenda as provided under this Order, and shall require parties or their
Legal Practitioners to co-operate with him effectively in dealing with the
conference agenda63.
59 .Order.25.Rule3(a-k)
60. Order 25 .Rules .4
61. Order 25 Rules.5
62.Order 25 Rules.6(a,b)
63. Order 25 Rules.7
140
7. CONCLUSION.
The current development in the country appears to presage further progress in the
quest to strengthen ADR system both through formal and informal ways within and
outside the aegis of the court system. We have observed in this discussion that the
Rules of Courts is a means to an end and not an end in itself. Therefore promoting
ADR system through rules of court is an efficient and effective way of enhancing
access to justice to the less privilege members of the society in the most cost
effective, timeous and transparent manner. Pre-trial conference in itself has the
prospect of improving tremendously our justice delivery system by eliminating delays
and wasteful cost in the trial process. Therefore constant reform and repositioning of
the rules of court to cope with the all-embracing and dynamic changes is a well come
idea. The judiciary should rely heavily on laws that could be adaptable to changes in
performing this important role,
8. FINDINGS AND RECOMMENDATIONS: There is no doubt that ADR is efficient and effective towards the promotion of access
to justice, yet there are some weaknesses for its effective implementation: -
Absence of appropriate institutional framework;
Lack of knowledge and awareness among the people;
Negative impression among lawyers regarding ADR;
Inadequate roles played by the legal practitioners;
These impediments can be removed by the implementation of the following
recommendation-
1. A broader perspective of the institutional framework for the effective
implementation of the ADR mechanisms should be put in place. That means
every case apart from the compoundable criminal offence should first go
through the ‘Borno Amicable Settlement Corridor’ before proceeding to
litigation, if settlement could not be reach.
2. Establishment of a statutory body entrusted with the responsibilities of policy
formulation, planning, promotion and monitoring the overall ADR system
will help,
3. The various actors like the state government, the local government bodies,
Nigeria Bar Association (NBA), Non-governmental Organizations (NGOs),
civil society organizations, Universities and the media should join the
judiciary in promoting the awareness, popularity and effectiveness of the
ADR mechanisms, since these mechanisms improves access to justice for all.
4. The judiciary can play an important role towards the effectiveness of ADR by
amending the various statute’s including the compoundable criminal offences
as an avenue for ADR.
5. To achieve greater success through ADR mechanisms in the state, the attitude
of lawyers and judge’s alike must change.