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Documenti di Professioni
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CHAPTER TWO
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
It is this dissatisfaction that has led to the exodus from the traditional means of
however, we can still consider the shortcomings of our legal systems and identify
2
Ibid. p. 1
3
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.
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
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
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’.
lawyers who employ every trick of the trade in their arsenal to ensure that cases
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.
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.
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
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
the Magistrates Courts are supposed to sit at 0830hours, litigants and accused
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
bottlenecks are created. Once one case or judgment is delayed, a ripple effect is
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.
7
Ibid.
8
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.
is a trial by jury) adjourn for only a few hours after concluding hearings and
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
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 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
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
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
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
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
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
Many have argued that the problem of judicial systems around the world is
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
because the parties thereto do not have their prior relations restored, but in most
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
Where the judges are concerned, it has been posited for a long time that there is
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.
For the years 1998 and 1999, the data are as follows:
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.
to ADR, the parties do not have a say about what judge their case is allocated to,
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,
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
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
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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