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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 hkanumbu@yahoo.com &

hkanumbu@gmail.com 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.

135

(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.

136

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.

137

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.