‘NJC Should Support ADR Practice in Nigeria’

In 2002, Lagos State quietly made history, as the first in the West African sub-region, to conceive of, and actually launch a truely court-connected Alternative Dispute Resolution Mechanism, which gave birth to the Lagos Multi-Door Court House (LMDC). While the LMDC has since grown in leaps and bounds, the initiative has been replicated by several other States in Nigeria, and the Federal Capital Territory. How has the journey been so far? What value has the LMDC added to justice delivery in Nigeria’s busiest judiciary? What are its potentials? What has been the attitude of Lawyers and Judges? For answers, Onikepo Braithwaite and Jude Igbanoi sought out the Chairman of the LMDC Governing Council, Hon. Justice  Adesuyi Olateru-Olagbegi, the erudite jurist, who recently retired from the Lagos State Judiciary. He spoke extensively on the LMDC, and also the current crisis that seems to have engulfed the Nigerian Bar Association, of which he is a past General Secretary

What is the Lagos Multi-Door Courthouse (LMDC)? What are its aims and objectives? What is meant by the LMDC being a “Court-connected” Alternative Dispute Resolution (ADR)? How does this differ from dispute resolution say at the Chartered Institute of Arbitrators?

Simply put, the Lagos Multi-Door Courthouse (LMDC) is a Court-Connected Centre for the settlement of disputes that are resolved by applying appropriate Alternative Dispute Resolution Mechanisms as for instance Mediation, Arbitration or Neutral Evaluation.

The Centre started operation in 2002 and its operations were regulated by Practice Directions under the hand of the Chief Judge of Lagos State. It was given a statutory status by the enactment of The Lagos Multi-Door Courthouse Law 2007 Laws of Lagos State as amended by the Lagos Multi-Door Courthouse Law 2015. I will refer to it in this interview as the Law. It receives subvention from the Lagos State Government, to fund its operations which mostly covers the payment of fees for its Staff, Mediators and Arbitrators.

The Centre is under the Law an independent non-profit body corporate with perpetual succession and a common seal.

The aims and objectives of the LMDC are clearly defined in section 2 of the Law. These are: –

1. a) To enhance access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes.
2. b)  Minimise citizen frustration and delays in Justice delivery through Alternative Dispute Resolution.
3. c)  Serve as the focal point for the promotion of Alternative Dispute Resolution.
4. d)  Promote the growth and effective functioning of the justice system through Alternative Dispute Resolution methods.

The LMDC is said to be Court-connected, in that although its doors are open to the World at large, it has a unique and imaginative partnership with the High Courts and Magistrate Courts in Lagos State. Thus LMDC feeds substantially-not wholly on ADR-amenable cases from these Courts. Under the 2012 High Court Rules, cases may come to the LMDC straight from the Courts Registry on being filed or from the Courts through referral by them.

Where settlement is achieved, the parties sign the terms of settlement, which terms are endorsed by designated ADR Judges. Such terms of settlement assume the quality of the judgement of the Courts and are therefore, enforceable under the Sheriffs and Civil Processes Act.

In other words, the endorsement by the ADR Judge increases the efficacy of the settlement. Imagine therefore, a Court where the procedure is informal, confidential, consensual, party-driven, preservative of the pre-existing cordial relationships between both parties and where all parties are winners. That is the LMDC.

How are matters referred to the LMDC? Does the LMDC handle all types of matters, or is it limited in its scope of activities? What are the advantages of using services of the LMDC as opposed to litigation?

In addition to its Court–connectedness, LMDC is open to the Public under its “Walk– In” programme.

During this Settlement Week for example, banks by themselves or through Debt Recovery Agents have by-passed the Law Courts and filed several recovery matters. The number is increasing every year. Beyond the figures, the prospect is that over time, approaching LMDC as a first port of call for recovery of debt will be the norm, whilst approaching the Law Courts will be the exception. It is cheaper at LMDC, it is final and it preserves good Bank/Customer relationships.

Apart from LMDC being Court-connected in the way I have explained above, there is no difference between LMDC and other ADR centres, as to the mode of Dispute Resolution- the applicable Laws and principles are similar. In particular, every Arbitral award is amenable to the provisions of the Arbitration and Conciliation Act.

As to subject matter, LMDC mediates and arbitrates virtually all manner of civil cases. Contract, Tort, Commercial, Libel, Finance, Bank and Customer, Mortgages etc.

Whilst LMDC has no powers to dissolve a marriage, it can and regularly mediates ancillary Matrimonial reliefs e.g. Custody of Children and Maintenance claims.

Again whilst LMDC has no powers to pronounce on declaratory reliefs, it can, and does regularly, entertain Trespass and Damages Claims.

People have the impression that ADR is very expensive, how true is this? How can the services of the LMDC be made available to the less privileged members of society, who cannot afford to pay for expensive ADR?

On the impression that ADR is expensive. I have myself heard those allegations made. When I was still on the other side, parties sometimes resisted court referrals to Arbitration, on the basis that they were expensive.

When this Governing Council was inaugurated, similar complaints were made by the NBA Representatives on the Council, Mr. Dotun Adetunji Chairman of NBA Ikorodu branch (as he then was). His complaint essentially was that having paid filing fees in a matter at the High Court Registry, it was burdensome to pay another set of fees in the same matter at the LMDC.

We found the argument attractive and as we are always eager to court the buy-in of Lawyers, Council promptly directed the waiver of payment of Administration fees in all cases referred to LMDC by the Courts. We hope that Lawyers and Parties will reciprocate the gesture by co-operating with our Mediators in this place:

Although LMDC charges fees on a graduated scale in all “walk-in” cases, no fee whatsoever is charged when such cases are filed under the “Settlement Week” programme. The message to the world is “settle your Matters for free at LMDC during settlement week”

In the case of indigent parties, access to justice is always free, as they are at all times exempted from payment of fees.

In the 15 years of existence of the LMDC, what are its achievements? Has the LMDC had any impact on the decongestion of the Courts? How well has ADR been embraced by the public?

LMDC has made modest achievements in its 15 years of existence. It has imprinted on the minds of the legal community an ADR- consciousness. The consciousness that when a dispute arises, a party does not think of resolution within the ambits of the Court System alone; there is an awareness that there is an option.

A major objective of LMDC is to de-congest the Courts. Has it made any impact? I would say yes, but not as much as we would like. Let me explain this a little more.

In any dispute, if one party turns up and makes a submission, but the other party to the dispute is absent and/or defaults in making a submission, the matter will be stalled.

That scenario constitutes the biggest problem that we encounter. Of the cases where both parties turn up, the settlement rate is impressive- about 60%.

Our target is to achieve 80% settlement rate of all cases mediated in year 2020?

Two facts need to be admitted:

We can speak of decongestion in respect of two different situations namely (a) “Walk In” matters which come here directly, without going through the Court System (b) ADR Track and Court referrals, which go through the court system.

In the first situation, most “Walk-In” matters would have ended up in court, if they did not come here. Therefore, when they are settled here, the Courts are thereby decongested in a way.

Statistically in terms of patronage and settlement rate, “Walk-In” cases brought by members of the public, have fared much better than Court-referred cases-in terms of absolute numbers and settlement rates.

In the second situation, the number of cases referred to the LMDC by the Courts as against the total number of cases in the Dockets of the courts is rather modest.

Similarly, the number of settled cases taken against the total number of referred cases is also modest. However, if out of 100 Court cases, LMDC settles X no of cases, whatever the value of X, 100-X is less than 100- there is some decongestion.

As the saying goes in some part of the Country, N10.00 may be a small sum of

money, but a person to whom it is given is on a higher pedestal than a person who loses N10.00. The way Termites destroy wood, is different from the way that an axe can, the former is very gradual, whilst the latter is very drastic. In both cases, damage is done to the wood.

Other than the mathematics of the matter, the benefit of one settled case goes beyond the solitary case, because you have won a convert and a potential Salesman.

The hope is that eventually, there will be an attitudinal change amongst Stakeholders, which will make ADR the first option in dispute resolution. This will stem the high tide of case inflow to our Courts. Otherwise, there will be a System collapse

The yearly Lagos Settlement Week Programme is a major ADR programme of the LMDC. During the period the Judges of the Lagos State High Courts do not sit, in order to make their Court rooms available for LMDC Mediators to settle disputes in previously selected ADR-amenable cases of the Courts. Council has increased the ‘Settlement Week’ Programme to twice a year– June and November, instead of the former once a year. This is to maximise the opportunities for settlement.

Other than the ‘Settlement Week’, the other accomplishment of the LMDC includes the introduction of Banking Track under its Commercial Intervention Strategy. Under this Programme, subscribing banks by-pass the Courts, and refer cases directly to LMDC for intervention, using cost-effective and speedy ADR mechanism.

There is also the ADR-Tracking procedure of all ADR amenable cases, which now come to the LMDC straight from the Courts Central Registry. The procedure has now been incorporated into the 2012 Civil Procedure Rules of Lagos State.

In year 2013, LMDC commenced the Training and accreditation of mediators, under its Mediation Skills Training Programme, using a curriculum that was developed by the British council. This is followed by a 6 months Mentorship Programme.About 100 persons have been trained so far. They are drawn from various disciplines and include Lawyers, Accountants, Medical Practitioners, Engineers and Architects.

In 2014, LMDC began a Mediation Advocacy Training in collaboration with the Standing Conference of Mediation Advocates (UK), to train Lawyers in the art of client representation in mediation.

Council has reviewed the Vision and Mission statements of LMDC to inspire its Mediators, Management and Staff towards achieving excellence in Mediation Practice. In this regard LMDC has also adopted Key Performance Indicators to drive and monitor productivity. As stated earlier on, we seek to achieve 80% settlement rate in all mediated cases by year 2020. This is how far we have gone.

Why do you think that Lawyers that practice ADR, should be accorded the rank of Senior Advocate of Nigeria?

We are not advocating that Lawyers who practice ADR per se- and do nothing more than ADR, should be accorded the rank of Senior Advocates of Nigeria. No.

As you know, Applicants for the conferment of the rank of Senior Advocate of Nigeria are required to show that they have acted professionally as Counsel in so many number of cases, in both first instance and Appellate Courts. The more cases a Counsel handles in these Courts therefore, the better his prospects to meet this criteria.

It is a natural instinct of a Counsel to choose to remain in the Courts, rather than go to the LMDC or other ADR Centres, to settle disputes that they are involved in. In the process the Court of Appeal and the Supreme Court are inundated and congested with all sorts of frivolous Appeals, not just from final decisions of the lower Courts, but also in respect of their interlocutory decisions.

In a jurisdiction like Lagos State, where over 7,000 cases are filed each year, congestion is at its peak not just in these Courts, but also in the Court of Appeal, Lagos Division.

The Supreme Court has over the years, admonished parties to wait until conclusion of the matter and if dissatisfied with the final decision, they may then appeal the final decision as well as the interlocutory ones.

The admonition is honoured more in breach than in observance. One of the reasons for this, is Counsel’s quest to maximise the Court matters that he handles and thus, maximise his chances to satisfy the SAN conferment criteria.

In these circumstances, an enormous amount of ADR amenable cases are delayed and kept waiting on the queue in the Court System for Litigation. It is not humanly possible for the Judges of the various Jurisdictions, to cope with the volume of cases unleashed on them, they just do the bit they can and leave the rest and the ritual continues.

If the criteria for conferment of SAN adds participation in ADR practice (in at least one case) to participation in matters in the first instance and Appellate Courts, Lawyers will be won over to arbitrate or mediate their matters. They will have a good motive to come on board.

What LMDC is urging the NJC to do therefore is to support ADR practice and recognise it as a component index in the criteria formula. Lawyers will thereby, see the relevance of ADR to the realisation of their ambition. This will go a long way to decongest the Courts.

Do you agree with the recent initiative of nomination of Lawyers for the position of Supreme Court Justices?

I agree with the proposal to nominate lawyers for appointment to the Appellate Courts, because it is constitutional to do so and because it will add some vibrancy to the Courts.

Under the 1999 Constitution as amended, the requirement for appointment of persons to the Superior Courts of record are at least 10 years post–call for State and Federal High Courts; 12 years post-call for the Court of Appeal and 15 years post-call for the Supreme Court- at least that is the theory of it, if not the practice. In some States, you may not get to be elevated to the High Court until you have done 20-25 years. The question is this: if you will not practice it, why preach it?

The Judiciary has to be innovative, to deal successfully with the emerging challenges of our time. Some trial Courts are perceptively overwhelmed by the Lawyers who appear before them, and that should not be the case. The ends of justice are better served when there is some equilibrium of forces between the bench and the bar

In 2001, Lagos State witnessed the appointment of 25 Millennium Judges. It was historic not just in the large number, but also in their sourcing. They were brought in not just from the usual suppliers– of Ministry of Justice, Magistrates and Private Practitioners, but also from the Universities– even from Banks and the Industrial sector.

Look at them now – they are doing very well mostly diligent, fearless and Incorruptible. They professionally match any Lawyer any day– pound for pound.

It took the innovative minds of Hon Justice Christopher Segun, Prof Yemi Osibanjo, SAN, and Asiwaju Bola Ahmed Tinubu being respectively the Chief Judge, Hon Attorney-General and Commissioner for Justice and Governor respectively (at the time), to accomplish the historical feat. Such courage and innovation, are required now in considering appointments to the Courts of all the various jurisdictions.

In the same vein nothing stops a deserving High Court Judge or Judge of the Federal High Court, from being appointed straight to the Supreme Court. The materials are there and I hope that the Country will use them.

Your retirement from the Bench in 2014, drew so much emotion and comments over the retirement age of the High Court Judges. In your case, many including Senior Advocates of Nigeria, pointedly canvassed for an upward review of the retirement age of the High Court Judges from 65 to 70, like Justices of the Appellate Courts. Would you say those calls are justified?

Yes, I was very humbled by several kind commentators. The issue of retirement age for all judicial officers is not a ‘cut and dry’ matter. In the High Court and in Federal High Court, the statutory retirement age is 65 years. In The Court of Appeal and in the Supreme Court it is 70 years.

It is in my view, more physically and emotionally challenging to sit in the High Court and in the Federal High Court, than it is to sit in the Appellate Courts. For one thing the Judges of first instance Courts conduct Trials which can drain you dry, particularly when you are dealing with loquacious witnesses and cantankerous petition-disposed Counsel. Every innocuous utterance of the Judge is subject to malicious interpretation. Over time though, you train yourself to absorb it all gracefully. Also, often times you have to write Rulings on the Bench over admissibility or other matters which spring up during trial. You may rise and retire to write your Ruling, but doing so frequently will be disruptive of trials. You therefore, develop an anticipatory antenna and get prepared for any eventuality. Furthermore, a judge in a first instance court sits alone. In difficult situations, he has no one to consult but himself.

In contrast, proceedings in the appellate courts are different in form. All that they have to adjudicate upon is already reduced into writing and previously notified to them, and there are no witnesses to contend with. You may not totally eliminate pranking by Lawyers, but it is easier to manage. In any case there will be at least 3 of you sitting together. You just listen to submissions, and adjourn for Ruling or judgement in most cases.

In other words, you are more likely burn out more quickly in first instance Courts, than in the Appellate courts. This probably explains the discrepancy in retirement age in the first instance courts on one hand, and in the Appellate courts on the other hand.

The irony of the situation however, is that, like wine, judges mature with age and should ideally not retire unless they have become adjudged to be un-productive or on account of ill health. There is in place now a scientific method of evaluation of Judges productivity, whereby you are expected to turn in a minimum number of cases quarterly. I would therefore, favour a situation where a judge may voluntarily retire at the age of 60, but compulsorily retire at 75, subject to good health and continuous good performance.

You served as General Secretary of the Nigerian Bar Association (NBA) and its National Financial Secretary, when the body could truly call itself the watchdog of the Nigerian society. You also served as Lagos Branch Chairman. What is your take on the present crisis stemming from Court’s nullification of the NBA’s 2015 Constitution and the call by some for A.B Mahmoud, SAN, the NBA President to step down? As one who has seen it all from the vantage points of the Bar and the Bench, what would be your suggested panacea to the ongoing crisis which seems to be tearing the body apart?

The last time that the NBA experienced a crisis in its fold was in 1992 during the Port-Harcourt Conference. It sent the NBA into limbo for many years. It diminished our status on the International scene, particularly in the international Bar Association (IBA), where the NBA was one of the largest National Associations. We suffered a loss of face. Before then, Nigeria had been honoured in having late Chief Idowu Sofola, SAN appointed as the First African Secretary-General of IBA.

Coming much later after him as Council Member, I had been appointed as Deputy- Secretary General (Africa West), then the crisis came.

We have luckily been back on track as a body for many years now. I attended the 2015 Abuja National Conference, and I marvelled at the huge turn out and quality of discourse there. I felt very proud to be an NBA member.

This present crisis is therefore very regrettable. It would appear, as a French King had allegedly said of his aides that “…. we have learnt nothing and forgotten nothing”.

When the story broke out, my gut reaction was “where are the NBA Leaders?”.

“Don’t they remember Port Harcourt?” The matter is currently in Court, but I do not think that the Court is the appropriate forum for NBA to settle internal disputes, such as the current one. Whoever wins in Court, it will leave the NBA fractionalised for some time to come.

At this time in the history of our Country, when fundamental issues which touch on the fabric of our existence as a Nation are being re-visited, the NBA which is ordinarily the most representative body in the conglomeration of nations which make up Nigeria, should stand up as one, and speak up in unison. It is the worst time to go into division.

Considering the scars left by Port-Harcourt crisis on the body of NBA and recognising the limitation of the Judicial System in reconciling disputants because of its ‘Victor’ and ‘Vanquished’ characteristics, it would be much better for the disputants, to discontinue the Court action and submit to Mediation which guarantees a “Win-Win” outcome.

Such Mediation may be brokered by the body of Chairman and Secretaries of NBA Branches or the body of past Presidents and National Secretaries or by a panel of Retired Judges. Any of these three options, will, in my view, produce a much more lasting resolution of the dispute than litigation.

You headed the 5-man Tribunal which investigated the civil disturbances that led to the death of the Managing Director of the Lekki Worldwide Investment Limited, Alhaji Tajudeen Disu. What was the nature of the Tribunal’s findings, and how has it helped to bring Justice to the aggrieved?

The Tribunal was set up in October 2015. We submitted our report in December 2015. By March 2016 the Lagos State Government published its White Paper on the Report. It is in the Public domain, as the White Paper is obtainable from the Lagos State Government Secretariat.

The report covered many subject areas, including the circumstances leading to the death of Alhaji Tajudeen Disu, the Late Managing Director of the Lekki Worldwide Investment Ltd., and the suggestions as to unravelling the mystery of “who dunnit”, issues relating to the Governments Acquisition of land in the villages and communities constituting the Lekki Free Trade Zone; Payment of compensation to the owners of such land; maintenance of Law and Order there; Relationship between the Communities and the Dangote Industries; Resettlement of the Communities; Environmental & Social Impact Assessment of the Communities; ways of Providing a Conducive Environment and Business activities in the zone; Creating Communication Channels between the Communities and the Government. Suffice to say that, we made over 25 recommendations, most of which were accepted by the Government in its white paper. Following the submission of the Report, we became functus officio of the matter.

I have not gone back there since then. As to what impact has been made on aggrieved persons on account of our findings and recommendations, that is the burden of Journalists. When you are a Chairman or Member of a Tribunal and your Report is not shelved, but acted upon by the Government, there is a feeling of accomplishment that you made a little contribution to Society; that is the way my Members and I feel.

Which would you recall as your most memorable case while you were on the Bench?

The criteria for identification of a memorable case is quite varied, as it may be on several grounds e.g. the novelty of the case, the complexity of the case, the high profile of the parties or the affirmation of your decision by the Appellate Courts.

Although, I can pick on one judgement or another that falls under one of these criteria, yet from my present perspective as a Mediator, what I revere as my most memorable case was a matter that I mediated on the Bench, very early in my Judicial career.

I will not mention the parties by name. It was between a husband and a wife and it was over property. It was 2 weeks to Christmas of year 2001, merriment was in the air. Briefly the facts were that the husband wanted to sell the matrimonial home in Lagos Metropolis, and move to a small apartment in the suburb of Lagos-two weeks to Christmas. The wife filed an action for a declaration that the house was their matrimonial home and the husband had no powers to sell it. She also filled applications for interim and interlocutory injunction, to restrain the sale pending the final determination of the suit. It was shown that the relationship between them had been strained for some time. This development worsened it. Neither party was presently contemplating a Divorce, but cohabitation had become one of convenience for both of them. When the application for interim injunction was brought to me in chambers, I ordered that the husband be put on notice and gave them a return date of 2 days.

The husband’s defence and strategy was simple. He claimed ownership of the property, and exhibited a copy of the land Certificate to prove his ownership. This fact was not contested by the wife, but she maintained that it was nevertheless, “not saleable”. It was on the face of it easy for me to deal with the application and dismiss it on basic principles that the applicant wife had no prima facie legal interest in the property to protect, as the title was in the husband’s name. I could do a Bench Ruling on the matter in minutes, and give them trial dates. If I did that and not protect the res, the husband could sell before the trial date through a private treaty, which negotiation was at an advanced stage. Instinctively, I rose and asked my Registrar to bring the parties and their Lawyers to my Chambers. It is worth mentioning that in all my career on the Bench, it was the first and only matter that I took in Chambers. All matters had to be in open Court, ex parte or not.

Back to the couple. Once seated the couple started raining abuses on each other– to my embarrassment and that of their Lawyers and my Registrar. The wife alleged that the husband’s motive to sell, was to throw her on the street and move in elsewhere with his woman friend. On his part, he abused his wife as being irresponsible. It was chaotic. I broke up the proceeding and adjourned it to another day.

It was at the second proceeding, that the husband stated he was indebted to his bank and unless he sold by private treaty, the house will fall under the Auctioneer’s hammer cheaply and humiliatingly. This revelation was not in his pleadings or affidavit or in any other record before me. The wife disputed the allegation and the mutual abuse resumed. But both Lawyers were matured, patient and good natured. The Lawyers pleaded with me for one more opportunity. I gladly obliged. When they came back on the third occasion, they were polite to each other. The Lawyers had apparently worked on each other’s client. Within 30 minutes, they struck an agreement. They ruled out any further cohabitation between them, but the wife agreed to the sale of the property whilst the husband agreed to buy his wife a “Jakande Bungalow” in Lagos metropolis. The terms were drawn up and duly signed, and I made the Terms my Judgement. Thus, it was a merry Christmas assured for the couple.

No judgement of any Court could have given ‘Victory’ to both parties. I felt a sense of fulfilment that justice had been served. Yet I did not have to make any finding of facts or of Law. It was a consensual decision of the parties facilitated by the Judge as a mediator would do. A litigated Court decision may have gone to the Appellate Courts and take years to conclude. The conclusion here took only days.

In retrospect, an agreement would not, in my view, have been possible but for the good faith and professionalism of the Lawyers on both sides.

It is on this note that I use this medium, to solicit for the support and cooperation of all Lawyers, in the quest to entrench ADR practice in Lagos State, to supplement litigation and broadened access to justice.