By Michael K. Bielonwu MCIArb.
Litigation as a preferred mode of dispute resolution as against what is obtainable under our various raditions and culture may be mainly due to expansion in the growth of cosmopolitan cities worldwide. Further, some believe that other modes of dispute resolution do not have a binding effect on the disputants who consider themselves at liberty to accept or reject the outcome of such processes.
However, the reality today leaves much to be desired as the judiciary currently struggles with a baggage of issues that bear little importance to substantial justice, which has eroded public confidence in the Judicial system. The system is prolonged, riddled with corruption, blind to the plight of the litigants before it, Etc. No wonder the saying, the judiciary is the last hope of the “common man”.
Due to some of these reasons mentioned above, people now use various forms of self-help like thugs, juju, the police and other security Agencies (who lack jurisdiction in civil matters) to settle their disputes than approach the courts. Therefore, in a bid to examine the problem at hand and how ADR, mainly arbitration, can be used to halt the slide of Nigeria into total anarchy, we shall consider the following
- The problem of delay encountered in litigation;
- The critical factor responsible for the delay of cases in Court;
- The alternative of arbitration as a way out of the problem of delay bedevilling
- The current state of arbitration practice in Nigeria.
- A possible amendment to the extant law.
THE PROBLEM OF DELAY ENCOUNTERED IN LITIGATION.
Litigation which is the process of carrying on a lawsuit is the primary mode of dispute resolution today; hence other methods like arbitration, negotiation etc., are jointly referred to as Alternative Dispute Resolution. However, even though litigation is the primary mode of dispute resolution, a sample of general opinion shows a general loss of confidence in it as a mode of dispute resolution, due mainly to the level of delay, among other problems, encountered in it.
Instances where cases filed in court last for years, some even outliving the litigants who instituted such actions, sometimes owing to the inability of the judge to drive the process or antics of lawyers, on the other hand, who for reasons best known to them, drag these cases for years on end.
According to Justice David G. Mann, between 2002 and 2005, the Lagos State Ministry of Justice conducted surveys aimed at studying the problem of delay and came up with the startling result that it took an average of 5 years in the High Court of Lagos to dispose of a civil matter and an average of 8 years to dispose of a criminal matter, after discounting the period taken in pursuing interlocutory appeals. When this is compared to the speed with which these cases can be dispensed with when the use of thugs, juju or other self-help means is resorted to, we see that no individual genuinely seeking redress will want to approach the courts.
KEY FACTOR RESPONSIBLE FOR THE DELAY OF CASES IN COURT
Over time, some factors have been identified as responsible for delays of cases before our courts. A situation where a litigant spends years in court seeking justice leaves much to be desired. Some factors responsible for delays in the adjudicatory process include a lack of adequate legislation to drive the process and reduce delays to its barest minimum general lack of will on the part of the judges to stamp their feet on the ground against the antics of mischievous lawyers who delay cases for the benefit of their clients, lack of proper case management by courts, etc.
However, the delay experienced in litigation could be checkmated through adequate legislation and various court rules. An example of how good legislation has helped curb delays encountered in litigation is in election-related cases. During the early days of our current democratic experience, we saw election petition cases lasting as long as three years in court against an election that created a four-year tenure, simply because the electoral Act and indeed the Constitution made no limit as to the time within which to file these cases before the court, the time within which decisions must be pronounced by the courts or
tribunal. Therefore, we saw Such ridiculously long cases as former Governor Peter Obi of Anambra State challenging the victory of Dr Chris Ngige, which dragged on for about three years for an office with a tenure of 4 years. Another example is Ogbeni Rauf Aregbesola and Fayemi, with judgments delivered close to 3 years into the term created by those elections.
However, with the amendment of the Electoral Act, which draws from the amendment to the 1999 Constitution, election-related cases, mainly petitions, were disposed of faster. The amendment brought a drastic reduction in the duration of those election-related matters as the amendment created a time limit within which an election petition must commence and judgment delivered by the court or tribunal.
Therefore, the absence of legislation limiting the time a litigant must bring an election petition to be heard and disposed of gave room to the excessive delays witnessed in the abovementioned cases.
THE ALTERNATIVE OF ARBITRATION AS A WAY OUT OF THE PROBLEM OF DELAY BEDEVILING LITIGATION.
Arbitration is a procedure for settling disputes under which the parties agree to be bound by an arbitral decision, which is generally final and legally binding on both parties. Arbitration is also a method of dispute resolution involving one or more neutral third parties usually agreed to by the disputing parties and whose decision is binding.
In simple terms, the common trend between litigation and arbitration is that they are both presided over by neutrals, and their outcomes are binding on parties. However, perhaps, the attraction of arbitration is that while litigation suffers the problem of delay due to some of the earlier mentioned reasons in this write-up, arbitration is not usually like that. Arbitration, unlike litigation, has the advantage of its proceedings being regulated by both rules of proceedings and statutes.
Besides election-related matters, many other issues litigated before our courts have no legislation regulating the time limit within which such cases must be brought, heard and delivered to curb delays. For instance, section 7 of the Arbitration and Conciliation Act, which provides for the appointment of arbitrators, provides in subsection two the time frame for appointing arbitrators. Section 28 of the Act also provides a time frame for a party to request correction and interpretation of an award or additional award. The only thing regulating time in litigation is the rules of court which can be waived easily as most
rules incorporate proviso making none compliance with those rules a mere irregularity and therefore not fatal to the case, unlike in election-related instances in which such none compliance is fatal.
Arbitration proceedings are regulated by Statute, which gives effect to agreements of parties made before and during the arbitral proceedings. These agreements, which enjoy the backing of the law, usually scale down the time wasted in litigation. If optimally utilised to advantage by the court, this can free up judicial time for judicial officers and speed up the dispute resolution process.
THE CURRENT STATE OF ARBITRATION PRACTICE IN NIGERIA.
Arbitration is provided for and regulated by the Arbitration and Conciliation Act. The Act makes an arbitration agreement irrevocable except by parties’ agreement or by leave of the Court or Judge. The preceding further speaks to the binding nature of arbitration and means that once an agreement incorporating an arbitration clause is signed, parties cannot renege from it halfway down the line, a situation which has gone a long way to curb the excesses of mischievous individuals or corporations who enter into agreements they never intended to keep if it does not go their way.
Section 12(2)1 provides:
For the purpose of subsection (1) of this section, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract and a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
The above-reproduced section of the Act saves an arbitration process by saving an arbitration clause contained in a contract irrespective of what becomes of the agreement.
Further, courts lack powers to determine the merit of an award even where an application to set aside the award is pending before it. All the court can do is either set aside the award, uphold it or remit it to the arbitrator to reconsider a particular aspect. A court cannot hear a matter subject to arbitration except if the parties agree. It implies that parties have decided to abandon the agreement to arbitrate where a dispute arises.
The Arbitration and Conciliation Act’s provisions have straightened the practice of arbitration in Nigeria. The attitude of the courts towards arbitration and ADR generally is equally commendable in this light. However, more need to be done in terms of legislation in other to shorten the time, especially the time between the publication of a final award and enforcement, as it is evident that many award creditors are caught up in the snare of delay common to litigation while trying to enforce such awards.
SUGGESTED AMENDMENT TO THE EXTANT LAW
Arbitration is generally considered a better option than litigation because of the speed with which Arbitrators disposed of the matter before them and published their award. However,
post-award litigation seems to defeat the essence of arbitration, as limitless applications challenging the award usually continue for years. Earlier in this write-up, similar to postaward litigation, we examined the problem of delay encountered in election petitions in the early days of our current democratic experience and how court cases lasted for no just cause until almost the end of a term created by the particular election challenged. It looked at the time like the country would never get out of such a nasty situation as it was evident that those with terrible cases used unscrupulous lawyers to delay those cases in court. However, the amendment of the 1999 Constitution creating a time limit within which an election petition may commence and when judgment must be delivered reduced this practice to the barest minimum. Under arbitration, the question of delay usually comes after the publication of a final award, and it is time for the losing party to comply with the award.
To bring this ugly development, which appears to be diminishing the essence of the option of arbitration over litigation in the first place, under control, we suggest the following amendments to the extant law.
- The Arbitration and Conciliation Act should be amended to incorporate a time frame within which an arbitration proceeding must not exceed. We suggest four months or 120 days from the commencement of the proceeding to the publication of the final award.
- Another section should be incorporated into the Act empowering the arbitrator to terminate the proceedings if parties could not come up with at least 50 % of the arbitrator’s fee within one month of the appointment. Should he fail to do that, then he or they must publish their final award within 120 days from the commencement of the proceedings and sue for his or their fees if need be.
- Reduce the time an applicant may bring an application to set aside an award before the court. Any party seeking to set aside an award must file his application within 15 days of the award’s publication or lose the right. The new High Court of the Federal Capital Territory (Civil Procedure) Rules 2018 under Order 19 Rule 11 provides 15 days. We think the Act can tow this line.
- The Act should incorporate a time frame within which applications for registration or setting aside of a final award shall be heard and determined by the court to 120 days to conform with section 294 of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) since the constitutional amendment is more cumbersome than amending only the Arbitration and Conciliation Act.
- Appeals against the refusal of an application to register an award or set aside a final award must be filed within 14 days. Same as appeals from the Court of Appeal to the Supreme Court.
- All appeals must be concluded within 120 days of the appeal. Arbitration issue should be added as one of the fast track cases in the Court of Appeal and Supreme Court or make appeals to stop at the Court of Appeal.
- If the award debtor intends to appeal, he must deposit the award sum with the Chief Registrar of the Court he is appealing from, who should, in turn, deposit the award sum in an interest-bearing account till the conclusion of the appeal. This has the likelihood of forestalling unnecessary appeal.
It is our firm opinion that if the extant law on arbitration is amended to incorporate this proposed amendment to the law, Nigeria will reap the immense benefit it will bring in terms of economic growth.