ALTERNATIVE DISPUTE RESOLUTION IN LAND RELATED DISPUTES IN NIGERIA By Lawal Habeeb Olayinka

1.0 Introduction

Overtime, the process of litigation has become very much time consuming, expensive and cumbersome and increase in the number of cases in courts have led to congestion and delay in their resolution. Some disputes by their nature are sensitive and controversial and settling such dispute through litigation may not offer the best solution that is needed to solve the dispute. Disputes involving landed property for example; it may happen that the disputants are member of the same family, community or by one way or the other connected with each other and they need to keep their relationship. When the matter get to court, the parties often at the long run discover that the dispute is not one that need to be resolved through litigation in fear of cutting the tie that exist between them and the outcome of the litigation may also lead to everlasting enmity between not just the disputants but other members of the family or community. All these will make one to seek alternative methods of resolving such disputes.

2.0 Definition Of Terms

DISPUTE: A dispute is a conflict or controversy that has given rise to a lawsuit. For example, "THE LAND IN DISPUTE" simply means the land being claimed by the plaintiff and counter-claimed by the defendant. See BLACKS LAW DICTIONARY 8TH EDITION PAGE 505. Akintola vs. Solano (1986) 2 NWLR (Pt. 24) 598 at 622." Per TUR, J.C.A. (P. 64, paras. C-D).

ALTERNATIVE DISPUTE RESOLUTION (ADR): The term “Alternative Dispute Resolution” (ADR), is used generally to describe the methods and procedures used in resolving dispute either as alternatives to the traditional dispute resolution mechanism of the court or in some cases supplementary to such mechanisms. It involves resolving disputes outside of the judicial process, though the judiciary can require parities to participate in specific types of ADR, such as arbitration, for some types of conflicts.

ADR refers to a variety of techniques for resolving disputes without resort to litigation in the courts. The concept behind the introduction of ADR methods was, inter alia, to reduce the delays and costs associated with litigation; to introduce relatively less formal methods of dispute resolution; to introduce consensual problem solving and empower individuals by enabling them to control the outcome of their dispute and develop dispute resolution mechanisms that would preserve personal and business relationships. ADR processes were thus intended to produce better outcomes all round.

Generally, dispute resolution refers to one of the several different processes used to resolve disputes between parties, including negotiation, mediation, arbitration, and litigation. The term dispute resolution may also be used interchangeably with ‘conflict resolution’.

3.1 Land Dispute In Nigeria

Land disputes are indeed a widespread phenomenon, and can occur at any time and place. Land disputes as they exist in Nigeria consist of communities, families or individuals making claims and counter claims over the ownership of land. The aftermath of many of these land related disputes have resulted to loss of lives and properties and created everlasting enmity among the disputants. Up till date, the court is filled with many land dispute cases going every day in the court while many awaiting trials. While these cases are pending before the court, many issues occur as regard the land which may even resulted into loss of lives and properties especially in the rural areas. Some of these disputes have cut off the existing ties between parties.

If one look at the issues sometimes, he will discover that it is one that can be resolved amicably because the parties themselves do not want the process they are taking (that is litigation) but because of lack of guidance or awareness, they found themselves litigating those matters in the court. The court will sometime request parties to settle the issue out of court, but because of some other reasons, they return to the court without settlement. This may largely be as a result of their lack of ability to sit and resolve their differences and impatience to seek for a neutral party to assist in the process. Parties with lawyers even find it difficult to resolve their dispute out of court and this is largely as a result of lack of adequate support of their lawyers. That is why you find out that majority of these land related disputes coming to court can be resolved amicably without resort to litigation.

3.2 ADR and Land Disputes

Before modern law system, alternative dispute resolution has found its root in many traditional societies. Different societies and traditions had their own means or ways of solving dispute. Culture determined how disputes were solved among various communities. For example, in Nigeria dispute between parties are resolved by the higher authorizes or respected elders in the society like kings, family head or other person with distinguished personality in the society. This process has been a way of settling disputes without dissolving the relationships of the parties in the dispute. It is the common saying in Yoruba land that parties do not approach the court to settle their dispute and still remain friends and this is largely as a result of the stress, cost, publicity and other disadvantages attached with the law process.

Apart from the cost considerations and other problems associated with litigation, litigation is adversarial and not concerned with future relationships between or amongst the parties. It is outside the control of litigants and judges to have little room for future relationship when issuing judgments.

When a resolution to a dispute is sought out of court, the processes of arbitration, conciliation, and possession proceedings are alternates for the court system. This is a voluntary choice and a 3rd party is used to keep things neutral.

According to Stipanowich, ADR does not always mean alternative to formal litigation and very often it is a part of litigation particularly those ADR processes which are court annexed or judicial and it is binding upon the parties even if they do not agree with the result, as like as a judicial decision. It is an outmoded acronym that survives as a matter of convenience only. ADR means ‘Appropriate Dispute Resolution’ rather than ‘Alternative Dispute Resolution’.

There is the advantage that settlement through ADR avoids what can be best described as acrimony, which often times arise in litigation. It reduces hostility and antagonism; but most importantly, ADR saves business and friend relationships and encourages a continued cordiality between the parties.  These are made largely possible because the procedure provides greater room for compromise than litigation.

The adversarial nature of litigation with the ‘win all or lose all’ attributes have been found un-conducive to continued social relationships. If ADR is employ in settling land related disputes, it will best save the relationship of the parties and that will even foster trust and love among them especially when the party are well informed of process and the advantages associated with it. Indeed, resolving disputes through ADR is more efficiently and economically, with less risks and better results. ADR is premised upon the principle of consensus. It is non-authoritarian and operates within the structure of a specific community according to the culture of the community’s prevailing moral norms.

Even though ADR is neither a panacea which can cure all ills nor a substitute for litigation, ADR should be seen as being complementary to litigation.

In Nigeria, Arbitration and other forms of Alternative Dispute Resolution (ADR) is given constitutional backing as a means of settlement of disputes. The importance of ADR is now pivotal to the Nigerian Legal System. Section  19(d) of the Constitution of Federal Republic of Nigeria (CFRN) 1999, provides for the settlement of disputes by Arbitration, mediation, Conciliation, Negotiation and Adjudication. Order 19 of the Federal High Court (Civil Procedure) Rules of Nigeria provides for supportive court interventions in arbitral proceedings. High Court Civil Procedure Rules of various States also provide for reference of cases to ADR (for example, Order 19 and 28 of the High Court of the Federal Capital Territory and Lagos State Civil Procedure Rules, respectively). Rule 15(3)(d) of the Rules of Professional Conduct for Legal Practitioners mandates Lawyers to attempt an alternative dispute resolution before bringing any matter before the Court for hearing.

This is in recognition of the crucial role Arbitration and other forms of ADR now play in the resolution of various types of disputes. The constitutional status accorded Arbitration and other forms of ADR for the settlement of disputes is a contemporary role to the judicial powers conferred on the Courts by the constitution.

4.0 Methods Of ADR

Below are brief explanations of some of the ADR methods:

4.1 Mediation is a process through which efforts are made for the settlement of dispute. It is a voluntary, confidential and informal process where conflicting parties have freedom to select impartial third party who not only offers his services but also actively participates in the talk to resolve the dispute. In this process, a neutral third person supervises the negotiation between the conflicting parties but does not impose any binding decision. Experienced individuals designated as mediator try his level best by bringing conflicting parties together, to resolve through mutual agreement between the parties.

In mediation the parities have the opportunity to describe the issues, discuss their interests, provided each other with information and explore ideas for the resolution of the dispute.

Parties who cannot negotiate with each other but could reach a mutual beneficial or acceptable resolution with the assistance of a neutral party can explore this method of dispute resolution.

4.2 Arbitration is defined in the case of MISR Nig Ltd. V Oyedele as the reference of a dispute between two or more parties for determination after hearing both sides in judicial manner by a person other than a court of competent jurisdiction.

Arbitration is a method through which a dispute is referred to specific person called arbitrator and the decision made by the arbitrator is final. The decision is known as award. The arbitrators give award only on the basis of the merits after an expedited, adversarial hearing where each of the conflicting parties has an opportunity to present proofs and arguments in support of his claim. It does not follow more formalities like judicial settlement and the parties are at liberty to set substantive law and procedural law. The arbitration may be tow types that is, binding and non-binding.

In binding arbitration, the arbitration award is final and like the decision of a court can be enforced by the court. The award of non-binding arbitration is suggestion which can be final if accepted by the parties.

Like a trial, arbitration is an adversarial process and it will produce a ‘winner’ and a ‘loser’. It is more formal than negotiation and mediation. Arbitration cost can also be more expensive than negotiation and mediation but it is often less expensive than litigation. Also, arbitration is faster than litigation but it is not as private as negotiation or mediation.

Arbitration is governed by the Arbitration and Conciliation Act Cap A18, Laws of the Federation of Nigeria, LFN, 2004.

4.3 Conciliation is a method where neutral third party tries to resolve the dispute. The parties submit to the advice of a conciliator, who talks to each of them separately and tries to resolve their disputes. Conciliation is a non-binding procedure in which the conciliator assists the parties to a dispute to arrive at a mutually satisfactory and agreed settlement of the dispute.

Conciliation in Nigeria is governed by the Arbitration and Conciliation Act Cap A18, Law of Federation of Nigeria, LFN, (2004). The Act provides for the right to settle disputes by conciliation. (See section 37 and 55 of the Act).

4.4 Negotiation is a method of settlement of dispute where parties of the dispute face to face discuss their problem without interval or assistance of third party with a view to reach an amicable settlement.  This method retains power to resolve the dispute to the parties involved and they voluntarily seek a mutual acceptable decision to settle their dispute. It is very informal than any other form of ADR. The most advantage of this process is the parties themselves can exercise bargaining power. When negotiation process is continued the parties must refrain from doing such acts which may have adverse effects on the process of negotiation.

Other methods of ADR include; mini trials, hybrid forms of mediation-arbitration (Arb-Med), collective goal-oriented.

5.0 Benefits Of Adr In The Settlement Of Land Dispute

ADR is an important method of settlement of dispute especially disputes involving members of the same family, community or workplace. It always focus on the future and not past and aim to reestablish the relationship rather than exposure of the cause. It maintains good relationship and cooperation among the parties. The atmosphere is friendly and congenial; the parties can go with their relationship unimpaired. The crisis usually caused by land related disputes will vanish.

It could also create legal awareness among mass people and be able to reduce hostility. Members of the community will be able to resolve their disputes in a friendly way and that will easily create awareness among the people. They will find this medium easier in resolving their dispute than the court litigation.

The process is simple and flexible and avoids complexity of formal court system. It is an avenue to apply the principle of equity rather than the strict principle of rule of law. This will make ADR more effective in land related disputes especially in the rural areas.

The process will also maintain win-win situation and ensures access to justice for every members of the society who do not have adequate means to go to the court.

Alternative dispute resolution in land related disputes will help the parties to avoid decades of litigation in a cost-effective manner and to maintain cordial relation. It will protect the conflicting parties from the unnecessary delay and waste of energy that are in the formal court system. The ADR tribunal is faster than the court in reaching its decision and this is based on the fact that there is no issue of technicalities as it is in the formal court system.

ADR also helps in achieving outcome that work for everyone involved in the dispute. This is one of the greatest advantages of ADR.

Parties to the dispute will also be given the opportunity to agree with their appointed third party on the scope, duration and scheduling of the whole process. This will make the outcome of the process more acceptable to the disputants.

6.1 Challenges Of ADR In Resolving Disputes In Nigeria

In spite of the above advantages of resolving dispute through ADR, the process is not free from challenges. Some of the challenges hindering the growth of ADR in Nigeria are:

Lack of awareness regarding advantages of ADR

Lack of cooperation of lawyers or parties’ representatives

Shortage of effective and dutiful mediator

Challenges to include all interested stakeholders in ADR mechanism in case of multiparty dispute

There is no uniformity in the process

6.2 Recommendations

Massive awareness should be created among the people so that the full benefit of ADR as a peaceful means of settlement land disputes will be the government as well as NGOs can play a vital role in promoting this awareness.

Members of the society resolving land related disputes through any of the ADR methods should be trained up properly regarding various techniques and rules of the particular method they are using so as to remove shortage or experience and dutiful ADR practitioners in the society.

ADR process must be free from any form of discrimination. It should be devoid of all form of influence so as to ensure equal opportunity for all parties. This will make the members of the society to have more trust and be confident in the process. It will make them to patronize it more.

The legal practitioners and parties’ representative should also be cordial with the process and enjoin their client to explore the ADR process before the formal legal means (litigation).

7.0 Conclusion

Alternative Dispute Resolution in the land disputes aims to reduce the burden of courts at the same time work for the parties and make the process easy and convenient for them, in less time and money it aims to resolve the issue and leads both the parties to a compromise where both parties agree to settle the dispute and at the same time keep their relationship. Looking at the land litigation system in Nigeria, it is so costly, so painful, so destructive and so much insufficient that sometimes justice seeker becomes victim of injustice. To get relief from these problems, people should explore other means outside of the formal court system to resolve their dispute. ADR is a means of settlement where no one is defeated as it always maintains win-win situation. Although ADR serve as best alternative way to resolve conflict other than court, it is facing various challenges and removing these challenges will make the system ensure easy, speedy, low cost of justice for all and keep the relationship of the parties in dispute.

 

Lawal Habeeb Olayinka

Student of Faculty of Law, Bayero University, Kano

olayinkalawah@gmail.ccom // 08169894541

 

 

 

REFERENCES

·       Alternative Dispute Resolution, paper presented by Eunice R. Oddiri (Mrs.) at the annual delegates conference of the Nigerian Bar Association from 22^nd – 27^th August, 2004 at Le Meridien Hotel – Abuja

·       A.F. Adenekan, Esq. Alternative Dispute Resolution available at www.michaelmaschambers.com Accessed (4^th July, 2022)

·       Alternative Dispute Resolution (ADR) in Land Matters available at www.ibejulekkilawyer.com (accessed 3^rd July, 2022)

·       Legal and Administrative Challenges of Alternative Dispute Resolution (ADR) as a Peaceful Means of Resolving the Land Dispute in the Rural Areas of Bangladesh written by Md. Manjur Hossain Patoari, Amir Husin Mohd Nor, Muhammad Nizam Bin Awang, Abdul Hamid Chowdhury, Jaforullah Talukder, published by Beijing Law Review, vol. 11 No. 2, 2020