As human beings, we are caught up daily in a complex web of social and commercial interactions. For as long as these interactions continue, interests are bound to clash. When interests clash or are in completion with the interest of others then we can say a dispute has arisen. For as long as humans exist there will be disputes. What makes the difference is how the disputes are resolved. Instinctively, once a dispute arises we access the justice system with the hope of getting some form of redress. Sometimes we get justice in record time but most times it comes long after the parties have not only become impoverished but also the cost of the litigation process may have long over shot the claim. Then comes the weather bitten adage “justice delayed is justice denied”. Wherein then lies justice in the matter? It needn’t always be like this. Overtime there has been clamors for supplements to the available resources for justice by providing alternatives that produce enhanced, timely, cost effective and user friendly access to justice. These supplements refer to Alternative Dispute Resolution (ADR). ADR refers to a variety of dispute resolution mechanisms usually available to supplement the available resources for justice by providing more effective, faster, friendlier and cheaper alternatives to litigation. The concept and its growth in Nigeria is hereunder considered in greater detail.
2. JUDICIAL POWERS AND THE CHALLENGE OF THE COURT SYSTEM There is no doubt that the Nigerian Constitution of 1999 confers the Courts of the land with judicial powers. Section 6 (1) & (2) provides that: (1) The Judicial powers of the Federation shall be vested in the Courts to which this section relates, being courts established for the Federation. (2) The Judicial powers of a State shall be vested in the Courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.
While determining a matter in which the Judicial powers of the Court was in issue the Privy Council adopting the definition of Griffith, CJ in Huddart, Paker & Co Vs. Moorhead 8 CLR 330, 357 stated that “the word Judicial Powers as used in the Constitution means the powers which every Sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relates to life, liberty or property.
This position has been adopted by the Nigerian Courts in Sen. Adesanya V. President of Federal Republic of Nigeria and a plethora of cases after it.
It is clear that the purpose of Judicial Power is for the determination of cases and controversies before Courts of Law as established under the Constitution. The expectation of law is that citizens with grievances should refer them to courts of law established under the constitution. Anything aside from this is an aberration against which the law will frown.
Courts are therefore generally empowered to determine issues of everyday conflicts that are brought before them. These are mainly litigated. Litigation has unfortunately been grossly unable to meet the needs of modern everyday conflicts. As in many areas of the world, the judicial system in Nigeria is not sufficiently equipped to handle the multitude of cases brought before it, particularly as it pertains to commercial disputes. In fact, sizeable caseloads leave many of our courts over-extended and under-budgeted. Litigants are merely inconvenienced by the existence of slow, overburdened judicial systems. Investors for instance invest in the region, and when disputes arise, they resort to Arbitration and Alternative Dispute Resolution (ADR) fora outside the region. Others are deterred out rightly from investing in the region due to the perceived lack of timely and affordable dispute resolution options located in the country. Furthermore, the adversarial nature of...