On 13th December 2018, the Chief Judge of the Federal High Court, Hon. Adamu Abdu Kafarati, issued the Federal High Court Alternative Dispute Resolution Rules 2018 (hereinafter referred to as “the ADR Rules 2018”) relying on the powers conferred upon him by section 254 of the 1999 Constitution (as amended). Order 18 rule 1 and 2 of the Federal High Court (Civil Procedure) Rules 2009 (hereinafter referred to as “the FHC Civil Procedure Rules 2009”) makes provision for parties to explore alternative ways to settle cases filed in court as follows:
“When a matter comes before the Court for the first time, the judge shall, in circumstances where it is appropriate, grant to the parties, time, not more than thirty (30) days within which parties may explore possibilities for settlement of the dispute.”
18(2) – “Where parties fail to settle with thirty (30) days or such other period as the Court may grant, the case shall without more, proceed to trial.”
However, it would appear that the provisions of the FHC Civil Procedure Rules 2009 are not detailed as to the alternative dispute resolution mechanisms to adopt regarding cases already before the Court. Save for Order 52 of the FHC Civil Procedure Rules 2009 that provided for Arbitration and related matters (there is also the Arbitration and Reconciliation Act Cap A18 Laws of the Federation of Nigeria 2004, which adequately covers the subject), other alternative dispute mechanisms such as Mediation and Reconciliation are not clearly provided for in the Rules under review. It would seem that it is against this backdrop that the ADR Rules 2018 have been introduced by the Federal High Court to effectively close this gap.
The ADR Rules 2018 contains 11 Orders and a Schedule of fees. The objectives of the ADR Rules 2018 are, principally, to enhance access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes; and to minimize frustration/ delays in justice delivery by promoting standard procedural framework for fair and efficient settlement of disputes through alternative dispute resolution mechanisms. Order 1 rule 2 of the ADR Rules 2018 established for the Court, a Dispute Resolution Centre (herein after referred to as “the ADR Centre”) which is also a department of the Federal High Court.
The ADR Centre is mandated to apply mediation, conciliation, arbitration, neutral evaluation and any other ADR mechanisms in the resolution of disputes referred to it from the Court; encourage disputing parties to appear before it for resolution of their disputes, act as an administrator in the conduct of ADR proceedings; and maintain register of suitable qualified persons as “Neutral Facilitators” who can act as mediators, arbitrators or neutral evaluators. The ADR Centre is to maintain a Roll of Neutral Facilitators consisting of negotiators, mediators, arbitrators, dispute resolution specialists and such other persons as may be required by the Centre. The Roll is to be made available to parties to choose from in order to facilitate their respective dispute resolution sessions on fees to be negotiated between the neutral facilitators and the parties.
Order 4 rule 2(3) of the ADR Rules 2018 provides that charges be made in accordance with a scale of fees in the schedule to the Rules. A potential draw back with this is that parties, having paid for the filing fee for the matter, are also obligated to pay another fee to the ADR Centre. The ADR Rules 2018 are silent on the question of whether a matter could be directly instituted at the ADR Centre by an Applicant without first filing the matter in the regular court, where it would be assigned by the Trial Court to the ADR Centre. Consequently, it does appear that the drafters of the ADR Rules 2018 intend for ADR sessions to function like court–ordered proceedings and not to have a life of their own.
The Centre is to have a Register of Disputes to record cases assigned to it with numbers and to also assign a case officer to assist the disputing parties navigate the ADR process. Order 6 Rule 5 of the ADR Rules 2018 provides that the time allowed for parties to explore ADR shall not exceed 60 days from the date of the referral of the dispute to the Centre. However, in exceptional circumstances, the Court before which the substantive matter is pending may extend the length of time by a period of not more than 30 days upon an application by the Centre with the consent of all parties.
All ADR sessions are to take place in private and shall be confidential and the ADR proceedings shall be conducted in accordance with the Arbitration and Conciliation Rules set out in the Schedule to the Arbitration and Conciliation Act Cap. A18, Laws of the Federation of Nigeria 2004 or the provisions of the FHC (Civil Procedure) Rules 2009.
Upon the completion of a dispute resolution session, settlement agreements duly signed by the parties shall be enforceable as a contract between the parties and deemed to be enforceable under section 25 of the Arbitration and Conciliation Act. Also, where the ADR process terminates in an Arbitral Award, it shall be enforced as provided for in the Arbitration and Conciliation Act or such other legislation as may be applicable.
It is important to note that the cases or causes of action that qualify for ADR have not been specified in the ADR Rules 2018. Since there is no specific exclusion of any particular subject, it is arguable that the intention of the drafters is for all causes of action to be subject to the ADR process. The ADR Rules 2018 is also silent on when its provisions would become enforceable. This may not be unconnected with the fact that the ADR Centre is yet to be established and the personnel to run it not yet recruited.
We believe that, in order to give proper effect to the ADR Rules 2018, the proposed new Federal High Court Rules should be released so that the provisions of the ADR Rules could then be applied within the context of the new updated Federal High Court Rules.
Suffice it to state that the introduction of the ADR Rules 2018 is a long overdue development, which should enhance the justice administration system in Nigeria, especially with respect to matters that the Federal High Court has jurisdiction over.