Lagos Judiciary Again Raises The Bar On Adr Practice

By Valentino Buoro

These are interesting times in the history of legal practice in
Nigeria as so much has changed within the last two weeks.

Don’t get disappointed if for one moment you had thought this
introductory sentence was leading to yet another perspective on the
constitutionality or otherwise of recent happenings at the apex of
the judicial hierarchy. Our point of interest here are the
fundamental reforms that have just been put in place by the Lagos
State judiciary.

Coming just a few months after the deft innovation to decongest
the Courts through an Alternative Dispute Resolution (ADR) program
branded as Backlog Elimination Programme, the Lagos State Chief
Judge, Hon Justice Opeyemi Oke, has in a fresh move unveiled a new
HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES described in
legal and commercial circles as the ultimate game changer. Under
the new rules no civil litigation shall henceforth be initiated at
the Lagos High Courts without attempts at an out-of-court
settlement, through the platforms of alternative dispute resolution
process. By these reforms, Lagos State has joined the global comity
of frontline jurisdictions which make an attempt at amicable
resolution of disputes a pre-condition to initiating lawsuits.

To underscore the new face of legal practice within the
jurisdiction, the 2019 Civil Procedure Rules (CPR) is accompanied
by two booklets on Practice Direction. These booklets are entitled
‘Expeditious Disposal of Civil Cases’. While ‘Practice Direction
No1 of 2019’ deals with Backlog Elimination Programme for cases
which overstay their welcome in the courtrooms, ‘Practice Direction
No2 of 2019’ deals with pre-action protocols which must be adhered
to by every disputant and his counsel before initiating an action
in court

In its preamble, the 32-page practice direction on pre-action
protocols states inter alia that ‘’Pre-Action Protocols explain the
conduct and sets out the steps required of parties prior to the
commencement of proceedings to which the High Court of Lagos State
(Civil Procedure)Rules apply’. It provides that prior to the
commencement of any civil proceedings; the court will expect
parties to have engaged in pre-trial correspondence, sufficient to
understand each other’s position. The parties shall also make
efforts to resolve their issues or consider a form of alternative
dispute resolution to assist with such settlement.

The claimant in each contentious matter is expected to forward
to the respondent, a memorandum of claim setting out in concise
details, his claims and the basis upon which they are made. He is
also expected to put forward the reliefs and remedies sought, as
well as include a proposal for the settlement of the dispute
through ADR mechanisms such as negotiation, mediation, arbitration
or Mediation-Arbitration (Med-Arb)

Express sanctions await litigants who fail to comply with
provisions of the protocol and the time limit set out for such
compliance. Sanctions are also laid out for persons who
unreasonably refuse to use a form of ADR or fail to respond at all
to an invitation to do so. Where a Claimant fails to comply with
the pre-action protocols, his originating processes with supporting
documents shall not be accepted for filing at the registry. That
means no lawsuit can commence.

On the other hand, where a respondent fails to file a response
as required by the protocol or unreasonably refuses an invitation
to ADR, the claimant may proceed to litigation by filing the
required processes and accompanying same with a spiral bound
pre-action protocol bundle which shall contain all pre-action
correspondence and obtain judgment against the respondent.

The rules provide however that where a party unreasonably or
disproportionately fails or refuses to comply with the pre-action
protocol but insists on proceeding to trial, the Court shall impose
costs of a minimum NGN100,000(One Hundred Thousand Naira)only which
shall be deducted or added to money reliefs awarded in the final
judgment.

Not unexpectedly, a section of the Nigerian Bar Association (NBA
Ikeja Branch) has kicked, claiming in the main that it was not
carried along in the processes leading to the publication of the
new rules. I do not consider this an appropriate platform to
discuss the details. Suffice it to say however, that parties and
their counsel have no cause to worry about steps to be taken under
the new regime since these are well explained in the practice
directions.

It can be rightly inferred that the intendment of the new rules
is to make lawyers client-centered. It is also designed to
encourage lawyers to appreciate the fact that every client who
walks through the door has other motivations other than the
available remedies at law. When lawyers painstakingly probe these
and assist their clients to devise creative options for resolution,
contentious issues will largely be resolved outside of court.

To attain proficiency in the foregoing, it becomes necessary
that more lawyers undertake training in mediation advocacy.
Mediation advocacy is the art of representing clients at mediation
and other ADR processes. It is the core of what has been presented
as Pre-Action Protocols under the new rules.