THE ROLE OF ALTERNATIVE DISPUTE RESOLUTION (ADR) IN SETTLING ENVIRONMENTAL DISPUTES IN NIGERIA

CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

The traditional means for resolving conflicts is the court of law. The power to interpret laws as well as to resolve disputes amongst disputing parties is vested in the judicial organ of government. But due to the perceived demerits of litigation like time consuming, expensive, too much formalities and technicalities, overloaded cause lists and many more, which inhibits the actualization of justice which is the main purpose of having the courts, ADR mechanisms were introduced as viable alternatives for disputants to resolve their issues without any waste of time or resources. This has proven to be good alternative for settling disputes in Nigeria.  Although the court is set up as the temple of justice for disputants, there are some matters that are not suitable for litigation and this where ADR comes in. The introduction of ADR in Nigeria has a traceable history in her culture. There are strong beliefs that many African states practiced ADR long before the coming of colonialism in Africa.  The make-up of our traditional societies was such that disputes were referred to the elderly members of the community for settlement. These are members of the society that were highly respected. 

During the pre-colonial era, Nigeria was made up of clans, villages, settlements, having kingdoms and/or empires that governed the affairs of the people like the Sokoto caliphate, old Oyo empire, Benin Kingdom, Borno Emirates and many more. There were always disputes among inhabitants of these communities or kingdoms and their disputes were resolved adequately without resorting to litigation.  The duty of hearing and resolving disputes were given to the elders or any other body created for same purpose. 

When the Europeans invaded Africa, they started introducing their own legal system of litigation. Britain in particular introduced the English Court system into Nigeria for resolving disputes. These English Courts operated concurrently with the native system as it did not jettison the operation of the traditional system but they co-existed. As of today, matters are still being settled outside the courts using the traditional system to settle dispute.  The Nigeria legal system recognizes these customary systems especially when it involves a civil matter. The purpose for the creation of ADR mechanisms in the administration of justice system in Nigeria is to mitigate the challenges connected to litigations. Currently, there is an increasing trend across the country towards popularizing the use of these ADR mechanisms as a better alternative to litigation. There is no gainsaying that these ADR methods will afford the citizens the opportunity to access justice in the current socioeconomic crisis that has bedeviled the country in recent times. 

The term ADR stands for Alternative Dispute Resolution and it has a wide range of methods which are all geared towards complementing the court system of litigation as it provides a time and cost effective alternative for dispute resolution. It is a system that helps to settle disputes between parties in a more amicable manner rather than the adversarial nature of litigation that is capable of hindering relationship between litigants. This is why these methods of dispute resolution are preferred to the traditional litigation system... It was the need to find a faster and less expensive means of resolving dispute that necessitated the introduction of ADR techniques into Nigeria's legal system. The ADR processes are less formal and cheap when compared to the court system. It made it possible for even the peasants, poor and indigent members of the society to access justice without breaking the bank.

In recent times, the role of ADR in achieving civil justice has continued to gain weight. Particularly in nations like United States, Australia and Canada, ADR techniques have become more prominent in these regions than the traditional litigation. In the popular English case of Dunnett v. Railtrack the English courts made it a necessity to punish defendants that are on appeal by refusing to grant them costs for failing to go through mediation. It was further expressed by the Court that any litigant that refuses to explore the option of ADR without any just and reasonable cause stands the consequence of being penalized. This decision of the court was pursuant to the provisions of the English Civil Procedure Rules (CPR), particularly at Rule 1.4 where it was provided that the court owes a duty to encourage the parties to try ADR options, and the parties are expected to do so by every means possible to achieve that goal.  This is an aspect of case management by the courts and it helps the court to achieve her objectives. It is expected that the parties bear in mind the general purpose of the ADR and exert care and caution before opting not to use them particularly if the court recommends it.

1.2 Statement of the Study Problem

For the fact that human being co-exists, there would continue to be disputes in their social, economic, political etc. activities.  However, resolving these disputes amicably has been a major challenge in the society for decades. Most environmental disputes have degenerated to major conflicts in many communities resulting to loss of lives and properties worth millions of Naira.  Pertinent to note, the environment and man cannot be separated. Thus, there is the need for a lasting solution to environmental disputes. The laws that regulate the environmentis evolving both locally and internationally, mostly due to the degradation suffered by the environment especially through the exploration of natural resources. The ADR system has been considered as a viable tool for resolving environmental issues when compared to the adversarial nature of litigation. The increasing environmental disputes in the country calls for attention of the Alternative Dispute Resolution in order to discharge speedy and cost effective justice to parties involved.  

The swift conclusion of disputes is one of the profound characteristics of the ADR mechanism which is relatively impossible to achieve from the courts.In a country like Nigeria, litigation process is very time consuming as it takes time before judgment can be attained. It is quite unfortunate that it has become a norm for litigation in Nigeria to linger for many years before its final determination. This can serve as a discouragement to the litigants. It is even more worrisome when the matter lingers for a long period of time and the judge presiding over the matter is either transferred or retires, then the matter would have to start de novo. Case starting de novo means starting afresh under another judge. According to Chukwuemerie, 

‘Some cases have been pending in our courts for more than ten years as a result of certain constraints like retirement or transfer of judges handling the cases which have been opened and evidence had been taken.  Such cases have to start de novo. The devastation, frustration, and economic stress which litigants undergo are better imagined than experienced.’  

A good example is the popular case of Ariori and others v. Elemo and others, which was commenced in the court by October of 1960 and lasted for  over Twenty-three (23) years before it got to the Supreme Court which ordered that the matter be referred back to the trial Court and be tried de novo. Another example is the case of Atanda v. Ajani that lasted for ten years before reaching the Supreme Court which referred it back to the trial court de novo. Also, in the case of Ugo v. Chukwu Obikwe  the case got to the Supreme Court after eighteen years was ordered to start de novo at the trial Court. 

The ADR system has been very useful in environmental issues particularly on compensation for land acquisition, the Environmental Impact Statement, polluted eco-system, riverine areas affected by the activities of oil exploration. The Environmental Impact Assessment Act also makes provisions for settlement of disputes relating to development projects through the use of mediation. This is contained in sections 31 to 36 of the EIA Act which deals extensively with the issue of mediation.

ADR mechanisms are also recognized under the Petroleum Act and Oil Pipeline Act for the resolution of environmental disputes. There have been incessant criticisms of the litigation system for being responsible for the delay and high cost of getting justice, as well as the damaged relationship between the disputants in the court cases and this is likened to the real battlefield war where there is a winner and a loser.  This is quite different in the ADR as it is always a win-win situation for both parties and it still preserves the relationship between them.The reason for the rise of ADR mechanisms across the globe is testament of the wide belief that litigation is not the only means of attaining justice in a civil legal system. 

Furthermore, in a bid to lessen the burden on our Courts, refurbish the judicial system and ease the process of settling disputesin Nigeria, the federal government has opened its door for the use of ADR mechanisms.The essential purpose of the ADR mechanism is the quick access to justice through speedy resolution of conflicts with minimal disruption.The formal system of litigation is not affordable to the poor masses because of all the expenses involved like professional fees for counsel, filing of court processes and other incidental feesfor prosecuting a matter in court. This huge financial implication in litigation is the biggest barrier to the utilization of formal court system by the poor and peasants in developing Nations like Nigeria. It is difficult for most people in these regions to afford sufficient legal representation if they have any dispute of an environmental nature like pollution and harm to their livestock and aquatic investments.Due to the rate of poverty, these aggrieved peasants will end up collecting peanuts from these multinational firms that are responsible for the pollution of their environment as compensation because they cannot afford litigation costs.Regrettably, most of these big companies prefer resorting to litigation because of its frustrating nature of delay and being expensive which the affected poor affected party cannot afford.

Other problems that prompted this research are that of the judicial system is not well organized and synchronized in the sense that judgments passed in court could be refuted in another, thus making the people to doubt the competency of the judicial system in delivery justice and fairness and it is stemming from the above that this researchintends on investigating the Role of Alternative Dispute Resolution (ADR) in settling Environmental Disputes in Nigeria.

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