Pre-action protocol and right of access to court in Nigeria

There seems to be a conflict between the provisions of laws, particularly rules of practice and procedure, prescribing mandatory or compulsory pre-action alternative dispute resolution protocol as pre-requisites for instituting legal actions, and the right of access to court which is constitutionally guaranteed under Nigerian Law as enshrined in section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The existence or otherwise of such a conflict and the extent thereof is the focus of this paper. An attempt would be made to highlight the relevant provisions of the Constitution and the interpretation of same by the courts; the provisions of some of the statutes regulating pre-action protocol of alternative dispute resolution relevant for this exercise, and; the import of court decisions on the latter.

RIGHT OF ACCESS TO COURT
The constitutionally guaranteed right of access to court is provided in sections 6(6)(b) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which state as follows: “6(6). The judicial powers vested in accordance with the foregoing provisions of this section: “(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;” .

“36(1). In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
This provision has been interpreted in a long line of cases, to the effect that the legislature cannot legislate as to stultifying or hamper the right of free access to court granted to litigants by the constitution. For this, reference is humbly made to the case of Cotecna Int’l Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346, where it was held that the Constitution guarantees citizens’ right to vent their grievances in court, and any law that seeks to deprive a citizen of any of his constitutional right must be construed strictly by the courts. It was further held that unhindered accessibility to the court of law by the citizens of Nigeria, which operates under the rule of law, to vent their grievances is the hallmark of civilization. Hence, any statutory provision which tends to regulate or restrict the constitutional right of access of citizens to court must be viewed and construed strictly.

It is therefore beyond any measure of doubt that the legislature does not have the power to infringe on or abridge the right of access to court by any means whatsoever. It is also clear from the decisions that any law that contravenes the right of access to court is ab initio invalid, null and void, and of no effect whatsoever. Reference is humbly made to the case of Olu of Warri V. Kperegbeyi (1994)4 NWLR (Pt.339) 416, where it was held that the alternative remedy which a party can resort to in order to pursue his right does not exclude his right to seek redress in the courts.

One is not oblivious of the decisions of the Supreme Court in the line of cases of Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76, to the effect that regulations of the right of access to court, like pre-action notice, are legitimate and constitutional. However, it is respectfully submitted that those authorities do not exactly accommodate the species of rules relating to pre-action protocol like mandatory or compulsory mediation under consideration. Accordingly, such cases are clearly distinguishable and therefore inapplicable here.

REGIME OF PRE-ACTION PROTOCOL:
In recent time, the new civil procedure rules of most of the States in Nigeria have introduced pre-action protocol of mandatory or compulsory mediation into the litigation process. Chief of these laws, is the High Court of Lagos State (Civil Procedure) Rules, 2012 which provides in Order 3 Rule 11 thereof as follows: “All Originating Processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate ADR institutions or Practitioners in accordance with Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State.”

In addition, under Order 3 Rule 2(1)(e) of the said Rules, Pre-action Protocol Form 1 is prescribed as one of the processes that must support all civil proceedings commenced by Writ of Summons. And under Order 3 Rule 2(2), where a claimant fails to comply with Rule 2(1) of the Rules, the writ of summons shall not be accepted for filing by the Registry of the court.

In practice, therefore, the originating process of any suit commenced by writ of summons will not even be countenanced by the Registry unless the requirement of pre-action protocol has been met. The relevant question then is: to what extent is the pre-action protocol requirement in conformity with the constitutionally guaranteed right of access to court, the option open to an aggrieved litigant in the circumstances and what should be the attitude or response of the court thereto?

As there appears to be no known decided authority on the interpretation of the relevant provisions of the High Court Rules on pre-action protocol alluded to above, it is intended herein to derive assistance and guide from decided cases from sister jurisdictions with similar rules.

In this regard, we humbly call in aid the case of Halsey v. Milton Keynes General NHS Trust (2004) 4 All E.R. 920. The three main propositions from the case are that: although mediation is important and useful in many cases, but it is not a universal panacea; parties should not be compelled to mediate if they are truly unwilling to do so, as that would constitute an obstruction to their right of access to court, and; adverse costs orders should be used in appropriate cases to encourage parties to use mediation.

On the other hand, however, is the latter case of Alassini v. Telecom Italia SPA (2010) 3 C.M.L.R 17 ECJ, a decision of the European Court which originated from Italy, wherein the Court held that if the parties declined to submit to mediation, then they would forfeit their legal right to bring proceedings before the Court, and that will not constitute an infringement of Article 6 of the European Convention on Human Rights, which guarantees right of access to court. But one dominant consideration in that case, is that the pre-action mediation process in Italy was cost free.

It follows, therefore, that the EU case cannot be applied wholesale without due regard to the issue of absence of costs on the part of parties. Thus, while the English case is an authority where pre-action mediation is at the cost of the parties, the EU case will be a good authority where the parties will not incur any costs for engaging in mediation.

It is also instructive to note that the Court rather advised in the Halsey case, that the party who unreasonably refused to mediate prior to court action should have adverse costs awarded against him, based on guidelines and circumstances that refusal would be considered unreasonable. This very important point must not be lost. See also, Lord Dyson, “A Word on Halsey v Milton Keynes”, 77Arbitration, No. 3, (2011): 337-341.

Nevertheless, the English Court of Appeal has been severally and strongly criticized for its decision in Halsey’s case. See for example, A. Marriott, ‘Mandatory ADR and Access to Justice’, Arbitration 71, No. 4(2005): 307-317. It is also relevant to mention that some countries like the United States, Canada and Australia not only permit of compulsory and mandatory mediation, but have also gone ahead to enact laws to back same. See Marriott, supra.
THE APPROACH OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA
The National Industrial Court of Nigeria in its own alternative dispute resolution mechanism, has adopted an approach totally and completely different from the High Court of Lagos State, by virtue of its NICN Alternative Dispute Resolution (ADR) Centre Instrument, 2015 and the NICN Alternative Dispute Resolution (ADR) Centre Rules, 2015 which were made by the President of the Court and with commencement date of 6th April 2015. The ADR Centre established by the NICN has unique features which differ markedly from the regular Multi-Door Court House system operating in the High Courts of various States in Nigeria and the Federal Capital Territory. It is also the first and only court-connected ADR Centre which is established pursuant to section 254C (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended by the Third Alternation Act, 2010), while also deriving its root statutorily from the combined provisions of Sections 1 (2)(a) and 20 of the National Industrial Court Act (NICA) 2006, which empower the President of the Court to encourage the promotion and use of ADR in the Court. The Centre is not only well structured, but also manned by separately designated staff and management who are also integral part of the staff and management of the Court.

Most significant and fundamental, is the mandate of the Centre as set out in Article 4 (1) of the Instrument setting it up, inter alia: “To enhance and facilitate quick, efficient and equitable resolution of certain employment, labour and industrial relations disputes within the jurisdiction of the Court; and to minimize, reduce, mitigate and eliminate stress, cost and delays in justice delivery by providing a standard ADR framework for fair, efficient, fast and amicable settlement of disputes”.

In line with its mandate, by the combined effects of Article 4(4)(a)-(c) of the Instrument and Order 3 Rule 2 of the Rules, matters can only be initiated in the Centre through the parties or referral at the discretion of the President of the Court or Judge handling the matter. In addition, either of the parties in a dispute may, upon filing the action in the court, apply to the President of the Court for the action to be resolved through the ADR. While both parties may upon joining issues in the action mutually opt to use the ADR process, in which case the Judge of the Court seised of the matter shall refer the matter to the Centre.

In all and by implication, the National Industrial Court’s model can only be activated after the filing of an action in the Court. In addition, and most important, the cost of the mediation is not borne by the parties but the Court. That marks a clear departure from the Lagos High Court’s model. These points were also strongly advanced by Nelson Ogbuanya: “Nigeria: Overview of National Industrial Court’s ADR Centre Instrument and Rules 2015”, published in The Guardian, 16 January 2015 .

COMPULSORY MEDIATION UNDESIRABLE
It is therefore submitted, that having regard to the Nigerian experience, our socio-economic status and the spirit of our Constitution, it is more desirable and beneficial to follow the approach of the English Court of Appeal in the Halsey’s case.

This is the more so, since the Constitution has specifically made broad provisions for right of access to court and the courts are enjoined to expound same for the greatest benefit of the citizens and in the context of constitutional democracy established for Nigeria by the Constitution. I humbly call in aid the Supreme Court decision in the case of AC V. INEC (2007) 12 NWLR (Pt.1048) 222.

In addition, it is an added burden to insist that parties must first mediate before they can approach the court for redress, as the High Court of Lagos State purports to do in its provisions alluded to above. This will not only create unnecessary obstruction to the free exercise of right of access to court, but also invariably lead to injustice as most of the would-be litigants will end up not having their grievances redressed because, they cannot afford the cost of mediation. This is borne out of the prescription of the Lagos Rules (supra), for instance, which states, inter alia, that the process “be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate ADR institutions or Practitioners in accordance with Practice Directions”.

In fact, there is total absence of consideration for the cost implication on the parties in the Lagos Rules. This is certainly not the intention and desire of the makers of the Nigerian Constitution, our organic law. CONCLUSION

Having regard to the foregoing statutes, authorities and arguments, it is respectfully submitted that the pre-action protocol contained in the High Court Rules, particularly the High Court of Lagos State (Civil Procedure) Rules, 2012, ought to be discarded.

It will suffice to make provisions encouraging parties for amicable resolution of disputes, but certainly not to enact mandatory or compulsory mediation as condition precedent to institution of civil proceedings in the courts of law. True, mediation will save courts and parties, from dissipating precious time on matters that could easily be resolved amicably between parties, yet more injustice will ensue arising from costs, by insisting on mandatory or compulsory mediation prior to institution of civil proceedings in court.
The approach adopted by the National Industrial Court of Nigeria appears to conform more to the Halsey’s case and the principle behind Alassini’s case. The Court has a mediation centre, run and financed by the court and therefore cost-free. This is highly commendable and therefore recommended. This kind of practice should be adopted by all courts in Nigeria that intend to adopt compulsory or mandatory mediation.

Kehinde is the Principal Counsel, OKC Attorneys, Lagos.