By Chinonso Izundu
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Introduction / Background of the Conflict
Rivers State had been enmeshed in a political crisis since late October, 2023, when some Rivers State lawmakers tried to impeach the Governor of Rivers State, Siminalayi Fubara. The lawmakers who made the move were believed to be acting on the orders of Nyesom Wike, the Minister of the Federal Capital Territory (FCT), and immediate past Governor of Rivers State.
Since October (before the 8-point dispute resolution / settlement agreement), the Rivers State House of Assembly had split into two factions – the Martin Amaewhule faction, the Speaker of the House of Assembly comprising of 27 lawmakers (out of 31 lawmakers) believed to be backed by Min. Wike; and the Edison Ehie faction, who was the Speaker (until his resignation on the 29th of December, 2023) of the House of Assembly comprising of 4 lawmakers (out of 31) believed to be loyal to Governor Fubara.
The majority of the 27 lawmakers were said to have endorsed an impeachment notice against Governor Fubara. Meanwhile, subsequent revelations indicated that the former Rivers State Governor, Min. Wike, handed the list of commissioners and aides to his successor, Governor Fubara. It was widely believed that the immediate past Governor selected all the commissioners sworn in by the incumbent. This was believed to be part of the circumstance triggering the rift between both men, which subsequently led to the resignation of some commissioners believed to be loyal to Min. Wike.
On Wednesday December 13, 2023, Edison Ehie, the factional Speaker of the Rivers State House of Assembly, declared the seats of 27 lawmakers vacant over their defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC). The 27 lawmakers whose seats were declared vacant, are believed to be loyalists of Min. Wike.
In a bid to thwart any by-elections from being held to fill their seats, the Wike-backed faction of the lawmakers through their lawyer, in an ex-parte request, urged the Federal High Court to restrain the Edison Ehie led faction of the Rivers State House of Assembly, INEC, and the PDP from taking actions that could undermine their rights.
In the interim ruling, as obtained in the morning of Monday, December 18, 2023, the Federal High Court restrained INEC and the Rivers parliament from declaring vacant or taking any steps whatsoever to declare the seats of the plaintiffs at the Rivers State House of Assembly vacant.
Following the political crisis in Rivers State, President Bola Tinubu was widely believed to have intervened and acted as a mediator in the dispute. The President in mediating the dispute, was believed to have held a closed-door meeting with Wike, Fubara, former Governor of Rivers State, Peter Odili, and other stakeholders in Rivers State at the presidential villa on Monday, the 18th of December, 2023. At the peace meeting, the President and the stakeholders agreed on eight resolutions.
The 8-point settlement agreement, which is believed to be the outcome of the closed-door meeting held at the presidential villa, are as follows:
- “All matters instituted in the courts by the Governor of Rivers State, Sir Fubara, and his team, in respect of the political crisis in Rivers State, shall be withdrawn immediately.”
- “All impeachment proceedings initiated against the Governor of Rivers State by the Rivers State House of Assembly should be dropped immediately.”
- “The leadership of the Rivers State House of Assembly as led by Rt. Hon. Martin Amaewhule shall be recognised alongside the 27 members who resigned from the PDP.”
- “The remunerations and benefits of all members of the Rivers State House of Assembly and their staff must be reinstated immediately and the Governor of Rivers State shall henceforth not interfere with the full funding of the Rivers State House of Assembly.”
- “The Rivers State House of Assembly shall choose where they want to sit and conduct their legislative business without interference and/or hindrance from the Executive arm of government.”
- “The Governor of Rivers State, Sir Fubara, shall re-present the state budget to a properly constituted Rivers State House of Assembly.”
- “The names of all commissioners in the Rivers State Executive Council who resigned their appointments because of the political crisis in the state should be resubmitted to the House of Assembly for approval.”
- “There should not be a caretaker committee for the local governments in Rivers State. The dissolution of the Local Government administration is null and void and shall not be recognised.”
The resolution was jointly signed by:
– Governor Siminalayi Fubara
– Min. Nyesom Wike
– Rivers State Deputy Governor, Prof. Ngozi Odu
– Speaker of the House of Assembly, Rt. Hon Martin Amaewhule
– Rivers PDP Chairman, Chief Aaron Chukwuemeka
– Rivers APC Chairman, Chief Tony Okocha
– National Security Adviser, Nuhu Ribadu
Dispute Resolution
Conflicts or disputes are always inevitable in any human relationship, be it business or interpersonal. Thus, in such situations, dispute resolution mechanisms are usually adopted for the resolution or end to the conflict.
Dispute resolution is simply the process of resolving disputes between parties. Before the advent of colonialism, African societies usually resolved disputes through the following ways:
First, the disputants tried to resolve the disputes by themselves – what is now known as negotiation. If that failed, they will seek the assistance of kinsmen to facilitate communication for the settlement of the dispute – what is now known as mediation. If this also failed, the dispute will be taken to the Head of a neighbourhood – what is now known as ‘neutral evaluation’ or in some quarters, evaluative mediation. If this also failed, the matter would be then taken to the High Chief or King for a binding decision – what is now known as arbitration.
Since the advent of colonialism and the adoption of colonially-received formal legal systems in Nigeria, the most widely known mechanism for dispute resolution is litigation.
Litigation is simply the process of bringing a matter or dispute to court for its resolution (by the court). In this dispute resolution mechanism, an aggrieved party brings an action in court against the offending party and typically seeks a judgement or order as a form of relief from the court.
Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR) is the collective name given to the various methods, approaches or mechanisms, other than litigation, adoptable in the resolution of disputes. These methods or mechanisms are, more prominently, negotiation, mediation, and arbitration.
Negotiation simply refers to the communication between parties in a dispute towards reaching an agreement between. In this ADR mechanism, no third party is involved, only the disputing parties or their representatives.
Mediation simply refers to a process whereby a neutral third party called the mediator facilitates communication between disputing parties towards reaching an agreement and settlement of their dispute. The mediator in facilitating communication between the disputing parties may offer advice to the parties on an amicable settlement agreement which if accepted by the parties, effectively settles the dispute and binds the parties to the agreement.
Arbitration simply refers to a process whereby the parties to a dispute refer their dispute to a third party called the arbitrator (or arbitral tribunal) to decide on it and give a verdict called an award (or arbitral award) and in which the parties are to be bound by. This ADR process allows parties to a dispute to negotiate and agree on a neutral third party to listen to their case and make a decision.
The Nigerian courts have acknowledged the importance and effects of ADR in dispute resolution. In Okpuruwu vs. Okpokam (1998) 4 NWLR Pt 90, 554 at 586, the court, per Oguntade JCA (as he then was), observed thus: “In the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over disputes between them. They referred them to elders or a body set up for that purpose. The practice has over the years become strongly embedded in the system that they survive today as custom”.
The Supreme Court in underscoring the effect and enforceability of ADR in the Nigerian legal system, in Okparaji v Ohanu (1999) 9 NWLR Pt. 618, 290 @ 304, held that where parties have voluntarily submitted to an arbitration they willingly agreed to expressly or by implications, they are to be bound by the outcome and none of the parties can resile from the decision reached. The import of the aforementioned decisions of the courts is that ADR has a binding and enforceable effect on disputing parties who voluntarily sought recourse to it, and that the parties cannot at will or whim resile from the decisions or agreements reached through its mechanisms.
For the subject of this article, mediation would be the focus. This is because mediation is the ADR mechanism inferred to have been adopted by the disputing parties as evidenced by the 8-point settlement agreement between them.
Mediation and the Enforceability of Settlement Agreements
As earlier stated, mediation is a process that involves a neautral third party called the mediator, who advices and facilitates communication between the disputing parties towards a settlement agreement in resolution of the dispute. The Arbitration and Mediation Act, 2023 (AMA), regulates all arbitration and mediation dispute resolution mechanisms in Nigeria. The AMA can be said to be largely influenced by the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018.
Section 67(1) of the AMA provides for the scope of application of the AMA to include domestic civil mediation.
Section 82 of the AMA sets forth the principle that settlement agreements are binding and enforceable in court as a contract, consent judgement, or consent award.
Thus, if the parties to a dispute conclude an agreement in writing settling a dispute, that settlement agreement is binding and enforceable.
The Tone Of A Settlement Agreement
The questions often asked by netizens concerning the 8-point settlement agreement between the disputing parties is the (command) tone of the agreement.
It has been held in a plethora of cases that the tone of an agreement often gives certainty or clarity on the obligations of the parties in an agreement or contract.
In Emirates Trading Agency LLC v Prime Mineral Exports Private Limited [2014] EWHC 2104 (Comm), where a dispute resolution clause enshrined in the “Long Term Contract” required a condition precedent – a negotiation – to be satisfied first before resort to arbitral or legal proceedings. The court first examined the construction of dispute resolution clause and went on to ascertain its enforceability. The court pointed out that the use of the word “shall” indicated that the obligation of the parties was mandatory, and thus, enforceable.
Similarly, where in a contract, settlement agreement or dispute resolution clause, the wordings of the agreement between the parties in the context of obligations between them, includes such terms as “may” or “can”, it renders the obligations of the parties in the agreement optional or non-obligatory, and thus, unenforceable.
In essence, the “shall” in the 8-point settlement agreement between the disputing parties makes the fulfillment of obligations between them mandatory and therefore, enforceable.
How Can A Party Enforce A Settlement Agreement?
Section 83 of the AMA provides the grounds for enforcing a settlement agreement.
Section 83(1) of the AMA provides that a party seeking to rely on a settlement agreement would apply to the Court for its enforcement and in so doing, would supply to the Court documents evidencing that the settlement agreement was signed by the parties, and that the settlement agreement resulted from mediation.
In essence, a party seeking to enforce a settlement agreement would apply to the Court for its enforcement. The effect of which will see to the enforcement of obligations created in the settlement agreement between the disputing parties.
How Can A Party Legally Avoid A Settlement Agreement?
Section 84 of the AMA stipulates the grounds against the enforcement of settlement agreements.
Section 84(1) provides that a party seeking to avoid the enforcement of the settlement agreement between the disputing parties would need to furnish to the Court, proof that a party to the settlement agreement was under some incapacity; or that the settlement agreement is:
– void, inoperative or incapable of being performed under law;
– is not binding or is not fatal according to its terms, or
– it has been subsequently modified.
Furthermore, a party can avoid the enforcement of a settlement agreement if the party provides proof to the Court that the obligations in the settlement agreement:
– has been performed; or
– are not clear or comprehensible.
Other requirements for the avoidance of enforcement of settlement agreements are that the party seeking to avoid such must provide proof to the Court that the mediator failed to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence and the failure to disclose had a material impact or undue influence on a party without which, the party would not have entered into the settlement agreement.
In essence, if any of the disputing parties can furnish to the Court proof of circumstances as contained in Section 84 of the AMA, they can avoid the enforcement of the settlement agreement between them and other parties in the dispute.
Conclusion
In a bid to settle disputes, affected parties usually go to court in order to seek redress or to have the issue(s) resolved. These matters could be heard for about two years or more as a result of the complexity of judicial proceedings, copious amount of cases to be heard by a single Judge or Magistrate and the financial burden borne by the parties in trying to obtain justice. For the apparent inconvenience, a need to consider alternative methods of settling dispute arose.
Imperatively, ADR is a cheaper, faster and relationship-preserving alternative to litigation. It facilitates an easy and more peaceful approach to dispute resolution and eliminates financial barriers as well as time wastage in litigation.
In essence, where disputing parties voluntarily agree to settle their dispute through means other than litigation, they should be bound to abide by the terms of the agreement reached between them or be bound by obligations created in the settlement agreement reached between them in settling the dispute.
Such principle is underscored in the legal doctrine of pacta sunt servanda. Which simply states that / translates to “agreements must be kept”.
This is important to give effect to the ADR process as an integral part of dispute resolution as with litigation. In the same vain, if a party was to be allowed to renegade on the agreement(s) they voluntarily reached with another party, it renders the entire process of reaching at the agreement useless and a waste of time. It also infers deception and bad faith on the party who renegades on an agreement voluntarily reached with another party.
The disputing parties complying with the 8-point settlement agreement voluntarily reached would/did not only bring a modicum of peace and a de-escalation of conflict in Rivers State, it would also serve to establish mediation as an expeditious and effective Alternative Dispute Resolution mechanism in Nigeria.
Written by Izundu Chinonso Emmanuel, a budding lawyer at the University of Port Harcourt. He can be reached at: izunonso1@gmail.com
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