ALTERNATIVE DISPUTE RESOLUTION; EMARGENCE AND

APPLICATION TO THE ADMINISTRATION OF JUSTICE IN NIGERIA,

IN LIGHT OF CLASSICAL AND ISLAMIC LAW *.

Abstract;

Alternative Dispute Resolution is the only way out to eliminate the prolongation of
justice Administration in Nigeria. Not only prolongation, but it also save the good
cordial relationship between the disputants in a law suit before the courts, because
it has been trite that “No friendship after Litigation”. This Article contains the
various machanisms through which the dispute could be easily resolved without
resort to the conventional litigation. The Article further discussed the bases and
processes of ADR both under Classical/Common and Islamic law.

Keywords; Alternative Dispute Resolution; Classical Law and Islamic Law.

Introduction;

Conflict is sine qua non (indispensable) in any society where two or more persons
exist, and where this dispute occur, the only institution competent to resolve it, is
the court. Which under the Nigerian legal system is the last hope of the common
man.1 Not every litigation brings about the amicable settlement between the
disputants in a law suit. Even if it did so, the wasting of time and high cost of
litigation must be witnessed.

Nowadays the congestion of multiple cases before our courts makes the
administration of justice to procrastinate. In other words, the large number of
letigants before our few courts in Nigeria makes many cases to linger very long
before judgements are Pronounced, the tendency therefore is that many litigants
may became frustrated and some have had to dispaired in the judiciary, because it
has been trite that justice delay is justice denial.

1
* Mujahid Abdurrahaman Level 200 student of Bauchi state university faculty of
Law.
1
Kabiru Muhammad Danladi, Introduction to Modern Nigerian Legal Method'
[Ahmadu Bello University press Limited, Zari'a 2014) 163

1
In order to avoid the above problems, courts must adopt the self-approach
machanism of solving disputes among the parties, the example of self-approach
machanism is the Alternative dispute Resolution (A.D.R) which is applicable both
in classical and Islamic law.

Before I go deep into elucidation let me briefly explain the topic key-words thus;

- Alternative Dispute Resolution ( A.D.R)

- Classical Law.

-Islamic law.

ALTERNATIVE DISPUTE RESOLUTION; The term Alternative dispute

Resolution popularly abbreviated as ADR has different meaning to different
people. A cursory view of some of these definitions may reveal the following;

The Blacks Law Dictionary defines ADR as “procedures got settling dispute by
means other than litigation”2

The term Alternative Dispute Resolution or ADR is often used to describe a wide
variety of dispute resolution machanism that are short of, or alternative to full scale
court processes.3 Another definition is the range of procedures that serves as
alternatives to litigation through the courts for the resolution of disputes which
generally involves the intercession and assistance of a neutral and impartial third
party. Alternative Dispute Resolution is a term which involves processes by which
disputes are resolved through private means other than conventional litigation
either by the parties themselves or with the help of third party or parties.

2
Blacks Law Dictionary, sixth edition p 8).

3
Md. Mashiur Rahman, 'Islamic perspective of Alternative Dispute Resolution'
<https://www.aarcentre.com/ojs3/index.php/jaash/article/view/140/367>.

2
It must be noted that the meaning of alternative Dispute Resolution under Islamic
law is wider than the above definition.

For example, Alternative Dispute Resolution ( As-sulh) means According to Ragib

Al- asfahany “all means and methods of reconciling disputing parties”.4 According
to Ibn Arafat, Sulh (alternative dispute Resolution) is defined as a “Shifting from a
right or claim for an indemnity for the purpose or with the intent to resolving a
misunderstanding or preventing it's occurrence”5

While According to Al- Kali, Sulh (alternative dispute resolution) is a method of

determining litigation or dispute (qat'ul-munaza'ah) or a transaction between
parties to a case which is expected to lead to settlement of dispute between them.

Classical law; the word classical according to Oxford Advanced Learner's

Dictionary relates to or is influenced by the art and literature of ancient Greece and
Rome. Suffice it to say that classical in this sense refers to the so called common or
civil law studies in Universities that has history and nexus to Greek, Latin and
Roman. No doubt, the L.L.B civil law programme in Nigeria has a strong link to
Greek and Latin that is why even the abbreviation of L.L.B is a latin word meaning
legum Baccalaureus (Bachelor of laws). To this extenth, it means all laws taught in
the Universities other than customary and Islamic law are classical laws.6

Islamic law; Islam is a religion sent to mankind by Allah through the holy prophet
Muhammad (S.A.W) . All Muslims are bound to apply Islamic law in their daily
activities. The major source of Islamic are the holy Qura'n, Sunnah and Hadith
(Tradition of the holy prophet, e.t.c) the religion has other subsidiary sources such
as Ijma, (Consensus of opinion) Qiyas (analogical deduction) Istihsab, (juristic
equaity or preference), Maslahah mursallah or istislah (consideration of public
interest), Istihsab (presumption of continuity), Urf (custom) and Saad-aldhariah
(Blocking the means).

4
Kabiru Muhammad Danladi, 'Introduction to Modern Nigerian Legal Method'
[Ahmadu Bello University press Limited, Zari'a 2014) 148
5
ibid
6
ibid
3
ORIGIN OF ADR UNDER CLASSICAL LAW.

No law prohibits mediation in Nigeria. Instead, some laws and rules of court
permit judges to encourage parties to resort to ADR process. As a general rule
judges in Nigeria are not allowed to mediate from the Bench, at the moment
mediated agreements are just contracted 7. there are statutory and precedential
authorities that support the use of alternative dispute Resolution practices in
settlement of dispute, these are;

_The constitution.

For the first time in Nigeria, arbitration and other forms of Alternative Dispute
Resolution (ADR) is given constitutional backing as a means of settlement of
disputes. Especially, section 19 (d) of the constitution of the federal republic of
Nigeria (CFRN) 1999, provides for the settlement of disputes by arbitration,
mediation, conciliation, negotiation and adjudication8

_Arbitration and conciliation Act, Cap. A18, Laws of the federation of Nigeria
(LFN) 2004.

The Act provides for arbitration in section 1-36 while section 37-423 deal with
conciliation. The first and second schedules provide for arbitration rules and
convention on the recognition and enforcement of foreign Arbitratral awards
respectively. The third schedule deal with conciliation Rules

_Federal High Court Act, Cap. F12, LFN 2004.

Section 18 of the Act provides that in any proceeding in the court, the court may
promote reconciliation among the parties as well as encourage and facilitate
amicable settlement of the dispute.9.

Rules of Professional conduct for legal practitioners, 2007.

7
Sylvester S. Shikyil and Maxwell M. Gidado,
8
Constitution of Federal Republic of Nigeria, 1999
9
Federal High Court Act, Cap. F12, LFN 2004

4
Rules 15 (3) (d) of the Rules provides that “in his representation of his client, a
Lawyer shall not fail or neglect to inform his client of the option of alternative
Dispute Resolution machanisms before resolving to or continuing litigation on
behalf of his client”.

Origin of ADR Under Islamic Law.

It is interesting to note that ADR is not alien to Islamic law. though ordinarily one
will ask what Islamic law has gotten to do with ADR. This kind of conclusion or
notion is reached because of lack of understanding of the Islamic law and what it's
all about.

The comprehensiveness of the Islamic law, otherwise known as Ash-shariah as a

universal and an accomplished law needs no emphasis. This is evident from the
fact that, Islam for decades before the modern civilisation brought about by Europe
was the touchbearer of learning, sciences and scholarship. It was an acclaimed
system of religion, governance, politics, economies and adjudication.

Shari'ah law which derives it's origion from the devine massage revealed to
mankind through the noble prophet Muhammad (PBUH) Is universal in characters
as it leaves no aspect of life and man without given adequate attention10

The supreme court of Nigeria declared in the case of Alkamawa v. Bello (as thus;11

“islamic law is not same as customary law as it does not belong to any particular
tribe. It is a complete system of universal law, more certain and more parmanent
and universal than English common law.”

Arbitration and conciliation settlement (sulh) have a long history within Arab and
Islamic societies and have their roots in pre-islamic Arabia. The Arabs and several
other ancient communities, before Islam, knew and used arbitration as a method
for the settlement of disputes. During the period of Jahiliyyah, there are some well-

10
Idris Abdullahi Haroon 'The Use of Alternative Dispute Resolution (sulh) in
Shari'ah Cases' (A paper presented at National workshop for
Area/Shari'a/Customary Court Judges/Directors and Inspectors of Area/Shari'a
Customary Courts. Organized by National Judicial Institute on 3th, 4th, and 5th,
April 2017 held at Muhammad Bello Centre, Wuse, Abuja) 3-4.
11
[1998] 6 SCNJ 127 (Nigeria),
5
known arbitrators such as Aktham bin saif, Hajjeb bin Zurarah, Al-akra'a bin Habis
and Abdulmuttalib bin Hashim the grand father of prophet Muhammad (PBUH).
And also there were notable female arbitrators such as Hind bin Alkhas, Jama'a
bint Habis and Sahar bint Lukman. Even though the prophet himself acted as an
arbitrator in many disputes roused up between citizens and tribes12.

There are so many examples of ADR in the pre-islamic era most significantly, the
dispute arose during the completion of ka'aba renovations were solved by using
arbitration method. And the arbitrator was the Muhammad (PBUH) himself. A
dispute broke out between the tribes on who would reinsert the black stone in the
ka'aba after it's renovation. No clan Chief wanted to relinquish this great honor to
any other clan. Through his successful arbitration of that dispute, the prophet
Muhammad prevented potential War among the Quraysh tribes. Once the walls of
the ka'aba were rebuilt, it was time to place the black stone (alhajarul-al-aswad) on
it's south-eastern corner. Arguments went off about who would have the honor of
putting the black stone in it's place. A figth was about to break out over this issue,
then Abu Umayyah, Macca's oldest man, proposed that the first man enter the gate
of the Mosque the following morning would decide the matter, the prophet
Muhammad proposed solution that all agreed to place the black stone on a cloak,
the elders of each of the parties to the dispute held on to one edge of the cloak and
carried the stone to it's place, the prophet Muhammad then picked up the stone and
placed it on the wall of ka'abah.

Another good example of ADR after the advent of Islam, in the truce of
hudaybiyyah. Which eliminate the existinf dispute and misunderstanding between
Muslims and the members of Quraish.

It could be concluded from the above event that sulh (peace making) under Islamic
law, for the purpose of terminating disputes or conflicts is as old as Islamic religion
or Shari'a. It is to be noted that sulh in Islamic law was practiced and implemented
towards the sixth year of the hijrah calendar which is now 1438 years, whereas it

12
Md. Mashiur Rahman, 'Islamic perspective of Alternative Dispute Resolution'
<https://www.aarcentre.com/ojs3/index.php/jaash/article/view/140/367>

6
was only in 1945 that the united nations established what we are now celebrating
as Alternative Disputes Resolution 13

ADR process under classical law.

In order to make our justice system speedy, different statutes and Rules of courts
and practice directions have stipulates the processes in which disputes could be
settled amicably without resort to formal litigation. Below are brief explanation of
some of the machanisms of ADR;

Negotiation:

Negotiation is an informal bargaining process in which parties in dispute

communicate directly to reach an agreement. It involves an intervention between
two or more parties; either directly or through Representatives, where the issues
surrounding the conflict are deliberated upon, for the purpose of solving problem
and or reaching a joint decision.

This process requires thorough preparation, careful listening and exquisite sense of
timing on the part of the negotiator. Negotiation is one of the most common ADR
machanisms used in managing disputes and to reach a Consensus under a friendly
atmosphere.14

Mediation:

Mediation is said to be a facilitated negotiation involving the assistance of a neutral

third party whose basic function is to engineer civility, facilitate candid
discussions, and help the parties to reach consensus solutions. It's popularity is
hinged on the premise that it promotes a win-win scenario where successful
settlement leaves each party feeling like a winner. The mediator must be neutral
and should ensure that the needs of both parties are met. The mediator is to guide

13
ibid

14
https://www.michaelmaschambers.com/insight-page.php?i=9&a=alternative-
dispute-resolution-in-nigeria

7
the process as well as help both parties identify and concentrate on their major
interests.15

Conciliation:

Conciliation is a method of settling disputes by consensus rather than by

adjudication. It is the process whereby parties, through a third party identify the
disputed issues, formulate options, explore alternatives and then try to reach an
agreement. A conciliator only plays an advisory role in formulating a framework
for resolution of the dispute. Hence, the distinguishing factor between conciliation
and mediation is the degree of intervention and influence of the third party in
settling the dispute. The conciliator goes a step further by drawing up and
proposing the terms of an agreement, which in his wisdom, represents a fair
settlement after hearing both sides while exploring the opportunity for settlement
and helping them reach an agreed settlement16.

Arbitration:

Arbitration is a simplified process of trial without the technicalities of courtroom

litigation; where the parties agree to appoint their own third party neutral known as
the Arbitrator. The arbitrator reaches a decision base on the law, which will be
binding on the parties. The decision reached is referred to as an award. The case of
Misr Nig. Ltd. v. Oyelede17defines arbitration as the “reference of a dispute
between two or more parties for determination after hearing both sides in judicial
manner by a person other than a Court of competent jurisdiction.

It must be noted where and award is made, it is enforceable by the court. see the
case Obioha v. Akukwe18. where it was held that Nigerian law recognizes and
accepts the validity and binding nature of Arbitration if the following are
established;

(a) That both parties submitted to the arbitration.

15
ibid

16
ibid
17

18
(2005) 8 NWLR (pt685) 35
8
 (b) That the parties accepted that terms of the arbitration, and
(c) They agreed to be bound by the decision of the arbitrator.

Med-Arb:

Med-Arb is an abbreviation and hybrid of mediation and arbitration and it is

applied and used in alternative dispute resolution if the parties decide to resort to
arbitration if mediation does not solve the disputes. The process involves particular
mediator appointed by parties during meditation and transforming/
metamorphosing into arbitrator. It is also possible to mediate after the arbitration
hearings have been concluded but before an award is made. It is also possible to
meditate discrete items in order to narrow the issues in the dispute in the
arbitration19:

ADR process under Islamic law.

As I mentioned earlier ADR isn't alien to Islamic law. Rather it predeceased

common law in applying the ADR process in it's Legal system. Islamic law
contains the following processes as means of conciliation;

Sulh: Negotiation, Meditation/Conciliation.

The concept of sulh in the Shari'a means a contract that is concluded by two
Parties, under which each party waives part of his right for the purpose of reaching
a mutual and final resolution of a conflict. Hence, in legal sense sulh is a settlement
grounded upon compromise negotiated by the disputes themselves or with the help
of a third party.20 Sulh represent one of the methods of conflict resolution in the

19
Kabiru Muhammad Danladi, 'Introduction to Modern Nigerian Legal Method'
[Ahmadu Bello University press Limited, Zari'a 2014) 156

20
V.(30)Idris
Abdullahi Haroon 'The Use of Alternative Dispute Resolution (sulh)
in Shari'ah Cases' ( A paper presented at National workshop for
Area/Shari'a/Customary Court Judges/Directors and Inspectors of Area/Shari'a
Customary Courts. Organized by National Judicial Institute on 3th, 4th, and 5th,
April 2017 held at Muhammad Bello Centre, Wuse, Abuja) 5

9
Islamic legal system and it is attained. Through mediation and conciliation which
may be facilitated by either a Qadi or prominent members of the family or
community. However, it involves the principles of counseling, advising and
arbitration.

The basis if sulh is sourced to many verses of the holy Qur'an thus;

“If two parties among the believers fall into a quarrel, make ye peace between
with justice and fair, for Allah loves those who are fair and just”21

The verse strongly advocate amicable settlement of dispute on equitable and fair
manner, and God promises a divine reward for those who do so. There is another
verse where secrecy which is otherwise disapproved is being condoned by Allah
for the sake of conciliation; it reads thus;

“In most of their (people's) secret confabulation there is no good; but if one
exhorts to a deed of charity or conciliation (sulh) between men (secrecy is
permissible). To him who does this seeking the good pleasure of Allah shall soon
be given a reward of the highest value22

The prophet Muhammad (PBUH), in support of the above verse was reported to
have said thus;

“He who makes peace (sulh) between the people by inventing good information or
saying good things (in his attempt to please the disputants) is not a
liar23Reconciliation between the conflicting parties can cause postponement of
salat which is timely obligatory24.

This shows the importance attached by Islamic law to conflict resolution and
dispute settlement. The prophet explains the rewards awaiting the promoters of
dispute resolution or settlement saying;

21
”(33) Qur'an 49 verse 9.
22
Qura'n 4 verse 114.
23
Sahihul-Bukhari Hadith number 2692
24
36) Sahihul-Bukhari Hadith number 2690
10
 “There is a sadaqah (charity) to be given for every joint of human or body (which
numbers 360) and for everyday in which the sun rises there is a reward for the one
establishes reconciliation and justice among people: 25

The prophet also gave preference to dispute resolution over prayer (salat), Sadaqah
and Zakkah (charity and almsgiving) and fasting. He says;

“Shall I inform you of a deed more rewarding than fasting, prayer and charity? it
is the act of settlement between people, for bad relationships and disputes are like a
razor which can eliminate a community.

Another evidence of the historic significance Islam attaches to settlement of

conflicts and disputes is what was documented in the famous letter of Umar bin
Al-khattab (the second chaliph of the prophet) to Abu Musa Al-ash'ary on the
letter's appointment as a Qadi (judge) which contains numerous injunctions
relating to the administration of justice. One of these deals with sulh;

“All types of compromise and conciliation among Muslims are permissible except
those which make haram (unlawful) halal (lawful) and halal (lawful) haram
(unlawful) 26

TAHKIM: ARBITRATION.

In pre- Islamic Arabian, the concept of tahkim (arbitration) was known and it was
practiced to settle various types of civil and commercial disputes. After the advent
of Islam, arbitration was given approval in the Qur'an as exhibited in some of it's
verses dealing with tahkim

“ if ye fear a breach between them (i.e husband and wife) appoint (two) arbiters,
one from his family and the other from hers; if they wish for peace, Allah will
cause their conciliation: For Allah hath full knowledge, and is acquainted with all
things 27The prophet recognized recognized arbitration in one reported case, he

25
Sahihul-Bukhari Hadith number 2707.

26
http://hrlibrary.umn.edu/arab/IS-7.html
27
41) Qur'an 4:35

11
appointed arbitrator and also advised the tribe of Bani Qarnata to have a dispute
arbitrated.

However, an arbitrator must have such qualifications i.e Knowledge, honesty, fear
of Allah and competency required for the discharge of his responsibilities.

Muhtasib: Ombudsman.

Enjoying good and forbidding evil is the basic rule of faith. All prophets, from
Adam till the last messenger of Allah (peace and blessings of Allah be upon them)
performed this function and their sincere followers also did the same. Justice and
peace prevailed in the society by this function and whenever and wherever this
function was not performed the injustice and insecurity came in. 28This principle of
enjoining good and forbidding wrong has developed over time into an Islamic
institution which takes the responsibility of supervising social, political and
economic behaviors in the Muslim community. The origin of hisbah could be
traced to the injunctions of the holy Qur'an and Allah further prescribes that
Muslims must choose among their community people that carry out this duty as he
said29

“let there arise out of you a group of people inviting to all that is good (Islam),
enjoining Al-ma'ruf (all that Islam orders) and forbidding Al-munkar (all that Islam
had forbidden) and it is they who are successful” 30

In complying with these injunctions, the holy prophet Muhammad (PBUH)

directed his followers to this noble admonition. prophet Muhammad told his
people that;

“By Him in Whose Hand my life is, you either enjoin good and forbid evil, or
Allah will certainly soon send His punishment to you. Then you will make
supplication and it will not be accepted" 31

28
(42)Md. Mashiur Rahman, 'Islamic perspective of Alternative Dispute
Resolution'
<https://www.aarcentre.com/ojs3/index.php/jaash/article/view/140/367>.
29
Ibid
30
Qur'an 3:104
12
Ombudsman in Islamic law is muhtasib, whose office is mentioned in the Qur'an
and the first two ombudsmen that of Makkah and Madina, were appointed by the
prophet himself. Muhtasib serve towards dispute resolution and dispute avoidance.

FATAWA: EXPERT DETERMINATION.

A fatwa or expert determination is an Islamic religious ruling, a scholarly opinion

on a Matter of Islamic law. According to the Islamic supreme council of America
(ISCA), A fatwa is an Islamic legal pronouncement, issued by an expert in
religious law (Mufti), pertaining to a specific issue, usually at the request of an
individual or judge to resolve an issue where Islamic jurisprudence (fiqhu) is
unclear.

We can say a fatawa same as the legal ruling of a high court or the supreme court,
depending on the authority of the mufti behind it. However, a fatwa is not binding
as the verdict of the Judicial courts; while correct and applicable to all members of
the Muslim faith. The fatwa is not obligatory for the individual to respect or not.
But the question is, how does a fatwa of mufti became an ADR process?

ADR Methods like evaluative mediation or conciliation, mini trial (executive

tribunal) and expert determination allows an impartial third party, chosen by the
parties to make a non- binding evaluation assessment on a dispute based on the
merit and on his own expertise. The reason promoting the parties to submit their
dispute to a neutral evaluative for giving his non-binding assessment is desire to
know their rights and duties. And if satisfied, to comply with the assessment on a
purely voluntary basis.

Conclusion and recommendation;

The alternative dispute resolution processes discussed above are the only tools
which can be used to clean the congestion of multiple cases before our courts, it is
also a means of maintaining good cordial relationship between disputants. Courts
(conventional and Islamic) must adopt the use of ADR in order to make our justice
system sound and effective.

31
(45) Sunan Tirmizhi Hadith number: 2169
13
The article wouldn't be concluded without recommending the following eminent
judicial personnel to advice and encourage the parties to enter into the ADR's
umbrella in order to save time and cost, thus;

_Judges have the vital role that are expected to play in maintaining the existence
of ADR in our courts, since the Constitution and Rules of courts and practice
directions allowed them to advice the parties to make a resort to the ADR process
if they sees fit the conventional litigation might lead to the justice procrastination.

_Lawyers are the ministers at the temple of justice, and they are closer to their
clients than anyone. Therefore, their role in promoting ADR can't be
overemphasize, they should tell their clients the advantages of ADR because it's
quicker, cheaper and just means of dispute resolution.

14