DIFERENCIA ENTRE INTELIGENCIA PERSONALES Y LA INTELIGENCIA

The administration of civil justice is very important to the enjoyment of fundamental rights of citizens. It is for this reason that this sector is constantly undergoing evaluations for the purpose of reform and improvement in the workings of the system. Preliminary discussions with the implementers of CCADR in Nigeria reveal that in States where same has been adopted, it has basically been by persuasion of the relevant head of court such as the Chief Judge or President of the Court of Appeal as the case may be. There is no government policy whether at the State or Federal level with respect to CCADR. The study will therefore have implications for policy makers and will contribute to the literature in this developing field. Existing data also show that no comparison has been made among America, UK and Nigeria. This makes this study a unique one and a worthwhile venture.

According to Roberts, in England the official recognition that the sponsorship of settlement was an explicit objective of the public justice system came only in the 1990s when it appeared in the Heilbronn/Hodge Report of 1993 and then in the interim version of Lord Woolf’s Report.⁹⁶ In the latter, settlement was presented as the primary objective of the courts with adjudication relegated to an auxiliary fallback position.⁹⁷

Following the ABA Pound Conference, different jurisdictions pursued their civil justice reforms in different ways, but in all, the central themes were based on better access to justice and ADR formed a central part of recommendations to make the civil system more effective.⁹⁸ Scholarly literature on the advantages and disadvantages of adopting 'Settlement' as a core component of

96Roberts, S. and Palmer, M. (2005). Dispute Processes: ADR and the Primary Forms of Decision Making. 2nd ed. Cambridge: Cambridge University Press

97 Woolf, op cit

98 See generally, the Australia Law Reform, Canada Law Reform, United Kingdom and Wales law reform and the New Zealand Law reform.

the court functions have continued unabated, as have evaluative research on the effectiveness or otherwise of court connected ADR. Interestingly, both sides of the debate anchor some part of their discussion on the theme of access to justice.

According to McClelland,⁹⁹ an effective and accessible civil justice system should be one where people are best able to resolve their disputes quickly, efficiently and fairly, using the most appropriate method for their particular circumstances; that access even to appropriate information about processes and increasing the opportunity to resolve disputes early either in or outside the court are important drivers for access to justice.

ADR is essentially a private and confidential process whereas one of the pillars of the civil system of justice is public access. In Scott v. Scott¹⁰⁰ the court held that justice must not only be done but be seen to be done. This rule about public access is not absolute, however, because in McPherson v. McPherson¹⁰¹ it was held that the exceptions from public hearing is permitted, only if the ends of justice or the administration of justice would be rendered impracticable by the presence of the public, does not include the saving of time and money (acclaimed benefits of ADR). Dehn cites A.G v. Leveller where Lord Diplock commented that if the way the courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasies and maintains the public confidence in the administration of justice. ¹⁰²

Lord Woolf has asserted that genuine access to justice requires people to be able to understand how the legal process works and that the proceedings working properly is a vital guarantee that justice will be done; that it can be seen to work properly helps to ensure that justice will be seen to be done. He, therefore, recommended inter alia a new judicial landscape where litigation would be avoided wherever possible; the courts would provide information on ADR and impose financial penalties to motivate settlement.¹⁰³ In discussing the Woolf report, Roberts¹⁰⁴ observed that since the 1980s civil justice reforms sought to co-opt the ADR label. He however contends that settlement negotiations need not follow the route of the civil process neither should there be active involvement of the courts in sponsoring settlement.

99 Hon. Robert McClelland, Attorney General of Australia in a Speech to the Multidoor court house Symposium on July 27th, 2009 at the old parliament house, Canberra

100 (1913) AC 417

101 (1936) AC 177 at 202

102Dehn, C. QC. (1995). The Woolf Report: Against Public Interest? Reform of Civil Procedure, Essays on Access to Justice. Eds. Adrian Zuckerman & Ross. Oxford: Cranston Clarendon Press.

103 Woolf Interim Report

104 Roberts, S. and Palmer, M. op cit

Cappelleti and Garth¹⁰⁵ commenting on the links between Access to justice and the enjoyment of other rights stated that in the eighteenth and nineteenth centuries, the concept of access to justice meant essentially the aggrieved individuals right to litigate or defend a claim without necessarily addressing whether he had the capacity to recognise that right or the means to prosecute or defend same. Modern society and its view of this right has been transformed by several factors including population expansion and the complexity of society which moved from a focus on individual to collective rights such as right to work, right to health and right to education.

Affirmative action on the part of the State was necessary to enjoy these new rights so access to justice gained popular attention, which is how to equip individuals with the capacity to enjoy these substantive rights. Thus to them effective access to justice can be seen as the most basic human right of a modern egalitarian legal system which purports to guarantee and not merely proclaim the legal rights of all. Within the context of the importance of ADR, Woolf’s proposals that people should understand how the legal system works and courts should actively provide information on ADR options would fit into Cappelleti and Garth's notions of access to justice i.e. the capacity of parties to recognise their rights and enjoy same.

This study is, therefore, important at the policy level, because an ineffective justice system may lead to breakdown of law and order and even indirectly underdevelopment of the economy where there is no confidence in the system. This study will benefit policy makers in determining whether or not ADR should be fully integrated into the public system of justice.

Again, Nigeria is a developing nation which to a large extent still depends on foreign capital investments, and the system of justice delivery is an important factor to be considered by these investors in deciding whether or not to come to Nigeria. Recommendations on improving the system of administration of justice through ADR which this research focuses on will be beneficial to policy makers. The challenge of achieving an effective dispute resolution mechanism must, therefore, be pursued both for policy and academic reasons.

On the academic front, the issue of effective dispute resolution remains topical as an issue of access to justice; and a proper understanding of CCADR would contribute to the effectiveness of the judicial system. Furthermore, some ADR procedures have already been introduced in the High Courts of at least three states of the federation, the FCT High court and the Court of Appeal, and there are calls to extend same to the remaining States. The existing projects

105 Cappelleti, M and Garth, E.G. (1978). Access to Justice, Vol.1 A World Survey. Milan: Sijthoff & Noordhoof, pp. 6-9

should, therefore, be subjected to critical academic study to evaluate and assess whether it is actually the expected 'messiah' of the justice reform sector, as well as to provide constructive suggestions for any identified problems.

In Australia, England, New Zealand and some States in America, qualitative and evaluative studies were actually carried out before the decision to adopt ADR as part of the civil system of justice reform. Recommendations made thereafter were focused on domestic implementation, bearing in mind lessons learnt from other jurisdictions.¹⁰⁶ In its implementation of CCADR programmes in Nigeria, does the existing legal and institutional framework show that Nigeria took into consideration literature in the field which voices concerns on the different ways CCADR has been implemented elsewhere and problems that arose therefrom? Studies on the administration of justice can, therefore, never be over- emphasised. The above shows the significance of this study and also the motivation for embarking on same.