Dispute Resolution Within/Between Religious Organisations in Nigeria: Litigation or Alternative Dispute Resolution?

 

By

 

Olufemi Abifarin Ph.D; Head Department of public and International Law, Edo university Iyamho, Edo state Nigeria.

 

J.O Olatoke, SAN, Ph.D. Head Department of Jurisprudence and International Law University of Ilorin Nigeria.

 

N.O. AIjaiya Ph.D. Department of Private and property Law, University of Ilorin Nigeria, and Jessica E. Imuekemhe, Faculty of Law, Buza University Abuja, Nigeria.

 

Abstract

 

Religious organisations are not exempt from experiencing conflict within their hallowed walls. Given that these organisations are established and managed by human beings, there are bound to be interpersonal conflicts that arise as a result of power struggles, misunderstandings caused by communication gaps and divergent ideals. Indeed, in recent times, conflicts within and between religious organisations have played out in the full glare of the general public to the chagrin of members of these organizations and to the extent that external bodies have had to be co-opted to intervene. In extreme cases, warring parties have gone to the extent of filing both criminal and civil suits before various Courts of law. Typically, the fallout of litigation is a further escalation of the conflict and division of the religious organisation. Consequently, this paper seeks to proffer an alternative to litigation in resolving the disputes that arise within and amongst religious organisations. It posits that Alternative Dispute Resolution (ADR) mechanisms be employed in resolving conflicts of this nature as opposed to a recourse to litigation. The paper concludes that recourse to alternative dispute resolution mechanisms will better resolve conflicts within this category in a way that will allow these religious organisations to continue to progress amicably, spiritually and physically.

 

Keywords: Conflict, Religious Organizations, Dispute Resolution, Litigation, Alternative Dispute Resolution.

 

 

Introduction

 

There was a time before the advent of formal means of dispute settlement where religious organisation acted as the peacemakers in society. Even after the advent of State judicial systems, people with scores to settle did not immediately proceed to serve each other Court summons. Rather they relied on religious third parties to intervene in every manner of dispute because they believed that substantial justice and an amicable agreement could be attained within the hallowed halls of religious organizations. Indeed “before there were Courts, there were temples; before there were judges, there were elders and priests, and before there were lawyers, there were clergymen…”[1]

 

Nevertheless, the aforementioned position seems to have shifted. Currently, lawyers, judges, police officers and the entire Court system have been involved in the conflicts that arise amongst religious organisations. Gone are the days when the general perspective was that substantial disputes where foreign to religious bodies. Today, disputes within and amongst religious organisations are paraded in both social and print media to the dismay of the general public. This is mostly the case for disputes within and between church organisations.[2] Indeed, religious organisations are made up of people of diverse cultural and social backgrounds, temperaments, ideals and more. Consequently, both inter and intra denominational disputes are inevitable. The question then is; what is the most suitable means of resolving disputes that arise within and amongst religious organisations.

 

 

Conceptualizing Conflict

 

Conflict is a universal reality in almost all the societies of the world. It is a natural disagreement that results from differences in attitudes, beliefs, values, or needs of individuals or groups. A clear understanding of the concept of conflict will aid, in no small way in appreciating the various mechanisms of ADR that will be discussed in this work. Additionally, given that the focus of this paper is conflict resolution, a discussion of the concept of conflict is necessary.

 

Like the elephant, conflict is easily recognized when seen but it is not so easily defined. This is why it is said that, “the academic literature describes conflict better than it defines it”.[3] Nonetheless, various conflict theorists have purported to define the concept of conflict. According to Thomas, conflict is; The process that begins when one party perceives that the other has negatively affected, or is about to negatively affects something that he or she cares about...”[4]

 

Pondy is of the opinion that “behaviour should be defined as conflictful if, and only if, some or all the participants perceive it to be conflictful.”[5]According to Olowu, conflict is a perceived incompatibility of goals: what one party wants, the other party sees as harmful to its interests.[6] Other experts in conflict and conflictology such as Kornhauser, Dubin and Ross see conflict from the angle of perception and/or belief.[7] On his part, Dana, sees conflict from three perspectives which he describes as “Blips,” “Clashes” and “Crises”.[8] He posited thus:

 

Some conflicts are hardly noticeable as they ebb and flow through our daily social encounters. Others grow into intense disputes that span interpersonal tragedies. The severity of conflict ranges from insignificant blips through a middle range of clashes to severe crises that threaten the life of the relationship.[9]

 

The organization of people in groups is a potential factor that can lead to conflict. Accordingly, Okai posits that conflict is prevalent within and between social relations constituted to pursue common goals.[10]Simply defined, conflict is a serious disagreement between two or more persons, a serious difference of opinions or needs and a struggle or fight.[11]

 

It is important to note that conflict in itself is not always negative.  Proponents of conflict believe that conflict is not as destructive as people think; rather conflict is a vehicle for positive change. Nma argues that conflict is dysfunctional when it becomes destructive but if it is properly managed it can become functional.[12] Functional conflict can serve as a catalyst for development, tolerance, love and enduring peace. But dysfunctional conflict leads to violence, destruction, chaos and mayhem.

 

Although the descriptions proffered on the character of conflict are apposite, they are, with due respect, too subjective to adequately explain the term “conflict”. A discussion of the objective dimension of conflict must be carried out in order to arrive at a wholesome understanding of the concept. Most conflicts undoubtedly involve conflicts of interest although as rightly pointed out by Kornhauser and Ross, they may not involve economic facts of life. The fact that resources may be too scarce to be shared satisfactorily, or that various people may be pursuing goals that are incompatible or at least difficult to reconcile or the fact that people differ on cultural grounds, or even common ego may be potential sources of conflict. The point being made here is that the above situations provide the antecedent condition for conflict. Epie sees this as latent conflict.[13]Such objective situation of conflict, according to him, increases considerably the likelihood of the appearance of overt conflict. He gave a further illustration, using crises in the labour industry.

 

To take a practical example, it is the inherent conflict of interest in the employment relationship itself that leads to strikes or to legal actions. While employers are happy to recruit good workers and workers are happy to get a job, the interest of employers is to minimize the cost of labour while that of workers is to maximize it thus, the employment relationship is characterized by endemic though not overt acts of conflicts of interest.[14]

 

The above represents the pervasive character of conflict. It is beyond doubt that wherever one turns, there is conflict in human relationship ranging from personal internal conflict with respect to otherwise insignificant things such as what to wear on a particular day to larger interpersonal conflicts such as religious organizational conflict. Based on the above discussion, it is clear that understanding the origin of a conflict/dispute and ascertaining the interest of disputing parties will help in determining the best approach to solving the dispute. The reasons for conflict within religious organizations range from disagreement on spiritual principles and organisational goals, personal scandals, leadership tussles and issues with regards to financial expenditures. When these sorts of conflicts occur and parties are not able to resolve them between themselves, legal options are then explored and often pursued.

 

As discussed above, conflict is not always negative in nature and if properly managed, it can be a catalyst for progress and innovation. This paper posits that a resort to ADR mechanisms will aid in the proper management of religious disputes. This brings us to a discussion of the concept of ADR.

 

 

The Alternative Dispute Resolution Model

 

Alternative dispute resolution is defined by Black as a procedure for settling a dispute by means other than litigation, such as arbitration or mediation.[15] With ADR, parties negotiate their difference with a view to achieving an equitable settlement and they, themselves ensure the enforcement of the terms of agreement through mutual agreement.

ADR has also been defined as encompassing all legally permitted processes of dispute resolution other than litigation.[16]The reason for the above definition is that litigation, as a matter of law, is regarded as the default process of dispute resolution. On the contrary, Ware criticizing this definition observed that “while this definition is widely used; ADR proponents may object to it on the ground that it privileges litigation by giving the impression that litigation is the normal or standard process of dispute resolution while alternative processes are aberrant or deviant”[17]. This position is supported by other proponents of ADR as they hold the view that litigation is neither the original nor principal method of dispute resolution in any given society. Indeed, other informal methods of dispute resolution existed (and still exist) before the advent of formal judicial methods of dispute resolution. Research on conflict resolution reveals that alternative dispute resolution methods such as negotiation are employed far more frequently than litigation. Even dispute involving lawyers are resolved through negotiation far more often than litigation.[18] Consequently, it is false to define ADR as everything but litigation because litigation is not the norm.

 

For the purpose of this paper, ADR is defined as a range of dispute resolution processes or mechanisms designed and available outside of Courts or annexed to Courts but supplementary to litigation. This definition in our opinion covers all types of ADR including those outside the-Court system and Court annexed ADR processes. The definition also takes care of the argument whether or not ADR is alternative to litigation or complementary to it. In our view ADR serves the dual purpose of being an alternative to litigation, and at the same time complementary to litigation. As will be further discussed in this paper, ADR cannot completely replace litigation as there are instances where litigation is the only appropriate mode of dispute resolution. The relationship between ADR and litigation is symbiotic. For example, in most countries like Nigeria, ADR has aided in reducing Court congestion while in quite a number of cases, ADR mechanisms rely on Courts for its enforcement especially in arbitration cases.

 

 

Locating the Origin of ADR Within Africa

 

Although ADR is dated from the late 1970’s as a social and legal reform movement in the United States, ADR is really thousands of years old[19] and its origins has been traced from the African continent.[20]The concept of informal means of dispute resolution is not one that is new to our African society. Some writers trace its phenomenon to the intellectual impetus given by dispute resolution processes in pre-colonial Africa. Historically, most disputes before the advent of colonialism were resolved informally. The traditional system of dispute resolution in African societies knew nothing of the formality and technicality of the modern adversarial method of dispute resolution. In outlining the history of ADR, most ADR proponents identify the Yoruba’s in Nigeria as a group of people that practiced elements of ADR. According to Joseph Barret, in the Yoruba kingdom, most disputes were settled by the Mogaji (the lineage head) and the Baale (an elderly head of the district).[21] Within the Yoruba community, conflict was accepted as a natural fallout from communal and individual social interactions. Nonetheless, they prioritized reconciliation and restoration over combative victory. An old Yoruba saying makes this clear: "The tongue and teeth despite their closeness often comes in conflict. To quarrel and get reconciled is a mark of responsibility".[22]The customary methods of dispute resolution employed in traditional African societies were “reconciliatory” centred. Elders and Chiefs of communities whose responsibility was to adjudicate disputes where more concerned about ensuring a win-win outcome rather than a win-lose outcome. Aside from the senior members of the community, other parties such as family members usually played the role of a mediator in resolving conflicts.

 

The traditional process of dispute resolution followed a sequential process based on a hierarchy of options: first, the disputants tried to resolve their matters by themselves (negotiation), failing which the assistance of the senior kinsmen was sought (mediation). Where this option failed, the matter was taken to the Headman of the neighbourhood in which the Defendants lived (neutral evaluation/mediations). In the eventuality of the matter not being resolved, it was then referred to a High Chief or King for a binding decision (arbitration).[23]The advantages of these methods of dispute resolution was its relatively easy access to disputants, the affordability of same, as well as the opportunity they provided for community participation in the resolution of disputes. Within this narrative, the concept of ADR as an informal and communal means of dispute resolution, was birthed.

 

Despite the predominant use of traditional methods of dispute resolution within Africa during its pre-colonial era, the colonial and post-colonial administration of Nigeria did not espouse this informal dispute resolution practice. The police and the formal Court system became vested with the responsibility of ensuring law, justice and order in the society. Nearly the entire formal justice process in Nigeria was derived from the English legal system.  The formality of the Court setting, use of English language as the language of the Court, mode of dressing of Court officials and judicial personnel and the adversarial nature of the proceedings were all practices that were foreign to our original mode of adjudicating disputes. Although the advent of a more formal means of administration of justice was welcomed, there were some challenges that were observed. For example, the adversarial nature of litigation for example created a situation whereby disputants become not only formal adversaries but also antagonists in the actual sense. Quite often, the commencement of litigation often marked the beginning of enmity whether the parties are educated or not.  Through the litigation process, rights are asserted, demands are made and if settlement is not reached, a trial occurs, each party testifying to the wrongs and hurts committed by the other. As a result, the nature of a relationship devolves from a simple difference of opposing interests to one of pure adversarial contempt for one another.[24]

 

In recent years, the clamour for a return to these informal means of dispute resolution has increased with the incessant issues that have been associated with the modern judicial system. Countries like the Australia, Canada and the United States of America are at the forefront of the call for more resort to ADR.[25]The Roscoe Pound Conference in Saint Raul, Minnesota, (1976) is well known phenomenon in the history of growth of alternative dispute settlement mechanisms. At the 1970 Pound’s conference, members of the legal profession deliberated upon the problems associated with the administration of justice at that time in a bid to find new and better ways of dealing with disputes. It was notoriously observed during these times that adjudication of disputes was characterized by the court congestion, high legal cost and waiting for long hours in courts. The emphasis of the court and other traditional forum was pronouncing rights and wrong. And naming winner and loser destroy almost any pre-existing relationships between the people involved. At that conference, Professor Frank Sander of the Harvard Law School proposed his concept of the “multi door court house”, in which the court moves from being just a “court house” to a dispute resolution centre where the grievances with the aid of a screening clerk, would be directed to the process or sequence of processes most appropriate for a particular type of case.[26] This proposal led to the establishment of pilot schemes of model multi door court houses in parts of the United States. The use of arbitration and mediation as dispute settlement processes was greatly encouraged. Thereafter, community-based dispute resolution programmes began to be introduced in different parts of the United States. Although the ADR movement was slower in the United Kingdom, it later took root and became incorporated into the English legal system.

 

 

Nature of ADR Processes

 

As pointed out above, Alternative Dispute Resolution (ADR) processes are the methodologies for resolving disputes outside the court room. It is not meant to substitute litigation neither is it meant to supplant it. Rather, it is to complement litigation. Although a very fundamental aim of ADR is to decongest our courts, it will be, hyperbolic to say that ADR has immediate answers to the challenge of court congestion. It should be seen rather as a necessary part of any efficient framework for dispute resolution.

 

Although ADR is not an entirely new concept in Africa, indeed, Nigeria, the nature of ADR as practiced today has taken a more formal structure though still maintaining its informal nature. This is largely due to the fact that laws and rules of the various High Courts in Nigeria have given power to Courts to promote reconciliation among the parties thereto and facilitate the amicable settlement of disputes.[27]These rules of court have also established ADR procedures in the form of multi-door court houses.

 

Despite the subtle formal structure of ADR mechanisms, it still maintains its main features. These include; informality, flexibility, voluntariness, confidentiality, community participation, high party involvement/ participation, affordability, expeditious resolution of disputes, interest/ need based, non-judicial nature, adjudication by experts, and ease of accessibility. The salient features that make ADR an attractive concept for dispute resolution include its flexibility (which implies the absence of technicalities in procedure), cost effectiveness (which suggests that it is cheaper than litigation), and speed (which makes the process attractive to disputants).[28]

 

 

Scope of ADR

 

Implicit in the definition of ADR is its multifaceted nature. ADR mechanisms are numerous and each one is inherently different in nature. This makes the concept all-encompassing in nature as it caters for almost all forms of disputes. Each ADR method has its own unique structure. This gives parties multiple means of approaching their particular problem. The most widely used methods of the ADR are mediation (where a neutral third person helps facilitate an agreement between the parties) and arbitration (where a neutral third person hears both sides of a dispute). In Nigeria, the 1999 Constitution promotes arbitration, conciliation and mediation in the settlement of dispute at international level as a foreign policy objective.[29]Additionally, under our customary law, arbitration as a form of dispute resolution has been approved by the Supreme Court.[30]

 

ADR as practiced globally and by extension, Nigeria is divided into arbitral and non-arbitral methods or what others called adjudicatory and non-adjudicatory processes. The scope of this paper covers both arbitral/adjudicatory and non-arbitral/non-adjudicatory processes. We will begin by discussing arbitration which is the sole arbitral/adjudicatory ADR method.

 

Arbitration

Arbitration is the only known arbitral or adjudicatory process in the sense that in arbitration, evidence is taken from parties to the dispute and an award is made in favour of one party whose claim is sustained by admissible evidence. This is akin to the procedure in national or state courts but it differs significantly from litigation because the parties have greater control over the appointment of arbitrators, language of the ' arbitration, place of arbitration and the principles to be applied to issues under consideration whereas in litigation, the courts which are public institutions have a consolidated and inflexible approach to dispute resolution wherein parties are have less control over court proceedings and outcomes.[31] Additionally, the appointment of court officials is done by the government and courtrooms which are open to the public during proceedings are also provided by the government. The doctrine of judicial precedent which is practiced within the court system in Nigeria is inapplicable to ADR proceedings.[32]

 

The non-adjudicatory/non-arbitral alternative dispute resolution processes include: Conciliation, Mediation, Negotiation, Expert Determination, Ecclesiastical Court, Ombudsman, Novel Media and Reconciliation. These will each be discussed briefly.

 

·       Conciliation

Conciliation involves a third party trying to bring together disputing parties to help them amicably reconcile their differences.[33]It involves a relatively unstructured method of dispute resolution in which a third party facilitates communication between parties in an attempt to help them settle their differences. Some ADR proponents suggest that conciliation is merely assisted negotiation. Some jurisdictions such as California have family conciliation Courts to help resolve problems within the family.[34]

 

·       Mediation

Mediation is one of the most widely used ADR methods. From legal literature, conciliation and mediation have generated a lot of controversies. One school of thought believes that the two words mean the same thing and that they could be used interchangeably. The other school asserts that they are distinguishable. This school contends that a Conciliator merely plays a facilitative role of bringing parties together to iron out their issues. He/she does not proffer his own opinion about the issue in contention. In mediation however, the Mediator plays an evaluative role by expressing his/her opinion.[35]

 

·       Expert Determination

An expert is a person who through education or experience has developed a skill or knowledge in a particular subject, so that he or she may form an opinion that will assist in the resolution of parties’ dispute.[36] Such a person is not an arbitrator and is not subject to Arbitration and Conciliation Act or any other arbitration rules or regulations. He is under no obligation to hear evidence or argument although he may if he wishes.[37] He is entitled to rely solely on expertise and any investigation he may carry out on his own.[38]

 

·       Negotiation

Negotiation is described as a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter. Negotiation usually involves complete autonomy of the parties involved without the intervention of third parties. According to Fuller, “negotiation, we may say, ought strictly to be viewed as a means to an end”[39]. It is the road the parties must travel to arrive at their goal of mutually satisfactory settlement.[40]

 

·       Ecclesiastical Court.

This is a religious court that hears matter concerning a particular religion. It is concerned mostly with conflicts occurring within the ecclesiastical discipline. It also hears property or matrimonial disputes, testate and intestate succession and other sundry issues arising among Christians.[41]

 

·       Novel Media

The last but not the least is the novel media type of ADR which is indigenous to Nigeria. Novel media are local television programmes like Gboromiro meaning “hear my plight” of NTA channel 7 Lagos, Mogbejomide- this is my complaint, a Lagos television channel 8 programme, and Agborodun “sympathizer” which is an NTA Ibadan programme. These programmes are either conducted in English or Yoruba and it is popular in all the states in South Western Nigeria.

 

Under this method of ADR, complaints are written to the co-ordinator of the programme in any of the above listed television houses who then will summon both the complainant and defendant to come with their witnesses. When they appear, disputing parties state their cases and the coordinator will then attempt to settle them. The settlement is non-binding in nature but because of the public ridicule that may follow if flouted, most disputing parties abide by the decision of the panel.

 

The above list is not exhaustive of the types of ADR available. There are others like Party Directed Mediation and Online Dispute Resolution. Additionally, two methods may be combined in resolving a dispute e.g. Med-arbitration.

 

 

Sources of Laws of Alternative Dispute Resolution in Nigeria

 

The main sources of ADR in Nigeria are statutes and common law. The main arbitration law is the Arbitration and Conciliation Act Cap A18 LFN 2004, which provides for the right and the procedure to settle disputes by arbitration and conciliation. The Act provides that the parties to any agreement may seek amicable settlement of any disputes in relation to agreement by arbitration and conciliation under this Act.[42] In addition, section 55 of the Act provides that the parties to alternative commercial agreement may agree in writing that a dispute in relation to an agreement shall be settled by conciliation under the conciliation rules set out in the third schedule, to the Act. Various States within Nigeria have also enacted Arbitration laws to govern the practice of arbitration within their jurisdiction. Lagos state is at the forefront of state legislative enactment.[43]We also have Citizens Mediation Law of Kwara State, 2008.

 

High Court Civil Procedure Rules of various High Courts also have provisions for ADR in Nigeria. For example, the High Court of Lagos State Civil Procedure Rules, 2004, Order 25 Rule 6 provides that in the promotion of amicable settlement of cases, parties may adopt the alternative method of dispute resolution.[44]Additionally, the Mediation and Arbitration Procedure Rules (2003) Practice Direction of the Abuja Multi-door Court House and Order 17 of the High court of Abuja Civil Procedure Rules provide for ADR.

 

The above-mentioned provisions indicate that the practice of ADR has statutory backing even though it is not mentioned in the 1999 Constitution as a way of settling municipal or local disputes.

 

 

Christian and Muslim Theology on Dispute Resolution

 

Both the Christian and Muslim faith prioritizes and advocates for peace amongst all men. Amongst Christians, peacemakers are considered as blessed people who shall be called the sons of God.[45]Even though peace amongst all men is the desired status quo, even the Bible and the Quran acknowledge the inevitability of conflict. Given the challenges associated with the adversarial system of dispute resolution, we submit that ADR mechanisms would provide the best avenue for settling the disputes that arise within and between churches.

 

Within biblical theology, Christians are encouraged to settle their disputes without recourse to Courts of law. Litigation is expected to be the last resort after exploring all possibilities for peaceful resolution. The Bible which is often regarded as the Constitution of the church emphatically states that “if your brother sins against you, go and tell him his fault between you and him alone”[46]. This is akin to negotiation between the two disputing parties without interference of a third party. A close perusal of the bible shows that it encourages negotiation, mediation, conciliation, restitution and arbitration. This covers both dispute between congregational members and disputes that arise amongst the leaders of a church.

 

Indeed the type of conflicts that arise within Christian organisations are mostly sensitive in nature and so an avenue that prioritises confidentiality and which allows for the appointment of adjudicators who themselves are skilled in the dictates of the Christian faith is highly advantageous.[47]The problem solving feature of ADR will give an adjudicating individual the power make deeper enquiries into matters that parties may not have pleaded. For example, a mediator may make enquiry into sensitive issues that may be the underlining cause of the dispute. This is not the case where a matter is subject to litigation as judges are only permitted to restrict themselves to the facts as pleaded by parties. Additionally, given the informal and less antagonistic nature of ADR, a party may be willing to acknowledge that he she acted or failed to act in a particular way. Such honesty is normally not found in the course of litigation as the combative atmosphere of court proceedings makes parties eager to win by all means. An admission of guilt or wrongdoing at any point in such proceedings may be seen as ‘foolish’ and detrimental to a party’s cause. Indeed, falsehood and cover-ups are the rules of the game in litigation.

 

In Nigeria, the Christian Association of Nigeria (CAN) and Pentecostal Fellowship of Nigeria (PFN) perform arbitral roles in resolving disputes arising within churches and between two or more church denominations. A major challenge to the arbitral role of CAN is that many churches are not registered with the organisation. This makes the submission of disputes by unregistered churches to this organisation, problematic. Nonetheless, these organisations are known to advocate for amicable settlement of disputes that are submitted before them.[48] Upon hearing both parties, a resolution is reached by the presiding body and parties are expected to abide by the resolution. This is usually the case. However, just like any other ADR award, an unsatisfied party may still exercise his right to proceed to Court a court of law. Although this is ill-advised, the exercise of an individual’s right to seek further justice is accepted. Herein lies a major issue with ADR as arbitral awards do not carry the automatic force of law. Such awards need to be registered and passed as a court judgment before they can be considered as legally binding.

 

Yakubu I.D and Hassan Y.B in their treatise on “Alternative Dispute Resolution: Islamic Perspective” opined that ADR is recognized and provided for under Islamic law.[49] Over 1,400 years ago, ADR methods were used by Muslims to settle their differences amicably and these methods are mentioned and encouraged in the sources of Islamic law.[50]Islamic law contains the following ADR processes:sulh (negotiation, mediation/conciliation, compromise of action); tahkim (arbitration); med-arb (a combination of sulh and tahkim); muhtasib (ombudsman); informal justice by the wali al-mazalim or chancellor; and fatwa of muftis (expert determination).

 

Sulh[51] is the term used in Islamic Law to refer to any form of settlement of dispute other than through adversarial means.[52]The rationale of Sulh is to broker peace between the disputing parties, it also saves time and cost. The most effective side of it is that it sustains good relationship between the parties and to some extent, even to the families of the disputants. It connotes settlement, negotiation, mediation, arbitration, conciliation or whatever word used for settling disputes other than litigation. Both the Qur’an and Sunnah provided that utilization of Sulh should be preferred and that it should be utilized at all levels.[53]

 

The Islamic concept of ADR they argued embraces all means geared towards bringing about peace or reconciliation. They assert that ADR is an integral part of normal service to Allah whose implication according to them is that encouraging settlements attracts eternal reward and that leaders and persons placed in authority are required to embrace it.[54] They cited examples of where the holy prophet Mohammed participated in settlements of disputes.[55]They also acknowledge that religious difference between disputants is not a hindrance to ADR under Islamic law. ADR between Muslim and pagan or a Muslim and a Christian or a Jew is valid and binding provided that the term of settlement is not contrary to Islamic law.

 

Courts in Nigeria have also weighed in on the issue of the appropriate avenue for settling disputes amongst religious organisations. In Shodehide v. Ahmadiya Movement in Islam,[56] the Supreme Court stated that “… matters of faith are hardly matters for a court of law but once there is, the court should deal with them without passion but only with justice according to law being the guide”. On the same issue the Supreme Court in Thomas v. Olufosoye made the following observation:

 

“What is very important in this case is the danger of bringing religion as such to the reasoning of jurisprudence. The reasoning in religion is one of God or Allah which passeth all jurisprudential understanding. All the more so when Christian Judges have to be called upon to settle Moslem dispute or Moslem Judges adjudicate upon Christian issues… judges, once they are seized of a matter have no choice but to apply the laws and not the religious sentiments. Perhaps religionists would assist themselves more by devising a forum for settlement of their dispute and come to court only when that fails.[57]

 

The above judicial pronouncements by veterans of legal jurisprudence must be given thorough consideration by leaders of religious organisations. It is expected that religious organisations (in this case, the church) should make little or no recourse to litigation in settling disputes that may arise within and amongst themselves. ADR mechanisms will provide more distinct and sui generis means of resolving disputes that fall under this category. As already stated, ADR mechanisms will promote confidentiality and allow for the application of the canons of the religious organisation to be applied in the course of resolving religious related disputes. Given that the concept of ADR prioritises amicability above contentious adjudication, it is expected that the relationship between all the parties involved will be sustained or all the more improved.

 

It is important to state that, in applying any adjudicatory ADR process (such as arbitration) in resolving conflicts, the cardinal principles of natural justice must be observed. This means that all parties to the dispute must be given fair hearing as enshrined in the 1999 Constitution.  Fair hearing includes:

 

a)     Nemojudex in causasua, which means that you cannot be a judge in your own cause. That means a person cannot be the accuser or complainant and at the same time the judge in a case.

 

b)     Audi AlteremPartem, which means “Hear the other side”. This means that all the parties concerned in a dispute must be given equal opportunities to state their case before a decision is made.[58]

Any arbitration panel that breaches the above rules of natural justice will have its decision declared null and void if successfully challenged before a court of law.

 

 

Mainstreaming ADR Through Dispute Systems Designing

 

Dispute systems design (DSD) involves the creation of a set of dispute resolution process so as to help an organisation, institution, nation state or other set of individuals better manage a particular conflict and or series of conflicts.[59] It is submitted that the Church as a religious body is in need of DSD.

 

DSD involves the design of systems or mechanisms which are used routinely to handle similar, repeatedly disputes. It is especially useful for organisations that have similar kinds of problems occurring over and over again such as disputes between co-workers, over work assignment or between workers and management over compensation, working conditions or work performance.[60] The concept was first developed by William Ury, Jeane Brett and Stephen Goldberg in their book Getting Disputes Resolved.[61] This book divides conflict resolution processes into three types; namely those which negotiate interests, those which adjudicate rights and those which rest relative power. This is what Dele Peters classified as three approaches to resolve dispute. According the three approaches are: Interest Based Approach and Power Based Approach and Right based Approach.[62]

 

Most conflicts, they say, should be negotiated on the basis of interest. In other words, the parties should negotiate directly with each other or with the help of a third party mediator to try to give each side what they want or need, at least to the extent possible.[63] Some conflicts, however, involve a question of rights, not interest which cannot be negotiated. Rather, right needs to be clarified in an adjudicatory (court like) process.[64]

 

Some conflicts cannot be resolved either through interest-based bargaining or through adjudication because they fundamentally involve relative power. Since power struggles tend to be very long lasting and destructive, Ury, Brett and Goldberg urge that they be avoided whenever possible and cut short when they are necessary.[65] This can be done by developing ways to go back to negotiation as soon as the likely outcome of the power struggle is clear rather than continue to the ultimate end. This makes power struggle less damaging, and costly than they might otherwise be and allow the disputants to ‘loop back’ to more constructive dispute resolution mechanisms as soon as possible.

 

DSD usually involves creating a hierarchy of dispute resolution mechanisms. It starts with relatively informal processes to adjudicate rights-based question.[66] Some systems will end with a mechanism for testing relative power while others will not, assuming that all disputes can be handled with interest or right based approaches. While Nigerians will continue to need attorneys, who are effective in court, lawyers are increasingly called upon to play a much wider range of roles. These roles include helping the client build dispute system into their organizational processes which necessitates a more integrated approach to legal practice. The church cannot be left out in this enterprise. Thus, Dispute System Design (DSD) evolved as an aggregation of comprehensive knowledge, practice area, skill sets and dispute resolution mechanisms.

 

Religious organisations also need DSD to settle its disputes without recourse to the law courts in obedience to scriptural injunction. An example of DSD that the church can embrace is the interfaith mediation centre Kaduna.

 

·       Interfaith Mediation Centre, Kaduna

 

This centre is also known as interfaith Mediation Centre of Muslim Christian Dialogue Forum (IMC/MCDF). The Centre was started by former religious adversaries, Imam Mohammed Ashafa, a Muslim cleric and Pastor James Wuye a Christian minister. It is a non-governmental, non-partisan, non-profit making faith-based organization. Its mandate is to promote and facilitate the use of faith-based approach in conflict prevention. It also has the mandate to mediate and encourage dialogue among youths, women, religious leaders and the government to inculcate and promote the culture of self-respect and acceptance of diversity of each other’s cultural, historical and religious inheritances. IMC also cooperates with organizations with similar objective at local and international levels.

 

The organisation began in 1995 in Kaduna and it is registered with the Corporate Affairs Commission Abuja, Nigeria. For over a decade IMC has provided high quality services that have assisted public agencies and communities in conflict intervention, mediations and mitigation including training of youths, women and religious leaders in conflict management and trauma counselling. In the recent past, IMC has used its unique interactive capacity with government to serve as in-house technical adviser and has facilitated the signing of the famous Kaduna Peace Declaration of religious leaders and the Shendam Peace Accord in Plateau state.It has also recommended faith based initiative for conflict prevention and peace building at the United Nations headquarters in New York. The core values that drive the organization are accountability, mutual respect across religious beliefs, responsibility, empowerment and team work. The aspiration of the organization is the re-affirmation of the Biblical and Quranic affirmations of the common bond of the human family. It also designs flexible process to bring about solutions that are creative, fair, efficient and durable.[67] But the organization has been hampered by fund, therefore its effect has not been felt in Nigeria.

 

 

Conclusion

 

Religious organisations are not immune to conflict. As already stated, conflict in itself is not always negative. Conflict if managed properly, may help to strengthen relationship and enhance mutual benefits. This paper discusses and advocates for the use of ADR as a more effective tool for the management and resolution of conflict. As most religious organisations are predisposed to the amicable settlement of disputes, it submitted that ADR mechanisms provide the appropriate avenue for the achievement of this goal. Although not all disputes are appropriate for ADR mechanism, it is submitted that inter and intra-denominational religious organisation disputes are most suitably resolved by ADR Mechanisms. Indeed, there is little to no allowance made for the proper management of conflict in court litigation given its adversarial nature. Indeed, this is one of the major reasons for the clamour for the increased use of ADR. Given the current shift towards the ADR model of conflict resolution, it is expected that religious organisations should setup a dispute design system that prioritises ADR with a view to jettisoning the recourse to court litigation. The structure of ADR processes like mediation, arbitration and conciliation will allow for a constructive method of dispute resolution.


 

Bibliography

 

Articles

Taylor D.M and Moghadam F.M. Realistic Conflict Theory in Theories of Intergroup Relations Second Edition Westport Praeger 1994

 

Thomas K Conflict and Negotiation Process in Organization in Dunnetten and Houghl (ed) Handbook of Industrial and Organization Psycholopgy (Pat Alto: CA Consulting Psychosis’s Press 1992

 

Pindy L Organizational Conflict; Consept and Models, Administrative Science Quarterly 1967

 

Epic C. Alternative Dispute Resolution: Understanding the Problem Solving (Winwia) Approach in Negotiations: Negotiation Power House Inc.

 

Obweis. Conflict and Conflict Resolution He psychological

 

Mark Kantor Valuation for Arbitration the Arbitration Vol 75 NSL 2009

 

Boduru A. Expert Determination as a Form of ADR. The Arbitrator Vol 11 No 1 2007

 

Yakubu, D. and Hassan YB ADR in Islamic Perspective Commercial and Industrial Law Journal Vol 1 No. 1 2008

 

Books

 

Alabi D.O church conflict Resolution: A Practical Approach to Conflict Resolutions in the Church Petoa Publishers Akuye 2015.

 

Damel D. Managing Differences Fourth Edition MT7 Publication Kansas 2005

 

Ajetunmobi A.O. Alternative Dispute Resolution and Attribution in Nigeria Princeton and Association Publishing co ltd Lagos 2017

 

Orojo J.O and Ajomo M.A Law and Practice of Arbitration and Conciliation in Nigeria Mjeyi and Associates Lagos 1999

 

Ezesiofor G. The Law of Arbitration in Nigeria Longman Lagos 1998

 

Michael L.M and Robert C.B The Handbook of Dispute Resolution on Books 2005.

Cathy C. and Christian S. Merchant Designing Conflict Management System Jossy Bass 1996

 

Cases

 

Shodehinde v Almadiya Movement in Islam 1983 2 SCNCR 284 323 Thomas v Olufosye 1986 INNLR pt 18p 669 687

 

Ojiba v Ojibah 1991 6SCNJ 156 169

 

Njoku v Ekecha 1972 ECSLR 199

 

Constitution

The Constitution of the Federal Republic of Nigeria 1999

 

Statues

Artribution and Consolation Act cap A18 Laws of the Federation 2004

 

Lagos State Attribution law 2009

 

Lagos Court of Arbitration law 2009

 

Lagos State Citizen Mediation Centre Law 2007

 

Lagos Multidoor Courthouse Law 2007

 

High Court Law of Lagos State/High Court Law Rules State

 

Kwara State High Court Civil Procedure Rules 2004

 

Kogi State High Court Civil Procedure Rules 2006

 

Holy Books

 

Holy Bible

 

Holy Quran

 

 

 

 

 

 

 



[1]Alabi D.O Church Conflict Resolution: A Practical Approach to Conflict Resolutions in the Church Patoa Publishers Akuse 2015 p. 12

[2] Ibid

[3]Taylor, D.M. and Moghaddam, F.M. “Realistic Conflict Theory” in Theories of Inter-group Relations. 2nd Ed. Westport Cn; Praeger, 1994 p. 55

[4]Thomas, K. Conflict and Negotiation Process in Organisations” in DunnetteM. &Houghl. (eds) Handbook of Industrial and Organisation Psychology (Pato Alto: C.A. Consulting Psychosis’s Press, 1992 p. 119)

[5]Pondy L., “Organisational Conflict, Concepts and Models” Administrative Science Quarterly 12, 1967, p. 303 Print

[6]Olowu, S. “Conflict and Conflict Resolution” Ife Psychologia Vol. 9 No. 3 2001 p. 119 Print

[7]Kornhauser, A. Dubin, R. and Ross, A. (eds) Industrial Conflict

[8]Daniel, D. Managing Differences, 4th Ed, Ikansas: MTI Publications, 2005, p. 37 Print

[9] Ibid

[10]Okai M.O. (2008), Port Harcourt: Cal Integrated Resources Limited.

[11]Crowther (Ed) Oxford’s Advanced Learners Dictionary of Current English, Special price Edition, New York: Oxford University Press, 1998, p. 241 Print

[12]Nmah P.E. (2009), in Journal of Religion and Human Relations (ed) Ugwueye L.E, Volume 1 No 2, Awka: Department of Religion and Human Relations, NnamdiAzikiwe University

[13]Epie, C. “Alternative Dispute Resolution: Understanding the problem-solving (win/win) Approach in Negotiations” NDR J. Lagos: Negotiation Powerhouse Co. Vol. 1 No. 1 2004 p. 73 Print

[14]Ibid

[15] Black’s Law Dictionary, 6th Ed. Minnesota USA, 2004 P. 1380 Print

[16]Daver A. Manual of Dispute Resolution: ADR Law and Practice Vol. 1 Colorado Springs McGraw-Hill Inc. 1994 P. 40 Print

[17] Carrier Menkel-Meadow, “The History and Development of ADR (alternative/appropriate dispute resolution)”, Volkerrechtsblog, 1 July 2016, doi: 10.17176/20180220-230945.

[18]Ajetunmobi A.O. Alternative Dispute Resolution & Arbitration in Nigeria Princeton &Asociates Publishing Co Ltd Lagos 2017 p. 12

[19] Carrie Menkel-Meadow, “The History and Development of ADR (alternative/appropriate dispute resolution)”, Völkerrechtsblog, 1 July 2016, doi: 10.17176/20180220-230945.

[20] Ibid. at p. 15

[21] Jerome T. Barrett, Joseph Barrett, ‘A History of Alternative Dispute Resolution: The Story of a Political, Social and Cultural Movement.’ Jossey-Bass Publishing 2004

[22]Isaac Olawale Albert, Tinu Awe, Georges Hérault and WuyiOmitoogun, INFORMAL CHANNELS FOR CONFLICT RESOLUTION IN IBADAN, NIGERIA (1995) Institutfrançais de recherche en Afrique Ibadan. P.9

[23]Opeyemi, Oke Judicial System: Any Alternative in ADR? This Day Vol. 14 No. 5209, 27th July 2009, p. 54. Ibe C.E., Insight on the Law of Private Dispute Resolution in Nigeria El Demak Enugu, 2008 P. 45 Print

[24]Ajetunmobi O.A. SpCilNote 18

[25]Burton, J.W. , Conflict Resolution as Political Philosophy in Conflict Resolution Theory and Practice: Integration and Application, Edited by Cler, M.H. and Dennis, J.D.S., Manchester and New York, Manchester University Press, 1993 P. 250 Print

[26]Dunlop, J.T. and Arnold M.Z. Mediation and Arbitration of Employment Disputes. C. San Francisco, Jossey-Bass Publisher, 1997, 350 Print

[27]Section 28 High Court Laws of Rivers State;Section 28 & 25 of the High Courts Laws of Lagos State

[28]Barrett, J.T &Barret J.A. History of Alternative Dispute Resolution.The Story of a Political, Social and Cultural Movement Jessey Bass 2004.

[29]Section 19 of Constitution of the Federal Republic of Nigeria 1999 as amended.

[30]Ojibah v. Ojibah 1991 6SCNJ 156 @ 169, Njoku v. Ekeocha 1972 ECSLR 199

[31]  Bennett S.C. Arbritration Essential Concepts New York ALM Publishing 2002

[32]Orojo, J.O. and Ajomo, M.A. Law and Practice of Arbitration and Conciliation in Nigeria, Mbeyi& Associates, Lagos, 1999 p. 32 Ezejiofor G., The Law of Arbitration in Nigeria, Longman , Lagos 1998 P. 24 Print

[33]Ibid

[34]Bryan A. G, Black’s Law Dictionary, 8th Ed. Minnesota, USA, 2004 P. 380 Print

[35] Bryan A.G. A Dictionary of Modern Legal Usage, 554, 2nd Ed, 1995 P. 1882 Print

[36]Bryan A.G. op. cit., Mark Kantor Valuation for Arbitration the Arbitrator vol. 75 No. 1, 2009, p. 135 Print

[37]Bodunrin A., Expert Determination as a form of ADR, The Arbitrator Vol. 11, No. 1, 2007, p. 11 Print

[38]Ibid

[39]Ibid.

[40]Lon L. Fuller Anatomy of Law, 128 Amazing (1968) Print

[41]Alabi D.O Church Conflict Resolution in the Church.Patoe Publishing Akuje 2015

[42] Section 37 of Arbitration and Conciliation Act Cap A18 LFN 2004

[43]Examples of Lagos state arbitration legislation include: Lagos State Arbitration Law 2009, Lagos Court of Arbitration Law No. 8 2009, Citizens’ Mediation Centre Law 2009 and Lagos Multi-Door Court House Law 2007.

[44] Similar provisions are also contained in the Kwara State High ‘Court Civil Procedure Rules 2004 and Kogi State High Court Civil Procedure Rules, 2006.

[45] Holy Bible Matthew 18:15, Quran 36:58

[46] Matthew 18:15, 6:1 (Holy Bible) Matthew 5:25

[47]Alabi D.O

[48]Alabi D.O

[49]Yakubu D. and Hassan Y.B., Alternative Dispute Resolution: Islamic Law Perspective, Commercial and Industrial Law Journal, Vol 1 No. 1, 2008 p. 121, IOSR Journal of Business and Management

[50]Zahidul Islam, Provision of Alternative Dispute Resolution Process in Islam, Volume 6, Issue 3 (2012), PP 31-36

[51]Sulh literally means „to cut off a dispute‟ or „to finish a dispute‟ either directly or with the help of a neutral

third party

[52] Ibrahim Barkindo, The Role of Traditional Rulers in Dispute Resolution: An Islamic Law Perspective, A paper presented at the National ADR Summit for Traditional Rulers, held between 6th and 7th October, 2009 in Kanu Nigeria. Organizedby the United Nations Office for Drugs and Crime in conjunction with them European Union and the National Judicial Institute.

[53]Keshavjee, M. “Alternative Dispute Resolution: Its Resonance in Muslim Thought and Future Directions”. Speech given at the “Isma’ili Centre Lecture Series” April 2, 2002, London, available atwww.iis.ac.uk  

[54] Quran 4:14

[55] Quran 49:9

[56] 1983 2 SCNLR 284 at 323

[57] 1986 1 NNLR Pt. 18 p. 669 @ 687

[58]Abifarin O.S. Essays on Constitutional and Administrative Law under De 1999 Constitution of Nigeria, MafalayomiPress Kaduna 2000

[59]William U. Jeane, M.B and Stephen B.G., Getting Dispute Resolution Design Systems to Costs of Conflict, Pon Books, 1993 p. 40

[60]OluseyeAmusa, Dispute Systems Design and Legal Practice in Nigeria, National Mirror, 30 January 2012 p. 46

[61]Designing Conflict Management System  Jossy-Bass Ury, Brett Pon Books 1993 p. 65

[62]Dele Peters Alternative Dispute Resolution in Nigeria: Principles and practice Deesage Nigeria Ltd Lagos 2004. P. 9

[63]Ibid

[64]Cathy, C. and Christiana, S., Merchant Designing Conflict Management System, Jossy-Bass, 1996

[65]Ury, Brett et al op. cit Conflict principles of the Problems of the Problem Solving Organisation 8 Harvard Negotiation Law Review p. 133-157 2003

[66]Michael L.M. and Robert C.B. (eds) The Handbook of Dispute Resolution, RON Books, 2005 p. 50

[67]Abifarin O.S. The process of Dispute Resolution in Nigeria Juniper Publishers Makurdi 2015