Masai elders in a meeting                                    Photo courtesy

Right off the bat, let me say I am no lawyer, but in some matters of national interest or public policy, 'common sense' is more powerful than legal knowledge. Some in the field, may now draw the swords, but it's true nations that have been progressive, have relied on the views and expectations offered by common people to set its agenda.

US Mining Laws, for example, were crafted by miners themselves and sent to Congress for approval. In US, the constitution does not place any form of education or professional requirement in the case of appointing Supreme Court justices. In the history of US Supreme Court, there have been justices who did not have legal education. Nonetheless, the subject at hand is the use of Alternative Dispute Resolution -ADR.

To avoid clogging judicial dockets, societies have elected to seek ways to keep certain disputes out of court systems and as a result, use alternative dispute resolution methods. In Nigeria, certain matters are resolved by village councils or family gathering whereby the allegations are made, evidence tendered and witnesses called. The elders review and deliberate, and pass judgment which is imposed on the guilty party.

Back in the day, Eke village home of Onyema n' Eke, was singled out as the only village in then pre-independence Nigeria that had a lower and an appellate court system. A visiting colonial administrator observed with admiration a village trial and its appellate system, and was so impressed that he wrote the London office noting that the people considered 'primitive', had an advanced judicial system. It was on the note of such system that Onyema was invited to London to meet the Queen. His son Byron Onyema later went to London to study law. After Nigeria became independent and there was opening at The World Court at The Hague, it was natural Byron Onyema, following the judicial tradition noted in his village, was a shoo-in. Britain played significant role in Justice Byron Onyema becoming Nigerian first justice at The Hague. A 'wawa' man, and I am proud of that.

Societies advanced or primitive, have sought ways to seek redress on civil matters of certain level. In US, there is JP - Justice of Peace Courts, called small claims courts, where depending on each state rules, dispute involving claims of $5,000 or less are heard and disposed of. Judges in JP courts are not trained as lawyers. Anyone of good moral character can seek the office of JP by election. Just 'common sense' and persons deemed to be fair and equitable in their understanding of matters, whatever those are. Note, the head of County government is called a County Judge with commissioners, and it does not have to be someone with legal education or a legal Judge per se. City government is headed by a Mayor with a council.

JP court is served by Constables, not police, who serve court sermons on parties to a matter. A party to such claim, may still go to state or district court. Criminal matters, based on jurisdiction, are prosecuted as felony by the County - through the Office of District Attorney - DA, after a County Grand Jury called by the DA Office, has billed a case, leading to issuance of indictment. The police for the County is called Sheriff. Appearing before a Grand Jury, an accused/suspect, does not have the benefit of a lawyer present; they appear alone, and may elect to use an interpreter to help them convey their position or address the charges. To Bill a Case - indictment, only require a majority of 12 Grand Jurors while in a Trial by Jury, all 12 jurors must vote unanimously for a verdict to be upheld. A divided jury, is a Hung Jury, and such leads to dismal if they cannot all agree. They case be re-tried.
DA is a lawyer who must run for the post and be elected. Only in the case of the federal attorney general, is it by appointment by the president and confirmed by the US Senate.

In all the states and counties, it's by election. And in Texas, except in the case of municipal judicial officers, all Judges and Justices of the state's Supreme Court, are elected. At the state level, it is the State's Attorney General, who is also elected, that handles felony cases and again, after an indictment has been obtained from a Grand Jury, the same for federal cases done through the US District Office of US Attorney General in the jurisdiction the crime occurred. All cases of public corruption are tried in federal courts after FBI investigation and a federal indictment has been issued.

The police is never the prosecuting arm but serves as the first line in felony cases and other matters because they write the offense report and maybe called as witness. Bankruptcy is a federal matter tried in federal courts with laws of each state considered. For instance, Florida has liberal and favorable bankruptcy laws.

ADR is not a new concept but something of value to deploy to free resources that may be otherwise tied on matters of less value. Nigeria at one time had Customary Courts, which served as the lowest level of the court system but that level has been done away with. There is no limit as to what a Nigeria trial court cannot hear. In US, there is what is called court of competent jurisdiction, meaning a court is legally authorized to hear such matter. In most cases where ADR is used, a court must have sanctioned the parties to use such method and the agreement becomes binding subject to certain conditions and requirements. Some states regulate who can offer such service while in some, as long as the disputing parties elect such method and agree to the resolution, they are free to engage.

In some divorce matters, a family civil judge, may order mediation between the parties, and appoint a mediator, and whatever agreement reached by the parties, is then signed onto and the judge will on the basis of such issue a divorce decree. Note, divorce is a civil matter and handled at the county level of the state's district court. Enforcement of certain provisions such as child support is handled by the state's attorney general's office through its Child Support Division.

The US judicial set up is complex and convoluted and each state is different. The practice of law in US is granted through each state bar, and because one is a lawyer say in Texas, does not mean they can just go to Oklahoma and practice. Reciprocity is sought and granted to lawyers depending on whether the state s/he is called to the bar has reciprocity with the state they want to practice. In federal court, it is different because appearance is granted by license to practice in a federal court. There is no federal bar in US, all are states. Each state has a state appeal court and a supreme court while in Nigeria there is only one Supreme Court.

In my experience, I have served as a Grand Juror in Dallas County in 1996, and reviewed more than 1500 cases for indictment. It was a 3 month exercise. A few years ago, I was called in as a juror on a federal case but was not selected. The selection process is different. Another experience has included appointment as a Special Commissioner by a District Judge as one of 3 to decide on a condemnation case. I have also served on City of Dallas Permit and License Appeals Board, one of few quasi-judicial boards in the city whose decision cannot be overturned by the city council but by a district court.

Time and space are not enough to discuss the merits of ADR usefulness in Nigeria versus what it is in US. In terms of freeing Nigeria courts using alternative dispute resolution, it is worthy and must only be for minor civil matters. The challenge though is, if one cannot obtain reasonable judgment in Nigeria courts and judgment is hardly enforced, what sense does it make to use ADR? ADR makes sense in a civil and civilized society where parties to a dispute seek to obtain resolution, at lower than typical legal expenses/costs and free the court system. In Nigeria, with the undue sense of entitlement arrogated by and to persons by class or title, I wonder how someone of lesser class and or title, can obtain enforcement against those of timber and or caliber. A nightmare just thinking of it.

Ejike E Okpa ii
Dallas, Texas.