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PROPOSAL

FOR

Ph.D. THESIS

TITLE:

THE LEGAL FRAMEWORK FOR ALTERNATIVE DISPUTE RESOLUTION IN COURTS WITH SHARĪ‘AH JURISDICTION IN NIGERIA, MALAYSIA AND SINGAPORE

By

[NAME]

[Previous Qualifications, degrees, etc.]

MATRIC NO.:

PROPOSED SUPERVISORY COMMITTEE

PROF. DR. XXXXXX (Main Supervisor)

ASSOC. PROF. DR. XXXXXXX (Co-supervisor)

ASSOC. PROF. DR. XXXXXXX (Co-supervisor)

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia

1. INTRODUCTION

The current trend in most developing countries across the world is a paradigm shift from the colonially-inherited litigious method of dispute resolution to the amicable means.^[1]  This trend generally had a great impact in countries across the world in the twilight of the 20th century. Most modern means of dispute resolution have been practiced by most communities in Africa and Asia from time immemorial. The age-long traditional dispute resolution in these communities had a great impact on the societies before the colonial domination.  The village heads and traditional rulers primarily function as mediators in disputes within their domains.^[2] 

The modern reforms in court-connected dispute resolution only came in a more formalized manner which has had a great impact on the administration of justice system in most jurisdictions across the world.^[3] Even this seemingly formalized alternative procedure in the modern court system has been criticised in some quarters. Some have argued that ADR processes are sui generis procedure and are inherently informal.^[4]  The negotiation process has been depicted as being informal and has the tendency of compromising key legal issues.^[5] This debate on the efficacy of informal justice has created worries and fears in the minds of many.^[6] This gave rise to the anti-ADR movement which came up with some constructive criticisms. They came up with criticisms against ADR which include the fact that there are issues that are non-negotiable, the narrow focus on interest, the focus on individual is problematic, and unequal bargaining power which may lead to unjust outcomes.^[7] This line of argument has been overcome by developments in dispute resolution across the world particularly at the dawn of the 21st century.  It has been established that the element of informality in the process of dispute resolution has proved to be the hallmark of the system itself.  Parties feel free when there is less external pressure and tend to reveal more information concerning the nature and the root of the dispute when there is privacy.

It is important to critically look into the actual role of the courts in promoting access to justice as opposed to the well-known procedural justice.  Access to justice is important in all situations, as the courts are required to dispense transparent justice in all cases.  This was the re-amplified by the court in Kenon v. Tekam,^[8] where it was held that justice should both be done and be manifestly seen to be done.  Protracted cases that transcend a reasonable period of settlement in or outside the court cannot be said to have displayed transparent justice even if such cases were eventually decided but at a later time. This is the reason for the often-quoted dicta that justice delayed is justice denied.^[9] In Rhode’s words, access to justice for all is one of the most proudly proclaimed but widely violated legal principles in most jurisdictions across the world. “It embellishes courthouse entrances, ceremonial occasions, and constitutional decisions.  But it comes nowhere close to describing the legal system in practice.”^[10] Increase of access to justice is one of the advantages of ADR and mediation in particular especially for the economically disadvantaged group.^[11]

This research fundamentally examines the suitability and effectiveness of court-connected ADR processes within the framework of courts with Sharī‘ah jurisdiction in Nigeria.  The effectiveness of such programme as part of the enhancement of the administration of justice system in the Sharī‘ah courts in Malaysia and Singapore will be critically looked into with a view to restructuring the legal framework of dispute resolution in the courts with Sharī‘ah jurisdiction in Nigeria. It is important to emphasize that Islamic law has established ADR processes which range from mere settlement of interpersonal disputes to providing ADR mechanisms that better fit the needs of the disputants.  These processes include Sulh (mediation), Tahkim (Arbtiration), Med-Arb, Muhtasib (Ombudsman Judge), Fatwa of Mufti (Expert Determination), and Walī al-Mazālim (Chancellor).  The processes have been widely practiced in Islamic legal history, as there a number of precedents that fit the needs and circumstances of the modern world. A major aspect of the Islamic law concept of ADR is dispute avoidance.  This has been part and parcel of administration of justice system in Islamic jurisprudence.  

Nevertheless, though the focal point of our discussion is to look into the courts with Sharī‘ah jurisdiction in Nigeria, the main thrust will be focused on the Sharī‘ah Court of Appeal. Therefore, we shall examine the jurisdiction of the Sharī‘ah Courts of Appeal as well as its procedure of dispute resolution. The compliance of the procedure of being adopted by the Sharī‘ah Court of Appeal in dispute resolution with the Islamic law models will be considered in line with current trends in the modern world. The modus operandi adopted by the judges of the Sharī‘ah Court of Appeal will be examined through an empirical data.  The data collected will be analysed to determine the current state of things in the courts. This will serve as a springboard for proposition of a better legal framework the enhance administration of justice system.