Nigeria’s court procedural landscape is sluggish and inefficient and needs Reform

For decades, civil litigation in Nigeria has been besmirched by leprous devices, seemingly concocted to defeat the ends of justice. Lawyers created these devices to keep themselves looking busy while achieving little. Lawyers wake up in the morning, don their wigs and gowns, and go to court. You would think they were doing something important or useful. Instead, in court, lawyers deploy, exploit, and manipulate these devices – by devices I mean gambits like “adjournment”, “call-over, “date, “extension of time”, “jurisdiction”, “mention”, and “objections” etc.

Lawyers on opposing sides may disagree on the merits of their respective cases, but they agree on the frequent invocation of these mantras. Judges, who are of course lawyers and most have practiced this hocus-pocus for decades before ascending the bench, watch in bemusement, fellow-feeling, empathy, or sympathy. Sometimes, chagrined by the damage lawyers’ wizardry was doing to justice delivery, some judges wished they could intervene to stop it all. But they feared they could not, because that meant descending into the arena; a species of witchcraft condemned by a long line of their illustrious forebears at common law. The mantra seemed to be: Once you ascend (to the bench), you must never descend (to the arena).

Thus the adjournment culture has flourished – a conspiracy between bench and bar to deprive paying clients of their day in court. Lawyers can argue for an hour over a date-fixture while the Judge, apparently entranced, watched in silent disdain. It is only in the business of law that people go to work just to argue about when to begin scratching the work. They call it mention’. “The matter is for mention”. If your doctor did that, you would sue for medical malpractice!

In Nigeria, the adjournment culture is so deeply entrenched that even good lawyers go to court expecting an adjournment. Judges are almost always willing to oblige. Often, when a case is called up, neither bar nor bench is prepared to proceed. Counsel is often unprepared: The Judge has not read the file.

Everyday, large numbers of lawyers, looking like penguins or dolphins and wearing uncomfortable apparel, crowd into courtrooms all over Nigeria, for call-overs and the like, with little respect for time or their clients’ business.

Cases take far too long. On average, a case takes 15 years to crawl from the High Court to the Supreme Court, bogged down in the meantime by interlocutory appeals to the Court of Appeal and the Supreme Court, while the substantive dispute stalls at the High Court.

There are far too many frivolous or unnecessary cases clogging the court system. On 24 October 2011, a Report of the National Judicial Council (NJC) Subcommittee on Speedy Dispensation of Justice reported that some 75% of cases on court dockets all over the country, ought not to be there in the first place. They were frivolous or unnecessary. They did not deserve judicial attention. Unfortunately, the court system welcomes all cases without filter. So the litigants virtually order the courts around. Litigants, through their lawyers, file and discontinue cases without regard to the court’s time. Even an abandoned case can remain on the dockets for years, under the guise of fair hearing. Hearing notices issue ad infinitum to unwilling parties.

This is not a realistic model of managing a modern court. The court cannot continue to be an all-comers’ dispute-resolution stadium. Its business model must be re-defined so that the court transforms into a dispute-resolution engine room with a mind of its own and a freedom of choice about which disputes it can or should take on. We must erect a firewall against the halls of justice to protect the courts against viral abuse. Frivolous, unnecessary, or vexatious claims are viruses in the bloodstream of our judicature.

Even some meritorious cases are not suitable for litigation. Each High Court in Nigeria needs to install court-annexed ADR to filter certain categories of claims. Some small claims with little legal controversy ought to be immediately referred to mediation. Tenancy disputes and simple debt claims come to mind, and there are other categories of claims that are also amenable to mediation rather, than litigation. The Lagos State Mediation Centre is now a beehive of settlement negotiations, unburdening the courts from loads of potential litigation. At the Lagos Centre, many disputes are settled, often to the satisfaction of all sides, in a matter of hours; others in a few days or weeks. In the course of having their disputes settled, many parties understand their legal rights and liabilities in a manner that precludes future disputes. Parties can be represented by counsel or attend in person. The success rate is high.

We should evolve a concept of litigability, similar to but more expansive than arbitrability. If a case is frivolous or unnecessary, or inapt for judicial resolution, we should be able so say it’s not litigable!

Even when a court admits a case, it should decide how much of its resources to devote to that case.

Let us radically reform our civil procedure system. The emphasis of the reforms is about case management. Other jurisdictions have understood the transformative value of case management in making litigation cheaper, quicker, smother, more efficient, and more effective.

But we have not been idle. Attempts to speed up justice delivery through civil procedure reform have been repeatedly undertaken over the past few decades. Unfortunately, each change of rules has not been followed by a change in judicial attitude. Judges still bow to the tyranny of rules, interpreting them with a degree of strictness, sometime higher than that applied to statutes. Unless this attitude is changed, reforms will fail. As was pointed out by the High Court of Lagos State Civil Procedure Review Panel:

• The Civil Justice System has still not attained the desirable level of efficiency;
• Litigation is still slow and uncertain in terms of the time it takes to bring cases to Conclusion
• There is a need to make rules that will guarantee as much certainty as the nature of the particular case will allow.
• The Rules must be effective and organized’ and as far as possible reduce the incidence of exploitation by counsel’
• There is need to deal with cases more speedily.

The judiciary must bring to the application and interpretation of court rules, a high degree of flexibility in keeping with the guiding philosophy of those rules – the swift delivery of justice with business-like efficiency. Case management is the spirit of modern court rules.

I suggest that judges must now go beyond procedural reform and adopt case management tools as their dominant work ethic. With each progressive change of rules in the past, judges have simply transferred to the new rules, their doctrinaire approach to the old. But the purpose of each recent rules change has been to drop that ancient regime of slavery to rules and pick up the new system of management by the judges. The judges with case management, must control the progress of litigation. Judges must regard the rules as a ready and steady handbook to guide them in their task of managing and resolving litigation.

I have in the last 30 years advocated for transformative civil procedure reforms. I suggested ideas to the Lagos State civil procedure reforms 20 years ago. The then revolutionary Lagos rules of 2004, borrowed generously from a model code I produced with Mr. Chinua Asuzu, whose expertise is at the heart of this article. That model, and the Lagos rules themselves, introduced case management, but the old judicial attitude frustrated its full application.

At the Federal High Court, the era of Honourable Justice Babatunde Belgore as Chief Judge, marked a watershed in the evolution of the court’s procedural regime. That illustrious era produced a reinvigorated Federal High Court Rules, Companies Proceedings Rules, Companies Windings-Up Rules, Bankruptcy Rules and Admiralty Jurisdiction Rules.

Federal High Court Chief Judge, Roseline Ukeje, initiated procedural reforms during her tenure. Her successor, Chief Judge Abdullahi Mustapha, concluded the reforms with a new civil procedure code, replacing the 2000 version. The Mustapha Rules introduced a fundamental objective, similar to the overriding objective of the English Rules, to serve as the guiding policy behind the rules. Other innovations included frontloading and written addresses. Again, I was privileged to contribute to these improvements. Sadly, judges largely ignored the idea of the fundamental objective, which ought to have marked a revolution in Speed of Justice. Judges continued to apply and interpret court rules as individual clauses in need of special implementation, instead of guides, for managing cases towards quick conclusion.

I proposed the thematic direction and radical content of the Fundamental Rights (Enforcement Procedure) Rules launched by the late CJN Kutigi. Again when the late Dahiru Musdapher, CJN, convened a Stakeholder Summit on Judicial Reform, I served as vice chair to Belgore CJN (Rtd.) on the Speed of Justice Committee. At the heart of the Musdapher reforms is how the courts can function quickly and more efficiently.

Musdapher CJN was concerned about speed of justice in Nigeria. He pointed out that, although the Supreme Court disposed of 163 matters in the 2010-2011 legal year, some 1,400 matters were still pending before the Supreme Court at the time he left office. The learned CJN stated that even if the Supreme Court had its full complement of 21 Justices, it would take years to clear the backlog of cases.

Chief Judge D. D. Abutu of the Federal High Court proposed improvements to the Admiralty Jurisdiction Rules and the Compnaies Winding-Up Rules. He was able to complete the Admiralty Jurisdiction Rules review.

The Chief Judge of the Federal High Court, Hon. Justice Ibrahim Auta OFR has been a very passionate procedural reformer. Auta CJ ushered in a brand new and highly auspicious era in civil procedure review. Auta CJ introduced Practice Directions for Commercial cases. He was kind enough to welcome my input. Auta CJ worked on review of the Federal High Court (Civil Procedure) Rules, the Companies Proceedings Rules, The Companies Winding-Up Rules, and the Bankruptcy Rules. Regrettably these rules review are yet to be completed.

We at Olisa Agbakoba Legal, have a project styled, the Speed of Justice Project. The aim is to make case management, the mantra of the Nigerian Judiciary. Judges need to internalize the culture of managing cases for speedy disposal. The Speed of Justice project is to remind Judges that the purpose of the rules changes of the past 3 decades has been to speed up court proceedings. The project will introduce a radically modernized civil-procedure code; a draft has already been prepared and presented to Heads of Courts. But unless judges radically change their attitude, new procedural codes will achieve little. The new judicial attitude, as urged by the Speed of Justice project, is that judges ought to take on cases as case managers. So judges are like workers in a business-corporate-institutional environment. Like doctors who treat their patients, judges must come to the courthouse to treat cases. Like those doctors, judges must apply a range of case management therapies.

Happily, many judges are gradually beginning to appreciate the need to work in a modern, result-focused, and immediately useful fashion, that serves the parties before them and the larger society. So judges must internalize the case- management culture and jettison the adjournment culture.

To the many progressive Nigerian judges who wish they could intervene to restrain obstruction or protraction of proceedings, we say: Yes, you can. With case management, your lordships can intervene to thwart adversarial abracadabra.

OLISA AGBAKOBA, SAN