Authours: Joan Monye, Patience Obiagbaoso, Richard Obidegwu
INTRODUCTION
The role of the courts in the administration of justice is sacrosanct to the stability of human society. The judiciary is ideally regarded as the last hope for the common man considering the lofty responsibility of justice dispensation assigned to them by society. However, despite these crucial roles of the judiciary, the judicial process is often painstakingly slow and leaves much to be desired. This has made many people lose confidence in using the courts as it is mostly believed that delayed justice is denied justice. In a functioning society, the courts are to administer justice as efficiently and effectively as possible because it inspires public confidence in the judicial process. A judicial system that is bogged down by delay and inefficiency soon loses credibility resulting in fewer and fewer people patronizing it, and that could be the highway to self-help and anarchy. In addition, the entire legal profession comes into disrepute. No one looks forward to a system where lawyers can hold up cases endlessly and make them last for between 10 to 12 years[1].
In Nigeria today, the justice system is fraught with a lot of challenges and many people may easily be discouraged and or reluctant to take their matters to court for adjudication due to the time consuming of court proceedings, In many instances by the time the matter is determined by the court, the litigants may have completely lost interest or irrecoverable business or economic value and in no way would have benefitted from resorting to the courts. In its original form, the judicial process is set up to work efficiently, but in reality, litigants exploit loopholes and deliberately frustrate other parties and protract the matter for as long as possible.
DELAY TACTICS
Many factors are responsible for the delay experienced in the smooth, efficient and quick disposal of cases. Some of these factors are case specific while other factors are systemic. The easiest way to ensure that cases take as long as possible to conclude is for Counsel to adopt different delay tactics. The most common delay tactic is the raising of preliminary objections challenging the jurisdiction of the trial court or on mere irregularity, or on the validity of a charge itself based on some perceived defects (sometimes imaginary and illusory)[2] in case of criminal trials and frivolous adjournments. In the case of preliminary objections, the trial court is obligated to deliver its ruling on the objection one way or the other. Where the preliminary objection fails, another tactic which is sometimes executed with the intention to further delay proceedings is to appeal the decision of the ruling of the trial court at the Appellate Court termed interlocutory appeals. When interlocutory appeals are executed tactfully, it could end up stalling any real progress in the matter for a number of years particularly where stay of proceedings at the trial court is granted. It is therefore advocated that in order to avoid mischievous use of the court process to frustrate proceedings, the Court considers each application before it on its merits and exercise its discretion judicially and judiciously by striking out/dismissing applications which do not aid substantial justice.
APPEALS
Another weapon used by counsel in a malicious manner to frustrate and delay proceedings is the right to appeal whether substantive or interlocutory. Since an appeal does not automatically operate as a stay of proceedings of a court, an appellant desirous of appealing the judgement of a lower court must take a further step by filing an application to stay the proceedings complained against pending the outcome of the appeal[3]. The right to appeal is recognized by the 1999 Constitution of the Federal Republic of Nigeria as amended. [4] However, it is many a time used by unscrupulous litigants as a means of frustrating the other party to the suit as it causes a delay in adjudication. Although lacking a solid database to back up these numbers, it has been observed that the average lifespan of cases in Nigerian courts could be as high as 15 years with the appeal processes taking over 60% of this time[5]. Some examples can be seen in Ariori v. Elemo (1983) 1 SC 13 for instance which took about 23 years to conclude while Union Bank Nigeria Plc v. Ayodare and Sons (Nig.) Limited [2007] 13 NWLR (Pt. 1052) 567 was instituted at the State High Court in 1989 but was not finally disposed of by the Supreme Court until 2007 – a period of 18 years. The trial court delivered judgment in Adisa v Oyinwola [2000] 10 NWLR (Pt.674) 116 in 1985 while the appeal was not determined by the Supreme Court until the year 2000 – the appeal lasted for 15 years from the Court of Appeal to the Supreme Court. It is unfortunate that some lawyers have used and continued to use the appeal process as a ploy to stall the progress of a case. Counsel file appeals against interlocutory rulings of the court and by the time the interlocutory appeals are finally decided by the Appellate Courts particularly where there was stay of proceedings in place at the trial court, continuation of the substantive trial at the trial court becomes uneconomic. Some counsel file applications for an extension of time within which to appeal on frivolous excuses like not being able to procure the certified true copy of the judgement appealed against within the statutory period stipulated for appeal. Such application should be refused by the Court on the basis of the Court of Appeal’s decision in the case of Emmanuel v. Gomezwherein it was held that delay in obtaining the certified true copy of a ruling is not a good reason for a court to exercise its discretion to extend time to appeal.[6] The Court held further that rather than wait for a certified true copy of the ruling appealed against, the appellant’s counsel should, with dispatch, file an omnibus ground of appeal within the prescribed period and when he eventually obtains the certified true copy of the ruling, he should seek to leave to file additional or modified or amended grounds of appeal.
Another major solution to the problem of using appeals as a ploy to stall trial at the lower court is by adopting a similar practice direction contained in the Election Tribunal and Court Practice Directions 2011 which empowers the Court of Appeal to consolidate all interlocutory and substantive appeals in an election petition. Therefore, at the trial stage, the High Court (Civil Procedure) Rules should be amended in such a way that Judges must refuse to stay proceedings of the substantive suit to await the decision of the Court of Appeal on an interlocutory ruling and not left at the discretion of the court
More so, the Court can shorten the life span of a case if it imposes punitive costs and penalties for default of appearance or delay in filing process or delay in compliance to the rules of the relevant court. In addition, where a party fails to appeal within the period prescribed by law, the Court should not grant an application for leave to appeal or for extension of time unless in special circumstances or in the alternative, impose punitive penalty on the appellant.
BACKLOG OF CASES
In May 2018, the then Lagos State Chief Judge, Honourable Justice Opeyemi Oke stated that there were over 3,000 backlogs of cases in different courts across the state which was described as an alarming figure. The Chief Judge stated that significant efforts would be made under her watch to reverse the trend in order to restore public confidence in the Lagos State Judiciary and make administration of justice quicker and more efficient[7].
The proffered solution was the launch of the Lagos Backlog Elimination Programme (BEP) which was designed to decongest the courts by re-evaluating old cases and finding ways of resolving them through Alternative Dispute Resolution (ADR) or accelerated hearing. The BEP initiative was conceived as part of Honourable Justice Oke’s desire to substantially tackle inordinate delay of court cases and court congestion. The Chief Judge lamented that “Delay has led to public ridicule of the judiciary which is supposed to be the hope of the common man. This delay, coupled with the continuous filing of new cases has led to congestion in Courts with a ridiculous number of a backlog of cases, the result of which the courts are now in a state of emergency”.[8] Presently there are hundreds of cases in the court dockets aged over 5 years, the oldest of which is a 70-year-old case. This is a far cry to what can be said to be a reasonable time. Ideally, the matters ought to be concluded in weeks, months or at most a year. Many of these cases ought not to be in court at all as they could have been resolved through ADR”, she noted.
The first phase of the BEP involved the evaluation of old cases in batches by volunteers from different law firms, the first batch involving case files between five years and above; the second batch involves case files of 10 years and above while the third batch comprises of case files from 15 years and above[9]. The BEP is an ongoing process which is still being executed. Following the introduction of the High Court of Lagos State (Civil Procedure) Rules 2019, the Chief Judge of Lagos State introduced the “Expeditious Disposal of Civil Cases Practice Direction”. The Practice direction provides that undecided cases that have been pending in court for over 5 years are designated as backlogs and referred for resolution to a “Special Backlog Conference Judge”. The ongoing practice direction is being effectively executed by the Judges of the High Court of Lagos state and can be seen as a step in the right direction the administration of justice in Nigeria[10].
OTHER JURISDICTIONS
According to a 2007 Princeton Study, the average duration of a civil case in the US (from the filing to the disposition by the judge, be it a default, a settlement, or a decision) has remained more or less constant from 1940 till the early 2000s at about 12 months. Their suggestions to improve these figures were improvements in court management reliance on technological advancements[11].
According to the UK Ministry of Justice’s criminal court statistics, for all criminal cases in 2018, it took an average of 157 days between the offence being reported to the completion of the case. When compared to Nigeria, the average time a criminal trial proceeding takes prior to the enactment of the Administration of the Criminal Justice Act (ACJA) is four to six years[12]. Between 2018 and 2019, the average time taken to complete magistrate cases in England has risen 6% from 151 days to 159 days[13]. Comparing this to Nigeria, in 2011 it took 593 days on average to complete a case in the Magistrate Courts in Kaduna State[14].
In the UK County Courts in 2017, there were 58,500 trials/hearings for all claims. For small claims, there was an average of 31 weeks between the issuing of a claim and a trial/hearing. From January to March 2020 the average time taken for small claims and multi/fast track claims to go to trial was 39.7 and 59.6 weeks[15].
In India, 57% of district and subordinate court cases take more than 10 years to dispose of. One of the main reason for the substantial length of Indian court cases is the extremely high population and the relatively little number of Judges available to handle the numerous cases[16].
When compared to other Jurisdictions, Nigeria is far behind in terms of the length of time that court cases take to be completed with some examples wherein Nigeria the average time spent is about 10 times more than some jurisdictions.
CASE MANAGEMENT SYSTEM
Delay in the judicial process is one of the most potent causes of disenchantment with the justice delivery system. This problem is by no means peculiar to Nigeria but is found in almost all judiciaries worldwide. In Nigeria, the lower courts deal with the largest volume of cases and so delays at this level have the greatest impact on the system as a whole, therefore a case management system at this level is highly recommended. A case management system (CMS) is one means of reducing delays in courts[17]. A CMS can either be a manual, paper-based system or a computer-based system using software to create an electronic cash register. Whether manual or electronic, a CMS is a means of recording information on an individual case (e.g. case number; the name of parties; offence etc.) and tracking the case’s progress through the court system. The information gathered through the system can then be analyzed to inform decision making and policy with a view to improving efficiency and effectiveness of court operations
The development and implementation of the CMS is a direct response to the problem of trial delays in the courts. The CMS enables courts to: generate information to more effectively track the progress of cases and identify stalled or slow moving cases. Identify inefficient processes and bottlenecks in the system and take informed actions to improve court efficiency. Provide ‘management information’ to increase the accountability of the courts on their overall performance (case numbers, disposal rates, etc.)[18]. For example, in the United Kingdom, the Civil Procedure Act 1997 and the Civil Procedure Rules 1998, called for case management strategies such as the setting up of a timetable for monitoring of the progress of cases in respect of large claims and a paradigm shift of the responsibility for the management of civil litigation from the litigants and their counsel to the courts. A new fast track was also developed for small claims at the lower rung of the judicial ladder while all other cases were placed on multi track system. Furthermore, cases were put through pre-action protocols, thus cutting down drastically delays in the judicial process.[19]
In America, Section 479 (c)(1) – (3) of the Civil Justice Reform Act, 1990 mandated the introduction of “case management” systems, in response to the need to cut down delays in the civil litigation process. The underlying principles included (a) differential treatment of cases in accordance with their complexity, duration and probable length of time they would last; (b) the early involvement of a judicial officer in planning the progress of the case; and (c) regular communication between a judicial officer and counsel involved during the progress of the case. In criminal matters, case management strategies include plea-bargaining, and victim-offender mediation, community service, parole, suspended sentencing and Alternative Dispute Resolutions, all geared towards cutting down delays.[20]
ALTERNATIVE DISPUTE RESOLUTION
The use of Alternative Dispute Resolution (ADR) (like Arbitration, Mediation, conciliation etc) is rapidly spreading around the world, being used to relieve court congestion and provide expertise in various subject matter disputes. The growing popularity of ADR worldwide attests to the wide acceptance that litigation is no longer the exclusive process of decision making in our civil justice system. Today, ADR is generally perceived as a potential route to civil justice. In Australia, USA and Canada, it has gained prominence in preference to litigation[21]. In Nigeria, it is recommended that another possible solution to mitigating the lengthy court procedures is resort to Alternative Dispute Resolution (ADR). Alternative dispute resolution typically entails a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement before an arbitral tribunal without going through the huddles of litigation ADR basically gives the parties in disputes an alternative, faster, less stressful, more durable, and more interest-based process unlike going through court process. One of the most popular forms of ADR is arbitration, some other forms also include Mediation, Conciliation and Negotiation.
In most commercial transactions ADR is a faster approach to resolving disputes than litigation and apart from being a quicker alternative, it automatically reduces the burden on the courts by reducing the number of court cases.
According to the IBA Arbitration Guide for England and Wales, “If the parties have a relatively straightforward dispute, co-operate and adopt a fast track procedure, arbitration can be concluded within months or even weeks.” In a substantial international arbitration involving complex facts, many witnesses and experts and post-hearing briefs, the arbitration could take many years. A reasonably substantial international arbitration will likely take between one and two years[22].
Taking the above into consideration, Arbitration and other forms of dispute resolution should be encouraged and used as much as possible especially in corporate and commercial transactions.
In conclusion, civil trials and other court processes are extremely important and complex procedures, as a result, they require enough time and effort to operate effectively and produce the best possible outcome. Even in other jurisdictions that are more advanced, court cases take a considerable amount of time to be concluded.
However, it is often said that justice delayed is justice denied and in order not to further deny people the justice they deserve, it is important that the judicial system function efficiently to ensure that court cases begin and conclude as quickly as possible. Again, it is said that the judiciary is the last hope of the common man. Whoever comes to the judiciary expects to be given the latitude to establish his rights and not to lose them. Therefore efforts should be made to improve on the current situation as seen by the Lagos state Chief Judge with the aforementioned Backlog Elimination Programme (BEP). More improvements need to be made in regards to reliance on the available technology, the judicial system requires a more expansive database and more technical and technological know-how in order to implement a working case management system. There is also a worryingly low amount of Judges in the country, especially Lagos state, with an improvement in the number of active judges, the problem of backlog of cases would be lessened which could, in turn, lead to less time spent by Judges on each matter. Another important step to take is finding ways to combat delay tactics employed by counsel to waste the time of the court. Some of the aforementioned suggestions were amendments to the extant rules of court mandating Judges to refuse applications to stay proceedings of the substantive suit pending the decision of the Court of Appeal on an interlocutory ruling and also set more punitive measures by imposing heavy costs and penalties for default of appearance or deliberate delay in filing process amongst others. In addition, where a party fails to appeal within the period prescribed by law, the Court should not grant an application for leave to appeal or for extension of time unless in special circumstances or in the alternative, impose a punitive cost for the deliberate or negligent delay as to make it unattractive for litigants or their counsel, who are inclined to using dilatory tactics to delay the trial for whatever reason catches their fancy. Put another way, dilatory tactics would continue in our courts so long as the culprit finds that the consequence of delay is bearable. But once they find out that the consequence is unbearable, they would quickly desist from using such tactics. To put an end to incessant requests for adjournments, it is suggested that a provision should be inserted in the various rules of Court whereby a particular number of adjournments can only be allowed in a pending case at the instance of each of the parties.
It is also recommended that an application for stay of proceeding should not be entertained until the judgment is delivered in the substantive suit as it is no longer in doubt that stay of proceeding has become a clog in the wheel of speedy disposal of cases. Whatever interlocutory issues a party has, it should be taken together in the substantive appeal to ensure that no time and finances are dissipated in pursuing needless interlocutory applications.
Lastly, there should also be more reliance on ADR in order to reduce the number of cases in court and avoid unnecessary litigious disputes.
[1] https://nji.gov.ng/images/Workshop_Papers/2017/Orientation_Newly_Appointed_Magistrates/s2.pdf
CURBING DELAYS IN THE ADMINISTRATION OFJUSTICE: A PAPER PRESENTED BY JUSTICE DAVID G. MANN1 AT THE ORIENTATION COURSE FOR NEWLY APPOINTED MAGISTRATES, ON 24TH JULY 2017
[2] Olayinka Aileru, ‘Preventing Delay Tactics In Criminal Trials In Nigeria’ (Punch Newspapers, 2020) <https://punchng.com/preventing-delay-tactics-in-criminal-trials-in-nigeria/> accessed 1 August 2020.
[3] ‘Effect Of Appeals On Course Of Trials – Litigation, Mediation & Arbitration – Nigeria’ (Mondaq.com, 2020) <https://www.mondaq.com/nigeria/trials-appeals-compensation/309008/effect-of-appeals-on-course-of-trials> accessed 4 August 2020.
[4] Section 241 of the Constitution of the 1999 Federal Republic of Nigeria Chapter C23 Laws of the Federation of Nigeria (as amended).
[5] ‘Effect Of Appeals On Course Of Trials – Litigation, Mediation & Arbitration – Nigeria’ (Mondaq.com, 2020) <https://www.mondaq.com/nigeria/trials-appeals-compensation/309008/effect-of-appeals-on-course-of-trials> accessed 4 August 2020.
[6] Emmanuel v. Gomez supra. See also Imprest Bakolori Plc v. Abdulazeez [2003] 1 NWLR (Pt. 834) 307
[7] ‘LAGOS CJ DECRIES BACKLOG OF COURT CASES – Lagos State Government’ (Lagos State Government, 2020) <https://lagosstate.gov.ng/blog/2018/05/17/lagos-cj-decries-backlog-of-court-cases/> accessed 4 August 2020.
[8] ‘LAGOS CJ DECRIES BACKLOG OF COURT CASES – Lagos State Government’ (Lagos State Government, 2020) <https://lagosstate.gov.ng/blog/2018/05/17/lagos-cj-decries-backlog-of-court-cases/> accessed 4 August 2020.
[9] ibid
[10] Damilola Osinuga, ‘The High Court Of Lagos State (Civil Procedure) Rules 2019 – A Step To Improving The Administration Of Justice? | Lexology’ (Lexology.com, 2020) <https://www.lexology.com/library/detail.aspx?g=f390e3e0-a2f6-4173-8fd1-4eaff242f72a> accessed 2 September 2020.
[11] Justice Delayed… an Overview of the Options to Speed Up Federal Justice https://jpia.princeton.edu/sites/jpia/files/2007-6.pdf accessed 4 August 2020
[12] ‘Preventing Delay Tactics In Criminal Trials In Nigeria’ (Punch Newspapers, 2020) <https://punchng.com/preventing-delay-tactics-in-criminal-trials-in-nigeria/> accessed 2 September 2020.
[13] ‘Growing Court Delays ‘Damaging Trust’ (BBC News, 2020) <https://www.bbc.com/news/uk-england-37482952> accessed 4 August 2020.
[14] (Justice-security.ng, 2020) <https://www.justice-security.ng/sites/default/files/how-to-improve-performance-courts.pdf> accessed 2 September 2020.
[15](Assets.publishing.service.gov.uk, 2020) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/889851/civil-justice-statistics-quarterly-Jan-Mar-2020-accessible-.pdf> accessed 4 August 2020.
[16] Amitabh Kant, ‘How To Speed Up Judiciary: Let’S Make India’S Slow Courts World Class’ (The Economic Times, 2020) <https://economictimes.indiatimes.com/news/politics-and-nation/how-to-speed-up-judiciary-lets-make-indias-slow-courts-world-class/articleshow/58693205.cms> accessed 2 September 2020.
[17](Britishcouncil.org.ng, 2020) <https://www.britishcouncil.org.ng/sites/default/files/c2_how_to_guide_051214_final2.pdf> accessed 4 August 2020.
[18] ibid
[19] Hon. Justice A.A.I. Banjoko, “The Managerial Judge: Strategies to Curtail Delay,” A Paper delivered at the Refresher Course for Judges and Kadis in March 2009.
[20] Hon. Justice A.A.I. Banjoko, “The Managerial Judge: Strategies to Curtail Delay,” A Paper delivered at the Refresher Course for Judges and Kadis in March 2009.
[21] https://academicjournals.org/journal/JLCR/article-full-text-pdf/92A256E65636
[22] Arbitration Guide IBA Arbitration Committee ENGLAND & WALES (Updated January 2018) file:///C:/Users/RICHARD/Downloads/EngWales-IBAArbitrationGuide.pdf Accessed 18/8/2020
