A Senior Advocate of Nigeria, Ebun Sofunde has called on stakeholders in the justice sector to declare a state of emergency in what he termed the “current state of the justice delivery sector in Nigeria.
Sofunde, SAN who read the address of the Body of Senior Advocates of Nigeria (BOSAN) at the Special Court Session to mark the commencement of the Supreme Court’s 2023/2024 legal year and the conferment of the rank of Senior Advocates of Nigeria on Monday highlighted a number of issues.
- Inordinate Delays in The Delivery of Justice
The most obvious manifestation of this system is the inordinate amount of time it takes to dispose of cases. On 2nd February 2005, the Attorney-General of Lagos State filed an Originating Summons at the High Court of Lagos State against National Sports Lottery Ltd (“NSL”). NSL filed a preliminary objection challenging the jurisdiction of the court. The court dismissed the preliminary objection on 18th April 2005 and NSL appealed. In a judgment delivered on 16th July 2008, the Court of Appeal agreed with NSL that the High Court of Lagos State lacked the jurisdiction to the entertain the suit. The Attorney-General of Lagos State instituted an appeal to the Supreme Court in 2009. The Supreme Court, on 31st March 2023 (18 years after the matter was commenced at the High Court!), held that the High Court of Lagos State indeed had jurisdiction, and then sent the case back to the High Court of Lagos State for a determination on the merits.[1] If it took 18 years for a State to see off a preliminary objection to a suit commenced by originating summons, what would be the fate of ordinary litigants?
Shell Petroleum Development Company Ltd v Amaro & Ors[2] is a case commenced in 1983 by, as I understand it, the father of one of the new silks we are celebrating today, in the High Court of Bendel State, Warri Judicial Division. I understand that the new silk was only two years old at the time of the commencement of this case. The suit was consolidated with another suit in 1985 and the High Court delivered its judgment in favour of the plaintiffs in 1997. The defendant appealed in the same year and the Court of Appeal dismissed the appeal in 2000. Dissatisfied once again, the defendant appealed to the Supreme Court. The Supreme Court delivered its judgment dismissing the appeal in 2015 (thirty-two years after the suits were commenced at the High Court). By this time, the new silk had, as I again understand, qualified as a lawyer, and even appeared with his father at the hearing of the appeal at the Supreme Court!
Things ought not to continue like this and we, the bar, and the bench, need to come together to take concrete action to ensure that our system of administration of justice is fit for purpose. If we do not do this quickly, the confidence of the public in the system, which is at an all-time low, will plunge to a point where it may no longer be redeemable. It is no coincidence that citizens now prefer to take their civil disputes to law enforcement agencies for resolution. Law enforcement agencies now fill the void that has been created by our failure to make the system of administration of justice work for those who should see the courts as “the last hope of the common man.” Indeed, I have a friend who told me that if he wanted to evict his tenant, he would forcibly evict him and take possession of the house and then defend any action brought against him.
- Inconsistent Judgments And/Or Judgments Given Without Considering Previous Relevant Judgments
There are too many inconsistent judgments emanating from our appellate courts. This makes it difficult for a litigant to be able to take an informed decision as to whether to maintain or defend an action. It has also made it difficult for the Lower Courts to observe the rule or principle of stare decisis effectively.
The judgments that come out of the courts of a jurisdiction are a mirror through which outsiders view the quality and state of its system of administration of justice. The more overwhelmed our justices are by their caseload, the less time they will have to write well thought-out judgments. For me, as one who has been in active legal practise since 1972 and been in the inner bar since 1988, this is one of the most devastating effects of our system of administration of justice today.
- Interference With the Administration of Justice by Administrative Acts of The Court
A lot of delays are caused by disruptive administrative acts of court administrators. This is most evident in the way judges are transferred. It is an established principle of our law that when a new judge takes over a part-heard matter, trial must start de novo. Why then do our federal courts of first instance transfer their judges to different states or divisions without adequate planning? Ideally, if judges must be transferred, they should know at least one year in advance, and they ought not be assigned new cases during that “transition period”. The same goes for retiring judges. One of the most predictable things in our judicial system is the date on which a judge will retire from service. Why then don’t we proactively manage the dockets of judges whose retirements are imminent so that the trials before them do not have to be started de novo after they retire? These are problems that could be easily dealt with administratively by court administrators.
- Delays Caused by Redundant Provisions in The Rules of Court
We need to take another look at the rules of our appellate courts that state that once an appeal has been entered, the appellate court shall be “seised of the whole of the proceedings”. This rule has become a tool with which lawyers delay proceedings, safe in the knowledge that the lower courts are reluctant to be seen as engaging in “judicial rascality” by continuing to hear cases that are the subject of an interlocutory appeal which they have the discretion to do in appropriate cases. While this problem has been somewhat solved in criminal cases by section 306 of the Administration of Criminal Justice Act, there is a need to amend the rules of our appellate courts to make it harder for lawyers to tie the hands of lower courts by simply rushing to have their interlocutory appeals entered, no matter how bereft they are of merit. In effect, it is my suggestion that Rules of the various Court be amended to remove provisions that are impractical or work injustice of some sort.
- Preference For Technicality Over Substantial Justice
Judges are humans after all, so, when they are overwhelmed by their caseload, it is inevitable that they will treat cases in a perfunctory manner. The goal will become the disposal of as many cases as possible, even if that means sacrificing justice. It is therefore not surprising that a great number of judgments coming out of our apex court, which should be a court of policy, are disposed of on technicalities. The days when our Supreme Court admonished that “justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirlgig of technicalities, to the detriment of the determination of the substantial issues between them”[3] seem to be a distant memory. Our present reality is that appeals are now struck out at the Supreme Court, after spending decades to work their way up there, because a lawyer’s seal was not affixed on the originating process at the court of first instance.
- Suggested Ways Forward
A lot of the above problems, for instance, excessive delays, inconsistent decisions and technicalities over substance are caused largely by the excessive workload faced by the courts. For instance, I have been told on several occasions that the Supreme Court of Nigeria is the most over-worked Supreme Court in any Country of the World. If that is true, this may be rectified by limiting drastically the right of appeal to the Supreme Court (whether as of right or with leave). Secondly, the attitude of our courts should change regarding the way leave is granted to appeal too readily.
On the other side of the coin, I look back to the early years of my practice when judges were not overworked and, consequently, cases were disposed of expeditiously and mostly on the merits. I remember that in the early 80s, I appeared before the Lagos Division of the Court of Appeal then presided over by the late Justice B. O. Kazeem. It was an application for a departure from the rules to allow my interlocutory appeal to be heard on the bundle of documents that I compiled that came up. To my surprise, when the case was called, Justice Kazeem asked me if I was ready to argue the appeal. I reminded him that we were in court for my application for a departure from the rules. It was in February. Justice Kazeem’s response was that if I was not ready to take the appeal that day, he would adjourn my application to November. Of course, it was a simple appeal, so I said I was ready to argue the appeal. that day. Counsel for the respondent also said he was ready. The application was stood down and heard later that day as an appeal. Of course, the court could do this because the workload was not unduly heavy for the Justices. They had been able to digest the bundle of documents against the background of the notice of appeal and decide that the matter was a simple appeal that need not clog the docket of the court for much longer.
It is high time that the full complement of 22 Justices provided by law comes to fruition and this way, the Supreme Court will be able to have at least three panels sitting at the same time on a regular basis.
It is within the discretion of judges to award costs on an indemnity basis. While most rules of court make provision for this, it is hardly ever the case. Courts routinely award paltry sums that have no bearing to the actual costs incurred by the party in whose favour they are awarded. Until costs are truly awarded on an indemnity basis, lawyers who feel that their clients have “bad” cases, particularly aspirants to the rank of SAN will continue to have an incentive to maintain such cases or deploy all sorts of dilatory tactics to thwart the quick and efficient disposal of those cases or explore their rights of appeal to the appellate courts. I have no doubt in my mind that the number of frivolous cases filed and maintained in court will be greatly reduced if lawyers and litigants were required to indemnify the winning party for their costs. This view is substantiated by examples from some other advanced legal jurisdictions, where costs are treated separately after the conduct of the proceedings, in order to determine the adequate quantum depending on the peculiar fact and circumstances at hand. If indeed costs are compensatory, I wonder what compensation it is to award cost of N100,000 to a party whose lawyer has travelled from Lagos to Abuja on five occasions to have an appeal heard.
- Conclusion
In summary, it is my fervent hope that the judiciary, with the support and collaboration of the bar, will take the urgent action required to start the process of fixing our system of administration of justice. For where the citizens lose confidence in the judicial system, anarchy is assured. Also of significance is the fact that the effectiveness and the efficiency of the justice delivery system are major indices for attracting foreign direct investment which are greatly needed at the moment, in order to stimulate the Nigerian economy…
[1] [2023] 12 NWLR pt.1899 p.399.
[2] (2015) 12 NWLR (Part 1472) 122 SC.
[3] Aniagolu JSC in Afolabi v Adekunle [1983] All NLR 470.
