May 23, 2020

How the Nigerian Judiciary Can Rediscover Itself - Some Practical Tips

The contents of this post were first published as a Twitter Thread on Saturday, 27th September 2019. I wish you a happy reading.

While witnessing the proceedings in the P&ID Ltd v Nigeria case on 26th Sept I promised to do a thread on how the Nigerian judiciary can save itself. I know I make too many promises and don’t keep all. I am happy that I am able to keep this.

First of all, some house cleaning exercises are in order. Without blowing my trumpet, I can say that in the 6 years that I appeared before Nigerian courts, I gained an in depth knowledge of the workings of the justice system in Nigeria, enough to also appreciate the weakness. I have discussed extensively the weaknesses of the court system in Nigeria. Some friends have suggest that I should consider a role in the Nigerian judiciary or Federal ministry of justice. I have a deep love for Nigeria, make no mistakes about it. But I am happy to contribute in another role.

One of things I heard when I was starting my first degree in Abia State University, and which stuck, was that University is a place where you learn, unlearn and relearn. And for those humble enough to unlearn and relearn, it is a refreshing experience. Thankfully in the 12 months since I came for my 2nd degree, I have learned, unlearned and relearned. What I discuss below is a combination of the things I learnt in my Masters Degree class and some practical tips I picked from witnessing the P&ID Ltd v Nigeria proceedings. I will discuss the above under five headings; (i) jurisdiction rules (ii) Leave to appeal (iii) Adjournment of cases (v) appointment of judges and (v) preparedness of judges. All of these add up to fundamental question of case management.

In an article I published a few years ago, I joined the Nigerian judges in condemning the unbridled rights that litigants have to challenge the jurisdiction of courts to hear certain cases. In that article I argued that preliminary objections to jurisdiction contributes in the delays and congestion of cases in court. That's correct. But I also made it appear as if it is only in Nigeria that lawyers and litigants unduly resort to preliminary objections. To an extent I was wrong.

Just like the case with Nigerian court system, litigants in England also have a right to challenge jurisdiction. In fact their rule is even stricter because if you don’t challenge jurisdiction and enter appearance, you are deemed to have submitted to jurisdiction. The only difference is that the English judges are better equipped to deal with jurisdictional challenges. I dare say that it is not a question of the rules of court but the judicial will to enforce the rules of court. Join me as I seek to demonstrate this.

From experience, I have seen cases that had no business in the Federal High Court e.g. land matters, contracts etc. filed there. And despite the objection of the defendant, a smart lawyer is able to maintain the case there. I hereby plead my right against self-incrimination.

In Nigeria, to determine a jurisdictional challenge, the court only reads the originating processes and the motion objecting to the court's jurisdiction, together with the affidavits & written addresses, and then hears a few minutes of counsel's oral arguments. As a result, the judge is not able to appreciate the true nature of the dispute and is therefore easily hoodwinked by smart counsel. In England, there are actually proper hearings [sometimes lasting several days] on jurisdictional challenges alone, with loads of evidence. At the end the judge is in a better position to know whether the case is rightly or wrongly brought before the court. And believe it or not, once the jurisdictional challenge is determined one way of the other, most of the cases are settled. The explanation for this is beyond the remit of this long thread. And we have not even started.

My simple suggestion? It is admittedly a stretch to expect Nigerian courts to start by holding several days of hearings on Preliminary Objections. But at the very least, Nigerian courts can rely on the current rules and invite the deponents to the conflicting affidavits to the witness box for questioning. I can bet you that by the time the judges hear oral testimony of witnesses from the outset, on the actual nature of the dispute, the judges will see through more than half of the Preliminary Objections and be in a position to deliver better reasoned rulings. And this does not require new laws or amendment of the rules of court.

The second point is the issue of granting leave to appeal. Under the Nigerian constitution and the rules of courts, some categories of appeals cannot be filed except you first obtain permission of the court. And the case law is clear on what you must prove to get leave.

Although the formulation is different between Nigerian & English law, the principles are the same. Under English law, to be entitled to permission to appeal, the proposed ground of appeal must show that the appeal stands a realistic as opposed to a fanciful prospect of success. Under Nigerian law, the requirement for the grant of leave to appeal is that the grounds of appeal must show prima facie good cause why the appeal should be heard, in other words the grounds of appeal must disclose arguable issues.

During the P&ID v Nigeria case, both counsel had hours to argue whether Nigeria should be granted permission to appeal. The arguments were not abstract. Each ground of appeal was scrutinized against the backdrop of these requirements. In the end, the court granted Nigeria permission to appeal on some of the grounds and refused to grant permission to appeal against other grounds.

Where that is the case, at the end of the day, when you are granted level to appeal, it ensures that the appellate courts i.e. the Court of Appeal and the Supreme Court are not unduly burdened with frivolous appeals and only the appeals that have a serious chance of success or will contribute to legal development will end up being heard.

In Nigeria, the prevalent judicial attitude to the application for leave to appeal is “to allow them come in”. This is the default look on the faces of My Lords when you stand in court to say you object to an application for leave to appeal. In other words if you inform the Court of Appeal that you are opposing an application for leave, their default reaction is contempt, as though you are wrestling breast milk from a suckling child. And in truth that is what you are doing.

One reason for this this is the unbelievable rule of the National Judicial Council (NJC) which mandates judges to submit a number of judgments every quarter. It is the same reasoning behind stipulating a minimum number of cases that a lawyer must have before being considered for SAN. In the end, it elevates quantity over quality.

This is also the case with application for enlargement of time to appeal. Under our rules, an applicant that is out of time to appeal must explain its delay in filing by giving good and substantial reasons and then demonstrate that the grounds of appeal disclose arguable issues.

However, our courts make it clear that they would grant enlargement of time in almost all cases even when the applicant has not demonstrated good and substantial reasons. The Nigerian Supreme Court recently worsened matters when it held that once the ground of appeal is on jurisdiction you need not give sufficient reasons for being out of time. Incredible. So you can lose a case and then wait 20 years before bringing an application for extension of time. All you need do is to garnish with a jurisdiction based ground, however tenuous the connection.

Yet, these same courts will still complain about congestion of cases in courts. It has been said that appeals take an average 3 years to get a hearing date at the Court of Appeal and 7 years at the Supreme Court. This is part of the reason. To put it starkly, a lot of pending appeals are frivolous.

The next thing is the adjournment of cases. This is one is really pathetic. Most lawyers have experienced working all night or all weekend in preparation for a case only to get to court and either the court is not sitting or the lawyer on the other side asks for adjournment on the flimsiest of excuses. Sometimes with the acquiescence of other lawyers. I might be exaggerating but if your mother died, you dare not come before an English court to ask for adjournment for a case that was fixed 6 months earlier. The court will slam you with punitive cost and possibly report you to the relevant authorities. I am talking about costs in the range of £50,000. I remember a Senior Advocate of Nigeria once asked for adjournment of a trial in Nigeria because he had to preside over a family function. In that case, the court rightly rejected his application. I bet you 8 out of 10 judges would have accepted.

On the two days I witnessed the Nigerian proceedings in London, it was the only case listed for the day. On 14th June when the court heard arguments on the application to enforce the award, there were several developments that would have truncated the proceedings. In fact I concluded the court would not hear the case that day and after the case was stood down, I had to leave for a prior engagement. I was pleasantly surprised to read later that day that the court proceeded with the hearing. In Nigeria, some judges happily line 30-40 cases per day, and only do justice to 5. And adjourn the rest. After keeping lawyers in court all day. Sometimes you wonder whether our judges derive any special from seeing their courts jampacked with lawyers. And you can't tell me Nigerian courts are busier than English courts. For me, it boils down to case management.

One possible remedy is the award of cost. And in truth the rules of court are adequate particularly the Rules of the High Court of Lagos State. It is simply a question of the judicial will to enforce it. To be fair a Judge in the Federal High Court, Lagos is renowned for awarding massive costs. But My Lord is an outlier. On the contrary, a judge of a State High Court in Nigeria awarded cost of N2000 as recent as 2018. It is indicative of the value each places on the profession.

The next issue is the appointment of judges. In England to be appointed as a commercial court judge, almost all the judges would already have been distinguished practitioners, with some being Queens Counsel. And it shows. On Thursday I witnessed the extraordinary sight of a QC making a mistake in his argument and whether a particular case applied for a purpose. The judge told him he was wrong. Pointed it out. The QC apologised in open court and said his interpretation was wrong.

Permit me to say nothing about the appointment of judges in Nigeria. Except that we have a long way to go.

Finally on the related issue of preparedness. As a judge, whether you were supremely qualified when you were appointed or otherwise, hard work and preparation pays. It was obvious to all and sundry in court on Thursday that the Judge had read all the papers in the file. And his questions to lawyers and engagement with the case demonstrated that. I hear this was the norm with majority of Nigerian courts in the good old days.

In light of the foregoing, you will agree with me that whilst law reform is a good thing, the truth is that a lot can be achieved with the law and rules as we presently have them. Most of the things I have highlighted can be implemented from next Monday. All that is required is the right judicial attitude. I am available to further discuss these and other practical tips to improve the Justice delivery system in Nigeria. And I can do this even without being a judge. Have a good weekend.

I am available on Twitter as @OrjiUka

 Source: LinkedIn