A More Efficient and Less Stressful Litigation Experience is Possible
In one of my recent interventions, I offered some perspectives on the interplay between justice administration, commerce and the Nigerian court system and made a call for certain reforms. That article can be viewed here. This piece continues that conversation but offers my perspectives on slightly different but related issues.
The Nigerian justice system is faulty, and despite the high level of intellect in our profession (both at the Bar and on the Bench), that system is not delivering optimally. Indeed, no society or its commerce can thrive without an effective judicial system. This, amongst other factors, has necessitated a consistent call for reforms in the justice delivery sector. The consequences of this system failure are far-reaching and are at least three-fold.
Firstly, the lawyers who are key stakeholders in the justice delivery system largely consider the process to be tedious and inefficient. Secondly, the economy continues to suffer on account of the apparent lack of synergy between it and the system, and thirdly, the citizenry has lost faith and confidence in the justice delivery system.
With particular reference to the courts, our litigation colleagues complain ad nauseam about the challenges that they face daily. As one who started out as a litigator, I am aware that the pains and challenges that I faced about two decades ago in that capacity have continued to plague our colleagues who ply their trade in the courtrooms.
We are constantly regaled with stories of judges who do not sit and sadly do not inform counsel in advance only for counsel, who sometimes come from outside jurisdiction, to find out after waiting long hours in court; or judges with overloaded dockets without basic facilities and resources and who sometimes keep counsel in court from morning till 4pm before adjourning; over crowded court rooms that are inadequate and unfit for purpose; archaic systems of filing and storage of court processes; undue delays in delivering rulings and judgments and which when finally delivered, are not provided to lawyers promptly and as of right; lawyers taking advantage of the weak Rules of Court to get adjournments on frivolous grounds or those who file frivolous applications to prolong cases or who abuse court processes by filing frivolous suits, etc. The list is indeed endless, but the consequences are the same.
In my last piece that I referred to above, I highlighted two relatively easy areas that essentially require nothing more than a little goading and shift in judicial attitude, namely the need for more substance and less procedure in our approach, and the importance of awarding more costs as a way of discouraging frivolities. Today, I will discuss five other fairly easy things that can be done to begin to reduce the avoidable pains and difficulties experienced by litigators in Nigeria.
First is a more active case management by judges. Most, if not all extant Rules of Court today have as their overarching or overriding objective the expeditious disposition of cases before the courts and some Rules of Court have gone the extra mile by making clear provisions on how this objective can be achieved. What is needed now is the judicial will and push to implement these rules through more active case management by the judges. “Active Case Management” is the mantra which should guide the dramatis personae in litigation – litigants, lawyers and judges. This would ideally entail identifying the issues and quickly resolving as many of them as possible at the preliminary stages, and only resorting to a plenary trial as a last option. The administrators of the system should also take ownership of the movement of cases from filing to final disposal. Each actor in the justice system has specific duties which must be creditably discharged, and it is the responsibility of the Bench to lead the effort, and of the Bar to provide the prodding. Gaining greater control of the case flow process can lead to a more efficient system of litigation.
A second and related point is an improved case scheduling system. In order to tackle the problem of clogged courtrooms, we must first put a system in place which eliminates the incidence of cause lists being clogged up with an inordinate number of matters of varying natures and stages all listed for the same day. The solution to this seemingly intractable problem is an improved docket management and case scheduling system. This would entail having timeslots and specific days allocated for matters depending on the nature and the stage of the proceedings. For each day, specific timeslots would be assigned to each matter and this would be strictly enforced. While I understand that some courts have begun doing this especially in the wake of the COVID-19 pandemic induced NJC Guidelines and Practice Directions, they are, unfortunately, in the minority and the measure appears ad hoc. Matters listed only for mention can easily be dispensed with within the first one hour for each day’s proceedings. Counsel who fail to show up within a specified time after their timeslots (without a cogent reason that would have been communicated to the court and the other side beforehand) would not only have their matter adjourned, but in deserving cases, have substantial costs awarded against them in person. Each week, the cause list of the court containing information on the matter, judge, timeslot, counsel contact information should be published online or circulated widely to facilitate preparedness.
Third, is more effective communication between the Bar and the Bench. It is utterly frustrating that counsel have to travel out of jurisdiction for a matter (or even go to court within jurisdiction) only to be told that the court would not sit or that the judge is not disposed. In today’s world where communication (text messages, phone calls, etc) has become extremely easy and in some cases even free, this is most unacceptable. Deliberate and more intentional efforts by the courts across the country to communicate, in advance, the inability of the judges to sit would go a long way in addressing this. Once again, some courts admirably do this, but they are also in the minority. Of course, in cases where there are emergencies that cannot be communicated beforehand, every stakeholder will understand.
Fourth is an electronic filing and service of processes system. In the mid to long term, we must attain a status where it is possible to fully file our processes electronically, serve processes by electronic means and compile and transmit records as such. The practice of compiling and transmitting a truckload of documents to appellate courts is not only archaic but is also antithetical to the technological advancements that have been made in the 21st century. On a related note, more virtual hearings should also be encouraged. Surely, these will come with the challenges of inadequate infrastructure, lack of knowhow, and putative unacceptability under certain legal theories, but it is inevitable that we attain this status in a fast-changing world. Change is indeed unavoidable and lawyers and other users of our court system must be prepared to embrace it. I am, therefore, elated by the very recent pronouncement of My Lord, Okoro, JSC that hearing notices may validly be served on litigants via text messages. This is indeed a welcome development.
The fifth is providing facilities for the convenience of judges and lawyers while in the courthouse. Attending court should not always be a difficult experience. On this, I refer to such simple matters like e-libraries for research; common rooms for relaxation while waiting for one’s turn for the day’s proceedings; functional and well-maintained toilets for lawyers; workstations for those who have urgent work; parking lots in the court neighbourhood for lawyers; and special facilities for our aged and disabled colleagues seeking to access the court. For the judges, it is simply astonishing that in this century, majority of them still write the entire proceedings, including the examination of witnesses, in long hand. Apart from being one the major causes of the delay in the determination of cases, it is a strain on the health of judges. Frankly, I fail to find justification for the continued practice. Some of these ideas may be capital intensive, but with appropriate support, commitment and willpower, they can be achieved.
We must take steps to create a system that makes our litigation experience less stressful, more efficient and more appealing for our litigation practitioners. The Bar that is needed today to change this narrative is one that not only advocates, but also ensures, that the above measures and more are put in place and that there are deliberate efforts to making the system work and the life of litigators and users of our court system less tedious and more friendly.
With Transformational Leadership, there is so much that we can achieve.