For so long a time, court congestion arising from slow justice system is one disturbing phenomenon that has worried virtually all heads of courts at various levels of judicature and jurisdictions in Nigeria. From the magistracy to the Supreme Court, no judicial administrator has been able to arrest the perennial challenge. But the Lagos judiciary appears to be blazing the trail with its New High Court Rules 2019. In this piece, our Correspondent, Kehinde Osasona examines the content of the New High Court Rules 2019 and the initial discordant tunes that greeted its implementation.
Background
On January 21, 2019, the Chief Judge of Lagos State, Justice Opeyemi Oke made history: She launched a new High Court of Lagos Civil Procedure Rules 2019 which by its contents, is the first of its kind in Nigeria.
The new rules, according to Justice Oke, though strange in Nigeria are in line with international best practices, adding that the main aim of introducing it is to enhance justice delivery system in the state.
In the new rules which have now taken effect since January, this year, Lagos judiciary introduced punitive costs against lawyers who fail to show up in court for their cases or show up to request frivolous adjournments for lack of preparation.
The new rules specifically provide for imposition of a N100,000 minimum penalty for a lawyer who unjustifiably scuttles a court hearing and N50,000 for one who scuttles the hearing of an interlocutory application.
Apart from this, the default fee for late filing of court processes has increased from N200 per day to N1,000 per day.
Also in the new rules is a provision that empowers a judge to strike out a suit where no action is taken by the parties in six months.
To lessen the burden of the judges, the new rules limits written addresses to 20 pages and reply on point-of-law to five pages.
The rules also leverages technology by providing that “all verifiable means of electronic communications” should be acceptable for serving court processes by substituted means.
At proposal stage, the new high court rules though had generated controversy, the status appears to remain the same even at implementation level which commenced January this year.
Blueprint recalls that in 2018, at a stakeholders’ summit convened by the Lagos State Chief Judge to brief lawyers and judges on the proposed amendments to the high court rules, Justice Oke had said that most of the proposed amendments were targeted at tackling delays in the courts.
According to Oke, the new rules will discourage lawyers who delay trial, saying strict sanctions would be imposed on violators.
She was quoted as having said, “We need to take a firmer position, particularly on adjournments. In Singapore, adjournment is only allowed on matter of life and death.
“Things we tolerate here are not tolerated in America and UK. Why can’t we replicate those rules in our court rules in Nigeria if it will hasten justice delivery”, she
queried.
She went on to emphasize the need to always review the court rules to suit socio-economic demands, pointing out that court congestion has been a major problem in the justice sector.
The objection, controversy
But lawyers, particularly members of the Ikeja chapter of the Nigerian Bar Association (NBA) had opposed the amended Rules, which, among others, prescribed a cost of N100,000 minimum against any lawyer who “unjustifiably scuttles a court hearing,” and N50,000 cost against any lawyer, “who scuttles the hearing of an interlocutory application.”
Dismissing the initiative, the Chairman, Nigerian Bar Association, Ikeja branch, Dele Oloke, had fired the first salvo when he described the penalties being proposed in the new rules as an attempt to commercialize the judiciary.
According to him, the Ikeja NBA was opposed to the amendments, because Ikeja bar was not carried along and had no input in the new rules.
“It is an attempt to commercialise the judiciary in Nigeria. I speak as the Chairman, NBA, Ikeja; the Ikeja NBA has no input in that rule; so, the Ikeja NBA rejects it in its entirety and we resist everything thereto.”
He said, “About a year ago, the Government of Lagos State, through the office of the Chief Judge, increased filing fees across the board in our courts, we didn’t say anything.
“Now, the Chief Judge, on her own, set up the committee called the Rules Committee of the Lagos State Judiciary; there was no single lawyer from any of the five NBA branches in Lagos State in that committee.
“You and I know that the judiciary is about the bench, the Bar and the litigating public. Any rules that will be used to guide the operations of the judiciary and the courts must have the inputs of the critical stakeholders. The judges alone cannot determine how the courts will function; they are deluding themselves.”
Continuing, he said, “Do you know that in England, lawyers are also paid costs if they get to court and the judge is not sitting. Did they include that in the proposals? None of the branches of the NBA in Nigeria has a copy of that proposal as I speak with you now.
“After the legal year stakeholders’ summit, the Ikeja branch, under my watch, wrote officially to Honourable Justice Kazeem Alogba, requesting a copy of the proposal. Up till now, it has not been given to us,” he added.
Also speaking, the NBA Chairman, Badagry branch, Mr Chigbo Okafor, said though his branch had not taken a position on the issue, lawyers generally have a problem with the proposed penalties.
Okafor said, “We have not taken a stand as an association but the penalties are high. We have a problem with that because when lawyers come to court and the court does not sit, nobody compensates the lawyers but when a lawyer fails to come to court, you are talking about N100,000 penalty. That’s too punitive and I think it will be a clog in the wheel of justice because how many litigants can afford to pay N100,000 and if the cost is not paid, what happens? The case will not go on. It will be a problem.”
But the NBA Chairman, Ikorodu branch, Mr Bayo Akinlade, disagreed with Oloke and Okafor, saying the penalties were needed and justified.
Akinlade said, “My argument is simple, first of all, default fees are so that litigants and lawyers will be up and doing.
“After being served with a court process, some litigants will sit on it rather than give it to their lawyers and sometimes, lawyers too, after collecting a brief, delay in taking action, while the other party who filed the suit is already in court going on with the case. And when the other party is about getting judgment, the defendant’s lawyer will suddenly show up and start argument about the right to fair hearing.
“So, the court is saying that the habit of sitting on court processes must stop. So, instead of a default fee of N200 per day, the court is saying it is now N1,000 per day. That is on the one hand.
“On the other hand, some lawyers give a lot of excuses. On the day of trial, they will not show up in court and it is a mechanism to frustrate cases.
“But the lawyers that are complaining, I ask the question: These measures, are they not for you if you are for the complainant or the plaintiff? And if you are for the defendant, who is up against a complainant who just wants to hold somebody’s business with an injunction, are the measures not for you?
“So, what we are telling lawyers is: if you are not ready to go to court, don’t go to court. Get all your facts and your witnesses ready before rushing to court and sue somebody. “That is the point that the judiciary is making because there are over 3,000 cases each year and there are only about 56 judges, out of which only 40 are active. Only half of that 40 are hard-working. And you have a situation where a judge has over 600 cases in her docket; are they not human beings?
“So, we are telling lawyers that the cost of litigation will be high, so, don’t just go to court anyhow. Settle your disputes amicably if you can.
“And now, the court is encouraging lawyers to try to settle disputes in their chambers. If a client comes to me and says this person has offended me, I will take the phone number of the person and invite him to my chambers and tell him about my client’s complaints and say, ‘let’s settle it’. If we are able to settle it, right in my office, I will write an agreement and I will take it to court and the court will endorse it as a judgment without the problems of filing court processes.
“Lawyers are claiming that there is no access to justice but under the law, there is provision for poor people to approach the Chief Judge if they cannot afford court fees and the Chief Judge will waive the court fees. Again, the judiciary and the government are encouraging pro bono work but we are unwilling to tap into these provisions.
“I think lawyers should not be reactionary, if they really have genuine reasons why they think that the new rules are onerous, they should sit down and study the situation on the ground and weigh the pros against the cons whether the advantages of the high penalties outweigh the disadvantages of delayed justice.
“The other day, I was involved in a 70-year-old case, it has got to the Supreme Court four times and back to the high court. A senior advocate was boasting one time at the Federal High Court that on a particular case, he sent his son to the university and now his son is a lawyer.
“So, I am not in support of the protest against the new provisions. I’m a chairman of a branch and I have been involved in reforms in the judiciary. So, if I talk, I talk out of knowledge and I am not biased. Because if I can fight the judiciary on the corruption of their members, I am not one to easily support the new rules made by the court if they are against the poor,” he added.
Although there have been complaints at the initial stage of implementing the new high court rules, it however does appear that the epochal high court rules may be the solution to the perennial problem of court congestion in the country.
