Assessing the Fast Track Procedure Under the High Court of Lagos State (Civil Procedure Rules) 2012: The Journey So Far – Hon. Justice Adenike J. Coker (Mrs.)

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ASSESSING THE FAST TRACK PROCEDURE UNDER THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES 2012: THE JOURNEY SO FAR

Hon. Justice Adenike J. Coker (Mrs.) Head of Division, Fast Track Commercial, Revenue & Mortgage Division. Being paper presented at the Stakeholders Summit on Administration of Justice organized by the Ministry of Justice on 30th & 31st January, 2017 at the Eko Hotel & Suites, Victoria Island, Lagos.

HISTORICAL BACKGROUND

The Fast Track Division was created in September, 2012 from a merger of all the Commercial Courts in the Lagos & Ikeja Judicial Divisions which were located in the Commercial Court building then sited in the TBS Annex. This was effected during the tenure of the past Chief Judge Hon. Justice A.A. Phillips; an innovation as a result of research conducted by the Consultant to the J4A (Justice For Action) Prof. Bolaji Owasanoye wherein it was discovered that the bulk of the Commercial cases were actually filed in the Lagos Judicial Division of the High Court.

The idea of the Fast Track Courts was therefore mooted as a pilot project to handle all manner of Commercial & Business disputes, Mortgage & Revenue cases with the primary aim of reducing time spent on litigation – shorter or predictable timelines of 9 months from filing to Judgment which would, if successful, be replicated in other subject matter divisions of the High Court.

The rationale for starting with the Commercial Division in Lagos State was by virtue of its being the main commercial nerve centre with direct impact to engender confidence to business operatives & investors especially foreign investors in the judicial system which would in turn have a direct effect on the economic growth of the State and consequently, Nigeria.

AIMS/OBJECTIVES

The aim/objective of the Fast Track Court is well embodied in Order 56 Rules 1, 2 & 3 of the 2012 High Court of Lagos (Civil Procedure) Rules re-produced hereunder as follows:

Order 56:

  1. The main objective of the Fast Track Court is to reduce the time spent on litigation to a period not exceeding nine (9) months from the commencement of the action till final Judgment.
  2. (1) A suit shall qualify for the fast track where:

(a) the action is commenced by Writ of Summons; and

(b) an application is made to the Registrar by a Claimant or Counter-Claimant; and

(2) (a) the claim is for liquidated monetary claims or counterclaim in a sum not less than One Hundred Million Naira (N100,000,000.00); or

(b) the claim involves a mortgage transaction, charge or other securities; or

(c) the Claimant is suing for liquidated monetary claim and is not a Nigerian national or resident in Nigeria and such facts are disclosed in the pleadings.

  1. Where a case satisfies any of the criteria in Rule 2 above, the Deputy Chief Registrar or any other person in charge of the Litigation Section shall cause the Originating Process to be marked “QUALIFIED FOR FAST TRACK” and direct the Applicant to pay appropriate filing fees.

The Fast Track Courts also have Rules setting out the necessary timelines for each step (See Order 56 Rules 4 – 7) from filing to 3 Judgment, with the ideal of Trials being handled from day to day & adjournments of Trial a last unavoidable resort. (See Order 56 Rules 12 & 13).

With this same objective of curbing the delays in the time spent from filing to conclusion, the idea was again mooted to create a separate Registry to deal solely with cases for this newly created Division.

The Fast Track Registry was commissioned by the current Hon. Chief Judge, Hon. Justice O.O. Atilade (Mrs.) on the 21st day of December, 2015 & as stated in her Welcome Address wherein she pointed out that the idea of the Fast Track procedure was in fact conceived almost a decade ago, sometime in 2006 & she stated thus:

“Fast track as the word denotes is an accelerated dispute resolution process. A Court’s method of dispensing Justice in a more expeditious manner – within the earliest possible time, and without having to compromise on rules and standards; or committing such errors as to inadvertently or otherwise occasion a miscarriage of Justice.”

The Division is presently comprised of 10 Courts and at its inception was headed by the current Admin. Judge, the Hon. Justice Opeyemi Oke (Mrs.) but in the July 2014 posting exercise of Hon. Judges, Hon. Justice Adenike J. Coker (Mrs.), my humble self, took over as Head of the Division effective September, 2014.

The 9 Judges in the Division following the recent reposting of Judges in September 2016 (they replaced 5 others who are now in other Divisions) are: Adesanya, J., Jose, J., Dawodu, J., Oluyemi, J., Folami, J., Femi-Adeniyi, J., Ogala, J., Sonaike, J. & Adamson, J.

Since coming on board to date, (& based on previous available Records), just under 3400 cases have been assigned in the Division with each Judge handling an average of over 300 cases spread over all the 4 subject matters handled in the Division (see attached – Annexure (A)) as at 17/1/17. From the attached, the cases are divided into those matters which qualify for Fast Track (red files) & others – Commercial cases (purple files).

THE JOURNEY SO FAR

With the Judiciary Information System (JIS) also firmly in place in the Division, cases filed are uploaded & assigned online, giving Hon. Judges an insight into the cases coming before them; sometimes even before the physical case files are received in their Courts. NYSC members are also posted to Hon. Judges for the purpose of assisting the Fast Track Courts with matters related to JIS. Designated staff of the Hon. Judges have also been involved in IT training workshops to support the work of the Fast Track Courts for effective justice delivery.

Still in keeping with the Alternative Dispute Resolution (ADR) initiatives now ensconced in the said 2012 High Court of Lagos State (Civil Procedure) Rules, (See the Preamble to the Rules & Order 3 Rule 11) the cases in the Fast track Division are also screened like other subject matter cases and where time and costs can be saved, these matters are dealt with by specially designated ADR Judges some of whom are also Judges in the Fast Track Division.

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With the support of the J4A, Hon. Judges in the Division have benefited from various capacity building initiatives, to wit: attending Retreats with all stakeholders present and Seminars on relevant subjects to the Division and continuing judicial education.

Monthly Seminars were held from inception until November, 2015 on various knotty issues facing Hon. Judges and various Legal Experts & Resource persons invited to address & share knowledge with the Hon. Judges. Subjects treated so far are the following:

  1. Mechanics of Enforcement by Garnishee Proceedings in Nigeria.
  2. Litigation of Tax Cases.
  3. Admissibility of Computer-Generated Evidence in Banking Transactions.
  4. Mareva Injunctions.
  5. Exclusive jurisdiction of the Investments and Securities Tribunal.
  6. Mortgagee’s Power of Sale and Court-Ordered Sale.
  7. Interest Rates in Judgment Debts.

Judges have also benefited immensely, especially from these internal monthly Seminars, & from the various comments received on the impact survey conducted, Hon. Judges were agreed that the resource materials (including a Fast Track Manual) & knowledge gained provided very useful reference materials & enabled them deal confidently with issues much faster; Bench Rulings are now regularly delivered on the simpler issues, forum shopping is greatly reduced and unnecessary delays avoided.

In addition, Judges from the Fast Track Division (& some other Judges) have attended many training workshops to update and enlighten them on modern day commercial disputes – specifically on etransactions, significant amongst these was the 2-day pro bono Training Workshop/Seminar organized by the Lagos Business School Alumni – Topic: DIGITAL ECONOMY & LEGAL REGULATION on 18th & 19th May, 2016.

Many interesting scenarios of disputes in respect of diverse ecommercial transactions that could arise were presented to Hon. Judges. Case studies were also examined and many issues highlighted therefrom e.g. the new innovation of Uber. Does liability lie in the event of accident or dispute with Uber –the company who does not own the car or the driver who may or may not own the car & yet payment is not made to him?

More recently, all Judges attended another enlightenment workshop on Card Fraud organized by VISA on 1st & 2nd December, 2016 at Intercontinental Hotel, Victoria Island, Lagos. All manner of likely credit card fraud scenarios were presented and issue of the liability between the user, the middleman or the beneficiary of the funds examined. E.g. in one case, the cards were cloned & used in multiple country ATMs at the same time over a weekend wherein a whopping sum of 12 Million US Dollars had been withdrawn from Bank accounts even before the fraud could be discovered; or where a customer complains that he did not release his card nor his pin yet his card was used to withdraw money from his account, the issue is then who is liable, or where a customer goes to an ATM not of his bank and his card is compromised. Their challenge was that notwithstanding the interbank relationships, there was difficulty in getting all information and documents required to discharge the evidential onus in Court. Some could argue that simple CCTV may help with a case of ATM fraud but online fraud using stolen identity presents problems & where disputes arise find that it is difficult gathering required evidence. The sum total is that credit card Companies and Banks of course, almost always defend these cases on the starting basis that customers have compromised their security pass codes/PINs which onus can prove difficult for Claimants to discharge.

To further cement this impact, and pursuant to the recent directive of the Hon. Chief Judge, Hon. Justice O.O. Atilade effective January, 2016 quarterly meetings are now held at the behest of the Head of Division to agree on uniform positions as best as possible on recurring matters including the issue of costs without prejudice to Hon. Judges’ discretion on peculiar facts and circumstances before them, getting staff to bring in their newly assigned files weekly and treating urgency matters & routine Applications speedily. See also recent High Court of Lagos State Practice Directions (Part A, Articles 1-6 especially) signed by the Hon. Chief Judge on the 1st day of June, 2015.

As earlier stated, the Staff of the Judiciary are not left out and the Hon. Chief Judge has encouraged a lot of training workshops also for the staff of the Division, the staff of the Fast Track Registry so that each staff knows not just their tasks but knows how to input information as required of their portfolio onto the JIS e-system of the Court.

ASSESSMENT OF THE JOURNEY

In order to assess the output or success of the journey, of course, empirical data is required. There needs to be data on how many cases were concluded say within a 3-year period in the Division, which is the average period a Judge stays in a Division in Lagos State (though not a hard-and-fast rule) before being posted vis-à-vis, how many cases were assigned in the same period in the Division. For a more complete picture, data of pre-creation and post-creation of the Division is also required. Some of these figures could be gleaned from the Quarterly Returns of the Judges. Through Prof. Owasanaoye’s collaboration with J4A, DFID, some of these were collected over a period. From the Report dated 6th June, 2016 filed by Bob Wiley, Facilitator for the Case Management Programme & reviewed by Mr. Danladi Plang, the Justice Component Manager of J4A, gathered from their data collected at a Case Management training course for Fast Track Judges held on the 26th day of May, 2016 at the Eko Hotel, Victoria Island, Lagos attended by all the Fast Track Judges, both outgoing and incoming (prior to the posting), & shared with us, they did find that according to the baseline data, from trends in the Fast Track Courts initially, the average time for simple cases from filing to disposal was 397 days (13 months) whilst the more complex cases were still taking longer.

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But after that time, J4A facilitated the following interventions:

– FTC dedicated to FTC cases (created by Court Rules)

– Time standard for Fast Track cases – 9 months

Capacity building for staff

– Engagement with other stakeholders including the Bar

 – Centralized Registry

During the last quarter of 2015 and the first quarter of 2016, 169 cases were disposed, with an average time from filing to disposition of 290 days (9.5 months). Obviously, this is an impressive improvement.

So the purpose of the Seminar was to re-identify the clogs in the wheel such as lack of adequate equipment, staff, skilled and IT compliant, Counsel still asking for frivolous adjournments, wanting to take up matters of technicalities, still filing interlocutory appeals, etc though reduced with the discouraging stance of the Higher Courts, etc and to re-assess the use of the case management skills & tools that Judges had learnt and were meant to be applying.

In addition, a feedback from the Bar could be obtained – do they feel their fast track commercial cases moved faster or not? The perspective of the Bar would also assist in the assessment.

All in all, I believe it has been a worthy innovation with remarkable success & a nod to the school of thought of specialization (where Judges do the same thing over & over they get better and faster).

SUGGESTED ASSESSMENT SOLUTIONS:

Ø Further data collection by collating returns of Judges from inception to date.

Ø From cases how many dealt with within time lines Average Time period from start to finish of simple cases, complex cases.

Ø How many dealt with within the 3-year time period before posting of Judges.

Ø Causes of the delay & to plug those loopholes.

SUGGESTED SOLUTIONS BACKLOG CLEARANCE

There was a laudable suggestion taken from the Kuala Lumpur model after our annual Judges’ Retreat there in 2016 where Judges were designated to tackle the backlog of old cases only. In other words, no new cases were assigned to them. We were informed by their Chief Justice that the backlog was cleared within 3 years or so. Our Hon. Chief Judge put this to debate discussion but we realized that the data on what we termed ‘old cases’ was not readily available; the designation of many judges to this task could likely cause further backlog with the volume of cases being filed in our High Courts taking into account the administrative break between re-assignment between CMC Judges & Trial Court. So, it was agreed that it was best for each Judge to divide the cases on their dockets into 3 main categories, 0-5 years, 5-10 years and over 10 years and giving priority of speedy hearing to oldest cases & then work through the docket to the more recent. I only recently concluded a 25-year old family/probate/estate case that had passed through many Judges.

The following are my humble suggested solutions:-

  1. APPOINTMENT OF ADDITIONAL JUDGES

This brings to fore the Access to Court v. Cost of Litigation Argument. Not really found the right balance. Societal dynamics prevents pricing justice out of reach of the common man for which it was designed. But Society is getting more litigious like USA- many want their day in Court but litigants must be prepared to pay & higher fees could be a useful deterrent. Litigants not well-advised by Counsel who also want their day in Court for whatever reason other than what is best for his client. 10

       1.  MERIT BASED DETERMINATION OF CASES

– Petition writing v. Completing your case and appealing a bad decision. A lot of senior Counsel and SANs who ought to be testing their legal prowess are instead resorting to this unwholesome means of writing petitions either to the Chief Judge or National Judicial Council.

– Decision taken by Supreme Court to curb interlocutory appeals has helped; So also many decisions at the High Court level – uniform positions on many issues – e.g. Extension of time/ payment of default fees, pre-action protocol, stamp and seal, etc, etc -the world is testing many modern issues in their Courts and increasing and building their jurisprudence whilst we are still debating mundane issues like stamp and seal and pre-action protocol which were some of the measures introduced to ensure 2 main things: to aid and protect the lawyers and the judiciary and ensure that only registered lawyers practice and only important cases go to Court!

SUBSTANTIAL JUSTICE v. TECHNICALITIES

The clichéd position of the Law is that we have moved away from the era of technicalities to substantial justice. But have we? We in the judiciary from the above-highlighted do not find it so with the number of Applications & Preliminary Objections still being filed on technical issues.

Substantial justice is the end result of a merit-tested case. The suggested solution to try these cases as speedily as possible and set the precedents – that way it will be clearer to litigants and should be to their lawyers which cases really need to go to Court. Even at trial, objections are made for the sake of it; even where certain facts & documents are undisputed.

  1. ALTERNATIVE DISPUTE RESOLUTION (ADR) Mediation and Arbitration have been proffered as solutions. Some question the voluntariness of Court Orders making such referrals. Others believe if many cases are not forced into that track, the litigants and lawyers will not opt for it. We all have our different views As earlier stated, the High Court of Lagos State by its Rules advocate these options. See preamble 1 (c) of the High Court of Lagos State (Civil Procedure) Rules, 2012. See also S. 25 of the Rules.

PREAMBLE

  1. The overriding objectives of these Rules shall be as follows: (c) amicable resolution of disputes by use of Alternative Dispute Resolution (ADR) mechanism. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
  1. (2) Active case management includes: (a) mandating the parties to use an (ADR) mechanism where the Court considers it appropriate and facilitating the use of such procedure;

Order 25 Rule 6(1) Where a case is deemed suitable for ADR under Order 3 Rule 11 or has by directives been referred to ADR under Order 25 Rule (2)(1) above, the ADR Judge shall in case of recalcitrant parties consider and give appropriate directives to parties on the 12 filing of Statement of Case and other necessary issues.

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(i) Mediation – In addition to the above, the judicial calendar now includes mediation through the Courtlinked LMDC- Settlement Week – 2 weeks. One early in the year – May then second sometime later in the year – November; it started off as once a year. These set periods are without prejudice to the CMC Courts still making the referrals outside of these set periods pursuant to the above.

I would say it’s been working fairly well, many Counsel come back to express their thanks for the referrals and even laud the objective openly in Court but again who is compiling the empirical data on its success? Since I have been on board as Head, Fast Track, we have had maybe 3-4 settlement weeks and Judges have initially also lauded the innovation saying it has been taking a few cases off their dockets especially when the request from each Judge was for 10 suitable cases.

However, lately we have found that when the request was increased to 20 cases per Court per settlement week, there were mixed reviews- delays reared its ugly head here too due to congestion and queues for dates, lack of cooperation of Counsel or their clients, etc, etc. I discussed with the Coordinator of the LMDC and raised it with the Hon. Chief Judge & at our Judges meetings and my suggestion was to keep the numbers of cases requested for down for the settlement week to enable achievement of the aim of a good success rate especially because there are still the out-of-settlement-week referrals to be dealt with.

(ii) Arbitration – The preferred mode for big conglomerates and companies who do not want their business made public & do not want to lose time in litigation (time is money) etc, etc but they end up in Court to try to enforce the awards and the merry-goround begins again with the party opposing same. I am not aware of how many commercial cases have been diverted via that route that would otherwise have come to Court. 13 No conclusive empirical data of how many cases have come for enforcement recently but the important thing to note is that the High Courts are supportive of the arbitral process. The important point is that our Rules envisage it- See Order 25 Rule 6 and all Courts but especially the Fast Track Commercial Division Judges support Arbitration clauses voluntarily agreed to in contracts or if preservative orders are to be made in the course of arbitration. However, we still find parties trying to circumvent their own voluntary arbitration clauses they entered into

ACTIVE CASE MANAGEMENT BY JUDGES

Judges being Managerial Judges; Not a descent into the Arena a. Pointing out obvious defects in processes to lawyers. b. Ensuring suo motu that processes are competent before assuming jurisdiction to avoid going forward one step to go back 2 steps. c. A bit of reality testing at CMC. d. At trial, ensuring sticking to issues to save time & costs.

ORDER 11 PROCEDURE

More use of this especially for liquidated sums – short route but again its own provision says once there is an iota of a semblance of a defence give the Defendant a chance. Could be subjective but it’s a good tool.

SMALL CLAIMS COURTS

Small claims Courts may be a way out too. Many of the cases are so trivial and so mundane that really they belong in this category. Magistrate Courts civil jurisdiction covers N10 Million by virtue of S. 28 of their Magistrate Court Law yet lawyers prefer to do what I call padding of their cases to file same in the High Court.

I have had many of such cases but recently I spotted 2 interesting ones:

  1. Where the claim is really in respect of refund of $300 fake notes allegedly received by the Claimant from the Defendant being sued and yet the Claimant is suing for N500 Million special damages and N50 Million general damages.
  1. Another one where on the face of the Writ, the reliefs look like valid Declaratory reliefs for a declaration that by the offer letter of credit between the parties the Defendant is not entitled to possession and/or sealing up of any shop belonging to the Claimant. On the other side by a Notice of Preliminary Objection the Defendant is seeking the Court decline jurisdiction on ground that the sum involved in the letter of offer & obtained is a mere N5 Million at best and that the proper forum for the suit is the Magistrate Court pursuant to Section 28(1) of the Magistrates Court Law of Lagos State, 2009 which provides thus:

Subject to the provisions of the Constitution and any other law, a Magistrate shall exercise jurisdiction in civil causes or matters-

(a) In all personal actions arising from contract, tort, or both where the debt or damage claimed, whether as a balance of account or otherwise, is not more than ten million Naira (N10,000,000:00) at the time of filing;

More useful suggestions are welcome.

SUMMARY:

There is need to aim for less litigation over minor contracts and commercial disputes. There are enough guiding precedents in our case law.

CONCLUSION:

In concluding, with full complement of staff and equipment in each of the Fast Track Courts, increasing the number of Judges in the Division & with continued & regular training & capacity building for both Hon. Judges & their staff, cooperation of the Bar to step up their work output, training & monitoring of their Juniors, this laudable initiative which has recorded huge successes so far & its objective of efficient, effective & timeous justice delivery will be more successfully met and have its desired impact.

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