Last week, the piece on the Ambush Letter of Adjournment elicited some reactions which were encouraging. This week, I am bringing into focus the routine case fixtures and the consequent delays usually foisted on litigants and counsel at the instance of the court.
The legal system in every jurisdiction is usually a complex pyramidal affair. The bar and the bench features prominently with the supporting casts made up of the police and other law enforcement agencies, and correctional institutions i.e. the prison service, playing a crucial part as well. In our own Anglo-Common law adjudicatory system, this symbiotic relationship especially in the manner the bar is usually seen as the villain of the delay in dispensation of justice requires some examination.
It is only in Nigerian courts, most especially the magistrate and high courts that virtually all cases are fixed for the daily 9:00 am session. Save for some time conscious judges who usually adjourned matters for specific time or part of the day, the default settings is for counsel and litigants to head to court by 9:00 am, and when they get there, the stark reality is the long cause list. It is not uncommon for some courts to list 20 – 30 cases for a single day with about five or seven for commencement of trial or already part-heard case to continue trial. Occasionally, in the midst of all these fixtures for substantive hearing, interlocutory applications are also on the menu. At the end of the day, may be one or two out of the matters for substantive hearing will materialize. Then, the rest take dates for another day.
Without mincing words, our court system is overstretched and our judges overworked. It is not uncommon for My Lords to express exasperation that about 600 case files are actively pending in individual courts. To compound that, think of the mandatory quarterly returns required by the National Judicial Council. In a jurisdiction like Lagos State, it is only a miracle to imagine how some of the judges survive the hurdles.
Thus, it is this reality that confronts you when on a particular day a matter is fixed to come up and counsel and litigants arrived court before 9:00 am only to be given that announcement that the court would not sit. Instances are the announcement is not made until almost an hour after waiting patiently. Many times, the reason for the non-sitting might not even be disclosed. Disclosed or not, the implication for the society is enormous, not the least the perception that recourse to court is time wasting and therefore the temptation to resort to self-help.
Take for instance a case initiated on an originating summons procedure for enforcement of a legal mortgage which, ordinarily by received wisdom, should naturally be dealt with and concluded within a short time frame. However, due to scheduling and congestion on the cause list, or for some reasons the court not sitting, or an enforced adjournment due to a fixture falling on a public holiday, the “simple” matter could drag for more than three years. It is doubtful if anyone could pick up a law report from our high courts and see the various dates a case was heard and judgment delivered. What we have are adjournments upon adjournments to the extent that keeping track of the proceedings become cumbersome. Compared to a typical case in the United Kingdom, it is not uncommon to have cases fixed for hearing on two or three consecutive days at allotted times. In the recent case of Nautical Challenge Ltd v Evergreen Marine (UK) Ltd  EWHC 453, a collision case before the Admiralty Court, the hearing took place on the 16, 18 and 19 January 2017 and a considered judgment entered on the 13 March 2017. The collision itself occurred in the Persian Gulf just two years previously in February 2015. So within 25 months, the United Kingdom court to which parties submitted the dispute handed down a verdict apportioning liability for each vessel. Had the matter been before the admiralty division of our Federal High Court which has the exclusive jurisdiction for such matters, your guess is as good as mine.
We may not want to admit it, but there are critical factors militating against fast dispensation of justice. The available infrastructure and court furniture are inadequate most times not conducive or friendly for our humid tropical climates. Our judges most times record their proceedings in longhand. Where there are facilities for electronic verbatim recorders, the unstable electric power makes nonsense of them. Some judges even prefer to have their records down by themselves with the attendant time and energy expended in the process taking its toll. By the time a case is heard for three to four hours non-stop, fatigue sets in. Even counsel’s minds begin to wander as to other pending assignments in chambers to attend. It is not even uncommon for application to be made at the end of the session for an earlier date fixed to be vacated. The implication of all these is the undue delay in the attainment of judicial determination and resolution of disputes submitted for adjudication.
As a panacea, courts should begin to consider case fixtures for a particular time with the agreement of counsel. This is already being done by some judges especially for pre-trial or case management conference fixtures but many of our judges are still on the default position that it is 9.00 am or nothing. Nothing says that a case coming up for arguments in an interlocutory application cannot be fixed for 4.00 pm. A counsel might use the morning hours attending to some other assignments and head to by 3.30 pm for the particular court business. Counsel might even have it in mind that he could close for the day after the proceedings which might not end until about 5.30 pm. Thus, the provision of the Article 5(1) of the Practice Direction 2015 issued by the Hon. Chief Judge of the High Court of Lagos State restricting court fixtures not later than 12 noon deserves a reconsideration. Time management is key to case management. Therefore, a handy solution to delays might just be ensuring that individual cases are fixed for particular periods or time slots. All counsel and litigants heading to court at 9.00 am and patiently waiting for their turn kills productivity. We can always make improvement for the better.
Ellias Olatunde Ajadi
Ajadi (email@example.com) is a senior associate at Wale Taiwo & Co, Magodo GRA Phase II, Lagos.
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