NBA Leaders Differ on Proposed Protest Over New Lagos Rules

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Lagos CJ, Hon Justice O. O. Oke

The Chief Judge of Lagos State, Justice Opeyemi Oke, has been described as a reformer. She is passionate about creating an efficient judiciary where delayed justice is a thing of the past. Days into assuming office in 2017, Justice Oke demonstrated her intolerance for corruption by handing over to the police two officials in the court’s registry who allegedly collected revenue  without issuing a receipt to the court user. Afterwards, she ordered to be mounted in all the courtrooms in the state a mission statement, declaring that the judiciary was committed to efficiency and would not condone acts of corruption.

Worried about backlog of old cases, the Chief Judge called out to lawyers to help review the cases and sift out those suitable for resolution through the Alternative Dispute Resolution.

Her latest efforts towards stemming delayed justice in Lagos State is the proposed amendments to the Lagos State High Court Civil Procedures Rules 2012.

As part of activities heralding the 2018/2019 Legal Year, the CJ convened a stakeholders’ summit where lawyers and judges were briefed on the proposed amendments to the court rules.

Most of the proposed amendments were targeted at tackling delays in the courts.

One is the introduction of punitive costs to be awarded 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, proposed to take effect from January 2019, seek 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, it is being proposed that from January next year, the default fee for late filing of court processes will increase from N200 per day to N1,000 per day.

Also in the proposed 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 propose that written addresses will be limited to 20 pages and reply on point-of-law to five pages.

The rules also seek to leverage technology by  proposing that “all verifiable means of electronic communications” should be acceptable for serving court processes by substituted means.

The chairman of the rules amendment committee, Justice Kazeem Alogba, said, “This is to ensure that difficulty in service is no longer a reason for delays in our courts.”

The new rules also propose video conferencing to take the evidence of witnesses who are out of the court’s jurisdiction rather than waiting endlessly.

But the Chairman, Nigerian Bar Association, Ikeja branch, Mr Dele Oloke, described the penalties being proposed in the new rules as an attempt to commercialise the judiciary.

Oloke, in a telephone interview with our correspondent on Wednesday, said the Ikeja NBA was opposed to the proposed amendments, particularly as it was not carried along and had no input in the new rules.

Oloke described as mischievous  the  argument that penalties were needed, like in advanced countries, to stop lawyers from using delay tactics to frustrate cases in court.

He said, “Anybody who proffers that argument is mischievous and fraudulent. Other countries are not Nigeria. Nigerian workers are still agitating for a minimum wage of N30,000; if you convert that into dollars, it is peanut.

“Nigerians go through excruciating pains, having been pauperised. And what we are talking about goes beyond the penalties in the rules. Some of the content of the proposed rules are a tall order, overambitious propositions, which are not in reality with the life of an average Nigerian. It is contemptuous of the Bar and also of the bench, because the judges were appointed from the Bar.

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“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.”

Oloke described the proposed penalties as part of efforts to further take justice out of the reach of the poor.

He added, “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.

He said it was inconsiderate for anyone to say that because people were paying penalties in advanced countries, same should be done in Nigeria.

He added, “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 proposals, up till now it has not been given to us. How can we make an input into rules that we have not seen?”

Oloke’s predecessor, Mr Adesina Ogunlana, who led a series of protests earlier in the year against the increase in the Lagos State Land Use Charge, said his group, Citizens Rally Against Oppression, will on Thursday (today) stage a peaceful procession to the CJ’s office in rejection of the new rules.

Adesina said, “The authorities of the Lagos State Judiciary are handling the matter in a secretive and suspicious manner. They want to smuggle in their so-called reforms because they know they are not popular. The review committee has no member of the Bar, all of them are judges. When I was Chairman, NBA, Ikeja branch, they set up that committee, they deliberately did not carry us along.

“The little we know about the rules shows that they are driven by a parochial vision that if we introduce punitive costs, lawyers will wake up and stop delaying cases. The mindset of the Chief Judge and her people is that access to court is revenue-driven but justice cannot be commercialised. So, that is the position of majority of lawyers and tomorrow, our organisation, Citizens Rally Against Oppression, is having a procession, we won’t call it a protest, to the CJ’s office to present a letter on this issue and to enlighten members of the public about this obnoxious law, which is another type of Land Use Charge. This is what is called the obnoxious Court Use Charge of Honourable Justice Opeyemi Oke.”

Ogunlana described as dubious the argument that penalties were needed to get lawyers to behave responsibly in court like in the UK, the US, etc.

“It is a dubious argument because foundationally, there is a problem. The number of judges in those places is commensurate with their populations. Lagos State has about 21 million people now and you have just 56 judges. More than a decade ago in New York with about the same population, there were 3,000 high court judges.

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“All these reforms about introduction of technology will not work because Lagos is both the industrial and commercial capital of Nigeria and when you have 56 high court judges, how can you cope? The state will say it is the problem of the NJC which limits the number of judges. If they ask for 10, the NJC will give them two. That is the problem.

“And in other places, judges always sit; here in Lagos, these judges, many times, are missing in action. They repeatedly give excuses for being away for retreats,  conferences, weddings, burials and for about three months in a year, judges in Lagos do not work because the court is shut down in the middle of July and does not come back effectively until September. And then in December, the court is in doldrums for another two weeks.

“When the judges don’t sit, there is no sanction. And when costs are awarded against a lawyer, is it not the opposing lawyer that should benefit from the cost? But the judiciary wants the money to be paid to them. The judges are pointing accusing fingers at lawyers when they are guilty of 60 percent of the cause of delays. How many of the judges, with due respect, are actually more hard-working than the lawyers they adjudicate over? To be honest, the opinion of the average senior lawyer is that out of about 56 judges in Lagos State, you can only vouch for just about 20, in terms of professional competence and industry and that’s being generous. We are not talking about integrity, but the understanding of the law and court management. There are up and doing judges but they are not many. The reasons for delay are too many for only one section to blame it on another,” Ogunlana said.

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 lawyers 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 Ogunlana, 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.

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“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.”

Culled: The Punch


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