Post Covid-19 Case Management Strategies for the Judiciary – Elvis E. Asia

0

Introduction

The reality of justice administration in Nigeria is that our Court system is not user friendly and disputes take almost forever to be resolved. The frustration and the time it takes for cases to be determined by our Courts often diminish the value of the outcome of most cases. The shutdown of courts as a result of Covid-19 pandemic will only make the bad situation worse. Apart from the fact that Judges are now faced with backlog of cases that could have been determined during the period, their capacity to determine these cases have been whittled down by the need to ensure social distancing in the Courtroom going forward.

There are myriads of problems responsible for the ineffectiveness of the judiciary[1]. The solutions often canvassed by stakeholders to the problems include adequate funding for infrastructural and technological upgrade, appointment of more Judges, appointment of Judicial Assistants, judicial autonomy and law or rule change to deal with appeals related quagmire. While these obvious recommendations are imperative to easing the extreme conditions under which our Judges discharge their duties, we cannot overlook the place of proper case management in ensuring that the wheels of justice grinds a little bit faster and with less frustration along the way.  Most of the challenges facing the judiciary may be outside of its control, but effective case management system does not require the inputs of other arms of government, funding and even law or rule change.

This article offers some suggestions on the steps the judiciary can take right now to better manage cases.

Simple Case Management Strategies

Below are simple case management strategies that would go a long way in reducing the frustration Court users face on a daily basis.  They are not exhaustive but are based on the experience of the writer with the Court system.

  1. Time based adjournments: cases should be adjourned with timelines. This will reduce the time people spend in Courtrooms and make the business of the Court business-like. There is nothing more frustrating than to keep litigants and lawyers in Court without an approximate indication of when their matters will be called. From experience, few Courts that adjourn to specific time in a day are more effective.
  1. Motions and Trial/Appeal Scheduling: the practice today is for all cases, motions, trials and appeals, to be put together in the cause list. This is not an effective case management strategy. Motions should be adjourned to different days and where this is not feasible, daily sittings should be in two sessions- morning session for motions and afternoon session for trials and appeals with an hour break in between. The hours allocated to each session may be extended depending on the schedule of each judge or panel. In practice, Judges try to achieve the same result by standing down matters coming up for hearing. The challenge with that approach is that it wastes valuable time as the case would be called twice and litigants and their counsel would need to wait endlessly until the court runs through the list.
  1. Time Allocation: there should be time allotted to each party to conduct their cases. For motions, the time should not be more than 5 minutes for parties to adopt their processes. This cannot amount to breach of fair hearing because the parties have all the time in the world to put their thoughts in the written address. The court should strictly enforce timelines irrespective of the seniority of counsel representing a party.
  1. Adjournment by Registrar: before the first matter for the day is called, the Registrar should adjourn cases that will not be going on with the agreement of the parties after recording their presence. Alternatively, the judge may give directive to parties to liaise with the Registrar for another date where they are unable to go on. Calling out a case and taking appearances simply to adjourn it takes a substantial part of the time available for consideration of cases.
  1. Appearance: appearances by lawyers, particularly when they have to spell unfamiliar names and with a retinue of colleagues, take valuable time. Lawyers should be required to write their names on the cause list in the case of physical hearings and display it on videoconferencing platform or be required to fill online forms for virtual hearings.
  1. Postponement of Sitting: where a scheduled sitting need to be postponed for important reasons, parties and their counsel should be informed electronically at least 48 hours and in emergency cases, 24 hours before the sitting. It must be noted that many Courts are adopting this strategy already but it should become the norm for all Courts.
  1. Court’s WhatsApp Group: Every Court should have a WhatsApp group managed by the Registrar for passing information relating to hearing notices and postponement of hearing. The phone numbers provided by counsel in their processes should be used to create the group. The writer’s experience in Hon. Justice Y. R. Pinheiro’s Court in Lagos in this regard has been most gladdening.
  1. Courtroom Banter and Exchanges: Judges and lawyers are human beings. It is therefore expected that personal idiosyncrasies may come into play during Court sittings. This is however often taken too far. In some cases, half of the available time is spent on banters, side talks and in some instances, humiliation of young lawyers. It is hard to say but the truth is, perhaps Judges need training on emotional intelligence and the act of dealing with people generally. The high incidence of abuse and embarrassment of members of the bar does not serve the intended purpose. The Court should be conscious of banters and exchanges which have no bearing on the resolution of the dispute before it. Given the volume of cases on the Court’s docket, the Court cannot afford to waste valuable time on banters and exchanges.
  1. Service via Electronic Means: service is a major cause of delay in justice administration. Many courts do not have an effective mechanism for service of processes and lawyers are unfairly blamed for the failure of bailiffs despite being made to pay for service at the point of filing. This state of affairs fuels corruption and encourage indolence on the part of court bailiffs. Courts must design a transparent and accountable system of service by bailiffs.  We can borrow a leaf from the National Industrial Court (NIC) in this regard. Where personal service has been shown to be impossible, Judges should grant substituted service via electronic means including on social media. Parties should however be required to show that the person to be served uses the electronic means requested. The goal of service is to bring the pendency of a matter to a party. This will be more likely achieved through electronic means than traditional methods such as publication in the newspaper and pasting or courier to the last known address. The good news is that most rules of Court now allow service by electronic means and there have been a few decisions in that regard.
  1. Admissibility of Documents: parties should be mandated to indicate before trial, which documents they will be objecting to. The unopposed documents should be admitted by consent while arguments on the opposed documents should be reserved till final address. After all, parties are allowed to raise admissibility issues in the final address even after the objection was taken at trial. The practice in this regard by the NIC is commendable and should be adopted. Alternatively, the opposing counsel should indicate the grounds of opposition to all the documents at once and a single ruling should be given by the Court. The spectacle of objections to every document has no place in modern law practice and does not serve the ends of justice.
  1. Adjournments/Cost: in order to discourage delays by parties, reasonable cost should be awarded against any party who frustrates the Court schedule for the day. The current system where not more than N20, 000 is awarded as cost is unrealistic and does not discourage tardiness on the part of litigants and their counsel. As a matter of practice, not less than N100, 000 should be awarded whenever a party prevents the business of the Court from going on without legal reasons.
  1. Management of Time Bound and other Cases: Court users are increasingly frustrated by the delay in the hearing of their cases because of other cases that are statutorily time bound. Courts must find a way to conduct these cases without jeopardizing the right of access to Court by other litigants. As much as possible, time bound cases should be handled by specific Judges so that other Judges can attend to other cases. Where the Court of Appeal can constitute two panes, at least one panel should handle other cases. The experience in the last few years in some divisions of the Court of Appeal has been quite unpalatable. Upon enquiries, Registrars often tell lawyers that the Court is presently hearing only certain kind of cases.
  1. Active Case Management: the adversary method of dispute resolution does not prevent active case management. Case management is the duty of Judges and not lawyers. The Court should be firm on issues about case management and should not allow procedural pranks by lawyers. For example, Courts should insist that preliminary objections and other related interlocutory processes should be heard with the substantive cases or raised in the defence unless it bothers on ‘pure’ issues of jurisdiction.
  1. Alternative Dispute Resolution (ADR): most rules of court now require cases to go through the ADR track before judicial determination. Though this approach is quite commendable, mandatory ADR has become another tool for delay. In referring a matter to ADR, the court should indicate the time within which it should be settled and only if the parties agree to the process.
  1. Delivery of Judgment: as much as possible, Judgments should be delivered on a day and time set aside for that purpose. To reduce the time spent on judgment delivery, it should be limited to the operative part. Taking 3 hours to deliver a judgment with 25 more matters on the list does not help both the Court and parties. The Court should immediately hand out hard copies of the judgment to the parties at the point of delivery. This should not be a problem in this age of information technology. We can also do something about the way and manner judgments are written to reduce the time it takes to pronounce it. Perhaps because of appellate decisions on the form judgments should take, the practice now is for Judges to reproduce pleadings and every argument, sometimes, more than once. Our approach appears different from the practice in most other jurisdictions.
  1. Transfer of Judges: frequent transfer of Judges from one division to another has become a major stumbling block to quick dispensation of justice. We need to ask ourselves what utilitarian value these transfers serve. Certainly, transfers do not serve the ultimate purpose of dispute resolution. The judiciary should not allow administrative arrangements to defeat the whole essence of the system. Transfers should be limited as much as possible but where absolutely necessary, a Judge to be transferred should be given at least not less than one year notice to conclude pending trials. 
ALSO READ   New NBA And The Lost Power Of Unions

Conclusion

While there are many impediments to justice delivery in Nigeria, forward looking and active case management strategies will go a long way in giving meaning to the phrase ‘access to justice’. The goal of the Court and indeed, all stakeholders should be the resolution of disputes and not unnecessary traditions and formalism. The judiciary should use the challenges thrown up by Covid-19 to review daily case management routines in our courts that are unwittingly standing in the way of a hassle free and quick dispensation of justice. The judiciary must measure its effectiveness against the fact that it is a public institution rendering public service and therefore subject to performance review like other institutions. The ‘majesty’ of the court should aid the system to serve the ends of justice and not to create an unaccountable institution.

Elvis is the Managing Partner of Law Future Partners
Email: elvis.easia@gmail.com; elvis.easia@lawfuturepartners.com
09017163850

[1] They include lack of adequate funding for the judiciary, lack of modern technological tools for dispensation of justice, fewer Judges compared to the volume of cases, absence or limited support system for Judges, undue fixation on procedural issues by legal practitioners, jurisdictional complexities, interlocutory appeals and recently, priority for political cases, amongst others.

LEAVE A REPLY

Please enter your comment!
Please enter your name here