By Ebun-Olu Adegboruwa, SAN
Honourable Justice Kudirat Motomori Kekere-Ekun has been sworn in as the substantive Chief Justice of Nigeria, as expected, given her admirable credentials. During the confirmation proceedings before the National Assembly, My Lord the CJN gave a brief foray into her agenda for the judiciary during her tenure as summarized hereunder.
“Some of the things that I’m known for are integrity and zero tolerance for corruption. The judiciary, under my leadership as CJN, will be one that is not associated with corruption and other things like frivolous ex parte orders by judges or interim injunctions. Decisive actions would be taken against any officer found indulging in such practices. Powers on ex parte orders and interim injunction are no doubt being abused by some judges. Such abuses would not be tolerated under my headship of the judiciary.”
“Digitalisation of all the courts would help to track cases already treated by the various courts and prevent conflicting judgments,” she noted. On decongestion of cases at the various courts, Justice Kekere-Ekun said for the Supreme Court, all pre-election matters should be terminated at the Court of Appeal. She added that Alternative Dispute Resolution would also be used to decongest cases at the various courts, which will be embraced by many since it doesn’t end up in victor-and-vanquished pronouncements. Responding to alleged sub-judice being committed by social commentators, particularly senior lawyers on television and radio programmes through declarative or authoritative comments on cases pending in the courts, the CJN said as the Chairman of Legal Practitioners Privileges Committee, such actions would be dealt with.
“Decisive actions would, no doubt, be taken against those fond of making declarative or authoritative comments on cases pending in the courts of law.”
She, however, disagreed with the suggestion made by Senator Sani Musa that separate courts should be created to handle election matters and terrorism, saying, “Such courts would also be congested later if the required digitalisation of courts across the country is not done.”
No special courts
It has become common to have courts designated as special courts to handle some cases that are considered to be special. Apart from the fact that such practice is unconstitutional in that it discriminates against certain categories of litigants, it also creates bias. All litigants before the court should enjoy the same status, be she a market woman, the federal government or a tailor. We should not create a system of favour for special litigants. In any event, there is no point in rewarding the executive arm of government with special courts when it is the very arm that has held the judiciary down with lack of funds and infrastructure. Furthermore, we should not allow any litigant to choose his own court, such that even before a case is filed, the litigant knows the court that it will be assigned to. No one should have foreknowledge of the court that will preside over his case. It leads to stagnation, for a judicial officer to be tied down to only criminal or special cases, with the resultant effect that the principles of law are buried in the breast of the judge and you can always predict the outcome of the decisions to come from that court. The point made by My Lord the CJN holds fast for all times that the same factors that have crippled the existing courts will definitely drown the special courts. Assuredly, the decisions of the special courts will be subject of appeal, in which case those decisions will cool off with their pears in the judicial mortuaries of the Court of Appeal and the Supreme Court. The solution then is to address the issues holistically such that every court can function optimally and the nature of the case before the court will not matter since there is likelihood of progress in its effective and prompt determination. A case is only special to the particular litigant, because of the subjective importance attached to it. With the politicization of anti-corruption and money laundering cases by successive governments, there is no justification for ascribing a special status to those cases any more. All litigants are equal. I therefore join My Lord the CJN to say no to special courts.
Ex-parte orders
I have wondered what My Lord the CJN will do to this issue, bearing in mind that she has no control over the assignment of cases in the High Court, the Federal High Court, the National Industrial Court or even the inferior courts and tribunals. These are the origins of the embarrassing ex-parte orders. But of course we can not advocate for the abolition of ex-parte orders, because they have their useful purposes when properly deployed. The issue is that of abuse by lawyers and litigants. In addition to the undertaking by the applicant to compensate the respondent in the event that the ex-parte order turns out to have been wrongly obtained, the counsel filing or applying for the ex-parte order should also file an undertaking to pay damages and be subject to disciplinary measures, where facts subsequently show that the ex-parte orders were wrongly obtained. Then follows the issue of duration of the ex-parte orders. The template of the Federal High Court seems to be the best for now, wherein a limitation period of fourteen days has been designed for the life of ex-parte orders, whenever it is challenged by the respondent. It is to enforce the rule that where an application to set aside an ex-parte order is not heard or determined within fourteen days, it should automatically lapse, notwithstanding the fact that an application for interlocutory injunction is pending. Thus, a court entertaining an application to set aside an ex-parte order should take it along with the motion on notice for interlocutory injunction. Almost all the rules of all the courts make it mandatory for an applicant for ex-parte order of injunction to also file a motion on notice for interlocutory injunction simultaneously. What this means is that the applications should be taken together and determined within fourteen days, failing which the ex-parte orders cease to exist. We can make this a uniform procedure for all the courts.
Digitalisation of the courts
Generally, digitalization is the use of digital technologies to change a business model and provide new revenue and value-producing opportunities; it is the process of moving to digital business. According to the United Nations Development Programme (UNDP) “digital tools can improve justice sector efficiency, transparency and access to justice. When employed strategically, e-justice system can advance the rule of law and protect human rights, while also improving the effectiveness of the justice system and institutions.” Since the global pandemic in 2020, the reality of the inevitability of technology has become more pronounced in the justice sector. We therefore undo ourselves if we do not make haste to embrace it holistically and eliminate to its barest minimum, the instances of human intervention in justice management and administration. Unfortunately, the model of the Nigerian judiciary is presently set on manual, leading to human biases and invariably, corruption and inevitably, injustice.
We must all agree to let the judiciary work for all of us, but I am worried that it is becoming more of a mirage with the present dispensation. Running the affairs of the courts manually will only help to retard the much-needed progress of this crucial institution. There is thus an urgent need to introduce technology in the administration of justice. The belief most people have presently is that the plaintiff chooses his own court. This is why despite several practice directions by some courts on the venue of certain cases, some litigants still prefer to run to remote locations to spring surprises on their opponents. When a plaintiff knows his court ahead and he is able to choose the judge that will handle his case, corruption has already set in. I know from experience that many judges do not condone familiarity with lawyers and litigants who appear before them but when you see that a counsel only appears in a particular court all the time for his cases, it gives room for suspicion. This can only happen because of manual assignment of cases. I truly support My Lords the heads of the Courts on the need to exercise the powers of their offices as Chief Judges but we can not close our eyes to developments in other jurisdictions which have helped to change the face of justice in those regions. We should develop and embrace software applications that will handle filing and assignment of cases digitally. It will be more effective and cost friendly. It will help to eliminate the delays and frustrations that litigants currently face. Such technology should not be like that of some States where the concept of urgency has been eliminated and it takes weeks for a case to be assigned and then months to be listed for hearing. There should be options for service of processes electronically, including originating processes as it makes no sense to file court processes digitally and then serve them manually. The system of virtual hearing should be liberalized, to depart from the current trend where it will take the camel to pass through the eye of the needle before a virtual hearing can be set up by the courts. The bureaucracy of that system is killing. Technology will help to reduce the incidences of conflicting and inconsistent decisions from the appellate courts, save judges the burden of manual recording of court proceedings and move the wheels of justice faster.
Five years is more than enough to transform the judicial sector, if there is the willpower to do so. While it is necessary to protect the courts from blackmail by the social media mob, we cannot shield a critical arm of government that is sustained by the revenue of the people from reasonable and constant appraisals. We must allow objective comments and reviews of decisions and proceedings of the courts for correction and improvement. I wish you well ma.