Lamenting The Slow Dispensation Of Justice By : Abdulrasheed Ibrahim

When the Lagos State Judiciary in 2004 introduced its
front-loading Civil Procedure Rules, the expectation of many
patrons of the court was that it had come to check the unnecessary
delay in the court cases.

Under the previous Rules of the court, a Plaintiff could file
only a Writ of Summons without accompanying it with the Statement
of Claim. Mere service of the Writ of Summons on the Defendant a
times made him to develop cold feet and ran to the Plaintiff for
settlement. When some Plaintiffs achieved this “miracle of
intimidation”, they eventually abandoned the suits they had earlier
filed in court.

With the coming into force of the Lagos State High Court Civil
Procedure Rules 2004, the initiator of a suit used to be known as
the PLAINTIFF was renamed the CLAIMANT who under the new rules is
required not only to accompanying his suit with Writ of Summons and
Statement of Claim but also the List of Witnesses, their Statements
on Oath as well as the copies of the documents he intends to rely
on at the trial . He must also have done something akin to the
pre-action notice to the defendant. With this innovation by the
Lagos State Judiciary, many other High Courts in the Federation
followed suit including the Federal High Court and later the
National Industrial Court.

Some years later, precisely in 2012, Lagos State Judiciary
further improved on its frontloading rules wherein it changed the
Pre-Trial Conference (PTC) under the 2004 Rules to the Case
Management Conference (CMC) under the 2012 Rules. With all these
changes and innovations made to improve on the speedy dispensation
of justice, the desire for quick dispensation of justice is still
found wanting. You can only know when you institute an action but
cannot be sure when it will actually come to an end. Since we
operate a system where a party that is aggrieved with a judgement
can appeal against it, you cannot prevent such party from
exercising his right of appeal. The delay in cases has become a big
phenomenon that seems to have resisted solutions even as in the
past. All these were or are not without lamentations particularly
from those on the bench.

For instance in the case of ARIORI Vs. ELEMO (1983) 1 SC at
pages 74-75 where the great late Jurist, Kayode Eso, JSC read the
lead judgment, his Lordship lamented:

“It is unfortunate that a case that has been litigated through a
space of twenty two years is still not brought to an end and has to
be reopened again due to the avoidable fault of the trial judge
especially when some of the witnesses might have died or perhaps
cannot now be traced. Indeed the trial judge himself has retired
from the service. If it is possible to make an order other than a
retrial I would have readily acceded to it. But to my mind the
course of justice can only be satisfied by a retrial and I do hope
the Chief Judge of Lagos State will look into the issue of speedy
trial and assign a judge to this case, who would attend to the
trial from day to day and complete it with utmost dispatch”.

Justice Eso made the above observation in 1983. In the case of
HENSHAW Vs. EFFIANGA (2009) 11 NWLR (Pt. 1151) Pg.65 at 88 Paras
C-E, Omokri, JCA also observed that:

“The instant case on appeal presents peculiar problem which
should be addressed in the interest of justice and fairness. This
case was instituted in 1982 at the court below and the proceedings
commenced in January 1983. Hearing was concluded and judgment
delivered by the Chief Judge on 6th March 2000.That meant that the
case was conducted for a period of 18 years. In my humble view,
order for a retrial in this matter will no doubt defeat the
objective of justice in the adjudication process. It will cause an
unnecessary delay and hardship on the hapless litigants. Justice
delayed Justice denied. As at the date of this judgment, this case
on appeal had been on for 26 years. No one knows when the case will
be concluded if sent back for retrial. Perhaps in another 26 years
or so. In my considered view, this is an appropriate case where
this court can evaluate the evidence of the witnesses and make its
own finding”

In the same year 2009, Hon. Justice Ogbuagu , JSC descended
heavily on the appellants in the case of OSHOBOJA Vs. AMIDA (2009)
18 NWLR (Pt. 1172) at Pg. 207 Paras A-B, when he said :

“The appellants perhaps enjoy or have “gluttony” for unwarranted
and prolonged litigation of dispute or subject matter that this
court had long pronounced effectively upon. In 1992, this case had
lasted for 35 years. It is now about 54 years from when it started.
No party is entitled to have such gluttony. It is regrettable and
perhaps unfortunate.”

If you take your time to do the calculation, you will discover
that a man or a woman that was 54 years old at 2009 and was born
when the case started must have been Grand Pa or Grand Ma and the
case still did not come to an end. In 2014 when Dr. Goodluck
Jonathan (GCFR) was the President of the Federal Republic of
Nigeria, the Supreme Court in the case of SOCIETE BIC S.A. & 2 Ors
Vs. CHARZIN INDUSTRIES LTD. (2014) 4 CLRN Pg. 26 Lines 29-40 had
this to say per Rhode Vivour , JSC:

“This suit was filed in 1995. Nineteen year ago. It took
nineteen years to resolve the simple issue of jurisdiction. This
case would now be sent back to the High court for hearing of the
main suit. That would possibly be settled after fifteen years or
more .This is unfortunate and sad state of affairs for the rule of
law. Cases must be heard with dispatch and resolved quickly. The
better course would have been for the trial judge to proceed with
the hearing of the case after the Ruling on the jurisdiction .Since
the Ruling on jurisdiction could easily be a subject of appeal
after judgment .This is clearly an unnecessary interlocutory
appeal, a waste of client’s resource and judicial time. Such
unnecessary interlocutory appeals have been frowned upon by this
court in a plethora of cases.”

This year ,2018 when the politician are preparing for the 2019
General elections, we are yet to do away with the unnecessary delay
of cases as the Court of Appeal per Ogunwumiju JCA in the case of
AMCO Vs. ONYEDIKA & ANOR. (2018) LPELR -43764 (CA) has this to
say:

“The Ruling of the trial court was delivered in June, 2013 while
the appeal was heard in January, 2018 just a few months shy of its
fifth anniversary. The substantive matter is still pending at the
High Court where there has been zero progress on the matter. The
1st Respondent must now proceed to file the requisite pre-action
notice so that trial can commence in earnest. What a waste of time
and resources!”

One can go on and on to cite more cases to illustrate this issue
at hand. With all these lamentations, our jurists have clearly
identified some of the causes of these delays which include
unnecessary appeal against interlocutory decisions as well as
gluttony for unwarranted and prolonged litigation of dispute .One
of the ironies of the litigation is that we operate a system where
the defendant hardly throws in the towel even where it has no
defence to the suit of the claimant. Many defendants are always
prepared for battle and fight it to the end. By the time a
defendant starts to release his series of preliminary objections, a
claimant who does not have the liver for such fight may decide to
abandon the fight when he sees that the defendant is out to
frustrate his claims. Also the desire of many lawyers to attain the
rank of the Senior Advocate of Nigeria (SAN) some time sharpen the
desire to argue an appeal up to the Supreme court no matter how
frivolous the appeal may be, which is more the reason why we have
suggested somewhere else that arguing cases up to the Apex court
must not be a strict yardstick for the attainment of the rank.

Our jurists especially those on the appellate bench have
propounded a solution that the issue of preliminary objection and
substantive issue should be taken together and judgement delivered
while any aggrieved party can then bring both the interlocutory and
final appeal together at the end. Hon. Justice Uwais, former CJN in
the case of AMADI Vs. NNPC (2000) FWLR (Pt. 9) 1527; (2000) 10 NWLR
(Pt. 674) 76 observed that:

“Finally this appeal succeeds and it must be allowed. The
chequered history of this case once more brings to light the
dilatory effect of interlocutory appeals to the substantive suit
between the parties. The action in this case was brought on 29th
April 1987.The motion on notice to strike out the case for want of
jurisdiction…It has thus taken thirteen years for the case to reach
this stage . With the success of the plaintiff’s appeal before us,
the case is to be sent back to the High court to be determined,
hopefully, on its merits after a delay of 23 years. Surely, this
could have been avoided had it been that the point was taken in the
substantive claim to enable any aggrieved party to appeal on both
the issue of jurisdiction on merit in the proceedings as the case
might be. I believe that counsel owe it as a duty to the court to
help reduce the period of delay in determining cases in our courts
by avoiding unnecessary preliminary objections as the one here; so
that the adage justice delayed is justice denied may cease to apply
to proceedings in our court.”

I am of the view that taking this path will go a long way in
addressing the issue of delay in our judicial system. By the time
the court and the counsel adopt the style of killing two birds with
one stone, the issue of delay in the dispensation may soon become
things of the past.

REMARKABLE PRONOUNCEMENT ON REFORM FOR THE SUPREME
COURT

“I cannot but comment on nature of cases that now inundate the
Supreme Court. That this Apex court which ordinarily should confine
itself dealing with important cases more particularly
constitutional matters would now be crowded with non-discreet
pedestrian cases like deciding on who should be a chief in a
village or community. This court should borrow a leaf from the U.S
Supreme Court where that court on its own, turns it back and
refuses to handle some matters which they in their wise discretion
and wisdom regards as frivolous or would not advance the growth of
jurisprudence. Such banal, dreary and utterly vapid cases ought to
end in the Court of Appeal and this court should on its own decide
whether some cases filed in this court should necessarily be heard
by this court. To my mind it is the duty of this court to reject in
toto an application for appeals in a matter where: (a) there have
been concurrent findings of fact in the lower courts and no
constitutional issue of law is involved unless in a case where this
court is of the view that it has to depart from some precedents
hitherto resorted to because we inherited them from English report
(b) cases which counsel took up because they want to use it to
advance or increase the number of cases they handle in Supreme
court for the purpose of application for SAN. Of course novel cases
that have arisen in the lower courts could of necessity find their
way in this court for determination. That is what this court is
instituted for, not for ordinary drab, dull and strictly
non-contentious issues where counsels merely wish to make
themselves heard.”

Per PATS-ACHOLONU, JSC in A-G Adamawa State Vs. Ware (2006) 4
NWLR (Pt. 970) Pgs. 417-418 Paras F-C

THE SETTLED PRINCIPLE OF LAW

“It is also settled that it is no credit to any counsel who
takes a brief knowing fully well that there is not a slim chance of
success, to blindly prosecute the case. There is need for counsel,
to have confidence in the success of a case, before accepting
it.”
See KALLAMU Vs. GURIN (2005) ALL FWLR (Pt. 241) Pg. 351 Paras
C-D

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30th September 2018