“Not the profession I expected-” plaint of a fernist

By The Fernist

(interlude)

DELAY IN JUSTICE DELIVERY – SOLUTIONS?

On the 6th of January, 2020, I instructed colleagues from my office to file a motion on my behalf at the Lagos Division of the High Court of Lagos State. As per the recently issued Practice Direction on Pre-Action Protocol, I was required to file a motion ex-parte to obtain an order to maintain status quo if I believe reasonably that damage would be done to the subject matter of the proposed litigation pending the conclusion of the mandatory pre-action protocol. That is what I did.

To be extra sure that there was no delay, I accompanied the motion with an affidavit of urgency.

I received a call from my colleague that the Registrars of Court were insisting that he filed a pre-action protocol together with the motion ex-parte and so I asked to talk to one of the Registrars. After my call, the Registrar agreed that there was no need to file the pre-action protocol form.

I thought all would finally be well, but my problems had just started. The Registrars of the Court insisted that my colleagues file the motion with the substantive suit. After a bit of an argument, I conceded and asked my colleague to print and file the substantive suit with the motion ex-parte. But it was already too late, the document could no longer be filed that day.

My Colleague had to go the following day. This time, the Registrars insisted that the pre-action protocol must accompany the process. Again, I was called and tried to have a conversation with the Registrar but he would not talk.

I was not available in Lagos so the entire process stalled until the following week, meanwhile my client’s goods in a refrigerator were beginning to get bad. Eventually, I got to Court and had a conversation with the Deputy Chief Registrar who then agreed that there was no need to file a pre-action protocol. Days had gone by then.

My colleague, in order to avert the pressure he was under, had, by then, prepared what seemed to be a pre-action protocol but missing on some requirements and had started filing. By the time I reached him, payments had been made and the document had gone to the e-filing section where the process spent another three days despite pressure.

Finally, the matter was marked for ADR and sent to the ADR office for assignment to an ADR Judge. The document spent, in my recollection, about one month, or at least two weeks, waiting for assignment. I routinely went to the ADR office and insisted that my matter was urgent and should have been assigned and heard by now. The story was the same, with slight amendment. The Admin Judge was not available to assign the matter and there were several other matters just like mine or the Admin Judge had been handling certain official duties but was not able to deal with my application.

By this time, some of my client’s goods had already been destroyed. Eventually, our matter was assigned in late February, 2020 to a judge. I immediately inquired from the Court Registrar for the date and she told me that the application has been fixed for a date in May. I protested and threatened to write to the Chief Judge. At this point, a date in March became available. I was happy. My problems had finally come to an end.

I was wrong.

On the date assigned, I hurried to Court to be told that the Court was not sitting. A date was given about two weeks from then. That was when the judiciary shut down as a result of the COVID-19 spread. Till date, the matter is yet to be heard. My client’s goods have been destroyed and we have had to prepare and serve the pre-action memorandum on the other party since the part of the res we sought to rescue had been destroyed anyway.
If you have read up to this point, you are probably not very happy. Well, but for the way I carry myself, my client would have told me to my face that I was stupid. She probably told her friends that.

In hindsight, I realize I could have written to the Chief Judge to inform him of the problems and my matter would have been assigned and dealt with faster. But why do I have to do that? What is the point of having a system if I must write to the Chief Judge for something as simple as assigning my matter? So, everyone who has an urgent matter should go to the Chief Judge or meet someone before his matter gets handled. What is the point of having an affidavit of urgency? Why shouldn’t there be a system for screening and dealing with urgent matters? What is the guaranty that the Chief Judge will grant my prayer for swift hearing?

Moving on, my style is not to complain too much but rather to find a solution.

I resolved to do something about it. But what?

I have identified a few things that, if sorted, will make things easier and better for everybody. Much of these things have been discussed elsewhere and I will not touch those. I will just deal with some crazy changes I propose.

I belong to a few WhatsApp groups set up for the purpose of disseminating information to Counsel with matters in different Courts in Lagos and Bayelsa States of Nigeria. On occasion, electronic copies of the Cause lists are shared there.

On a particular day, I took time out to consider the entire list of one judge and I realized that a majority of the matters fixed for that day were for hearing. Upon a close look, I realized the items to be heard were mostly motions. Motions to extend time, motion to set aside, motion to amend, motion for leave, etc., and, I suspect that most of the motions are unopposed.

But yes, the Court has to sit and listen to all the motions and “grant them as prayed”, and then give a date for something else. I cannot blame the Courts, I was reading the 2019 case of Nwafor v. EFCC recently where the Court of Appeal held that:

“Proceedings before a Court of law in this country, is statutorily required to be a matter of public hearing. Thus, a Judge ought to conduct the business of the Court in the Courtroom and any deviation from the foregoing, will result in the proceedings so carried being declared a nullity.”

The Court was applying the provision of Section 36(3) of the Constitution which requires that all proceedings, including motions and judgments be in open Court, thus shutting out written judgments, rulings or hearings done in private or via exchange of documents either electronically or physically without the openness.

A well-intended provision but with shortcomings.

I recently read the decision of the High Court of England in the application for extension of time filed by the Federal Republic of Nigeria against P&ID. It was a very interesting ruling for me. However, what I picked up was not what most people talked about. I quote an excerpt from the ruling:

“Covid-19 Protocol: This judgment will be handed down by the judge remotely by circulation to the parties’ representatives by email and release to Bailii. The date and time for hand-down will be deemed to be 10:30 AM on 4 September 2020.”

I have never practiced in England, so I cannot tell if this is constitutional or not there, but I know that such a decision in Nigeria will be the subject of an appeal in the Supreme Court.

I guess that by now you understand my first suggestion. We need to amend our Constitution to allow for proceedings to be conducted without parties appearing before the Court physically or virtually. Hearing by exchange of documents. Afterall, the Court is not in the business of observing the demeanor of Counsel making an application. Counsel is not a witness.

The current situation requires that parties draft applications, and file. Then come to Court to adopt or move. The Court then writes its ruling and parties travel to Court to listen to the judgment/ruling. For the most part these rulings are “ordered as prayed”. What a waste of everybody’s time and resources.

As far as I am concerned, the only time parties and their Counsel should be mandated to appear before the Court is during trial where the Court needs to observe the demeanor of the witness. Every other thing can and should be dealt with by exchange of documents unless it becomes necessary for parties to be present.

The Pandemic has made this even more needed as it saves us the requirement to file a motion at least 5 days in advance of hearing as is now required by the Lagos Division of the Court of Appeal so as to neutralize any possible transmission of the virus in the process of handling processes. It will also mean I do not have to see Justice Obiozor’s face again for a while… which is not necessarily a bad thing since doing so might be saving his life and mine.

The second item I consider is one that is radical in nature. Delegation. Yes delegation. Why does a judge have to be the approving authority for all processes? I mean there are applications that can be dealt with by the registrars without recourse to Court but with strict guidelines from the Court. And if the Court must be the approving authority, why can’t his/her approval be obtained electronically? So that he/she can give approval from wherever. Why does the Admin Judge have to be the one to assign matters? Can this function not be delegated to a trusted and competent registrar or court appointed third party?

Why does a motion that is not opposed have to be taken to the judge? Can guidelines not be created to screen applications that need to get to the Court and those which the registrars will have power to grant, subject to laid down conditions?

Why can we not have a documentary hearings supervised by registrars in the manner that records of appeal are settled, ensuring that only documents agreed upon and meeting the minimum requirements of law are allowed to get to Court, so that we no longer have admissibility objections during trials. Of course, there may be instances where certain complaints will be taken to the Judge but those will be exceptions.

Fortunately for us, the Senate has initiated a process for constitutional amendment. My law firm, Tsedaqah Attorneys, recently sent in a proposal seeking to amend the restrictive provisions. I hope it scales through.

Anyway, I am just a young boy thinking of how things can be better in my profession. I know that I may be wrong, and I have been wrong many times before. But these are my thoughts for now.

For the records, this is an interlude between parts one (1) and two (2) of my thoughts on the profession. Part 2 will come soon, I hope.

My name is Fernandez Marcus-Obiene but you can call me “the Fernist“. My life is under construction.