Judicial Reforms in the Court of Appeal A discussion Paper by Hon. Justice Z. A. Bulkachuwa, CFR President, Court of Appeal of Nigeria

Transcription

1 Judicial Reforms in the Court of Appeal A discussion Paper by Hon. Justice Z. A. Bulkachuwa, CFR President, Court of Appeal of Nigeria Presented at the Bar-Bench Forum of the 2015 NBA Conference Tuesday 25 th August, 2015 International Conference Centre, Abuja 1 P a g e

2 I Protocol. Let me begin by saying that, even at the risk of appearing to be self patronizing, I still, cannot resist the urge to open my presentation by quoting from an earlier statement I made because that falls in line with the contents of my present topic; more so, it echoes the reform vision which encapsulates the major thrust of the current administration of the Court of Appeal. I said at that time: The Nigerian Court of Appeal is beset with the challenge of establishing a judicial system suited for a democratic society. Primitive systems of judicial administration have been over taken by numerous innovations in administration and science and technology. The COA is not unmindful of these challenges. Information technology and Internet are fast taking space in business, industry and administration. Maintenance of independence of the judiciary has been provided in the Constitution of Nigeria. A democratic society needs an independent judiciary which can ensure the citizens do judicially avail their fundamental rights. An effective and reliable judicial system demands a suitable system for the welfare of judges of the court. No institution 2 P a g e

3 can afford to over look the aspect of welfare and training with regard to its staff. There has been a continuous emphasis on these points in the Nigerian Court of Appeal. 1 Against this backdrop, I have to admit that as a consistent advocate of justice sector reforms myself, both before and during my presidency of the Court of Appeal; the invitation extended to me to give a talk on this topic comes as an opportunity to showcase the wide range of reforms embraced by the Court under my presidency within the limits of our constitutional competence and operational capacity. Furthermore, my previous memberships and participation on several committees on judicial reforms have enabled me to glean lessons of immense value that should be shared with a broader group of stakeholders in the justice system. On this note, it behooves me to applaud the organizers of this event for the inclusion of this topical subject in this roundtable discussion and I thank them for the opportunity given me to appear before this august gathering and present our perspective in this all important topic. II Judicial reform is a theme that is so much talked about, advocated and campaigned for in Nigeria. The response to all these by the relevant bodies has been robust and positive. To the best of my knowledge, over the years, frontline stakeholders such as the federal judiciary, the 1 Message from the President, 2013 p.1 3 P a g e

4 justice ministry and the NBA have all been occupied with one reform project or another, either as individual organizational initiative or as a coordinated action. Some of these have since been in place, and more are on track. As a matter of fact, that is how it is in the Court of Appeal and in the segment to follow I will share with you this success story of our accomplishments but not before I provide you with a thumbnail sketch of the philosophy and process that underpin our reforms. There is no disagreement to the fact that the litmus test for any civilized system of justice boarders on the extent to which it makes available to the common man faced with everyday legal disputes, accessible and affordable mechanisms by which he seeks redress. Conscious of this, our reforms are accordingly driven by the principles of equal, accessible, impartial and timely justice embedded in the Constitution. These are some of the ends which any system of justice worth its name should prospect to achieve. The Judiciary is not only an organization; it is also an organism which is affected by changes and exigencies of the society to which it must respond and adapt. This realization conduce us to make use of available mechanisms to evaluate and review our performance from time to time in order to identify any instances of performance gaps or deficits that might require adjustment in tandem with accepted best practices and standards in justice delivery. Today, it delights me to say that working closely with my colleagues, members of the Rules Committee of the Court, we have been able to identify some performance gaps in our system and have addressed them through our reform initiatives. I do not intend to go further on this as I have no doubt in my mind that my brothers and sisters at this forum will 4 P a g e

5 vindicate this inspiring information as you are not merely aware of it but have already started profiting from the efficaciousness of these reforms. 5 P a g e III This brings me to the subject proper of my talk and the good news I promised to share with you earlier on in this discourse. Gentlemen of our noble profession, let me preface this segment of my presentation by informing you that our rolling reform programme has among others, the following overarching goals; that is to say simplifying the appellate process, improving the case management system, modernizing the administration of justice, strengthening the ADR mechanisms and securing the independence and integrity of the Court. Consequently, in the pursuit of these goals we have been able from 2013 to date, to institute and implement the reforms outlined below. 1. The Fast-Track and Active Case Management Systems In 2013 a Court Practice Direction was issued by the presidency of the Court which created a system for fast tracking the appellate proceedings relating to offences of terrorism, rape, kidnapping, corruption, money laundering and human trafficking. The idea in essence, is to minimize considerably the times and expenses spent in adjudicating cases and build a healthy relationship between the judicial service and the general public. However, in 2014, after due consultation with the Rules Committee, it was felt that there were

6 sufficient grounds to extend the scope of the fast track system to appeals by or against debt resolution agencies, national human rights commission, intelligence, prosecutorial, security and law enforcement agencies. Consequently, I issued out the Court Of Appeal (Fast Track) Practice Direction, 2014 which effects extended the applicability of the fast tracking system to appeals involving any of the agencies mentioned earlier. Similarly, we have established methodologies for case management known as the Active Case Management. The process which is guided by the judge allows for discussion with the parties and their counsel. 2. Formulation of New Rules of Court As part of our modernization programme, early this year we have formulated new rules of the Court which supplanted the former ones. As at this time the new rules are at the gazette stage, but I can tell that they embody significant improvements to the appellate system in such areas as: Modernization through providing for electronic means for service of processes - Order 2 Systematic reduction of caseload through strengthening the Court s mediation programme - Order 16. Provisions for appeals from court martial and tribunals - Order P a g e

7 Protection of an accused person by making provision requiring that every notice of appeal must be signed by him as the appellant or his legal representative-order 17 r 4 (1) 3. Effectuating the NBA Personalized Stamps Consequent upon the launching of the NBA stamps (red and green seals) by the Honourable Chief Justice of Nigeria on 15 th April, 2015 and His Lordship s directives on it, I issued out a circular to all the Presiding Justices, Justices and the Registry directing compliance with its usage. 4. Relocation of some Election Tribunals to Abuja In the wake of the ongoing insurgency in some parts of the North-east and the highly volatile situation in some States, it appeared impracticable for election tribunals in those areas to operate smoothly. As a result, I exercised my Constitutional powers and ordered the relocation of the election tribunals in the affected states to Abuja. 5. Raising the number of Justices Through our efforts at reforms, we have been able to catalyze the passage of the Court of Appeal (Amendment) Bill, 2013 which allowed us to raise the number of our justices from seventy to ninety and to pull out from the too little judges, too many cases phenomena, which had afflicted us for long. Hitherto, the Court had inadequate number of justices to cope up with its flowing jurisdictional surge. 7 P a g e

8 6.Proposals submitted to the National Assembly As I said earlier we have introduced some of the top priority reforms at the moment and added that, others are on track. I have said this in reference to the two memoranda we have submitted to the National Assembly which embodied our proposals for consideration by the legislature during any ongoing or up-coming amendments to the Constitution and the Electoral Act. To the best of my knowledge, our proposals if accepted and incorporated in any future amendment to the Constitution or the Act would definitely increase the effectiveness of these laws (copies are appended hereto). IV Distinguished members of this forum, this is where I intend to conclude my presentation on the reforms we have so far made in the Court of Appeal. I hope you enjoyed my brief talk. Thank you for your time. 8 P a g e

9 3. PROPOSALS FOR AMENDMENT TO THE ELECTORAL ACT, 2010 (AS AMENDED) RELEVANT SECTION Section 145 subsection (2) SUBJECT MATTER Power of President of Court of Appeal to issue Practice Directions and Administrative Regulations for election tribunals. AMENDMENTS PROPOSED Section 145 of the Principal Act is amended by the substitution of subsection(2) thereof for a new subsection (2) as follows- (2) The President of the Court of Appeal, may- a) issue a practice direction to election tribunals. REMARKS/RATIONALE The object of the proposed amendment is to enable the Court of Appeal to formulate a comprehensive framework for effective administration and control of election tribunal secretariats in order to enhance their efficiency. b) from time to time, make such administrative regulations for the operation and control of election tribunals. 9 P a g e

10 Paragraph 18 of the First Schedule Issuance of Pre-hearing Notice The First Schedule is amended in paragraph 18 bya) substituting for sub-paragraph (1) a new sub paragraph (1) as follows- (1) Within 7 days after filing and service of the petitioner s reply on the respondent or 7 days after the filing and service of the respondent s reply as the case may be, the secretary shall issue a pre-hearing notice as in Form TF007 and cause such notice to be served on each of the parties to the election petition or their counsel. This amendment is proposed in order to make the issuance of prehearing notice the administrative duty of a secretary and to bring it in consonance with the pronouncement of the Supreme Court in its interpretation of the paragraphs. b) by substituting for subparagraph (2) a new subparagraph (2) as follows- (2) The prehearing notice issued by the secretary under sub-paragraph (1) of this 10 P a g e

11 Paragraph 45 of the First Schedule. Abridgement of time, disallowing extension of time and invalidating processes filed out of time. paragraph shall be accompanied by a pre-hearing information sheet as in Form TF008. Paragraph 45 of the First Schedule is amended by substituting it with a new paragraph 45 as follows- 45- (1) Notwithstanding anything to the contrary, a tribunal or court shall have power either on its own or on the application of either party to an election petition, to abridge time for delivering a pleading or document or filing any affidavit as the circumstances may require. (2) A copy of an order made for abridgement of time shall be delivered together with any document filed or delivered by virtue of the order. The purpose of this amendment is to limit the ability of counsel to embark on incessant application for extension of time which slows the pace of the work of the tribunal or court and thereby inducing delay. Moreover, as the tribunal or court have to operate within the constitutional timeline imposed by section 285 of the constitution and which cannot be extended, it appears desirable to introduce measures that would control such frivolous applications by counsel. 11 P a g e

12 12 P a g e (3) An application for abridgement of time may be made ex parte and shall be supported by affidavit, but the tribunal or court may require notice to be given to the parties to the election petition. (4) The time limited by any provision of this Act or by the direction or order of a tribunal or court for the filing of any process shall not be extended and any such process filed out of time shall be deemed not to have been filed.

13 Paragraph 47 of the First Schedule Insertion of new sub- Paragraphs to control multiplicity of applications by parties. Paragraph 47 of the First Schedule to the Principal Act is amended in the following respectsa)in subparagraph (1) line 1 by the insertion of the expression, and disposed of between the words come and up b) by the insertion of new subparagraphs (6) and (7) as follows- This amendment is proposed in order to control flagrant abuse of procedure by parties to an election petition and appeals. (6) Subject to the provisions of this Act, a tribunal or court shall have power to limit the number of allocations which parties to an election petition may make at the pre-hearing and hearing sessions. (7) All applications made under any provisions of this Act shall as far as practicable be determined instantly without adjournment. 13 P a g e

14 Paragraph 12 of the First Schedule. Insertion of new paragraph to provide for filing of documents online if and when practicable. Paragraph 12 of the First Schedule to the Principal Act is amended by the insertion of a new paragraph 12A as follows- 12A -Where by the provisions of these Rules, the filing of any document is required to be done by parties to election petition, a tribunal or court may if it appears practicable to do so, direct that such filing be done online and in the manner to be specified in the direction. This amendment seeks among other things, to fasttrack the process and to secure the authenticity of documents filed at the registry. 14 P a g e

15 APPENDIX COURT OF APPEAL OF NIGERIA PROPOSALS FOR AMENDEMENT OF THE CONSTITUTION FEDERAL REPUBLIC OF NIGERIA, 1999 RELEVANT SECTION SUBJECT MATTER PROPOSED AMENDMENT(S) RATIONALE Section 285 subsection(6) of the Constitution FRN,1999. Timeline for hearing and disposal of election petition by election tribunal. Subsection (6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. Provided that in the computation of the said days, Sundays, Saturdays, public holidays, court vacations and such unforeseen events which may prevent the tribunal from sitting, shall not be included and if a case is remitted for retrial, the computation shall start from the date such retrial commences at the tribunal. To bring election petition trials inconformity with substantial justice doctrine. Section 285 subsection (7) Timeline for the disposal of an election appeal by the appellate court. Sub-section(7) An appeal from the decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the notice of the appeal at the registry of the appellate court In order for the limitation to start counting from the time the appeal is in actual existence and not in advance. 15 P a g e