JUDICIAL REFORM IN THE FEDERAL HIGH COURT OF NIGERIA BEING A PAPER PRESENTED BY HON. JUSTICE I. N. AUTA (OFR) CHIEF JUDGE FEDERAL HIGH COURT OF NIGERIA BAR- BENCH FORUMN SESSION AT THE 2015 ANNUAL GENERAL CONFERENCE OF THE NIGERIAN BAR ASSOCIATION ON 25 TH AUGUST 2015 1
Introduction I believe judicial reform generally is an act that is of interest to everybody in the legal and judicial system. This is so because it is widely accepted that if the judiciary fails there is no hope for the common man, as it is more popularly said that judiciary is the last hope of the common man. What then is reform? To reform according to the Oxford Advanced Learner s Dictionary is to make changes in something or practice, especially an institution in order to improve it. Judicial reform therefore means those changes that are made to the already existing judicial system in order to improve. As I have said earlier because of the importance of the judicial system to the common man, it is important that the judiciary more than any arm of government pays attention to reforms. You 2
can all agree with me that the challenges of justice delivery in the 21 st Century are daunting and huge. The pace at which the world is moving is so fast and the judiciary has to keep up with it in order to be able to dispense justice effectively and efficiently. This is why there has to be constant reforms (changes) and improvement in the judicial process to be able to keep up with the 21 st Century world now referred to as a global village. This paper is basically about such judicial reforms in the Federal High Court of Nigeria. The Federal High Court is a unique court that plays an indispensable judicial role in our collective quest for the effective and timely dispensation of justice. The jurisdiction of the Court is 3
unique and enviable which puts it in a position that is pertinent to the growth of our ever evolving democracy and jurisprudence. In this short paper, I will go through a brief history of the Federal High Court, focus on the challenges which the Court has encountered that led to reforms or need for reforms, a look at some of the few reforms and I will conclude with some suggestions on the way forward. Part I - History of the Federal High Court The Federal Revenue Court (as the Federal High Court was then called) was established by the Federal Revenue Act 1973 (1973 No. 13). The Court was renamed the Federal High Court by Section 230 (2) of the 1979 Constitution of the Federal Republic of Nigeria. From its inception, controversy over its jurisdiction dogged the Court. However, such controversy was finally settled with 4
the enactment of the Federal High Court (Amendment Decree 1991 No. 60) which conferred exclusive jurisdiction on the Court in relation to the subject-matter covered by that Act. The Federal High Court jurisdiction as enshrined in Section 251 (a) to (s) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) covers Civil Causes and Matters and Criminal matters related to the jurisdiction. Such as Aviation, Admiralty, Customs and Excise duty, Drugs, Revenue and many more before the Court. The Federal High Court has recorded impressive growth since its inception in 1973. From the pioneering Five Judges, the Court now has over fifty Judges with Judicial Divisions spread across the Country. Part II - Challenges of the Court The Federal High Court as part of the judiciary has her fair share of the many challenges of the judiciary in this country. I will only highlight a few of them. 5
Personally I am of the opinion that delay in the dispensation of Justice is perhaps the most worrisome challenge facing the judiciary. I believe once the citizens lack the belief in the judicial system, because they believe the justice if delivered will be delayed; nobody will take their grievances to Court. The saying that justice delayed is justice denied is a truism. It is no longer strange to hear most Nigerians say, to seek redress in our courts is a waste of time, because such relief may not come during your life time. A lot of factors contribute to this delay, take for instance some divisions of Federal High Court have over 10,000 case files with less than 10 Judges; only supernatural human beings will be able to clear their dockets. We cannot overlook the attitude of the major players which are the lawyers, litigants and judicial 6
officers. Like I have said in various fora before this, the main cause of delay in justice delivery in this country is our lawyers. I know a lot of you here will not be happy hearing this but it is the truth. If two lawyers on opposing sides are determined to fast-track a case no manner of obstacle can delay the case. Even the counsel can put the Judge on his toes if they both want the case to move forward. What we see however is counsel filing irrelevant and unnecessary motions to delay cases and the Judge must hear them and rule in order to satisfy the principle of fair hearing, thereby occasioning delay in the cases. One would assume that they take so much glory in how long the case lasts in court not minding their clients impecunious financial disposition and the damage to our jurisprudence. We need to change the mindset of our 7
lawyers from devising strategies to delay cases such as seeking unnecessary adjournments for flimsy reasons. We have to also admit sadly that some judicial officers are lazy and this causes a lot of delay. Coupled with this is the fact that our courts are ill-equipped and lack the basic necessities such as court reporters, digital reporters and research assistants. This means the Judge will have to record in long-hand, research and write Judgments. In this era of so many cases it is difficult to meet up with their obvious challenges. Another reason for delay in our courts is the attitude of some of our Government agencies that prosecute cases. They often rush to courts with charges but abandon the cases due to lack of proper investigation. 8
Another challenge facing the court is the lack of acceptance of information technology by many. It is unbelievable the level of unawareness by many of the relevance of I. T. to the judicial system. In Nigeria we still find that majority of our courts still use full manual methods. This is not only archaic but slows down the wheel of justice delivery. Until we fully accept that I. T. has come to stay and is the only way to fast-track our cases we cannot make meaningful progress. We cannot talk of the problems of the judiciary without citing the poor funding of this critical arm of government. Take for instance for the past few years the budget of the Federal High Court has been reviewed downwardly consistently. This affects the standard of justice in the 9
courts as it affects the welfare of Judges and their working condition. It also affects the court from making plans that will affect the delivery of justice. I think the main problem of the judiciary is the delay in the dispensation of justice. This is so because it ultimately affects the faith of the common man in the judiciary. It is a matter of serious concern if the general public loses confidence in the courts as this will result to resorting to jungle justice. Part III - Some notable reforms The growth of the Federal High Court has been remarkable since its inception in 1973. The Court has seen so many reforms over the years to meet up to the growth and development of the society; some of the notable ones are highlighted below. 10
(1) The Federal High Court Civil Procedure Rules (2009) Order I Rule 4 of the Rules state that the fundamental objective of these Rules is, just and expeditious disposition of cases the need to make a new set of Rules was based on the technical loopholes in the former rules. The Rules had to be reformed to take care of some of the Orders which Lawyers can hide under to technically delay cases. One of such reforms is the front loading of cases as provided for under Order 3 Rule 3 which made it mandatory to accompany originating process with all other documents. The effect of this is that it saves the time of the Court, it reduces writing for the Judges and prevents lawyers from springing up surprises on the other party. The Rules also made 11
provisions for the establishment of communications and service centre for e-filing in Order 58. As I have said earlier the world is fast evolving into an ICT world. The Court must move along or would be left behind. In line with the provision of that Order the Federal High Court last year launched its e-filing department. The implementation is rather slow for now, but this is due to the budgetary challenges of the Court, and lack of awareness by counsels and litigants. (2) Another notable reform of the Court is the practice direction on criminal trials relating to offences of terrorism, kidnapping, trafficking in persons, rape, corruption and money laundering of 2013. 12
The main objective of the practice direction is simply put to eliminate unnecessary delay and expense for the parties involved in the court justice system criminal matters are usually matters of delicate circumstances of which time is always of the paramount importance. It usually involves infringement on rights, freedom and most ultimately could involve life, and therefore any sort of delay could be extremely prejudicial to any of the parties. Therefore to ensure speedy dispensation of justice the practice direction provides that parties focus on maters which are genuinely in issue, minimize the time spent at trials dealing with interlocutory matters. Settlement is encouraged and to minimize any undue adjournments and delays. Ensuring that hearing is not stalled by unpreparedness of the court or the parties and that the case is fully ready for trial before hearing dates are fixed. 13
The practice direction provides that a complainant should file an accompanying affidavit with a charge stating that all investigations into a matter had been concluded and a prima facie case exists. On the date of first arraignment the prosecutor is compelled to provide the accused person in court. On preliminary objections, the court is directed to deliver ruling within 14 days, and parties are prohibited from serving applications on another party on a hearing date. The use of electronic mail and other electronic means is encouraged by the practice direction to ensure that all parties are informed of urgent court and case events. The above directions in respect of filing a charge will eradicate unnecessary delays caused by prosecution who fail to produce accused persons in court, and the accompanying affidavit will ensure that all investigations are concluded by the prosecution before a case is brought before the court. 14
The practice direction also provided specific duties on the prosecution and defence. The prosecution is mandated to serve copies of the statements of evidence and documentary exhibits upon the defence 7 days before the arraignment and a written summary of all evidence and further evidence which is to be relied upon. These provisions will assist the judge to carry out a prior analysis of the evidence to be relied upon in the case; parties can also settle some issues relating to evidence at this stage, thus saving the time of the court. The defence is directed to specify in writing the defence it will raise and the aspect of the prosecution s case which he will challenge and those he agrees with. He must also state in writing which witnesses he will require for cross examination, and why. 15
The practice directions were therefore released to hasten the prompt dispensation of the trial of these particular sensitive offences. The practice directions will ensure that it is practically impossible for any of the parties to delay trial, and therefore a proper case management can be achieved. This in addition to the day to day hearing of cases by EFCC, ICPC and SSS are all aimed at speedy disposal of cases. (3) The Amendment to Order 48 Rule 4 of the Civil Procedure Rules of the Court is also a notable reform. It provides for the payment of the fee of N1000.00 for default in filing processes. I know a lot of people (especially lawyers) are not happy with this amendment. The logic behind the amendment is not to generate money nor is it aimed at punishing 16
counsel or parties. It is aimed at making counsel live up to their responsibilities to their clients and the Court. But since the rule came into force, we have seen a remarkable decrease in the number of late filings by lawyers. A comparison with other jurisdiction even shows that the N1,000 is low compared to other jurisdictions. It is pertinent to note that some government agencies have applied for waiver on this issue of penalty for late filing. To grant this request will definitely defeat the aim of the enactment. As the main culprit, in this matter of late filing are government agencies and their parastatals. However in deserving cases it may be considered (4) The Nigeria Civil Aviation Procedure Rules of 2013 is another reform of the Federal High Court. The Rules 17
was drafted to facilitate and accelerate litigation in Aviation matters. It will interest you to note that there has never been a civil procedure rules for aviation in this country. Aviation civil procedure and processes were initially brought under the Admiralty Jurisdiction Procedure Rules. Part C of the Admiralty Jurisdiction Procedure Rules provides for Aviation Rules; Order 19 Rule 1 provides that: Subject to the provisions of these Rules and of all laws, conventions, treaties, protocols and understandings on aviation matters as domesticated in Nigeria and contained in the Federal Civil Aviation Act, all claims relating to aviation shall be instituted and prosecuted in accordance with the Federal High Court (Civil Procedure) Rules. 18
I considered that it will not do justice to an industry as important as the Aviation industry if there are no specific Rules regulating it. The advantage of the Rules is that it will attract foreign investors, as they will be aware that their interests will be protected. A major fear exercised by investors generally is the fear of prolonged litigation, which is particularly dreaded in an industry such as aviation where time means a lot of money. With the new Rules foreign and indigenous investors are sure that their cases will be handled expeditiously, as the provisions of the Rule is now clear and devoid of ambiguity. (5) Another reform is the Asset Management Corporation of Nigeria (AMCON) Practice Direction 2013 which 19
fundamental objective is to enable the Court deal with AMCON cases quickly and efficiently. One of the notable reforms is a provision of AMCON track Judge and AMCON track Court which is designated to hear AMCON claims exclusively. This will enable quick and efficient disposal of AMCON cases, which is the sector that is very important in the growth of our economy. Part IV - Way Forward Now that we know that delay in our justice delivery system is gaining unnecessary popularity in the international community, how do we then minimize delay? In my opinion, it is the duty of each and every one of us as stakeholders in the justice delivery system, namely Lawyers, Judges, Court Staff, Litigants and the Government to come to the realization that justice delivery system is fraught with delay and that the system is not efficient in the discharge of its constitutional duty. Upon 20
this realization, we all should then consciously take active steps in our different ways to minimize delay. I have highlighted the problems and challenges of the Court, as well as some notable reforms aimed at tackling these challenges. In the near future the following reforms are on my mind to further reform the Federal High Court. 1. Trial in civil cases should continue from day to day, unopposed applications should be settled between counsel and agreed bundle of documents filed before trial. 2. Counsel should agree two or three adjournment dates with the court registrar before the Court sits. The Judge will thereafter adjourn to any of the dates agreed to avoid the back and forth issue of agreement on date. 3. In the Federal High Court we are taking a leading role in computerizing our Courts, in the coming years with new technological gadgets. We hope to attach a Court Reporter and a research assistant to 21
all the Judges of the Court. This however is largely dependent on the availability of funds which has persuaded me to recommend that the full financial autonomy of the judiciary be fully implemented. I implore the NBA to make sure they demand the financial autonomy of the judiciary to free the Courts from the grasps of politicians especially in the states. 4. Rules of Court must be reformed continually to meet up with Global changes. It is also proposed that Court should set up a case management department, that will work with the Court diaries and counsel to fast track cases. This is the practice in developed jurisdictions to avoid unnecessary delays. 5. The Nigeria Bar Association and the Court should work closely to impose strict sanctions on lawyers and counsel who abuse Court Processes. More severe punishments like suspension from practice or complete debarment of some lawyers that 22
intentionally frustrate the Courts by the filing of frivolous cases should be constituted. In some jurisdictions a lawyer that files a case on trial date or ask for frivolous adjournments will face the disciplinary committee. This standard must be borrowed and only the NBA can educate lawyers, that there is no glory in continually keeping a case in Court. 6. More training is proposed for Judges and their support staff, to improve their knowledge and get the best out of them. This we are doing in the Federal High Court. Conclusion Let me conclude by saying that no amount of reform we put in place will have any desired effect if we do not change the mindset of our lawyers. It is therefore up to the Nigerian Bar Association to continue to train lawyers 23
and more importantly impose sanctions on erring lawyers. It is only when lawyers are aware that they will be sanctioned if they employ any delay tactics and not celebrated amongst colleagues, that we may achieve what we all desire, which is a stronger contribution of Lawyers to National Development and strong and enviable judicial system. The Bar and the Bench must work hand in hand in order to improve the justice delivery system in Nigeria. Thank you. 24