“Our Courts Cannot Continue To Entertain All Forms Of Disputes” — Fmr NBA President, Agbakoba Calls For Judicial Proactiveness

*Faults Lawyers Of Stalling Trial By Employing Delay Tactics.
*Calls On Judges To Adopt A Business-Corporate-Institutional Mindset In Handling Cases

Former NBA President, and Senior Advocate of Nigeria, Dr. Olisa Agbakoba, has called on Judicial officers to be more proactive in dealing with cases in their docket, through an enhance case-management system.

Agbaboka, who made the call via a paper presentation made available to newsmen, found that despite numerous Court-rule reforms, some Judges have failed to appreciate the wholistic idea behind those rules and have rather chosen to consider the rules on a clause-by-clause basis while applying the drawbacks and delays intended to be ‘bypassed’ and ‘cured’ by the rules.

According to the Senior Advocate of Nigeria, there are more cases in the ticket of Judges which ought to be classified as ‘non-litigable’, as they require little-to-no legal review and analysis; and, can confidently be resolved via mediation settlement.

“For decades, civil litigation in Nigeria has been besmirched by leprous devices, seemingly concocted to defeat the ends of justice. Lawyers created these devices to keep themselves looking busy while achieving little. Lawyers wake up in the morning, don their wigs and gowns, and go to court. You would think they were doing something important or useful. Instead, in court, lawyers deploy, exploit, and manipulate these devices – by devices I mean gambits like “adjournment”, “call-over, “date, “extension of time”, “jurisdiction”, “mention”, and “objections” etc.

“Cases take far too long. On average, a case takes 15 years to crawl from the High Court to the Supreme Court, bogged down in the meantime by interlocutory appeals to the Court of Appeal and the Supreme Court, while the substantive dispute stalls at the High Court.

“There are far too many frivolous or unnecessary cases clogging the court system. On 24 October 2011, a Report of the National Judicial Council (NJC) Subcommittee on Speedy Dispensation of Justice reported that some 75% of cases on court dockets all over the country, ought not to be there in the first place.

“They were frivolous or unnecessary. They did not deserve judicial attention. Unfortunately, the court system welcomes all cases without filters. So the litigants virtually order the courts around. Litigants, through their lawyers, file and discontinue cases without regard to the court’s time. Even an abandoned case can remain on the dockets for years, under the guise of a fair hearing. Hearing notices issued ad infinitum to unwilling parties.

“This is not a realistic model of managing a modern court. The court cannot continue to be an all-covers dispute-resolution stadium. Its business model must be re-defined so that the court transforms into a dispute-resolution engine room with a mind of its own and freedom of choice about which disputes it can or should take on.

“Even some meritorious cases are not suitable for litigation. Each High Court in Nigeria needs to install court-annexed ADR to filter certain categories of claims. Some small claims with little legal controversy ought to be immediately referred to mediation.

“Tenancy disputes and simple debt claims come to mind, and there are other categories of claims that are also amenable to mediation rather, than litigation.

“We should evolve a concept of liability, similar to but more expansive than arbitrability. If a case is frivolous or unnecessary, or inapt for judicial resolution, we should be able to say it’s not litigable! Even when a court admits a case, it should decide how much of its resources to devote to that case

“Let us radically reform our civil procedure system. The emphasis of the reforms is on case management. Other jurisdictions have understood the transformative value of case management in making litigation cheaper, quicker, smoother, more efficient, and more effective. But we have not been idle. Attempts to speed up justice delivery through civil procedure reform have been repeatedly undertaken over the past few decades.

Unfortunately, each change of rules has not been followed by a change in judicial attitude. Judges still bow to the tyranny of rules, interpreting them with a degree of strictness, sometimes higher than that applied to statutes. Unless this attitude is changed, reforms will fail.

The former President of the Nigerian Bar Association also used the occasion of the paper presented to suggest an overhauling of the ‘system’ to enable Judicial officers to go beyond procedural reform and adopt case management tools as their dominant work ethic.

“With each progressive change of rules in the past, judges have simply transferred to the new rules, their doctrinaire approach of the old. But the purpose of each recent rule change has been to drop that ancient regime of slavery to rules and pick up the new system of management by the judges. The judges with case management must control the progress of litigation. Judges must regard the rules as a ready and steady handbook to guide them in their task of managing and resolving litigation.

Agbakoba who used the occasion to reel out some strategic advocacy for transformative civil procedure reforms, including with the likes of Mr. Chinua Asuzu and named Heads of Courts; also noted that his law firm/practice is working on a project styled, the Speed of Justice Project; with the aim is to make case management, the mantra of the Nigerian Judiciary, as well as, to ‘remind Judges that the purpose of the rules changes of the past 3 decades has been to speed up court proceedings.

“The project will introduce a radically modernized civil-procedure code; a draft has already been prepared and presented to Heads of Courts. But unless judges radically change their attitude, new procedural codes will achieve little. The new judicial attitude, as urged by the Speed of Justice project, is that judges ought to take on cases as case managers. So judges are like workers in a business-corporate-institutional environment.

Like doctors who treat their patients, judges must come to the courthouse to treat cases. Like those doctors, judges must apply a range of case management therapies.

“Happily, many judges are gradually beginning to appreciate the need to work in a modern, result-focused, and immediately useful fashion, that serves the parties before them and the larger society.

“So judges must internalize the case-management culture and jettison the adjournment culture. To the many progressive Nigerian judges who wish they could intervene to restrain obstruction or protraction of proceedings, we say: Yes you can. With case management, your lordships can intervene to thwart adversarial abracadabra.