“The Court Is Not Sitting”: Hazards Of Litigation In Nigeria

By Akintayo Balogun Esq. 

One of the dilemmas that have characterized the legal practice, specifically in respect of litigation in Nigeria, has been the issue of getting to court and being informed that the court would not be sitting, without prior information. This piece of information, as little and as quick as it is being usually delivered to Counsel, could be very heartbreaking and disorientating, especially for a Counsel that comes in from outside jurisdiction to attend to their cases having run the risk of traveling on our pitiable Nigerian roads and even booked hotels in some circumstance. Worst still is for persons in custody who had hoped that they could get a bail application heard on their behalf. When I first started practicing after my youth service in 2012, I was always eager to attend court because I was the only other Counsel in Chambers with my Principal. I would leave my house as early as practicable, to beat the traffic and to make court latest by 8:45 am. Sometimes I hopped on motorbikes to be able to escape the traffic just to be able to get to court before 9 am. I however get to the court sweating and panting to catch my breath, only to be greeted with the demoralizing news that the court would not be sitting. This information always comes without prior notice to litigants and their Counsel. On a particular occasion, I was so enraged that I lightheartedly yelled at the court officials that I would ask for cost from the court to be paid by the court, for not informing us earlier that the court would not be sitting.

As the years go by, I have watched cases being adjourned interminably for reasons like this. In criminal matters, it has led to prolonged stay in custody because the court could not hear or deliver its ruling in a bail application as at when due.. A scenario played out recently where a bail application was meant to be heard just before the commencement of the court’s yearly court vacations. However, on the day the application (which was not even challenged by the prosecution) was to come up for hearing, the Counsel to the Defendant and the Defendant’s family members were greeted with the depressing report that the court would not be sitting. Meanwhile, the family members of the detained person had gotten sureties ready and landed documents on the ground in the event that the bail conditions would need such requirements. Unfortunately, the matter was adjourned from July to September for hearing of the bail application, thereby keeping the Defendant in custody for another 3 months. Just in October 2021, two lawyers were brutally murdered on their way to Abakiliki, Ebonyi State for a matter. Unconfirmed reports held sway that the court where one of the lawyers was heading to did not even sit. If he had prior knowledge of this fact, or had received a call from the court, he would not have embarked on the journey that led to his unfortunate demise. Many times, legal practitioners have taken the initiative to put a call across to the court registrars or clerks to know if the court will be sitting or not. Unfortunately, on many occasions, the registrars are usually unable to determine if the court will sit or not until they receive a call from the Judge or his legal assistance. I have seen situations where Counsel apply to their Chief Justices for transfer of their cases to other judges due to the consistent inability of the courts to sit. I once filed 2 sister cases and they were assigned to different courtrooms. While one case progressed to judgment within a year, the second case never proceeded beyond the hearing and granting of an ex-parte application for substituted service of the Originating Processes on the Defendant. This impediment was as a result of the inability of the court to sit regularly. The suit never made any progress in court until the cause of action abated. Over the years, I have seen these situations become a part and parcel of litigation in Nigeria. It has been before we came into the practice, it remains and I don’t see any hope in sight of redress in sight any time soon.

Judges are Human

When courts don’t sit, a good percentage of the culpability goes to the Judges. However, I am forced again to come to the reality that Judges are not superhuman beings with special powers and abilities beyond the ordinary. They are flesh and blood like every other human being and should be accorded that regard. And as long as Judges have human blood running in them, this situation may persist for a while. A judge sits through the day and retires to his Chambers to continue sitting to write judgments, ruling, etc with little or no rest. How is he to cope with the pressure on his health, family, and work. Again, the volume of files pouring into the registries of these Judges are so enormous that many of them are being overworked. Therefore, unforeseen circumstances may just arise that would lead to the court not sitting. Many times, these situations are not preempted. A judge could take ill the very morning he is to sit, he may be in a situation where he requires urgent medical attention. A judge’s house was gutted in fire the same day he sat and couldn’t come to court the following day. These are unforeseen circumstances that could be excused. However, some circumstances are not unforeseen and the registry ought and should assist in curtailing the effect of “the court is not sitting” on Counsel and litigants. There are times you get to court and you are informed that the Judge has proceeded on Judges training, Judges Conference, Judges Retreat or has proceeded on leave or something that was well preempted. This to my mind most respectfully is not an unforeseen circumstance. By virtue of the Judge’s itinerary in this circumstance, it is already a fact that the court would not sit which is already known at least 48 hours earlier.

Recommendations

Having said all, the courts in Nigeria can improve on communication with Counsel and litigants as adequate arrangements could be made to communicate the position to Counsel and litigants before the due date. It has been the practice for a while now that phone numbers and emails are being included in court processes. The inclusions are meant for communication and same should be adequately utilized. Where there is a condition where a court would not sit which is preempted, the position should be communicated to the Counsel and or litigant at least 48 hours to the date of hearing, especially to help Counsel coming from outside jurisdiction to avoid the unnecessarily incurring expenses.

In July 2021, the High Court of the Federal Capital Territory, Abuja, directed registrars to issue at least 48 hours’ notice to parties where the court is indisposed or will not sit on a date earlier on agreed or communicated to parties (including Prison Officers in charge of courts). This Notice could be via text message (SMS) or Email. However, the directive further stated that exemptions could be made in cases of emergency or unforeseen events. We hope to see a strong improvement in the level of implementation of this directive. We will continue to bear with adjournments as a result of emergency or unforeseen circumstances until we have a viable solution to the situation.

May the souls of our departed colleagues continue to rest as we push for a better and more stable judiciary.

May God bless legal practice in Nigeria and protect legal practitioners from the hazards of journeying to courts. 

Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice and is based in Abuja, FCT, Nigeria. A prolific writer, public affairs analyst, and commentator on national and international issues. , akinson6@gmail.com.