Beset by judicial officers shortages, overflowing dockets, trial delays, congested prisons and now the COVID-19 pandemic, the Judiciary is in a race to find a way to keep the legal system functional, writes ROBERT EGBE.
When Paul Odunewu arrived in Nigeria from the United Kingdom (UK) on the night of March 1, 2020, it was already almost five months since the last hearing of his case at the Court of Appeal in Lagos.
The British-Nigerian engineer was scheduled to appear in court on March 3, 2020 to defend an October 2017 appeal filed against him by a telecommunications firm.
The telco was challenging a lower court’s judgment ordering it to pay Odunewu $13,419,728.54, £10,000 and N2,540,000 (totalling N4,825,036,735.9) for wrongful termination of employment.
The National Industrial Court, Akure, gave the judgment on September 9, 2017, 10 years after Odunewu began the case at a High Court in Lagos.
But soon after the expatriate settled in Lagos and less than 24 hours to the 9am court sitting, his lawyer forwarded a message to him from the court registry. “This is to inform you that on Tuesday, March 3, 2020, court is not sitting. The matter has been adjourned till November 25, 2021,” the email read.
Odunewu’s 12-year legal tussle might bewilder an outsider, but trial delay in civil or criminal matters is not unusual in the Nigerian legal system. Land matters, for instance, have been known to last over two decades from the court of first instance to the Supreme Court.
Last December 5, former Abia State Governor Orji Uzor Kalu bagged 133 years imprisonment for N7.65bn fraud after a 12-year trial. Many other cases overflow judges’ dockets across states, particularly in appellate courts, without a clear date for resolution, despite recent efforts to clear the backlog.
And the situation may just be about to get worse.
155,757 cases suspended
Odunewu’s case is one of the 155,757 the courts are handling in the 2019/2020 legal year. Most of them will probably suffer further delays following the COVID-19 pandemic in the country. Efforts to contain the virus, including a near nationwide lockdown, have temporarily crippled life and living, including the judicial system.
Courts have been shut almost nationwide for almost a month, following directives from the Chief Justice of Nigeria (CJN), Ibrahim Muhammad, and state Chief Judges in response to the unprecedented health crisis. They were, however, authorised to and have been sitting for urgent, essential or time-bound matters. Other cases may have to wait until normalcy returns.
There are 36 divisions of the Federal High Court and they had 200,000 pending cases last July, with only 82 judges. The congestion is similar or even worse at the Court of Appeal and the Supreme Court.
Longer wait for 51,983 awaiting-trial inmates?
The lockdown has also stalled the trial of most of the 52,226 awaiting-trial inmates in the Nigerian Correctional Service facilities. This number forms 70 percent of the 74,127, total population in custody.
According to the Nigerian Correctional Service (NCS), only 21,773 of this total population are convicted inmates.
One of such defendants that will spend longer in detention is embattled Yoruba filmmaker Olajide Kazeem, aka, Seun Egbegbe.
Egbegbe has already spent over three years in prison custody due to his failure to perfect his bail conditions. The erstwhile Lagos socialite, known for his lavish lifestyle, has been incarcerated since February 10, 2017, following his arraignment for alleged N39 million; $90,000 and £12,550 fraud.
The pandemic may precipitate a cause list backlog that could overwhelm courts even further, post-COVID-19.
Presidency suggests way out of prison congestion
Concerned about the possibility of COVID-19 spread in crowded places, including custodial centres, the Federal Government on April 9, announced presidential pardon for 2,600 inmates nationwide.
President Muhammadu Buhari followed that up on April 21, by proposing urgent measures to speed up the trial of cases and decongestion of correctional centres.
In a letter to the CJN, the President drew attention to a recent United Nations (UN) call on all countries to consciously reduce the population of inmates in prisons since physical distancing and self-isolation in such conditions were practically impossible.
He said: “Most of these (correctional) centres presently house inmates beyond their capacities and the overcrowded facilities pose a potent threat to the health of the inmates and members of the public in view of the present circumstances, hence, the need for urgent steps to bring the situation under control.”
The President said it had thus become imperative “for the CJN to request state chief judges to embark on an immediate visit to all correctional centres in their respective states to identify and release deserving inmates where that has not been done already.”
He noted that during such visits, the chief judges were enjoined to consider conditional or unconditional release of awaiting-trial persons (ATPs) who have spent six years or more in custody. ATPs who have no confirmed criminal cases against them, aged inmates and the terminally ill may also be discharged.
How to keep the system functional, by SANs
Notwithstanding the bleak outlook, some Senior Advocates of Nigeria (SANs, under the auspices of the Justice Reform Project (JRP), believe the situation can be salvaged and reform is possible.
The JRP shared its ideas in an April 2 letter to the President, Nigerian Bar Association and the Chairman, Body of Senior Advocates of Nigeria (BOSAN).
The letter, “COVID-19: Administration of justice and welfare of lawyers”, was signed by JRP’s Governing Board Chairman, Olufunke Adekoya, SAN, and its convener, Charles Adeyemi Candide-Johnson, SAN.
It addressed two broad issues: Administration of courts & justice and lawyers’ welfare, following which it suggested, among others, the suspension or reduction to a week of this year’s annual vacation.
JRP urged the NBA and BOSAN to invoke their authority and enlist the support of the Attorney-General of the Federation and those of the states, the Heads of Courts and members of the profession in the quest to reposition the sector.
For proper court administration during the lockdown, it made six recommendations.
Use technology
It said court business could be redesigned to adopt technology that permits remote hearing, including phone or video conference calls, as well as the use of phone and email and other electronic infrastructure.
For urgent matters, it added: “A Practice Direction departing from the normal rules should be sufficient to bridge any gaps. The heads of courts should be encouraged to issue a protocol regarding remote hearing. Perhaps in anticipation of times like the present, the Federal High Court Rules and that of the National Industrial Court of Nigeria, for instance, contain provisions enabling same.”
Time-sensitive matters
Business days have been suspended and this should, ordinarily, have the same effect on every court’s proceedings, JRP said.
It added: “Similarly, time within which various steps ought to be taken should typically be tolled. A Practice Direction that this period will be discarded in computing time under the Rules of Court will dispense with filing of motions for extension of time, avoiding a further clog on an already congested court system.”
Suspend annual vacation for 2020
According to the SANs, the sector is likely to lose “no less than four to-six weeks in courts’ proceedings. They suggested that the annual court vacation be suspended or reduced to a week, ”to make up for the lost time. Such announcement at this point will re-establish confidence in the general public who are the consumers of the service.”
Sanitise court premises
The group said the courts which are shut presented an opportunity to sanitise court premises and ensure the installation of safety measures in all courts.
N50m NBA welfare fund
For lawyers’ welfare, the JRP noted that with the restriction on movement occasioned by the lockdown, many lawyers may be unable to meet their daily needs and those of their families. It proposed that BOSAN, in collaboration with the NBA, attempt to mitigate the impact on the most-vulnerable and exposed lawyers.
The group said: “We have for this purpose singled out a category of lawyers; practitioners who are four years post-call and below, having an annual turnover of N1,000,000.00 and below.”
To achieve this, they proposed that “The NBA should show its commitment to the cause by setting aside a specific sum for this purpose (the “Fund”). As an off-the-cuff suggestion, a sum of no less than N50,000,000.00 may be set as a threshold. The NBA may seek to obtain a loan against future practising fees in the face of liquidity challenges.
“BOSAN may consider deploying some of its leadership fund to ameliorate the condition of some of the aforementioned group of young lawyers in support of this Fund as set up by the Nigerian Bar Association (NBA).
“Lawyers who are better placed at this time may contribute to this fund such reasonable amounts as may be convenient for them.”
They encouraged SANs and other senior lawyers to commit themselves to contributing a minimum sum of N250,000 each to the fund.
JRP also advised the NBA and BOSAN to negotiate with the relevant tax authorities to ensure the contributions will be a tax-deductible item for the current year’s annual tax obligation.
“In effect, donations are somewhat subsidised and repayable to this group of lawyers in form of tax rebate for the year under consideration. It is likely that the Federal Government will be willing to accommodate this gesture having regard to its current disposition and welfare package to other sectors of the economy.
“The NBA should then disburse an agreed sum to the group of young lawyers. Again, by way of suggestion, it may be any sum between N20,000 and N50,000 a month for an initially determined period. In view of the uncertainty of the end of the pandemic, we suggest an initial period of six months.
“To qualify, this group of young lawyers shall show evidence of their annual turnover, in form of any one of their balance sheets, statements of account, or such reasonable representation of cash flow.
“The local NBA Branches should create a list of the group of young lawyers,” JRP said.
Judiciary’s response to COVID-19
Last week, the Court of Appeal introduced an alternative e-payment tagged ‘the Court of Appeal REMITA (031800300100)’ for filing of court processes.
Its Acting President, Justice Monica Dongban-Mense, made the disclosure in a circular to the presiding justices of the court’s Lagos, Kaduna, Enugu, Port Harcourt, Calabar, Ibadan, Ilorin, Jos, Yola, Makurdi, Ekiti, Akure, Benin, Sokoto, Akwa, Asaba, Kano, Abuja and Owerri divisions.
She said the procedure would reduce contact between members of the court’s staff and litigants.
The notice requested the presiding justices to compile telephone numbers and email addresses of counsels who had matters in their divisions and forward same to the court’s email address.
Also, the Supreme Court last Friday said it had begun deploying technology that would, among others, enable it to conduct virtual proceedings, “within the shortest possible time.”
The technology would also boost its capacity to handle the huge backlog of appeals before it.
“The virtual meeting of the National Judicial Council (NJC) on Wednesday and Thursday, April 22, and April 23, 2020, is part of the modern technological platforms being enthroned by the Nigerian Judiciary and we hope to leverage on the emerging options at our disposal to deliver on our mandate so that the Justice sector does not suffer any major setback even before we resume our normal life”, the court’s Director of Press and Information, Dr. Festus Akande, said in a statement.
70 new judges
The NJC, at its April 22 and 23 meeting, recommended the appointment of 70 new judges for both federal and state courts as presidents of Court of Appeal, grand kadis, presidents of Customary Court of Appeal and judges of state High Courts and the Federal Capital Territory and kadis of state Sharia Courts of Appeal.
The appointments are expected to relieve the workload on judicial officers and help to clear backlogs after the pandemic.
Special 10-member committee
The NJC also constituted a 10-member committee tasked with finding “urgent practical strategic measures to be put in place in order to ensure that courts continue to function despite the lockdown and COVID-19 challenges.”
Its terms of reference are: “to come up with guidelines or template for implementation.
“To explore possible areas of collaboration between the Judiciary and the office of the Attorney-General of the Federation, stakeholders in the justice administration and development partners in justice administration sector; and
“Any other measures that the committee may deem fit in realising these objectives.”
The committee, which has 14 days to conclude its assignment, has Justice Bode Rhodes-Vivour of the Supreme Court as its chairman.
Will the measures work? Only time will tell.
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