For many litigants, the appellate courts have become a source of frustration and lamentation. Besides the inefficiency of the system which is bogged down by a tedious process, appeals, though constitutional rights, are deployed by unscrupulous litigants to frustrate other parties. All manner of issues go on appeal, overwhelming the appellate courts. With the process fraught with corruption and inefficiency, the challenges appear to have defied solution. Legal experts, however, have suggested ways out, writes JOSEPH JIBUEZE.
A former Akwa Ibom State Commissioner for Youth and Sports, Imo Udo, will not forget his experience at the Supreme Court in a hurry. Either through deliberate frustration or act of sabotage, he hit a brick wall.
Udo ran against Mr Godswill Akpabio during the 2011 governorship primaries under the Peoples Democratic Party (PDP). Akpabio won.
Udo claimed that Akpabio was not qualified to contest the primary election because he allegedly did not pay tax for the three previous years in line with PDP’s guideline.
While Udo was slogging it out in court, Akpabio was sworn in as governor. The case was still pending in court as Akpabio won a second term.
Udo’s case got to the Supreme Court but was never heard. When it eventually came up, it was struck out.
The case began when Udo sued Akpabio at the Federal High Court, claiming that the defendant did not show proof of tax payment.
He argued that there was no evidence that Akpabio was exempted from the payment of personal income tax.
The court, in its judgment, held that it had no jurisdiction to determine the case.
Dissatisfied, Udo appealed to the Court of Appeal, Calabar. The appellate court held that for his complaint to be justiceable, it ought to have occurred the day the primary election was held.
Udo took his case to the Supreme Court on January 24, 2014, praying the court to disqualify Akpabio and to overturn the Court of Appeal judgment.
But, the case was not listed for hearing until about a year later. This was despite several requests by Udo’s lawyer that it be listed.
It took a formal complaint to the then Chief Justice of Nigeria (CJN), Justice Aloma Mariam Muktar, for Udo’s case to be listed.
Justice Muktar directed Udo to file an application for accelerated hearing.
Udo said the CJN’s directive got to his lawyer 36 days after it was dispatched by the Head of Litigation.
When the case came up for the first time on December 17, 2014, the panel of justices further adjourned it till April 20, 2015 for hearing.
Worried that Akpabio’s tenure would soon expire, he sought the intervention of the new CJN, Justice Mahmud Mohammed, for an earlier date, but the CJN said he could not interfere.
Udo said he was shocked when on April 20, 2015, an entirely new panel was constituted to consider the case even when there was no petition against the earlier panel handling it.
The new panel, rather than go on with the hearing, dismissed the appeal suo moto (without prompting).
Udo said the justices’ excuse was that they “did not have time to write judgment on the case.”
“The panel rose and I went back home unheard and my appeal unattended to even though it was ripe for hearing and determination by the Supreme Court for over a year and six months before the 20th of April 2015,” Udo lamented.
In an affidavit in verification of his petition, Udo said his lawyer, Adebayo Adelodun (SAN), was asked to withdraw the case or it would be struck out.
He wondered why the accelerated hearing notice was not dispatched to him on time; and why a new panel was constituted to hear the case when there was no petition or complaint against the first panel.
“Was the Supreme Court playing pranks on me when on the 17th day of December 2014, the court pleaded with my counsel to accept a four-month adjournment on the grounds that the case would be determined on the next adjourned date?
“If the reason for dismissing my case was truly lack of time to do the work they are paid to do, why did the same court, on the 27th day of April and the 26th day of May of the same year (more than a month later) consider other political matters and gave judgment on them?” Udo wondered.
His battle to have the case re-listed and heard on merit is still ongoing.
Udo could consider himself fortunate that his case was eventually listed, although it took a petition to the CJN for an action to be taken.
But it was struck out for not justifiable reason.
Endless appeals
Udo’s experience captures what many litigants through at the appellate courts where cases last as long as 10 years or more.
Mr Okon Johnson, now in his 70s, and about 859 others were engaged as security personnel sometime in 1990 by Mobil Producing Nigeria Limited.
In 2000, a dispute arose about their status. Mobil claimed it engaged them as supernumerary (SPY) police personnel and not full staff.
The workers sued at the Federal High Court, Uyo, Akwa Ibom State. The court entered judgment in their favour in 2006.
Mobil appealed the decision at the Court of Appeal, Calabar.
In a unanimous judgment on May 21, 2009, the Appeal Court held, among others, that the Nigerians were Mobil’s employees.
Mobil appealed to the Supreme Court in 2010. Although many of the affected workers have died, the appeal is still pending at the Supreme Court, seven years later.
Alhaji Garba Mohammed Gadi was the Deputy Governor of Bauchi State. He was impeached in controversial circumstances in August 2009. He challenged his impeachment up to the Supreme Court.
His appeal was filed on October 22, 2013. Unfortunately, the appeal was not heard until Alhaji Gadi died on August 1, this year.
Before tragedy struck, Dr. Mattias Oko Offoboche’s lawyers filed the appellant’s brief on October 15, 2010 in the appeal numbered SC. 224/2009. The respondents did not file any brief. The appellant died in 2015, about six years after lodging the appeal. It was never heard.
A leading Lagos law firm, Strachan Partners, in a report titled: effect of appeals on course of trials, notes that the average lifespan of cases in Nigerian courts last no fewer than 15 years.
According the firm, appeals take over 60 per cent of the time.
It pointed out that cases take over 15 years at the appellate courts alone. For instance, the case of Ariori vs Elemo (1983; 1 SC 13) took about 23 years to be resolved.
The case of Union Bank Nigeria Plc vs Ayodare and Sons (Nig) Limited was instituted at the High Court in 1989.
After less than five years, it went on appeal. It was finally decided by the Supreme Court in 2007. Altogether, the case took 18 years to be resolved.
A trial court gave judgment in the case of Adisa vs Oyinwola in 1985. It went on appeal the same year. It was not determined by the Supreme Court until year 2000. The appeal lasted for 15 years from the Court of Appeal to the Supreme Court.
On December 12, 2006, the Economic and Financial Crimes Commission (EFCC) issued an interim investigative report and prepared a draft of 223 charges against former Rivers State Governor Dr Peter Odili, accusing him of embezzling N100 billion.
On January 31, and February 26, 2007, at the twilight of his tenure, Odili approached two courts in the state capital where he filed two cases through his Attorney-General, Mr. Odein Ajumogobia (SAN).
The case before Justice Ibrahim Buba of the Federal High Court also went into full trial and in a judgment delivered on March 20, 2007, Justice Buba upheld the plaintiff’s prayers. However, two months after leaving office, Odili again returned to Justice Buba’s court where he filed a suit in his personal capacity against the Attorney-General of the Federation and EFCC.
The judge granted his prayers and restrained the EFCC from arresting, detaining, or prosecuting him. It also granted a perpetual injunction restraining the EFCC from using its interim report, which the court had earlier declared null and void.
EFCC appealed to the Court of Appeal on the basis that the judge failed to distinguish between the period of constitutional immunity as a sitting governor and when he was out of office.
The commission challenged the court’s position that everything Odili did while in office, including alleged acts of corruption was done in official capacity.
The appeal is still pending.
Presidential Advisory Committee Against Corruption (PACAC) chairman Prof Itse Sagay (SAN) said it was strange that the appeal was yet to be listed for hearing nearly 10 years after it was filed.
“The case was filed at the Court of Appeal. The file number is there. For some strange reason, the Court of Appeal would not list it for hearing.
“The whole thing is so obscured that it’s left the radar of cases. Each time the EFCC applies to find state of the case, we are frustrated,” Sagay said.
The case of former governors
It took nearly 10 years to determine the interlocutory appeals filed by some former governors against their trial. While the Supreme Court has decided some of the cases and trial resumed, others are pending. The former governors’ case show how slow the appellate process can be.
Former Abia State governor Orji Kalu was charged with N3.2billion fraud soon after leaving office in 2007. He filed an interlocutory appeal. It took about nine years for the appellate courts to decide the case. Kalu was re-arraigned on September 27, 2016, nine years after he was first arraigned.
Former Oyo State Governor Rashidi Ladoja was also first arraigned in 2007 on allegations of converting N4.7billion from the state. He obtained a stay of proceedings after filing an interlocutory appeal. It took over seven years before the Supreme Court decided the appeal. Ladoja was re-arraigned on December 14, 2016, eight years after he was first arraigned.
The cases of other former governors are still pending on appeal. For instance, the EFCC accused former Oyo State Governor Adebayo Alao-Akala of conspiracy and misappropriation of N11.5billion.
Four years ago, a High Court in Oyo State adjourned the case indefinitely after Alao-Akala’s lawyer, Lateef Fagbemi (SAN), informed the court about a pending appeal to challenge the lower court’s December 12, 2012 ruling that Alao-Akala had a case to answer.
The interlocutory appeal is still pending at the Supreme Court.
Similarly, the case against former Inspector-General of Police Sunday Ehindero is also pending. He was accused of using position to confer corrupt advantage on himself. He was charged in 2012.
His appeal challenging the lower court’s ruling on a no-case submission was dismissed by at the Court of Appeal. Ehindero further appealed to the Supreme Court. The appeal is still pending.
The overall effect is delays that the Judiciary is fast losing its fear factor.
Ikeja Branch chairman of the Nigerian Bar Association (NBA) Mr Adesina Ogunlana said because they know there will be virtually no end to litigation, aggrieved persons are no longer keen to seek remedies in court.
They would rather take laws into their own hands or leave matters to God, he said.
Those who act with impunity are also not bordered about being sued. They know that after a minimum of five years deciding a case at the lowers courts, it would take even longer at the appellate courts, by which time an already done deed had become irreparably damaged.
“It is a very sad commentary on the judicial system for people to tell you: ‘You can go to court’. They are not afraid of the courts because they know that the cases would never end. But they will never tell you to go to the press,” Ogunlana said, underscoring the fact the court of public opinion had become more preferable to the court of law.
A presidential aide’s experience
Special Assistant to the President on Prosecution Okoi Ofem Obono-Obla lamented that appeals are bogged down by “the inefficiencies and outright corrupt practices” of court officials.
He alleged that court workers have turned the process into money making opportunities by attending to case files only when their palms have been greased.
“To obtain a court ruling, you must pay through your nose; to obtain a certified true copy of a judgment, you must pay through the nose; to cause a court bailiff to serve a court process, you must pay through your nose. To get a case to be assigned after filing, you must pay through your nose.
“Even in the Supreme Court, to get an appeal assigned for hearing, you must pay through your nose. The registries in the Court of Appeal and Supreme Court respectively are a study in chaos, disorderliness and confusion.
“The court has refused to embrace Information and Communication Technology (ICT) to organise its registry in line with international best practices,” Obono-Obla said.
Following Obono-Obla’s criticism of the inefficiency in the appellate process, the Supreme Court’s Chief Registrar, Mrs. Hadizatu Mustapha, wrote him on September 7.
“His Lordship, the CJN, is desirous to make a positive change in the judiciary, hence he has requested that you please oblige the Honourable Court with details of all your pending or delayed appeals filed at the Court of Appeal and Supreme Court since 2007 to enable his office take the necessary steps to ensure redress,” Mustapha wrote.
Obono-Obla obliged. In his September 12 response, he listed seven cases that had been hanging at the Supreme Court for near 10 years, and six which had been pending at the Court of Appeal.
According to him, a notice of appeal in Chief Obono Egom & 7 Ors. Vs. Eno Omini Eno & Anor (numbered SC. 220/2009) was filed on June 1, 2006. Appellants’ brief was filed on August 6, 2009. Respondents’ brief was filed on November 30, 2009. Appellants’ reply brief was filed on January 29, 2010.
Records from the lower court were transmitted and briefs settled, yet no date for hearing has been fixed for seven years.
The appeal in Chief Akinwunmi Ricketts Vs. Cross River Property & Investment Ltd & Anor (SC. 93/2008), was filed on September 28, 2007. Appellant’s reply brief was filed on January 28, 2009. Briefed were settled, but no date has been given for hearing since 2009. This year makes it eight years.
For the appeal in Inspector Gabriel, Commissioner of Police Monitoring Unit, Lagos vs. Evangelist Mrs. Helen Ukpabio & 3 Ors (SC. 290/2008), filed on May 11, 2007, Obono-Obla said the respondents’ brief was filed on January 28, 2009.
“Records have been transmitted and briefs settled. It is now eight years since the appeal became ripe for hearing. No date for hearing,” he said.
An appeal in a suit Obono-Obla filed in his personal capacity against the Federal Road Safety Commission (SC. 117/2010) is yet to get a date for hearing five years after the appellant’s reply brief was filed on March 7, 2012.
The case of Garba Mohammed Gadi vs. the Speaker, Bauchi State House of Assembly & 14 Ors (SC.720/2013) had a sad ending. The notice of appeal was filed on October 22, 2013. Only two of the respondents out of 14 filed their briefs in 2015.
Due to attendant delays, the case was never heard. A hearing date was eventually fixed for January 16, 2018. Sadly, the appellant died on August 1.
“A letter of death/notice of discontinuance of the appeal was served on the registry of the Supreme Court on 9th August, 2017,” Obono-Obla said.
The Special Assistant on Prosecution also listed his cases yet to be heard at the Court of Appeal.
They include an appeal in Nigerian Civil Aviation Authority vs. Justina Oka Obono-Obla & Ors (CA/PH/767/2013). The respondents’ brief of argument was filed on April 14, 2014. Records have been transmitted, briefs settled. No date has been given since 2014.
His other cases awaiting hearing are Dr. Kevin Ngwang Gunme & 7 Ors. Vs. Ag Federation (CA/A/69/2014), in which appellant’s brief of argument was filed on March 13, 2014; Macgregor Eteng Omini vs. Yakurr LGA (CA/14/2011), with records of appeal transmitted since June 25, 2012; and Okorn Onun Arikpo vs. Onun Onun Arikpo & Ors (CA/C/183/2014), in which respondents’ brief of argument was filed on August 5, 2014.
The rest are Chief Unoh A. Unoh & Ors. vs Nigerian Prison Service & Anor (CA/C/182/2013), in which second respondent filed brief of argument on June 6, 2014, and Chief Donatus Ofem Ibor vs Obol Onen David, numbered CA/C/101/2011.
‘Corruption practices killing system’
In his letter to the CJN, Obono-Obla alleged that some of the appeals were not listed for hearing because the officials would not list them unless they were bribed.
“I would like it on record that the statement credited to me about the inefficiency and corrupt practices prevalent in the Registry of the Supreme Court and Court of Appeal in Nigeria is not calculated to bring ridicule to the Judiciary or our esteemed legal profession, but to make it better than it currently is.
“It is, therefore, not all about my appeals pending before these appellate courts alone, but about the generality of appeals filed by litigants in these appellate courts.
“The appeals by omissions or commissions become bogged down by the inefficiencies and outright corrupt practices I have identified.
“The registries of the appellate courts have failed to map out strategies that will ensure the efficient disposal of appeals which are ripe for hearing,” he said.
Obono-Obla said it had become the “norm” for some judicial staff to demand money before attending to pending files.
His words: “It has rather become a lucrative business for some judicial staff to exploit the situation to their benefit by listing only appeals of legal practitioners/litigants who can make monetary or other pecuniary gifts to them to ensure their appellate files are brought out from the archives and listed for hearing.
“This over time has become the silent norm, which, if unchecked, will have dangerous consequences.”
Other lawyers who spoke to our correspondent in confidence confirmed the allegations. However, many are afraid of speaking out for fear of being victimised.
“The judiciary never forgets,” said a lawyer on why his colleagues are afraid to speak out against such acts of corruption.
Prof Sagay agreed with Obono-Obla. “He’s very right. The cases before the Supreme Court are a cause of major frustration,” he said.
The eminent professor of law recalled that a court official once told him that his appeal would be delayed for several years.
“I have a private case which has been sitting there. The registrar told us: ‘For the next five years, you won’t hear anything’. So, it’s a very major problem,” Prof Sagay said.
Are the appellate courts overstretched?
According to the Chief Justice of Nigeria (CNJ) Justice Walter Onnoghen, the Supreme Court considered a total of 1,362 matters, comprising motions, appeals and judgments in the 2016/2017 legal year.
It heard 82 political, 675 civil and 208 criminal motions, totaling 965.
The court also considered a total of 394 appeals comprising 96 political matters, 174 civil cases, and 124 criminal matters.
In total, the Supreme Court delivered 243 judgments in the last legal year. To the CJN, the numbers are impressive.
“This is by all means an impressive report considering the persistent and increasing volume of cases that continue to come before this Court,” he said.
There is an increase in the number of cases that go to the Supreme Court.
In the 2010-2011 Legal Year, the Supreme Court disposed of only 163 cases, consisting of 78 judgments and 85 motions.
However, the then CJN, Justice Dahiru Musdapher, said 1,149 civil appeals, 58 criminal appeals and 177 motions were pending.
According to him, even if there was a full constitutional complement of 21 Justices of the Supreme Court, it would take several years before the backlog would be cleared.
Presently, the Supreme Court is made up of the CJN and 16 other Justices.
The second most senior Justice of the Supreme Court, Ibrahim Tanko Muhammad, is of the view that Nigeria’s Supreme Court is overworked.
He spoke while presiding over a panel of justices that delivered 11 judgments in a day, including an appeal on a dangerous driving case.
His words: “Every Friday you find out that the Supreme Court of Nigeria delivers up to 10 judgments. There was a month where the Supreme Court delivered about 32 judgments. The work is too much. There is urgent need for a solution to reduce the work load.
“Lawyers will have something to say to the legislature to stop this kind of a thing. There is no Supreme Court in the world that works as the Nigerian SC works.
“Traffic jam cases! Let it (Supreme Court) be on policy issues and on law only, but if a judge coughs and someone does not like that cough, the matter goes to the Supreme Court.
“Landlord and tenant cases go to the Supreme Court, which could be determined by magistrate courts. The work is too much; we better start thinking of what to do,” Justice Muhammad said in the open court.
‘Nigeria’s global standing’
The maxim “justice delayed is justice denied” implies that if legal redress is not forthcoming within a specified period, it has the same effect as having no redress at all. If justice is not dispensed promptly, it is tantamount to lack of justice.
Issues of delays have negatively affected Nigeria’s global ratings. Nigeria ranked 0.44 in the 2016 Rule of Law Index published by the World Justice Project.
Ghana ranked higher (0.54) than Nigeria. Zambia ranked 0.48, while South Africa ranked 0.59.
The World Bank Ease of Doing Business Report for 2016 indicates that Nigeria ranked 139 among 190 countries in the enforcement of contracts.
The ranking focuses mainly on the cost and time of resolution of commercial disputes through the courts.
‘Finding solutions’
A major attempt was made in 2011 to address the problem of appellate court delays when Justice Mustadpher constituted a 29-man committee headed by one of his predecessors, Justice Mohammed Uwais.
The committee made far-reaching recommendations, which formed a 52-point Judicial Reform Bill submitted to the National Assembly in July 2012.
A core proposition in the Bill was to abolish the constitutional provision that appeal was of right, and that any aggrieved litigant could appeal a decision of the lower courts.
By the proposal, the appellate jurisdiction of the Supreme Court was to be altered with the provision that appeals from the Court of Appeal, on interlocutory decisions and other matters, should only be by leave of the Supreme Court.
This proposal was intended, among others, to allow the Supreme Court to control the appeal process.
Unfortunately, not only was the Bill not passed, most of the other recommendations by the Uwais committee are yet to be implemented.
‘Limit what goes on appeal’
A former Justice of the Supreme Court, Emmanuel Ayoola, expressed regrets that 90 per cent of the appeals at the Supreme Court are on technicalities rather than substantive issues of law.
This trend, he said, was a proof that the country’s jurisprudence was on a progressive decline.
He said: “When you get to the Court of Appeal, when you get to the Supreme Court and when you look at the index of the law reports, you’d find that 90 per cent of reported cases coming before our highest court are all about technicalities and procedure; nothing, absolutely nothing about substantive law.”
To him, there is the need to limit what goes to the Supreme Court.
Prof Sagay believes not every issue should be appealable. This, he said, would help decongest the appellate courts.
“I don’t blame the Supreme Court too much because under our present procedural system, anything goes to the Supreme Court, anything – interlocutory matters that will still come back to the High Court, which should have been disposed of finally. So, they’re overloaded.
“We need to come together, the CJN and others, first to amend the Constitution, so that we totally eliminate interlocutory matters.
“Secondly, there is no need for commercial cases to go to the Supreme Court. They can be resolved at the Court of Appeal level where you have three justices.
“Leave constitutional cases, criminal cases, things concerning administration of government, human rights – just about five things – for the Supreme Court,” Sagay said.
Legal experts proffer solutions
Other senior lawyers have also suggested ways out of delays at the appellate courts.
They include three former Nigerian Bar Association (NBA) presidents, Chief Wole Olanipekun (SAN), Dr Olisa Agbakoba (SAN) and Mr Joseph Daudu (SAN).
Others are renowned legal author and constitutional lawyer Sebatine Hon (SAN), Chief Anthony Idigbe (SAN), Mr Mike Igbokwe (SAN), Mr Ahmed Raji (SAN), Mr George M. Oguntade (SAN), Mr Kemi Pinheiro (SAN) and Mr Ebun-Olu Adegboruwa.
Executive Director of Nigerian judicial watchdog, the Access to Justice, Mr Joseph Otteh, also weighed in with solutions.
Among others, they recommended a constitutional amendment to restrict what goes on appeal, the need to impose severe sanctions to discourage frivolous appeals, creation of regional Supreme Courts, better court and case management, and less reliance on technical justice.
Wanted: Regional Supreme Courts
Chief Olanipekun thinks that the ideal and constitutional arrangement in a federal set up is for each state or zone to have its Court of Appeal and Supreme Court.
That way, the Federal Court of Appeal would only take care of appeals emanating from the Federal High Courts, and only in respect of matters relating to federal subjects.
State appellate courts, he said, would deal directly with appeals from state high courts, and over subjects peculiar to the state or zones, which they are naturally familiar with.
Olanipekun said: “We tend to be deceiving ourselves by expecting a Justice of the Court of Appeal, who, as a practicing lawyer or magistrate, was restricted to, say, the Northeast, to, by the magical wand of being appointed a Justice of the Court of Appeal, master and become an expert in the land tenure system, chieftaincy nuances, native law and custom, etc, of either the Southwest or Southeast zone, and start dishing out judgments on these very fundamental matters.
“He has to start learning, even as a Justice of the Court of Appeal, if we want to be sincere with ourselves.
“Some years back, Justice Musdapher set up a high powered committee to look into ways and manners of resuscitating and revamping the administration of justice in Nigeria.
“I served on the committee and we came up with a lot of recommendations, some of which would trigger constitutional amendments.
“We have to, as a matter of urgency, take the document from the Nigerian proverbial dust bin, and implement the recommendations.
“Like our warped federalism, the Nigerian judiciary and judicial system must be saved and rescued from the suffocating trauma of vertical unitary governance,” Olanipekun said.
Hon shares Olanipekun’s views. He said the first step in addressing delay in the appeal process was by amending the Constitution to have certain appeals terminate at the Court of Appeal.
His words: “Regional Supreme Courts and Courts of Appeal should be established to take care of disputes based on state, customary and land laws.
“The Supreme Court is currently overburdened, hence needs breathing space.
“As for the Court of Appeal, more Divisions should be created to reduce its workload.
“Sections 36 (3) and 234 of the Constitution should also be amended to permit a single Justice of the Supreme Court to sit in Chambers and determine all manners of interlocutory applications or motions.”
Hon said similar constitutional amendments should be introduced in respect of the Court of Appeal.
“The reason is plain enough: over 80 per cent of appellate delay is caused by interlocutory motions.
“Put me on record: once this amendment scales through, the issue of delay in dispensing appellate justice will be consigned to history,” Hon said.
‘Amend the Constitution’
Daudu said while it is correct that some appeals have been “asleep” in the Supreme Court Registry for upwards of 10 years, the reason, according to him, is due to the increased volume of appeals.
“When the Court of Appeal was created in 1976, there were only four divisions of the Court.
“Today, there are 16 divisions of the Court of Appeal seeking to satisfy a congested docket of cases fuelled by an ever increasing population of lawyers.
“When I was called to the bar about four decades ago, we were not more than 500 in my set. Now not less than 6,000 lawyers have been called to the Bar on the average in the past 10 years. Taken together, these are the main reasons for the congestion of cases in these courts.
“Finally, the constitutional number of the Justices that man these courts have not increased in any appreciable manner or at all.
“In my view, it is humanly impossible for these judges to discharge qualitatively their adjudicative functions with the amount of pressure heaped on them by the sheer quantity of cases.
“The strategy for reducing workload in these courts does not lie in the technical nature or otherwise of cases that go to the Appellate courts,” Daudu said.
To him, the Justices deserve commendation for the much they are doing.
Igbokwe believes appeals can be restricted through a Constitution amendment.
According to him, appeals to the Court of Appeal or Supreme Court on technical grounds would continue as long as constitutional provisions on appeals as of right remain as they are.
Igbokwe said: “In order to reduce appeals to the Supreme Court, the Constitution could be amended to stop appeals to the Supreme Court requiring its leave or the leave of the Court of Appeal.
“Moreover, any appeal arising from the challenge of an arbitral award should not go beyond the Court of Appeal.”
Igbokwe said the Supreme Court could have three different panels sitting on different appeals at the same time, rather than one
“So, the Constitution could be amended to increase the number of Justices of the Supreme Court.
“I am of the view that the Supreme Court is overworked especially during election petitions and a lot of commercial and admiralty appeals before it suffer delays because they are not given priority like election appeals.
“As the constitutional number of the Justices of Supreme Court is increased, more Justices of the Court of Appeal and interested Senior Advocates of Nigeria can be elevated to the Supreme Court to help it in sitting in three panels (which I believe was why there are three court rooms). Appeals in the Court would thus be determined faster.
“If nothing is done to change the situation, it could lead to anarchy as parties may resort to self-help or other means of settling disputes as they regard justice delayed as justice denied,” Igbokwe said.
‘Develop efficient systems’
Idigbe regretted that Nigerian judiciary is “unrelentingly blighted”, notwithstanding the constitutional guarantee of speedy trial within a reasonable time.
To him, delays can be reduced “through active court management” and “developing effective strategies”.
Such strategies, Idigbe said, include appointment of qualified/experienced court administrators, preparation of strategic management plan, caseflow management, case monitoring systems, judicial accountability and productivity monitoring, deployment of ICT to record management and other services, training and staff empowerment.
“If delay is to be tackled effectively, then a professional, comprehensive and strategic approach to court administration should be adopted,” Idigbe said.
Agbakoba, like Idigbe, believes better case management by the Justices would help reduce their dockets.
“I have spoken ad nausem (repeatedly) on this point and no one at the National Judicial Council (NJC) is listening.
“Judges control their courts under a power known as case management but many fail to exercise it and rather put the blame on counsel,” he said.
For Raji, one way to curb delays in the appellate courts is to limit the right of appeal.
“A situation where over a thousand appeals are filed in a year deserves a thorough re-appraisal. The highest court of a country is not just any other court. It is the fountain of justice and policy and not just a court for normal day to day disputes.
“All appeals to the Supreme Court should, therefore, be by leave of the Supreme Court,” Raji said.
Raji believes creating more appeal court divisions would help.
“With respect to the Court of Appeal, there should be more divisions and except in rare cases, interlocutory appeals should be discouraged or be directed to be combined with the substantive appeal where it will accord with the justice of the case,” Raji said.
‘Justices deserve better’
For Adegboruwa, the problem lies with too many cases and few justices to handle them.
He noted that in Lagos State for example, the Court of Appeal is expected to sit over appeals from about 66 high courts and 15 Federal high courts.
It is also expected to hear appeals arising from Customary Court of Appeal, Election Petitions Tribunal, Tax Appeal Tribunal, Securities and Exchange Tribunal, Military Court Martial, professional disciplinary committees of lawyers, doctors, accountants, architects, surveyors, among others.
Adegboruwa said on the average, close to 100 appeals are filed daily in Lagos.
Thus, on the average, about five appeals and about 10 applications are taken per day by Justices who, after long hours of sitting in court, have to return to their chambers to render well considered decisions.
The same scenario, he said, plays out at the Supreme Court, which takes appeals from all divisions of the Court of Appeal across Nigeria.
The activist-lawyer said the situation in the appellate courts is worsened by “the needless” focus on anti-corruption cases, with commercial disputes, land cases, chieftaincy disputes, admiralty matters all receiving secondary attention.
Politicians, he noted, deliberately “escaped” the intractable delays by amending the Constitution to have election petitions and related cases heard and determined within a specific period of time.
Worst still, he said there is no corresponding investment in the court system by the government.
“The basic solution, therefore, is to appoint more Justices, build more courts and then attend to the welfare conditions of judicial officers.
“Compared to the average member of the House of Representatives, a Justice of the Court of Appeal is totally neglected, with no judicial assistant, no functional gadgets for research and no means of sourcing legal materials other than the individual and personal efforts of the Justices.
“Compared to the average Senator or Minister, a Justice of the Supreme Court is totally abandoned, and yet crowded with work, seven days of the week and 24 hours. Most of them write their rulings and judgments at home since they have to sit in court during the day.
“The other solution is to consider amending the Constitution to limit interlocutory appeals.
“Most of the appeals pending are on decisions taken in the course of the main case, all of which work to cause great delay, especially when an order for a stay of proceedings pending appeal is granted.
“Above all, the government should be sincere to invest more in the judiciary.”
‘Impose severe sanctions’
Oguntade was of the view that, as things stand, the constitutional right of appeal is substantially open-ended, with little or no restriction.
“This being so, and Nigerians being naturally litigious, they will appeal on every single decision regardless of the merit.
“It, therefore, follows that to address this problem, it is imperative that constitutional amendments be effected such that the right of appeal will be circumscribed and delimited,” he said.
The High Court, he said, ought to be empowered to refuse leave to appeal in obvious cases where such an appeal serves no useful purpose except to congest appellate dockets and make life difficult for the victorious party.
Similarly, the Court of Appeal, he said, should have the same powers with respect to prospective appeals to the Supreme Court.
“Next is the issue of costs. Put simply, a losing appellant has little to worry about save filing fees and professional fees of counsel.
“The victorious party, who has been put through the trauma of a frivolous appeal, is still left short-changed at the end of the appeal.
“In advanced jurisdictions, costs are usually a crucial consideration in deciding whether to pursue an appeal or not, as costs awarded against a losing party are usually very substantial.
“The rationale is that it serves as a deterrent to the filing of spurious appeals. This ensures that only serious cases proceed to the appellate costs.
“Surely, where a prospective appellant knows beforehand that he is likely to be damnified in costs running into millions of Naira, he will think twice before embarking on a useless appeal,” Oguntade said.
The Senior Advocate said practitioners who ought to know better were complicit by advising and encouraging clients to file frivolous appeals.
“In many jurisdictions, such conduct will constitute abuse of process and perhaps professional misconduct, thus rendering them amenable to serious disciplinary actions which will include personal fines, suspension and in some cases, disbarment.
“It, therefore, follows that the courts have a crucial role to play by promptly reporting erring lawyers to the Legal Practitioners Disciplinary Committee for appropriate action.
“There is no doubt that once this is done, lawyers will act more professionally and the present floodgate of useless appeals will gradually begin to close,” the SAN added.
Oguntade’s views tally with suggestions by Strachan Partners. The firm noted that some lawyers use the appeal process as a ploy to stall the progress of a case.
Such lawyers file appeals against interlocutory rulings and by the time the interlocutory appeals are finally decided by the Supreme Court, continuation of the substantive trial at the High Court becomes a waste of time and effort.
The firm said some counsel file applications for extension of time within which to appeal on the frivolous excuse that the certified true copy of the judgment appealed against could not be procured within the statutory period stipulated for appeal.
“One major solution to the problem of using appeals as a ploy to stall trial at the lower court is by adopting a similar practice direction contained in the Election Tribunal and Court Practice Directions 2011 which empower the Court of Appeal to consolidate all interlocutory and substantive appeals in an election petition.
“Therefore, at the trial stage, the High Court (Civil Procedure) Rules should be amended in such a way that judges can refuse to stay proceedings of the substantive suit to await the decision of the Court of Appeal on an interlocutory ruling.
“The Court can shorten the lifespan of a case if it imposes heavy costs and penalties for default of appearance or delay in filing process.
“In addition, where a party fails to appeal within the period prescribed by law, the Court should not grant an application for leave to appeal or for extension of time unless in special circumstances or in the alternative, impose a very heavy penalty on the appellant,” the firm said.
Wanted: less emphasis on technicalities
For Otteh, if a preponderance of appeals is over technical issues, it means that technicalities play a dominant part in deciding the outcome of a majority of litigations.
In essence, there is an acceptance in Nigerian jurisprudence of what he called ‘technical lawyering’.
“Current Nigerian jurisprudence tells litigants they can prevail over their opponents if they muster enough technical fire power, and so, for every perceived misstep in a proceeding, an objection is raised on the ‘jurisdiction’ of the court.
“The matter is fought up to the Supreme Court, with the possibility that the Supreme Court, perhaps, will sustain the objection,” Otteh said.
According to him, it is sometimes difficult to avoid the feeling that the Supreme Court encourages focus on technicalities “by its sometimes formalistic, legalistic interpretations”.
This, Otteh said, has encouraged litigants who have no answer to a suit to hold on to “technical straws”.
“If our Supreme Court were more beholden to a liberal, justice-centred philosophy of interpretation and adjudication, there will be less fuss over technicalities and cases would be decided more on their merits.
“And, if the prospects for sustaining purely technical argumentation dim at the appellate courts, this would ‘dis-incentivise’ appeals, and where this happens, the appellate caseload would naturally reduce,” Otteh said.
‘Review Appeal Court rules, others’
Pinheiro called for an immediate amendment of the Court of Appeal Act, Court of Appeal Rules and Sections 241 and 242 of the Constitution to restrict the rights of interlocutory appeals.
The court, he said, must also adopt strict approach in granting leave to appeal, and must enforce the cost regime better.
According to him, applications to stay proceedings of trial courts filed at the Court of Appeal should be heard and determined expeditiously.
He said there should no further right to pursue such an application at the Supreme Court where it is dismissed by the Court of Appeal, except in cases where the Court of Appeal is a court of first instance.
He said there must be a provision similar to Section 40 of the EFCC Act.
“The provision of the Court of Appeal Rules that ousts the jurisdiction of the trial court once an appeal has been entered should be expunged from the Court of Appeal Rules by way of legislative intervention.
“A party who seeks to pursue an interlocutory appeal while the trial is ongoing should be at his own frolic.
“The time for filing of briefs should also be limited. It should not be more than seven days each to both parties once the records have been compiled and transmitted.
“Also, where records are not compiled within time, the appeal should be dismissed out rightly. Housekeeping applications should be taken in chambers.
“The cost regime must also be applied strictly with punitive sanctions on lawyers who frustrate hearings. From the Justices perspective, there must be constant monitoring of the returns of Court of Appeal Justices in terms of the judgments/rulings delivered.
“Where a Presiding Justice of a division fails to meet up with his returns, he should be transferred to another Division where he would not preside,” Pinheiro said.
A committed judiciary?
There is no doubt that it will require commitment by all stakeholders to quicken appellate court’s adjudicatory process.
As the CJN acknowledged, the conventional method of justice delivery at the appellate courts is cumbersome, time consuming, susceptible to loss or theft of court documents.
There is difficulty in filing court processes which is subject to abuse and gives room for corrupt practices.
In Justice Onnoghen’s words, ICT-assisted justice system “would enhance justice by ensuring, for example, that information is adequately captured and passed on digitally, data exchange will not be disintegrated and court processes will be finalised and ready on demand.”
He added: “With e-justice system, case management will be automated, payment of fees will be made through dedicated websites to reduce corruption, and forms that simplify and streamline court proceedings will be available to court users online.
“However such measures must be accompanied by enhanced capacity of personnel and investments in cyber security,” the CJN said.
Justice Onnoghen said the Supreme Court, fully cognizant of the role of the judiciary in ensuring that justice is properly served to those who approach the courts, frowns at all forms delays and abuse of court processes.
“Members of the Bar are, therefore, enjoined to shun all tactics and ploys, which constitute clogs in the seemingly slow-winding wheels of justice so that they do not come to a grinding halt.
“I share the view that the Justices of the Supreme Court of Nigeria are the most hard working Supreme Court Justices in the world. As we sit daily and work tirelessly, we remain committed to expeditious dispensation of justice.”
What is left, according to observers, is the will and commitment by all stakeholders to do what needed.
