Prof Fidelis Oditah, a Senior Advocate of Nigeria (SAN) and Queen’s Counsel (QC), who turned 50 on March 27, speaks on the justice system, politics, and sundry issues. JOSEPH JIBUEZE writes.
How can court cases be decided faster? There have been several suggestions on the way out, but the delays still remain. A professor of law, Fidelis Oditah, has identified jurisdictional issues, and punitive costs that do not deter others, as contributing factors.
Oditah, a Senior Advocate of Nigeria (SAN) and Queen’s Counsel (QC), who spoke in his office in Lagos, said widespread misuse of preliminary objection or jurisdictional challenges, which parties insist must be resolved before the merits of a case are considered, is a primary cause of delays.
The only exception (where jurisdiction is not determined first), he said, is where a case begins by Originating Summons. In that case a court can hear the jurisdiction objection along with the merit. But when cases begin by petitions or writ of summons, the jurisdiction is taken first and the ruling delivered before the main case is heard.
In most cases, the defendant, who usually challenges the court’s jurisdiction, goes on appeal when he loses. It may take close to 10 years before the appeal process is concluded up to the Supreme Court. This, Oditah said, should stop.
“It is only very few people dogged enough who would want to continue with the struggle after 10 years of delays and legal expenses. That is one big aspect that needs to be looked at.
“Without this, I don’t think there will be any progress, no matter what rules we operate under unless we resolve this misuse of interlocutory skirmishes and the so-called jurisdictional objections. It would require the courts having to write new rules which say that jurisdictional objections should be taking alongside the merit.”
Oditah said justice is also delayed because punitive cost is not awarded against those whose actions or inactions waste judicial time.
“When I looked at the law report in the 60’s, 70’s and early 80’s, Nigerian courts were awarding substantial costs. I saw case in the early 80’s where the courts awarded N120, 000 as cost. N120,000 in 1981 was more than 120, 000 British Pounds. It is a modern day equivalent of at least N30 million.
“I know of no court in Nigeria today that would award you N1million as a cost. Very often, you get cost of N50, 000 to N100, 000 at every level of decision making; not just only in the High Courts, but even in the Supreme Court. In doing that, they completely misunderstood the system of cost. Every regime that has a procedure for awarding cost does that on one or three basis.
“One is what we call standard taxation, where you recover 66 percent of your reasonably incurred cost. The second is a cost on full indemnity basis where they pay you all your reasonably incurred cost and the third is the jurisdictional award wasted cost.
“And that is often against lawyers themselves because in many cases you find out that the delays and wasted cost in the civil justice system is caused by lawyers. And if you have delays caused by lawyers, it is right that those lawyers pay for the cost and sometimes, the courts in other jurisdictions award wasted costs against lawyers. But a system where you have no proper adverse cost and you have no power to award wasted cost is a recipe for irresponsible litigation,” Oditah said.
On the National Judicial Council (NJC) requirement that judges make a quarterly return of a minimum number of cases, the lawyer said it does not address the substance of the problem but is only a cosmetic solution.
“If I sit in Osogbo for example and I have between 50 and 100 cases allocated to me in a year and I can write rulings and judgments up to half of those cases, you will say that I am doing very well because I have done at least 50 percent of the cases.
“But if I sit in a jurisdiction where I have about 200 cases allocated to me, and I write the same 50, you will say that I have only done 25 percent of my job. So in percentage test, it looks like I have not done anything. The person who did 25 has done 20 percent of his 50. The system might reward the person who did 50 percent better than me,” Oditah said.
According to him, judges also contribute to delays. “With all due respect, some of them are extremely hard working – they sit on time, they dispose off their case quickly and get their work done that way. A number of them simply have no idea of what being a judge involves.
“Some of them come to court by 10 or 11 am; and you wonder how a public servant being paid by a public tax should turn up for work at 12 noon and in most cases they do not apologise to anyone for coming late. So there is need to discipline these judges for them to know that they are providing a public service for which they are being paid,” Oditah said.
Judges, he said, should improve in their diligence. “Some judges are very lazy. Many of them don’t believe that they can give ruling extempore. If someone applies to me to amend pleadings for example, I could decide whether to allow it or not immediately and give you reasons for doing so. I don’t have to adjourn for one month to give you reason why the document would be admitted or not.
“Many judges are incapable of judging, they have no business in the bench. Also, the lawyers are culpable because they are the ones that make the frivolous applications and the judges accede to them to waste everybody’s time.”
On whether arbitration is the way out of the delats, Oditah said it is only part of the solution. “If the judgment debtor refuses to pay the award, you are then forced to return to the court system to enforce the award.
“Very often, you start the litigation all over. So arbitration provides a partial solution if the judgment debtor is willing to pay.“
