50 Years of Civil Practice in the Federal High Court of Nigeria

50 Years of Civil Practice in the Federal High Court of Nigeria by Olisa Agbakoba Legal

 

50 Years of Civil Practice in the Federal High Court of Nigeria

 

The Federal High Court succeeded the Federal Revenue Court which came into being in 1973. During the 50 years of existence of the Court, it has had 4 developmental stages in terms of Rules of practice. These are the formative Era, the Belgore Era, the Ukeje/Mustapha Era and then the Auta Era. Over these eras, the Rules of practice applicable to the Court witnessed Tsoho innovations and reviews under successive Chief Judges. The current C.J Mr. Justice Tsoho is also creating a reform agenda.

The era of Hon. Justice Babatunde Belgore as Chief Judge marked a watershed in the development of practice rules for the Federal High Court. Several bodies of rules were introduced to guide practice in the key areas of Federal High Court jurisdiction and practice. There was a Federal High Court Civil Procedure Rules, Companies Proceedings Rules, Companies Winding-Up Rules, Bankruptcy Rules, Admiralty Jurisdiction Rules, etc. This epochal era introduced rules in diverse practice areas, as there was a dearth of rules. Chief Judge Belgore was the greatest rule maker in the history of the court. But the first thing to be noticed in these Rules was absence of a policy or guiding principles. There was no declaration of goal or object.

All over the world, Court Rules are like “Court Culture”. Like every culture pattern, “Court Culture” is dynamic. The need for rules review and innovation may arise where there is a gap. Also, reviews are necessary to bring Rules up to “speed” with modern trends and secure continued relevance in a changing world. For example, under Hon. Chief Judge Abdullahi Mustapha, a new code of Civil Procedure was enacted to replace the 2000 version. These reforms were initiated by Hon. Chief Judge Roseline Ukeje and concluded by her successor Chief Judge Mustapha. At this time, delays in the disposal of cases had come under widespread condemnation from all stakeholders. Thus the 2009 “Mustapha Rules” introduced for the first time a “fundamental objective” in the Rules, and served as a philosophical guide for its application. Remarkably there were innovations in the areas of “frontloading” documents and the use of written addresses. About this time, the Chief Justice of Nigeria Legbo Idris Kutigi, issued a reviewed and redrafted Fundamental Rights Enforcement Procedure Rules 2009, applicable to superior courts in Nigeria.

Hon. Chief Judge D. D. Abutu proposed reforms to both the Admiralty Jurisdiction Rules and Companies Winding-Up Rules and completed the Admiralty Jurisdiction Rules. Reforms proposed by Hon. Justice Ibrahim Auta OFR, is the most comprehensive since Belgore CJ. This covered a brand new area, Practice Directions for AMCON Track Cases. It also reviewed the Civil Procedure Rules, Companies Proceedings Rules, Companies Winding-Up Rules and Bankruptcy Rules, all containing obsolete provisions that have made their application antithetical to achieve “Quick Wins” in practice at the Federal High Court. The Reforms of CJ Auta, are unfortunately pending. I suggest that the present CJ Tsoho, of the Federal High Court urgently implements the outstanding Reforms of the Auta era. Some suggestions for brand new rules are the following;

  • Fundamental Objective to is overriding
  • Case Management Powers, a tool which if well used will revolutionalize practice at the Federal High Court and quicken the administration of justice
  • Full Frontloading
  • Modernization

Some of these key innovations are discussed below.

  1. Fundamental Objective of the Rules

This was partly introduced under the Mustapha Rules but there is a need to extend it. Court procedural regimes should have an overarching purpose to speed up cases. In this model, the higher purpose of the overriding objective is to enable the Judge deal with cases justly and swiftly. This simple motto, to which all the rules are subject, is the guiding principle and guardian angel of a code of civil procedure.

The Judge is obliged to bear the overriding objective in mind throughout the proceedings, and parties are required to help the judge achieve the overriding objective. The overriding objective is the key tool of the rules, and thus precludes the strict constructionist approach to rule construction.

 

The major obstacle to civil procedure reform in Nigeria is excessive loyalty to adversarial forensics. Bench and bar alike are too enamoured of the ancient traditions of a legal battle in courtrooms. The opposing parties, or more correctly their barristers, are wrestlers in a game of wits and logic between consenting adults. The Judge is a mere referee, and would never intervene lest he is seen to favour one side against the other. The truth is irrelevant. Forensic superiority is the key to victory. In the adversarial system, the parties in a court case, develop and present their arguments, gather and submit evidence, call and question witnesses, and generally control the process. The judge must remain neutral and mostly passive throughout the proceeding. He has few case management powers.

 

Criticisms of the adversarial system are that It encourages excessive zeal on the part of lawyers who become “hired guns” who care little about the truth, focusing instead on presenting the case most favourable to them while, if possible, suppressing contrary evidence. There are too many lawyers and they dominate the litigation process in a less than wholesome manner. There is also criticism that Lawyers file too many frivolous actions and applications.

 

Legal costs, including attorneys’ fees are exorbitant. Court proceedings are too cumbersome, technical, protracted, and slow. The wheels of adversarial justice grind too sluggishly. The judge, anxious to appear neutral, and terrified of being accused of ‘descending into the arena’, is virtually powerless to accelerate the process. Even when lawyers are talking hot air, the judge feels constrained to wring his hands in supine impotence. Courtroom drama and oratory, evidentiary and procedural minutiae and tradition, and the appellate process all combine to decelerate adversarial proceedings. The system is scarcely concerned with truth-seeking. The emphasis is on winning, turning the process into a battle of wits and lifeless logic, too much like a game, to the chagrin of paying clients.

 

Inequality between parties (in terms of resources, quality of professional help etc) is a major factor, and plays a far bigger role in adversarial than in inquisitorial jurisdictions. Examples abound. A rich claimant or defendant can afford, and thus overwhelm his opponent with, several expensive attorneys, expert witnesses, extensive discovery, and endless appeals. A poor opponent could exhaust his resources before the trial is underway. An injured plaintiff in a civil suit cannot compete, in terms of resources, with the huge corporation he is suing for tort.

 

The adversarial system “views the resolution of conflicts as a legal battle. Two or more legal pundits are pitched against one another, strutting and feigning concern for the cause of their client. … The English adversarial system views litigants as adversaries and usually litigants are at a loss when they see their legal representatives’ hug, wine and dine together barely minutes after the legal battle in the courts.”

 

For the litigants, it is a battle, for the lawyers a game.

 

“The [adversarial] system is viewed with such animosity and disrespect that the average Nigerian refers to legal practitioners as ‘liars’……”

Inquisitorial jurisprudence is the major alternative legal system to our adversarial system and prevails in civil law countries. It has its roots in Roman law, but it should be noted that the common law also drew large features from ancient Roman jurisprudence. The judge in this legal culture has broad case management powers. In the United States, nowadays the frontline adversarial jurisdiction, deep changes in the Federal Rules of Civil Procedure in the past three decades have expanded federal judges’ pre-trial managerial powers. The move towards more managerial judging is certainly a departure from classic adversarialism, and a nod in the direction of civil-law inquisitorialism.

 

Pats-Acholonu JSC wrote in Broad Bank v Olayiwola[1]: “Rules of court are made to enable the court to meet the ends of justice. They are not immutable and cannot be construed in absolute terms. It is the duty of the court to use its powers to discover the true intents of the law and do justice …” The model will require judges to “administer, apply, construe and interpret these rules liberally, purposively and proactively to secure the just, efficient, speedy, and inexpensive determination of every action and proceeding.”

The philosophical paradigm has therefore changed. Judges should manage their cases. It is no longer an era of “don’t descend into the arena”. A Judge should be in charge of his/her Court and should ‘descend’, as it were, into the arena if that will create effective case management. Gone should be the days when a Judge sits back and watch counsel take the Court on unnecessary and unhelpful rigmarole merely because intervention would be classified a descent into the arena of legal conflict. Thus the Fundamental Objective of Rules of Court is geared towards attainment of justice through the deployment of the Judge’s active managerial involvement, which we will now discuss.

 

Also read: Nigeria’s court procedural landscape is sluggish and inefficient and needs Reform

 

  1. Case Management

This is entirely new. It is revolutionary. The idea of case management is to move away from the traditional conception of the adversarial judge as an almost somnolent umpire. Case management is akin to inquisitorial judging, but a lot less invasive. It does not go as far as welcoming the judge’s Hippy Hallet descent into the arena, where he might be blinded by the dust of conflict.

But with case management powers, the Judge can go into the arena to curtail derailment or obstruction and to progress the proceedings. Cases bog down and delay when the Court does not apply case management powers. Cases are easily and quicker disposed of when the Court fully controls proceedings and uses managerial powers to attain justice. Cases delay when counsel (who may have a different agenda) is allowed to call the tune and dictate the pace, hiding under adversarial philosophy and mis-using innocent provisions of the Rules to achieve a defeating end.

We recently did a case in the Lagos Division, where the main issue was clear and straightforward. As usual, counsel relied on age old legalisms to secure a lengthy and dragging hearing. Commendably the Court rose to the occasion and cut counsel short. The Learned Judge dispatched and closed proceedings with a succinct Bench Ruling, which dismissed the case as wholly unmeritorious. The entire case was in front of the Learned Judge for just 2 months. A strict application of case management powers!

Fair hearing does not oblige a Judge to listen to unhelpful counsel.

Case management requires the judge, not only to be agilely interested in what is going on, but also to direct proceedings in his court towards a just and swift resolution. One instance of case management is the power to intervene on the Court’s own initiative. The Judge can exercise virtually all of his powers of his own initiative. So whatever power a party can invoke by application, the judge may exercise without application, within reason.

Further, case management means that the day’s business is not restricted to scheduled matters. For instance, if proceedings are adjourned to 26 November 2022, for a Claimant’s application for interlocutory application, and there are other ready matters in the file, the Judge may, on that day, after dealing with the application, take other ready matters. Thus the Judge’s Case Management Powers will enable the Judge to:

(a)        extend or shorten the time for compliance with any rule, practice direction or Court order

(b)       adjourn or bring forward a hearing;

(c)        require a party or her counsel to attend Court;

(d)       hold a hearing and receive evidence by telephone or by using any other method of direct communication;

(e)         direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f)         stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

(g)       consolidate proceedings;

(h)       try two or more claims on the same occasion;

(j)         direct a separate trial of any issue;

(k)        decide the order in which issues are to be tried;

(l)         exclude an issue from consideration;

(m)       dismiss or give judgment on a claim after a decision on a preliminary issue;

(n)      finally decide or give final judgment on the proved or admitted or undefended part or portion of any case or claim while proceeding with the remainder;

(o)       at pre-trial conference, consider and treat as many matters as possible and appropriate, and make and give as many orders and directions as appropriate;

(p)       take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

 

A report of the NJC Sub-Committee on Speedy Dispensation of Justice, of 24th October 2011, noted that 75 per cent of cases filed in courts across Nigeria were frivolous and unnecessary. Part of the reason for keeping such cases is because of the failure to apply strong case management tools by Courts. So, case management tools in the rules are required to free up judicial time.

  1. Full Frontloading

Full frontloading means putting your case on the table. The model provides a fuller regime of frontloading. Unlike under the Lagos reforms, a party is not told what he must frontload (for example, witness statements, affidavit, written address etc). He is merely required to frontload his whole case.

Full frontloading regime permits a party to plead facts, evidence and law. A party should put all his case on the table. It saves time. It brings all issues immediately to the table. Pleadings state all the facts, the evidence to be relied on and the law upon which the claim is based. The claim will include witness statements and the documents to be relied upon. The Statement of Defence is drawn up likewise.

This is the full frontloading regime. It ought to be introduced in Nigeria as soon as possible.

  1. Modernisation

The language of the rules must be modern and simple. Some key modifications are:

Simple language, presentation, Informal Applications, Counsel drawing up orders, e-filing and e-payment options, Compulsory ADR, Bench Rulings, Costs, Limited Cross-examination, Reference on Court’s Initiative, Day to Day Hearings, Trial Schedule Fixed, Summary Judgment Without Trial when claimant believes no defence and Advance Court Documents is valid service

The use of simple language is helpful because the rules are rendered in plainer English and archaic expressions are minimised. You may not find one “hereof” or “thereto” or “aforesaid” in the draft.  Motion, Suo Motu, Ex parte are replaced with Application, In Its Own Initiative and Without Notice respectively.

Presentation: Many rules are broken into sub-rules for ease of understanding. Excessively long sentences and paragraphs have been shortened.

Informal Applications: Simple, on-the-spot applications may be made orally. A Judge cannot refuse to hear or consider a simple application merely because it is not written. This is a departure from the compulsory use of Written Address for every application, which is not always useful. The Judge should have power to take applications informally and deliver a Bench Ruling.

Drawing up Orders: To deal with the delays in drawing up of Orders by Court administration, Counsel may draw up orders from his application and the Court supervises and adopts the orders. This will save enormous time.

E-filing and E-payment options:  New Rules should extend the communication centre provided in Order 54 of the Federal High Court Rules, by making provision for the electronic court. Filings will be 24 hours as the e-Registry will be open.

Compulsory ADR: This is inspired by Lagos State Civil Procedure Rules. It is a multi-door approach to litigation. A Claimant is bound to subject his claim to checks for possible ADR. Unlike under the 2009 FHCCPR, compulsory ADR for qualified cases should be mandatory. The Court is active in deciding cases suitable for ADR or those qualified to be channelled to mediation or litigation.

 

Bench Rulings: Part of the impediment to speedy dispensation of justice the practice of adjourning delivery of simple Rulings. Reforms should make Bench Rulings mandatory except in very serious or recondite issues of law.

Other modernisation trends on Costs, limited Cross-examination, Rules on Court’s Initiative, application of day to day hearings, fixing of trial schedule, summary judgment without trial when Claimant believes there is no defence and validity of service of Advance Court Documents, will all contribute to a workable rules regime.

CONCLUSION

So what is the expectation? It is easy to envisage new state of practice at the Federal High Court, if the reforms are implemented. The result will be a new regime of practice that will deliver efficient disposal of cases. The most crucial element to achieve this, is the effective use of Case Management Powers. The judge can use it to cut back constraints marring effective administration of justice.

From early times, when pleadings were ordered in every case and counsel chose how long they wished to take to file, we have evolved to the present. On a rough scale we have achieved 30% efficiency in justice delivery. A good agenda to take home from here is a scheme to achieve 70% efficiency in case management and justice delivery in the Federal High Court.

Finally, the importance of implementation cannot be over-emphasized. The implementation process should be taken as a critical part of the reform. It will be good if the Chief Judge keeps open fora for continuous training of Judges on case management culture. The reform spirit should not be allowed to wane.  Discussions and improvements generally should be sustained. That is the key.

The below is a list of possible simple language of new rules: –

 

Old term  

New term

 

·        action ·        claim
·        application for further and better particulars ·        request for further information
·        apply for further and better particulars ·        request further information
·        attachment (for contempt) ·        detention (for contempt)
·        certified true copy ·        certified copy
·        certiorari, order of ·        quashing order
·        commence ·        start
·        counter-affidavit ·        affidavit in opposition
·        discovery ·        disclosure
·        motion ex parte ·        application without notice
·        further and better particulars ·        further information
·        infant ·        child
·        in open court ·        in public
·        interlocutory ·        interim
·        interrogatory ·        request for further information
·        leave ·        permission
·        liquidated damages/liquidated demand ·        specified amount
·        mandamus, order of ·        mandatory order
·        memorandum of appearance ·        representation notice
·        mesne profits ·        intermediate profits
·        minor ·        child
·        motion ·        application
·        originating motion ·        application notice
·        originating process ·        claim form
·        pecuniary damages ·        financial damages
·        pendente lite ·        during litigation
·        plaintiff ·        claimant
·        process (in the sense of court document) ·        (court) document
·        process server ·        document server
·        prohibition, order of ·        prohibiting order
·        infant, minor, lunatic, person of unsound mind ·        protected party
·        res (in the sense of property which is the subject-matter of a case) ·        property in litigation
·        statement of defence ·        defence
·        subpoena ·        witness summons
·        substituted service ·        alternative service
·        suit ·        claim
·        suo motu ·        of own initiative
·        tax (verb, with reference to costs) ·        assess
·        taxation (of costs) ·        (detailed) assessment
·        taxing officer ·        costs officer
·        taxation proceedings ·        assessment proceedings
·        writ of summons ·        claim form

 

 

Author

Olisa Agbakoba