“Orji Kalu” and Other Problems

GUEST COLUMNIST Tunde Fagbohunlu, SAN tunde.fagbohunlu@aluko-oyebode.com

By Tunde Fagbohunlu, SAN tunde.fagbohunlu@aluko-oyebode.com

A Case for a Radical Approach to Tackling Court Delays through Constitutional Reform
This article asserts that, the 1999 Constitution of the Federal Republic of Nigeria unwittingly contributes to many of the inefficiencies in Nigeria’s justice system. Without doubt, there are other collaborators, including the shenanigans of litigants and their Lawyers, a poor framework of rules and institutions to enforce ethics, and the absence of a business-like approach among Judges and Lawyers which we often see in the obsession with technicalities and ceremony, at the expense of substance and despatch. But, the 1999 Constitution plays a significant role, through design errors of commission and omission.

I will explore two subjects which demonstrate the point: (1) the delays caused by disputes over subject-matter jurisdiction and (2) the delays caused when a Judge retires or is elevated to a higher court (which I will describe as the “Orji Kalu” phenomenon, based on the most recent case which exemplifies the problem).

Subject-Matter Jurisdiction
The predecessor of the 1999 Constitution, contained a relatively simple scheme for distributing jurisdiction among courts in the judicature. The 1979 Constitution gave “unlimited jurisdiction” to the High Courts of the States, while other courts, such as the Federal Revenue Court (which became the Federal High Court), had specialist jurisdiction. The unlimited nature of the jurisdiction of the High Courts of the States, meant that they could also exercise specialist jurisdiction in matters that fell within the remit of the specialist courts (for example, federal revenue matters, admiralty or labour disputes). The factual circumstances of a particular dispute could present equivocal features, leading to genuine controversies as to whether they fall within a specialist jurisdiction or within general jurisdiction. For example, there could be genuine doubts as to whether a dispute was an admiralty dispute or a purely contractual one. In such cases, the existence of a court system possessing unlimited jurisdiction, meant that there was always a safety net.

However, from 1993, we decided to trade-off this safety net for our desire to create a judicature that approximates more closely to the federalist arrangements which characterise the executive and legislative arms of government, and we then carried this approach into the 1999 Constitution. As a result, the subject-matter jurisdictions of the State and Federal courts, became mutually exclusive. But, the potential for the factual circumstances of particular disputes to display equivocal features, remained. This unhappy combination of constitutional change and factual reality, has formed an albatross around the neck of Nigeria’s justice sector.

First, many Lawyers genuinely fall victim to the uncertainties as to whether a case should be started in a State High Court, or in the Federal High Court. Second, many Lawyers deliberately exploit the duality, by raising unmeritorious objections to jurisdiction. Third, parties often need to wait several years for jurisdictional objections to be determined before they are able to progress the merits of their cases (see for example, Associated Discount House Ltd v Amalgamated Trustees Limited [2006] 10 NWLR (Part 989) 635 (seven years wasted on jurisdictional objections) and Sifax Nigeria Limited v Migfo (Nigeria) Limited [2018] 9 NWLR (Pt. 1623) 138 (six years wasted). Naturally, it is the party, the tax payer (and not the Judges or Lawyers) who suffer.

I do not question the motives of those who decided that the judicature must reflect federalist features. The problem lies in the design. Once we decided to restructure the judicature to reflect a federalist arrangement, we should have contemplated the problems presented by the often equivocal features of particular disputes, and we should therefore, have designed another safety net to fill the gap that was created by jettisoning the unlimited jurisdiction of the States’ High Courts. But, we failed to do so. I propose, in the interest of tax-paying citizens and corporates who rely on the justice sector, that we must now fashion another safety net to fill the gap.

My proposal is for us to re-allocate the risk of jurisdictional uncertainties to the parties who are better equipped to deal with them, i.e. the Lawyers and the Judges. A litigant who has no legal training, is in no position to determine whether a case should be brought before a State High Court or the Federal High Court. Therefore, the litigant should not bear the brunt of a wrong decision as to the proper court in which to commence an action. The Lawyer and the Judge are trained to know, in many cases, the right court in which a case should be brought. I say “in many cases” because, in many other situations, the ambiguities in the features of a particular dispute will be so complex as to confound even the most experienced Senior Advocate of Nigeria.

On the other hand, in cases where it is quite patent that a case was brought in the wrong jurisdiction (suggesting mischief such as forum shopping and probably corruption), the Judge and the Lawyer should bear the risk.

I do not propose that we should alter the respective jurisdictions of the first instance courts from their current arrangements (i.e. the allocation of jurisdiction between States’ High Courts, Federal High Court, the High Court of the Federal Capital Territory and the National Industrial Court). The courts should continue to operate the federalist and specialist arrangements, that currently exist.

However, the Constitution should authorise and oblige Judges of all the courts to transfer cases between the different courts. Presently, only the Federal High Court clearly has statutory authority to transfer cases to other courts.
The most radical change that I propose, relates to the effect of retaining or completing a case in the wrong jurisdiction, or wrongly transferring a case to another jurisdiction.

I propose that this should not result in a “strike out”, “dismissal” or “nullification”. While Judges should always remain under a constitutional obligation to transfer cases commenced in the wrong jurisdiction, a decision to retain a case or to transfer a case to another jurisdiction should not be appealable, regardless of whether the decision is right or wrong, and a decision made by a court that does not have subject-matter jurisdiction should not be a “nullity”, merely by reason of that fact.

How then, do we prevent Lawyers from indulging in forum shopping, and how do we ensure that Judges will respect the constitutional obligation to transfer cases to the appropriate jurisdiction? I propose that in cases where it can be shown that a Lawyer or Judge indulged in egregious conduct by commencing or retaining a case in an obviously wrong jurisdiction, disciplinary proceedings should be taken against the Lawyer or Judge. Some cases will present features which give rise to genuine doubt, and there should be no sanction in such cases.

By adopting this arrangement, we will compel those who should know better to take responsibility, and we will no longer punish litigants who have no training in jurisdictional dichotomies, and who have put their trust in a system which they expect to make the right decisions and to produce efficient outcomes.

Indubitably these proposals will sound counter-intuitive because, we have, for decades, operated a system which has imprinted on our legal “DNA” the perception that where a court lacks subject-matter jurisdiction, its decision must necessarily be a “nullity”. But, we must now think outside the box. What benefits do we gain from the present way of conceptualising jurisdiction? And, whatever those benefits may be, do they outweigh the need to protect the litigant and make the justice system more efficient?

Many may recoil at the idea that a Judge of the High Court of a State can validly determine a matter that is in reality, an admiralty (rather than a purely contractual) matter. But, what is so intrinsically abhorrent or unjust about a State High Court Judge hearing an admiralty matter? Or take cases relating to the revenue of the Federation? First, it will be rare for a Judge of a State High Court, the National Industrial Court or the High Court of the Federal Capital Territory not to recognise that a matter pertains to the revenue of the government of the Federation and ought, for that reason, to be transferred to the Federal High Court in accordance with the principles suggested in this article. Secondly, it is possible to design a scheme which operates broadly on the principles suggested above, while exempting areas of particular sensitivity, such as cases involving the revenue of the government of the Federation.

The “Orji Kalu” Phenomenon
When a first-instance Judge retires or is elevated to a higher court, his or her part-heard matters must start all over again. It is irrelevant that parties had expended substantial time and costs, to bring the case to the stage it had reached before the Judge’s retirement or elevation. Imagine that a party had expended substantial resources on fees for legal representation, transporting witnesses from foreign jurisdictions and paying the costs of technical experts.

After such significant outlays of expenditure, the Judge is elevated to a higher court before he or she can conclude the hearing. Rewind and reset – the case starts all over again, and the same costs (probably now increased because of the effect of inflation) must be incurred a second time. This is one of the ugly features, of our “justice” system.
The drafters of the Administration of Criminal Justice Act (ACJA) had felt consternation at this problem, and they came up with what they considered to be a solution. In Section 396(7) of the ACJA, they provided a mechanism according to which a Judge who had been elevated to a higher court may nevertheless, be given permission (a “fiat”) to go back to the lower court and conclude the case.

Unfortunately, this device, with its good intentions, hit stormy waters in Ude Jones Udeogu v FRN, Orji Kalu and Slok Nigeria Ltd (SC/622C/2019 of 8 May 2020). The Supreme Court held that, Section 396(7) of the ACJA is inconsistent with the Nigerian Constitution and therefore null and void. So, back to square one. Litigants will continue to suffer the consequences of Judges’ retirement or elevation mid-way into their cases. This is an outcome, that ought to worry our collective conscience. The time has come to act. And there are a number of ways, we can deal with it.

First, we can resurrect Section 396(7) into a more exalted position, i.e. into the 1999 Constitution. Alternatively, or in addition, we can incorporate a mechanism into the Constitution that requires a winding-down period of one to two years starting from the point that a Judge becomes a candidate for elevation (or, in the case of retirement, a one to two year winding-down period prior to the retirement date). During this window, Judges who are candidates for elevation, or who are about to retire, will devote their time to concluding their cases, and no new matters will be assigned to them.

Better still, we can rely on technology. Put a video recorder in front of every witness, and produce live recordings and verbatim transcripts of every proceedings. With such types of visual, audio and written records, a new Judge can simply take over from where the retired or promoted Judge left off by reading the verbatim transcripts and watching the audio-visual footage. Covid-19 has taught us that, the technology to achieve this is readily available and relatively inexpensive. The Senate bill on Remote court hearings, addresses one aspect of how technology is needed to promote efficiency in justice delivery.

To conclude, while the Senate bill on remote court hearings is laudable, demonstrating, as it does, legislative interest in the efficient working of the Judiciary , I propose that a more comprehensive project for constitutional reform to tackle delays in justice delivery, is urgently required. The Lagos Chamber of Commerce and Industry, through its project, the Commercial Disputes (Best Practices) Legal Network (CRID-LawNet), has begun a process of engaging with stakeholders to include this issue on the front burner of justice reform.