Posted to the Web: Friday, June 24, 2005 (Vanguard)

By Innocent Anaba

The new Civil Procedure Rules of the High Court of the Federal Capital Territory , Abuja was the focus of a two days intensive workshop, titled "Toward Unifying the New Civil Procedure Rules". The workshop organised by Rules Watch, brought together prominent legal personalities within and outside the country.

Executive Secretary of Rules Watch, Carol Ajie, welcomed participants and noted that there was the need to address the snail speed justice system in Nigeria, by introducing a technique that had been advanced in the United Kingdom, the United States of America, India, Australia and other developed jurisdictions, where it is perceived as an effective approach towards solving the problems of court delays.

She further said that the stakeholders workshop is aimed at creating a model for the unification of the new rules in all the 36 states of the federation, including the FCT, Abuja to identify the constraints and map approaches and strategies for the court users in order to promote a greater efficiency in the dispensation of justice by one great bar.

On making of court procedure rules by the state lawmakers, she said "the transfer of judicial functions from the Chief Judge of the states to the governors and lawmakers, exploring the loose situation in Section 274 of the constitution must be discouraged and discarded. In respect of the Supreme Court, Court of Appeal and FCT High court, it is the Head of each of these courts who make their own rules. So the question is, why should the Chief Judges of the 36 states not allowed by state laws to promulgate their rules, when they are the only competent authority to so do?"

According to her, it undermined the constitutional democracy of the judiciary to wrestle power from the court and to have it exercised by the lawmakers and the governor under any cover and the National Assembly knows that despite the wording of Sections 236, 248 and 259 of the 1999 constitution, giving the National Assembly powers to act otherwise, it did not interfere with judicial functions to make Court Rules, it rested it squarely on the shoulders of the Chief Justice of Nigeria, President of the Court of Appeal and the Chief Judge of FCT High Court".

The Minister for Justice and Attorney General of the Federation, Chief Akin Olujimi (SAN) in his key note address commended the organiser of the workshop, noting that it is a surprising innovation that is welcomed in the legal profession. He noted further that he is in support of the unification of the rules of all the states of the federation and also thanked the co-sponsors of the workshop, UBA and First Bank. He however warned against the wholesome adoption of the English rules, line and sinker, noting that what applies in England does not necessarily apply here in Nigeria.

The Chief Judge of the Federal Capital Territory High Court, Justice Lawal Gummi in his contribution, described the new rules as a welcomed development, noting that there was need to make justice easily accessible to the ordinary man.

In his contribution at the workshop, Emeka Maduewesi, a U.S. based lawyer, said that the problem with Nigeria’s political and legal system is that "the constitution is subsequent to most of our laws. Our judges who cannot be described as timorous souls are rather cautious, not wanting to upturn the apple cart by declaring any existing law or procedure unconstitutional". He noted that "our legal system must embrace change if it wants to preserve the essence of its role in the administration of justice. We must be sensitive to the need to effect change in a way that recognises the practical working relationship existing between the courts, the legal profession, and the consumers of Nigeria’s legal services worldwide".

Babatunde Fagbohunlu, a Nigerian lawyer in his paper titled "preparing for litigation under the Lagos and Abuja High Court rules’, noted that under the old rules, there was no requirement imposing ethical duties on lawyers in relation to client care and pre-action counseling and no requirement for a party to place all the facts and all relevant information/evidence at the disposal of the court and at the disposal of the opposing party at the earliest possible time, which the new rules have fully addressed.

According to him, the new rules require putting all information and evidence before the court at the earliest possible time; abandon routine approach and focus on the earliest possible commercial solution and seek to maximize the potential advantage of case management (the pre-trial conference/settlement of issues conference).

Mr Ricky Tarfa (SAN) in his presentation titled "FCT rules 2004; Steps to be taken in filing a writ from commencement to judgement’ said that the rules has made adequate provision for the steps and time required in the filing of processes and pleading, adding however that effort that went into drafting the new high court rules of the FCT is to be highly commended.

According to him, "it is however hoped that whatever short falls apparent therein now and in the future will be promptly corrected in the short term by way of practice direction and in the long term by a new sets of rules, after all, the law is constantly developing as the real world is".

Chief Anthony Idigbe (SAN) in a paper titled ‘cost under the new civil procedure rules: litigation and arbitration push or pull’, said that "there is need for a more effective utilisation of the principles of cost for the effective dispensation of justice to ensure the de-congestion of our court and prevention of frivolous litigation. Indeed, an effective cost structure can assist with the achievement of the overall objective of the new rules, by just, efficient and speedy justice".

"In view of the societal impact of a formal dispute resolution mechanism, it is necessary that access to justice be somehow guaranteed and cost can be a major impediment to access, particularly for indigent and ignorant citizens. It is therefore imperative that as we push away from government subsidy of justice delivery and pull toward arbitration style, full provisioning of cost by users of the justice delivery system, adequate mechanism is put in place to ensure that the socially and financially challenged citizens also have access to justice", he added.

According to him, "it follows that ongoing reforms of the cost structure under various new rules must be accompanied by reform of legal aid scheme or setting up new access to justice scheme to deal with the new challenges as well as investment in infrastructure and trained personnel, to ensure proper taxation of costs at every stage as costs will never be taken seriously by lawyer and judges until when the arbitrariness of the cost system gives way far more certain and realistic approach to the issue".

He was of the view that efficient management of cost of litigation will however enhance the value of the process to the people and therefore promote societal harmony and peace.

Oba Nsugbe (Q.C) who spoke on ‘attack the best form of defence’ said, "in view of new court powers under the civil procedure rules, being on the attack is not only best way to start and progress, but by allowing foresight and preparation for key steps in the litigation process, being on the attack is in fact, the best and only way for of defence".

According to him, "to be forewarned is to be forearmed. Under the new rules, it is the efficient litigator who will come out on top. Being on the attack means taking control of your case and that of your opponent’s, if he/she is not prepared to so do himself/herself. Being on the attack is simply about pre-empting the issues, anticipating the strengths and weakness of your case, being aware of the procedural pitfalls".

Senate Committee Chairman on Judiciary, Prof O. Osunbor said that sufficient attention has not been given to the rules of practice and procedure in Customary Court of Appeal and Sharia Courts of Appeal. According to him, "there is need to holistically consider the issue of upgrading the rules regulating the practice and procedure of these courts and it possible too, as being contemplated, to unite them. This will allow for an orderly development of the entire legal system. They are all superior courts of records and except in very rare and negligent instance, the criteria for appointment of judicial officers of courts have been harmonized".