By Unini Chioma -July 21, 2019
Delay in justice dispensation at the various federal high courts in the country may continue as the number of cases pending before the 36 divisions of the court stands at over 200,000 as against the 82 judges currently in the system.
The Federal High Court is the only court saddled with the determination of cases and matters within the Exclusive Legislative list.
Concerned by the number of cases pending before the courts, some judges a few weeks ago advised the Asset Management Corporation of Nigeria to embrace alternative dispute resolution methods to recover its over N5.4tn debt rather than “wait endlessly” for the courts on its over 3,000 cases.
Speaking at a programme in Abuja, Justice I. N. Buba, said, “Every judge is supposed to promote ADR because it is faster. ADR was set up to help the court. If you say you don’t want ADR, then you have to be ready to waste your time in court. It is not that the courts deliberately delay your cases, but the courts are overwhelmed by the barrage of cases before them.”
The Chief Judge of the Federal High Court, Justice Abdu-Kafarati, while delivering his speech at the special court session to mark the commencement of the Federal High Court’s 2018/2019 legal year some months ago, said there were 191,766 cases pending before the court across all its divisions.
Characteristically, however, the volume of cases filed before the court in an election year like 2019 and the preceding year usually rises astronomically given the inter-party electoral disputes.
Officials of the court told one of our correspondents that the number of cases filed within the legal year, which started in September 2018, would be collated at the end of the legal year which is July. But one of our correspondents was informed that the number of cases filed in the court in the current legal year (the 2018/2019), which is an election year is expected to double that of the previous year.
The officials said the number of cases currently pending before the court could not be less than 200,000.
Meanwhile, despite a high number of cases pending before the court, the number of judges is set to drop to 79, given that at least three of them will retire before the end of the year in accordance with the mandatory retirement age of 65 for Federal High Court judges.
The Federal High Court Act stipulates that there shall be a maximum of 100 judges at a time, which implies that there is a deficit of 18 judges as there are 82 judges on the court’s bench currently.
The three judges expected to quit the bench this year are the Chief Judge, Justice Adamu Abdu-Kafarati. The two other judges, according to the information gathered on the court’s website on Friday, are Justice Sabiu Yahuza, who would clock 65 on August 31, and Justice Mojisola Olatoregun, who would attain the mandatory retirement age on November 9, 2019.
According to SUNDAY PUNCH’s findings, two of appointments have been made to the Federal High Court bench since 2015 while many judges have left the bench by virtue of retirement, elevation to the Court of Appeal and removal.
In November 2015, 30 judges were appointed to the court’s bench, which increased the number of judges from 55 to 85. The second round of appointments saw additional nine judges joining the bench in June 2018 to replace a number of judges that left the bench between 2015 and 2018.
Given the negative impact of the congestion of cases and shortage of judges as against the rising cases pending before the court, the President of the Nigerian Bar Association, Mr Paul Usoro (SAN), called for an audit to understand the root cause of the backlog in order to determine, among others, if more judges or reshuffling of judges would be required.
Usoro advocated the use of technology for case management and efficient administration of justice.
He said, “First, deploy pervasive technology for case management and efficient administration of justice. Technology includes, but is not limited to recording systems for taking evidence. Cases would be handled and disposed of faster and efficiently with technology deployment.
Also, Mr Sebastine Hon (SAN), called for the appointment of more judges and building of more structures but added that fundamentally the jurisdiction of the Federal High Court needed to be pruned.
He said, “Fundamentally, the jurisdiction of the Federal High Court was expanded in 1991 and 1993 specifically by Decree 107 of 1993 leading to the overbearing jurisdiction of the court.
“In addition, the Electoral Act has also imbued the Federal High Court with jurisdiction over pre-election matters. So you can see that there are many matters the Federal High Court is dealing with.
“I am being honest and realistic; it is difficult for the judges to cope with matters that have to do with exclusive jurisdiction over matters that have to do with the Federal Government and its agencies as well as with maritime matters, insurance matters and others.
“So, they should either prune the jurisdiction of the court or go back to the pre-1993 era.
“I suggest that they should appoint more judges and more judicial divisions should be created. Even if they are going to locate the divisions in the state capitals, as it is always the practice, they should construct more structures to accommodate the new judges.”
Meanwhile, a former President of the NBA, Mr Olisa Agbakoba (SAN), and human rights lawyer, Mr Femi Falana (SAN), have said the delay in justice delivery occasioned by the congestion of cases in courts could make Nigerians and litigants lose hope in the judiciary.
Agbakoba, in a telephone interview with one of our correspondents, also said that beyond appointing more judges, there was a need for a radical review of the way the courts work, which he said is “manual and completely outdated.”
He said, “I’m not sure that appointing 80 more judges would begin to resolve the problems. The first point of call is to ask what kind of operating model is the court using.
“If a judge is handling 60 cases a year because he’s writing manually; he’s in a court that has no power supply most of the time and he has no staff except one inefficient registrar. If you now give him a properly trained registrar, if you increase his pay and make new rules that would make him do his work better, you find that as you empower him, he can do twice of what he’s doing now.
“The other thing is bringing in more judges and they have to be the best. When judges are appointed without being the best from the bar, it is also part of the delay because they won’t know what to do. So, appointing more judges is not the only solution.”
Agbakoba said the court process should be optimised to work every hour, including the financial system of the courts, which he said causes about 20 per cent of the delay.
He added, “If you have to go to court to manually file cases with cash, how far can that go?”
When asked if the current situation at the courts could make people lose hope in the judiciary, Agbakoba said, “People have lost trust in the judiciary, unless if you mean they would lose more confidence in the judiciary. Right now, confidence (in the judiciary) is very low because of these issues. A case could take six years at the Federal High Court, if it proceeds to the Court of Appeal it could take two years and at the Supreme Court it could take another 10 years.
“Why won’t people lose confidence in that kind of process? So, the more the delay, the more we lose confidence in the courts as the habitat of disputes and that has a big implication for democracy. What puzzles me is that the government understands that the courts can work efficiently when they want it to, like in election petition cases. They make it quick, so why don’t they make it quick in other cases? Is it because they are not interested and they don’t feel directly affected?”
On the way out, the lawyer said the judiciary could on its own initiate the needed change as they had been empowered to make rules for how courts would operate.
He said, “The judiciary doesn’t need the executive to fulfil a comprehensive reform agenda because the heads of courts have power to make rules for the expeditious working of the courts. So, a CJN can turn things around.”
Falana, on his part, said the court must adopt a case management system to address the issue.
He said, “With that number of cases, a lot of them will require case management. A lot of them will also require merging of cases of similar issues and similar facts, so that only one will be taken while the other will abide by it. They have to manage those cases.
“Also, with that number, which is also increasing by the day, the National Judicial Council will have to ensure that we have a full complement of the court all the time with regard to the increasing volume of cases in that court. But on the part of the leadership of the court, there is an urgent need for case management.”
He noted that if the Chief Judge of the Federal High Court conducts monthly visits to all federal detention centres as provided for by the Administration of Criminal Justice Act, there would be no need for many detention cases pending before courts.
Falana added, “Given that it is the elite that go to court, they may lose hope in the courts. And this is an area the Federal High Court may wish to learn from Lagos State, where a number of cases are settled at the pre-trial stage. So, it’s a matter of case management. Unless there is some major intervention through case management, the number of cases will continue to increase.
Also, a Senior Advocate of Nigeria, Prof Awa Kalu, recommended constitutional amendment to reduce the weight of cases on the Federal High Courts. He said this would enable the court to divest part of its jurisdiction, cede them to state High Courts and let the Federal High Court function more efficiently and effectively.
“The weight on the Federal High Court is drowning it because of its jurisdiction; the jurisdiction is the problem, not the appointment of new judges.”