Want to fix the Nigerian judicial system? Start with the liberty of anyone to shout ‘jurisdiction’

Almost threescore years after independence, the Nigerian justice system remains bedevilled by the congestion of cases in court and chronic delays in the determination of cases. The Chief Judge of Oyo State, Hon. Justice M. L. Abimbola recently disclosed that it takes between five to ten years to conclude a trial at the High Courts in Nigeria and an average of twenty-two years to conclude appeals at the Supreme Court. Countless papers have been published on this subject and its ill effects are well documented. At a Conference held in 1957 to study the problem of court congestion in the United States, the conference noted [in words that aptly describes the situation in Nigeria today] that, “the inordinate lapse of time between the institution of suits and their final disposition in many of our courts constitutes a threat to the effective administration of justice in this country … the prolonged and unjustified delay is the major weakness of our judicial system today.”

The consciences of the administrators of the Nigerian justice system must have been pricked by events in Kenya in the past two months where the Kenyan Supreme Court delivered a judgment and cancelled the country’s presidential election results on 1st September 2017, less than a month after the elections were held. To expect such speedy judgment in Nigeria will border on delusion.

The poster child for the delay in determination of cases in Nigeria is Ogbuanyinya vs. Okudo (No. 2) (1990) NWLR (pt.146) 551 a case which was commenced in April 1958, at Onitsha in the High Court of the former Eastern Region. After several voyages up and down the ladder of the courts, involving multiple jurisdictional challenges, the Supreme Court delivered judgment on the interlocutory appeal on 30th April 1990 and sent back the substantive case to the High Court for trial, thirty-two years later. It is not clear whether the case has finally been determined till date.

It was in a bid to tackle this and related problems that the Chief Justice of Nigeria, Honourable Justice Walter Samuel Nkanu Onnoghen on the occasion of the 2017 Legal Year Opening Ceremony in Abuja on 18th September 2017, announced widespread reforms in the judiciary. The reforms, which also aim to align with the Federal Government’s war against corruption, include designating one judge in each court solely for the purpose of hearing and speedily determining corruption and financial crime cases and thereby reduce the delays in determination of such cases.

Noble as this [as well as other previously introduced measures] appears, there is a chance that it may also be frustrated by what is an oft-overlooked, but undoubtedly a major cause of delays in the determination of cases in Nigeria; the unrestricted right that parties have to file repeated interlocutory procedural challenges to jurisdiction. Even a cursory perusal of law reports will reveal that jurisdiction is the most litigated subject in Nigerian law. There is hardly a law report that does not cover the subject of jurisdiction and the courts have evidently become weary of adjudicating on it.

Let us simply consider jurisdiction as the power or competence of a court to hear and determine issues brought before it for adjudication. Considering its significance, the courts have repeatedly held that certain essentials must be present for a court to have jurisdiction to hear any case. These are as follows:– 1. The court must be properly constituted as regards numbers and qualifications of the members of the bench; 2. The subject-matter of the case must be within the court’s jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. The case must come before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. As a result of the importance attached to jurisdiction, the courts have over the years accorded certain privileges to it, as summarized below.

One, whenever the question of jurisdiction is raised, the court must ensure that it is given urgent attention. Put differently, the court must determine it first before taking any further steps in the case. Two, a party can raise jurisdiction at any time, in any manner and at any stage of the proceeding, even at the Supreme Court for the first time. Three, a party does not need any special permission of the court to raise the issue of jurisdiction. Furthermore, the courts are even empowered to raise jurisdiction by themselves without the parties first raising it. There are many others.

Unfortunately, but perhaps predictably too, the combined effect of the above [which accord parties the endless right to file repeated challenges to courts’ jurisdiction and the extra motivation that such challenges will be accorded priority at the expense of the substantive dispute] is a resultant delay in the determination of cases. To worsen an already dire situation, Nigerian courts have come to accord the same privilege to interrelated but clearly different concepts by wrongly categorising them as jurisdiction and further exacerbating the problem of congestion of cases in Nigeria. These concepts include:

Locus Standi: this essentially means “the right to bring an action or to be heard in a given forum.” Locus standi focuses on the party seeking to get his complaint before the court and not on the issues he wishes to have adjudicated or the competence of the court to adjudicate on the issue. However Nigerian courts have taken the approach that locus standi and jurisdiction are interwoven in the sense that where a plaintiff lacks the standing to maintain the reliefs which he seeks, the courts will, by necessary implication, lack the requisite competence to entertain same.

Another concept regarded as jurisdiction by the courts is the limitation of actions. There is usually a time frame within which different cases can be brought to court. Where a party who has a cause of action fails to activate same within that time, he would be said to have lost the right of action and the plea of limitation of action will be available to as a defence. Over time, courts have developed the rule that a positive plea of this defence of limitation will result in the action being declared incompetent and the court will thereby lack jurisdiction to entertain it.

Pre-action notice is also erroneously treated as a jurisdictional issue. Often times statutes establishing government agencies require potential plaintiffs to first serve such agencies with pre-action notice before filing an action. Courts now hold that where pre-action notice was not issued, the court will lack jurisdiction to determine the suit. It has also been held that the lack of reasonable cause of action robs a court of jurisdiction to entertain an action. What is possibly the worst example of this is the issue of misjoinder or non-joinder of parties. In spite of the express provisions in the rules of courts, some lawyers still argue and some courts still agree that misjoinder or non-joinder of parties is an issue of jurisdiction.

Although the concepts described above bear some resemblance with jurisdiction, they are in fact different. Sadly, they are perennially categorized as jurisdiction by the courts and accorded the privileges reserved for jurisdiction. In effect, any party is entitled to challenge a suit [at any stage of the proceedings, without leave of court] for reasons ranging from lack of locus standi to non-disclosure of a reasonable cause of action, from the limitation of an action to the absence of necessary parties. What is more? Once such a challenge is raised, the court must determine the issue first at the expense of the substantive dispute. More often than not, an unfavourable decision by the courts either ways will result in an appeal against the interlocutory decision, followed by an application for stay of proceedings pending appeal to the detriment of the substantive dispute. No justice system will function effectively under these conditions. This is the major obstacle hampering the smooth administration of justice and efficient management of cases, and the end result is the clogging of the cause list of the courts and the delay in the final determination of cases. Any reform measure that does not address this is merely scratching the surface and tackling the symptom, not the cause.

While judges conveniently lay the blame at the feet of lawyers who file incessant and unnecessary objections, the reality, however, is that the Nigerian justice system creates an enabling environment for, or at the very least acquiesces to, the filing of these objections and is also equally culpable by the omission to devise corrective measures. Generations of lawyers and judges in Nigeria have permitted these delays to become chronic. The situation has transcended the stage of recriminations and counter-accusations and it is our collective responsibility to correct this anomaly or risk further eroding the public confidence and respect that ought to be accorded to the court system.

What is needed is for the courts to revert to a restrictive rather than an expansive definition of jurisdiction. It will be in the overall interest of justice for our courts to treat such issues like locus standi, limitation of action, joinder of parties etc as distinct concepts, and not threshold jurisdictional issues. Thus, where a defendant challenges an action on grounds that the plaintiff had no right to bring same or that the action is statute barred, such defendant should only be allowed to say so as part of his defence. That way, where the court finds, at the end of the case, that the plaintiff indeed lacked the capacity or that the suit was indeed statute barred, this will lead to a dismissal of the entire suit, constitute a bar to that particular plaintiff filing the same suit before the same or a different court and consequently save precious judicial time and resources.

This fidelity to addressing what are in effect side issues is eroding public confidence in the court system, as other means of dispute resolution threaten to displace the conventional court system as we know it today. It is common knowledge that Law Enforcement Agencies, Religious and Traditional Rulers etc are the preferred choices of dispute resolution for a vast majority of Nigerians. If this situation persists, the conventional court system handed down by our forebears may cease to exist in the coming years. We implore the Chief Justice of Nigeria and other policymakers to ensure that this does not materialise in our lifetime.

Orji is part of the Dispute Resolution Team of one Nigeria’s foremost Law Firms and writes from Lagos.