Why Judicial Functions & Practices Need To Be Restructured
By: Hameed Ajibola Jimoh Esq.
Judicial functions and the delays accustomed with litigation process as a result of administrative functions: my humble recommendations for restructuring in the courts’ practices
The Judiciary (and in other words, the Courts) is one of the three arms of government in a democratic system. The functions of the judiciary are clearly stated under the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. Nevertheless these functions, the courts have continued to be overburdened with administrative functions rather than being concerned and busy with the normal regular sittings in dispensing justice to disputes and interpreting laws, the situation which, in my humble view, with due respect, has affected the administration of justice and which has caused delays in the litigation process and frustrating justice from being effectively and manifestly dispensed. This paper is of the firm view that where the sitting judges/courts including the courts’ administration and practices are restructured, these delays in the litigation process can be eradicated at least, if not overcome completely.
Government is a joint function of (i) the Executive; (ii) Legislature; (iii) and the Judiciary. Section 6(1) of the Constitution has established courts to perform the functions of the judiciary. Furthermore, section 6(6) of the Constitution has separated the powers of the judiciary (apart from administrative functions) from the other arms of government thus ‘(6) The judicial powers vested in accordance with the foregoing provisions of this section— (a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law ; (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person ; (c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution ; and (d) shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.’. Also, in section 46(1), (2) and (3) of the Constitution, the Court has been empowered to hear applications on the enforcement of fundamental rights of the citizens thus ‘46.—(1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter. (3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section’. Also see the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009. These laws have clearly stated the functions of the judiciary and in other words, the courts of law. This is to point out that what our courts should concern themselves with most should be to discharge those functions as stipulated by law rather than being overburdened with administrative functions which would not allow them to discharge those functions mandated on them by the Constitution. The Heads of all the Courts are in my humble, in the best capacity to effect those changes or restructuring envisaged by this paper because they are in the position to administer and supervise all the judicial functions and all the courts under their jurisdiction, though judges are humans.
Furthermore, I humbly recommend that it should be possible that Heads of Courts should avoid sitting as a sitting Judge because once some of the heads of courts have been appointed as the Chief Judge or in Acting capacity, then, all those cases pending before them start to suffer delays which annoy not only the litigants but also the counsel handling those matters. Much more of the facts that adjournment notice will not be communicated to those litigants/counsel of the inability of the court to sit until they all travel even with their witnesses all the way to the courts, then, they would receive the bad news of courts not sitting! The annoyance is also provoked as a result of the financial expenses, time, energy, and other sacrifices that such litigants or counsel or witnesses must have expended in order to meet up with the day’s matter. So, I am of the firm view that ‘justice delayed is justice denied’. So, heads of courts should either sit over just a few cases which will be fixed for the days that the courts will sit and where there is any urgency or emergency, such adjournment notice must be communicated to litigants and or their counsel not less than 24 hours before the adjournment time except in case of nature. Even some times, no reason or explanation in particular will be given to litigants and or their counsel as to the reason why the court is not sitting! This is not right, with due respect!
Furthermore, for those judges who are not heads of courts, discipline must be input into the system by all heads of courts to supervise and ensure that every court sits to carry out its daily constitutional duties to the members of the public through whose funds those judges are paid their emoluments! Furthermore, if it becomes unavoidable for courts to be involved in administrative functions which are likely to affect their judicial functions, then, I suggest that there should be ceremonial judges who, upon their appointment or elevation, will only be ceremonial in functions and not judicial, though, they are judicial officers and may only either sit once or twice or three times in a week to perform their judicial functions, where it is unavoidable that they also sit as judicial officers. In this way, they have two or three days in a week to carry out administrative functions such as granting administrative applications, attending official meetings, etc. These judges should only be assigned just few cases to handle, while other judges must sit everyday of the week or there is rotation of those administrative functions among the judges. Nevertheless, I am compelled to also reason that other judges of courts too have one administrative function or the other. Therefore, I may further recommend that courts generally should and must sit at least three times in a week and must on all these occasions, hear those cases before them, except upon reasonable excuses which must be duly approved by the Head of the Court. Such judges who feel that they can not sit and without such approval duly sought and obtained, must be duly disciplined to encourage diligence to judicial functions. Also, litigants and counsel would have known that courts will only sit for three days, so, they are aware and prepared for the business of the day. Also, Practice Direction of courts would have notified the litigants and or their counsel of such number of days and should there be unavoidable need for adjournment, such notice must be communicated not less than 24 hours before the day with reasons or brief explanations. This recommendation is also important as a result of the long sitting of some of the courts which sit till even 6pm or late as the case might be while counsel or the litigants hang around to ensure that their applications for either Certified True Copies or search or other important and urgent applications are approved. These counsel or litigants are delayed by the long sitting of the courts. So, I believe that where these courts sit on a reduced number of days, the other days will be available to approve and or consider all pending applications rather than allowing applications to last till only God knows when, if justice must be seen to have been dispensed!
Finally, I humbly call on the Nigerian Bar Association to keep liaising with all the heads of courts on the challenges faced by the judiciary in respect of the litigation and court’s practices and for the best way to improve the judiciary and to ensure that justice is actually promptly and manifestly dispensed. I also believe that our heads of courts will consider these recommendations for justice to prevail.