We are currently witnessing a magnitude of global lockdown and shutdown of all aspects of human activity unprecedented in the history of the world or at least in contemporary history. The court and judicial system has not been left out of this.
COVID 19, a novel strain of the Coronavirus is the cause of this massive shutdown. The mass media is awash with information on this virus. It is highly contagious. It also has no cure. It presents a classical support to the cliché that says “prevention is better than cure”. Prevention is indeed not better than cure in this case, it is the only option.
It is not surprising that most of the education so far on the subject has dealt on the mode of spread of the virus. The aim of the massive enlightenment is to halt or at least slow the spread of the infection. The logic is that if there are no further infections the virus will run its course on those already infected and simply go away. It cannot survive or sustain its existence without fresh hosts.
It is because of the self-limiting nature of the virus, like most other viral infections that there has been massive lockdowns/shut downs and insistence on social distancing, all aimed at reducing human contact and thus reducing chances of transmission to the barest minimum.
As stated earlier, the courts have not been left out of the lockdowns. Indeed, the Chief Justice of Nigeria had by memo dated 23rd March, 2020 directed all heads of Courts to suspend court sittings for an initial period of two weeks starting from the 24th of March, 2020. The courts were however expected to sit particularly to “dispense matters that are urgent, essential and time bound in line with our extant laws”.
On the eve of the expiration of this initial suspension, on the 6th of April, 2020. The Chief Justice of Nigeria issued another circular extending the suspension of court sittings “till further notice.”
The legality or otherwise of the directive of the Chief Justice of Nigeria is not the concern of this discourse so the write up will not digress into that.
The reality is that the courts are essentially in total lockdown. Not surprising at all, most Judges have not bothered and in all probability will not bother with the exception allowed during the now indefinite lockdown period.
Following the directive of the Chief Justice of Nigeria most heads of State courts have issued corresponding directives suspending and restricting court proceedings.
These circulars, apart from restricting the category of matters that can be entertained by the courts, also insists on limiting the number of people that can be in the court room during the hearing of the matters.
Suggestions have been made by notable lawyers including Femi Falana, SAN, that the courts would do much better if some pressing matters could be given virtual hearing and determined via skype and zoom etc.
All well and good if the necessary infrastructure to sustain electronic proceedings can be put in place. One thing is incontestable from all these and that is that we can do better in the way we hear and dispose of matters in our courts.
The end of this pandemic will most likely usher in a new world in a sense. There would be an irreversible change in the way many things were done pre COVID 19. But what of our court system and administration of Justice? Can we use this opportunity to bring our practices and administration of Justice in line with current/modern day realities?
Inordinate delay in disposal of cases and administration of Justice has been the perennial complaint. Stakeholders have gathered in countless seminars and workshops to discuss this nagging problem of delay in Justice Delivery. Currently, one factor that contributes significantly to this delay is rarely mentioned and even the few times it is mentioned, it is merely glossed over. This factor is the court’s Cause List.
Cause List is simply a list of cases awaiting a hearing. The cause list used by our courts today, just like most other things was borrowed from the English. It is as old as the dinosaur. It immediately avails you the very first glimpse of the time management mode or the absence of it by our courts. The average cause list contains a list of 30 to 50 cases to be heard by one judge in a single day. Some courts get so crowded atimes that even the lawyers appearing before that very court would not have enough seats to sit on. Often times litigants are made to suffer the indignity of being asked to give up their seats for the lawyers.
“Court sits by nine!” This is the favourite refrain of most judges and magistrates. You often hear it when a lawyer and sometimes the litigant is being chastised for not being in court at the particular time a case was called. The consequences can be dire atimes. It can be as bad as a dismissal of the suit in some circumstances provided by the Rules.
The implication is that once you have a matter in any particular court you are under obligation to sit in that court from 9am in the morning till any time of the day your matter gets a mention. It can be an all-day wait which is not unusual depending on your age at the bar.
It is simply an unthinkable waste of manpower. Just stop to imagine the common, everyday scenario. Imagine a court that has 30 matters in its cause list, this is a modest estimate by the way; by age long tradition, cases are called according to age at the bar, starting with the privileged senior Advocates. A cause list of 30 cases will have about 60 lawyers. Granted, there could be a few ex-partes, whereby only the lawyer for the applicant would appear; there may also be a few cases with multiple parties and with different lawyers appearing for the different parties. Let us take it that the categories balance out each other thus bringing us to the average of two lawyers per case.
Let us take the average age of lawyers appearing in that court as 10 years. On the average the court would have dealt with 15 cases by mid-day- a generous assumption- this leaves us with 30 highly skilled lawyers sitting in court from 9am to 12noon doing absolutely nothing! The wasted time is 90 highly skilled man hour in one court alone. In a state with 30 courts, the time wasted in the morning of one day alone is 2,700 hours!
Let us take this mathematics to compute a work week of five of 5 days, we have 13,500 wasted man hour in just one state in one week! In a month the figure will be 270,000 wasted highly skilled man hour! In a year we will have 3, 240, 000 wasted man hour in just one state. Extrapolate to the 36 states that make up the federation and you have 116,640, 000 of wasted highly skilled manpower and this for mornings alone!
Taking the average age of lawyers in court as ten, the wasted skill is 300 years of experience per hour!
The Federal High Courts and the Industrial Courts which have mainly adopted a worse and less predictable mode of running down their cause lists are not factored in here.
The only advantage I have heard of this present cause list mode is that it affords young lawyers the opportunity of learning in court. Interesting. Given the statistics above, it means generations of lawyers will do nothing other than sitting in court learning!
Granted, most of the judges may find it convenient to have everyone seated in court from 9am so they can move from one case to the other seamlessly and easily. But the point here is that the cost to the entire system far outweighs this convenience. It is not unsual for a lawyer to have up to two or three matters in different courts within the same jurisdiction. The lawyer will invariably keep strolling from one court to another to monitor the stage of proceedings and when it will likely get to his turn. Sometimes, often really, two or three of the matters gets called simultaneously leading inevitably to adjournment of one or two of the matters.
There are also occasions when a lawyer finds himself sitting in court all day till about 5 or 6pm when he has some other matters for hearing the next day. When this lawyer returns from court totally exhausted, the effect on the next day’s sitting is predictable, he might go there unprepared and end up doing irreparable damage to the case or he might simply develop a natural headache.
What is the suggested alternative?
Simply schedule up to the hour, the court can fix matters to a particular time of the day and immediately save itself the inconvenience of human physical congestion. We need not have human congestion in our courts again post covid.
A more efficient use of time which will benefit all stakeholders will result if lawyers and litigants will no longer have to sit in court all day not knowing when their case will be called.
The court can schedule light matters within one or two hours of the sitting day – it could be morning or afternoon- this will include uncontested applications and matters just listed for mention. Contentious applications and matters for hearing can also be fixed for certain time in the day or scheduled within a period of two to three hours or more, depending on the business of the day. Both lawyers and litigants can thus plan to attend court within the time their matter is scheduled to come up. The court will save a lot of time if lawyers appear before the court organised and fully prepared for the business of the day, matters will proceed with greater certainty and with flimsy excuses from counsel drastically reduced. There is no reason why everybody should be in court at the same time. It bothers on the ridiculous.
Even the suggested categorizing of matters will afford lawyers and litigants the opportunity of planning what time of the day to be in court and the number of hours likely to be spent..
I do sincerely hope that an improvement of the current cause list system to an improved, modern, time saving application will be the starting point of the post corona face of court proceedings and administration of Justice.