‘Delay, interlocutory appeals are twin scourges of Nigeria’s justice system’
With the Administration of Criminal Justice Act (ACJA) 2015 premised on the promotion of efficient management of criminal justice institutions and speedy dispensation of justice, experts in the justice system examine why the gains of the Act have not been fully felt.
Leading the discussion on the problems the administration of justice has been contending with since the enactment of ACJA, Professor Fidelis Oditah (QC, SAN) declared that the twin scourges of the country’s civil and criminal justice systems have remained excessive delay and interlocutory appeals.
For him, the real problem with the application of some provisions of the ACJA was the failure of judges to exercise their powers of case management and failure to award substantial punitive costs when it was found that a party was attempting to frustrate trial.
“A lot of the messes we have found ourselves in are created by the judges’ failure to act decisively. Issues should be analysed constructively instead of taking refuge under technicalities. There should be fixed time for cases to be heard and parties are duty bound to stick to the time,” he said.
Speaking on ‘ACJA 2015 and the Preservation of Constitutional Safeguards’ at a recent luncheon roundtable organised by the Presidential Advisory Committee Against Corruption (PACAC) and the Centre for Socio-Legal Studies, Professor Oditah said if public confidence which is the pivot on which the criminal and civil justice systems depend is lost, the public would not respect the judiciary as an institution. “This is true both in relation to disputes between private individuals and in relation to disputes between the individual and the state,” he said.
He said the justice system has however not been set up to be unfair, nor has the system been administered in a deliberately unfair manner. Rather, what appears to have happened is that the useful procedural tools such as adjournments and preliminary or jurisdictional objections and in criminal litigation the No Case Submissions are being deliberately abused.
He said with the success of any system of civil or criminal justice depending on the judges, the legal practitioners and the parties to the dispute, whether such disputes are disposed of fairly and efficiently, depends upon active cooperation between these three players.
“In this regard, the twin scourges of our civil and criminal justice systems have been excessive delay and interlocutory appeals. The delay and expense of civil and criminal litigation depend to a very large extent upon the working practices of our judges and legal practitioners.
“The primary instruments through which the delay is achieved are adjournments, jurisdictional objections, the No Case Submission and interlocutory appeals from case management decisions as well as decisions in respect of jurisdictional objections and No case Submissions,” he said.
Oditah, however, added that adjournments and preliminary objections are necessary tools in any system of civil or criminal justice as long as they are properly used. He said the “problem is not the existence of useful procedural tools such as adjournments or preliminary objections, but the deliberate abuse of the procedural tools.”
“It is not uncommon for legal practitioners to go to the court deliberately to seek adjournments, in some cases very late adjournments, for no particularly pressing reason. By the same token, the preliminary objection is often used to mount spurious objections and thereby delay and frustrate the progress of proceedings,” he said.
He said what is more surprising was that virtually any issue can be taken literally all the way to the Supreme Court provided the appellant could formulate grounds of appeal based upon error of law, regardless of whether or not the points being appealed involved any public interest.
Also speaking, the former President of the Court of Appeal, Justice Isa Ayo Salami (rtd), said stay of proceedings should not be resorted to as a means to delay or stall trial, adding that there must be a valid appeal and an arguable appeal which is based on an issue of law that is obscure, for a stay of proceedings to be granted.
“Judges must therefore note that the constitutional right to appeal as enshrined in the Nigerian Constitution is preserved but the time for appeal is delayed in criminal cases until the substantive issues are taken and the case concluded before appeals can follow.
“I would like to strongly recommend that the courts should refrain from entertaining interlocutory applications brought by lawyers to delay criminal trials as this is in line with sections 306 and 396 of ACJA, 2015,” he said.
Addressing the issue of No Case Submission, Justice Salami said the best practice was for the defence to rest its case on that of the prosecution, adding that where a defendant failed in his no case submission, the best decision was for the court to enter judgment and not the practice of giving the defendant another opportunity to prove his case by calling on him to open his defence.
He said this would hasten the trial process “because what the defendant is saying in both cases is that he does not intend to call any witness to testify on his behalf and he is only asking the court to base its decision on the evidence adduced by the prosecution”.
Justice Salami said a legislative review of the laws to merge the procedures of No Case Submission and resting case on that of the prosecution would go a long way in reducing delay in conclusion of corruption related matters.
While discussing Prof. Oditah’s paper, a Lagos-based lawyer, Wahab Shittu, stated that, “Delay in trial proceedings is a stakeholders’ problem and nearly all involved in the criminal trial process are culpable – defence counsel, prosecution counsel, investigative agencies, the court system - and the blame is mainly attitudinal.
He said the challenge is basically on how to explore the advantage conferred by Section 306 of ACJA in reducing negative deployment of interlocutory appeals to stall the criminal trial process by counsel. “As law officers, we all have a duty to reverse this negative trend and the Supreme Court may have started the revolution by its decision in Olisah Metuh v FRN,” he said.