By virtue of the judiciary’s position in the socio-economic and political life of the country, diverse issues come before the courts as a matter of necessity. From the very crucial constitutional issues requiring pronouncements thereby having far-reaching implications on the country’s well-being and future directions; to the not-so crucial (and probably mundane issues) which by virtue of its position as the last hope of the common man, must be submitted for determination for the enthronement of the rule of law, the courts’ pre-eminence amongst the three arms of government cannot be over-emphasized.
In this country, section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) donates the judicial powers to the various courts in the hierarchy in determining “all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations”. In making these “determinations”, the standard is for the courts to hear grievances submitted by litigants with the legal arguments canvassed by their counsel before arriving at their decisions. However, before the eventual final determination of cases, courts are saddled with making intermediate or provisional pronouncements i.e. rulings, with consequential orders.
Typically, judges are expected to exhibit a thorough grasp of the issues submitted for determination at the interlocutory stage bearing in mind that such determination might have consequences for the future conduct (or even outcome) of the particular case. Admittedly, issues are as diverse as the individual cases and requiring a case-by-case examination and assessment of the available facts, before exercise of discretion one way or the other, and then the consequential order(s) that meets the justice of the particular case. More often than not, however, judges reaching determination or delivering their rulings could drag endlessly and loss of time while the substantive matter heads nowhere. Thus when counsel and litigants arrive court for their ruling as adjourned, it is not always a news pleasant to the ear to be told that the ruling is not ready.
We are in the era of frontloading. Legal arguments for or against interlocutory applications are now placed before the courts prior to the actual hearing or taking of oral arguments. Some counsel go overboard in their written briefs while some exhibit lack of passion. Whichever cause is taken, the bulk of the problem is for the judge to make sense of the tens of pages. Without rubbishing its merits, frontloading tends to overwhelm judges given the huge volume of cases pending for attention. It is even more painful when interlocutory matters tend to take the bulk of the precious judicial time. We have encountered judges lamenting that writing rulings is a waste of their time because rulings, save for in rare instances where the rulings determine cases like in fundamental rights matters, do not count in their quarterly returns to the National Judicial Council. Yet, determination with reasoned opinions citing relevant precedents are unavoidable. What is the way out?
Taking a cue from other jurisdictions, our courts should consider appointment of qualified lawyers as assistant or associate judges who will have powers to hear interlocutory applications and grant necessary orders, especially where the cases are at preliminary stage. In a jurisdictions like Lagos State, the idea of pre-trial or case management was devised as a means of prompt determination of cases. However, judges hardly utilize the full benefits given that the need to attend to substantive cases on their dockets takes priority. The solution might be found in assigning pre-trial affairs to other judicial officers.
In the United States federal district courts, Magistrate Judges have become well entrenched in the dispensation of justice. Pre-trial summons, discoveries, interrogatories, urgent injunctive remedies motions, amongst other interlocutory or pre-trial affairs are routinely dealt with by those Magistrate Judges in civil cases. In criminal cases Magistrate Judges issue arrest and search warrants, conduct preliminary hearings and set bail for defendants or issue remand orders as appropriate. They are also vested with powers to hear routine misdemeanour cases amongst others. In the United Kingdom, recorders function in similar capacity. Such appointments often also serve as a test – run for substantive appointment into the Queen’s Bench or Chancery divisions of the High Court. Thus, judges busy themselves with substantive matters scheduled for trial. Incidence of rulings on pre-trial motions several months after arguments were taken are unheard-of. By allowing associate judges or recorders free hands in dealing with pre-trial affairs, we can then have justifications to accuse “non-performing’’ judges and hold them to account when trial matters are not heard and disposed off promptly.
While wholescale adoption of the system from other jurisdictions might not engender the desired outcome, adoption with necessary modifications should be considered.
We can always make improvement for the better.
Ajadi (elliasajadi@gmail.com) is a senior associate at Wale Taiwo & Co, Magodo GRA Phase II, Lagos
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