Procedural approach to justice administration contributing to delays in justice delivery, says Ajogwu
Although, the delay in the nation’s judicial process has remained a sad commentary on the nation’s justice sector, attracting condemnation from stakeholders in the administration of justice, the malaise has regrettably remained intractable with litigants waiting for 33 years or more before justice could be dispensed. In this interview with BERTRAM NWANNEKANMA, Nigeria’s first Professor of Corporate Governance and renowned Senior Advocate of Nigeria (SAN), Prof Fabian Ajogwu provides a revolutionary perspective to the delay debacle in the nation’s judicial process as well as other sundry issues. Excerpt.
Delays in the nation’s judicial process have been fingered as a reason why investors are reluctant to do business in Nigeria. Do you agree with this assumption?
First of all, it is important that we understand that a businessman wants to be able to determine his commercial disputes with fairly degree of certainty and expeditiously. When that does not happen, it leaves him in a limbo of not knowing where he stands. So, I do agree to a large extent particularly with commercial cases. But then, this is not the only reason why there is a bit of reluctance by investors. You will agree with me that no one likes to deal with uncertainty and definitely not when there are commercial interests. The reason is simple; there is a time value on money. So what you get today is by far better than what you may get tomorrow. So, yes, it does and when you have a jurisdiction where it takes forever. Sometimes, it takes 7, 9 to 15 years for some of these disputes to be resolved. It certainly does undermine the investors’ confidence in investing in a particular jurisdiction such as ours but I think that this is something that a lot of efforts had gone into trying to manage but there is still a lot of room for progress.
What do you consider as the major reasons for delay in the nation’s judicial procedures?
Number one is the procedural approach to justice administration as we have, again derived from our common law jurisdictions. A lot of attention is paid to procedures rather than the substance of the matter, what that does is, it creates all kinds of grounds for litigants to challenge whatever procedure is followed and so you have interlocutory appeals in between the main matter sometimes up to the Supreme Court and back before you continue with the trial. So the combination of factors, you got those procedural rules that create delays, you also got issues of lack of proper preparations by lawyers. You also have overcrowding of the courts. The share volume of cases before some of our courts is overwhelming. Even if the judges worked for the next five years without taking any new cases particularly at the Court of Appeal, they are not going to be able to clear the backlogs. We have up to 5000 cases to deal with and you have to write judgments. So the ratio of commercial lawsuits available to judges has increased over the years as trade and commerce increases. So you find that these things compound the delays that we already have. And of course, I must mention infrastructural gaps. So you got epileptic power supply, you got poor document management system which runs on the foundation of power in terms of storing and retrieving documents and again, some of the rules of courts need to be looked at. I am of the view that one should not gather some of our best brains particularly at the Court of Appeal to start dealing with uncontested interlocutory applications or motions. Even some of them can be disposed off without the formalities that appertained to them now. So you find that instead of the appellate court justices dealing with substances of appeals, they are dealing with applications, motions to regularise the processes and a number of those things take away from the fixed nine hours that we have as effective working time in a day. If they deal with some of those basic things, things will dramatically improve the administration of justice and the speed of it. These are my views.
Many legal commentators are of the opinion that litigation is not appropriate means of resolving commercial disputes. Do you agree?
Well, you underlined it the emphasis on commercial cases, like I said earlier on, most commercial disputes are very business focused. Like I said, they are drawn in the argument of time value supply in the sense that N700, 000 today is probably worth more than NI million, you may win next year because you discount the value using inflation and all that. So the businessman wants to speedily conclude his disputes. Now the court system because of the right of appeal up to the Supreme court, presents unattractive option for most commercial cases for the reason of the time, sometimes they want the privacy to even resolve those disputes, you know that court process is heard in the public, sometimes commercial litigation could affect share price that people just know that you have some problems could drive speculations. Now the options are there, dispute resolution mechanisms including conciliation, arbitrations and negotiations, these alternatives present opportunity for a shorter time to resolve disputes which are final in nature when the award is made, save of cost, the limited circumstances under which you can applied to set aside the award if the arbitrators are contradictory in itself or when they went beyond the scope of reference. Now they are effective, people who are experts in the field are involve and they present shorter time line options for resolving disputes. You find big Multi Nationals, big International Oil Companies, big construction companies adopting this style of dispute resolution mechanism almost as a standard to deal with their disputes because of their share size, they cannot manage delays attendant in our court systems.
I believe traditional litigation will always have its appropriate role to play in our legal system but ADR mechanisms promote attractive qualities to business people who often demand speed, expertise and privacy in their legal matters. Therefore to answer your question, I would say that in a majority of commercial disputes, ADR is a better option than litigation but of course not in all cases depending on the requirements of the parties and of the relevant.
What is the philosophy behind the cliché; “the wheels of justice may grind slowly but sure grinds exceedingly well? Does it justify delays in judicial process?
Well the philosophy behind this phrase, I believe is that no matter how long it takes the paramount consideration is that justice should eventually be done and done well. You will however also agree that there is an equally popular saying that ‘Justice delayed is justice denied’, which places emphasis on the need for timely resolution of judicial decisions. I do not believe that the two considerations – the requirement for justice to be done and the need for speed in this regard – are necessarily incompatible. The phrase therefore should not be relied on to justify unreasonable delays in the judicial process
Do it has any relationship with the aphorism that you cannot sacrifice justice on the altar of speed?
They are one and the same. I agree completely that one ought not to sacrifice justice on the altar of speed but like I said in response to your previous question, the two are not necessarily incompatible. In fairness, a number of initiatives have been introduced into our legal system, which are designed to, and have in fact improved the pace of justice delivery in Nigeria. Innovations such as frontloading of documents, employment of written addresses and improvements in legislation such as the Administration of Criminal Justice Act (ACJA) 2015 concerning adjournment limits and day to day sitting of courts I think, have all demonstrated that speedy dispensation of justice is now considered at least as important as the actual delivery of that justice.
Does this relate to commercial matters and what are the limitations?
Yes the maxim applies in commercial matters just like any other; the paramount consideration should always be that substantial justice is done. A key limitation of this aphorism however is of course delay and as I said earlier, speed is a very important factor for commercial people. The consequence of this is the rise over time, in support for ADR mechanisms as tools to resolve commercial disputes.
Recently, you authored a book titled “Ship Acquisition &Finance: Law & Practice. What was your main motivation for coming out with the book?
My major motivation in writing the book was essentially to provide a practical guide on the law and practice of ship acquisition starting from the preliminary negotiation stages through to the actual agreement to acquire and finally the registration of the ship acquired. Essentially it is meant to be a guide on the relevant legislation guiding the process of ship acquisition in Nigeria and the practical steps to be taken at every stage
What are the legal considerations in ship acquisition in Nigeria?
There are a number of legal issues to consider in ship acquisition in Nigeria. First of these would be the need for the ship to be registered and what flag or nationality the ship would carry. One of the major governing legislations concerning shipping in Nigeria is the Coastal and Inland Shipping Act, 2003, also known as the Cabotage Act. Section 3 of the Cabotage Act reserves the carriage of goods within Nigerian coastal waters to vessels owned by Nigerian citizens and built in Nigeria except where such vessels are not available in the market. It is thus hoped that by reserving the coastal trade to Nigerians, there would be an increase in ship acquisition by Nigerians and indeed a boost for the shipbuilding and repair. The potential purchaser must also ensure that all relevant laws are complied with and that all necessary documents are prepared and registered as may be required. Some of the necessary documents include: the Declaration of Pledge, Deed of Appointment of Trustees, Deed of Covenants Accompanying a Deed of Legal Mortgage of the Ship, Ship Mortgage Deed and Power of Attorney among others. These are important to ensure a seamless ship sale and acquisition process. The relevant statutory fees to regulatory agencies like Nigerian Maritime Administration and Safety Agency (NIMASA) and the National Inland Waterways Authority (NIWA) are also very important and cannot be avoided.
What do Nigerians stand to benefit from the book?
I believe the book and others like it will be very useful to Nigerians and indeed anyone who intends to acquire ships in Nigeria as it provides insight into a range of issues. These include ship ownership, ship sales and purchases, registration and financing options, creation and discharge of ship mortgages and dispute resolution options. The book also provides samples of the necessary documents in ship acquisition to a prospective purchaser. All these combine to paint a clear and easy to follow picture of the entire ship acquisition process in Nigeria.
Do we have adequate law guiding shipping operations in Nigeria?
First of all, it is my view that there cannot be an overabundance of legislation to regulate a certain topic, sector or industry. As long as relevant laws do not contradict one another and introduce improvements to the field covered, then new legislation should be encouraged; that reflects dynamism of the law. In Nigeria, the major laws governing Shipping are the Merchant Shipping Act, 2007 and the aforementioned Cabotage Act, 2003. These laws have copious provisions regulating the law and practice of shipping generally in Nigeria and indeed, the Cabotage Act was much lauded for its intention to improve Nigerian participation in shipping business. However, the main problem which is one common with most laws in Nigeria, is the problem of ineffective implementation of the provisions of the law. In most cases, Nigerian laws are stranded in the statute books and are not effectively enforced by the relevant authorities. Implementation has to improve significantly although I must say that bodies like the Nigerian Content Development and Monitoring Board are doing commendable work in this area.
What are the main considerations for prospective investors in shipping?
The main considerations for prospective investors are many. Of course the legal considerations I mentioned earlier are essential for investors. Additionally, the next major considerations will mainly be financial ones. The potential investor will need to consider some of the following things among others:
Whether it is better for its requirements to purchase a new vessel or an old/used one; What size and type of vessel to purchase; Conducting due diligence on the vessel to be purchased as well as on the seller; Deciding on the financing options available to it and decide whether an outright cash purchase is possible or whether a mortgage would be more suitable and Cost of registration and other requisite regulatory approvals.
Given your experience as a commercial lawyer, what do you consider as a major impediment to commercial law practice in Nigeria?
I think a major impediment to commercial law practice in Nigeria is the problem of multiplicity of required permits and approvals, delays and bureaucratic obstacles at regulatory bodies like the Corporate Affairs Commission and NIMASA. There also seems to be a general reluctance by parties to instruct lawyers for certain commercial transactions when they feel they can avoid it. These I think for now are the chief impediments to better commercial law practice in Nigeria.
Recently, many senior lawyers have been appointed heads of various businesses. What do you consider as reasons for this?
I think Law is a very versatile and robust profession, which prepares lawyers for different sorts of assignments. In the course of legal study and practice, one has the opportunity to educate oneself on many different areas of endeavour. Because you deal with clients across different sectors and industries, the lawyer becomes an expert in different fields and often becomes better equipped than other professionals to apply this knowledge and deliver quality service and leadership.
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