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‘Prior notice of counsel, judges’ absence in court should be made part of practice direction’

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Mr. Tayo Oyetibo

Most times, judges fix a particular days or time for the hearing of cases pending before them. However, unforeseen circumstances or developments may prevent them from sitting as scheduled. Most times, parties and their lawyers would have arrived in court before learning that the matter will not hold as planned. This development has also been blamed partly for delay in the dispensation of justice. As a measure to forestall such occurrences, Mr. Tayo Oyetibo (SAN), in an interview with Yetunde Ayobami Ojo, suggested that prior notice of absence in court be made part of practice direction.

Why is it that you are not active in bar politics?

Well, everybody cannot be involved in bar politics. It is sufficient for one to have interest in the progress of the bar politics but not necessarily as a practitioner to involve in the politics of the bar.

But I think that one way or the other, we are all involved in the sense that we support the activities of the bar even silently, and we also contribute intellectually to the progress of the bar.

To me, that is involvement. Being involved does not necessarily mean contesting for an office, which I am not interested in for now.

Some lawyers are calling for makeover of NBA. What is your take on this?

When you talk of makeover, are you talking of overhauling the administrative machinery of NBA or are you talking of the membership? What exactly are you talking about?

The way and manner NBA election was conducted, the conference, all NBA is an association of lawyers. Even though it is a voluntary association in Nigeria, all lawyers are members.

In fact, judges are members of the NBA before they are elevated to the bench. So, they equally belong to the association by inference.

Therefore, in terms of overhauling of NBA, I believe that with the election of new officers, each bringing new idea into play as they assume office, what is important is to ensure that the executive devotes attention to the progress and welfare of the association.

But generally, overhauling of the association to me is more of a nebulous concept.

Are these your expectations from the newly elected officers?

Yes. I believe that the new executive should focus more on the welfare of young lawyers and also, build a working relationship with the judiciary.

Many a time, we devote attention to matters that directly concern the NBA primarily than matters that we should really focus attention on. There are matters we should really focus attention on.

For example, a counsel leaves his station and travels to another state for a case only to find out that the court will not be sitting, and prior notice is not given to him or her.

That is an issue NBA should have taken up officially – that under no circumstance should that happen in any division, whether in the Court of Appeal or High Court.

As a matter of courtesy, if a judge is not going to sit as scheduled, there ought to be a notice to the counsel by way of communication in advance. It could be by way of practice direction that is mandatory.

For someone to leave Lagos for a place like Port Harcourt or Kaduna or Ondo State, and he gets to the court only to find out that the judge is not sitting for one reason or the other is not encouraging.

Then, the counsel will begin to complain without anybody listening to him. So, I think that should be one of the functions of NBA because it affects the generality of the bar.

Secondly, NBA executive should look into the welfare of young lawyers with a view to putting in place, a package to assist young lawyers in developing themselves intellectually and materially.

You earlier stated that prior notice to lawyers if court will not sit as scheduled should form part of practice direction

Yes. I said that it could be by way of practice direction.

That is to require a judge that is not going to sit on a particular day as scheduled to quickly send a message to the counsel involved on that day.

It could be by email, whatsaap or SMS, but there should be notification to counsel in advance if the court is not going to sit.

Are you saying that such events as NBA Conference, training or seminar for judges should be fixed only during judges’ vacation?

Let me take International Bar Association (IBA) for example. NBA does not control the proceedings or meetings of IBA.

So, there is no way NBA can influence the holding of IBA conference which in any event, is organized by the bar associations of different jurisdictions.

So, it is not within NBA to control conferences of IBA. Then, talking of training for judges, they too deserve vacation.

Therefore, asking them to go on training during their vacation means that when they return from such training, they will then proceed on vacation.

That also means that you have not achieved anything by asking judges not to go for training when they are supposed to be sitting.

It will be good if the training can take place one week before the commencement of their annual vacation.

There is a period between the close of the legal year and commencement of vacation or in between. But by and large, it also depends on the type of training, if it is the one they have control over.

If not, they have to fix it into the schedule of the organizers of the training. So, as I said, it depends on the training you are talking about.

What about judges’ training being sponsored by corporate bodies or organizations?

I think one has to say it here. It is absolutely wrong for any private organization to sponsor training for judges.

That will definitely not be in accord with the independence of the judiciary.

Then, talking about statutory institutions or bodies that do have cases before the court, they are also not supposed to partake in the sponsoring of training for judges because in the eyes of the law, litigants are equal, whether it is a statutory body, private organization or a private individual.

Just as it is wrong for a private individual to sponsor training for judges, so it is equally wrong for a statutory body that maintains or institutes cases through a particular court to engage in sponsoring of judges.

It is contrary to the principle of independence of the judiciary. It is another way of seeking favour from the judiciary and it ought not to be encouraged.

What do you think NBA should learn from International Bar Association (IBA) Conference?

I think that NBA has been learning from IBA Conference. For example, the introduction of sections in areas of specialization and all of that was taken from IBA model.

I believe they have learnt a lot but they can continue to learn from IBA in terms of organization of conferences.

IBA deals purely on conferences. Apart from that, IBA also provides a platform for networking.

You meet lawyers from other jurisdictions and you see what others are doing in their jurisdiction; you take the good ones and eliminate the ones that are bad.

You can improve on your own practice within your jurisdiction. So that is a lesson to be learnt from IBA.

Why is the delay in justice dispensation difficult to eliminate despite various innovations, including electronic recording?

Primarily, insufficient funding of the judiciary contributes largely to the delay in the dispensation of justice.

Why do I say so? You have talked about electronic recording, but you find out that the way electronic recording works here in Nigeria is not the typical way it works in advanced countries.

In England for example, if proceedings are going on, you speak to the microphone, which automatically records, and at the end, the private company that does the recording produces the transcript.

And you can pay and collect your transcript. Automatically, everything is recorded. But here, somebody still has to type court proceedings.

It is either the person is slow or not even getting everything that you say in the course of proceedings, or that there is no power supply and the judge has to write in long hand, or that the stenographer, who keys in the information into the system is not able to get everything the lawyer or parties say during the proceeding.

So, you find that there are still complications. For us to have any efficiency, we must invest in the judiciary.

We must improve on infrastructure and also in getting competent personnel to man all of these things.

Registering private companies to do this assignment will maximize the efficiency of the system. It is important, and we have reached that stage to go for full-scale electronic recording.

Your recent letter seems to support the establishment of Small Claims Courts in Lagos State

The establishment of special courts known as Small Claims Courts is to provide quick access to justice and justice delivery. It will also promote businesses and investments in Nigeria.

The Lagos State Small Claims Courts generally, are courts with limited jurisdiction to hear civil cases in disputes that do not involve large amounts of money.

It was established to operate in the magisterial districts of the magistrates’ courts and adjudicate on claims not exceeding N5million, excluding interest and costs.

About 15 magistrates’ courts have been designated as Small Claims Courts within the five judicial divisions in the State.

The objective is to provide easy access to an informal, inexpensive and speedy resolution of simple debt recovery disputes in the Magistrates’ Court, and to fast-track justice delivery in commercial disputes involving small claims.

The Lagos State Small Claims Courts Practice Directions 2018 have been published in respect of these courts and they stipulate the procedures to follow in instituting an action.

The Practice Directions are to apply in these Small Claims Courts and also in the High Court when sitting over appeals from the decisions of the Small Claims Court.

Article 12 (2) of the Practice Directions provides for the time frame of 60 days for the entire period of proceedings from the first hearing date till judgment is delivered. Such a time frame ensures a fast and efficient system with sanctions for default.

The procedure for commencing an action in the Small Claims Court is simple and inexpensive.

This is due to the fact that the procedure has been reduced into forms simply to be filled and filed. The Practice Directions also provide that the litigants can represent themselves.

Where a party is aggrieved and wishes to challenge the decision of a Small Claims Court, he is to appeal to the High Court of Lagos State.

But the questions arise as to whether a claimant is compelled to file his claim in the small claims court even if the claim falls within the threshold of N5million.

Also, will a claimant be allowed to reduce his actual claim to fit the requirements of this venue?

Where a claimant is willing to accept less than the full amount he would have claimed, can such a case be brought to the Small Claims Court?

The tenor of Article 2(1) of the Practice Directions does not seem to compel a claimant to bring an action in the small claims court even if his claim falls within the limit.

This is because Article 2(1) of the Practice Directions uses the word “may” to describe the circumstances under which a claim can be filed in the small claims court.

This includes a circumstance where the claim is for “a liquidated monetary demand in a sum not exceeding N5million, excluding interest and costs.”

The implication of it is that a claimant need not bring an action in the Small Claims Court even though his claim is for N5million or a lesser sum.

Such an action could still be brought in the regular magistrates’ court without necessarily being brought before the Small Claims Court.

More so, the provision of Article 6(2) of the Practice Directions allows a counter claimant to bring a counterclaim, which does not exceed N10 million, which is the general limit of magistrates’ courts, in a small claims action.

Also, with the provision of Order 8, Rule 4, of the Magistrates’ Courts (Civil Procedure) Rules, which allows a claimant to abandon part of his claim, it may be opened to a claimant with a claim higher than N5 million to abandon a part of it for the purpose of bringing his claim within the purview of the small claims court.

I hope that other states of the Federation will see these as examples worthy of emulation in order to accelerate the dispensation of justice.

What is your take on the issue of votes buying and selling ahead of 2019 generals election?

It is a crime to buy or sell vote. Apart from being a crime against the law of the land, it is a crime against your own conscience because when you sell your vote, you are selling your future.

The man who buys your vote obviously has mobilized funds from somewhere to distribute to voters.

When he gets into office, the first thing he will do is to rake in the funds to replenish the one he has spent on buying your vote.

And because he bought your vote, he does not owe any duty to you, whereas, the reason he is voted into office is to perform.

So, any one selling vote is selling his future. That is what the voters should realize.

People who give you money to buy your votes are not going into office to serve you.

They are doing so to come into office to steal your money. The earlier you realize that, the better for you.

The man who comes to you to offer you money to vote for him is your enemy and the enemy of your children.

He is also the enemy of your society because he will deprive you of the good things of life, and that is the reason some of the politicians who try to get into office by all means do not have the urge to serve but to steal.

What is your reaction to issues surrounding stamp and seal?

I think the whole system needs to be overhauled. Very often, when you pay for the seal, it is not released and when it is released, it is almost at its expiring date.

Of course, the courts are now changing their position. Those that have paid can exhibit their receipts.

But I think the whole system does not serve the purpose any more. We can do something that is more permanent. We can have a metallic seal with a number.

When you pay your practicing fee, you generate a number and you have your number endorsed on the seal and all documents.

It still belongs to you and it expires when your practising fee expires.

So, you have a number per year; your number is generated for a particular year and it is endorsed on the seal instead of paying for the seal that is not there.

The capacity to generate the seal is not there all over the country. I don’t see any usefulness we derive from this present system.


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courtMr. Tayo OyetiboNBA
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