About four years ago, I was hired by a Nigerian international businessman to assist him with enforcing a Nigerian Judgment on a U.S company in one of the U.S States. At the time the cause of action arose in Nigeria in late seventies, the U.S Company was operating business in Nigeria and the transaction that gave rise to the legal action also occurred in Nigeria. Accordingly, personal jurisdiction over the U.S Company was proper in Nigeria. However, due to the nature of the practice and procedure in Nigeria, every interlocutory motion was fought to the Supreme Court level and by the time the case was set for trial, not only had the Company closed down its operation in Nigeria, the leading counsel representing the U.S company also died in the process. In summary, after about twenty years of litigating the case in Nigeria, the Plaintiff finally obtained a default judgment against the U.S Company.
Armed with the Default judgment, the Plaintiff rushed to the U.S to enforce his judgment against the U.S Company. To the chagrin of the Plaintiff, the U.S Company had declared bankruptcy and its assets taken over by another company. Had the litigation not taken twenty years in Nigeria, not only would the Plaintiff have enforced the decision in Nigeria before the U.S Company wound up its operation in Nigeria, he would also have been able to enforce the foreign judgment against the Company in the U.S years before the company folded up.
Public confidence in a legal system and the ability of the judges to discharge their duties promptly and efficiently is crucial to the effective dispensation of justice. A legal system that does not enjoy public confidence in its ability to dispense justice will ultimately collapse; hence, the foundation of democracy and rule of law.
Obviously when you compare the Nigerian legal system with those of developed countries, such as the U.S, Canada and the U.K; there are many differences, particularly in terms of practice and procedure – a key factor in effective dispensation of justice. The strategic elements for this disparity are improved and continuing legal education and training for lawyers and judges alike, the use of discovery method, better case and docket management system, better machinery for process serving, case flow management and other legal software, effective court reporting system, powerful courtroom technology and document management system etc.
It is anachronism for judges to use long hands to record witness statements in a millennium technology. In today's competitive, worldwide legal market; effective legal support requires a combination of legal capabilities, which are currently lacking in the Nigerian legal system. For instance, using the pacer system, an attorney can file pleadings in the U.S Federal courts from anywhere in the world. Essentially, what obstructs quick dispensation of justice and case management is not the law; rather, it is the practice and procedure. This is why despite the fact that the U.K and Nigeria have similar legal systems; Nigeria still lags behind in ensuring effective dispensation of justice.
As a result of the loopholes in the Nigerian practice and procedure, many lawyers are in the habit of abusing the judicial process to deny successful litigants the opportunity to enjoy the fruits of their litigation, which in turn, undermines the spirit, embodied in the Rule of Law.
Judicial efficacy is not only a service but it is the pivot through which the rule of law is achieved. Even though, the rule of law is the key to the transformation from dictatorship to democracy, fair and prompt dispensation of justice is the foundation of effective judicial system. While fair trial is a fundamental human right, quick dispensation of justice is an uninfringeable canon of judicial process. The considerable delay in judicial process therefore, erodes the basic tenets of justice. To this effect, cases must be resolved and disposed of in a timely fashion as a way of further assuring litigants who seek legal redress in our Courts of effective legal remedy. Unless there is a complete assurance of quick dispensation of justice, rule of law cannot be completely achieved.
There are radical procedural differences between the U.S legal system and Nigerian legal system. Docket management is very crucial to Judges in the U.S., and several procedures are in place to speed up judicial resolution of cases.
Under the U.S legal system, usually, after the exchange of pleadings by the parties, attorneys for the parties shall confer, as required by Federal Rules of Civil Procedure and submit to the Clerk of Court; a stipulated proposed scheduling order and discovery plan. If attorneys are not able to agree upon the deadlines or are requesting deadlines that are significantly different, or if the case involves any special issues that require the early attention of the court, attorneys would request a scheduling and planning conference with the Judge.
The Judge can also summon a scheduling Conference, which is usually attended by the attorneys although; parties are sometimes encouraged to attend. As discussed above, the purpose of this conference is to schedule deadlines in the case and to discuss, as a preliminary matter, any legal or factual issues that might lead to a more efficient resolution of the case. Typically, at the scheduling conferences, the court will fix a deadline for completion of discovery, deadlines for naming witnesses, deadlines for exchange of exhibits and a date and time for either a final scheduling conference or trial on the merits.
The court also usually requests that the parties stipulate to exhibits which are admissible; this stipulation does not preclude the parties from arguing relevancy or weight of any exhibit at trial. In addition, the Order will also direct Parties to make initial disclosures such as whether parties have reached an agreement at the Conference to resolve all issues relating to the Federal Rule of Procedure initial disclosures and set deadlines for filing Motions to add parties, amending pleadings and disclose all the names of witnesses including the deadlines for the Plaintiff and the Defendant to disclose experts rebuttal witnesses.
The court requires that the parties confer before the pretrial conference. This eliminates trivial issues as attorneys for both parties would have resolved these issues before appearing before the Judge. In federal court for instance, parties are required to meet and submit a joint scheduling plan to the Judge before the date and time set for the conference. The parties should be prepared to discuss the possibility or likelihood of settlement. Parties should bring their personal calendars to the pretrial conference so that nobody comes back to the court to suggest alternative dates based on conflicts with his or her schedule. This procedure allows attorneys to participate in docket management and also forecloses crafty motion practices that delay effective dispensation of cases.
Most Federal Cases have assigned Judges and Magistrate Judges. A U.S. magistrate judge is a judicial officer of the district Court and is appointed by majority vote of the active District judges of the Court to exercise jurisdiction over matters assigned by statute as well as those delegated by the District judges. Duties assigned to magistrate judges by district court judges may vary considerably from court to court but essentially, they assist the District Court Judges in matters such as pretrial duties or conferences, evidentiary hearings and sometimes settlement conferences. This enables the Judges to focus their attentions on more fundamental duties like conducting trials.
Another significant difference is the use of depositions. In the U.S legal system, deposition is an important tool used in pretrial discovery. This method of pretrial discovery consists of a stenographically transcribed statement of a witness, whether or not a party to the action, under oath, in response to an attorney's questions, with opportunity for the opposing party or his attorney to be present and to cross-examine. Except in extreme cases where Judges order depositions to be held in the courtrooms, depositions are often conducted in an attorney's office. A deposition requires that all questions be answered and be recorded by a court reporter, who creates a deposition transcript. Depositions can also be videotaped. At trial, deposition testimonies can be purged and used to cast doubt, impeach or corroborate a witness's testimony or to refresh the memory of a witness. Depositions may also be taken upon written interrogatories, where the questions are read to the witness and transcribed by the court reporter or an officer taking the deposition.
If a deposed witness is unavailable when the trial takes place, for example or if he or she has died or he is unavailable for whatever reasons, the deposition may be read to the jury or be tendered in evidence in place of live testimony.
The use of deposition ensures judicial economy as a deposed witness may be excused from appearing in court to testify. In addition, a deposition can be used to evaluate a party’s claim and if at the end of the deposition, the case does not appear to have any merits; the opposing party may file a motion for summary judgment or dismissal of the case. Conversely, a deposition that reveals very good cause of action and triable facts may expedite an early settlement of the case without the need for trial.
Other discovery methods that assist in quick and efficient dispensation of justice in the U.S include Interrogatories and Request for Production of Documents. Simply put, interrogatories are a set of questionnaires exchanged by the parties during the discovery process in order to get the facts and theory of the case.
Writing on Discovery procedure and the importance of Interrogatories and other discovery methods including Request for Production, Richard V. Westerhoff noted that “Written interrogatories are questions which must be answered in writing by the adversary under oath. While such interrogatories are a very important tool for discovery, the other party has time to formulate an answer with the assistance of counsel …… Requests for production permit an examination of documents and other physical things, such as, for instance, an examination of a machine or a process line, or the production of things for testing. Requests for admissions are statements of undisputed facts to which the other side is requested to agree. Each of these tools of discovery has its strengths and weaknesses, and should therefore be appropriately combined for the particular circumstances.”
According to the U. S Supreme Court, the purpose of modern discovery is to "make trial less a game of blind man's bluff and more a fair contest with basic issues and facts disclosed to the fullest practical extent." In short, it is to prevent trial by ambush which is one of the practices commonly adopted by many Nigerian lawyers. Surprise is one of the favorite tools in the arsenal of trial lawyers in Nigeria, a practice that has been discouraged by modern practice and procedure. By pulling a surprise in court through the production of a document not previously within the knowledge of the opposing party, the opposing party would request for adjournment in order for him to prepare a response, thereby prolonging the life of the case.
The use of alternative dispute resolution by parties to litigation in the U.S also helps to reduce Court dockets as millions of cases are resolved through this process. Both State and Federal Court Judges encourage parties to attend collaborative meetings for the purpose of resolving their differences through the use of skilled, neutral third party, the mediators. As a dispute resolution process, mediation has the advantages of being informal, confidential and more participatory. It proceeds more quickly than litigation, and often more economical as it requires less expense of time and money. The final agreement is not imposed upon the litigants; instead parties formulate it according to their own terms and conditions. Finally, it is not an adversarial process, so the parties have the potential to preserve their relationship once the process has concluded.
The court on its own motion, may refer the action or any issues therein to the ADR program or the court upon its own motion, or for good cause shown upon motion by a party, may order that an action that has been referred to the ADR program be withdrawn from the ADR program and be restored to the trial calendar.
If parties are unable to reach an agreement, the court is notified and the case is returned back to litigation. The Courts of Appeals also have Settlements Conference Departments whose responsibility is to ensure that cases on appeals are settled before the oral arguments. In recent times, courts have decided that they have the power to compel a party to mediate, even when they are unwilling.
Lastly but most significantly, is the difference in the appeal procedure. In Nigeria, litigants can pursue their cases as of right, to the Supreme Court provided they have the resources to do so. In the U.S, most cases terminate at the Court of Appeals. Since the Judiciary Act of 1925, most cases cannot be appealed to the U.S Supreme court as a matter of right. Therefore, a party who wants the Supreme Court to review a decision of a federal or state court must file a "petition for writ of certiorari" in the Supreme Court. The Supreme Court can refuse to take the case. In fact, the Supreme Court receives thousands of "Cert Petitions" per year, and denies all but about just about one hundred. "Review on writ of certiorari is not a matter of right, but a judicial discretion. According to Rule 10 of the U.S Supreme court Rules; petition for writ of certiorari will be granted only for compelling reasons." If the Supreme Court accepts the case, it grants a Writ of Certiorari but if it denies the Certiorari, the decision of the Court of Appeals is unaffected.
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Apart from the U.S Supreme Court, which has jurisdiction over the entire United States, most States have their own State Court of Appeals and Supreme Courts, which fasten the track of legal process.
As stated above, only about one hundred cases make it to the U.S Supreme Court yearly out of several thousands that are decided by the Courts of Appeals. Therefore, once a litigant loses on appeal; it is as good as finishing up with the case as the chances of getting the Supreme Court to review the Court of Appeals decision are very limited. Under this situation, cases are dispensed with more quickly and efficiently unlike if every litigant would have to go to the supreme Court as of right and wait for several years before they can be heard and several months before the Supreme Court can come up with its decision which in the final analysis, might end up affirming the lower Court’s decision.
It is a fact that public confidence in our judicial system is fast eroding due to the slow pace of dispensation of justice as result of the Nigerian legal practice and procedure. It is therefore, important that lawyers and those in the mainstream of administration of justice find legitimate solutions to these critical procedural problems with a view to putting in place a judiciary that is equipped with public confidence in order to give effect to the rule of law and enhance the quality of service to the public. Where there is right, there is remedy, but in the words of William Gladstone, “Justice delayed is Justice denied’.
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