There is a growing concern about the slow pace at which civil cases are resolved by the courts. Litigants and their counsel can cause delays by deliberately deploying dilatory and other unconventional tactics to derail (and ultimately delay) a case. The Civil Procedure Rules (CPR) of courts across Nigeria were developed to provide guardrails for the effective and efficient use of judicial resources. For example, the preamble of the Lagos State CPR states that its purpose is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimal expense.” The Lagos State CPR also empowers the court to “impose a sanction as to costs” if a party falls short of the expectation to proceed with a case expeditiously.
Courts can optimize the use of judicial time and resources for the timely resolution of civil cases in many ways:
A. Thorough scrutiny of applications for leave to issue and serve a writ on an overseas foreign defendant
There is no doubt that Nigerian courts can exercise jurisdiction over an overseas foreign defendant. However, the court’s jurisdiction over an overseas foreign defendant should be activated only where the party and/or dispute has a real connection with Nigeria. For example, the High Court of Lagos State (“HCL”) can exercise jurisdiction over real property situated in Lagos State regardless that the suit is against an overseas foreign defendant. Similarly, the HCL will have jurisdiction to entertain a breach of contract claim where the contract is made (or is to be performed) in Lagos State, or where the breach occurred in Lagos State. Establishing a connection with Lagos State is essential, and this connection should be demonstrated in the application for leave to issue and serve a writ on an overseas foreign defendant (“Application for Leave”).
Application(s) for Leave should not be granted as a matter of course. Thorough scrutiny of the application(s) is important because it presents the court with an early opportunity to determine the propriety of assuming jurisdiction over an overseas foreign defendant. An overseas foreign defendant who reasonably believes (and can demonstrate) that it ought not to be joined to a suit, will not hesitate to dispute the court’s jurisdiction, thereby causing significant delays to the adjudication of the substantive issue(s).
In practical terms, a thorough scrutiny of the Application for Leave requires a preliminary determination of certain questions. For example, in a breach of contract case involving a Nigerian company and its overseas parent company, such questions will include – (i) whether (and if yes, to what extent) the overseas parent company was involved in the performance of the contract, thus making it a necessary or proper party to the proceedings; and (ii) whether the overseas parent company can be held liable for the actions of its subsidiary in the absence of an agency or alter ego relationship or in view of the doctrine of corporate personality.
These inquiries will ensure that only proper parties are before the court. Also, as a principle, rulings on Application(s) for Leave should demonstrate why the court believes that it has jurisdiction over the overseas parent company, following consideration of relevant provisions of the CPR.
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B. Refusal of flimsy requests for adjournment
Courts have inherent powers to adjourn a case. They also have specific statutory powers to adjourn the hearing of any matter in appropriate circumstances. For example, under the Lagos State CPR, a judge is empowered to adjourn a trial for reasons of expediency or in the interest of justice. A judge also has discretionary powers to impose terms and conditions for such adjournment. Similar provisions are contained in the CPR of courts across Nigeria.
Application(s) for adjournment should not be granted as a matter of course. Indeed, exercising discretion to adjourn a matter should, as a foundational point, involve, a consideration of the overriding purpose of the CPR which, in the case of the HCL, is to facilitate, at minimal costs, the just and expeditious resolution of the real issues in dispute between parties.
In one recent example, a case was adjourned for trial. When the matter was called, the Claimant’s counsel informed the court that he would be unable to proceed with trial, because he had accompanied his mother to the hospital that morning and was not well disposed to conduct trial. Instructively, there was no suggestion that his mother was in a critical condition, or that his presence was required in the hospital. The court obliged the adjournment request notwithstanding the Defendant’s objection. The Defendant’s request for costs was also refused. Arguably, the above scenario does not justify the grant of an adjournment. In contrast, in the case of J v. A (2023) EWFC 132, the Defendant’s application for adjournment of the case for a period of four months, on the basis that he was “suffering from a serious heart condition”, was refused. In the court’s view, the alleged medical condition (which the court ultimately found to be exaggerated) was not sufficient to prevent the Defendant from participating in the case, which was to be held virtually. The court also noted that adjourning the matter for that length of time would be “fundamentally unfair”.
Decisions on applications for adjournment should also involve an assessment of the impact of the adjournment on court resources as well as other cases in the court’s docket. Gleeson CJ’s views in the case of State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 are instructive:
“the courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase in the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an ever-increasing responsibility on the part of judges to have regard, in controlling their lists and the cases that come before them, to the interests of the community, and of litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs”.
Chinedum Umeche, FCIArb, is a commercial litigation and arbitration expert, and a partner at Banwo & Ighodalo