A.        Procedural technicalities and delay in Court process         

            Procedural technicality

Procedural technicality is a major cankerworm bedeviling the administration of Justice in Nigeria. Procedural laws refer to rules that prescribe the steps for having a right or duty judicially enforced, as opposed to substantive law that defines specific rights or duties. It follows therefore that the dismissal of a case on the premise of failure of a party to follow a proper step for the judicial enforcement of his rights will amount to procedural technicality.

Conversely, substantial justice has been defined as Justice fairly administered according to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive rights; a fair trial on the merits.

From the above definition, one again sees that where cases are determined based on procedural errors, rather than on the substance of the suit, technical justice is at play.

It is to be noted that the Supreme Court has, over the years, taken a stance towards elevating substantial justice over technical justice. According to the Supreme Court, the days of sticking to technicality as oppose to substantial justice have gone by and there has been a shift from undue reliance on technicality to doing substantial justice between the parties. This position has been reiterated over the years in a number of appellate court judgments, not only in Nigeria, but indeed in other African states.

The former Chief Justice of Tanzania, on his address to the Tanzanian Bar in 2012 noted that:

“Procedural justice constitutes another imperative challenge to the system of administration of justice. It has a direct influence on justice delivery. Article 107A (1)(e) of the Constitution enjoins the Court to dispense justice without being tied up with undue procedural technicalities. We must deal away with antiquated, time-consuming (onerous) and redundant procedures. They serve no purpose. Substantive justice must be rendered without unwarranted or excessive procedures. Not every procedural requirement is essential or goes to the root of the cause or matter.”

Justice Hancox of the Kenyan Court of Appeal equally noted that: “the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the Court should not be too far bound and tied by the rules, which are intended as general rules of procedure, as to be compelled to do that which will cause injustice in the case of Githere v. Kimungu (1976-1985) EA 101.

Regardless of the constant holdings of our courts towards abolishing procedural technicality, one cannot but wonder whether the decisions handed down by our courts are truly in favour of substantial justice over procedural technicality. Can one say that Nigerian courts have shifted from the ear of strict adherence to substantial justice?

In HDP v. INEC 3-4 SC, 106, the facts leading to this appeal are that: a Presidential election petition was presented before the Court of Appeal as Court of first instance. In presenting the petition, the Petitioner described the 1st Respondent as – Independent Electoral Commission (INEC), omitting the word ‘National’. The 1st, 2nd and 4th Respondents filed a preliminary objection challenging the jurisdiction of the tribunal and praying for a dismissal of the petition on grounds, among others, that the 1st Respondent – Independent Electoral Commission (INEC) – is not a juristic person known to law. In its reserved Ruling, the Court of Appeal sustained the objection of the Respondents, by virtue of which the petition was held to be incompetent and therefore struck out. On subsequent appeal to the Supreme Court, one of the issues raised by the Appellant relates to the propriety of striking out the Appellant’s petition on technical grounds which include the omission of the word ‘National’ in the description of the 1st Respondent.

In the lead judgment delivered by Onnoghen, JSC, the Supreme Court held:

“It must be borne in mind that the facts demonstrate in no uncertain terms that the appellant intended to sue the Independent National Electoral Commission (INEC) instead of Independent Electoral Commission (INEC) particularly as the acronym INEC added to Independent Electoral Commission clearly demonstrates. It is in no doubt whatsoever that the said acronym INEC refers to no other body other than Independent National Electoral Commission which the court can under the provisions of section 74 of the Evidence Act, take judicial notice of. It should be noted that though election petitions are said to be sui generis they are concerned with the political rights and obligations of the people - particularly those who consider their rights injured by the electoral process and need to ventilate their grievances. Such people ought to be encouraged to do so with some latitude knowing that in the process of initiating proceedings to ventilate their grievances mistakes, such as those in the instant case may occur. Since the intention of the Electoral Act and other laws employed in litigation are geared towards ensuring that substantial justice is done to the parties at the expense of technicalities, any conclusion that tends to shut out an aggrieved party from the temple of justice by not hearing him on the merit ought not to be encouraged in the interest of peace and democracy

In his contributory judgment, Ogbuagu, JSC, added that:

“I find as a fact and hold that the court below, with respect, was too legalistic so to say, and rather in a hurry or too hasty, to get rid of the Petition in its entirety. It is a pity. Justice, must not be sacrificed on the alter or flimsy excuse or reliance on technicality which has been deprecated by this Court in some of its decided authorities”

From the above referenced case, it is clear that while the Presidential Election Petition Tribunal – the Court of Appeal – applied technical/procedural justice in striking out the Appellant’s petition, the Supreme Court has rightly upheld the principle of reliance on substantial justice, rather than technical irregularity.

B.        Delay in Court Process

In the words of the former British Statesman and Prime Minister in the late 1800’s, William E Gladstone, ‘justice delayed is justice denied’. All around the world, timeliness and delay in the administration of justice are generally measured by gauging the time taken for a dispute to progress from the commencement point of filing or referral to resolution. Arguably, delay in the speedy dispensation of justice is perhaps one of the reasons why some persons would avoid approaching the courts to present their cases. From the process of filing court processes, to preliminary objections, to appeal on interlocutory issues, to endless adjournments occasioned by ineptitude of counsel or unavailability of a judge, to delay tacts amongst legal practitioners, and subsequent appeals to the appellate courts, it is without a doubt that parties may spend several decades in ventilating their grievances in court. Most times, parties would die before their cases are concluded and while some cases may survive the parties, other simply abate upon the death of parties to it.

The delay in the administration of justice is one of the major factors which makes arbitration a better alternative– with parties having some measure of control over how proceedings are conducted, time frame, among others.

It is therefore imperative to put appropriate measures in place to ensure speedy dispensation of justice which will ultimately restore the faith of litigants in the court system.

To be continued…