Funmilayo Odude, Partner, Commercial and Energy Law Practice (CANDELP)

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Lessons from the Magodo mayhem 08 Feb 2022

In the first week of the year, policemen reportedly invaded Magodo Estate, a highbrow residential estate in Lagos State, at the behest of successful litigants in a land dispute that commenced 33 years ago. This was done in an alleged effort to enforce a Supreme Court judgment and led to lockdown of the gates of the estate for a couple of hours, and a showdown between the Governor of Lagos State and the Commissioner of Police in the state. As would be expected, a pandemonium attended the events.

The stand-off was resolved through high-level discussions, but the unspoken lesson that citizens may have learned is that it usually takes such ostentatious acts to be successful in demanding obedience to, and enforcement of, court judgments. This is a serious issue.

All parties in this particular show of shame had their roles in the mayhem, including the successful litigants and, of course, the police that aided their ‘enforcement’ demand. However, it is difficult not to sympathize with the frustrations that come with not enjoying the fruits of a successful judgment, especially if it has taken slow 33 years to obtain.

To get a better understanding of our discourse, it is important to provide a background of the case. In 1988, Adebayo Adeyiga and seven other persons filed a suit for themselves and on behalf of other members of the Shangisha Landlords Association against the Military Governor of Lagos State, the Attorney-General of the state, the Director of Town Planning and Land matters, the Land Use and Allocation Committee and one Samuel Olatunde Smith. Their grouse was the demolition of their houses and re-development on the land between June 1984 and May 1985, in what they believed to be a forceful take-over of their property.

However, the plaintiffs did not pray the court to declare the demolition or forceful take-over of their land as illegal and to, thus, reverse it; they instead sought a declaration that they were entitled to ‘first choice preferential treatment’ in the re-allocation of the land. They relied on meetings and representations by the state government that it would re-allocate land to them. The court, therefore, ordered the state government to allocate 549 plots of land to the successful plaintiffs in the Shangisha village scheme.

The Attorney General of Lagos State was, therefore, right in stating that the judgment sought to be enforced was not one that declared the Shangisha Landlords Association owners of the land. No such prayer was even before the court. It is, therefore, difficult to see what the attempted eviction of the current residents of the estate was all about. It was disingenuous of both the Shangisha Landlords Association and the Police, who ought to know the details of the judgment they were providing state force to implement, to have bombarded the estate in the manner they did. There was no clear portion of land declared by the court to belong to the association.

However, as stated earlier, the action seemed more like the desperate act of otherwise patient litigants in a broken judicial system. The stunt has ensured more movement by the state government in re-allocating land to the members of the association in less than a month, compared to 10 years since the Supreme Court had given its judgment bringing the litigation to an end. The question, therefore, is why it took the Lagos State Government 10 years and an embarrassing situation that could easily have degenerated into a worse crisis to give effect to a judgment of court.

Enforcement of court judgments remains a sore point in our judicial system. A litigant must not only patiently wait for the courts to hear and determine his case, possibly also waiting through a slow appellate process, but must also face another hurdle to enforce judgment granted in his favour. The courts ought to get more aggressive in ensuring that litigants are able to take full benefits of judgments in their favour without unnecessary procedural blockades or lack of adequate options for enforcement.

The Sheriff and Civil Process Act, the legislation that deals with enforcement of judgments and orders is a 1945 enactment; its ineffectiveness in today’s modern world is anything but surprising. The rules governing contempt, issuance of writs of FiFa, and other writs of attachment, need to be reviewed to make them more effective. Other modes of enforcement need to be included. It is a sorry state of affairs to spend 33 years to litigate a dispute, another 10 years to effect the judgment, and to be able to do that only after causing a ruckus.

An interesting aspect of the case many are unaware of, and which is a thorn in our court system, is retirement – and, in some cases, elevation – of judges before the conclusion of cases. This necessitates the re-hearing of part-heard cases before new judges, i.e., hearing de novo. This is one of the notable reasons for some inexcusable delays in the hearing of cases before courts of first instances, especially high courts. There are cases that have been at trial for one to three years due to a number of factors including the nature of the case, attitude of parties, frequent and spaced adjournments, and the retirement or elevation of the judge hearing the matter. Trials in such cases are started afresh before another judge, not minding how much time had been spent already. The injustice this fosters, no matter the outcome of the case, is unfortunate.

In the Shangisha Landlords Association case, when the matter came up before the High Court on the 20th of December 1993 (the case had been on for about five years at that time), the sitting judge made it clear to parties that he would retire from the bench on the 1st of January 1994. He, therefore, adjourned the case to 22nd, 23rd, 29th to 31st of December 1993. He delivered judgment on the 31st of December 1993.

The Lagos State government who failed to show up in the last few days of the case, while appealing the judgment, also raised the issue of having been denied fair hearing, the case having been heard during the court’s Christmas vacation, when supposedly there was no urgency. Both the Court of Appeal and Supreme Court dismissed their appeal. The appellate courts held that, since the state government had been given ample opportunity to ventilate its grievances but chose not to utilize same, it could not complain of a breach of fair hearing as what the court is expected to do by virtue of Section 36 of the 1999 Constitution is to provide a conducive atmosphere for parties to exercise their right to fair hearing.

I believe the Supreme Court was absolutely right when she said: “in a civil case, a balance has to be struck between the plaintiff’s right to have his case heard expeditiously and the defendant’s right to put across his defence to the plaintiff’s suit.” But why then are we still dealing with this issue of retirement of judges mid-trial 28 years later? Why do we not have a system that reduces trials before judges in the final few years to their retirement? Why do we not have recordings of trials that make a seamless transition of cases before judges possible, such that trials do not have to recommence from the beginning?

The nullification of the conviction of former governor of Abia State, Orji Uzor Kalu, by the Supreme Court is a good reference point on this issue. In June 2018, Justice Mohammed Idris who was hearing the charge as a Federal High Court Judge was elevated to the Court of Appeal. Following the provisions of Section 396(7) of the Administration of Criminal Justice Act (ACJA) that states: “a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a high court Judge, only for the purpose of concluding any partly heard criminal matter pending before him at the time of his elevation, and shall conclude the same within a reasonable time…”, he was granted a fiat by the then-President of the Court of Appeal to complete the trial and give judgment in the case. But his judgment – the conviction of Mr. Kalu – was nullified by the Supreme Court on the ground that he (the judge) lacked jurisdiction to hear the case as he lacked powers to preside over a matter at the Federal High Court, having been elevated to the Court of Appeal. The trial had begun in 2007.

It is truly shameful that we are yet to implement a solution for this.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).