On Whether It Is ‘illegal’to‘mobilize’court Bailiffs For Service Of Processes: A Suggestion For Better Justice Delivery

A news report publishedon www.thenigerialawyer.com , on Wednesday, 31 May 2017, came under the caption, “Judge Says Lawyers Mobilizing / Paying Bailiffs Are Giving Bribes a`nd It’s Criminal.”(see https://thenigerialawyer.com/judge-says-lawyers-mobilizing-paying-bailiffs-are-giving-bribes-and-its-criminal/) . The story had it that His Lordship, Hon Justice Mojisola Olatoregun of the Federal High Court, sitting in Lagos, had on Tuesday, 30 may 2017, warned lawyers and litigants against “paying” bailiffs to serve court processes on parties to a suit.His lordship was said to have observed that bailiffs were not supposed to charge extra fees from litigants in order to serve processes on parties.According to the news report, the judge had given this warning in reaction to a statement made in the courtroom on the same 30 May 2017. A lawyer who appeared before the judge in a certain case, had complained that the defendants were yet to be served with court processes, despite the fact that he, the lawyer, had “mobilized” the bailiffs. In response, the presiding judge asked the lawyer: “Did you say you mobilized them, how much did you give them let me know if it was enough?”The lawyer answered in the positivein reaction to which the Hon judge, visibly angry, threatened to order the lawyer’s arrest for offering a “bribe,” noting that “bailiffs were being paid [their] salaries and allowances to do their jobs and so, required no further mobilization.” Continuing, according to the news report, the judge declared thus:

“When you give a bribe, both of you [the giver and the taker] are liable. We will get the Chief Registrar. You will be handed over to the police for bribing a bailiff and you will explain how you have been bribing bailiffs. That is how you will be collecting money from Senior Advocates of Nigeria when you become a judge.’’

The story appeared under varying headlines in several other news platforms, including Lawyard, DNLlegalandstyle, Leadership Newspapers. In the Guardian Newspapers, the story came under the headline, “Offering court bailiffs money is bribe, judge tells lawyer” and can be accessed on https://guardian.ng/appointments/offering-court-bailiffs-money-is-bribe-judge-tells-lawyer/

Thenews report was greeted with a somewhat jubilantmood among legal practitionersand litigants across Nigeria. A News Agency of Nigeria (NAN) correspondent, who reportedly spoke to some lawyers on the issue was quoted as saying that “it is fast becoming a norm that bailiffs have to be ‘tipped’ or ‘mobilized’ if they are to deliver court processes on parties. Lawyers who refuse to settle them may have their files abandoned or not treated.”

I agree with the statement by the NAN reporter; practitioners and litigants are usually made to part with large sums of monies as mobilization fees for bailiffs, unfortunately after having paid to the Court Cashier or Cash Office for what is officially known as “payment for service,” or “money for service.”The practice is quite worrisome. It imposes a much higher burden on the litigant –the litigant that already has the following to contend with:payment of filing fees, payment of lawyer’s professional fees, payment of appearance fees to lawyers, among others.The lawyers themselves do not find it easy either, because the lawyersowe some duty of justificatory explanation towards their clients for coming back to clients to ask for more money for “service of processes” after the clients have earlier paid officially forthe same purpose, through the lawyers. Oftentimes, this continues for every and any process filed in the court, till the final determination of the case, and even up to enforcement of judgments, or in respect of applications pending appeal, and on appeal. It is therefore not surprising that a judge got and angry and, in the feat of his anger, labelled the practice illegal, an act of bribery.It is however crucial is to look into the provisions of some of our criminal law legislation on the meaning of the words, “bribery,” bribe,” and “corruption, in order to determine to what extent His Lordship’s declaration may be said to be correct and reasonably justifiable in the light of prevailing realities. This is what informed this paper. Additionally, this paper puts forward what the writer believes is a more realistic approach to the arduous but pertinent task of reforming extant practices and processes in service of court processes, as they relate to involvement of sheriff and bailiffs, with a view to accelerating trial of cases and refining the system of administration of justice in Nigeria.

Chapter 10 of the Criminal Law of Lagos State (2011), Laws of Lagos state, 2015 deals with the offences of “offering gratification to a public official,” “acceptance of gift by agents,” “extortion by public officers” etc. Section 67 of the Law describes a “public official’’ as “any person employed in the public service or any judicial officer or any public officer as defined in the Constitution of the Federal Republic of Nigeria.” By the combined effects of sections 63, 64, 65 and 68 of the Law, any public official who asks for, solicits, accepts, agrees, or attempts to receive or obtain directly or indirectly any property or benefit of any kind for himself or another person or entity or receives or obtains any property or benefit of any kind for himself or any other person or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person, on account of any past, present or future favour or dis-favour or omission shown to any person, by the such public officer in the discharge of his official duties or in relation to any matter connected with the functions, affairs or business of a Government department, public body or other organization or institution in which he is serving as a public official, is guilty of a felony and is liable to imprisonment for seven years. An offence is committed once it is established that the affected public official received, or demanded any such benefit, property or gratification. It is immaterial that the public official did not subsequently do, make or show the act, omission, favour or dis-favour in question or never intended to do, make or show it.

Similarly, it is an offence for any person tointentionally promise, offer, give or attempt to offer or give any property or benefit of any kind to a public official,directly or indirectly,for a public official himself/herself or for another person or entity, in order that the public official may act or refrain from acting in the exercise of his official duties.Further, it is an offence for any public official to take or accept from any person, any reward beyond his emoluments or any promise of such reward,for the performance of official’s duty.Other legislation containing provisions relating to corruption, undue gratification, unjust enrichment and abuse office by public officers include the Economic & Financial Crimes Act (EFCC Act), as amended; the Corrupt Practices and Related Offences Act 2000. 2000 Act No 5. Laws of the Federation of Nigeria (ICPC Act); Money Laundering (Prohibition) Act, 2011 (as amended), and so on. The Penal Code (Northern States) Federal Provisions Act, applicable to Northern Nigeria as well as the Criminal Code Law of the various state of the Federation also contain related provisions.

One thread that runs through the cited provisions of the Criminal Law of Lagos State, is that, for a public official (say, a bailiff of a court in Nigeria) to be guilty bribe-taking,the public official must have asked for, solicited, demanded, received or taken the said money, gratification, property or benefit for himself personally or for the personal benefit of some other person (public official) --- that is, for his personal benefit or for the benefit of that other. Accordingly, I humbly submit,the offence is not committed where the Bailiff merely takes money from a lawyer or litigant solely as transport fare for the service of a court process, and not for the bailiff`s personal benefit nor for the benefit of any other public officer. It would however be an offence for the bailiff to take or ask to be paid anything more than a reasonable sum for transport fare. If for example the transport money to and from the venue of service of court process is N3,000 and the bailiff accepts a sum of N3,000 from a lawyer or litigant as mobilization, it would be difficult to say the bailiff has taken the money for the bailiff`s personal benefit or for the benefit of any other public officer. That is the relevant issue (the exact purpose for which the money is asked for by the bailiff or paid or paid by the lawyer)because this, to my mind, is what determines whether or not the bailiff and the affected lawyer/litigant could validly be accused of bribery.The peculiar circumstances of each particular case would however determine criminal responsibility in this respect.

The next stage is to determine what extent the “warning” or “pronouncement” issued by his Lordship, Hon Justice Olatoregun of the Federal High Court would or could, if enforced, positively or negatively impact on the process of dispensation of justice in Nigeria.The test of the pudding is in the eating.The message Hon Justice Olatoregun haspassed across is clear: once a lawyer has filed his process and paid official fees (as assessed) for service ofthe relevant court process, it wouldbe inappropriate for the lawyer to thereafter give any money (however little or large) as mobilization to the bailiff of court, as a condition precedent to the service of the affected process. Good warning against a bad practice, one would say. However, with the greatest respect to His Lordship, the warning failed to address some fundamentalissues. Advocating an end to the current practice without first putting in place efficient machinery and mechanisms towards ensuringa smooth operation of the process, especially relating toefficient and timely discharge of the responsibilities and functions of court sheriffs and bailiffs in this respect, mightcreate serious complications for all concerned. I would attempt an illustration.

If Mr Efe (a legal practitioner)fileshis processes in the court registry on January 07, 2019 (a Monday)and officially paysthe Court Cashier on the same date,for service, for a matter coming up for hearing on Friday (January11, 2019, and service of the processes is required by law, to be effected, say, at least 2 (two) clear days before the date of hearing (January 11, 2019), when would the money Mr. Efe paid for service be made available to the bailiff for him to serve the process, since, in order to meet legal requirements, the process must unfailingly be served not later than Tuesday (January 08, 2019)? Would the Court’s Cash Office give the transport fare (money for service) to the bailiff before close of work on the same Monday (January 07, 2019), the same day the cashier receivedthe money, or very early the next day? How practicable is that, in a Nigeria? In our court?

Where, as a result only of delay in receiving the money, the bailiff fails to serve Mr. Efe’s processes on Tuesday (January 08, 2019), whobears the brunt? With due respect, His Lordship’s warningfailed to considerthis aspect. And that's a major problem, because unless and until the presiding judge (in the matter being handled byMr. Efe) is satisfied that service of relevant processes was effected not later than Tuesday (January 08, 2019) and that there isproof of service in the Court’s File, the case, set for hearing on 11 January 2019, is liable to suffer an adjournment; the court lacks adjudicatory jurisdiction where relevant processes are yet to be served affected parties.Justice delayed is justice denied.Such an adjournment (of the case)would foist further hardships on affected innocent litigants, who had expected an accelerated determination of their case. This is what encourages the widespread notion that the bailiff does not move until you move the bailiff. Sometimes, not always, the fault is not entirely that of the bailiff.

The next important question relates to the actual amount of money that is paid to the Cash Office for serviceof court processes? More often than not, the amount of money assessed and charged for service of processes is not even up to one-third of the actual cost of transportation to and from the place of service. So, even where the Cash Officepromptly makes the money available to the bailiff, the second question would immediately arise as to where one expects these usually poorly-paid bailiff to get the balance of the transport fare from!However, this question might not arise if the Court Registry subsidizes the money for service processes, from funds realized from other sources. But one must realize also that, in some cases, perhaps for some reasons relating to unavailability of the party to be served,the court bailiff may need to visit the venue more than once before he could actually serve the processes. It istherefore easy to see how difficult this is, especially forthe bailiff whoin such a case, is not expected to pay for fare with his saliva, and yet he is requiredto effect service timeously. Some hardships are imposed also on the Counsel/lawyer who is expected to take all reasonable but lawful steps in order to offer his client a purposeful, diligent and competent representation. Not least adversely affected are the innocent litigant (who had initiated the action in court, believing that his matter would be disposed of expeditiously, in the interest of justice) and the presiding judge (upon whom the National Judicial Counciland other regulatory or supervisory authorities and persons, including clients, lawyers and the public, look for a timeous and timely dispensation of justice, but whose hands are now tied owing solely to the non-service of relevant processes).What is more? Delayed adjudication is viewed negatively by a large section of the public whose reasonable expectation is that justice be done and be seen to done expeditiously and glaringly.

One could therefore appreciate that adopting His Lordship’s proposition aforesaid might lead to chaos unless urgent, credible and concrete steps are taken first to review upwards the amount of money usually charged and collected by court registries as MONEY FOR SERVICE with a view to bringing the same into conformity with prevailing economic realities in the country, and ensuring that those (especially the Cash Office) charged with the responsibility of collecting themoney would promptly make the same available to the bailiffs; and unless adequate, credible and transparent mechanisms or machinery are first put in place to ensure continuous supervision, transparent monitoring and timely compliance by all affected. We must face reality and stop erecting our castles in the air,as the acute idealist does.If a blanket, blind ban is imposed on the current practice without first putting forward a credible and workable alternative, the result would be total chaos in Nigeria’s justice delivery with its attendant ugly consequences.

As a workable alternative solution, I respectfully suggest that assessment and collectionof monies for serviceshould be immediately taken away fromthe Registrars and Cashiersand handed over to the sheriff/bailiff section, on the following grounds:

1. experience has shown that Registrars and Cashiershardly ever make these monies available to the sheriffs and bailiffs in a manner that ensures that the monies serve the purposes for which they’re collected;
2. the Registrars and Cashiers are not actually involved in service of court processes –they do notwear the shoes and as such do not know where the shoes pinch; and
3. let those who undertake actual serviceof court processes be the ones to assess and collect money for service.

When responsibility for collection of money for service is taken away from cashiers in this manner, the matter would become an issue entirely to be settled between the lawyer/litigant and the bailiff, in line with pre-determined standards, for a quicker service of processes. However, allowing the bailiffs alone to determine amount of money to be paid for service may encourage fears in some quarters,of corruption and corrupt enrichment on the part of the bailiffs. It is said that power corrupts and absolute power corrupts absolutely. Aremedy todispel such fears is to leave everything about payment for service in the hands of the sheriff or chief bailiff or the head of the bailiff section, so that after filing a process in the registry, the lawyer or litigant would take the same (copies for service, and address for service) before the head of the bailiff section who would assess and collect money for service. All payments to be properly receipted --- this is very important for accountability and transparency. Then there should be in place atransparent, verifiable standard for assessment, and the sum paid or collected should be subjected to periodic review, under the supervision of the Chief Judge or Chief Registrar or his duly authorized representatives, who shall ensure that the sheriff, chief bailiff or head of the bailiff section does not have any opportunity of abusing his power or of using this as an avenue to unduly exploit litigants or their lawyers.

Whenmoney for service is collected directly by the sheriff or head of the bailiff section, the responsibility would fall squarely on him (the sheriff or head of the bailiff section)to promptly disburse the funds as is necessary for set purposes. I foresee the following possible positive implications or benefits in leaving responsibility of assessing and collectingmoney for service entirely in the hands of the sheriff or the bailiff section, in the manner suggested above:

1. The sheriff or the bailiff sectionand its staff members would have no one but themselves to blame for any lapse that occurs on their part in respect of timely, timeous service of court processes assigned to them. As writer Stephen Covey once said, “accountability breeds response-ability.”With this in mind, they would be more practice and devoted to working harder on their work, to promptly deliver and meet the expectation of all stakeholders;
2. This would automatically reverse the current system which has left the court bailiffs constantly lamenting non-availability and delayed release of the monies paid to the Cash Office by litigants for serviceof processes, and almost always blame this for their letdowns and lapses in this wise.
3. The head of the bailiff section would get sanctioned for any lapses that occur. By the time the chief bailiff gets sanctioned or even removed from office for such lapses, appropriate lessons would have been learnt and administration of justice would be the better for that.

Respectfully,
Sylvester Udemezue (udems)
[email protected]