- May 11, 2019
- Posted by: Jeremiah Aimionsevbuse
- Category: Special Feature
It is no news that the High Court of Lagos State recently launched the High Court of Lagos State (Civil Procedure) Rules 2019 (“The New Rules”). Upon assumption of office as the Chief Judge of Lagos State, Hon. Justice Opeyemi Oke, pursuant to her powers under Section 274 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), had set up a committee to review the High Court of Lagos State (Civil Procedure) Rules 2012 (“2012 Rules”). The outcome of the review saw the birth of the New Rules and the ultimate end of the tenure of the 2012 Rules.
The New Rules which became effective from 31st January 2019 introduced a number of changes to the justice administration system in Lagos State as it concerns civil matters at the High Court. While this development has been commended, interestingly, it has also been greeted with criticisms and/or protests in some quarters for reasons which we shall discuss below. This paper seeks to highlight the changes introduced in the New Rules and discuss some compelling issues.
The Changes and the Problems
The New Rules is primarily aimed at the facilitation of total justice delivery by ensuring speedy dispensation of justice and the restoration of public confidence in the judicial system. This in line with its overriding objectives as stipulated under Order 2. Notable amongst the changes introduced (and the issues) are as follows:
i) Failure to front-load nullifies the action:
A party who commences an action vide a Writ of Summons is required by Order 5 Rule 1(2) to accompany the Writ with a Statement of Claim, Witness Statement on Oath, List of Witnesses, List of Documents, Copies of Documents to be relied on at the trial and a Certificate of Compliance with Pre-action Protocol as in Form 01. The same applies in the case of Originating Summons. See Order 5 Rule 5 (3)(4). Putting all these documents together in a single bundle for filing is what is known as “front-loading”.
The 2012 Rules empowered the Registrar to refuse a Writ or Summons were same is not accompanied with all the required processes. However, the 2012 Rules failed to address the issue as to what a judge should do where a party fails to front-load but the Registrar nonetheless accepted same and went ahead (albeit negligently or deliberately) with the filing and transmits the processes to the court. Should the courts consider it a mere irregularity or an omission capable of nullifying the action? Some authorities have treated it as a mere irregularity while others decided otherwise. Order 5 Rule 1 (3) [and Order 5 Rule 5(4)] of the New Rules appears to have now answered the question. It provides that failure to comply with the front-loading requirement nullifies the action. Also, Pre-action Protocol itself requires strict procedure and compliance, in addition to being mandatory. See Order 5 Rule 1 (3) and Order 5 Rule 5(4), read together with Order 2 Rule 1 and the New Practice Direction (No. 2) which was drawn pursuant to the New Rules.
It is submitted that a strict application of Order 5 Rule 1 (3) and Order 5 Rule 5(4) could lead to injustice. Non-compliance should be a mere irregularity not capable of nullifying the action but can be remedied. More importantly, the registry should be up and doing in ensuring that these processes are complete and in order before the filing process can be taken to have been effectively concluded.
More so, while the Rule on Pre-action Protocol is commendable for its attempt to encourage the resolution of disputes by means other than litigation and reduce ineptitude in legal practice to the barest minimum, it is however worthy of note that the draftsman of the New Rules failed to take into consideration the plight of litigants who would be at the receiving end. It must be quickly mentioned that the Pre-action Protocol procedure as stipulated in the Practice Direction is quite cumbersome and is capable of discouraging litigants. Aside this, where a litigant consults a legal practitioner with a view to obtaining justice and the legal practitioner either by reason of ineptitude or sheer inadvertence fails to file a Pre-action Protocol Form alongside the Writ, the litigant would by reason of Order 5 Rule 1 (3) and Order 5 Rule 5(4) be denied of access to justice. Although this denial might be termed temporal as the party can still refile the suit after ensuring due compliance, the attendant cost effect however remains a huge problem. The law is settled that the sin of counsel should not be visited on litigants. See Famfa Oil Ltd. v. A.G. Federation (2003) 9-10 SC 31. More so, the door is not totally shut. Any provision of the Rules of Court which appear not to meet the ends of justice can be struck down if challenged.
ii) Indorsement of telephone number and email addresses on Originating Processes:
Order 6 Rule 6 of the New Rules makes it mandatory for a litigant or legal practitioner who commences an action in the High Court of Lagos State to indorse his telephone number and email address on the Originating Processes. Given the advancement of information and communication technology (ICT), the New Rules is commended for keeping up with the technological age. This would make it easier for anyone who comes across with the Originating process to reach the litigant or his legal practitioner for any information or service of any process related to the suit.
It is however worthy of mention that in spite the advancement of ICT in our present day and time, there is still a high rate of ‘computer illiteracy’ amongst litigants and legal practitioners. There still exist a handful of legal practitioners and litigants who have failed to keep up with the technological age. The earlier they wake up, especially the lawyers, the better. ICT has come to stay.
iii) Introduction of electronic mail as an option for substituted service:
Where personal service of a process on the other party is not feasible, the law provides for a wide range of options a party can explore in order to effect service on that party through substituted means. The New Rules in Order 9 Rule 5 (1) makes it possible for a party to apply to the court for an order of substituted means vide electronic mail, that is, e-mail. This innovation by the New Rules is again commended for keeping in pace with the advancement of ICT. Perhaps, the New Rules could have gone a step further to make provisions for effecting primary/personal service vide electronic mails where it is established that the parties to the dispute are technologically inclined. It is our hope that other jurisdictions will borrow a leaf from this brilliant idea.
iv) Astronomical increase in default fee:
Order 11 Rule 5 of the New Rules increased the default fee for late appearance from N200 (under the 2012 Rules) to N1000. Also, Order 48 Rule 4 of the New Rules increases the penalty for a defaulting party in the same incredible fashion. This is similar to what obtains at the Federal High Court. The spirit behind this change is to checkmate tardiness amongst lawyers and ensure matters are dealt with expeditiously, bearing in mind the backlog of cases in the dockets of the courts.
However, this increase has been seriously condemned for depriving indigent members of the society from access to justice. This is one of the major reasons why the New Rules has often been greeted with heavy criticism. In fact, prior to the launch of the New Rules, some branches of the Nigerian Bar Association (NBA) took up a protest in opposition to the harsh and seemingly oppressive penal sanctions provided by the New Rules. Some are of the view that the move was more inspired by the quest to generate more revenue. While the issue was still pending, the Lagos State Judiciary proceeded with their arrangements to launch the New Rules, nonetheless. It is not clear how well the NBA was carried along in the whole process. The apparent disregard of the agitations is unwelcome.
It is not in doubt that delays/default in the prosecution or defence of a case could arise due to a number of reasons. The default could be borne out of circumstances beyond one’s control. A litigant who for one reason or the other could not pay the default fees would be left with no option than to lick his/her wounds. Such litigant would go home with the impression that the judicial system has played a fast one on him/her.
It is worthy of note that some legal practitioners take up some cases pro-bono and would not be willing to expend their hard-earned monies paying default fees in a matter they do not stand to benefit anything from.
v) Close of pleadings in absence of defence:
Pursuant to Order 17 Rule 18 (1) of the New Rules, pleadings shall be deemed closed where a defendant fails to file his defence within the forty-two (42) days prescribed by the Rules.
One reason for this provision appears to be an attempt to clear the way faster for a claimant where the defendant is not forthcoming. However, in view of the provisions of Order 11 Rule 5, the usefulness of the above provision is in doubt. All a defendant needs do to obviate the provisions of Order 17 Rule 18 (1) is to pay the default fee for late appearance and file his defence. This is same in cases where an application for judgment for default of pleadings is filed. It is submitted that Order 17 Rule 18 (1) of the New Rules is generally a needless addition.
vi) Alternative Dispute Resolution:
The New Rules, in line with its overriding objectives under Order 2, makes adequate provisions in Order 28 for Alternative Dispute Resolution (ADR) proceedings under the management of Judges designated as ADR Judges. The proceedings also cover applications for enforcement of arbitral awards. Order 28 rides on the wings of the provisions of Order 2 which empowers the courts to mandate parties to use an ADR mechanism where the court considers it appropriate.
Let us use this opportunity to mention that notwithstanding the intentions of the draftsman, the rationale behind empowering the court to mandate parties to adopt ADR leaves more to be desired. It is conceded that amicable settlement can happen at any time before the suit is filed, during the pendency of the suit and even after judgment. However, the court should at best encourage parties to submit themselves to an ADR mechanism where it is considered appropriate and should never be seen or understood to force parties to a dispute to settle or adopt an ADR mechanism where they are not inclined to do so. Voluntariness is the hallmark of ADR especially mediation. No matter the success currently being recorded at the Lagos Multi Door Couthouse for instance, this ought not to lead eliminate voluntariness.
vii) Time within which to define and file Issues:
Order 30 Rule 1 (1) of the New Rules enlarges the time within which issues of fact shall be defined, from 7 days (as was the position in the 2012 Rules) to 14 days after the close of pleadings.
It is respectfully submitted that the rationale for increasing the time from 7 days to 14 days is doubtful, bearing in mind that one of the aims of the New Rules is to enhance speedy and efficient disposition of cases.
viii) Fight against undue delay:
The New Rules in Order 34 empowers the courts to ensure that all cases before it are prosecuted diligently and expeditiously. Order 34 Rule 2 empowers the Judge to, at any stage of the proceedings, strike out a matter not being prosecuted diligently and the court may do so suo moto or upon application. Order 34 Rule 3 (3) places a duty on the court to strike out a case where no proceeding is held or application is filed for a period of twelve (12) months. In practice, the courts may even strike out such cases for a shorter period of inactivity for lack of diligent prosecution. Nevertheless, what is even more stunning is that the courts are now empowered to summon parties and/or their counsel to explain the reasons for the delay and thereafter make appropriate orders towards expediting the proceedings. This is a note of warning to all counsel. What orders the courts may make to expedite proceedings may include report to some quarters.
ix) Written Addresses:
Order 35 Rule 3 (3) makes it mandatory for a Written Address of any party not to exceed twenty (20) pages and a Reply on Points of Law not to exceed five (5) pages, except with the leave of court.
This new introduction is commendable for its attempt to rid the court of unnecessary paperwork. Lawyers must learn to be more concise and apt in the presentation of their points. For this purpose, it will not be out of place to attend courses on Brief Writing Masterclass by The Write House.
It is the hope of this writer that the Rules would evolve to the stage where the court would fully harness the potentials of information technology to the extent that all a counsel who wants to file written addresses would do is to send same to the court’s email address and there would be no need for paperwork. It is however conceded that same would require training of the court’s officials and the provision of the needed facilities. Some Judges of the Federal High Court, Lagos Judicial Division, have however adjusted to this method by requesting counsel to furnish the court with soft copies of their written addresses.
Lagos State has again blazed the trail with the introduction of the New Rules. The foresight of the current Chief Judge is commended for her attempts at ensuring an efficient and effective system of justice administration in Lagos State. While the New Rules attempts to ensure speedy and efficient resolution of cases, it is expected that the courts should also try more to ensure that cases are heard as scheduled and reduce incidences of adjournments at the instance of the courts. It is the hope of this writer that at the appropriate time, some of the points made in this piece would be considered during subsequent reviews.
The New Rules is available for download from Lawyard.