AFFIDAVIT OF NON-MULTIPLICITY OF ACTIONS TO BE FILED EVEN IN CASES COMMENCED BEFORE THE NEW FHC RULES 2019

Introduction

The Federal High Court (Civil Procedure) Rules 2019 (“The FHC Rules 2019” or “The New Rules”) came into effect on 10th of May, 2019. One of the interesting introductions made by the New Rules is the requirement of filing an affidavit of non-multiplicity of action on the same subject matter (“The Affidavit”). This is as contained in Order 3 Rule 3(1)(f) and O. 3 Rule 9(1)(d) which includes the Affidavit as one of the documents to be frontloaded together with a Writ of Summons and Originating Summons at the commencement of any civil proceeding before the Federal High Court. The rationale behind the introduction of this new requirement is not far-fetched. There is the urgent need to discourage abuse of court process by those responsible for “forum shopping”. Duplication of actions before several courts will undoubtedly lead to confusion as there is the possibility of two different courts giving conflicting decisions over the same subject matter. By deposing to the Affidavit, the plaintiff stands bound by oath not to mislead the court or engage in abuse of court process by filing multiple actions. Failure to abide by the oath means the plaintiff may be liable for perjury in the event that it turns out that there is a previous action filed on the same subject matter by the plaintiff.

Thus, there is no doubt that the introduction of the Affidavit is a welcome development. Hon. Justice Kafarati CJ (Rtd) is commended for this. The only question that arises is with respect to cases already pending before the court. That is, cases filed before the coming into effect of the New Rules. Are the plaintiffs in these cases required to comply with the New Rules by deposing to the Affidavit?

What the New Rules says

The New Rules seems to have provided some guide. First, it must be mentioned that Order 1 Rule 3(1) provides that the New Rules shall not apply to part-heard matters. Part-heard matters are matters in which trial or hearing has commenced but not yet concluded. Thus, one might be tempted to conclude that if a matter is part-heard, the New Rules will not apply including the Rule on affidavit of non-multiplicity of action. However, Order 1 Rule 3(2) and (3) contains further interesting provisions. The former provides that “Where an action is filed and no further step is taken other than the filing, other subsequent procedure shall be under this Rule.” This provision tends to suggest that where a case was filed before the New Rules and nothing else had been done aside the mere filing, then any further step must be in compliance with the New Rules. Such further step should reasonably not include filing an affidavit of non-multiplicity of action as the same is required at the time of filing and does not qualify as a “subsequent procedure”.

But there comes Order 1 Rule 3(3) which provides as follows:

In any other case where a cause or matter is pending, the Court shall give such direction as may be necessary or expedient to ensure conformity with the requirement of these Rules.

The above provision donates wide discretion on the Court to determine when it may insist on compliance with the New Rules. This wide discretion affects all pending matters. Every matter filed before the Court and which has not been determined and judgment delivered may be reasonably considered as pending. The implication of this is that the court may order or direct a plaintiff to file an affidavit of non-multiplicity of actions at any time during the life of the suit.

FHC Ruling of 16th January 2020

In Suit No. FHC/ABJ/CS/980/2019: Obono-Obla v. ICPC, the Federal High Court sitting in Abuja, per Maha J. ruled on 16th January 2020 that the Plaintiff in the suit must comply with the filing of the affidavit of non-multiplicity of action on the same subject matter, notwithstanding that the matter was filed before the commencement of the New Rules. The Court appears to be drawing strength from the wide discretion donated by Order 1 Rule 3(3). Her Ladyship however did not allow the non-deposition to the Affidavit at the time to truncate the hearing of the Originating Summons scheduled for the same day as the Plaintiff’s Counsel undertook to ensure that the Plaintiff deposes to the same within the next 14 days as directed by the Court.

It is on this score that it may be argued that failure to comply with the filing of the Affidavit cannot reasonably be held to nullify the action. It is a mere irregularity that can be regularised.

Conclusion

It is within the powers of the Court to direct that an affidavit of non-multiplicity of action on the same subject matter should be deposed to even in cases filed before the commencement of the New Rules. Counsel should endeavour to take the necessary steps to ensure that the plaintiff in a given case should proceed to depose to the Affidavit irrespective of when the matter was filed and without waiting for the Court to so direct.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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