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Comments On The New High Court Of Lagos State Civil Procedure Rules 2019

INTRODUCTION         

In line with the goal of the Lagos State Judicial System of ensuring speedy dispensation of justice among other noble objectives, the Chief Judge of Lagos State in exercise of its power made the High Court of Lagos State (Civil Procedure) Rules 2019 (the “New Rules”). This development is pursuant to S. 274 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and S. 89 (1) of the High Court Law of Lagos State CAP H5, Laws of Lagos State, 2015. In addition, the Chief Judge issued two practice directions on expeditious disposal of civil cases. The first, on “backlog elimination program” and the second, on “pre-action protocol”. The practice directions are expected to eliminate the persistent clogs plaguing the state’s judicial system, improve efficiency, and ensure timely delivery of justice.

This paper examines the innovative provisions made in the New Rules as well as how such will help in shaping an efficient and effective rule-of-law-driven environment. This will be examined vis-à-vis the provisions of the High Court of Lagos State (Civil Procedure) Rules 2012 (the “Old Rules”).

NOTABLE AMENDMENTS

Effect of Not Accompanying Originating Process with Required Documents

Order 5 Rule 2 of the New Rules provides that all civil proceedings commenced by Writ of Summons shall be accompanied by a list as well as copies of statement of claim; list of witnesses to be called; written statements on oaths of witnesses (with the exception of witnesses on subpoena); documents to be relied on; and pre-action protocol form 01 with necessary documents.

Order 5 Rule 3 went further to provide that in the event the above is not complied with, the action will be nullified. This wording is a bit different from Order 3 Rule 2(2) of the Old Rules which provided that, in the event of non-compliance with the frontloading requirement, the originating process shall not be accepted for filing by the Registry.

Order 5 Rule 3 of the New Rules seems to have the same effect as Order 3 Rule 2(2) of the Old Rules. However, the difference in the two provisions is that the Old Rules placed a responsibility on the Registry not to accept the defective processes for filing. It did not state what would happen should the Registry by inadvertence or any means accept the processes for filing. The new Rules went a step further in enforcing frontloading by providing for the nullification of any suit filed without the listed accompanying processes.

Also, considering Order 3 Rule 1 of the New Rules which extends the application of the New Rules to part-heard causes and matters, the nullification provision in the New Rules also evinces an intention that a part-heard matter which might not have complied with the old Rules at the time of filing but was accepted for filing would meet nullification under the New Rules.

Inclusion of Electronic Mail as option for Substituted Service

Order 9 Rule 5 of the New Rules provides for the use of electronic mail as one of the options for substituted service of an originating process. Normally, an originating process is required to be served personally, but in the event that such is not possible then an application is made to court to allow for substituted service (which can be by various means ranging from newspaper publication to pasting of the process on the known or last known address of the person or pasting on the court premises). The New Rules provides for the inclusion of service by mail as a form of substituted service. This was missing in the Old Rules as seen in 0rder 7 Rule 5 of the Old Rule.

This innovation makes it easier especially where the location of persons concerned cannot be accessed or the defendant is deliberately evading service. Thus the issue of difficulty of service hindering access to justice has been significantly ameliorated.

The Inclusion of the Email Address of a legal practitioner representing a defendant

Order 11 Rule 2(2) of the New Rules provides that where the defendant is being represented by a legal practitioner, the legal practitioner shall state in the Memorandum of Appearance, his full names, chamber’s address within Lagos State. Telephone numbers and E-mail address. It went further to provide in Order 11 Rule 2(3) that where such a legal practitioner is an agent of another legal practitioner, then the details of the principal legal practitioner inclusive of his E-mail address shall also be included in the Memorandum of Appearance.

This is an innovation of the New Rules as opposed to Order 9 Rule 2(2) of the Old Rules which does not require for the e-mail address of the legal practitioner. A vital essence of the requirement to use the e-mail address of the principal legal practitioner on court processes especially originating and defence processes is that employee lawyers and even partners in law firms have no permanent stay in the firms. Thus a suit may outstay the lawyer originally handling it, and so permanent contact is guaranteed with the e-mail address of the principal legal practitioner.

Increase In Default Fee for Late Appearance by Defendant

Order 11 Rule (5) of the New Rules provides for a fee of One Thousand Naira (₦1000.00) for each day of default. Thus failure to file a response process, for instance where a defendant fails to enter appearance after the time prescribed for entry of appearance in the originating process now attracts a much higher monetary penalty. By this provision, the fee for default has been increased by four hundred percent (400%) i.e. from ₦200.00 as provided for in Order 9 Rule 5 of the Old Rule.

Increase in Cost for Requesting For Unnecessary Documents

Order 21 Rule 5 of the New Rules increases the cost to be borne by a party who cause notice to admit or produce a document which is not necessary. The judge may order the party giving the notice to bear the cost occasioned by same. This shall not be less than Ten Thousand Naira ₦10,000.00 as against the minimum threshold of Five Thousand Naira (₦5,000.00) provided for in Order 19 Rule 5 of the Old Rules. This seeks to curtail unnecessary hardship being put on the other party.

Increase In Default Fee for Not Amending Processes within Time As Ordered By the Court

Order 26 Rule 4 provides for default fee of One Thousand Naira (₦1, 000.00) for each day of default for failure to amend processes within the time prescribed by the Court. This is in contrast to the default fees of Two Hundred Naira (₦200.000) stated in the Order 24 Rule 4 of the Old Rules. That is when a party obtains an order of court to amend his/her processes but fails to within the time specified in the order or within 7 days from the date of the Order (where no specific timeline is given in the order), there shall be a default fee of One Thousand Naira (₦1, 000.00) for each day of default.

This seeks to eliminate the unnecessary delays occasioned by such defaults thereby leading to a longer period within which matters are concluded. With this new increase, erring parties will sit up and ensure the needful is carried out promptly.

Increase of Default Fee for Not Carrying Out Court Orders within Time Prescribed For It

Equally, Order 48 Rule 4 of the New Rules also increases the default fee to One Thousand Naira (₦1,000.00) for each day of default in not performing an act within the time as authorised by the Judge or as provided for under the New Rules.

Increase in Timeline for Filing Issues of Facts by Parties

Order 30 Rule 1(1) of the New Rules increases the number of days within which to file issues of fact from Seven (7) days to fourteen (14) days. After close of pleadings by parties, the parties are required to define/settle the issues of facts in dispute. This must be filed within fourteen (14) days as opposed to the seven (7) provided for under Order 27 Rule 1 of the Old Rules. This allows for more time for parties to better define the facts in issue.

Brevity of Written Addresses

The New Rules now limits the volume of a written address to twenty (20) pages and a Reply on point of Law to five (5) pages. See Order 35 Rule 3(3). This was absent in the Old Rules. This page stipulation seeks to curtail unnecessary submissions and verbosity that only wastes the precious time of the court.  Key arguments and salient points shall rather be summarized succinctly to ensure an easy task for the presiding judge to make informed judgment timeously.

Automatic Qualification of Cases involving Liquidated Monetary Relief of One Hundred Million Naira (₦100,000,000) and above for Fast Track Procedure

Order 59(2) of the New Rules stipulates that a suit will be automatically qualified (without any application) for fast track procedure where the action is commenced by a writ of summons and is for a liquidated monetary relief of One Hundred Million Naira (₦100,000,000) and above.

The Old Rules i.e. Order 56 Rule provided for an application to be made to the Registrar before he can mark such an action for fast track procedure. This is no longer required under the New Rules.

Reduction in Days within Which a Defendant Must File His/her Defence and Other Frontloaded Processes In a Fast Track Procedure

The New Rules amends the Old Rules by reducing the time from forty-two (42) days to thirty (30) days within which the defendant has to file his/her statement of defence as well other frontloaded processes in a fast track procedure, Order 59 Rule 5(1). This is against the provision of the Old Rules Order 56 Rule 5(1) which provided for 42 days. This makes it more feasible for the court to entertain and conclude the matter within the nine (9) months period as aimed by the Rules.

NEW ADDITIONS INTRODUCED IN THE NEW RULES

Overriding Objectives

The New Rules introduces a new order i.e. Order 2 which succinctly states the overriding objectives of the New Rules, a provision absent in the Old Rules.

Some of these objectives include the following:

·         To deal with every civil proceeding in ways that are proportionate, considering the nature and importance of the case, complexity of the issues, the amount of money involved and the financial position of each party.

·         Allocating the court resources to cover all cases before the court i.e. no case will be left unattended to.

·         Mandating the parties to use an Alternative Dispute Resolution (ADR) mechanism where the court considers it appropriate. This simply means that the court recognizes that there would be instances where ADR would not be appropriate.

·         Requiring the claimant and his legal practitioner to comply with the requirement of the Pre-Action Protocol. This requires parties involved to exhaust all possible legal medium of resolving the issues before resorting to court as the last medium. This must be shown to the court.

This was concluded by empowering the court with the capability to impose appropriate sanctions where a party does not comply with the provisions of the New Rules or an Order of the Court.

Introduction of Alternative Dispute Resolution (ADR)

Order 28 introduces a new Order with respect to Alternative Dispute Resolution. The rule sanctions the referral of suits screened suitable for ADR to the Lagos State Multi-Door Court House or other appropriate ADR Institution or Practitioner.

There are some disputes such as simple civil matters which does not require the long procedure of the court, but can rather be amicably resolved through ADR. Parties can either suggest to the court to try ADR, or the judge can screen such cases and direct such to ADR according to the facts of the case.

An arbitral award can then be enforced in the court by an application for enforcement through originating summons, pursuant to Order 28 Rule 3. Alternatively, an award made by an arbitrator or a decision reached at the Multi-Door Court-House maybe enforced by leave of a Judge in the same manner as a Judgment or Order of Court.

In the event that the matter is not resolved by ADR, the ADR judge shall issue a status report and the matter shall be remitted for assignment to a trial judge. Order 28 Rule 5. This is an insightful innovation as it recognizes the global shift from court to ADR with respect to civil matters. It tends to save time, cost and maintain healthy relationship between parties and also businesses in the state.

Inclusion of the Power of the Court to Strike out Matters for Want of Diligent Prosecution

Order 34 empowers a judge to suo motuo or upon application strike out a matter not being prosecuted diligently. Where there are unnecessary delays, it is within the power of the court to make such orders with regard to expediting the proceedings, in line with Order 34 Rule 3(1).

The Order went further to provide that when no proceeding or application is filed in a case for a period of twelve (12) months, the court shall strike out the case. This is precisely in Order 34 Rule 3(3).

Introduction of the Proceedings in Probate and Administration Actions

Order 64 provides for the procedure of suits in respect of Probate or Letters of Administration. This will also be subject to the same Rules of Procedure as suits in respect of civil claims i.e. the New Rules. It allows for the service of writ of summons outside Nigeria, but it must be by leave of a Judge, as provided in Order 64 Rule 3.

This also provides that an application for leave to swear to the death of a person in whose Estate a Grant is sought can be made to the court. The application must be supported by an Affidavit setting out the grounds of the application and other key particulars, Order 64 Rule 18. In the interpretation section, it defines Will to include Codicil and any Testamentary Document or copy or reconstruction of it, Order 64 Rule 23.

CONCLUSION

From the above it can be seen that the Lagos State Judicial System is striving hard to ensure that the applicable rules is in line with best business practices as it aims at ensuring the promptness in the dispensation and resolution of disputes. This will basically increase the influx of domestic and foreign investors into the State due to the adaptable Judicial System (a system one can easily relate to) being remodelled in line with international best practices. Strict adherence to the Rules however remains a responsibility of the bar and the bench.

REFERENCES

The High Court of Lagos State (Civil Procedure) Rules 2019

The High Court of Lagos State (Civil Procedure) Rules 2012

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