Famsville Solicitors

The High Court of Lagos State (civil procedure) Rules 2019 – a step to improving the administration of justice?

Introduction

Pursuant to Section 274 of the 1999 Constitution of the Federal Republic of Nigeria and Section 89 (1) of the High Court Law of Lagos State CAP H5, Laws of Lagos State, 2015, the Chief Judge of Lagos State is empowered to make rules concerning the administration of the civil justice system.  Recently, the Chief Judge of Lagos State in exercise of this power made the High Court of Lagos State (Civil Procedure) Rules 2019 (the “New Rules”). In addition, the Chief Judge also issued two practice directions on expeditious disposal of civil cases. The first, on backlog elimination program and the second, on pre-action protocol procedure. The practice directions are expected to eliminate the incessant clogs plaguing the state’s judiciary, improve efficiency and ensure timely delivery of justice.

This article seeks to analyze the amendments made and innovations introduced by the new rules and the implication of such amendments to the administration of justice.

Additions and Amendments to the Civil Procedure Rules by the High Court of Lagos State (Civil Procedure) Rules 2019

  • Order 5 Rule 1(3) and Order 5 Rule 5 (4) stipulates that the failure to accompany Originating Processes with accompanying documents as stipulated in the New Rules renders an action a nullity.
  • Order 9 Rule 5 provides for the use of electronic mail as one of the options for substituted service of an originating process.
  • Order 11 Rule 2(2) of the New Rules provides that the defendant when entering appearance should also provide his email address along with other information required. This is an innovation of the New Rules.
  • Order 11 Rule (5) of the new Rules also provides for a fee of One Thousand Naira (N1000.00) for each day of default where a defendant fails to enter appearance after the time prescribed in the originating process. This means that the fee for default have been increased by 400 percent. Although, the intent of the increase is to dissuade lawyers from being absent in court, it appears punitive.
  • Order 21 Rule 5 of the New Rules increases the cost to be bore by a party who requires a document which is not necessary from the opposing party from Five Thousand Naira (5,000.00) to Ten Thousand Naira (10,000.00).
  • 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 2012 High Court Rules.
  • Order 28 introduces an 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. This rule is clearly in line with the objective of the Lagos State Judiciary to resolve disputes swiftly, however, mandating ADR attendance under the 2019 Rules seems to ignore the rights of parties to choose the mode of dispute resolution.
  • Order 28 Rule 1 and 3(2) of the New Rules provide that cases in respect of application for enforcement of Arbitral Awards should be brought by Originating Motion.
  • 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.
  • Order 34 empowers a judge to suo moto or upon application strike out a matter not being prosecuted diligently. The rules further states that where a matter is pending in court and no proceeding is held or application filed in the case for a period of twelve (12) months, the Court shall strike out the matter.
  • The New Rules, pursuant to Order 35 Rule 3 (3) and (4) provides that a Written Address shall not exceed twenty (20) pages and Reply on point of Law shall not exceed five (5) pages.
  • Order 48 Rule 4 of the New Rules increases the default fees to One Thousand Naira (N1,000) for each day of default at the time of compliance as against Two Hundred Naira (N200).
  • 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). An action commenced by a writ of summons that involves a mortgage transaction, charge or security will also be automatically qualified.
  • Order 59 Rule 5(1) of the New Rules reduces the number of days within which a defendant can file his Statement of Defence and other Frontloaded document in a fast track matter from forty-two (42) day to thirty (30) days.

The Introduction of the Expeditious Disposal of Civil Cases Practice Direction (Backlog Elimination Programme (BEP) and (Pre Action Protocol).

The Chief Judge of Lagos State introduced the Expeditious Disposal of Civil Cases Practice Direction. The Practice direction (“Expeditious Disposal Practice Direction (BEP)”) provides that cases pending in court and undecided for 5 years be designated as “backlogs” and referred for resolution to a “Special Backlog Conference Judge”. Where a party fails to respond to the notice from the Special Backlog Conference Judge’s Registrar within fourteen (14) days, such matter shall be struck out for want of diligent prosecution.

The Expeditious Disposal Practice Direction (BEP) provides for a commendable innovation of “Document Only Procedure” which would entail that once notices have been sent to the claimant and the claimant files an application to set down the matter for trial in accordance with the practice direction, the claimant and the defendant can decide whether they want the trial to be a “document only” trial.

A document only trial will entail that the admission of statement on oath as evidence in chief and parties would dispense with cross-examination of witnesses. All documents listed on the list of document would admitted by the parties. This is clearly commendable. Dispensing with cross-examination would help reduce the time spent on cases. However, whether lawyers would agree to dispense with cross examination considering the importance of cross examination in a proceeding is what is left to be seen. More particularly, where a lawyer believes that his case can be resolved by only documents, such lawyer would initially have opted to file an Originating Summons rather than a writ of summons.

Furthermore, the Expeditious Disposal Practice Direction (BEP) provides that parties in backlog cases are expected to file “Joint Trial Plan” proposing consecutive trial dates. Failure to comply with such procedural timetable would attract the cost of N50, 000 per default and other others as stated in the practice direction.

The Expeditious Disposal Practice Direction (BEP) also encourages ADR and provides that where a court finds that a matter is capable of being resolved in ADR but the Defendant fails to participate, the court may order the cost of not less than N250, 000 at the end of the case.

Failure to appear on a return date, the court in the case of the claimant may strike out such suit and in the case of the defendant enter default judgement. In the event that any of the party applies for the action to be reactivated (relisting in the case of claimant and setting aside default judgement in the case of the defendant), the court shall order cost of N100,000.

The Expeditious Disposal of Civil Cases Practice Direction (Pre-Action Protocol) (“Expeditious Disposal Practice Direction (Pre Action Protocol”) requires that parties take additional steps to resolving disputes amicably before approaching the court. The Expeditious Disposal Practice Direction (Pre-Action Protocol requires parties to attach documents evidencing such attempts to the Pre-Action Protocol Form 01. Although the 2012 High Court Rules requires that pre Action Protocol be complied with, the Expeditious Disposal Practice Direction (Pre-Action Protocol) put the obligation on both the claimant and the defendant.

More interestingly, the Expeditious Disposal Practice Direction (Pre-Action Protocol) neatly provides a breakdown of expected contents in the Letter of Claim for Mortgagee, Defamation, Land Matters, Recovery of Debts and Recovery of Premises.

Under the new practice direction the claimant is mandated to file a memorandum of claim and the respondent is afforded 7 (seven) days to respond it. In the old Rules, only the claimant is expected to file the Pre-Action Protocol. The Expeditious Disposal Practice Direction (Pre-Action Protocol) also provides for guidelines for the defendant’s response.

Conclusion

The attainment of justice represents one of the enduring promises of constitutional democracy. Delay in the dispensation of justice is perceived as inimical to the attainment of substantial justice. However, the balance between delayed justice and hurried justice remains the cornerstone of any civilized legal system. The overall objective of the court is a just and timely determination of every case that comes before the court.

The New Rules appear to deal with the issue of delayed justice and takes preliminary steps to introduce the use of technology to our rules by allowing service to be effected by electronic emails. However, it would have been desirable for the New Rules to introduce a system where lawyers can file electronically from anywhere in the world and also allow electronic discovery.

Although the increase of default fees appears to be punitive and burdensome, overall, the New Rules is a step in the right direction in the effective administration of justice.

Authors:

Damilola Osinuga

Akinbobola Adeniyi

Blessing Adepoju

DOCUMENT RETRIEVAL SERVICES IN NIGERIA  

Background

It is a common phenomenon for individuals and corporate entities to require documents from statutory agencies for various reasons. This could be due to loss or destruction of document, or may be required as part of due diligence or investigation procedure in the course of completing a commercial transaction or routine business operation.

Generally, these undertakings include search or production of copies of Court records, public or government owned registry, regulatory authorities, various land bureaus and registry, government ministries, department and agencies or public libraries. The nature of the document under review largely determines where to look. Our document retrieval practice group has countrywide presence and cognate experience in delivering timely and efficient services to our clients. We have been providing litigation support services to financial institutions, private investigation firms, hedge funds and private equity firms across Nigeria. These services include retrieval of any document from any court, government agencies and court reporting services. Beyond the retrieval process, we equally provide document authentication and legalisation services for deserving documents at the embassy and requisite government ministry and agency.

Our clients find our services to be indispensable when dealing with foreclosure review, modification of mortgages, due diligence, claims review and creation of assignments and release of mortgage.

Our document retrieval services include providing support for the following:

  • Obtaining Certified True Copies of Certificate of incorporation and other incorporation documents;
  • Obtaining Certified True Copies of court judgements, records and processes;
  • Obtaining Certified True Copies of mortgage documents;
  • Obtaining Certified True Copies of land related documents;
  • Conducting searches and background checks;
  • Obtaining Certified True Copies from government agencies;
  • Government relations.

Famsville document retrieval services provides client with real time help. Our goal is to free our client from the frustration of dealing with a multitude of government agencies and registries. A fast, cost-effective retrieval plan is our cardinal objective.

Woye Famojuro – woye.famojuro@famsvillesolicitors.com

Linkedin

For further information on this topic please contact Woye Famojuro at Famsville Solicitors by telephone (+234 80 7789 9821) or email woye.famojuro@famsvillesolicitors.com. Kindly visit Famsville Solicitors at www.famsvillelaw.com or our Linkedin page.

FIRS lacks the powers to impose turnover assessment on the value of properties

In the recently decided case of Theodak Nigeria Limited (Theodak) v. Federal Inland Revenue Service, the Federal High Court held that the Federal Inland Revenue Service (FIRS) acted ultravires the powers granted to it by the Companies Income Tax (CIT) Act by imposing a turnover assessment on Theodak relying on the value of its property. FIRS argued that Section 65 of CITA vested it with powers to exercise Best of Judgment (BOJ) assessment and its move to subject 20% of the value of Theodak Plaza was a “Best of Judgment Assessment” since Theodak failed to file returns for 2015. FIRS also argued that the action before the court was incompetent as Theodak failed to object to the assessment within 30 days, making the assessment final and conclusive.

The Federal High Court held that the FIRS lacks the powers to impose turnover assessments on the properties of taxpayers even when such taxpayers have failed to file their Annual returns except such company is in the business of selling property and fails to file its annual returns. The Federal High Court sitting at Abuja also held that the wording of Section 69(1) CITA “If anybody disputes the assessment, it may apply to the board by notice of objection in writing…” is to the effect that application to the Board is not mandatory but discretionary.

ENFORCEMENT OF SHIP MORTGAGE UNDER NIGERIAN LAW

Mortgaging a ship is a form of security wherein a ship owner (“Mortgagor”) gives to the lender (“Mortgagor”) an interest in a ship as a security for loan either by way of creating a statutory mortgage or a equity mortgage. The mortgage is consequently discharged upon payment of the principal sum and usually the interest.

Section 54 of the Nigerian Merchant Shipping Act 2007 (“MSA”) allows a vessel or a share in a vessel to be made a security for a loan or other valuable consideration. Upon entering a mortgage agreement, the mortgage may be registered at the Nigerian Ship Registry. One of the benefits of registering the instrument creating the mortgage at the ship registry is that, it takes priority over unregistered mortgage deeds. Where the Mortgagor is a corporate body, a charge may be registered at the Corporate Affairs Commission.

Section 57 of the MSA stipulates that if there are more mortgages than one registered in respect of a ship or share, the mortgages shall, notwithstanding any express, implied or constructive notice, be entitled in priority one over the other, according to the date on which each mortgage is recorded in the register and not according to the date of each mortgage itself. It is therefore important that mortgage agreement be registered as soon as executed by parties.

Under the Nigerian law, the procedure for enforcement of a ship mortgage is subject to a contractual right. Accordingly, the rights of a mortgagee are derived from specific terms agreed with the mortgagor. Usually, the loan documentation, which the mortgage is premised upon, will identify those events by the mortgagor, which give rise to the right on the part of the mortgagee to take enforcement action.

Ridwan named Legal influencer for TMT- Africa and Middle-East in the Lexology Content Marketing Awards for Q4 2018

We are proud to announce that our Ridwan Oloyede, has been recognised as the Legal influencer for TMT- Africa and Middle-East in the Lexology Content Marketing Awards for Q4 2018. The winner is awarded for constantly producing useful, insightful legal content for Lexology subscribers.

According to Edward Costelloe, Managing Director, Lexology, “the quality of content that you produce keeps our platform the most powerful in the market.”

Ridwan was selected using a bespoke automated process to analyse Lexology readership data.