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.
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.