Abdulrasheed Ibrahim
Precisely on 30th September 2018, I did an article on this
platform titled: LAMENTING THE SLOW DISPENSATION OF
JUSTICE. On 17th October 2018, the Lagos Sate
Judiciary organized a seminar to shed light on the proposed
amendments to the Lagos State High Court Civil Procedure Rules 2012
as part of the activities marking its 2018/2019 legal year.
Although I have not been opportune to see draft of the proposed new
Rules, but from the available information here and there one can
deduce some features which the new Rules is coming up with. While I
am adopting my earlier submissions contained the said article, I
want us to here look at some of these proposed amendments. But
first let me link this article to the previous one where I had
said:
“…Some years later, precisely in 2012, Lagos State Judiciary
further improved on its frontloading rules wherein it changed the
Pre-Trial Conference (PTC) under the 2004 Rules to the Case
Management Conference (CMC) under the 2012 Rules. With all these
changes and innovations made to improve on the speedy dispensation
of justice, the desire for quick dispensation of justice is still
found wanting. You can only know when you institute an action but
cannot be sure when it will actually come to an end.”
The desire for quick dispensation of justice must be a serious
concern to everyone. Among the proposed amendments to the 2012
Rules are that (i) failure to comply with the Pre-action protocol
will render the originating process null and void; (ii) a party
that is not ready to participate in a matter already fixed for
trial without valid reason will get a cost of not less than
N100,000 against him; (iii) if a lawyer frustrates the hearing of
an interlocutory application, he will get a cost of not less than
N50,000 against him; (iv) a case that is abandoned by a lawyer for
six months can be struck out by the court Suo Motu; (v) daily
default payment now increase from N200 to N1000; (vi) a matter of
extreme urgency may not need to comply with the pre-action protocol
if the court is satisfied ;(vii) substituted service by electronic
mean especially in fundamental human rights matters is now
acceptable ; (viii) video conference is now allowed during the
taking of evidence;(ix) page limit is now introduced as final
addresses of each party should not be more than 20 pages while
reply on point of law should not be more than 5 pages.
The above are just the tip of the ice barge that I have been
able to come up with. While one must still accept the fact that
Lagos State Judiciary is usually the pacesetter in most things that
are innovative in our judicial system in Nigeria, it must be noted
that some of these proposed amendments have been in practice in
some other courts like the increased daily penalty fee, service by
electronic means and page limit which are now in vogue at the
Supreme Court, Court of Appeal, Federal High Court and the National
Industrial Court. If all these will surely checkmate and put an end
to all the lamentations against slow dispensation of justice, that
will be a very welcome development.
If the truth must be told, one of the problems that confront the
successful operation of some of these Rules of courts is lack of
unanimity in the understanding of a particular set of Rules. Now
let us start with the Pre-action protocol. By the amendment being
proposed, it seems the status of Pre-action protocol as it is today
under 2012 is not certain, that is to say whether failure to comply
with it is an irregularity or a nullity hence the proposal being
made that failure to comply with it as set out in Form 1 will
render the court processes null and void. In reality, some courts
before now have struck out cases that they believe did not comply
with the said Form 1.
For instance, I was involved in a case where a customer sued his
banker on the allegation that the bank manipulated his account on a
loan transaction between them by the bank building into his account
illegal interests that could not be justified. The customer got a
forensic expert to audit his account with the bank. The expert
eventually came up with a comprehensive report which was sent to
the bank with the demand to rectify same but the bank ignored same.
When I was briefed by the customer and I read through the forensic
report as well as other correspondences, I wrote to the bank
clearly stating our demand based on all the documents made
available to me and that if bank failed to meet our demand we would
be left with no option than to approach the court of law for
appropriate remedy.
The Bank despite being in receipt of our letter did not reply
same. We subsequently filed an action in court against the bank. In
the processes we filed before the court we accompanying same with
the Pre-action protocol stating all steps we have taken before
coming to court but did not attach to the sworn Pre-action protocol
form, the last correspondence which was the letter summarising all
the steps we had taken before filing the suit since we believed we
have pleaded them in the Statement of Claim, listed and frontloaded
them as part of the documents we were to rely on at the trial. The
Counsel to the Defendant filed Preliminary objection with written
address along with their Statement of Defendant contending that we
did not comply with the Pre-action protocol and that as such the
court lack jurisdiction to hear our case. The court did not buy our
arguments contained in our Counter-Affidavit and written address in
support that when issue of jurisdiction is raised the appropriate
process to look into is the Statement of Claim and that the
defendant rather allowing the matter proceed to trial to put up
their defence were indulging in technicality. Even our reference to
Order 3 Rule 2 (2) did not save our suit from being struck out by
the presiding judge on the ground that our suit was a nullity and
incompetent. There are courts that do not entertain such
preliminary objection and will have such objection dismissed.
I am personally of the view that the requirements expected to be
complied with by the Claimant under the preamble to the Rules as
far as pre-action protocol is concerned seems to put the Claimant
at the mercy of an arrogant Defendant. It is more or less asking
the Claimant to be begging the Defendant to come and have
settlement him on the obligation expected of the Defendant. Perhaps
this is the reason why the amendment being proposed that some
urgent matters may be exempted from complying with the pre-action
protocol forms if the court is satisfied that the compliance will
occasion great harm.
Before the introduction of Pre-action protocol form, there are
laws that make it mandatory for a claimant who wants to institute
legal action against statutory bodies to issue out pre-action
notices to such bodies before court proceedings is commenced. In an
action for the recovery of debt ,the claimant is excepted to first
issue out letter of demand which has now become a settled law as in
the case of KOLO Vs. FIRST BANK OF NIGERIA PLC (2003) FWLR (Pt.
179) Pg. 1315 Para G:
“It is trite law that in an action for the recovery of debt, the
cause of action accrues upon demand for the payment of the debt. If
no demand is made, a cause of action does not arise and no action
can be commenced.”
Also in tenancy matter where the landlord wants to recover
possession his premises from the tenant, he is expected to issue
out statutory notices as prescribed by the law. Where all these are
done as stipulated by law and relevant materials are placed before
the court, I am of the view that there should be an easy access to
the court for those who desire justices through court proceedings
without further hindrance. For a court to insist that a suit is
null and void merely because those materials are not particularly
attached to the Pre-action form will amount to nothing but a high
level of technicality. Can a Pre-action protocol form take the
place of Writ of Summon, Statement of Claim and the accompanying
processes in a suit? Such an omission should be seen as mere
irregularity rather than being declared null and void. While people
should be encouraged to embrace the Alternative Dispute Resolution
(ADR) mechanism, the right of people who think otherwise must be
equally be respected. There are several instances where parties go
to the Mediation Centre and after arriving at settlement and come
up with Memorandum of Understanding, you later see some of them
defaulting by refusing to discharge their own part of the
obligations. You then see the aggrieved party going back to the
court seeking for the Memorandum of Understanding to be entered as
the judgment of the court for the purpose of its enforcement.
Another aspect of the 2012 Rules which there seems to be is no
unanimity on its proper application is Order 6 Rule 6 and 7
relating to the life span and the renewal of a writ. While some
Judges are of the view that the application to renew a writ can
only be brought before the expiration of writ and not thereafter,
some Judges are of the view that a writ can equally be renewed
after its expiration upon application to the court. The judges in
the former category will never grant any application brought after
the expiration of the writ. I have extensively discussed this issue
in a paper yet to be published wherein I submitted that a proper
understanding of the position of the Supreme Court in the case of
KOLAWOLE Vs ALBERTO (1989) 1 NSCC 213, (1989) 1 NWLR 382 on the
interpretation Order 5 Rule 6 of the Lagos State High Court Civil
Procedure Rules 1972 which is similar to Order 6 Rules 6 and 7 of
the Lagos State High Court Civil Procedure Rules 2012 now in force
will clearly show that the decision in that suit is still
applicable and binding today as far renewal of writ is concerned
that the application for renewal can be brought after the
expiration of the writ. All the learned Justices of the Supreme
Court in that case were unanimous on this point. Hon. Justice Craig
in his lead judgment observed that:
“I think the provision about applying for renewal within the
valid life of the writ may have led many to assume that unless the
writ is made within twelve months, it cannot be made afterwards but
it is obvious that if the Rule were interpreted in that manner, it
would work hardship on the plaintiff .It seems to me that the
provision has been inserted in the Rule in other to distinguish a
vigilant plaintiff from the lethargic one. Obviously a vigilant
litigant would in accordance, with the Rule, apply before the writ
actually expires, but this does not mean that a litigant who
applies soon afterwards should not be heard”.
Hon. Justice Nnamani in his own contribution to the judgment
held that:
“I am of the view that by the combined effect of Order 5 Rule 6
and Order 47 Rule 3, a plaintiff can apply to the court for renewal
of a writ of summons either before or after the expiration of 12
months .Such an interpretation accords too with my conception of
doing substantial justice between the parties , for in a proper
case in which a plaintiff has good reasons for having not served
the defendant , it would seem to be inequitable if the court were
to refuse renewal and shut out plaintiff because the plaintiff
perhaps applies for renewal one day beyond the 12 months.”
Apart those areas where amendments have been proposed, there are
some other things we need to address if we truly want to achieve
quick dispensation of justice in our judicial system. If N100, 000
is awarded as a cost against a lawyer for his refusal to
participate in a matter set down for trial or N50,000 is awarded
against him for frustrating the hearing of an interlocutory
application, then what happening to the presiding judge who refuses
to sit to conduct the proceeding or ask you to come back another
day when the parties have shown their readiness to go on with the
trial? I was in a court in the month of May this year and was given
a trial date in the month of October on which day I brought all my
witnesses telling the court that I was ready for trial only to be
told by the court that I would have to be given another date as my
matter was just on the list of cases awaiting to be allotted a
trial date. I was again asked to come back in the month of March
2019 for trial. Then if I may ask, who should I complain to? Now
let us say a matter is pending before a judge and the parties are
ready for the matter, but suddenly his Lordship goes on official
assignment say for instance election petition tribunal only to
return after about 6 months , then what should happen?
There is no doubt the Lagos Sate Judiciary is living up to
expectation and its vision to improve the training and welfare of
its judicial officers and staff through organizing of seminars,
workshops and retreats. But it needs to be suggested that such
activities should be done in such a way that it will have adverse
effect on their primary duties of dispensing justice. If programs
being organized are allowed to affect court sitting, this will
equally contribute more to the delay in the dispensation of
justice. The retreat being organized for judges overseas could be
shifted to the period when the court is on vacation. One wonders
sometime that in those foreign jurisdictions where we borrow some
of these innovations like the frontloading regime cases are
concluded within a very short time unlike here where cases take
several years before being concluded. We may equally need to
critically look at how they are doing it and incorporate it into
our judicial system. I think it is high time we assign time within
which categories of cases must be concluded as if such thing can
work in election petition cases, why not in the other categories of
cases.
REMARKABLE PRONOUNCEMENT ON SPEEDY HEARING OF
CASES
“The best judge in trial proceedings is undoubtedly the trial
judge. He sees it all because he closely watches the proceedings
and all that. He feels the pinch when parties try to dilly-dally
the proceedings or adopt tricks to overreach or outsmart the
adverse party. If the trial judge fails to take a position in the
light of the rules of court and takes or tows the line of sympathy,
then he will have a plethora or load of cases in his cause list to
the extent that he cannot get out of a mounting backlog of cases.
That will reflect on him adversely, and in these days of continuous
assessment of the performance of the judges he will be in for it.
While a trial judge cannot throw away the constitutional provision
that parties should be given a hearing in matter before the court
because of repercussion of performance assessment, a judge owes the
administration of justice a duty to facilitate and ensure the
speedy hearing of a case before him. The notoriety that delayed
justice attracts to the judiciary is such that judges must work
towards the speedy dispensation of justice. Judge must do their
best to facilitate the speedy hearing of cases.”
Per TOBI, JSC in Banna Vs. Tele-Power (2006) 15 NWLR (Pt. 1001)
Pg. 200 Paras B-E
THE SETTLED PRINCIPLE OF LAW
On purpose and status of rules of court
It is well settled that a rule of court regulates the practice
of the court in the exercise of a power derived ali unde and does
not confer a power. In that sense, it seems that the rule is
adjectival and its purpose is auxiliary: to give effect to the
specific provision of the law conferring power in much the same way
as the inherent powers of superior court of record.
See Ogunremi Vs. Dada (1962) 1 ALL NLR (Pt. 4) 663, 670-671;
GUINNESS Vs. UDEANI (2000) 18 WRN Pg. 50
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