By Echem, Chinedu Solomon
Introduction
The Preamble of the High Court of Lagos State (Expeditious
Disposal of Civil Cases) Practice Direction No 1 of 2019 provides
thus.
“A huge backlog of undecided civil cases has undermined the
credibility of civil justice administration in Lagos State and
threatens the economic progress of the state and the nation because
of the commercial importance of Lagos State in Nigeria and the sub
region”.
The hydra headed problem of delay in the administration of
justice is not only with a negative impact in the State alone but
in the country and abroad bearing in mind that investors always
seek an assurance that the legal process of a country is
viable.
It is in the light of the above that the Chief Justice of Lagos
State Hon. Mr. justice Opeyemi Olufunmilayo Oke, as the Head of the
Judiciary in the State and other relevant stakeholders united to
tackling this challenge which culminated to the introduction of the
new 2019 Lagos State High Court Civil Procedure Rules and Practice
Directions with effect from the 31st day of January
2019.
We would attempt to do a critical review of the relevant
portions that sort to revolutionalize and modernize the
administration of civil justice in the state.
Justice and its Dispensation
The plague of delay in justice delivery system is still of major
concern in the nation’s judicial system today. The expectation of
the citizenry is huge and requires all stakeholders to work
continuously to enhance confidence in the legal system, promote the
rule of law, guarantee protection of lives and properties of the
citizens. Thus, there is the need to vigorously ensure quick
dispensation of justice, as the judiciary is the last hope of the
common man. The congestion, administrative bottlenecks and the
procedural pranks of legal practitioners, couple with the
ineffectiveness of available legal rules all congregate to occasion
untold hardship on litigants. This in itself is capable of eroding
confidence in the judicial process. Bearing in mind that he
judicial arm of the government remains the only and lasting beacon
of hope, fairness, and justice to all citizens, the legal
profession has a vital role to play in promoting the cause of
justice, protecting human rights and upholding professional
standards. To this effect, the 2019 Lagos State High Court Civil
Procedure Rules (LCPR) and Practice Direction has been introduce to
strengthen the judicial process and guard it against further
delays.
Novel Provisions of the New Rules
- Pre-Action Protocol: Practice Direction No. 2
sets out mandatory preliminary steps that must be taken, before
maters are instituted in Court. The rules require that before an
action is instituted, there must have been attempts at settlement.
The intending Claimant, must prepare and send a memorandum of claim
setting out the details of the claim, and make a proposal for the
settlement of the dispute through the use of Alternative Dispute
Resolution mechanisms. The party against whom the claim is made
(Respondent), must send his response within 7 days, and also make
proposal for settlement. Where he fails to do so, the Claimant
shall send a reminder giving additional 7 days to respond. The
rules contains details of pre-action protocol steps for various
matters like defamation, mortgages, land matters, debt recovery,
and recovery of premises.
Part of the innovation of the rules, is that it allows litigants
to seek pre-emptive remedies like injunctions, before a formal
action is filed, to prevent irreparable damage or serious mischief.
The procedure is by filing the memorandum of claim, together with
an ex parte originating application. A party who wishes to
institute an action, must file Pre-Action Protocol form 1, together
with Pre- Action Protocol Bundle containing correspondence
exchanged between the parties, and cogent evidence that ADR has
been considered.
Unlike the old rules, there are stringent penalties for failure
to comply with Pre- Action Protocol or the settlement procedure,
under the pre-action protocol. Under Order 5 Rules 1(2) (3), 5 (3),
(4), and Order 7 Rule 1 of the main Rules, non- compliance
nullifies the proceedings. This is obviously a shift from the
decision of the Court of Appeal in Spog Petrochemicals Limited &
Anor v Pan Pennisula Logistics Limited where it was held that, once
the originating process is accepted for filing, the non-compliance
cannot defeat the action. Failure to comply with the timelines in
Pre-Action Protocol, shall attract a daily default fee of N1,000,
in favour of the other party. On the other hand, failure to comply
with settlement procedure under the pre-action protocol or the
directive of the court referring parties to ADR, shall attract
costs of N100, 000 on the party insisting on trial.
- Substituted Service: Substituted service can
now be done via electronic mails. See Order 9 Rule
5(1). - Close of Pleadings: Pleadings are deemed
closed, when the Defendant fails to file defence within 42 days.
This was absent in the old rules. See Order 17 Rule 18. - Withdrawal of Action at Trial: Order 25 Rule
4, allows a Claimant to withdraw his claim after trial has
commenced. Such an action, will be dismissed by the court. This is
substantially in consonance, with what obtains in practice. It will
however, answer the question of what stage a matter would get to
before a dismissal order can be made, when the Claimant or
Counter-Claimant, seeks to discontinue the action. Under the rule,
dismissal can only be possible when trial has commenced. - Backlog Elimination Programme (BEP): One of
the strategies for the expeditious disposal of civil cases, is the
BEP. Under this program, the Chief Judge (CJ) shall designate cases
which have remained undecided for a minimum period of 5 years
before 14th January, 2019 (Practice Direction No. 2), as ‘Backlog’.
Upon designation by the CJ as a Backlog, the Registrar shall issue
a notice to the Claimant, to show cause why the case should not be
struck out. The notice shall be sent to the email address provided.
The Claimant must respond within 14 days, by filing a notice of
discontinuance, giving notice that the matter has been settled, or
intention to settle, or by filing application to set the matter
down for trial. Where the court determines during compulsory case
management conference that the matter can only be resolved by court
proceedings, it shall direct the parties to file a joint trial plan
within 14 days, and issue procedural timetable after considering
the plan. Failure to comply with the timetable may lead to a
default judgement, or a striking out of the case and costs of N50,
000 or N100,000 depending on the circumstances, disciplinary report
against counsel etc. Trial shall be from day to day.
In order to resolve the matter, the direction mandates the use
of ADR processes, and allows the parties to agree to a trial by
‘documents only’. Court may order costs not less than N250,000 for
non-compliance, where it discovers that the matter could be
resolved by ADR, and the other party was unwilling to settle.
- Transferred Cases: The rules require that,
where a matter is transferred from other courts to the Lagos High
Court, any of the parties shall re-file the action in compliance
with Order 4. - Alternative Dispute Resolution (ADR) Proceedings: Order
28 is a new provision, on ADR. The order applies to
matters screened for ADR, matters referred to ADR during CMC, and
applications for enforcement of arbitral awards. Interestingly, the
rule provides that, the mode for enforcement of arbitral awards and
other steps in arbitration, is by originating motion on notice.
Under the old rules, it could be by motion on notice. See Order 39
Rule 4, of the old rules. Order 28 Rule 4, stipulates 3 months
within which an application may be made to set aside or remit an
award, and that the period may be extended by the court. It is
submitted that, this can only apply to awards not made under
statutory provisions like the Arbitration and Conciliation Act. See
Dunlop Plc (Now DN Tyre & Rubber Plc) v Gaslink Nig Ltd (2008)
LPELR43642. - Diligent Prosecution: Order 34(3) reenacts the
provisions of Order 27 Rule 13 and Order 30 Rule 19 of the old
rules, on diligent prosecution. In addition, the rule provides
that, where a matter is pending and no application is filed or
proceedings held within 12 months, the matter shall be struck
out. - Filing of Written Address: Written addresses
cannot exceed 20 pages and reply on points of law, 5 pages, without
the leave of court. There was no limitation in the old rules. See
Order 35 Rule 3. - Interpleader: The Rules retained the old
provisions on interpleader summons, but adds that, if Claimant
fails to appear to maintain his claim upon being served with a
summons, the Judge may make an order declaring him and all persons
claiming under him, perpetually barred against the Applicant. See
Order 47 Rule 8. Rule 9, gives the court the powers to order
costs. - Default fees have been increased to N1,000 as against
N200, in the new rules. See Order 48 Rule 4. Costs have
also been increased. These are desirable to stem the tide of
deliberate delays in the judicial process, and are in line with
international best practices. - Fast Track Procedure: The Fast Track Court is
‘created’ to hear matters involving claims of not less than N100
million mortgage transaction, charge or other securities commenced
by writ of summons. Fast track for a liquidated claim involving a
Claimant who is not a Nigerian or resident in Nigeria, has been
removed from the rules. A Claimant or Counter-Claimant, is no
longer required to make application to the Registrar for fast
track, as it was in Order 56 of the old rules. Various times for
filing processes are abridged to meet the objective of the rules,
which is to reduce the time spent on litigation, to a period not
exceeding 9 months- Order 59. Specifically, in fast track cases, a
Defendant is expected to file a defence within 30 days, and not 42
days, under the old rules. - Proceedings in Revenue matters: The rules
retained provisions on revenue matters. In addition, all matters
involving revenue, now qualify for fast track. In tax cases, the
Petition for recovery shall now be accompanied with a certificate
issued pursuant to Section 78(3) of the Personal Income Tax Act.
The rule also allows the Respondent to pay instalmentally, where he
is not disputing the claim.The timelines for disputing the claim
and filing replies, have been reduced. See Order 60. - Administration of Estate: Penalty for failure
to file the annual account of administration of estate, has been
increased to N100,000 annually. Also, penalty for intermeddling
with an estate, is increased to N500,000 from N50,000. See Order 61
Rules 16 and 17. There are other costs and penalties, in line with
the drive to use costs to reduce frivolous and vexatious
applications and actions.
The new rules and its controversy
While the new High Court Rules has been heralded in certain
quarters as an antidote to the unceasing and unsavory delay in the
administration of civil justice in the state, facts are beginning
to emerge of that the Nigeria Bar Association, particularly the
Ikeja branch which boast of a large chunk of practicing lawyers in
the state have expressed their dismay and lack of involvement in
the process of crafting and enactment of the new rules. The
Ikeja branch of the Nigerian Bar Association (NBA) through
its Chairman, Mr Dele Oloke, faulted the Chief Judge of the State
for the enactment of the rules without the input of it members.
Addresing newsmen on Monday February 4th 2019, Chairman,
NBA Ikeja Branch, described the launch as an “affront” to its 6,500
members, the second largest NBA branch in Nigeria. Mr. Oloke said
that members of the Branch were not involved in the process of the
enactment of the High Court Rules. He added that When the Committee
of the Rules was set up by the CJ of Lagos State, there was no
representation from all the five NBA branches of Lagos State.
Quoting him, he said “We are the lawyers that go to all
these courts and make submissions that lead to adjudication by the
judges, when the Rules Committee was set up, it was made up of
judges and judges alone.
The Ikeja branch Chairman also unequivocally condemned the high
costs of filing fees and the alleged N100,000 fine that is to be
imposed against lawyers who are late to court proceedings.
Describing the fine as “heavy” and “punitive”, he said that traffic
in the Lagos metropolis and other unavoidable factors could lead to
counsel coming late to court. He noted that judges who did not also
sit for unavoidable reasons were not being fined. The NBA Chairman
noted that a lot of lawyers who undertook pro bono cases for poor
clients would be unable to afford the N100,000 fine and this may
prompt such lawyers to drop the pro bono cases. According to him,
“This will lead to instances of poor litigants abandoning the
judicial system which is supposed to be the last hope of the common
man and resorting to jungle justice,”
Impact of news rules in the administration of civil
justice in Lagos.
The new rules as currently obtained, has the inherent capacity
to stimulate a more proactive approach to litigation. Litigants
through the news rules will be encouraged to resort to Alternative
Dispute Resolution is comparatively faster and less technical
compared to court proceeding. The LCPR is a giant leap, in the
drive towards quick dispensation of justice. Pre- Action Protocol
formalities and the BEP, are commendable and revolutionary in
justice administration in Nigeria. The introduction of reasonable
costs and default fees, will substantially prevent spurious and
vexatious claims, and curb calculated delays by Lawyers. It is
therefore hoped that It is hoped that, Lawyers will key into the
system designed by the rules. Lawyers must, as a matter of urgency,
get back to the business of resolving real disputes which is the
objective of this rules. Lawyers from other jurisdiction who may
intend on filing an action or defending same in Lagos must equally
be abreast with the new news to avoid a miscarriage of justice on
technicalities of procedural default.
Finally, it is equally expected of other Heads of Jurisdiction
in Nigeria to take a cue from the Lagos rules substantially mirrors
international best practices, in dispute resolution and fashion out
an updated court rules and practice direction in their respective
states. By so doing, there will be a synergy towards the attainment
of civil justice in the whole of the country.
By Echem, Chinedu Solomon