A Review Of The Federal High Court (Civil Procedure) Rules, 2019 By Mayowa Ogunsan

INTRODUCTION

The Chief Judge in the exercise of his power under Section 254
of the Constitution of the Federal Republic of Nigeria made the
Federal High Court (Civil Procedure) Rules, 2019 and same came into
effect on the 10^th day of May 2019.

The rule introduced certain novel provisions which changed some
existing practice at the Federal High Court; thus the need for this
review. It is worthy of note that unlike the High Court of Lagos
State (Civil Procedure) Rules 2019, the Federal High Court (Civil
Procedure) Rules, 2019 maintained the sections in the 2009 Rules,
save, the inclusion of additional subsections.

The novel provisions are:

Documents that must accompany a Writ of
Summon: Order 3 Rule 3(f) now includes an
additional document that must accompany a writ of summon; to wit,
an affidavit of non-multiplicity of action on the same
subject matter

Documents that must accompany an Originating
Summons: Order 3 Rule 9(2) which
initially provided that an originating summons shall be accompanied
by “An affidavit setting out the fact relied upon and (6) Copies of
the exhibit to be relied upon, now has as an additional requirement
the following:

1. A written address; and
2. An affidavit of non-multiplicity of action on the same subject
   matter

Please note that the new rules do not specifically state the
number of exhibits that must be submitted at the registry in
compliance with the Rules. This is perhaps because of the
implication of Rule 11(2) which provides that sufficient copies of
documents shall be submitted at the registry when filing the
originating summons.

On address for service: In an attempt to solve
the problem relating to service, Order 4 Rule 7 of
the new rules now provides that where the address for service is
unidentifiable or vague, the party filing the process shall act as
a pointer to the process server.

Documents to accompany a petition:
Order 5 Rule 2(2) now includes as an additional
requirement for the endorsement of a petition; an affidavit
of non-multiplicity of action on the same
subject-matter

On service of process: Order 6 Rule
6(b) additionally provides that where service is to be
effected on any of the Armed Forces, the Nigerian Police Force and
any Paramilitary Service or any of their officers, it shall be
sufficient if served on the legal unit of such a service which
shall cause same to be served on the appropriate party.

On service when violence is threatened:
Order 6 Rule 26 now provides that in such a situation,
service will be deemed sufficient when the Bailiff throw or leave
same within the reach of the person to be served

Whether leave is needed to serve a process outside its
state of issue: Order 6 Rule 31(2) now
provides that an originating process or court process filed by any
party before the court shall be served on any other party in any
part of the Federation without leave of court.

On late filing: Order 7 Rule 2
provides that where a Defendant files a memorandum of appearance
after the time prescribed in the originating process, he shall pay
to the court, an additional fee of N1000 for each day of default.
This is against what was obtainable under the 2009 rules which
provided for the payment of N200 for each day of default.

On consolidation: Order 11 Rule
4 now provides that where actions are pending before
different judges, a party desiring consolidation shall
first apply to the Chief Judge for transfer of the matter
to a judge before whom one or more of the matters is pending.

Defence in originating summons: Order
13 Rule 49 now provides that a Defendant to an originating
summons shall file a counter-affidavit with all the exhibits he
intends to rely upon and a written address within 30 days after
service of the originating summons. This is against the 14 days
initially provided for under the 2009 Rules

Correction of clerical error or mistake:
Order 17 Rule 7 now makes provision for correction
of clerical error or mistake; to wit, it provides that a Judge may
at any time correct a judgement, order or proceeding of clerical
mistake or error arising therein from any accidental slip or
omission

On the power of court to dispense with the filing of
written addresses: Order 22 Rule 1(b) now
additionally provides that the court shall have the power to
dispense with the filing of written addresses where the interest of
justice so demands

On written address: Order 22 Rule
5(2) also provides that the judge may guide counsel on the
volume or limit of their written address

Proceeds from perishable goods: Order
28 Rule 4(1) now specifically provides that where goods
are considered perishable and sold, the proceeds shall be paid to
the court. Although this has been the practice in courts but the
rule now specifically makes provision for this.

Disputing the jurisdiction of court:
Order 29 Rule 4(a): Where a Defendant intends to
dispute the jurisdiction of the court; (despite filing a memorandum
of appearance) he shall do so within 30 days after service of the
originating process on him. This is against the 21 days initially
provided for by the old rules.

Conditions before grant: Order 34 Rule
2 now provides for three basic things the court must
consider before an application for a declaration or an injunction
not being an injunction in sub-rule (1) (b) of the rule which is
made by way of an application for judicial review, can be granted.
These are:

• The nature of the matter in respect of which relief may be
  granted by way of an order of mandamus, prohibition or
  certiorari;
• An affidavit verifying the statement relied on; and
• An affidavit and written address in support of the application
  for leave

Opposing the grant for Judicial Review:
Order 34 Rule 7(2) provides that in opposing the grant of
an application for judicial review, the person shall within 7
working days after the receipt of the originating process, file a
counter affidavit with a written address; and the applicant may
file a further affidavit with a reply address on point of law
within 5 days after the receipt of the counter affidavit of the
respondent

The condition to be fulfilled before a garnishee
proceeding can be maintained against a Judgement Debtor:
By Order 37 Rule 1 before garnishee proceedings
can be maintained against a judgement debtor the judgement sum must
not be less than N100, 000. This is against the N20, 000 provided
for in the old rules

On Security by Receivers: By Order 40
Rule 2(3) where a Receiver gives security, such security
shall be by guarantee, or if the amount for which the security is
to be given does not exceed twenty thousand naira, it shall be by
undertaking. This is against the two thousand naira provided for in
the old rules.

The liability of Legal Practitioners in respect to
Interrogatories: Though Order 43 Rule
26(1) still maintains that where a legal practitioner
neglect without reasonable excuse to give notice of an
interrogatory to his client, he shall be liable to pay the cost of
interrogatory without putting in the others or the whole of such
answer, sub (2) now additionally provides that in such case, the
Judge may look at the whole of the answers, and if he is of the
opinion that any of them is so connected with those put in that,
those put in ought not to be used without the, he may direct them
to be put in.

On the finality of the decision of a vacation judge on
urgent applications: Order 46 Rule 5
seems to have removed the provision that Chambers and the decision
of the judge on the application relating to urgent matters shall be
final. This is against what was obtainable under the old rules.

Vacation judges: Order 46 Rule
8 now expressly provides for vacation judges who shall sit
to entertain urgent cause or matters during the vacation period.
Sub (2) however provides that irrespective of the fact that a Judge
is not a vacation Judge, the Chief Judge may assign urgent matters
for adjudication by him.

On the duty of the Registrar where the court isn’t
sitting: Order 47 Rule 3(2) now provides
that where a Judge is unable to sit in Court to deal with a cause
or matter fixed for hearing, a memorandum recording the parties
present and the next adjourned date shall be endorsed in the case
file by the Registrar

E-Filing: Order 58 of the old
rules provided that the Chief Judge shall make such further Rules
to guide the effective operation of the Communications and Service
Centre for E-filing as soon as practicable. The new Rule therefore
made adequate provision for this.

ESTABLISHMENT OF COMMUNICATIONS AND SERVICE CENTRE FOR
E-FILING

Order 58 Rule 1 provides that there shall be a
Registry for filing any document and process of court
electronically to be known as the E-Filing Unit. The rule further
provides that there will be a scanning centre for scanning the hard
copy of a process into soft copy. The unit and processes shall be
managed by an officer of court known as the E-Filing Registrar.

By Order 58 Rule 3 the E-Filing system shall
run parallel with the existing procedure in the rules of the
Court.

Order 58 Rule 4 went further to provide that a
Plaintiff shall determine the appropriate method of filing to adopt
and the Defendant shall comply in filing his defence using the same
method. Please note that by Rule 6 a Plaintiff who
files a cause or matter electronically shall continue in the same
manner until the determination of the matter.

On signing a document: Order 58 Rule
9 provides that where a document is to be signed or made
under oath, the party may either electronically sign the document;
or manually sign the document and scan the page with the
signature.

Filing out of time due to technical failures:
In such a situation Order 58 Rule 10 provides that
the process or document so filed may be deemed filed and the party
may seek appropriate relief from court.

Technical failures preventing compliance: Where
the court has ordered the doing of an act within a specific period
of time and such order couldn’t be complied with due to system
outage or technical failure Order 58 Rule 11
provides that the party may seek further direction from the
Court.

Law is generally said to be dynamic, thus, amendments and the
introduction of novel provisions into the Rules of court cannot be
dispensed with. More of this is therefore encouraged in the
development of law in Nigeria.

Mayowa Ogunsan, Associate, Wiseview
Legal Consultancy