(A suggestion by UDEMS)
Order 5 Rule 1 (2) of the High Court of Lagos State
(Civil Procedure) Rules, 2019, which came into effect on
31 January 2019, provides that “all civil proceedings commenced by
Writ of Summons shall be accompanied by a list and copies of the
following documents: (a) a Statement of Claim; (b) a List of
Witnesses to be called at the trial;
(c) written statements on oath of the witnesses except witnesses on
subpoena;
(d) copies of every document to be relied on at the trial;
(e) Pre-Action Protocol Form 01 with necessary documents. “
Order 5 Rule 1(3) of the same Rules then states
that “failure to comply with Sub-Rule (2) [of Order 5 Rule 1] shall
nullify the action.” ?Similarly, Order 5 Rule 5 (3)(d)) provides
that an Originating Summons shall be accompanied by:
(a) an Affidavit setting out the facts relied upon;
(b) all exhibits to be relied upon;
(c) a written address in support of the Application; (d) Pre-Action
Protocol Form 01 with necessary documents.”
Looking at, and reading together, provisions of the Rules in
relation to requirements of the Pre-Action Protocol Form 01, it is
obvious that the Form is in the nature of a Statutory Declaration
on Oath (an affidavit) since it is required as a matter of law to
be deposed to before a Commissioner for Oaths.
A mandatory paragraph/content (deposition) in the Pre-Action
Protocol Form 01, annexed to the Rules and titled, “Statement of
Compliance with Pre-Action Protocol” (pursuant to Order 5
Rule 1(2)(e) & Order 5 Rule 5 (3)(d) goes this:
“I/We have made attempts to have this mater settled out of Court
with the Defendant and such attempts were unsuccessful,” and that
“I/We have by a Written Memorandum to the Defendant set out my/our
claim and options for settlement.”
The Form then states that the deponent to such depositions
(Statutory Declaration) must go ahead and specify precisely what
attempts he or they (claimant or claimants) has/have made to have
the matter settled and he/they must attach evidence of such
efforts. Further, the Form provides, if no such peace efforts have
already been made by the claimant(s), as at the time of filing the
action, the deponent to Form 01 must state reasons why the
claimant(s) didn’t pursue such peace efforts before resorting to
litigation, and must still, now on the Form 01, “set out his
options for settlement hereunder.” Meaning that where no efforts
have earlier been made (prior to commencement of the action) by the
Claimant to settle peacefully with the defendant out of court, the
claimant has a duty to do two things in Form 01, namely:
(1). Give reasons why the claimant had not pursued such options
of peaceful settlement before litigation ; and
(2). Set out in Form 01 any options the claimant now has (propose)
for peaceful settlement of the case (ie, ADR). This information and
propositions would be helpful during the mandatory Case Management
Conference & Scheduling (CMCS) proceedings provided for in
Order 27 of the same Rules. In Order 27 Rule 1(2)(c), “promoting of
amicable settlementof the case or adoption or ADR” is one the major
objects/purposes for instituting the mandatory CMCS Proceedings
under the Lagos 2019 Rules.
Besides, one of the orders the CMCS Judge may make during CMCS
proceedings is to refer the entire case to ADR, in line with Order
27 Rule 2(l) and & (m) dealing with “making referrals to the
Lagos Muti-Door CourtHouse or other relevant ADR Bodies” or
“implementing any ADR order” made under Order 27 Rule 2(l) of the
Rules.
Provisions and procedures for settlement of cases by ADR are set
out in Order 28 of the same Rules.
Three things are therefore obvious from the provisions of
Order 5 Rule 1(2)(e) & Order 5 Rule 5 (3)(d) of of the
High Court of Lagos State (Civil Procedure) Rules, 2019,
and from the contents and the very nature of the said Form 01:
(1) It is mandatory for a proposed claimant to have
pursued/adopted options of ADR (Alternative Dispute Resolution)
before resorting to litigation. This efforts at peaceful settlement
should be initiated by the claimant’s lawyer, in line with the
provisions of Rule 15(3)(D), Rules of Professional Conduct
for Legal Practitioners, 2007, which states that “in his
representation of a his client, a lawyer shall NOT fail or neglect
to inform his client of the option of alternative dispute
resolution mechanisms before resorting to litigation on behalf of
his client.”
(2).Where the claimant had unsuccessfully pursued options of
ADR, issuance/service on a proposed Defendant, of such “Written
Memorandum of Claim & Options for Settlement” is mandatory. ?In
other words, no action may be commenced after the fauilure/collapse
of such alternative dispute resolution methods unless and until the
Written Memorandum has been so served.
(3) Alternatively, it appears that where prior peace efforts
have NOT been made or where such peace efforts (ADR) have been
unsuccessfully pursued but such Memoramdum has not been or could
NOT be served, the claimant must in Form 01, give reasonably
justifiable reasons why such peace efforts were not made or why
such Memorandum was not served on the defendant before the
commencement of the action.
This is a necessary conclusion , drawn from the provisions of
the cited Rules and the mandatory contents of Form 01
In any case, where such Written Memorandum of Claim &
Options for Settlement has been served as required by the Rules, a
copy of the Memorandum must by exhibited to Form 01, as, and with,
evidence that such Memorandum has indeed been served on the
proposed defendants.
The effect of this, it is respectfully submitted, is, as it
appears, that failure to serve such Memorandum (which is in the
nature of a Pre-Action Notice) or failure to give cogent reasons
why such was not served (where it was not served before the
commencement of the action), is fatal to any action instituted by
means of Writ of Summons or Originating Summons.
Further, where such Memorandum has been served but a copy of it
is not annexed to Form 01, as required by Form 01, this may be
fatal to the suit/action.
The next question begging for an answer is as to what is the
exact nature and contents of such “Written Memorandum of Claim
& Options for Settlement?”
The 2019 Lagos High Court Rules does not provide any express
format to serve as a guide, but a community reading of the
above-quoted Rules and a careful look at the relevant contents of
Form 01 would suggest that a Written Memorandum of Claim &
Options for Seettlemt as contemplated by the Rules and Form 01, is
merely a simple letter setting out the following particulars of
information:
1. Asummary of details of the wrong allegedly done to the
proposed claimant by the proposed defendant;
2. Practical efforts already made by the proposed claimant to make
peace with the proposed defendant, and how the defendant is to
blame for failure of such practical efforts;
3.The proposed claimant’s claims against the proposed defendant
—- relief sought from the proposed defendant;
4. The options being put forward by the proposed claimant to the
proposed defendant, towards an amicable resolution of the
matter;
5. Some definite, reasonable space of time within which the
proposed defendant is expected to comply with the proposed
claimant’s propositions/options for peace (ie, time-limit within
which the proposed claimant expects the proposed defendant to meet
or comply with the claimant’s demands); and
6. Consequences of the proposed defendant’s failure or neglect
to comply with or meet the proposed claimant’s demands within the
set deadline —- usually, that the proposed claimant would resort to
litigation to seek redress if the defendant so fails.
In summary, a Memorandum of Claim & Options for Seettlemt is
a Pre-Action Notice.
It is respectfully suggested that any unambiguous letter written
by or at the instance and on behalf of the proposed claimant, and
containing particulars of information as would be reasonably
construed as amounting to sufficient compliance with the six items
enumerated above, would be taken to have satisfied all requirements
as to the nature and content of such “Written Memorandum.”
I would now end this short commentary by referring us to these
wise counsel from the masters, on why every lawyer worth his onions
should endeavor to not only inform, but to honestly and candidly
persuade his client to sincerely explore and vigorously pursue
options of ADR before resorting to litigation. It pays a lot as it
saves s lot.
1⃣The first is from Abraham Lincoln, an American statesman and
lawyer who served as the 16th president of the United States from
1861 until his assassination in April 1865. A part of his
admonition is on why Lawyers should discourage litigation and
promote ADR goes thus. “Discourage litigation. Persuade your
neighbors to compromise whenever you can. Point out to them how the
nominal winner is often a real loser — in fees, expenses, and waste
of time. As a peacemaker the lawyer has a superior opportunity of
being a good man. There will still be business enough.”
2⃣The second is from Sandra Day O’Connor, former Justice of the
Supreme Court of the USA (1981-2006): “The courts of this country
should not be the places where resolution of disputes begins. They
should be the places where the disputes end after alternative
methods of resolving disputes have been considered and tried.”
Thank you.
Respectfully.
Sylvester Udemezue
(UDEMS)
19 September 2019.