Nigeria: A Consideration Of The Amendments Introduced In The 2019 High Court Civil Procedure Rules Of Lagos State

Last Updated: 16 May 2019
Article by Tobiloba Oluleye
Most Read Contributor in Nigeria, April 2019

INTRODUCTION

On 21st January 2019, the Chief Judge of Lagos State, Hon. Justice Opeyemi Oke, launched the High Court of Lagos State (Civil Procedure) Rules 2019 ('the new rules') which repealed the High Court of Lagos State (Civil Procedure) Rules 2012 ('the old rules').

Consequently, the new rules came into force on 31st January 2019 and are accompanied by two Practice Directions, namely "Expeditious Disposal of Civil Cases: Practice Direction No 1 of 2019-Backlog Elimination Programme (PD 1) and "Expeditious Disposal of Civil Cases: Practice Direction No 2 of 2019 -Pre-Action Protocol (PD 2)

The old rules were plagued with different criticisms such as excessive delays in the administration of justice, and non-compliance with international best standards. It is expected that the introduction of the new rules will implement reforms directed towards the achievement of just, speedy and efficient administration of justice, and address the shortcomings identified in the old rules.[1]

PRINCIPAL CHANGES/AMENDMENTS

Some of the principal changes/amendments introduced in the new rules are highlighted below:

Form and Commencement of Action: A person instituting an action (Claimant) must include the Pre-action protocol form 01 with other supporting documents.[2] The supporting documents are called Pre-Action Protocol Bundle; express provisions are made regarding this in the accompanying Practice Direction on Pre-Action Protocol. There was no provision on this in the old rules.

Service of Originating Process: A judge is now empowered to grant an application for an order of substituted service by electronic mails (emails).[3] This is an improvement on the old rules which did not make provision on this.

Appearance: A legal practitioner appearing for a Defendant is now required to provide a telephone number and email address in in the Memorandum of Appearance.[4] Furthermore, the penalty for late appearance has been increased from ₦200 (Two Hundred Naira) to ₦ 1000 (One Thousand Naira) for each day of default.[5]

Admissions: When a party's notice to produce comprises documents that are not necessary, the party shall pay costs (penalty) occasioned by such notice which shall not be less than ₦10,000 (Ten Thousand Naira).[6] This was an increment from ₦5,000 (Five Thousand Naira) provided for in the old rules.

Amendment of Originating Process and Pleadings: The penalty for not amending any filed process or document within the specified time, or in the absence of a specified time), within seven(7) days after an order to amend has been made, has been increased from ₦200.00 (Two Hundred Naira) to ₦1000.00 (One Thousand Naira) for each day of default.[7]

Alternative Dispute Resolution (ADR) Proceedings: The new rules require any application for ADR proceedings to be commenced by Originating Motion while the old rules only provided for Motion on Notice.[8] Also, the period within which an application can be made to set aside or remit any award has been extended from six (6) weeks to three (3) months after such award has been made and published to the parties.[9]

Discovery and Inspection: The liability of a legal practitioner who neglects without reasonable excuse to give notice to his client upon receipt of order for interrogatories, or discovery or inspection has been changed from attachment to committal.[10]

Issues, Inquires, Accounts and References to Referees: The period within which issues of facts in dispute are to be filed after closing of pleadings has been extended from seven (7) to fourteen (14) days.[11]

Proceedings at Trial: The time within which an application can be made to relist a matter that was struck out or set aside has been extended from six (6) to seven (7) days after the order or judgment; or other extended period the judge may allow.[12]

Filing of Written Address: The volume of a written address must not exceed twenty (20) pages, and a reply on point of law must not exceed five (5) pages, except with the leave of Court. There was no limit on the number of pages of a written address in the old rules.[13]

Default Fees: The liability for a party who defaults in completing an act within the prescribed timeline has been increased from a daily default fee of ₦200 (Two Hundred Naira) to ₦1000.00 (One Thousand Naira) for each day the default continues.[14]

Costs: Where an offer of settlement made in the course of Case Management, ADR or Pre-Action Protocol is rejected by a party and the said party eventually succeeds at trial but the award is not in excess of the offer of settlement earlier made, the winning party must pay the costs of the losing party from the time of the offer of settlement up to judgment.[15] An offer for settlement made in the course of Pre-Action Protocol was not included in the old rules.

Fast Track Procedure: The time within which a defendant is required to file a response under Fast Track Procedure has been reduced from forty-two (42) days to thirty (30) days.[16]

Proceedings in Revenue Matters: A Respondent who disputes the reliefs sought in Revenue matters must file an Answer within fourteen (14) days of the service of the Petition as opposed to twenty-one (21) days in the old rules.[17] A Petitioner who intends to respond to a Respondent's Answer must file a further affidavit and written reply within three (3) days as opposed to seven (7) days in the old rules.[18] However, the period for hearing petitions after the expiration of the time limited for filing and service has been increased from seven (7) to fourteen (14) days.[19]

Conflicts that arise in the course of hearing such matters must now be resolved by recourse to the provisions of the relevant tax laws.[20] In the old rules, the Court may either decide the matter upon the Affidavits or may direct that the matter be decided by oral evidence in court.

Grant of Probate or Letters of Administration without Will: A person applying for grant of probate and letters of administration without will may require only one surety where the entire estate is not worth more than ₦1,000,000 (One Million Naira).[21] Under the old rules, the estate value for one surety was ₦250,000 (Two Hundred and Fifty Thousand Naira). Under the new rules, where a guarantee is required, it shall be given by two sureties, except where the gross value of the estate does not exceed ₦1,000,000 (One Million Naira.[22]

THE PRACTICE DIRECTIONS

The Practice Directions titled "Expeditious Disposal of Civil Cases: Practice Direction No 1 of 2019-Backlog Elimination Programme (PD 1) and "Expeditious Disposal of Civil Cases: Practice Direction No 2 of 2019 -Pre-Action Protocol (PD 2) are designed to ensure the swift and expedient disposition of civil cases, and eradication of backlog cases.

PD 1 applies to civil proceedings instituted by claim (including counter claim, and renewal of claim) in the High Court Registry, and such other proceedings as the Chief Judge may direct. (It does not apply to proceedings on a separate list - e.g. the fast track list).)

PD 1 contains the following innovations:

  1. Designation of qualifying cases as "Back Log":

Cases filed over 5 years ago and are yet to be decided or settled are qualified to be handled as backlog cases under the backlog elimination programme. The backlog cases are to be struck out, withdrawn, settled or decided expeditiously.

  1. Documents based trial:

PD 1 gives the parties to backlog cases the opportunity to opt for a trial based solely on documentary evidence.

  1. Trial Plan:

In the event that the parties to backlog cases are unable to reach a resolution through alternative disputes resolution mechanisms, the parties are expected to draw up a detailed trial plan.

  1. A flow chart:

PD 1 features a simplified flow chart which illustrates the general flow of the procedure under the practice directions. This is a user-friendly feature that aims to make the system easy to understand by non-lawyers.

  1. Time for delivery of judgment (60 days):

Judgment in a backlog case is to be delivered within 60 days of the adoption of final addresses by both parties. It is notable that this period is shorter than the 90-day period prescribed by the 1999 Constitution of the Federal Republic of Nigeria as amended.

PD 1 stipulates strict timelines, which if not complied with will attract stiff sanctions and penalties. For example, where a case is struck out for non-compliance with the return date attached to the CMC notice or for failure to comply with the procedural timeline or for failure to appear on any court dates under the backlog hearings, the party applying for restoration of proceedings shall pay costs not less than ₦100,000.

The PD 2 establishes the Pre-Action Protocol. The Pre-Action Protocol is one of the documents to be filed along with the originating processes and it is to be frontloaded only in Lagos, by the Claimant only. The Pre-Action Protocol applies to all actions instituted at the High Court of Lagos State.

PD 2 contains the following initiatives:

  1. Pre-Action Protocol Bundle:

A claimant instituting an action must include Pre-Action protocol form 01 with other supporting documents called the Pre-Action Protocol Bundle which must be spiral bound separately and arranged in appropriate order. The Pre-Action Protocol Bundle consists of the pre-action correspondence between the parties to show evidence that ADR has been considered.

  1. Settlement of Disputes through ADR:

Mandatory provisions to make parties resolve their dispute through ADR, and only considering litigation as the last resort. Upon proceeding to litigation, each party's l lawyer is expected to deliver a statement on oath stating reasons for his/her insistence on litigation rather than settlement.

  1. Provisions for specific actions:

Extensive provisions have been made on the application of the pre-action protocol to some specific actions such as on Defamation, Mortgages, Land Matters, Recovery of Debts, and Recovery of Premises.

  1. Failure of Compliance with the Protocol:

Some of the penalties include a daily default fee of N1000 which shall accrue as costs in favour of the counter-party. There is also a minimum cost of N100, 000 for every person who unreasonably refuses to comply but insists on going to trial.

The PD 1 mandates parties to make efforts to resolve the dispute through all the means of the Alternative Dispute Resolution (ADR) and only considering litigation as the last resort. This is to reduce the truck-load of matters that are usually filed at the court and to prevent the filing of frivolous actions.

CONCLUSION

The new rules and the Practice Directions are commendable initiatives in the effort to automate and increase access to justice as well as remove avoidable delays in the dispensation of justice.

However, we note that on the face of the rules, the issue of impromptu absence of judges from the courtroom has not been dealt with. This is one aspect that rules of courts in Nigeria have not made provisions on despite its importance to the delivery of justice. It is hoped that the new rules will produce the desired result and that if necessary and when the circumstances require, it be further amended to address any pending issue.


[1] PM News, (2019) Lagos CJ launches new High Court of Lagos Civil Procedure Rules (online). Available at: https://www.pmnewsnigeria.com/2019/01/21/lagos-cj-launches-new-high-court-of-lagos-civil-procedure-rules/ (Accessed: 1st February 2019).

[2] High Court of Lagos State (Civil Procedure) Rules 2019 ('the new rules'), Order 5 rules 1(2) (e) & 5(3) (d).

[3] Ibid. Order 9 rule 5(1).

[4] Ibid. Order 11 rule 2(2) & (3).

[5] Ibid. Order 11 rule (5).

[6]Ibid. Order 21 rule 5.

[7]Ibid. Order 26 rule 4.

[8]Ibid. Order 28 rule 3(1).

[9]Ibid. Order 28 rule 4(2).

[10]Ibid. Order 29 rule 10.

[11]Ibid. Order 30 rule 1(1).

[12]Ibid. Order 33 rule 5(3).

[13]Ibid. Order 35 rule 3(3).

[14]Ibid. Order 48 rule 4.

[15] Ibid. Order 53 rule 2.

[16] Ibid. Order 59 rule 5(1).

[17] Ibid. Order 60 rule 7(1).

[18] Ibid. Order 60 rule 8.

[19] Ibid. Order 60 rule 9(1).

[20] Ibid. Order 60 rule 9(2).

[21] Ibid. Order 63 rule 3(2).

[22] Ibid. Order 63 rule 4(5) (a).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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