On 1st November 2021, the new Court of Appeal Rules 2021 ("the 2021 Rules" or "the Rules") came into force, repealing the Court of Appeal Rules 2016 ("the 2016 Rules") and bringing several notable changes to the procedural operations of Nigeria's penultimate appellate court.2
With the COVID-19 pandemic still affecting the regular operation of many sectors, including the justice sector which faced notable delays, virtual proceedings are becoming common. In the 2021 Rules, notable changes have been made to reflect the new reality of virtual proceedings and innovative provisions prompting the expeditious disposal of appeals have been introduced as well. In the subsequent paragraphs, some of the notable changes introduced by the 2021 Rules are highlighted, alongside certain operational problems of the Rules which have already started cropping up.
Innovations Introduced by the 2021 Rules
- Virtual Hearings: By virtue of Order 21 of the 2021 Rules, proceedings can now be conducted virtually. Court sittings are also defined to include both physical and virtual sittings of the court.3 This provision is a welcome development in light of the fact that unlike some other Nigerian courts, the Court of Appeal has reportedly not conducted any virtual hearings since the resumption of the courts post-lockdown.4
- Electronic Filing: Order 20 of the 2021 Rules permits the electronic filing of documents. A 24-hour electronic filing system is to be established in the registries of the Court of Appeal all over Nigeria.5 This provision is complementary to Order 21 and is a welcome innovation.
- Electronic Compilation & Transmission of Records of Appeal - Order 8 of the Rules permits the Registrar6 of the lower court or the Appellant,7 to compile, encrypt and electronically transmit Records of Appeal to the court through the electronic mail address of the registry of the judicial division of the court where the appeal is to be entered, provided that ten (10) physical copies of the Records of Appeal will also be transmitted to the Court of Appeal.
- Electronic Service of Notices of Appeal and Applications: Under the 2021 Rules, Notices of Appeal may be served either personally or by electronic mail.8 Additionally, where a party has provided an electronic email address for service during proceedings at the lower court, notices of any application preparatory or incidental to the appeal may be served electronically.9
- Publication of Cause List on Court's Website: Under the 2021 Rules, a weekly cause list of matters to be heard during the following week is to be published on the official website of the Court, in addition to pasting the cause list on the Court's notice board.10 Additionally, parties may be notified of the sittings of the Court and the matters to be disposed of via their email addresses, as well as physical addresses.11
- Computation of Time: Under the 2021 Rules, the computation of time to file court processes, undertake any steps provided by the Rules or pay default fees for extension of time to file a process or do an act, shall be exempted during the occurrence of events which disrupt the normal conduct of the business of the Court.12 Simply put, time will cease to run when disruptive events affecting the court's business occur. This provision is quite innovative, in light of the ongoing COVID-19 pandemic, which caused the suspension of court proceedings and shutdown of courts last year.13
- Notice of Motion to be Accompanied with a Written Address: Under the 2021 Rules, motions are now required to be accompanied by a written address14 and are deemed argued even when Appellant fails to appear in court.15 Each written address shall not exceed more than five (5) pages and the reply on point of law shall not exceed more than three (3) pages.16 This provision is aimed at securing speedy hearing of applications which are opposed, and though the provision was not present in the 2016 Rules, written addresses have often been prescribed by the Court of Appeal in contentious applications, as a matter of practice.
- Response Time to Applications: Under the 2021 Rules, the Respondent to an application is granted only five (5) days to respond to the application and the Applicant has three (3) days to reply.17
- Payment of Monetary Deposit by the Appellant: Upon transmission of the Records of Appeal, appellants are mandated to deposit the sum of N50,000 (fifty thousand naira), for the diligent prosecution of their appeals and payment of any costs which may be ordered to be paid by the Appellant.18 However, this provision does not apply to indigent persons19, the Nigerian Government and any of its departments.20
Furthermore, appellants may be required to pay any further sum as may be directed by the Registrar as additional deposit, in event of depletion of the initial deposit.21 While the Rules do not provide for any exemptions in respect of this provision, it may be reasonably presumed that the same exemptions regarding the payment of the main deposit apply here as well.
- Substitution of Name: Under the 2021 Rules, where the name of a party changes during the pendency of a suit, the party or Appellant may apply for an order for substitution, in the manner prescribed under the Rules.22
- Increase in Daily Default Fees: Under the 2021 Rules, failure to file appellate briefs within the prescribed timeframe will attract a default fee of N00 (two hundred naira) for each additional day subsequent to the due date of filing.23 This is an increase from the former daily default fees of N100.00 (one hundred naira).
- Withdrawal of Appeals by Consent: Appeals can now be withdrawn by the consent of parties, obviating the need to apply for an order of court. Where withdrawal is by consent, all parties need to do is to file the documents indicating their consent at the Court's registry.24 Furthermore, withdrawal by consent acts as a bar to further proceedings relating to the Respondent's Notice of Contention.25
- Relisting of Appeals: Where an appeal has been struck out for failure to compile and transmit records of appeal, it can be relisted upon application within 7 days of the striking-out order, where the Court is satisfied that the appellant has shown good cause for the relisting of the appeal.26
- Effect of Non-filing of Respondent's Brief: The 2021 Rules provides that where a respondent who has been duly served with the appellant's brief and a hearing notice fails to file his brief within the time stipulated in the Rules, the Court may proceed with the hearing of the appeal based on the appellant's brief alone, without the need for an application by the appellant to hear the appeal on the appellant's brief alone,27 which was the former practice before the enactment of the Rules.
- Establishment of Court of Appeal Alternative Dispute Resolution Programme (CAADRP): The 2021 Rules establishes the Court of Appeal Alternative Dispute Resolution Programme (CAADRP), which shall be operated by the Court, at the direction of its President.28 This programme replaces the Court of Appeal Mediation Programme (CAMP) provided in the 2016 Rules.29 Unlike the CAMP, which was extensively provided for under the 2016 Rules, the 2021 Rules do not make such extensive provisions regarding the CAARP.30
Application of the New Rules: Some Teething Problems
The new rules came into force on 1st November 202131 and its provisions immediately began to take effect from that date.32 Indeed, most of the provisions of the Rules are laudable and such swift implementation is in order. However, it was not expected that certain provisions of the new Rules would be applied to appeals pending in the Court of Appeal before 1st November 2021.
For instance, for applications filed before 1st November 2021, it would be unexpected to ask counsel to start filing written addresses in respect of such applications, considering the long timespan of some of these applications in the Court of Appeal's docket. This was the reasonable presumption of this writer, until the occurrence of events indicating the contrary recently. There have been complaints of counsel being instructed to file written addresses, in respect of applications filed before 1st November 2021. This is strange, as one would think that the new Rules would apply only to appeals filed after their commencement. It seems there is no provision for a transition period with regards to appeals and, particularly motions hitherto pending before the Court of Appeal prior to the new rules coming into force.
Additionally, the sparse provisions in respect of the freshly minted Court of Appeal Alternative Dispute Resolution Programme (CAADRP) are a bit worrisome, as implementation of such a sparse framework might be problematic.
The issues highlighted in the previous segment are teething troubles, as may be expected in the early days of any new statute and it is hoped that with time, these troubles are worn away. It is also our hope that as the new Rules are put into use, the President of the Court of Appeal shall issue Practice Directions, where necessary, to resolve some of the issues that may arise. In the interim, the innovative provisions of the 2021 Rules must be commended, as they indicate that the Nigerian Appellate Court is keeping with the times in which we find ourselves.
1 Miracle Eme, Associate, Dispute Resolution and Energy & Natural Resources Department, SPA Ajibade & Co, Lagos, Nigeria.
2 Salihu, Tanimu, 'Court of Appeal Unveils New Rules', available at:https://radionigeria.gov.ng/2021/12/08/court- of-appeal-unveils-new-rules/, accessed 15th December 2021.
3 Order 1 Rule 5, Court of Appeal Rules, 2021.
5 Order 20 Rule 1, Court of Appeal Rules, 2021.
6 Order 8 Rule 3, Court of Appeal Rules, 2021.
7 Order 8 Rule 4, Court of Appeal Rules, 2021.
8 Order 2 Rule 1, Court of Appeal Rules, 2021.
9 Order 2 Rule 3, Court of Appeal Rules, 2021.
10 Order 3 Rule 12(1), Court of Appeal Rules, 2021.
11 Order 3 Rule 12(2), Court of Appeal Rules, 2021.
12 Order 19 Rule 12, Court of Appeal Rules, 2021.
13 Wandoo Sombo, 'COVID-19: Lawyers commend CJN for suspending court sittings' (NNN, 26 March 2020), available at https://nnn.com.ng/covid-19-lawyers-commend-cjn-for-suspending-court-sittings/, accessed 1st December 2021.
14 Order 6 Rule 1(a), Court of Appeal Rules, 2021.
15 Order 6 Rule 8(2), Court of Appeal Rules, 2021.
16 Order 6 Rule 1 (b), Court of Appeal Rules, 2021.
17 Supra, n. 10.
18 Order 8 Rule 11, Court of Appeal Rules, 2021.
19 Order 1 Rule 5 of the Court of Appeal Rules defines indigent persons as "persons whose annual income is less than the annual wage of persons in Grade Level 01 in the civil service of the Federation".
20 Supra, n. 13.
21 Order 8 Rule 12, Court of Appeal Rules, 2021.
22 Order 15 Rule 4, Court of Appeal Rules, 2021.
23 Part A, Third Schedule, Court of Appeal Rules, 2021.
24 Order 11 Rule 2, Court of Appeal Rules, 2021.
25 Order 11, Rule 3, Court of Appeal Rules, 2021.
26 Order 8 Rules 3 and 4, Court of Appeal Rules, 2021.
27 Order 19 Rule 10 (3), Court of Appeal Rules, 2021.
28 Order 16, Court of Appeal Rules, 2021.
29 Order 16, Court of Appeal Rules, 2016.
30 For instance, the 2021 Rules do not make any provisions regarding the categories of appeals eligible for the CAARDP, unlike the 2016 Rules which provided for this in respect of the CAMP.
31 Order 1 Rule 1, Court of Appeal Rules, 2016.
32 This is as provided by Section 2 (3), Interpretation Act CAP 123, LFN 2004.
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