The Chief Judge of the Federal Capital Territory, Honourable Justice IshaqUsman Bello has made a New High Court rule for the Federal Capital Territory. The rule is referred to as the High Court rule of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 (hereinafter referred to as Abuja (Civil Procedure) Rules 2018) and takes effect from February 15, 2018.
The Abuja (Civil Procedure) Rules 2018 is made to amend and substitute the old High Court rule of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004 (hereinafter referred to as Abuja (Civil Procedure) Rules 2004).
Since 2004 when it was introduced by the then Chief Judge of the Federal Capital Territory High Court, Honourable Justice Lawal Hassan Gummi, the Abuja (Civil Procedure) Rules 2004 spanned within the space of 14 years until recently when it was criticized for the inability to ensure speedy delivery of justice in line with the international best practice.
In addition, the old rule failed to incorporate the use of recent technology and scientific inventions in the justice system.
The stakeholders have addressed various sundry issues ranging from delay in the justice system caused by lawyers and some judicial officers, failure to adopt recent technology for efficient and effective administration of justice a lot more
So the Abuja (Civil Procedure) Rules 2004 has become old and archaic and fast losing its value of holding the fabrics of justice to suit the recent judicial procedures.
The long awaited Abuja (Civil Procedure) Rules 2018 is therefore timely and needed more than ever to ensure speedy delivery of justice without any colour of sentiment for social or political status in the society.
A REVIEW OF THE NEW HIGH COURT RULE OF THE FEDERAL CAPITAL TERRITORY, ABUJA (CIVIL PROCEDURE) RULES 2018
The novel issues addressed by the Abuja (Civil Procedure) Rules 2018, although not limited to, includes: – payment of fines for any act of non compliance with the rules, introduction of summary judgment, and fast-track proceedings
The Abuja (Civil Procedure) Rules 2018 now has 65 orders as against 53 in the Abuja (Civil Procedure) Rules 2004, which in effect means that some new orders are now newly incorporated in the new rules
The orders just incorporated in the High Court of the Federal capital territory rules are:
- Order 1- Application and Interpretation
- Order 4- endorsement of claim and address
- Order 6 -issue of originating process
- Order 8-Service outside Nigeria and Service of foreign process
- Order 11- summary judgment
- Order 26- settlement out of court
- Order 27- pre-trial conference and scheduling/ settlement and trial of issues
- Order 30- special cases
- Order 31- cause list
- Order 37- fast track cases
- Order45 jurisdiction of chief registrar
- Order 46 garnishee proceedings
- Order 55-Change of legal practitioners
- Order 58 foreclosure and redemption
As a result of the newly introduced orders itemized above, the arrangements of the orders have consequently changed from the way it was in the old rules.
This means that the Abuja (Civil Procedure) Rules 2018 contains the following orders:-
Order 1- Application and Interpretation
Order 2- Form and Commencement of Action
Order 3-Place of Institution and Trial of Suit
Order 4-Endorsement of Claim and Address
Order 5-Effect of Non-Compliance
Order6-Issue of Originating Process
Order 7- Service of Process
Order 8- Service outside Nigeria and Service of Foreign Process
Order 9- Appearances
Order 10- Default Appearances
Order 11- Summary Judgment
Order 12- Application for Account and Inquiries
Order 13- Parties Generally
Order 14-Joinder of Causes Of Action
Order 15- Pleadings
Order 16- Statement of Claim
Order 17- Defence and Counter Claim
Order 18- Reply
Order 19- Arbitration and Alternative Dispute Resolution
Order 20- Admissions
Order 21- Default of Pleading
Order 22- Payment into and out of Court
Order 23- Proceedings in Lieu of Demurrer
Order 24- Withdrawal or Discontinuance
Order 26- Settlement out of Court
Order 27- Pre-Trial Conference and Scheduling
Order 28- Discovery and Inspection
Order 29- References to Referees and Accounts
Order 30- Special Case
Order 31- Cause List
Order 32- Proceedings at Trial
Order 33- Filing of Written Address
Order 34- Evidence Generally
Order 35- Undefended List
Order 36- Affidavits
Order 37- Fast Track Cases
Order 38- Non-Suit
Order 39- Judgment, Entry of Judgment
Order 40- Drawing up of Orders
Order 41- Transfers and Consolidation
Order 42- Interlocutory and other Orders
Order 43- Motion and other Applications
Order 44- Application for Judicial Review
Order 45- Jurisdiction of Chief Registrar
Order 46- Garnishee Proceedings
Order 47- Habeas corpus, Attachment for Contempt
Order 48- Inter-pleader
Order 49- Computation of Time
Order 50- Appeal from District and Area Courts
Order 51- Appeal to the High Court from Decisions of Auditors
Order 52- Miscellaneous Provisions
Order 53- Arrest of Absconding Defendant
Order 54 Proceedings in Forma Pauperis
Order 55 Change of Legal Practitioner
Order 56- Cost
Order 57- Application and Proceedings in Chambers
Order 58- Foreclosure and Redemption
Order 59- Summons to Proceed
Order 60- Summary Proceedings for Possession of Landed Property Occupied by Squatters or without Owner’s Consent.
Order 61- Stay of Execution or Proceeding Pending Appeal
Order 62- Probate and Administration
Order 63- Register of Probate, Letters of Administration and Wills
Order 64- Probate (Non-Contentious) Procedure
Order 65- Fees and Allowances
On the whole, the Abuja (Civil Procedure) Rules 2018 has adopted the word ‘claimant’ and ‘defendant’ for parties in a suit as against the use of ‘Plaintiff’ and ‘defendant’ in the Abuja (Civil Procedure) Rules 2004.
These are some of the innovative ideas in the Abuja (Civil Procedure) Rules 2018:-
- Application and Interpretation
The first and opening order in the Abuja (Civil Procedure) Rules 2018 is the application and interpretation order as against the Abuja (Civil Procedure) Rules 2004 that lumps the definition of terms with the schedule. It basically defines new terms that were not contained in the old rule. Terms such as ADR, Claimant, court process, decision, defendant, legal practitioner, minor, process, probate action, taxing officer and lot more now find definition and meaning in the Abuja (Civil Procedure) Rules 2018– See Order 1 Abuja (Civil Procedure) Rules 2018
- Documents to be filed with a Writ
All civil proceedings comment by writ of summons shall be accompanied with a list of witnesses which was not in the Abuja (Civil Procedure) Rules 2004. It means the Documents to be filed with a writ in Abuja now are:
- Statement of claim
- List of witnesses
- Written statement on oath of the witnesses
- Copies of every documents to be relied on at the trial
- Certificate of pre-action Counseling.
See Order 2 (2) Abuja (Civil Procedure) Rules 2018
- Endorsement of process for service in Nigeria but outside Abuja
Another innovative amendment to note under the Abuja (Civil Procedure) Rules 2018 is that processes for service in Nigeria but outside Abuja shall be endorsed by the registrar as:
“this summons (or as the case may be is to be served out of the Federal Capital Territory, Abuja and in the __________________________state.”
See order 2(4) Abuja (Civil Procedure) Rules 2018
- Screening for ADR
The Chief Judge of the FCT can refer any case considered appropriate for ADR to Abuja Multi door court house or other appropriate ADR institutions or practitioners- See Ord. 2(7) Abuja (Civil Procedure) Rules 2018
- Compulsory use of NBA seal
Also the controversial argument on whether it is necessary to affix a lawyer’s seal on a process is now settled by the Abuja (Civil Procedure) Rules 2018. All processes before it is accepted for filing at the registry shall bear the seal of the Counsel filing the suit as provided by the NBA.-Ord. 2(9) Abuja (Civil Procedure) Rules 2018
- Electronic filing and service
The Abuja (Civil Procedure) Rules 2018 now specifically provides that suits and interlocutory applications may be filed and served by electronic means.
Although the modalities for the effectiveness of this process is not yet certain, more so it lies in the Chief Judge to constantly make practice direction on the modalities of electronic filing and services. It is however certain that when it finally commences electronic filing will be an aid to the speedy administration of justice in the Federal Capital Territory. See Order 3(5) Abuja (Civil Procedure) Rules 2018
- Powers Of Court On Action Commenced In The Wrong Judicial Division
On actions commenced at the wrong division, the old rule, Abuja (Civil Procedure) Rules 2004 provided that the court can use its discretionary power or based on the parties application for conveniences and continue the matter in the same division it commenced or may transfer it to another division if need be.
On the contrary, the Abuja (Civil Procedure) Rules 2018 has usurped this discretionary power of the court and disregarded the application of parties for conveniences. Instead, it is only the chief judge that can consider a case for transfer to another judicial division if need be. See Order 3 (6) of the Abuja (Civil Procedure) Rules 2018 as against Order 9 (5) of the Abuja (Civil Procedure) Rules 2004.
NOTE: High court of the Federal Capital Territory is just one division so the issue of wrong judicial division may not even arise in the first place.
- Endorsement Of Status Quo
Every originating processes now bears on the face of it an endorsement by the registrar that parties maintain status quo until otherwise ordered by the court.
The idea behind this is for the actual preservation of the Res for the period while the case is in court. It is humbly submitted that this is to reduce the spate at which litigants rush to court to file applications in order to preserve the subject matter of the suit until final determination. See Order. 4 (9) of the Abuja (Civil Procedure) Rules 2018
- Life Span
The Abuja (Civil Procedure) Rules 2018 now puts the life span of a writ in the federal capital territory at 6 months and with 3 months renewal of not more than 2 times. The proviso is however that no originating process shall be in force for longer than a total of 9 months- Order 6 (7) Abuja (Civil Procedure) Rules 2018
This is as against the Abuja (Civil Procedure) Rules 2004 rules that fixed the life span of a writ at 12 months and another 12 months renewal
- Lost Of Originating Process After Issue
In this case, that is where an originating process is lost after issue; the court may accept copy of the certified process in place of the lost one.
According to the Abuja (Civil Procedure) Rules 2018, service of originating process shall be made by sheriffs, deputy sheriff, bailiff, special marshal or other officer of the court. The chief judge may also appoint law chambers, courier companies, or any other person or by electronic means mutually agreed.
- Service on registered company , corporation or body corporate
Serving an originating process requiring personal service on a registered company, corporation or body corporate can now be done by delivering it at the head office or any other place of business of the organization within the jurisdiction of the court. See order 7(8) Abuja (Civil Procedure) Rules 2018
- where violence is threatened
The new position where a person is to be served alone or in concert with others, and such service is resisted by person(s) or such person(s) threatens violence to the process server, the process server can leave the process within the reach of the person to be served Order 7 (12) Abuja (Civil Procedure) Rules 2018
- Hearing Notice
Hearing notice can now be served via email or SMS except as otherwise directed by the judge and Time of service is within 6am -6pm.
A Defendant entering appearances has within 7 days to serve a sealed copy of the memorandum of appearance on a claimant’s legal practitioner or on the claimant as the case may be and on other defendants if any.
It will be recalled that the Abuja (Civil Procedure) Rules 2018 provided that the defendant can appear anytime before judgment.
- Summary judgment
Summary judgment is now specifically provided in the new high court of the FCT rules.
Where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, exhibits, the depositions of his witnesses and application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and written brief in support of the application. See generally Order 11 Abuja (Civil Procedure) Rules 2018
- Matters where Representative actions can be filed
The Abuja (Civil Procedure) Rules 2018 provides and specifies matters where representative actions can commence, they are matters under:
- Administration of estate
- Property subject to trust
- Land devolved under other interest as family or community property
- Construction of any written instrument including a statute
See order 13(15) Abuja (Civil Procedure) Rules 2018
This is as against the Abuja (Civil Procedure) Rules 2004 that only identified it under application for declaration and injunction
- Joinder of actions
An application to add a claimant or defendant as the case may be shall have the following: a statement of claim/defence, exhibit to rely on and written deposition of the witness.
- 3rd Party proceedings
The Abuja (Civil Procedure) Rules 2018 now stipulates 8 days for a 3rd party to enter appearance if within jurisdiction, and if not within jurisdiction, he has 35days to enter appearance.
The Abuja (Civil Procedure) Rules 2004had provided for 8 days within jurisdiction and 30 days if outside jurisdiction.
A 3rd party can join another party as 3rd party in the same manner he was joined in the action and on like that. Note that the essence of a third party in a proceeding is to indemnify the party that joins him to the suit.
- Filing of defence and reply
A defendant shall file his statement of defence, set off or counter claim if any, not later than 21 days after service on him of the originating process, while a claimant shall within 14 days of service of statement of defence and counter claim if any file his reply and defence if any to such defence or counter claim.
While the Abuja (Civil Procedure) Rules 2004 had provided for 14 days after service of statement of claim for defence to be filed in the old rule and reply filed within 7 days of service of statement of defence to file.
- Grounds for Striking out
The Abuja (Civil Procedure) Rules 2018 has introduced more grounds for striking out of pleadings by court, the grounds are:-
- Discloses no reasonable cause of action/defence
- Scandalous frivolous, vexatious
- Prejudice, embarrass, delay fair trial,
- Abuse of process of court.
Note this rule applies to originating summons and petition as if they were pleadings.
- Withdrawal And Discontinuance Of Suit
In the new rule, Claimant can withdraw before receipt of the defence or after receipt but before taking further steps as against any time with leave (and without leave not later than 14 days after service of defence on him).
The Abuja (Civil Procedure) Rules 2018 provides that amendment can be any time before pre-trial conference and not more than 2 times during trial but before judgment. The Abuja (Civil Procedure) Rules 2004 on the contrary provided that amendment could be at any stage of the proceedings.
Also note that list of additional witness shall be filed with amendment of originating processes.
Where a litigant fails to amend within the time provided by the rules of court or within 7 days after an order for such amendment has been granted, such litigant shall pay N100 fine for each day of default for failure to amend within time
- Settlement out of court
The Abuja (Civil Procedure) Rules 2018 provides that when a case comes for the first time court may grant a period not more than 30 days for settlement out of court. This particular rule emphasizes the need for settlement.
Court also has discretionary powers to close the case for parties where he strongly considers either party fails to conclude his case within the reasonable times.
Under default judgment, where a party fails to apply within 6 days after judgment was delivered, he will pay N200 for each day of default, and Proof of payment shall be attached to application for extension.
- Written Address
Unlike before, the Abuja (Civil Procedure) Rules 2018 now stipulates that written addresses shall be filed with list of authorities and where an unreported case is cited, a certified copy of it shall be attached to the process.
Every application for enlargement shall be accompanied by proof of compliance with the rule which is the receipt of payment for the days of default.
Where a party defaults in filing a court process except memorandum of appearance within the time prescribed under the provision of these rules, such party shall pay the sum of N200 only for each day of default.
In view of the foregoing changes and amendment to the high court of the federal capital territory rules there seems to be an assurance for speedy administration of justice as some of the preliminary issues that often cause delay in court proceedings have been extensively dealt with in the Abuja (Civil Procedure) Rules 2018.
On the other hand, it is believed that for the Nigerian justice system to totally gain the confidence of the citizenry, more is still to be done especially in the area of how to avoid long hand writing in taking proceedings of the court by Judges. This will definitely reduce the stress on these judges.