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