By Echem, Chinedu Solomon
The Preamble of the High Court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction No 1 of 2019 provides thus.
“A huge backlog of undecided civil cases has undermined the credibility of civil justice administration in Lagos State and threatens the economic progress of the state and the nation because of the commercial importance of Lagos State in Nigeria and the sub region”.
The hydra headed problem of delay in the administration of justice is not only with a negative impact in the State alone but in the country and abroad bearing in mind that investors always seek an assurance that the legal process of a country is viable.
It is in the light of the above that the Chief Justice of Lagos State Hon. Mr. justice Opeyemi Olufunmilayo Oke, as the Head of the Judiciary in the State and other relevant stakeholders united to tackling this challenge which culminated to the introduction of the new 2019 Lagos State High Court Civil Procedure Rules and Practice Directions with effect from the 31st day of January 2019.
We would attempt to do a critical review of the relevant portions that sort to revolutionalize and modernize the administration of civil justice in the state.
Justice and its Dispensation
The plague of delay in justice delivery system is still of major concern in the nation’s judicial system today. The expectation of the citizenry is huge and requires all stakeholders to work continuously to enhance confidence in the legal system, promote the rule of law, guarantee protection of lives and properties of the citizens. Thus, there is the need to vigorously ensure quick dispensation of justice, as the judiciary is the last hope of the common man. The congestion, administrative bottlenecks and the procedural pranks of legal practitioners, couple with the ineffectiveness of available legal rules all congregate to occasion untold hardship on litigants. This in itself is capable of eroding confidence in the judicial process. Bearing in mind that he judicial arm of the government remains the only and lasting beacon of hope, fairness, and justice to all citizens, the legal profession has a vital role to play in promoting the cause of justice, protecting human rights and upholding professional standards. To this effect, the 2019 Lagos State High Court Civil Procedure Rules (LCPR) and Practice Direction has been introduce to strengthen the judicial process and guard it against further delays.
Novel Provisions of the New Rules
- Pre-Action Protocol: Practice Direction No. 2 sets out mandatory preliminary steps that must be taken, before maters are instituted in Court. The rules require that before an action is instituted, there must have been attempts at settlement. The intending Claimant, must prepare and send a memorandum of claim setting out the details of the claim, and make a proposal for the settlement of the dispute through the use of Alternative Dispute Resolution mechanisms. The party against whom the claim is made (Respondent), must send his response within 7 days, and also make proposal for settlement. Where he fails to do so, the Claimant shall send a reminder giving additional 7 days to respond. The rules contains details of pre-action protocol steps for various matters like defamation, mortgages, land matters, debt recovery, and recovery of premises.
Part of the innovation of the rules, is that it allows litigants to seek pre-emptive remedies like injunctions, before a formal action is filed, to prevent irreparable damage or serious mischief. The procedure is by filing the memorandum of claim, together with an ex parte originating application. A party who wishes to institute an action, must file Pre-Action Protocol form 1, together with Pre- Action Protocol Bundle containing correspondence exchanged between the parties, and cogent evidence that ADR has been considered.
Unlike the old rules, there are stringent penalties for failure to comply with Pre- Action Protocol or the settlement procedure, under the pre-action protocol. Under Order 5 Rules 1(2) (3), 5 (3), (4), and Order 7 Rule 1 of the main Rules, non- compliance nullifies the proceedings. This is obviously a shift from the decision of the Court of Appeal in Spog Petrochemicals Limited & Anor v Pan Pennisula Logistics Limited where it was held that, once the originating process is accepted for filing, the non-compliance cannot defeat the action. Failure to comply with the timelines in Pre-Action Protocol, shall attract a daily default fee of N1,000, in favour of the other party. On the other hand, failure to comply with settlement procedure under the pre-action protocol or the directive of the court referring parties to ADR, shall attract costs of N100, 000 on the party insisting on trial.
- Substituted Service: Substituted service can now be done via electronic mails. See Order 9 Rule 5(1).
- Close of Pleadings: Pleadings are deemed closed, when the Defendant fails to file defence within 42 days. This was absent in the old rules. See Order 17 Rule 18.
- Withdrawal of Action at Trial: Order 25 Rule 4, allows a Claimant to withdraw his claim after trial has commenced. Such an action, will be dismissed by the court. This is substantially in consonance, with what obtains in practice. It will however, answer the question of what stage a matter would get to before a dismissal order can be made, when the Claimant or Counter-Claimant, seeks to discontinue the action. Under the rule, dismissal can only be possible when trial has commenced.
- Backlog Elimination Programme (BEP): One of the strategies for the expeditious disposal of civil cases, is the BEP. Under this program, the Chief Judge (CJ) shall designate cases which have remained undecided for a minimum period of 5 years before 14th January, 2019 (Practice Direction No. 2), as ‘Backlog’. Upon designation by the CJ as a Backlog, the Registrar shall issue a notice to the Claimant, to show cause why the case should not be struck out. The notice shall be sent to the email address provided. The Claimant must respond within 14 days, by filing a notice of discontinuance, giving notice that the matter has been settled, or intention to settle, or by filing application to set the matter down for trial. Where the court determines during compulsory case management conference that the matter can only be resolved by court proceedings, it shall direct the parties to file a joint trial plan within 14 days, and issue procedural timetable after considering the plan. Failure to comply with the timetable may lead to a default judgement, or a striking out of the case and costs of N50, 000 or N100,000 depending on the circumstances, disciplinary report against counsel etc. Trial shall be from day to day.
In order to resolve the matter, the direction mandates the use of ADR processes, and allows the parties to agree to a trial by ‘documents only’. Court may order costs not less than N250,000 for non-compliance, where it discovers that the matter could be resolved by ADR, and the other party was unwilling to settle.
- Transferred Cases: The rules require that, where a matter is transferred from other courts to the Lagos High Court, any of the parties shall re-file the action in compliance with Order 4.
- Alternative Dispute Resolution (ADR) Proceedings: Order 28 is a new provision, on ADR. The order applies to matters screened for ADR, matters referred to ADR during CMC, and applications for enforcement of arbitral awards. Interestingly, the rule provides that, the mode for enforcement of arbitral awards and other steps in arbitration, is by originating motion on notice. Under the old rules, it could be by motion on notice. See Order 39 Rule 4, of the old rules. Order 28 Rule 4, stipulates 3 months within which an application may be made to set aside or remit an award, and that the period may be extended by the court. It is submitted that, this can only apply to awards not made under statutory provisions like the Arbitration and Conciliation Act. See Dunlop Plc (Now DN Tyre & Rubber Plc) v Gaslink Nig Ltd (2008) LPELR43642.
- Diligent Prosecution: Order 34(3) reenacts the provisions of Order 27 Rule 13 and Order 30 Rule 19 of the old rules, on diligent prosecution. In addition, the rule provides that, where a matter is pending and no application is filed or proceedings held within 12 months, the matter shall be struck out.
- Filing of Written Address: Written addresses cannot exceed 20 pages and reply on points of law, 5 pages, without the leave of court. There was no limitation in the old rules. See Order 35 Rule 3.
- Interpleader: The Rules retained the old provisions on interpleader summons, but adds that, if Claimant fails to appear to maintain his claim upon being served with a summons, the Judge may make an order declaring him and all persons claiming under him, perpetually barred against the Applicant. See Order 47 Rule 8. Rule 9, gives the court the powers to order costs.
- Default fees have been increased to N1,000 as against N200, in the new rules. See Order 48 Rule 4. Costs have also been increased. These are desirable to stem the tide of deliberate delays in the judicial process, and are in line with international best practices.
- Fast Track Procedure: The Fast Track Court is ‘created’ to hear matters involving claims of not less than N100 million mortgage transaction, charge or other securities commenced by writ of summons. Fast track for a liquidated claim involving a Claimant who is not a Nigerian or resident in Nigeria, has been removed from the rules. A Claimant or Counter-Claimant, is no longer required to make application to the Registrar for fast track, as it was in Order 56 of the old rules. Various times for filing processes are abridged to meet the objective of the rules, which is to reduce the time spent on litigation, to a period not exceeding 9 months- Order 59. Specifically, in fast track cases, a Defendant is expected to file a defence within 30 days, and not 42 days, under the old rules.
- Proceedings in Revenue matters: The rules retained provisions on revenue matters. In addition, all matters involving revenue, now qualify for fast track. In tax cases, the Petition for recovery shall now be accompanied with a certificate issued pursuant to Section 78(3) of the Personal Income Tax Act. The rule also allows the Respondent to pay instalmentally, where he is not disputing the claim.The timelines for disputing the claim and filing replies, have been reduced. See Order 60.
- Administration of Estate: Penalty for failure to file the annual account of administration of estate, has been increased to N100,000 annually. Also, penalty for intermeddling with an estate, is increased to N500,000 from N50,000. See Order 61 Rules 16 and 17. There are other costs and penalties, in line with the drive to use costs to reduce frivolous and vexatious applications and actions.
The new rules and its controversy
While the new High Court Rules has been heralded in certain quarters as an antidote to the unceasing and unsavory delay in the administration of civil justice in the state, facts are beginning to emerge of that the Nigeria Bar Association, particularly the Ikeja branch which boast of a large chunk of practicing lawyers in the state have expressed their dismay and lack of involvement in the process of crafting and enactment of the new rules. The Ikeja branch of the Nigerian Bar Association (NBA) through its Chairman, Mr Dele Oloke, faulted the Chief Judge of the State for the enactment of the rules without the input of it members. Addresing newsmen on Monday February 4th 2019, Chairman, NBA Ikeja Branch, described the launch as an “affront” to its 6,500 members, the second largest NBA branch in Nigeria. Mr. Oloke said that members of the Branch were not involved in the process of the enactment of the High Court Rules. He added that When the Committee of the Rules was set up by the CJ of Lagos State, there was no representation from all the five NBA branches of Lagos State. Quoting him, he said “We are the lawyers that go to all these courts and make submissions that lead to adjudication by the judges, when the Rules Committee was set up, it was made up of judges and judges alone.
The Ikeja branch Chairman also unequivocally condemned the high costs of filing fees and the alleged N100,000 fine that is to be imposed against lawyers who are late to court proceedings. Describing the fine as “heavy” and “punitive”, he said that traffic in the Lagos metropolis and other unavoidable factors could lead to counsel coming late to court. He noted that judges who did not also sit for unavoidable reasons were not being fined. The NBA Chairman noted that a lot of lawyers who undertook pro bono cases for poor clients would be unable to afford the N100,000 fine and this may prompt such lawyers to drop the pro bono cases. According to him, “This will lead to instances of poor litigants abandoning the judicial system which is supposed to be the last hope of the common man and resorting to jungle justice,”
Impact of news rules in the administration of civil justice in Lagos.
The new rules as currently obtained, has the inherent capacity to stimulate a more proactive approach to litigation. Litigants through the news rules will be encouraged to resort to Alternative Dispute Resolution is comparatively faster and less technical compared to court proceeding. The LCPR is a giant leap, in the drive towards quick dispensation of justice. Pre- Action Protocol formalities and the BEP, are commendable and revolutionary in justice administration in Nigeria. The introduction of reasonable costs and default fees, will substantially prevent spurious and vexatious claims, and curb calculated delays by Lawyers. It is therefore hoped that It is hoped that, Lawyers will key into the system designed by the rules. Lawyers must, as a matter of urgency, get back to the business of resolving real disputes which is the objective of this rules. Lawyers from other jurisdiction who may intend on filing an action or defending same in Lagos must equally be abreast with the new news to avoid a miscarriage of justice on technicalities of procedural default.
Finally, it is equally expected of other Heads of Jurisdiction in Nigeria to take a cue from the Lagos rules substantially mirrors international best practices, in dispute resolution and fashion out an updated court rules and practice direction in their respective states. By so doing, there will be a synergy towards the attainment of civil justice in the whole of the country.
By Echem, Chinedu Solomon
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