By Written By David Andy Essien, Esq.
THE JURISPRUDENCE AND LEGAL BASIS FOR DEFAULT FEES UNDER THE AKWA IBOM STATE HIGH COURT (CIVIL PROCEDURE) RULES 2009
Prior to the coming into force of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 on the 1st day of December, 2009, the provision for payment of Default Fee(s) was inexistent in the old Rules of Court. Specifically, Order 22 Rule 3(1) and (2) of the Akwa Ibom State High Court (Civil Procedure) Rules 1989, governing the extension of time to carry out any act, did not provide for the payment of Default Fee(s). Section 274 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) unhesitatingly empowered the Chief Judge of Akwa Ibom State to make rules for regulating the practice and procedure of the Akwa Ibom State High Court but made such rules subject to the provisions of any law made by the Akwa Ibom State House of Assembly.
With the passage of time and growth of law, Section 76 of the High Court Law, Cap. 55 Laws of Akwa Ibom State of Nigeria 2000 (hereinafter referred to as “High Court Law”) created and constituted a committee known as “the High Court Rules Committee”. By Section 77(1)(r) of the said High Court Law, the High Court Rules Committee was empowered to make rules for regulating the imposition of penalties on any person who fails to take any action required by a rule of court or who disobeys any rule of court. This sanction, in monetary terms, inflicted upon any erring party is what is commonly referred to as “Default Fee,” “Additional Fee” or “Penalty”.
Furthermore, Section 18(1)(c) of the Interpretation Law, Cap. 64 Laws of Akwa Ibom State 2000 (hereinafter referred to as “Interpretation Law”) took a progressive step to provide that where a Law confers power on any authority to make rules of court, there may be annexed to any rule of court such penalty not exceeding five hundred naira or imprisonment not exceeding three months as the rule making authority may think fit on any person who fails to take any action required by a rule of court or who disobeys any rule of court. These provisions provide an anchor and also a harbour for the ship of Default Fee to berth.
A ready question that comes to mind is: what is the essence of the inclusion of the Default Fee Provision in the Rules of Court and what mischief was it intended to cure? The answer to this question is not far-fetched. The Default Fee Provision was introduced over time in Rules of Court as a sanction and/or penal provision to ensure that cases are not unduly delayed by filing court processes outside the time allowed by the Rules or permitted by the Judge. Again, as an antidote, it was introduced to address Counsel/Litigant-induced delays. A ready example of the novel and innovative Default Fee Provision can be found in the provisions of Order 24 Rule 4 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 which unmistakably provides that:
“If a party who has obtained an order to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within 7 days from the date of the order, such party shall pay an additional fee as the High Court Rules Committee may fix in a schedule of fees payable in court for each day of default.” (Underlining mine, for emphasis)
THE OBLIGATION ON GOVERNMENT DEPARTMENTS TO PAY DEFAULT FEES UNDER THE AKWA IBOM STATE HIGH COURT (CIVIL PROCEDURE) RULES 2009
The origin and legal foundation for the waiver of filing fees is not alien to the Akwa Ibom State corpus juris. Section 19(1)(e) of the Interpretation Law provides that where any Law confers power on any authority to make rules of court and to make provisions therein in respect of fees or charges, such authority may provide in the rules of court for the waiver in whole or in part of any such fees or charges either upon the happening of certain events or in the discretion of any person.
Providing greater insight to the length and breadth of the waiver contemplated, Section 19(2) of the Interpretation Law states that where any waiver in whole or part of any fee or charge is provided, such waiver may be made to apply either generally or specifically –
- in respect of certain matters or classes of matters;
- in respect of certain documents or classes of documents;
- where any event happens or ceases to happen;
- in respect of certain persons or classes of persons; and
- in respect of any combination of such matters, persons, documents or events.
In the light of the above foundation, Order 45 Rule 11 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 (hereinafter referred to as “Order 45 Rule 11”) drew strength and took a bold step to exempt Government Departments from the payment of filing fees. For purposes of clarity and completeness, the said provision is reproduced below:
“No fees are to be taken in respect of any proceedings where such fees would be payable by any Government Department.”
Order 57 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 proceeded to make certain the fact that the fees payable by any person commencing proceedings or desiring services specified therein are set out in the 1st – 7th Schedules. Thus, it is safe to say that the fees set out in the 1st – 7th Schedules are the ones that are being waived for Government Departments. To buttress this submission, the last paragraph of the Seventh Schedule to the Akwa Ibom State High Court (Civil Procedure) Rules 2009 (which Seventh Schedule is headed: “Miscellaneous Provisions on Fees”) categorically states as follows:
“All Government Ministries, Departments, Parastatals, Agencies and Pro-bono volunteer advocacy bodies approved by the Chief Judge are exempt from payment of filing fees in this scale of filing fees and are to be treated as official.” (Underlining mine, for emphasis)
Interestingly, Section 39 of the Interpretation Law provides that every Schedule to any Law shall, together with any note thereto, be construed and have effect as part of the Law. This hallowed position was restated by the Court of Appeal in the case of UNION BANK OF NIGERIA PLC & ANOR V. IFEOLUWA NIGERIA ENTERPRISES LTD. (2007) 7 NWLR (Pt. 1032) 71 at p. 85, paras. A – C, Ratio 7 (CA), wherein it was held interalia that a Schedule to an Act or Law or Rules of Court is very much part of that Act or Law or Rules of Court. Therefore, the 1st – 7th Schedules must be read together with other provisions of the Akwa Ibom State High Court (Civil Procedure) Rules 2009.
A wholesome reading of Order 45 Rule 11, Order 57 and the last paragraph of the Seventh Schedule to the Akwa Ibom State High Court (Civil Procedure) Rules 2009 renders the following points worthy of consideration:
- That the fees waived are “filing fees” set out in the 1st – 7th Schedules to the Rules. By the operation of the Latin maxim, enumeratio unius est exclusio alterius, the specific mention of “filing fees” and the attendant enumeration of the fees waived amounts to an exclusion of Default Fee which is not listed in the Scale of Filing Fees.
- That all Government Ministries, Departments, Parastatals and Agencies are the beneficiaries of the waiver or exemption from payment of “filing fees” in the Scale of Filing Fees.
- That these beneficiaries are to be treated as “official”. This “official” designation is what frequently appears on processes filed by Government Departments to show that they are exempted from paying filing fees.
However, Order 44 Rule 4 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 (hereinafter referred to as “Order 44 Rule 4”) mandates any party who fails or neglects to perform an act within the time prescribed by the Rules to pay “an additional fee” of N200.00 (Two Hundred Naira) for each day of such default. I hereby reproduce the said provision for ease of presentation:
“The Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the court, extend or adjourn the time for doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorised by the Judge or under these Rules, shall pay to the Court an additional fee of N200.00 (two hundred naira) for each day of such default at the time of compliance.” (Underlining mine, for emphasis)
From the foregoing provision of Order 44 Rule 4, a number of points are noteworthy. Firstly, the phrase, “provided that,” being a proviso, introduces a peculiar condition, addition and/or stipulation upon whose compliance an extension of time can be granted.
Secondly, by the use of the phrase, “any party,” the provision is not party sensitive and thus, has a general application to all parties. It reasonably follows that a Government Department, whether as a Claimant or a Defendant, is not exempted from the effect of Order 44 Rule 4 once it is out of time. Since Section 19(3) of the Interpretation Law provides that a waiver may be made to apply subject to such conditions as may be set out in the rules of court, it is my deferential view that the waiver granted by Order 45 Rule 11 is made subject to Order 44 Rule 4.
Thirdly, the use of the word “shall” raises a colouration of peremptoriness in the application and effect of the said provision. Consequently, one can assert that the payment of Default Fee is a condition precedent to the hearing of an application for extension of time. This position received the validation of the Penultimate Court of the land in the case of ARIK AIR LIMITED V. MR. CHRIS EKEMEZIE (2014) NGCA 21(CA); (2014) LPELR – 22753 (CA), where the erudite jurist, Honourable Justice Joseph Shagbaor Ikyegh, JCA, came to this conclusion:
“The appellant had 14 days to file the application after the decision of the court below was pronounced. The application was filed 22 days after the date of the said decision, showing the appellant was 8 days late in filing the said application. Evidently, the appellant did not establish at the court below that she had paid the requisite penalty for her default in applying within the requisite statutory period for the setting aside of the judgment of the court below.
Payment of court fees is considered very serious/fundamental. It is inextricably tied to the jurisdiction of the court. The failure of the appellant to pay requisite penalty for the period of default in bringing the application at the court below thus robbed the court below of jurisdiction to entertain the said application. ….
In conclusion, it appears certain to me that the threshold issues of non-payment of penalty fees and the non inclusion of a prayer for an extension of time in the application relate to the competence of the application which affected the jurisdiction of the court below to entertain the application which was not initiated in compliance with the condition precedent for proper composition of the action vide the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341, and which should have entitled the court below to merely strike out the application. …I hereby … order striking out of the application in question at the court below.” (Underlining mine, for emphasis)
Fourthly, the “additional fee” of N200.00 (Two Hundred Naira) is mandated by the said provision to be paid as a penalty for failing and/or neglecting to perform any act within the time so prescribed. The deliberate exclusion of the Additional Fee from the 1st – 7th Schedules to the Rules and the attendant designation of the fee as “additional fee” points to the ineluctable conclusion that the exemption clause in Order 45 Rule 11 does not apply to Default Fees.
Finally, it is abecedarian law that in the construction and interpretation of statutory and other provisions, a general provision does not extend to those things that have been previously provided for specifically in the same or other legislation. See the case of FEDERAL MORTGAGE BANK OF NIGERIA V. P. N. OLLOH (2002) 4 S.C. (Pt. II) 117 at pp. 122 – 123 (SC); (2002) 4 SCNJ 423 at pp. 430 – 431, paras. 25 – 20, Ratio 6 (SC) and MALLAM ABDULFATAI A. AIYELABAGAN V. LOCAL GOVERNMENT SERVICE COMMISSION, ILORIN & ANOR (2015) All FWLR (Pt. 802) 1697 at pp. 1733 – 1738 (CA). This principle finds expression and momentum in the Latin maxim: generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa. Providing clarity on this point, Order 45 Rule 11 is a general provision on the issue of fees and this is visible in its open-ended statement that “no fees are to be taken in respect of any proceedings where such fees would be payable by any Government Department.” This general provision does not extend to the explicit issue of payment of “additional fee” for default which has been previously provided for specifically in Order 44 Rule 4. With the prior specific provision for payment of Default Fees by any party in default, the subsequent blanket waiver of filing fees will be interpreted to have a limited rather than universal application.
This reasoning is in sync with the Rule against Surplusage which enjoins that no word or provision should be ignored or rendered redundant but that every word and provision is to be given effect to, if possible. It further instructs that no word or provision should be given an interpretation that causes it to be pointless or to duplicate another provision or to have zero consequence. This principle of law draws its breath, beauty and reasonableness from the Latin maxim: verba cum effectu accipienda sunt. The Supreme Court, speaking through Honourable Justice Andrews Otutu Obseki, JSC, and authenticating this principle of the law in the case of SAVANNAH BANK OF NIGERIA LTD. & ANOR V. AMMEL O. AJILO & ANOR (1989) A.N.L.R. 26 (SC) at p. 46, insightfully had this to say:
“Chief Williams laid great emphasis on the Rule of Statutory Interpretation that tautology should not as a rule be attributed to the legislature. I entirely agree with the Rule. The words of Viscount Simon in Hill v. William Hill (Park Lane) Ltd. (1949) A.C. 539 at 54 – 577 (sic) and the advice of Lewis, J.S.C. in Nasr v. Bouari (1969) 1 All N.L.R. 35 at p. 41 needs to be recalled.
Viscount Simon said:
‘Though a parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition … is not to be assumed. When the legislature enacts a particular phrase in a statute, the presumption is that it is saying something which has not been said immediately before. The rule that meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.’
In a forthright manner, Lewis, J. S. C. said:
‘We must lean against treating the words as surplusage or tautologous and give effect to all the words of the section if that is possible.’ ”
Assuming but not conceding that the provisions of Order 44 Rule 4 and Order 45 Rule 11 appear to be at loggerheads, the issue of which will prevail over the other will be determined by the maxim: generalia specialibus non derogant which literally translates “things general do not restrict (or detract from) things special”. And Courts are enjoined to treat the specific situation as an exception to the general rule. The Law Lord, Honourable Justice Francis Fedode Tabai, JSC, in the celebrated case of ATTORNEY-GENERAL OF THE FEDERATION & 2 ORS V. ALHAJI ATIKU ABUBAKAR & 3 ORS (2007) 10 NWLR (Pt. 1041) 1 (SC) at p. 148, para. H, Ratio 36, concretised the above points when he said:
“The principle simply is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision.” (Underlining mine, for emphasis)
Drawing strength from the foregoing position, Order 45 Rule 11, providing for a general situation subsists as a general provision while Order 44 Rule 4, providing for the particular situation of payment of Default Fee(s) for failure to act within time subsists as a specific provision. Consequently, once a Government Department is out of time in carrying out an act as stipulated by the Rules or mandated by the Judge, the insurance cover that it enjoys by way of exemption from payment of fees (as provided for in Order 45 Rule 11) lapses and becomes spent.
From the interplay seen above, the two provisions are not in conflict but can exist in harmony. Speaking on the need for the provisions of a text to be interpreted in a way that renders them compatible and not contradictory, Honourable Justice Augustine Nnamani, JSC, in SAVANNAH BANK OF NIGERIA LTD. & ANOR V. AMMEL O. AJILO & ANOR (1989) A.N.L.R. 26 (SC) at p. 50 stated that:
“One of the important principles in the interpretation of statutes is that clauses or sections … of the statute should be construed together. It was stated in Canada Sugar Refining Company v. R. (1898) A.C. 735 at 741 per Lord Davey that:
‘Every clause of a statute is to be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute.’”
Thus, a harmonious reading of the two provisions in this context will reveal a message that is plain and straightforward: that the specific provision (in Order 44 Rule 4) does not negate the general one (in Order 45 Rule 11) completely, but only in its application to the peculiar situation or particular subject matter that the specific provision covers.
The provisions of Order 44 Rule 4 and Order 45 Rule 11 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 came up for judicial interpretation by His Lordship, Honourable Justice N. F. N. Ntong, J. of the Akwa Ibom State High Court, Ikot Ekpene Judicial Division, in a Ruling delivered on 22nd November, 2016 in the case of ATTORNEY-GENERAL OF AKWA IBOM STATE V. THE SPEAKER, AKWA IBOM STATE HOUSE OF ASSEMBLY & 12 ORS, SUIT NO. HT/38A/2016 (Unreported). In the said case, Learned Counsel to the Plaintiff filed his reaction to the Preliminary Objection of the 13th Defendant out of time and filed a Motion on Notice to regularise the situation. While moving the said Motion on Notice to regularise, Learned Counsel to the Plaintiff submitted that the Plaintiff (Attorney-General of Akwa Ibom State) is covered by the provision of Order 45 Rule 11 (and not Order 44 Rule 4 of the Rules of the Court) and is, invariably, not obligated to pay Default Fees. Delivering the Ruling of the Court and properly rejecting the contention of Learned Counsel to the Plaintiff, Honourable Justice N. F. N. Ntong, J. eloquently expressed the legal position in the following words:
“In respect of the Provisions of Order 44 Rule (4) of our Rules, it is my humble view that there is a mischief occasioned by the use of the word “fee” instead of “fine”. I am inclined to read it with the word “default”. If a person is in default; it means simpliciter that he is in disobedience of taking a step and in the course of the failure, he has committed an infraction of the law or rules. It is trite law that where a statute lays down the rules or procedure of doing an act, failure to comply with the rules laid down negates the act. To remedy the act, such a person is bound to pay a fine or a penalty. The N200.00 per day of default implies punishment for failure to do the right thing. The law is no respecter of any person including the State. If the law excludes the State from paying fees for filing processes in Court, I believe it is not fine and penalties for default. In this wise, I hold the Plaintiff responsible for the default inspite of her attempt to repudiate liability. And she must pay N200.00 from the day of the default until the default is regularized and the receipt of payment shall be filed in Court. I so hold.” (Underlining mine, for emphasis)
JUDICIAL INTERPRETATION OF CONSIMILAR PROVISIONS IN OTHER RULES OF COURT
Let me hasten to state that legal similarity takes place when a common thread runs through various cases when compared with each other. In this wise, what avails in one similar case of statutory interpretation and construction will avail in the other.
In the case of BRIEL BROWN NIG. LTD V. BASSA LOCAL GOVERNMENT COUNCIL, SUIT NO. FICL/15/2010 (Unreported), the Kogi State High Court had cause to interpret the provisions of Order 10 Rule 5 and Order 55 Rule 8(2) of the Kogi State High Court (Civil Procedure) Rules 2006. Order 10 Rule 5 provides as follows:
“The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these provisions, or by any judgment, order or direction to do any act in any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Court or under these Rules, shall pay to the Court an additional fee of N100.00 for each day of such default at the time of filing his application for extension of time.”
Order 55 Rule 8(2) provides as follows:
“No fees are to be taken in respect of any matter where such fees would be payable by the Government or any Government Department….”
Honourable Justice R. O. Ayoola, J. of the Kogi State High Court had this to say on the responsibility of Government and its agencies to pay Default Fees:
“A Government body or department is not excluded from paying the default fees as provided for under order 10 Rule 5, otherwise there will be anarchy and a travesty of justice in the administration of justice. A Government body may ignore court processes as anyhow as it likes since it will not be damned. I do not think Order 55 Rule 8(2) of the Rules of this Court is designed to condone this lackadaisical attitude on the part of the Government. The Applicant therefore is liable to pay fees where there is default on its part.” (Underlining mine, for emphasis)
Honourable Justice Bashar A. Alkali, J. of the National Industrial Court, Yenagoa Judicial Division, delivering a Ruling on 4th April, 2019, in the case of MR. SALVATION TUESDAY V. BAYELSA STATE HOUSE OF ASSEMBLY SERVICE COMMISSION & 2 ORS, SUIT NO. NICN/YEN/40/2018 (Unreported), extensively commented on Order 57(5)(3) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The said provision provides as follows:
“Government or Public Institutions may be exempted from paying for processes filed within time.
Provided that any process filed out of time by any Government or Public Institution shall attract the payment of appropriate penalties as may be stipulated.”
I, hereunder, reproduce the reasoning of Honourable Justice Bashar A. Alkali, J. at length to impart its full flavour. Please, hear him:
“The crux of this application is that the Claimant served the Originating Processes on the 1st Defendant/Applicant on the 15th day of October, 2018. And the 1st Defendant/Applicant without complying with the provisions of Order 9 Rule 1(2)(a) and Order 57 Rule 5(3) and (5) of the Rules of this court filed this application on the 30th day of November, 2018, without first filing its Memorandum of Appearance and also failed to file a Motion on Notice for extension of time within which to file same out of time after the payment of necessary fees. The Applicant now filed this application challenging the provisions of Orders 9 and 57 of the Rules of this court on the ground that no one Department, Arm or Tier of Government has the right to impose a levy (tax) on another Department, Arm, or Tier of Government. …. And whether a party contesting the jurisdiction of the court can be out of time and bound to comply with the provisions of Orders 9 and 57 of the Rules of this Court, by entering appearance within time and paying default fees or fine for being out of time.
…on whether or not this application is competent, by the provisions of Order 9 Rules 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 once a Defendant is served with an Originating Process, such a Defendant shall first of all within 14 days file a Memorandum of Appearance before any other process is to be filed by such Defendant. The Applicant was served with the Originating Processes on the 15th day of October, 2018, and the Applicant having been out of time and without first paying the penalties as required by Order 57 Rules 5(3) and (5) of the Rules of this court, and also without filing any application for extension of time within which to file the Memorandum of Appearance in line with Order 57 Rule 4 of the Rules of this Court, the Applicant only decided to file this application on the 30th day of November, 2018, challenging the propriety or otherwise of the provisions of Order 57 Rules 5(3) of the rules of this court. ….
It follows therefore that compliance with the provisions of Order 9 Rule 1(1) and 57 Rule 5(3) and (5) of the Rules of this court is mandatory requirement (sic) and a condition precedent before the Applicant can file any process or application of this nature. The court can only consider the merits of this application where it has been shown that the requirements of Order 9 Rule 1(1) and Order 57 Rule 5(3) and (5) of the Rules of this court have been complied with. I have carefully examined all the processes filed further to this application and I find that this present application has failed to comply with the mandatory provisions of Order 9 Rule 1(1) and Order 57 Rule 5(3) and (5) of the Rules of this court and therefore is incompetent.
But assuming that the 1st Defendant/Applicant filed this application with the sole aim of challenging the provisions of Order 57 Rule 5(3) and (5) of the Rules of this court, the question now is whether or not the power to make rules of court are derived from the provisions of the 1999 constitution (as amended) and thus applicable or binds all authorities and persons and must be obeyed. By the provisions of Section 254 F(1) of the Third Alteration Act of the 1999 Constitution (as amended) the President of the National Industrial Court of Nigeria is given outright powers to make rules of court to regulate the practice and procedure of this court, such as the National Industrial Court (Civil Procedure) Rules, 2017 are in conformity with the provisions of the Constitution and not ultra vires to any provision of the Constitution. See also Section 36 of the National Industrial Court Act, 2006. And the issue of payment of default filing fees as contained in the Rules of Court in Order 57 Rule 5(3) and (5) of the Rules of this Court has constitutional blessing.” (Underlining mine, for emphasis)
An opportunity presented itself for the Penultimate Court in the land to have a definitive say on this issue in the recent case of MINISTRY OF AGRICULTURE, KATSINA STATE V. GUARANTY TRUST BANK PLC & ANOR (2018) LPELR – 44372 (CA) at pp. 29 – 34, paras. D – E; (2018) LCN/10977 (CA). In this case, the Practice Directions issued by the Chief Judge of the Federal High Court on 2nd May, 2013 amended Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 by raising the additional fee from N200.00 to N1,000.00 and expressly adding that “…there shall be no waivers. All defaulting parties must pay the penalty fee as now prescribed.” Honourable Justice Oludotun Adebola Adefope-Okojie, JCA, speaking on whether Government Departments/Agencies are exempted from paying filing fees, had this to say and I quote him in extenso:
“The learned Senior State Counsel has cited the following rules: Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, which provides as follows: “The Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these Rules or by any judgment or order of Court, extend or adjourn the time for doing any act or taking any proceeding: Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules shall pay to the Court an additional fee of N200.00 (Two Hundred Naira) for each day of such default at the time of compliance.”
Order 55 Rule 1(2) of the Federal High Court (Civil Procedure) Rules 2009 “1 – FEES; APPENDIX 2. (1) Subject to the provisions of any written law and of the foregoing orders the fees set out in Appendix 2 to these Rules shall be payable by any person commencing the respective proceedings or desiring the respective services for which they are specified in the Appendix. Exemptions (2) These fees are waived in respect of a party which is or represents a Government Ministry, non-Ministerial Departments, Federal, State and Local Government or any of their agencies.”
Also cited by the Senior State Counsel are the Practice Directions issued by the Chief Judge of the Federal High Court, dated 2nd May, 2013, which provides thus: “…. Amendment: Order 48(4) shall read:- (4) The judge may, as often as he deems fit and either before or after the expiration of the time appointed by these Rules or by any Judgment or Order of Court extend or adjourn the time for doing any act or taking any proceedings: Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules shall pay to the Court an additional fee of N1,000 (One Thousand Naira) for each day of such default at the time of compliance. There shall be no waivers. All defaulting parties must pay the penalty fee as now prescribed.” In construing Rules of Court, the law, as held by the Supreme Court in the case of Britannia U (Nig) Ltd v Seplat Petroleum Development Co. Ltd (2016) 4 NWLR Part 1503 Page 541 at 594 Para E – G; (2016) All FWLR Part 826 Page 398 at 441 Para D – G per Ngwuta JSC, is that there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meanings. ….
The State’s Counsel has argued that there is inconsistency between the Rules and the Practice Directions and that the Rules should prevail. It is indeed the law that where there is conflict between the Rules of Court and Practice Directions, the Rules of Court will prevail. See Adams v Umar (2009) 5 NWLR Part 1133 Page 41 at 106 – 107 Para H – D, per Sankey JCA; Obumseli v Uwakwe (2009) 8 NWLR Part 1142 Page 55 at 80 Para D – E per Tsamiya JCA. In the instant case, I however, do not see any conflict. By the combined interpretation of Order 48 Rule 1 and 2 Order 55 Rule 1(2) of the Federal High Court Rules 2009, giving the words their ordinary meaning, Government Ministries, non Ministerial Departments, Federal, State and Local Governments or any of their agencies, are exempted from paying filing fees. The Practice Directions however qualified the blanket waiver of filing fees given to these Ministries and departments, making it clear that this waiver only applies to payment for processes filed within time. Where there is a default in payment, the waiver, it is clear, does not apply. ….
The Practice Directions issued under the hand of the Chief Judge of the Federal High Court on 2nd May, 2013, shall thus be given their full effect, which effect renders invalid the processes filed by the Appellant. I see no reason to disagree with the decision of the lower Court striking out the processes filed by the Appellant.” (Underlining mine, for emphasis)
Although the amendment made by the Practice Direction to Order 48 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 in the Ministry of Agriculture, Katsina State Case (supra) added certitude to the reality of the exclusion of waiver in terms of payment of Default Fees by Government Departments, it is my deferential view that the absence of a word-for-word provision under Order 44 Rule 4 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 stating that “there shall be no waivers and that all defaulting parties must pay the penalty fee as now prescribed,” will not lead to a different interpretation from that reached by the Court of Appeal in the Ministry of Agriculture, Katsina State Case (supra). At the risk of prolixity, the point remains that even in the near absence of an express exclusion of a waiver of payment of Default Fees by Government Departments, Order 44 Rule 4, when read harmoniously with other provisions of the Akwa Ibom State High Court (Civil Procedure) Rules 2009, includes Government Departments in the payment of Default Fees.
The object of the law has always been to solve difficulties; dispel contorted obscurities; and deal with changing, complex or novel circumstances. In this wise, I recommend the following:
- An amendment of Order 44 Rule 4 to clearly add to the existing provision that “there shall be no waivers. All defaulting parties must pay the penalty fee as prescribed.” This will put the issue beyond every shadow of doubt.
- Alternatively, an amendment of Order 45 Rule 11 by way of an overhaul to now read as follows:
“No fees are to be taken for processes filed within time in respect of any proceedings where such fees would be payable by any Government Department.
Provided that any process filed out of time by any Government Department shall attract the payment of N200.00 (Two Hundred Naira) as penalty for each day of such default at the time of compliance.”
*David Andy Essien, Esq., is an Associate in the Law Firm of Usungurua Bassey & Associates, No.140 Atiku Abubakar Way, Uyo, Akwa Ibom State. He can be reached through email@example.com. Twitter: @DavidAndyEssien