Novel Provisions Under The High Court Of Lagos State (Civil Procedure) Rules 2019 By Mayowa Ogunsan Esq

Towards ensuring an expeditious judicial system, certain novel provisions were inculcated into the High Court of Lagos State (Civil Procedure) Rules 2019. This rule which came into effect on 31th January, 2019 also had alongside it The High court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction, 2019.

This article shall therefore succinctly and analytically examine this novel provisions in a bid to understanding the new position of the law on matters which might come up for adjudication in court.

ORDER 5 still maintains the documents that must accompany the writ of summon, save for a slight amendment. RULE 1(2) (E) and RULE 5(3) D of Order 5 provides that the Pre-Action Protocol Form 01 shall be accompanied by other NECESSARY documents.

What will therefore constitute other necessary documents? This has been provided for under The High court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction, No 2 of 2019. Under the Practice Direction other necessary documents will include all the pre-action correspondence duly acknowledged and exchanged between the parties.

In this wise they shall be regarded as the Pre-Action Protocol bundle. These documents are

1. Memorandum of claim
2. The reminder in event the defendant failed to respond to the memorandum of claim within seven days
3. Affidavit of the respondent’s failure to participate in settlement talks; and
4. Evidence of attempts at settlement

Unlike what was obtainable in the old rules, non-compliance with the Pre-Action Protocol or the settlement procedure nullifies the proceedings.

It must be further noted that the Pre-Action Protocol Bundle and the originating processes and their accompanying documents must be spiral-bound separately. This is therefore a diversion from the old practice of attaching the Pre-Action Protocol Form 01 with the originating process.

Order 5 Rule 6 now provides that when a case is transferred from any other court of competent jurisdiction, any of the parties should refile at that court so as to comply with the provision of Order4 R 1 & 2

Order 6 Rule 6 now makes it mandatory for every Claimant who sues in person to include his telephone number and email address on the originating processes. This rule also applies to legal practitioners who enter appearance for a litigant. This is to ensure that service of processes especially new applications which are made by parties or their counsel are received by the other parties. It will also ensure expeditious service as service can now be made via electronic mail.

By Order 9 Rule 5 (1) where personal service of an originating process cannot be effected, service by electronic mails is now an option that can be adopted under substituted service.

ORDER 11 RULE 5 now provides that if a defendant files an appearance after the time prescribed in the originating process he shall pay to the court a default fee of 1ooo naira for each day of such default.

By Order 17 Rule 18, pleadings are deemed closed when the defendant fails to file his statement of defence within 42 days

Order 28 now provides for Alternative Dispute Resolution proceedings and this provision only applies to matters screened for ADR, or matters referred to ADR during CMC and applications for enforcement of arbitral awards.

It is important to also note that the mode for enforcement of arbitral award is by originating motion on notice.

Order 30 of the 2019 Rules deal with Issues, Inquiries, Accounts and References to Referees. As against what was obtainable under the 2012 Rules where parties are only allowed to define and file their issues within 7 days, the new 2019 Rules allows a period of 14days after close of pleadings.

Order 34 provides for diligent prosecution. Rules 2 of Order 34 now provides that the court may at any time whether on application or suo moto strike out a case for lack of diligent prosecution.

Rules 3 of Order 34 makes it compulsory for the judges to strike out a matter where no proceedings has been held or application filed for a period of 12 (twelve) months.

Order 35 Rule 3 (3), now provides that all written addresses shall not exceed 20 (twenty) pages and a Reply on points of law can no longer exceed 5 pages; except with the leave of Court.

Order 48 (1) (c) now provides that acts which are required by order of the court must be done within a period of 6 days. In computing the time, Saturdays and public holidays (including Sundays) shall be left out. Rule 4 of the order also makes it clear that for each day of default, a defaulting party is liable to pay N1000.00 into court.

Order 59 provides for Fast Track Procedure. The Fast Track court is created to hear matters involving claims of mot less than N100 million mortgage transactions, charge or other securities commenced by writ of summons. As against what was obtainable under Order 56 of the old rules, the Claimant or Counter-Claimant is no longer required to make application to the Registrar for fast-track. Note that once the matter qualifies under Fast Track Proceedings, the Defendant is to file his Statement of Defence within 30 days.

By Order 60 of the new rules, proceedings in Revenue matters now qualify for Fast Track.

By Order 61 of the new rules, penalty for failure to file the annual account of administration of estate has now been increased to N100, 000 annually. The penalty for intermeddling with an estate has also been increased from N50, 000 to N500, 000

It must also be noted that under The High court of Lagos State (Expeditious Disposal of Civil Cases) Practice Direction, No 2 of 2019 provisions are made for Backlog Elimination Programme (BEP). This is in a bid to ensure the expeditious disposal of civil suits.

Under this program, the Chief Judge shall designate cases which have remained undecided for a minimum of 5 years before 14th January, 2019 as Backlog. Upon designation as Backlog, the Registrar shall issue notice to the Claimant to show cause why the case should not be struck out. The Claimant must respond within a period of 14 days by filing a notice of discontinuance, or by giving notice that the case has been settled, or notifying the court of its intention to settle or by filing an 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.

Where parties fail to comply with the timetable, this may lead to a default judgment or a striking out of the case and costs of N50, 000 or N100, 000 depending on the circumstances or disciplinary report against counsel.

The introduction of the High Court of Lagos (Civil Procedure) Rules 2019 is therefore a welcome development in ensuring that matters do not tarry unreasonably in court. Other states of the Federation must therefore emulate same so as to ensure that matters are expeditiously dispensed with in court; for justice will be said to have been done when matters are not just decided judicially and judiciously but when they are decided timeously.

Written by:Mayowa Ogunsan Esq.,Associate, Wiseview Legal Consultancy m.ogunsan@wiseviewlegal.com