‘The overriding objective now made operative part of the Rules’
With the coming into effect of the 2012 High Court Civil Procedure Rules, this commentator, in a critique titled ‘Some Reflections on the new High Court of Lagos State (Civil Procedure) Rules 2012 (https://greymile.wordpress.com/2012/09/26/some-reflections-on-the-new-high-court-of-lagos-state-civil-procedure-rules-2012/, published in ‘The Guardian’ on Tue, 25 Sep 2012), had cause to remark inter alia:
‘One significant point to note though is that the ‘overriding objective’ is now explained in the preamble to the Rules. It thus appears to have now been taken out of the operative provisions of the Rules as a preamble, and is strictly speaking not part of an enactment. The High Court Rules is a subsidiary legislation on procedure. Comparatively, the 2004 Rules have the ‘overriding objective’ stated and enacted as an operative aspect of the Rules in Order 1 Rule 1 (2). The law concerning the restrictive use that may be made of a preamble as an aid to construing the enacting provisions has been well stated in the following (foreign and local) cases: A-G v. Prince Ernest Augustus of Hanover (1957) A.C 436, at p.467; David-Osuagwu v. A-G Anambra (1993) 4 NWLR Pt. 285 P.13 at 64; Ogbonna v. A-G, Imo State (1992) 1 NWLR (Pt.220) 647) (See in particular the leading judgment delivered by Nnameka-Agu, J.S.C in the case of Ogbonna v. A-G, Imo State (supra)). The purpose of the preamble in a statute or written document is to clarify any ambiguity in the words used in the enacting part. A preamble needs not be looked at all if the enacting part is unambiguous.
Lest I am accused of trying to make an anthill out of a molehill (or, is it ‘mountain out of a molehill’?), I would be quick to offer that the unintended effect of this is that the ‘overriding objective’ is relegated to the background merely as an aid to construction/interpretation, which of course was not the thinking when the objective was first introduced into the Rules in 2004.The ‘overriding consideration’ must not be seen as an idle canon of interpretation. It has to be made part of the Rules. This is certainly not the raison d’etre of the Rules. It is, with respect, a rule of adjudication (well, as prescribed by this ‘handmaiden of justice’). As many readers will know, the English CPR (the White Book) has a similar provision: ‘the overriding objective being to aid the courts in giving a purposive meaning/interpretation to any Rule being interpreted”. The emphasis is on ‘any’, and not when there is ambiguity. In a legislative sentence, “any” is used to indicate that there are no qualifications or limitations. Put simply, there is a world of difference between when the overriding objective provides a compass to guide the courts at all times, as opposed to when it shall provide a compass only when there is an ambiguity.
Suggestion: Arguably, the stated objective of all these reforms is to have the ‘mission statement’ guide the civil courts in everything they do. Thus, as minute or insignificant as the point of having the ‘overriding objective’ enacted as a specific rule may appear, there is a need to consider this closely. This may even be achieved by enacting a rule which affirms and declares the preamble as an operative part of the Rules.’
The concern expressed above did not prove altogether misplaced as the poser whether the overriding objective was meant to displace the clear, expressed intent in the operative part of the Rules (the various Orders) drew more than a passing interest in at least one unreported decision of the High Court of Lagos State. Thankfully, the overriding objective of the Rules; its purpose to improve access to justice and reduce the cost of litigation in our peculiarly delay ridden justice system, has now been enacted. It is now expressly promulgated as Order 2 of the new High Court of Lagos State (Civil Procedure) Rules of 2019. The Rules have their operative date as the 31st day of January 2019. The set objective of dealing with cases with reasonable speed and shortening the timescale of litigation must have informed the further objective of the Rules in (now) providing for the allotment of time to each case bearing in mind the need to devote equal time to the cases within the heavy dockets of the court (Or. 2. r.1 (b).
Failure to comply with the provision as to frontloading shall nullify the action
The High Court (Civil Procedure) Rules of Lagos State 2004 introduced the frontloading system. In wide latitude, the 2004 Rules provided for nullification of actions filed without complying with any provision as to steps to be taken in commencing an action. The 2012 Rules were couched in similar terms, howbeit that they restricted nullification to a failure to accompany a writ of summons with a statement of claim, a list of witnesses to be called at the trial, written statements on oath of the witnesses (except witnesses on subpoena), copies of every document to be relied on at the trial and Pre-action Protocol Form 1.
Both the 2004 and the 2012 Rules however contained a somewhat equivocal provision as per failure to comply with the frontloading system. Both Rules, under Or.3 r.2 provided that ‘If the claimant fails to comply, the originating process shall not be accepted for filing by the Registry’ even when Or.5 r.1 of both Rules also specifies nullification for non-compliance with the provision as to frontloading.
In Spog Petrochemicals Limited & Anor v Pan Peninsula Logistics Limited reported in (2017) LPELR-41853(CA) , an objection was raised, inter alia, as to an inherent defect in the pre-action protocol form filed by the claimant. The Court, amongst other reasoned answers to the main issues for determination, held that the provision of the Lagos Rules ‘did not say that failure to accompany a writ of summons with any one of the processes listed in Sub-rule (1) would render an otherwise valid writ incompetent…the provisions only provide that where writ was not accompanied by all the processes listed therein, it shall not be accepted for filing by the Registry. However, once accepted and assessed by Registry of the Court and the requisite fees paid by the claimant and duly filed, the consequence of any non-compliance with the provisions cannot go to affect the validity and competence of the writ.’ (per Nimpar JCA)
It appears the conclusion reached above may not have been the intendment of the draftsman as to failure to comply with the provision of the Rules relating to frontloading. The referenced provision of the 2004 and 2012 Rules has now been deleted from the new Rules. In its place, Or. 5 r. 1(3) and r. 5(4) (on Form and Commencement of Action) specifically provide that failure to comply with the provision as to frontloading shall nullify the action. This provision is consistent and repeated in Or.7 r. 1 (on Effect of Non-Compliance).
Service by electronic means
To paraphrase the Supreme Court in Esso West Africa Inc. v T. Oyagbola (1969) NMLR 19, in a progressive trend not to ‘shut its eyes to the mysteries’ of the computer age, Or.9 r.5, in allowing service by substituted means, specifically makes provision that ‘a Judge may upon application by the claimant make such order for substituted service as may seem just, including service by electronic mails.’ Given the bare legislative intervention in this regard, little or no guide is however offered as to how proof of service by electronic means is to be shown.
Clarity, precision and unambiguity – improved readability
Commendably, the 2019 Rules has improved, and with abundant clarity, the drafting of draftsman’s intendment in many of the hitherto imprecise words, terms or intent. This is especially so in provisions relating to ‘Parties’ (Or. 15), ‘Pleadings’ (Or.17). Ditto Or.22 on ‘Default of Pleadings’, Or. 27 on ‘Case Management Conference and Scheduling’ and a new Or.28 dealing with ADR Procedures, whose provision was hitherto part of the preceding Order.
The wordings of the new Rules are clearer, and there is a logical sequencing of conjunctive steps in a sub-paragraphing sequence. Superfluous provisions have been discarded. Where, for instance, O.5 occurring earlier had made clear provisions that an action cannot be defeated on account of technical defect as to form (time, place, manner) except for the express provision requiring strict provision with frontloading, the draftsman, and rightly so, did not see the need to retain a tautologous occurrence repeating in the 2012 Rules under pleadings (Or.15 r.15) to the effect that ‘no technical objection shall be raised to any pleading on any ground of any alleged want of form’. Arguably in same vein, the Rules having expressly enacted active case management as part of the overriding objectives of the new Rules, the hitherto recurring tautology in O.27 R. 13 of the 2012 Rules on power of Judge in expediting proceedings, and Or.30 r.19 on when a Judge may strike out a matter for indolent prosecution have now been deleted.
A legal practitioner who neglects to give notice of an Order of Court (for interrogatories or discovery) shall be liable to ‘committal’ (O.29 R. 10) as opposed to the ambiguous sanction of ‘attachment’ used under Or. 26 r. 12 of the 2012 Rules.
There is also clarity in the Order nisi expressly forbidden in Rule 2 under Or.43 relating to ‘Motions and other Applications’ as opposed to the ambiguous evocation in precursor Or.39 r.2 of the 2012 Rules.
Still on the front of elegant drafting and appropriate arrangement of subject headings, the provision of Or.9 r.16 on endorsements that should be made on a process for service outside jurisdiction was inappropriately placed under ‘Form and Commencement of Action’ in the previous Rules of Court, most recent being Or.3 r.9 of the 2012 Rules. Now appropriately placed under ‘Service of Originating Process’ in Or.9 r.16 of the 2019 Rules.
Realistic costs/Default fees to deter delay, unwholesome practice(s)
To make cost elements proportionate to the issues involved, the new Rules has increased costs for filing documents that are not necessary in a notice to admit or produce documents from Five Thousand Naira (N5,000.00) –Or.19 r.5-2012 Rules– to Ten Thousand Naira (N10,000.00)- O.21 R.5. Failure to amend originating process or pleadings after time-span specified in an ensuing Order of court shall now attract a fee of N1,000.00 (One Thousand Naira) for each day of default (Or 26. r.4 -2019 Rules) as opposed to the old regime of N200.00 (Two Hundred Naira) for each day of default (Or.24 r.4-2012 Rules). Similarly, default in performing an act within the time authorized by the Judge or under the Rules which was penalised with N200.00 (Two Hundred Naira) for each day of default under Or.44 of the 2012 Rules is now to be penalised with the payment of N1, 000.00 (One Thousand Naira) for each day of default at the time of compliance under Or. 48 Rule 4 of the 2019 Rules.
Still on costs, the extensive and elaborate provisions on realistic cost regime under Or. 49 of the 2012 Rules is again repeated in O.54 of the 2019 Rules. To be sure (that proportionality is the hub of the new costs rules) , realistic costs elements ranging from N100,000 (One Hundred Thousand) to N250,000.00 (Two Hundred and Fifty Thousand) are provided for in the ‘Expeditious Disposal of Civil Cases Practice Direction No. 1 of 2019’ and ‘Expeditious Disposal of Civil Cases Practice Direction No. 1 of 2019’ issued alongside/contemporaneously with the new Rules.
ADR- now firmly ingrained into the culture/process
The ‘Expeditious Disposal of Civil Cases Practice Direction No. 1 of 2019’ provides a roadmap on the future of dispute resolution. It promotes alternative dispute resolution mechanisms. The Pre-Action Protocol Form will take its rightful place in the set of documents accompanying /forming part of the originating papers. It is quite explicit as to how the claimant must set out the steps taken at settling the claim/matter through the Alternative Dispute Resolution (‘ADR’) mechanisms including but not limited to Negotiation, Mediation or Arbitration. It goes further to set out-in specific terms- what the Pre-Action Protocol Form should contain in defamation matters, action(s) instituted by a mortgagee, land matters, recovery of debts, recovery of premises etc
There is a penalty for failing to comply. Direction 1 (e) of ‘Failure of Compliance with the Protocol’ states that : ‘Where a party unreasonably or disproportionately fails or refuses to comply with the settlement procedure under this pre-action protocol or the directive of the Court referring parties to aa form of ADR or to the Lagos Multidoor Courthouse or Lagos Court of Arbitration but insists on proceeding to trial, the Court shall impose costs of a minimum NGN100,000 (One Hundred Thousand Naira) only which shall be deducted or added to money reliefs awarded in the final judgment or alternatively shall apply the provisions of Order 53 Rule 2 of the High Court Civil Procedure Rules.’
Other new/novel provisions:
O.25 on ‘Withdrawal or Discontinuance’ has a new provision in R. 4 that a claimant may even withdraw an action where trial has commenced, and the Judge, consequentially, shall enter an order dismissing the claim wholly or in part. This is consistent with the holding, though not so definitively and specifically by the Supreme Court in Rodrigues & Ors v. The Public Trustee & Ors (1977) 11 NSCC 148.
There is a new provision as to timeline for taking step(s). Issues of facts in dispute are to be filed within 14 (fourteen) days after close of pleadings (Or.30 r.1 (1) 2019 Rules, as opposed to 7 (seven) days (O.27 r.1 (1) 2012 rules. A written address is now limited to 20 pages, and 5 pages for reply on law (Or.35 r.3 (3)2019 Rules. The summary judgment procedure that has always worn the moniker of O.11 procedure will, by the new arrangement of the provisions of the Rules, become known as the ‘O. 13’ procedure.
In what markedly appears to be a recognition of the complexity around probate practice, especially the maze around the somewhat lumbering movement of activities at the Registry, there are self-explicit /illustrative forms in the Schedule to the Rules, that is, ‘Probate Form 1 – Application for Grant of Probate’, and ‘Probate Form 2 -Application for letters of Administration (without Will)’, to aid better comprehension of the requirement in Ors. 61-64 on Probate and Administration.
The Rules – the pitfalls
As is not uncommon with every human endeavour, the new Rules is not without its own shortcomings. To highlight a few, there is a superfluous provision of Or.1 r. 2 on ‘Interpretation’ expressly stipulating that written statement on oath not made in English Language shall be accompanied by interpretation thereof in English Language. This is needlessly repeated verbatim as Or.37 r. 10 (under provision relating to ‘Affidavits’).
There are also avoidable clerical, textual and typographical errors. Some of these have the unintended effect of altering the intended meaning of the text, where they occur. Or.5 r.6 dealing with the step(s) parties are expected to take with regard to a transferred matter, stipulates that there should be ‘compliance with Order 4 Rules 1 and 42’. There is no Order 4 Rule 42 as Order 4 of the Rules did not number beyond Rule 3. The printer’s eye, unlike the devil’s, is never in the details: there is a double comma occurring in Or.30 r.5(1).
It is ‘written statements on oath of witnesses’ that accompanies the statement of claim (Or.5 r.1(2), but the same process is referred to as ‘deposition’ with reference to when it accompanies a statement of defence (Or.19.r.1(b). Lest the manifest purpose become distorted and an unintended interpretation is assumed there, it makes for elegant drafting to be consistent and clear in referring to the same process occurring within the enactment.
‘Within days’ or ‘after service’?
The Rules of Court (the precursor 2004, 2012 and now, 2019) all repeat the same drafting error- failing to make clear the possible divergence of meaning between the phrases ‘within days’ and ‘after service’ used within the context of when a/party is expected to take a step, in response to a process served on him. Take, for instance, a defendant is expected to file a statement of defence and other frontloaded processes not later than 42 days after service on him of the claimant’s originating process (O.15 R1 (2)- 2012 Rules). Under the 2019 Rules the same expectation exists, howbeit ‘within 42 days of receiving’ the claimant’s originating process etc (Or.17 r.1(2). Under o.17R.16 (2012 Rules) a respondent to an Originating Summons shall do same within 21 days after service of the Originating Summons. This is repeated in O.19 R.16 of the 2019 Rules. The practical effect of a choice of language that leaves room for diverse interpretation, is more fanciful technical objections – whenever counsel can whip up a compelling (and more often than not, self-serving) construction.
All said, the new Rules, predominantly well-intended, and delivered is a welcome step in righting some of the wrongs that have shown up time and again over the years with its predecessor. However, with the passage of such a significant amount of time since the enactment of its predecessor, there are no revolutionary take-aways here. It is thus a case of incremental advancement. It may not be too long before more of the same is required.
Folabi Kuti is a Partner in the law offices of Perchstone & Graeys.