A Critique of the Deeming Practice Now Normalized Among Young Lawyers in the High Courts of the Western States of Nigeria (A
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By S.O. Giwa Esq.
Abstract
This paper interrogates a daily procedural occurrence in the High Courts of Western Nigeria that has been elevated to a norm without statutory backing. A Defendant out of time files his Statement of Defence, pays default fees at the registry, obtains a stamp, and files a Motion for extension, praying for an order deeming the already filed and served process as properly filed. The Claimant is served with both the motion and the late Defence. When does his time to file a Reply start to run? The Rules are silent. With particular reference to Order 17 and Order 48 of the High Court of Lagos State (Civil Procedure) Rules 2019; Orders 17, 18 and 45 of the High Court of Osun State Rules 2023; Order 15 Rule 1(2), Order 18 Rule 1, and Order 44 Rules 1–4 of the High Court of Ekiti State Rules 2011; and Order 9 Rules 5 & 6, Order 18 Rule 1 and Order 24 Rule 19 of the High Court of Ondo State Rules 2019 (Rules for Computation, Time of Service, Extension), this paper argues that there cannot be valid service of an invalid process, that doing the act before seeking leave reverses logic, that the prayer for deeming is itself an admission of invalidity, and that the proviso on default fees was never intended to accommodate retrospective regularisation. It further examines how young lawyers have normalised this practice as correct.
1. Introduction: One Architecture, Different Clocks, and a New Orthodoxy Among Young Lawyers
All High Court (Civil Procedure) Rules in the Western States regulate pleadings in the same way: (i) prescribe time for Defence, (ii) prescribe time for Reply, (iii) empower a Judge to extend time before or after expiry upon payment of default fees, and (iv) provide identical computation of time. What differs is the Order number, length of time, and wording of the proviso for default fees.
In the last five years, particularly in Ibadan, Abeokuta, Ikeja, Ado-Ekiti and Akure registries, a new orthodoxy has emerged among young litigators. Taught in chambers and reinforced by registry clerks who readily collect N200 per day in Ekiti/Osun, N300 in Ondo, N500 in Ogun/Oyo or N1000 in Lagos, the practice is now believed to be correct: file the Statement of Defence out of time, pay default fees, obtain a stamp and receipt, file a Motion for extension praying for “an order deeming the Statement of Defence already filed and served as properly filed and served,” and then serve both the motion and the stamped late Defence on the Claimant. No one pauses to ask whether the Rules allow filing before leave, or whether service of an invalid process can trigger time for Reply.
2. The Unresolved Question
In practice, a Defendant who is 20, 40 or 70 days late goes to the registry, pays N200 per day in Ekiti/Osun High Court at the time of compliance, N300 per day in Ondo High Court at the time of filing the application, N500 in Ogun/Oyo States High Court or N1000 in Lagos, and files a Defence. The stamp shows a date outside 42 days (Lagos/Ekiti – O15 R1(2)), 45/30 days (Ondo – O9 R5), 60 days (Ogun) or 30 days (Osun/Oyo). The same day, he files a motion: “extension of time to file Defence and deeming the already filed Defence as properly filed and served.” He serves both the motion and stamped late Defence on the Claimant. When does the Claimant’s time for Reply start? Under Ekiti, Order 18 R1 (30 days in land matters/14 days in others), and Ondo, Order 9 R6 (14 days) and Order 18 R1 (30/14 days), there is no textual answer. The identical computation provisions – Order 44 R1(a) Ekiti 2011, Order 16 R16(1) Ondo 2019, Order 45 R1(a) Osun 2023, Order 48 R1(a) Lagos 2019 – excluding the day on which the Order is made or on which the event occurs – provide the interpretative key.
3. Filing Is Jurisdictional – An Invalid Process Cannot Trigger Time
Filing is not merely an administrative act. It is a legal act that confers jurisdiction on the court over the process. A process filed outside time without leave is irregular – Oke v Aiyedun (1986) 2 NWLR (Part 23) 548. Registry staff have no judicial power to extend time under Section 274 of the Constitution of the Federal Republic of Nigeria 1999. Only the Chief Judge makes Rules, and only a Judge grants an extension under Order 44 Rule 4 of the High Court of Ekiti State (Civil Procedure) Rules 2011, Orders 16/24 Rule 19 of the Ondo State High Court (Civil Procedure) Rules 2019, Order 45 Rule 4 of the High Court of Osun State (Civil Procedure) Rules 2023, and Order 48 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2019.
Order 9 Rule 3 of the High Court of Ekiti State (Civil Procedure) Rules 2011 and Order 9 Rule 3 of the Ondo State High Court (Civil Procedure) Rules 2019 both state: “The statement of defence shall be a statement in summary form and shall be supported by a copy of documentary evidence, list of witnesses and their written statements on oath.” If the Registry must reject a Defence without frontloaded documents, a fortiori, it must reject a Defence filed out of time without a prior order. Order 17 Rule 1(3) of the High Court of Osun State (Civil Procedure) Rules 2023 makes this express.
Service presupposes valid filing. One cannot serve what has not been legally filed. Order 44 Rule 3 of the High Court of Ekiti State (Civil Procedure) Rules 2011, Order 16 Rule 18 of the Ondo State High Court (Civil Procedure) Rules 2019, and Order 45 Rule 3 of the High Court of Osun State (Civil Procedure) Rules 2023 all provide: “No pleading… shall be served before 6.00 a.m. or after 6.00 p.m.” – contemplating only valid pleadings. If service of a valid process at 6:01 p.m. is invalid and shifted to the next day, how much more the service of an invalid process filed without leave? The phrase “service of statement of defence” in Order 15 Rule 1(3) of the High Court of Ekiti State (Civil Procedure) Rules 2011, Order 9 Rule 6 and Order 18 Rule 1 of the Ondo State High Court (Civil Procedure) Rules 2019, and Order 17 Rule 1(5) and Order 18 Rule 1 of the High Court of Osun State (Civil Procedure) Rules 2023 presupposes a validly filed Defence. Until a Judge regularises it, the Defence remains incompetent. One cannot put something on nothing – see McFoy v. UAC (1961) 3 WLR 405. A void process cannot trigger a valid timeline. The clock never started.
4. The Draftsman’s Intent – Three Different Proviso Wordings
The Western Rules reveal three deliberate formulations of the proviso, showing the draftsman’s intent:
(a) Order 48 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2019 and Order 44 Rule 4 of the High Court of Ekiti State (Civil Procedure) Rules 2011: “at the time of compliance” – Compliance can only happen AFTER leave. One cannot comply before permission.
(b) Order 16/24 Rule 19 of the Ondo State High Court (Civil Procedure) Rules 2019: “at the time of filing his application for extension of time” – The application must come first, with N300 per day.
(c) Order 45 Rule 4 of the High Court of Osun State (Civil Procedure) Rules 2023 and Order 45 Rule 4 of the High Court of Ogun State (Civil Procedure) Rules 2024: “at the time of filing his application for extension of time and the performance of the act, whichever is later” – This envisages only two lawful sequences: apply before expiry, perform later – pay at performance; or time has expired, apply first, then perform after leave – pay at application. The third sequence now dominant among young lawyers – perform first, apply second – reverses logic and is unknown to any of the three formulations. One cannot pay for performance before application when the performance itself is illegal.
5. Deeming Fiction
The invention of deeming is to avoid re-filing. While courts have inherent jurisdiction to deem, fiction should not defeat logic. Order 44 Rule 1 of the High Court of Ekiti State (Civil Procedure) Rules 2011, Order 16 Rule 16(1) of the Ondo State High Court (Civil Procedure) Rules 2019, Order 45 Rule 1 of the High Court of Osun State (Civil Procedure) Rules 2023, and Order 48 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2019 – by excluding the day on which the Order is made or on which the event occurs – kill the fiction if properly applied. The Order that extends time is the event that creates a valid Defence. Therefore, computation of the Claimant’s time under Order 18 Rule 1 of the High Court of Ekiti State (Civil Procedure) Rules 2011 (30 days in land matters and 14 days in others), Order 9 Rule 6, Order 18 Rule 1 of the Ondo State High Court (Civil Procedure) Rules 2019, and Order 18 Rule 1 of the High Court of Osun State (Civil Procedure) Rules 2023 must exclude the day the extension order was made. Time cannot start from service of the motion. It starts from service of the order plus the regularised Defence.
6. The Language of Admission
The common prayer: “An order deeming the Statement of Defence already filed and served as properly filed and served” is fatal. If it was already properly filed, why ask the court to deem it as such? It is an admission that what was filed before leave is NOT properly filed. The correct prayer should be: “An order granting leave to file the proposed Statement of Defence annexed as Exhibit A marked PROPOSED, and deeming same as properly filed upon payment of default fees at the time of compliance” per Order 44 Rule 4 of the High Court of Ekiti State (Civil Procedure) Rules 2011 / Order 48 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2019, or at the time of filing the application per Order 16/24 Rule 19 of the Ondo State High Court (Civil Procedure) Rules 2019, or at filing and performance, whichever is later, per Order 45 Rule 4 of the High Court of Osun State (Civil Procedure) Rules 2023.
7. Two Schools of Thought
Pragmatic School: The Order says “service”, not “valid service after leave.” Once served with a filed Defence, even with a motion, start counting. Many Judges enforce this for speed.
Purist School (Correct View, Supported by Order 44 Rules 1, 3, 4 of the High Court of Ekiti State (Civil Procedure) Rules 2011; Order 16 Rules 16, 18, 19 of the Ondo State High Court (Civil Procedure) Rules 2019; Order 45 Rules 1, 3, 4 of the High Court of Osun State (Civil Procedure) Rules 2023; and Order 48 Rules 1, 3, 4 of the High Court of Lagos State (Civil Procedure) Rules 2019): Time cannot run from service of an incompetent process. Service of the motion plus proposed Defence is not service under the Reply rule. The Claimant’s time is in abeyance until the court exercises its discretion. This is supported by Bowaje v Adediwura (1976) 6 SC 143, wherein the court held that: “in a case where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by section 31(2)(a) of the Supreme Court Act but must also file his notice of appeal and grounds of appeal after having obtained the leave, within the same period” and Chief Ifeanyichukwu (Osondu) Ltd v Soleh Boneh Ltd (2000) 5 NWLR (Part 656) 332.
8. Consequences and Recommendation
Recommendation: Amend by Chief Judges pursuant to Section 274 of the Constitution to insert a new sub-rule:
Order 15 Rule 3A of the High Court of Ekiti State (Civil Procedure) Rules 2011, Order 15 Rule 1A of the High Court of Lagos State (Civil Procedure) Rules 2019, Order 15 Rule 3A of the High Court of Ogun State (Civil Procedure) Rules 2024, Order 32 Rule 1A of the High Court of Oyo State (Civil Procedure) Rules 2021, Order 17 Rule 1A of the High Court of Osun State (Civil Procedure) Rules 2023, and Order 9 Rule 5A of the Ondo State High Court (Civil Procedure) Rules 2019 to read –
(1) Where a party is out of time to file any pleading, he shall not file same before leave. He shall file a motion for extension under Order 44 Rule 4 of the High Court of Ekiti State (Civil Procedure) Rules 2011, Order 48 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2019, Order 45 Rule 4 of the High Court of Osun State (Civil Procedure) Rules 2023/High Court of Ogun State (Civil Procedure) Rules 2024, Order 16/24 Rule 19 of the Ondo State High Court (Civil Procedure) Rules 2019, with the proposed pleading annexed as an Exhibit marked PROPOSED.
(2) Where leave is granted, the pleading shall be deemed filed on the date of the order, and time for Reply under Order 18 Rule 1 of the High Court of Ekiti State (Civil Procedure) Rules 2011 (30/14 days), Order 9 Rule 6/Order 18 Rule 1 of the Ondo State High Court (Civil Procedure) Rules 2019 (14 days/30/14 days), Order 18 Rule 1 of the High Court of Osun State (Civil Procedure) Rules 2023, and Order 17 Rule 1(4) of the High Court of Lagos State (Civil Procedure) Rules 2019 shall run from service of the order and pleading, excluding the day the order was made pursuant to Order 44 Rule 1(a) of the Rules in Ekiti, Order 16 Rule 16(1) of the Rules in Ondo, Order 45 Rule 1(a) of the Rules in Osun, and Order 48 Rule 1(a) of the Rules in Lagos.
(3) The Registry shall not receive any pleading filed out of time without a prior order. Any pleading filed in breach shall be marked PROPOSED ONLY – NOT FILED and shall not trigger time for any other party under Order 44 Rule 3 of the Rules in Ekiti, Order 16 Rule 18 of the Rules in Ondo, Order 45 Rule 3 of the Rules in Osun, and Order 48 Rule 3 of the Rules in Lagos, in line with Order 9 Rule 3 of the Rules in Ekiti/Ondo (witness list, statement on oath requirement).
Pending amendment, a Practice Direction should prohibit registries from receiving late pleadings without a prior order and mandate marking them PROPOSED.
For young practitioners: The fact that a registry collects money and affixes a stamp does not make an invalid process valid. Paying N200 (Ekiti/Osun), N300 (Ondo), N500 (Ogun/Oyo) or N1000 (Lagos) per day is not buying filing; it is paying for delay at the time leave is sought. Stop filing first. The Rules know only two sequences: apply before expiry and perform after, or apply after expiry, get leave, then perform. Performance before application is unknown. The correct approach is to annex the proposed Defence as Exhibit A marked “PROPOSED” to your motion, not to stamp it and serve it.
Conclusion: The very relief commonly sought is self-defeating. If it was not proper, it could not have been properly served. If it was not properly served, it cannot start time under Order 18 Rule 1 of the Rules in Ekiti 2011, Order 9 Rule 6 & Order 18 Rule 1 of the Rules in Ondo 2019, Order 18 Rule 1 of the Rules in Osun 2023, and Order 17 Rule 1(4) of the Rules in Lagos 2019. Until the Rules are amended, the dilemma will persist.
S.O. Giwa Esq., a.k.a Pentalk, Ibadan Based Legal Practitioner Principal Partner, Sohamin Legal Practitioners and Consultants giwa_pentalk@yahoo.com | 07076489021
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