Review of the 2019 Federal High Court Civil Procedure Rules – Elvis Asia

Introduction

As the court system continue to struggle with congestion, administrative bottlenecks and the procedural pranks of legal practitioners, new rules are being evolved to contend with the problems. Early this year, we witnessed a major shift in Civil Procedure Rules (CPR) with the coming into effect of the 2019 Lagos State High Court Civil Procedure Rules (LCPR).  On July 5, 2019, the Federal High Court followed suit by making public the Federal High Court Civil Procedure Rules, 2019 (FCPR).

Review  of the FCPR

A review of the FCPR shows that no additional Order was added to the 58 Order rules but some of the orders were reworded/re-arranged and in a few cases, new sub-sections were introduced. Below are some of the new provisions in the rules:

1. Commencement: The rules were made public on July 5, 2019. However, the commencement date on the rule is May 10, 2019. The question is whether processes filed between May 10 and July 5, 2019 would be affected by the rules. The Chief Judge needs to make a clarification on this to avoid unnecessary objections to actions that were commenced within the period.
2. Interpretation: a new term, e-filing, was added to the interpretation provision of the rules. See order 1 rule 5. The term ‘registry’ was also redefined to mean registry of the court at its headquarters or other division. Under the old rules, the term meant the registry in Lagos and other divisions.
3. Affidavit of non-multiplicity of action on the same subject matter: apart from the usual frontloaded processes, an originating process is now required to be accompanied by an Affidavit of non-multiplicity of action on the same subject matter. It is modeled on Order 4 of the Asset Management Corporation of Nigeria (AMCON) Proceedings Rules, 2018. See Order 3 rule 3 (1) (f), 9(1) (d), order 5 rule 2 (2) (d). The need to nip abuse of process in the bud and the judicial time often dissipated on resolution of the issue necessitated this provision.
4. Service of process: service on the armed forces, Police, paramilitary service and their officers shall be on the legal unit of the services. Order 6 rule 6(b). There is an additional provision in order 6 rules 26 which empowers process servers to throw or leave the process within the reach of the person to be served when violence is threatened. Most importantly, the rules now provide that leave of court is not required to serve a process on any party in the Federation. See order 6 rule 31 (2).
5. Default of pleadings: There is a new sub rule under order 14 rules 3. The rule provides that where damages are to be ascertained in a case based on declaratory relief, the judge shall set the matter for trial.
6. Correction of judgment, order or proceeding: Order 17 rule 7 provides that a judge may correct judgment, order or proceeding of clerical mistake or error arising from any accidental slip or omission. This is a mere codification of what is already the practice.
7. Evidence generally: order 20 rule 16 now has a sub rule 2 which is to the effect that the Judge shall have control over the duration for cross-examination of witness in any matter. The provision is necessary in view of the abuse of the process of cross-examination.
8. Duration of ex parte order: Under the old rules, if a motion to discharge an ex parte order is not taken within 14 days of its being filed, the order shall lapse. The new rules allow the court to direct that the order should continue in the interest of justice. See order 26 rule 10 (3).
9. Disputing the court’s jurisdiction: under the old rules, the defendant had 21 days from service to dispute the jurisdiction of the court. The time has now been extended to 30 days to correspond with the time within which the defendant ought to file defence. See order 29 rule 4.
10. Application for judicial review: there is a new requirement for a verifying affidavit and affidavit in support of application for injunction under order 34 rule 1(2). The rules now provides that a person wishing to oppose the granting of the application shall within 7 working days after the receipt of the originating process, file a counter-affidavit with a written address. The applicant has the liberty to file a further affidavit with a reply address on point of law within 5 days after the receipt of the counter-affidavit of the respondent.
11. Garnishee proceedings: The Rules retained the old provisions on garnishee proceedings but increased the least amount of judgment debt that can form the basis of the proceeding to N100, 000 from N20. See order 37 rule 1.
12. Discovery and Inspection: There is no material change to the existing practice. It appears that there is an error in order 43 rules 26 and 27. Both sub rules also repeat the same provision in their sub-paragraph 2.
13. Period of long vacation and vacation judges: under the old rules, the period of long vacation commences from any date in August and ending on a date not less than six weeks later. This has now been changed to July. See order 46 rule 4(d). There is an additional rule 8 under order 46 empowering the Chief Judge to appoint vacation judges and judges to determine urgent matters. Though this has been the practice, it was not contained in the old rules.
14. Cause lists: the new rules corrects the typographical error in order 47 and adds that where the court is unable to sit on a date fixed for hearing, a memorandum recording the parties present and the adjourned next date shall be endorsed in the case file by the registrar. Giving the frustration experienced by litigants and counsel where judges are unable to sit, one would have expected that the rules will place an obligation on the registrar to inform the parties at least 24 hours before the date fixed for hearing. The absence of this obligation defeats the essence of order 47.
15. E-Filing: The new rules establish a Registry for filing processes electronically to the court known as the E-Filing Unit with a scanning centre. An officer of the court known as the E-Filing Registrar shall be in charge of the unit. The system of e-filing shall run parallel with the existing filing system and the plaintiff has the choice either to file electronically or manually. Where the plaintiff decides to file electronically, the defendant is bound to file his defence the same way and until the final determination of the matter.

With respect to signing documents electronically, the rules provide that a party may sign with electronic signature or sign manually and scan to the system. The rules also address technical issues with the system which may result in a process being filed out of time. In such circumstances, the party can apply to the court for appropriate relief. See order 58

On the whole, there are a few major areas where  the rule seems to have introduced what we have not seen before. The first one is addition of Affidavit of non-multiplicity of action to the list of documents that should accompany originating processes and the second is the provisions on e-filing Registry. The value of Affidavit of non-multiplicity of action remains to be seen considering that there are existing legal remedies for abuse of process. However, the fact that a party is obligated to depose to such an affidavit under penalty of perjury may go a long way in reducing abuse of process. For e-filing, the rules would remain a mere statement of intent unless funding can be mobilized for the creation and management of the registry.

Another important provision is the clarification that no leave is required to issue a writ for service anywhere within Nigeria. This has put paid to the unnecessary dissipation of judicial ink on the issue[1].

Unlike the LCPR, the FCPR did not make drastic changes to existing procedural practice in the court. It is particularly disappointing that the existing practice on substituted service was not amended to reflect modern means of communication. There is also no change to Order 25 dealing with costs. Realistic costs structure is fundamental to curbing delays and frivolous actions and generally orchestrating virile justice administration machinery.

Perhaps the reason the rules looks more like a reprint of the old rules is that in 2018, the court made two important rules. The first one was The Federal High Court (Alternative Dispute Resolution) Rules, 2018 (ADR Rules) which came into effect on December 13, 2018. The rules created the Dispute Resolution Centre (“the ADR Centre”) with mandate to apply mediation, conciliation, arbitration, neutral evaluation and any other ADR mechanisms in the resolution of disputes referred to it from the Court. Though order 18 rule 1 of the 2009 rules (now 2019 rules) empowers the court to grant parties time to explore possibilities of settlement of disputes, the ADR Rules provides a detailed mechanism for doing so. In line with the rules, Honourable Justice Kafarati, the Chief Judge of the Federal High Court, recently commissioned the ADR Centre and noted that it was aimed at enhancing access to justice through alternative mechanism; minimize frustration and delays in justice delivery as well as enhanced timely, cost effective and users’ friendly alternative to litigation in resolving disputes.

The second one was the Federal High Court Asset Management Corporation of Nigeria (AMCON) Proceedings Rules, 2018. The rules also came into effect on December 13, 2018. The objective of the rules is to deal with AMCON claims expeditiously. AMCON rules mirrors the trend of designing special procedures for the quick dispensation of justice in certain areas.  Whilst there is nothing wrong with the approach, the goal of the judiciary should be effective and expeditious disposal of all cases. We cannot continue to create special procedure for cases that favours the government and politicians while the rest of the society continues to wallow in unreasonable delay in justice administration.

Conclusion

No matter how beautiful the Rules of court are, they cannot be better than the users and those charged with the duty to implement them. The bar and bench must get back to the real business of dispute resolution and in real time. Finally, the most fundamental hurdle to expeditious disposal of cases cannot be addressed by Rules of court. Lack of infrastructure and limited manpower will stand in the way of achieving the laudable objectives of the Rules. A judge with 30 cases on the list in a day and without modern recording gadgets and support system cannot realistically resolve disputes expeditiously. This aspect need to be addressed if we are serious about quick dispensation of justice.

Elvis. E. Asia is a Senior Counsel in Lagos, Nigeria. Mr. Asia can be contacted at elvis.easia@gmail.com

[1] The Supreme Court in Biem v Social Democratic Party (judgment delivered on Tuesday, 14 May 2019) held that service out of jurisdiction in the Federal High Court meant out of Nigeria and impliedly overruled Owners of the M.V. Arabella v. N.A.I.C. (2008) 11 N.W.L.R. (pt. 1097) 182