By Folabi Kuti, SAN
This paper was presented by the Learned Silk at the Knowledge Exchange Session organized by Writehouse on the High Court of Lagos State (Civil Procedure) Rules 2019. The event, titled ‘Anatomy of the New Lagos Rules’, was held on July 18, 2019. The views and issues raised in this paper have gained even greater relevance in our justice delivery system today, as the challenges discussed have only deepened over time.
This is no caveat. An admission, maybe. Our civil litigation system, fiercely adversarial in nature, is a weak one. It is characterised by dilatory tactics put in place, albeit by sheer design and default, to weaken the system and make the litigants lose hope in the entire judicial system. I have a personal story. As a young lawyer few years ago, I was happy crossing swords, and winning many cases, with the effective deployment of one preliminary objection, or the other at interlocutory stages. As at 2006, I was happy with the reputation I’d garnered with the alias an SAN, at the end of some long-drawn arguments in court, dubbed me: ‘Master-Objector’. I couldn’t be bothered if the substantive dispute got resolved or not. There was an ambush in wait for every court paper served on my client. Let me not bore you. Asked to speak at a Session on ‘Effective Advocacy Skills’ sometime in 2012, the paper presented- for reference, the link is http://www.perchstoneand graeys.com/assets/ckfind er/userfiles/files/Story_story.pd f – regal ed some of these exploits, and ‘advocacy skills’.
I am, however, now ‘born-again’. I was saved on the road to Damascus, and this is how, fortuitously, that happened. In 2010, I seriously contemplated getting involved, very seriously in ADR, arbitration to be precise. Litigation was (and, still is) my forte, and thought to complement that with a related dispute resolution mechanism. As a take-off point, I embarked on intensive academic research. I decided to read up all the reported arbitration cases – appellate decisions, that is- in the Nigerian Weekly Law Reports from 1985 (when the first Issue of NWLR was published) till 2010. In no time, I read up over 50 decisions published under the Heading ‘Arbitration’ in the Comprehensive Indexes to the Nigerian Weekly Law Reports, 1985 t0 2010.
My finding? Quite jarring to note a disturbingly recurring sequence in all these cases. Not a single one, I repeat, not a single decision resolved the substantive dispute (many a time, with serious commercial undertone) between the parties with a note of finality! The reported decisions were all, well mainly, on challenges to jurisdiction or awards made by the arbitral tribunals on ground of misconduct. NNPC v Lutin is one of such. It went all the way to Supreme Court on challenge to ’seat of arbitration’, with the Supreme Court returning a verdict that Justice Omo-Eboh (rtd) (the sole arbitrator) misconducted himself on the issue flagged. The agreement incorporating the arbitration clause was signed in 1992. Dispute arose in 1994. The Supreme Court decision under reference was made in 2006!! I thought to myself- if it took circa 12 years to resolve the question as to the seat of arbitration, what became of the underlying commercial dispute the parties had thought a swifter and confidential grievance remedial process as arbitration would enable the(ir) dispute.
Not done, I researched a little more, and came to an empirical conclusion that has remained the same today, even with the passage of years- the notable disputes/cases we regularly reel of in courts as binding precedents were all either decided on, or known for ratios on procedural points whilst the underlying commercial disputes remained unresolved. I challenge anyone to read the Saraki v Kotoye, Kotoye v CBN line of cases.
Anyway, before I digress further, let me now say that am an advocate of quick dispensation of material and substantial justice, and have continued to research on how practitioners can help bring that about. That’s my passion today, and I thank WRITEHOUSE for inviting me to talk on ‘Managing the Lifespan of Cases’. How do we bring about quick resolution of disputes using the avenue of practice and procedure of the Court system- the Lagos Rules 2019, as a benchmark?
1. AN OVERVIEW OF THE LITIGATION PROCESS
This is the life cycle of many a civil litigation. An action is filed. Service of originating is effected, where not bogged down with repeated futile efforts at effecting service. The defendant enters appearance, often, challenging the jurisdiction of the court on a myriad of procedural objections the ponderous system avail. Arguments are drawn on interlocutories. Somewhere in between the litigant, resignedly, is worn out, and either explores an extra-judicial means at resolution, or simply ‘leave to God, the ultimate Judge’. The lawyers, in the meantime, continue to bait at every available wicket, whilst the matter, in fits and starts, gets lubricated on ‘motion without real movement’. Someday, years later, final address is exchanged by the parties. The Court, after two or three adjournments where parties attend court hoping to ‘adopt the address’ but the court could not accommodate them, finally hears parties, and adjourns for judgment. Well, there’s some travel time here too. Judgments are mostly never ready at first call. The dockets are heavy, and the schedule of business in court, exhausting if not punishable.
But the day of judgment finally comes. Or so, it seems. A Notice of Appeal is delivered before the ink on the paper on which the judgment is written dries up. The battle simply moves to another tier of the 3-tier court system. Court of Appeal is an average of 3 to 5 years, where appeal is diligently prosecuted. And the Supreme Court? 10 years from the date a Notice of Appeal is lodged against the decision of the Court of Appeal. The Judges, from the courts of first instance to the apex court, are overworked. Analyzing the situation, the Nigerian Institute of Advanced Legal Studies in a paper titled; The Nigerian Judiciary: Towards Reform of the Bastion of Constitutional Democracy noted thus:
“…. During the 2010-2011 legal year alone, the Supreme Court disposed of 163 cases, consisting of 78 judgements and 85 motions. However, 1,149 civil appeals are still pending before us. It is clear that given current realities, even if we have a full constitutional compliment of 21 justices of the Supreme Court, it will certainly take several years before we clear the backlog.”
So away from that reality for one moment, I once imagined a lawyer competing for a place amongst shortlisted candidates to participate in a year’s edition of the reality competition TV series, Big Brother Naija. This
‘fictional’ character was asked if being locked up in an isolated house with other ‘housemates’ for a month or two will not affect his ‘legal practice’. Without any hesitation, he responded in the negative. ‘Nothing to worry about. The cases would just have been mentioned once or twice in court, and one of these is bound to happen anyway: (i) the court’s not sitting; (ii) the opposing counsel has not been served, or is only filing and serving a new process thus necessitating the ‘business of the day in court to be rescheduled’; (iii) there is a letter from the opposing counsel seeking for adjournment; (iv) the court, on account of the heavy schedule of business that day (46 matters on the cause list) cannot take the matter/s etc’
Well, welcome, to Big Brother Naija ‘fact-ion’ courtroom.
2. WOOLF’S REFORMS ON THE LAGOS SCENE
‘Eko o’ni baje’
Ever at the forefront of revolutionary ideas and thought process on impacting on the administration of civil justice system in the country, Lagos State, in 2004, became the first State to adopt substantially the Lord Woolf’s Committee suggested reform, which occurred in the late 1990’s and shaped the system of the United Kingdom’s civil justice system landscape. Lord Woolf proposed this reform when he published the report in the year of 1997. Following this report, and directly as a result of it, parliament introduced the Civil Procedure Rules of 1998. These are the extensive rules that are now used by the courts in Englandand Wales when dealing with civil matters and procedures.
Lord Woolf’s reforms were initially intended to help reduce the cost and time courts spent on civil proceedings. He identified in his original report that the three critical issues facing the civil justice system at the time were costs, delays, and complexity. To combat the problems that he saw as being prevalent with the system, Lord Woolf proposed changes to the ways of the standard procedure landscape such as:
- Litigation to be as often as is possible.
- There should be an increase in the usage of ADR and similar such
- alternate methods of dispute resolution.
- The costs of litigation should be more affordable for the general public
- which would make it so that those of lower financial ability would be able to pursue a lawsuit on an equal or similar level to those with higher means.
- Litigation as a process would become less complex.
- The methods of litigation would become less time consuming, and would, therefore, lead to swifter justice.[1]
Woolf’s resonated with Lagos State, and in 2004, the State introduced a new High Court (Civil Procedure) Rules with the jurisprudential basis stated to be ‘in furtherance of the good, proper and fair administration of justice’ . The whole works of Woolf’s recommendations: frontloading, pre-trial hearings etc. happened on the scene for the first time.
In 2012, a new set of Rules was introduced adopting same jurisprudential basis as the 2004 Rules, whilst further introducing a new concept: Active case management. The striking feature of the 2012 Rules was the use of Alternative Dispute Resolution (ADR) in resolving appropriate or ‘suitably qualified’ dispute(s), on the one hand; and greater judicial management of the traditional dispute resolution mechanism of the court, on the other hand[2]. The
2012 Rules stated that the court must further the overriding objective by
‘actively managing cases’ and active case management includes exercising
the various judicial powers listed in r.2 (2).
‘The best intentions’, the saying goes, ‘-sometimes- go awry’. The 2004 and successor 2012 Rules were nonetheless still plagued with different criticisms, not least, long-gestating hearing of simple matters that should have otherwise been determined within a considerably reduced timeline where the lettering and intendment of the Rules were followed to the latter. Thus, my Lord, the Hon Justice Ayotunde Phillips, former Chief Judge of Lagos, lamented thus in the opening paragraph of the judgment in Suit No. ID/2110/95 Mr Kayode Adeyemi & Anor v Alhaja Musinatu Wuraola Abayomi & 6 Ors.[3]:
“Introduction
The subject matter of this suit is a female child who is now an infant. At the time this suit was instituted in 1995, she was however a baby of just a few months old. It has taken us all 7 years to reach the end of this matter in the High Court and for this delay, I apologize. The wheels of justice grind very slowly in this country of ours and it is about time something concrete is done by all of us that serves the Temple of Justice to ensure that matters filed in court are dealt with speedily, especially matters such as this one where the life and the stability of a new born child are at stake. Without the necessary sanctions in our Rules of Court, there is precious little a Judge can do to ensure that there are not unnecessary delays occasioned by the absence of counsel and unwarranted requests for the adjournments without being accused of sacrificing justice and the right to be heard at the altar of haste. Once again therefore, I apologize for the delay in coming to the end of this matter and hope that th e affected families involved will be able to put the trauma this matter has caused them behind them and be able to move on from here.”
(III) THE NEW HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES 2019 – MEETING THE CHALLENGES OF THE TIME5
Section 274 of the 1999 Constitution of the Federal Republic of Nigeria and Section 89 (1) of the High Court Law of Lagos State CAP H5, Laws of Lagos State, 2015, endow the Chief Judge of Lagos State with the power/’legislative competence’ to make rules concerning the administration of the civil justice system. In exercise of the power, the Chief Judge of Lagos State recently made the High Court of Lagos State (Civil Procedure) Rules 2019 (the “New Rules”).
There is no gainsaying the fact that Rules of Court, as handmaidens of justice (Williams v Hope Rising, Supreme Court 1982) are subsidiary legislations having full force of law (Owners of MV Arabella’s case).
The pertinent question is, are there provisions in the 2019 Rules that are designed to or can be called in aid to enable ‘the achievement of just, speedy and efficient administration of justice’ within a short timespan?
‘Overriding objectives’ – Order 2
As part of the overriding objectives of the Rules, the Court seeks to actively manage cases by mandating and facilitating ADR where considered appropriate. Actively managing cases ensure that cases are expeditiously completed within specified schedules. As Woolf Final Report made clear, new procedural system would be based fundamentally on active case management by the Court. Put simply, the Court are to ensure that litigants comply strictly with this overall schedule. Following the English Access to Justice Report, effective case management requires three essential components, to wit:
- A proactive judiciary who engage with the litigation from a very early stage;
- Lawyers who are prepared to put aside during the pre-trial stages the
- adversarial attitudes of the old regime and adopt a cooperative stance with courts and with their opponents;
- A well-resourced court staff who, at all levels, is well trained and
- experienced in the work required of them at all stages of the life of the litigation.
The Court is thus expected to be committed to assisting parties settle their disputes by fixing timetables to control the progress of the cases. This Order further confers on the Court the power to impose sanctions for non- compliance with the Rules or an Order of the Court.
The approach of the Courts is to deal with each civil proceeding in ways that are proportionate considering the nature and importance of each case, complexity of the issues, the amount of money involved and the financial position of each party. Consequently, it has a duty to allot to every civil proceeding an appropriate share of the Court’s resources (presumably this includes time) while taking into account the need to allot resources to other cases.
(Emphasis here is the need to ‘allot time and appropriate share of the Court’s resources.’ This is occurring in the Rules for the first time. In the UK, the provision now enables the courts to draw up timetable, as done in arbitration, for hearing of cases. Timetable and schedules for ‘the motions’ etc. are strictly kept to, with the resultant effect that matters are determined within a short timespan)
Order 9 – E-court system- 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.[4], 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.’
In the everyday grind of court hearing, proving service or that the defendant has knowledge of the pendency of a suit can take about 2 or 3 hearings. This is now effectively taken care of with the e-filing system.
Realistic costs/Default fees to deter delay, unwholesome practice(s)[5]
It is appalling that matters can proceed in court for years and upon conclusion cost awarded to “indemnify” a party is a mere pittance. The quantum of cost awarded is abysmally low and the courts have generally refrained from awarding realistic cost. Even when awarded they are rarely enforced. Meanwhile cost where effectively applied will act as a deterrent for frivolous actions or lack of diligent prosecution of matters. It is therefore expected that cost of and incidence to all proceedings should be more realistic and in tune with economic realities, taking into consideration the well delineated parameters now provided in Order 53 Rule 1 of the new Rules to the effect that:
‘In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in the course of proceedings, as well as compensated for his time and effort in coming to Court. Such expenses shall include; (a) the cost of legal representation and assistance of the successful party to the extent that the judge determines that the amount of cost is reasonable; (b) the travel and other expenses of parties and witnesses to the extent that the judge determines that the amount of such expenses is reasonable, and such other expenses that the judge determines ought to be recovered, having regard to the circumstance of the case.’
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 timespan 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.
Furthermore, to ensure that proportionality is at 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.
Order 28
Order 28 focuses on ADR proceedings and makes it compulsory for parties to refer to the Lagos Multi-Door Court House or appropriate ADR institution or Practitioner once pleadings are deemed close.
Order 33 and 34
These are key provisions as they provide for the order of proceedings at trial and consequences for lack of diligent prosecution. A judge, if he sees no good reason, may by this Order strike out a listed suit for non-appearance of either party to the suit[6] or for lack of diligent prosecution[7]. A Claimant may proceed to prove his claim (to the extent that the burden of proof lies on him) in the absence of a defendant who defaults in appearance and vice versa[8]. A Judge may also suo-motu close a case of a party if the party fails to do so within reasonable time.
A community reading of Order 34 Rule 3(1) and (2) endows the Judge with the power to expedite proceedings where it appears to him that there has been laxity in the prosecution of the case. The Judge may summon parties to explain the reason for the delay and based on which he may make any order as he deems fit and as the circumstances of the case may require. It also confers on the Court, the power to strike out a case in which no proceeding has been held or application filed for a period of twelve months.
High Court of Lagos State Practice Directions (No 1 of 2019) -Backlog
Elimination Programme
The Practice Directions titled “Expeditious Disposal of Civil Cases: Practice Direction No 1 of 2019-Backlog Elimination Programme (PD 1) and “Expeditious Disposal of Civil Cases: Practice Direction No 2 of 2019 -Pre-Action Protocol (PD2) are designed to ensure the swift and expedient disposition of civil cases, and eradication of backlog cases.
PD 1 applies to civil proceedings instituted by claim (including counter claim, and renewal of claim) in the High Court Registry, and such other proceedin gs as the Chief Judge may direct.
Highlights of PD1:
1. Designation of qualifying cases as “Back Log”:
Cases filed over 5 years ago and are yet to be decided or settled are qualified to be handled as backlog cases under the backlog elimination programme. The backlog cases are to be struck out, withdrawn, settled or decided expeditiously.
2. Documents based trial:
PD 1 gives the parties to backlog cases the opportunity to opt for a trial based solely on documentary evidence.
3. Trial Plan:
If the parties to backlog cases are unable to reach a resolution through alternative disputes resolution mechanisms, the parties are expected to draw up a detailed trial plan.
4. Time for delivery of judgment (60 days):
Judgment in a backlog case is to be delivered within 60 days of the adoption of final addresses by both parties.
PD 1 stipulates strict timelines, which if not complied with will attract stiff sanctions and penalties. For example, where a case is struck out for non – compliance with the return date attached to the CMC notice or for failure to comply with the procedural timeline or for failure to appear on any court dates under the backlog hearings, the party applying for restoration of proceedings shall pay costs not less than ₦100,000.
The PD 2 establishes the Pre-Action Protocol. The Pre-Action Protocol is one of the documents to be filed along with the originating processes and it is to be frontloaded only in Lagos, by the Claimant only. The Pre-Action Protocol applies to all actions instituted at the High Court of Lagos State.
PD 2 contains the following initiatives:
1. Pre-Action Protocol Bundle:
A claimant instituting an action must include Pre-Action protocol form 01 with other supporting documents called the Pre-Action Protocol Bundle which must be spiral bound separately and arranged in appropriate order. The Pre-Action Protocol Bundle consists of the pre-action correspondence between the parties to show evidence that ADR has been considered.
2. Settlement of Disputes through ADR:
Mandatory provisions to make parties resolve their dispute through ADR, and only considering litigation as the last resort.
3. Provisions for specific actions:
Extensive provisions have been made on the application of the pre-action protocol to some specific actions such as on Defamation, Mortgages, Land Matters, Recovery of Debts, and Recovery of Premises.
4. Failure of Compliance with the Protocol:
Some of the penalties include a daily default fee of N1000 which shall accrue as costs in favour of the counterparty. There is also a minimum cost of N100,
000 for every person who unreasonably refuses to comply but insists on going to trial.10
The PD 1 mandates parties to make efforts to resolve the dispute through all the means of the Alternative Dispute Resolution (ADR) and only considering litigation as the last resort. This is to reduce the truckload of matters that are usually filed at the court and to prevent the filing of frivolous actions.
GAP(S) IN THE RULES
There is no gainsaying the fact that one major procedural problem plaguing expeditious hearing and determination of matters in our courts is the perennial objection as to the jurisdiction of the fora which an action is pending. The Federal High Court Rules appear to have dealt with this to some extent in making strict provision as to timeline allowed to raise such objection, or the objector waives his right to raise same, or would have to wait till conclusion of plenary hearing.
This is a noticeable gap in the Lagos Rules.
CONCLUSION
The 2019 Rules and Practice Directions signify the right steps in improving the administration of justice. The introduction of strict timelines and default fines is commendable and will encourage parties to diligently prosecute and defend their cases. Hopefully this initiative will curb vexatious claims and undue delays in the Courts.
I thank you.
Folabi Kuti SAN is the Lead Partner in Union Attorneys (Incorporating KutiLegal).
folabikuti@kutilegal.com
[1] ‘Do Lord Woolf’S Reforms Need Reforming?’ KTA Law Firm
[2] https://greym ile.wordpress.com /2012/09/26/som e -reflections-on-the-new-high-court-of-lagos-state- civil -procedure-rules-2012/
[3] Judgment can be found at pp.30-62 of the ‘Landmark Judgments of the Hon. Justice Ayotunde Phillips’. I thank my colleague, Temidayo Adewoye, for calling my attention to this judgment, and for going the extra mile of obtaining a copy from the High Court of Lagos library.
[4] http://gravitasreview.com.ng/shop/reflections-new-high-court-civil-procedure-rules-2019/
[5] https://guardian.ng/features/passing-the-burden-of-legal-fees-to-the-other-side-a-recoverable-cost/
[6] Order 33 Rule 2
[7] Order 34 Rule 2
[8] Order 33 Rule 3 and 4