REVIEW OF THE HIGH COURT OF LAGOS STATE CIVIL PROCEDURE RULES 2019 AND
THE PRACTICE DIRECTIONS (NO. 1 & 2) THERETO VIS A VIS THE PROVISIONS OF THE
HIGH COURT OF LAGOS 2012 RULES; DIFFERENCES OBSERVED AND IMPROVEMENTS MADE[1].
Lagos
State Judiciary remains a primus interpares
when it comes to setting the track for easy dispensation of justice. It remains
a dream state for every Legal Practitioner who has flare for practice. In
furtherance to her goal to achieve easy and timeous dispensation of justice in
civil matters, a new Civil Procedure Rules and Practice Direction shall come
into effect on the 31st day of January, 2019. To this end, it
becomes apposite to outline the differences/improvement made in the new rules.
This
Article is for ease of reference and should in no way be substituted for a
proper digest of the provisions of the 2019 Civil Procedure Rules and the
Practice Directions thereto.
Enjoy.
1. The 2019 rules (herein after called
the new rules) has 65 Orders in total while the 2012 rules had 60 Orders.
2. The Preamble of both rules promotes;
the facilitation of just and expeditious resolution of issues, exclude
technicality and includes the use of Alternative Dispute Resolution mechanism
by the court users.
3.
The new rules of court shall take effect on Thursday the 31st day of January, 2019.
4. Order 2(2) of
the new rules allows a deponent to depose to an affidavit or make a written
statement on oath in his or her language accompanied by a separate
interpretation version in English
5.
Law in this rule’s means High
court Law of Lagos Ch. H5 Laws of Lagos 2015.
6. The new rules repeal’s the 2012 rules
and stops its application to all civil proceedings in High Court of Lagos,
including all part heard causes and matters from the commencement of this
rules. (in essence, the new rules apply’s to all pending suit instituted under
the provisions of the 2012 rules and any procedural defect/ issues that may
arise by this, must be rectified to be in tandem with the provisions of the new
rules)
7. Order 5(3) of
the new rules states that failure to comply with the list and copies of
documents stated in (2) shall
nullify the action, as opposed to the 2012 provisions that it shall not be
accepted at the registry for filing. (This to my mind waters down the
‘irregularity effect’ always canvassed in court by lawyers who do not comply
with the 2012 rules as a result of the registry oversight in accepting such
defective originating processes). It applies to suits commenced by Writ of
Summons and Originating Summons.
8. Order 5(6)
provides that where a matter has been transferred by a court of competent
jurisdiction, any of the parties shall re-file the action in compliance with
Order 4 (1) & 42.
NB. Order 4has no rule 42.
9. Order 9 on
service of originating processes excludes the usual provision as to “Proof of
Service by the Process Server”.
Query: Of what
effect is the omission/ exclusion?
10. Order 11(1)
Improves on the details a Legal Practitioner representing a Defendant must
include in a Memorandum of Appearance to wit; his full name, chambers address
within Lagos, telephone numbers and email address. Same applies to a Legal
Practitioner who is an agent of another Legal Practitioner. Illusionary,
fictitious or misleading address for service may be set aside by a judge upon
Claimant application on notice to the Defendant.
11. Order 11(1)
Penalty attached/ Default fee for filing of late Memorandum of appearance is
now N1000 (no longer N200).
12. Order 25(4)
allows a claimant with leave of court to withdraw or discontinue the claim when
trial has commenced (this is missing in the 2012 rules). This will amount to a
dismissal of the suit in whole or in part or on other such orders as the court
shall deem fit to make.
13. Order 26(4)
failure to effect an amendment in a process within the time ordered attracts
N1000 per day of default (no longer N200)
14. Order 28 is on
ADR Proceedings and it applies to;
a. Cases screened to ADR upon filing
b. Matters referred to ADR from CMC
c. Application for enforcement of
Arbitral Awards.
NB. During ADR proceedings, any application to be made shall be by way of
Originating Motion on Notice stating in general terms the grounds, Affidavit in
support (where evidence is to be adduced) and a written address. A party served
with an application therein shall file a Written Address alone or Counter
Affidavit supported by a Written Address 14days from the date of service of the
application. The Applicant may file a Reply on point of Law or Further Affidavit
within 7 days from the date of receiving the Counter Affidavit.
Where the matter is not resolved by ADR, the Judge shall issue a Status
Report and the matter shall be remitted for reassignment to a Trial judge
15. Order 34 is on
Diligent Prosecution. Where no proceeding is held or application filed in a
case for a period of twelve (12) months, the court shall strike out the case.
16. Order 35:
Written address shall no longer exceed twenty (20) pages and a reply on point
of law shall not exceed five (5) pages except with the leave of court.
17. Order 37: The
whole Provisions of the Evidence Act and Oath Law governing Affidavit now
applies. It is no longer streamlined to s.107 – 120 of the Evidence Act as
provided in the 2012 rules.
18. Order 44 of
the new rules excludes the immunity from prosecution of any person in respect
of anything done in obedience to an Order of Mandamus as contained in Order
40(10) of the 2012 rules.
19. Order 48:
Default fees for performing any act out of time is now N1000 for each day of
default (no longer N200).
20. The Saving Provision under Order
45(13) of the 2012 rules(which allows the court to adopt a procedure that will
do substantial justice where the rule’s is silent) is not provided for under Order 49 of the 2019 rules.
21. Order 59 on
Fast Track Procedure; as one of the conditions for a suit to qualify for Fast
Track, a Claimant/Counter Claimant is no longer required to make an application
to the registrar as provided for in the 2012 rules.
NB. Upon serving
of originating processes, defendant now has 30 days to file Defence and frontload all processes (no longer 42
days).
22. Order 60(1)2; is
it an error or does it automatially qualify (all petitions commencing revenue
proceedings) for Fast Track?
The production of certificate
referred to in Rule 3(3) of Order 60 shall be sufficient evidence of the amount
due and a ground for the court to give judgment for the amount claimed. (Order
60 rule (4)3). This is not contained in Order 55 of the 2012 rules.
Order 60 of the new rules also allows
a Respondent who does not dispute the reliefs in the petition to file a
Memorandum of Debt Repayment and where payments are to be made in installments,
a Repayment Schedule shall be filed. Installment Payments shall not exceed three (3) months.
Also, the time for service on the
Respondent of Further Affidavit together with Written Address by a Petitioner
(upon being served the Respondent Answer to Petition) has been reduced to Three (3) days after filing as against
the five (5) days under the 2012 rules.
NB. All
Petitions in Revenue Matters shall be heard Fourteen (14) days after expiration of time for filing &
service of reply as against the Seven (7) days under the 2012 rules.
23. Order 61(17):
Penalty for intermeddling with the estate of a deceased shall not be less than
(N500,000. 00) in addition to any other liabilities as opposed to (N50,000. 00)
under the 2012 rules.
24. Order 63:
Letters of Administration without Will. On Administration Bond, the Judge
discretion to accept one surety instead of two can only be exercised where the
gross value of the estate does not exceed N1,000,000. 00 as opposed to
N250,000. 00 under the 2012 rules OR
where a Company is proposed as a surety. Same applies to where Guarantee is
required as a condition to making a grant.
PRACTICE DIRECTIONS ISSUED.
Currently,
there exist two volumes of Practice Directions issued on the 14th
day of January 2019. Volume 1 is for the Backlog
Elimination Programmewhile Volume 2 is on Pre-Action Protocol (General Pre-Action Protocol and Claim-Specific
Pre-Action protocol).
Volume 1
1. The practice direction assumes that
civil dispute be ready for trial or otherwise resolved within180 days of the filing of the Defence.
2. Cases that have lasted for minimum of
5 years are classified as ‘requiring
special attention’ and they shall be designated as BACKLOG.
3. CMC shall be reinitiated and
continued for such cases and they shall be resolved by designated Special
Judges sitting in special session within 90days.
4. The Practice Direction does not apply
to proceedings on a separate list (e.g the Fast Track list).
5. Once a matter is designated by the
Chief Judge as Backlog case and referred to special backlog session, CMC shall
be continued by notice to the Claimant to show cause while the matter should
not be struck out for want of diligent prosecution or being an abuse of court
process having been in continued existence for more than five (5) years.
6. The Claimant has 14days to respond by either filing any of the following; Notice of
discontinuance, Notice of intention to settle, state that the matter has been
settled or apply to set the matter down for trial.
7. Where the matter is set down for
trial, parties will be requested to submit a Joint Trial Plan or where it is mutually agreed to, the ‘Document Only Procedure’ will be
adopted to facilitate timely determination of the suit.
8. Where a Joint trial Plan is
submitted, the court will set the matter down for trial, parties can amend
their pleadings, file interlocutory applications, agree on list of issues for
determination, proposes consecutive trial dates among others. The trial plan
shall be filed within 14 days of the
Order granting the application to set down the matter for trial. The court
after considering the Trial Plan will issue a Procedural Time Table.
9. Where a Document Only Procedure is
adopted, it allows for admission of statement on oath as evidence in chief and
dispenses with the need for cross-examination of witnesses, admission of other
documents to be relied on stated in the list of documents filed by the parties.
10. Where a Procedural Time Table is not
followed by the parties, sanctions apply to wit; (N50,000. 00) per default of procedural time table which will be
considered and contained in the final judgment, default judgment in favour of
the Claimant or strike out for want of diligent prosecution (depending on
whether it is the Claimant or Defendant that is in breach of the Procedural
Time Table).
11. Trial shall be from day to day
12. Non-compliance with the Practice Direction
will attract disciplinary report against an individual, Order of dismissal of
suit for want of diligent prosecution or award of actual indemnity cost among
others.
13. Processes struck out can be restored
by an application supported by an Affidavit and Address. Cost of N100, 000. 00 may be awarded against
the applicant, depending on the reason for the initial striking out of the
application.
Volume 2
1.
This
provides for General Pre-Action Protocol and Claim-Specific Pre-Action
Protocol. Both of which shall apply collaboratively but in the event of
conflict, Claim-Specific Pre-Action Protocol shall apply.
2.
Introduces
‘Pre-Action Protocol Bundle’ i.e.
the Pre-Action Protocol Form 01 accompanied by all Pre-Action correspondences
(either for General or Claim Specific Pre-Action Protocol) duly acknowledged
and exchanged between parties, suggesting ADR. (must be made on oath)
3.
PAPB
and Originating processes and accompanying documents are to be spiralbound
separately and filed at the registry.
4.
It
also introduces MEMORANDUM OF CLAIM
which is to be made before commencing proceedings in court and shall contain
the following;
a. Details of the claims to be made
b. Basis upon which the claims are made
c. Summary of facts
d. Reliefs and remedies sought (if
monetary, how calculated)
e. Exhibits in support of claims
f.
Proposal
for settlement via ADR mechanism
The Memorandum of Claim is to be
delivered to the party against whom the claim is to be made. The Respondent
within seven (7) days of service of
the MOC on him shall serve his response to the MOC and ADR proposal on the
Claimant.
Upon failure of Defendant to file
response within seven (7) days, the Claimant is to send a reminder, giving him
additional seven (7) days. After
which an Affidavit of Respondent’s failure to participate in settlement can be
deposed to by the claimant.
5.
Litigation
in court must be a last resort.
6.
It
provides for grant of Exparte order for pre-emptive remedies (i.e. injunctions)
while full compliance with the pre-action protocol is ongoing. The remedies
granted can also be extended until compliance with pre-action protocol is
complete.
7.
Failure
to comply with the pre-action protocol, originating processes and supporting
documents will not be accepted for filing. If it is the Respondent that fails
to file his/her response, Claimant can proceed to litigation.
8.
Failure
to comply with any directive a Judge might give on the above is Contempt of
Court.
9.
Failure
to comply with the time frame stipulated above attracts N1000 daily default to be deducted or added to monetary reliefs
awarded in final judgment.
10. Where any party unreasonably or
disproportionately fails to abide by Protocol, but insists on proceeding to
trial, Court shall impose N100,000. 00 fine to be deducted or added to judgment
sum or Order 53(2) of the High Court
of Lagos Civil Procedure Rules 2019 on cost shall apply.
NB.The Claim-Specific Pre-action Protocol applies the
following class of actions; Defamation, Mortgages, Land Matters, Debt Recovery,
Recovery of Premises.
Defamation Action:
a. Claimant to notify Defendant of his
claims via letter of claim, stating sufficient details of his claims and
remedies sought.
b. Defendant is to respond within 14days or within 7 days into the 14 days, notify the Claimant of his inability to
respond and proposing a date which both parties must agree to, for Defendant to
file his response. Otherwise, the 14days continues to count.
c. The response is to state whether the
Defendant accepts liabilities to the claim of the Claimant, rejects in whole or
part the claim of the Claimant or requires further information / particulars on
the claim.
d. Litigation is a last resort.
Mortgage Action:
a.
Mortgagee
must send letter of claim to the mortgagor furnishing sufficient particulars as
to the mortgage sum, interest or other charge continuing, the nature of
mortgage agreement, details of property used as security among others.
b.
Mortgagee
is to enclose Financial Statement and a Reply Form in the letter of claim.
c.
Mortgagor
is to respond using the reply form and can request for reasonable time to seek
debt advice.
d.
In
any case, mortgagee is not expected to start court proceedings less than 30
days from receipt of the completed reply form or 30 days from the mortgagee providing any documents requested by the
mortgagor, whichever is later.
e.
The
mortgagee can dispute the mortgagors claim and make a counter claim in a
separate document attached to the reply form.
f.
Where
mortgagor requests for document or further information, the mortgagee is to
provide the document or explain why the document or information is unavailable
within 14 days of receipt of the
request.
g.
Where
the above has not been able to resolve the matter between Mortgagor and
Mortgagee, parties are advised to undertake a review of their respective
positions to see if proceedings can be avoided and at least narrow the issues
between them
h.
Where
the Mortgagor has responded to the letter of claims and agreement has not been
reached, mortgagee should give mortgagor at least 14daysnotice of intention to start court proceeding unless
exceptional circumstances arise. (e.g. limitation period is about to expire)
Land Matters:
a.
Claimant
to deliver a letter of claim to Defendant stating the claimant’s Root of Title
(with proof attached), accurate description of the property (attaching a
composite plan drawn by the Surveyor General of Lagos State) etc.
b.
Defendant
to send response to claimant within 30days
of service of the letter of claim either accepting the claim and deliver up
possession of property OR rejecting the claim stating the reasons and facts to
be relied on.
c.
If
Defendant makes a proposal for settlement, claimant must respond to it within 7 days of service of the response on
him.
Debt Recovery Action:
a.
Creditor
should send letter of claim to debtor before court proceedings are commenced,
stating;
b.
The
amount of debt owed, interest or charges on it, agreements entered and dates,
copies, details of assigned debts,
c.
Where
the debt arises from an oral agreement, who made the agreement, what was agreed
(including, as far as possible, what words were used) and when and where it was
agreed;
d.
Where
the debt arises from a written agreement, the date of the agreement, the
parties to it and the fact that a copy of the written agreement can be
requested from the Creditor;
e.
Where
the debt has been assigned, the details of the original debt and creditor, when
it was assigned and to whom;
f.
If
regular instalments are currently being offered by or on behalf of the debtor,
or are being paid, an explanation of why the offer is not acceptable and why a
court claim is still being considered;
g.
Details
of how the debt can be paid (for example
The
Creditor should also do one of the following
a.
Enclose
an up-to-date statement of account for the debt, which should include details
of any interest and administrative or other charges address; or
b.
Enclose
the most recent statement of account for the debt and state in the Letter of
Claim the amount of interest incurred and any administrative or other charges
imposed since the statement of account was issued, sufficient to bring it up to
date; or
c.
Where
no statements have been provided for the debt, state in the Letter of Claim the
amount of interest incurred and any administrative or other charges imposed since
the debt was incurred;
d.
The
Creditor should enclose a Financial Statement in the Letter of Claim.
RESPONSE BY THE DEBTOR:
a.
The
debtor should use the Reply Form in
Annex 1 for their response. The Debtor should request copies of any
documents they wish to see and enclose copies of any documents they consider
relevant, such as details of payments made but not taken into account in the
Creditor’s Letter of Claim.
b.
If
the debtor indicates that they are seeking debt advice, the Creditor must allow
the Debtor a reasonable period for the advice to be obtained. In any event, the
Creditor should not start court proceedings less than 30 days from receipt of the completed Reply Form or 30 days from
the Creditor providing any documents requested by the Debtor, whichever is the
later.
c.
If
the Debtor indicates in the Reply Form that they are seeking debt advice that
cannot be obtained within 30 days of their reply, the Debtor must provide
details to the Creditor should allow reasonable extra time for the Debtor to
obtain that advice where it would be reasonable to do so in the circumstances.
d.
Where
a Debtor indicates in the Reply Form that they require time to pay, the
Creditor and Debtor should try to reach agreement for the debt to be paid by
instalments. If the Creditor does not agree to a Debtor’s proposal for
repayment of the debt, they should give the Debtor reasons in writing.
e.
A
partially completed Reply Form should be taken by the Creditor as an attempt by
the Debtor to engage with the matter. The Creditor should attempt to contact
the Debtor to discuss the Reply Form and obtain any further information needed
to understand the Debtor’s position.
f.
Where
the debtor requests a document or information, the creditor must provide the
information or explain the reason for its unavailability within 30days of receipt of the request.
Actions for Recovery of Premises:
a.
Claimant
is to deliver letter of claim to the defendant with supporting documents
stating;
(I)
Tenancy
agreement or acknowledgment of existing landlord/tenant relationship
(II)
Arrears
of rent if any
(III)
The
amount of mesne profit due if any
(IV)
The
date of expiration of the tenancy
(V)
Date
of service of statutory notices
(VI)
Claim
for arrears of rent, mesne profits and/or possession
b.
Defendant
is to send response to Claimant within 7
days of service of letter of claim either accepting liabilities with a
proposal for payment of arrears of rent, mesne profit and/or delivery of
possession to the claimant, accepting part of the claims and the remedies
defendant is willing to offer, rejection of the whole claim with reasons and
facts to be relied upon to substantiate the defence.
c.
If
defendant makes proposal as to payment plan, the claimant is to respond within 7 days of service of the defendant’s
response on him.
These are the
few changes/improvements observed by me in the High Court of Lagos State Civil
Procedure Rules 2019 and the Practice Direction No. 1 & 2.
You are
advised to obtain copies of the rules and practice directions and further
acquaint yourself with their provisions.This remains snippets of the provisions
contained therein, and the writer shall not be liable for any loss whatsoever
occasioned from placing reliance on the content of this write up.
