REVIEW OF THE HIGH COURT OF LAGOS STATE CIVIL PROCEDURE RULES 2019 AND THE PRACTICE DIRECTIONS (NO. 1 & 2)

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 31^st 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 31^st 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 14^th 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.

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[1] OLUSEGUN O. MABAWONKU Esq.