Pursuant to 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, the Chief Judge of Lagos State is empowered to make rules concerning the administration of the civil justice system. Recently, the Chief Judge of Lagos State in exercise of this power made the High Court of Lagos State (Civil Procedure) Rules 2019 (the “New Rules”). In addition, the Chief Judge also issued two practice directions on expeditious disposal of civil cases. The first, on backlog elimination program and the second, on pre-action protocol procedure. The practice directions are expected to eliminate the incessant clogs plaguing the state’s judiciary, improve efficiency and ensure timely delivery of justice.
This article seeks to analyze the amendments made and innovations introduced by the new rules and the implication of such amendments to the administration of justice.
Additions and Amendments to the Civil Procedure Rules by the High Court of Lagos State (Civil Procedure) Rules 2019
The Introduction of the Expeditious Disposal of Civil Cases Practice Direction (Backlog Elimination Programme (BEP) and (Pre Action Protocol).
The Chief Judge of Lagos State introduced the Expeditious Disposal of Civil Cases Practice Direction. The Practice direction (“Expeditious Disposal Practice Direction (BEP)”) provides that cases pending in court and undecided for 5 years be designated as “backlogs” and referred for resolution to a “Special Backlog Conference Judge”. Where a party fails to respond to the notice from the Special Backlog Conference Judge’s Registrar within fourteen (14) days, such matter shall be struck out for want of diligent prosecution.
The Expeditious Disposal Practice Direction (BEP) provides for a commendable innovation of “Document Only Procedure” which would entail that once notices have been sent to the claimant and the claimant files an application to set down the matter for trial in accordance with the practice direction, the claimant and the defendant can decide whether they want the trial to be a “document only” trial.
A document only trial will entail that the admission of statement on oath as evidence in chief and parties would dispense with cross-examination of witnesses. All documents listed on the list of document would admitted by the parties. This is clearly commendable. Dispensing with cross-examination would help reduce the time spent on cases. However, whether lawyers would agree to dispense with cross examination considering the importance of cross examination in a proceeding is what is left to be seen. More particularly, where a lawyer believes that his case can be resolved by only documents, such lawyer would initially have opted to file an Originating Summons rather than a writ of summons.
Furthermore, the Expeditious Disposal Practice Direction (BEP) provides that parties in backlog cases are expected to file “Joint Trial Plan” proposing consecutive trial dates. Failure to comply with such procedural timetable would attract the cost of N50, 000 per default and other others as stated in the practice direction.
The Expeditious Disposal Practice Direction (BEP) also encourages ADR and provides that where a court finds that a matter is capable of being resolved in ADR but the Defendant fails to participate, the court may order the cost of not less than N250, 000 at the end of the case.
Failure to appear on a return date, the court in the case of the claimant may strike out such suit and in the case of the defendant enter default judgement. In the event that any of the party applies for the action to be reactivated (relisting in the case of claimant and setting aside default judgement in the case of the defendant), the court shall order cost of N100,000.
The Expeditious Disposal of Civil Cases Practice Direction (Pre-Action Protocol) (“Expeditious Disposal Practice Direction (Pre Action Protocol”) requires that parties take additional steps to resolving disputes amicably before approaching the court. The Expeditious Disposal Practice Direction (Pre-Action Protocol requires parties to attach documents evidencing such attempts to the Pre-Action Protocol Form 01. Although the 2012 High Court Rules requires that pre Action Protocol be complied with, the Expeditious Disposal Practice Direction (Pre-Action Protocol) put the obligation on both the claimant and the defendant.
More interestingly, the Expeditious Disposal Practice Direction (Pre-Action Protocol) neatly provides a breakdown of expected contents in the Letter of Claim for Mortgagee, Defamation, Land Matters, Recovery of Debts and Recovery of Premises.
Under the new practice direction the claimant is mandated to file a memorandum of claim and the respondent is afforded 7 (seven) days to respond it. In the old Rules, only the claimant is expected to file the Pre-Action Protocol. The Expeditious Disposal Practice Direction (Pre-Action Protocol) also provides for guidelines for the defendant’s response.
The attainment of justice represents one of the enduring promises of constitutional democracy. Delay in the dispensation of justice is perceived as inimical to the attainment of substantial justice. However, the balance between delayed justice and hurried justice remains the cornerstone of any civilized legal system. The overall objective of the court is a just and timely determination of every case that comes before the court.
The New Rules appear to deal with the issue of delayed justice and takes preliminary steps to introduce the use of technology to our rules by allowing service to be effected by electronic emails. However, it would have been desirable for the New Rules to introduce a system where lawyers can file electronically from anywhere in the world and also allow electronic discovery.
Although the increase of default fees appears to be punitive and burdensome, overall, the New Rules is a step in the right direction in the effective administration of justice.