– By Ekene Okwumo
Hon. Justice Opeyemi Olufunmilayo Oke, the Chief Judge of Lagos State, recently unveiled the Lagos State High Court (Civil Procedure) Rules, 2019 (the Rules) which took effect from January 31, 2019.
The Rules was birthed as a solution to the incessant delays in the dispensation of justice in the State and to facilitate the just and expeditious resolution of the real issues in civil proceedings at minimal expense.
To ensure that the purpose of the Rules is achieved, the Rules imposes an undertaking on parties to proceed in an expeditious way and authorises the Court to either dismiss a proceeding or impose a sanction as to cost, if, in breach of the undertaking, a Party fails to proceed as required by the Rules or an order of the Court.
The Rules amends the Lagos State High (Civil Procedure) Rules, 2012 and is to apply to all civil proceedings in the High Court of Lagos State including part-heard matters.
We have reviewed the provisions of the Rules and provide hereunder the major highlights of the Rules:
1. Form of Commencement of Action: Order 5 of the Rules:
Order 5 makes provision for the Form of commencement of an action at the Lagos State High Court. Unlike Order 3 Rule 1 of 2012 Rules which authorised the Registry to refuse to accept an originating process (Writ of Summons) filed without compliance with the Rules on forms of commencing an action, the Rules specifically stipulates that failure to accompany the Writ of Summons with the necessary documents (Statement of Claim, List of Witness(s), Witness Statement on Oath, List of Documents and Pre-action Protocol Form 1) shall nullify the action.
Also, by the provision of Order 5 Rule 4 of the Rules, failure to attach an Originating Summons with the other accompanying documents shall nullify the action.
With respect to actions transferred to a Lagos State High Court, Order 5 Rule 7 stipulates that where an action is transferred from a Court of competent jurisdiction to the Lagos State High Court, any of the parties shall re-file the suit.
2. Substituted Service via email: Order 9 Rule 5:
It is refreshing to see the Lagos State Judiciary take advantage of the use of technology and the internet in ensuring the speedy dispensation of justice in the State as Order 9 Rule 5 (1) authorises a Judge to make an order for substituted service as he deems fit including service by electronic mail.
We believe a lot of lawyers would take advantage of the use of email as a means for substituted service which is relatively faster and takes away the attendant cost if a Bailiff were to effect the service (via pasting the originating process on the Defendant’s last known address) or making a publication in a newspaper.
3. Default Fees: Order 11 Rule 5 and Order 48 Rule 4:
Where a Defendant fails to enter an appearance within the period stipulated by the Rules for entering an appearance, the Defendant shall be liable to pay N1,000.00 for each day of default, this is against the sum of N200.00 (Two Hundred Naira) previously provided in the 2012 Rules. Also, any Party who fails to perform an act within the period authorised by a Judge or the Rules shall be liable to pay N1,000.00 for each day of default. Although there has been a lot of controversy on the amount of the new default fee, we believe this would make lawyers more diligent in prosecuting their matters in Court and ultimately curb incessant delays.
Order 48 Rule 1 lays to rest the controversy with regard to computation of time (whether Saturdays should be included when computing time). Specifically, Order 48 Rule 1 provides that when an act is to be done within a period which does not exceed six (6) days, Saturdays and Holidays (defined as Sundays and Public Holidays) shall be excluded.
4. Alternative Dispute Resolution:
With the growing popularity of alternative dispute resolution mechanisms, the Rules provides for alternative dispute resolution proceedings in Order 28 (as a new provision) to give parties an opportunity to resolve their dispute expeditiously via ADR without the unreasonable delay associated with litigation.
Order 28 applies to (i) matters screened for ADR, (ii) matters referred to ADR during Case Management Conference, and (iii) applications for enforcement of Arbitral Awards.
It must be noted that, where an action is not resolved via ADR, the ADR Judge shall issue a status report and the matter subsequently remitted for assignment to a trial judge
5. Issues, Inquires, Accounts and References to Referees:
Order 30 Rule 1 of the Rules provides for a period of fourteen (14) days after close of pleadings for each Party to define and file its issues of facts. Order 27 Rule 1 of the 2012 Rules on Issues, Inquires, Accounts and References to Referees provided for a period of seven (7) days.
6. Diligent Prosecution:
Order 34 Rule 2 of the Rules contains a similar provision with Order 30 Rule 19 of the 2012 Rules which authorises a Judge to strike out an action for want of diligent prosecution.
However, by the provision of Order 34 Rule 2, where it appears to a Judge that there is undue delay in the prosecution of any proceeding, the Judge may require the particular party causing the delay to explain the reason for the delay and may make such order with regard to expediting proceedings.
If no proceeding is held or application filed in a case for a period of twelve (12) months, the Court is mandated to suo motu strike out the suit.
The introduction of a new provision on ADR would encourage Parties to take advantage of ADR which is comparatively faster and more cost effective in the resolution of their disputes ultimately resulting in the expeditious dispensation of justice in consonance with the overall objective of the Rules.